Farr v. Arizona, State of

Filing 82

ORDER - IT IS ORDERED overruling the 80 Objections to the Magistrate Judge's Report and Recommendation and denying Petitioner's 81 Request for an Evidentiary Hearing. The 77 Report and Recommendation of the Magistrate Judge is adop ted as the Order of this Court. IT IS FURTHER ORDERED denying and dismissing Petitioner's 5 Amended Petition for Writ of Habeas Corpus with prejudice and denying any Certificate of Appealability and leave to proceed in forma pauperis on appeal because Petitioner has not made a substantial showing of the denial of a constitutional right and because the dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find that procedural ruling debatable. IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. Signed by Senior Judge Susan R Bolton on 10/10/18. (GMP)

1
2
3

NOT FOR PUBLICATION

4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Jacques Farr,

No. CV-14-02128-PHX-SRB
Petitioner,

10
11

v.

12

ORDER

Charles L Ryan, et. al.,

13

Respondent.

14
15

The Court now considers Petitioner Jacques Farr’s (“Petitioner”) pro se Amended

16

Petition for a Writ of Habeas Corpus by a Person in State Custody pursuant to 28

17

U.S.C. § 2254. (Doc. 5, Am. Pet.) The matter was referred to Magistrate Judge Michelle

18

H. Burns for a Report and Recommendation. The Magistrate Judge filed her Report and

19

Recommendation recommending that the Amended Petition be denied and dismissed

20

with prejudice. (Doc. 77, R. & R.) She further recommended denying a certificate of

21

appealability and leave to proceed in forma pauperis on appeal because Petitioner has not

22

made a substantial showing of the denial of a constitutional right. Petitioner timely

23

objected. (See Doc. 80, Obj. to R. & R. (“Obj.”).) Having reviewed the record de novo,

24

the Court adopts the Report and Recommendation and denies and dismisses the Amended

25

Petition with prejudice.

26

I.

27
28

BACKGROUND
The background of this case was thoroughly summarized in the Report and

Recommendation and is incorporated herein:

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Petitioner was convicted in Maricopa County Superior Court of one
count of theft, one count of theft of a means of transportation, and one
count of trafficking in stolen property, and was sentenced to a 3.5-year term
of imprisonment.
The Arizona Court of Appeals described the facts of this case as
follows:
¶2
During the fall of 2009, Farr agreed to help D.W.[] move out
of a house where D.W. was staying. Before doing so, Farr took D.W. (who
was on parole) to a parole office where D.W. was taken into custody. D.W.
surrendered his keys and wallet to the parole officer, asking the parole
officer to tell Farr to take them to Frank Meadows, who owned the house
where D.W. had been staying. When Farr went to Meadows’ house with a
friend, he took all of D.W.’s belongings.
¶3
In the first part of 2010, Farr sold D.W.’s 1991 Chevy pickup
truck to R.S.R. for $1,000. The title had D.W.’s signature notarized on the
seller section, but that signature did not match D.W.’s actual signature.
¶4
In May 2013, the State charged Farr in a direct complaint
with count one, theft of means of transportation, a Class 3 felony; count
two, trafficking in stolen property in the second degree, a Class 3 felony,
and count three, theft, a Class 6 felony. After failed plea negotiations, the
State charged Farr by indictment with the same three offenses. Before trial,
while represented by counsel, Farr filed several pro se motions. Other than
granting a pro se motion to change counsel, the superior court summarily
denied all of Farr’s pro se motions.
¶5
During a five-day trial in April and May 2014, the State
presented six witnesses: D.W.; R.S.R.; the person who helped Farr move
D.W.’s possessions out of Meadows’ house; Meadows and two detectives.
The day after R.S.R. testified, the State moved to amend the indictment to
conform to the evidence presented concerning the date range for the sale of
the truck to R.S.R. See Ariz. R. Crim. P. 13.5(b) (2016).[] Over Farr’s
objection, the superior court allowed the amendment as it was consistent
with the trial evidence and encompassed the general time frame of the
indictment.
¶6
After the State rested, Farr presented two witnesses: the
notary who witnessed the signature on the title and a friend who saw the
transaction; Farr also elected to testify on his own behalf. Farr testified that,
after he helped D.W. with a problem, D.W. sold Farr the truck for $500.
Farr testified that D.W. signed the title, and his signature was notarized,
before D.W. was taken into custody, leaving the buyer line of the title
blank.
¶7
After final instructions and closing argument, the jury
deliberated and found Farr guilty as charged and found, for the theft
verdict, that Farr controlled property valued at $1,000 or more. At
sentencing, after a proper colloquy, Farr admitted a prior felony conviction
from 1989. After considering the presentence report and hearing from
counsel as well as Farr, his father, wife and son, the superior court
sentenced Farr to presumptive concurrent sentences of 3.5 years in prison
for counts one and two and 1 year in prison for count three.

-2-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

State v. Farr, No. 1 CA-CR-15-0421, 2016 WL 1425804, at *1 (Ariz. Ct.
App. April 12, 2016)).
On direct appeal, Petitioner’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that she had searched the
record, but found no arguable question of law that is not frivolous, and
asking the court to examine the record for reversible error. (Exh. K.)
Thereafter, Petitioner filed a pro se “supplemental brief” alleging the
following claims: (1) that the court erred in its denial of pre-trial pro se
motions; (2) that the State failed to present exculpatory evidence to the
grand jury; (3) that his right to a speedy trial was violated; (4) that the court
erred by allowing the State to amend the indictment; (5) that he was denied
due process by pre-indictment delay; (6) that D.W. should not have been
allowed to testify as he was incompetent; (7) that the court erred in giving
jury instructions regarding the notary public; (8) that the court erred in not
allowing the release of defendant pending appeal; (9) that the court erred by
allowing defendant to be cross-examined with his prior conviction; (10)
that the court erred by failing to consider the special action as a writ of
habeas corpus; (11) that his trial counsel was ineffective; and (12) that there
was insufficient evidence to support his convictions and that he is actually
innocent. (Exhs. L, M.)
The Arizona Court of Appeals affirmed Petitioner’s convictions and
sentences on April 12, 2016. (Exh. M.) The Arizona Supreme Court denied
the petition for review on August 22, 2016. (Exh. M.)
The record reflects that on May 3, 2016, Petitioner filed a notice of
post-conviction relief. (Exh. N.) Defense counsel filed a notice of
completion of post-conviction review informing the court that after
completing review of the record, he was unable to find any meritorious
claims for relief in which to raise in post-conviction relief proceedings.
(Exh. O.) Counsel also requested an extension of time for Petitioner to file
a pro se PCR petition. (Exh. O.)
On December 29, 2016, Petitioner filed a pro se PCR petition
alleging the following claims: (1) denial of pre-trial pro se motions; (2)
failure of the state to present exculpatory evidence to the grand jury; (3)
violation of speedy trial right (4) amendment of the indictment during trial;
(5) pre-indictment delay; (6) incompetent witness permitted to testify at
trial; (7) jury instructions regarding notary public; (8) failure to allow
release of defendant pending appeal; (9) use of defendant’s prior conviction
for impeachment; (10) denial of October 2014 special action complaint;
(11) ineffective assistance of trial counsel in that “Every Court appointed
lawyer did absolutely nothing to insure that the rights of the Petitioner was
[sic] protected or enforced,” and [failed to] present evidence of a Craigslist
ad and satellite image of the pick-up truck from October 2009; and (12)
insufficiency of evidence and actual innocence. (Exhs. P, R.)
On June 12, 2017, the state court dismissed the petition finding that
grounds one through ten and twelve were precluded pursuant to Rule 32.2.
As to the ineffective assistance claim alleged in ground eleven, the court
found that Petitioner failed to state a colorable claim for relief. (Exh. R.)
Petitioner did not file a petition for review in the Arizona Court of Appeals.
(Doc. 59.)
In his Amended Petition, Petitioner names Charles L. Ryan as
-3-

Respondent and the Arizona Attorney General as an Additional
Respondent. (Doc. 5.) Petitioner alleges five grounds for relief. In Ground
One, Petitioner alleges that his rights to due process and right to a speedy
trial were violated, in violation of the Sixth and Fourteenth Amendments.
In Ground Two, Petitioner alleges that the State committed prosecutorial
misconduct, in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments. In Ground Three, Petitioner alleges that he received the
ineffective assistance of counsel. In Ground Four, Petitioner alleges that he
was prosecuted in a ‘biased and unfair venue.’ In Ground Five, Petitioner
appears to allege that the grand jury process in his case was defective,
stating that it was an ‘unqualified/illegal grand jury.’

1
2
3
4
5
6

8

In their Answer, Respondents argue that Ground One fails on the
merits, Grounds Two and Three are procedurally defaulted, and Grounds
Four and Five are not cognizable in federal habeas proceedings.

9

(R. & R. at 1–4 (footnotes omitted).)1

7

10

The Report and Recommendation agreed with Respondents and concluded that

11

Ground One lacked merit, Grounds Two and Three were procedurally defaulted, and

12

Grounds Four and Five were not cognizable in federal habeas proceedings. The

13

Magistrate Judge recommended that the Court deny and dismiss the Amended Petition

14

with prejudice, and deny a Certificate of Appealability. (R. & R. at 20.) Petitioner timely

15

filed his Objections, which includes a request for an evidentiary hearing. (See Obj.)

16

II.

LEGAL STANDARDS AND ANALYSIS

17

A district court “must make a de novo determination of those portions of the report

18

. . . to which objection is made,” and “may accept, reject, or modify, in whole or in part,

19

the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C). A

20

court need review only those portions objected to by a party, meaning a court can adopt

21

without further review all portions not objected to. See United States v. Reyna-Tapia, 328

22

F.3d 1114, 1121 (9th Cir. 2003) (en banc). For those portions of a Magistrate Judge’s

23

findings and recommendations to which neither party has objected, the Act does not

24

prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There

25

is no indication that Congress . . . intended to require a district judge to review a

26
1

27
28

In his Reply, Petitioner argues, among other things, that his court-appointed counsel: (1)
refused to submit potentially exculpatory evidence to the court, (2) failed to obtain
documents containing potentially exculpatory evidence, (3) failed to spend adequate time
preparing his case, and (4) demonstrated overt disdain toward him (Doc. 74, Reply to
Answer at 4, 6, 9–10.)
-4-

1

magistrate’s report to which no objections are filed.”); see also Reyna–Tapia, 328 F.3d at

2

1121 (“[T]he district judge must review the magistrate judge’s findings and

3

recommendations de novo if objection is made, but not otherwise.”).

4

Petitioner brings this action pursuant to 28 U.S.C. § 2254. (Am. Pet. at 1.)

5

Petitioner objects to the Report and Recommendation on several grounds: (1) the

6

Magistrate Judge failed to consider the various failures of Petitioner’s court-appointed

7

counsel; (2) the Magistrate Judge failed to recognize that Petitioner’s due process rights

8

were violated by lengthy delays in the appeals process and a conviction secured in

9

violation of the Sixth and Fourteenth Amendments; (3) the Magistrate Judge failed to

10

recognize prosecutorial misconduct; and (4) the Magistrate Judge failed to recognize

11

abuse of judicial discretion. (Obj. at 3–13.)

12

A. Ground One

13

Petitioner alleges that the State violated his Sixth and Fourteenth Amendment

14

rights to due process and a speedy trial. (Am. Pet. at 6; R. & R. at 9.) Petitioner alleges

15

that the State intentionally delayed the prosecution to obtain a tactical advantage, which

16

resulted in substantial prejudice to Petitioner. (Am. Pet. at 6.) Petitioner alleges that as a

17

result of the State’s inexplicable delay, he was unable to recall details surrounding the

18

events at issue, which harmed his defense. (Id.) The Arizona Court of Appeals denied

19

Petitioner’s due process and speedy trial claims on direct review. Under the Antiterrorism

20

and Effective Death Penalty Act of 1996, a petitioner is not entitled to habeas relief with

21

respect to any claim that was adjudicated on the merits in State court proceedings unless

22

the State court decision was (1) contrary to, or an unreasonable application of, clearly

23

established federal law, or (2) based on an unreasonable determination of the facts in

24

light of the evidence presented in the state court proceedings. See Andriano v. Ryan, No.

25

CV-16-01559-PHX-SRB, 2018 WL 4148865, at *2 (D. Ariz. Aug. 30, 2018) (citing 28

26

U.S.C. § 2254(d)). “An unreasonable application of federal law is different from

27

an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410 (2000).

28

Under § 2254(d), the standard for evaluating state court rulings is highly deferential and

-5-

1

requires that state court rulings be given the benefit of the doubt. See Woodford v.

2

Visciotti, 537 U.S. 19, 24 (2002) (citing Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).

3

The standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

4

With respect to Petitioner’s Sixth Amendment speedy trial and pre-indictment

5

delay claims,2 the Magistrate Judge concluded that the state court’s determination was

6

not contrary to or an unreasonable application of state law. (R. & R. at 12.) Petitioner’s

7

objections concerning both claims are vague at best: “[o]nly by way of numerous

8

violations of Petitioner’s federally protected constitutional rights under the Sixth and

9

Fourteenth Amendments was the State of Arizona able to manipulate a conviction.” (Obj.

10

at 9.) Nevertheless, the Court will consider Petitioner’s speedy trial and pre-indictment

11

delay claims as laid out in Ground One. (See Am. Pet. at 6.)

12

In Barker v. Wingo, the Supreme Court explained that “the nature of the speedy

13

trial right does make it impossible to pinpoint a precise time in the process when the right

14

must be asserted or waived.” 407 U.S. 514, 527 (1972). Barker established a “balancing

15

test” that weighs the conduct of “both the prosecution and the defendant.” Id. at 530.

16

Some of the factors to be weighed include: (1) the length of and reasons for delay; (2) the

17

defendant’s assertion of his right; (3) and the prejudice to the defendant as a result of the

18

delay. See, e.g., Vermont v. Brillon, 556 U.S. 81, 89–90 (2009).

19

“[T]o trigger a speedy trial analysis, an accused must allege that the interval

20

between accusation and trial has crossed the threshold dividing ordinary from

21

‘presumptively prejudicial’ delay.” Doggett v. United States, 505 U.S. 647, 651–52

22

(1992) (citing Barker, 407 U.S. at 530–31). Prejudice is normally presumed if the delay

23

in bringing the defendant to trial “approaches one year”; there is no need to engage the

24

remaining Barker factors until that one-year threshold is met. Doggett, 505 U.S. at 652

25

n.1; see also United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993) (citation

26

omitted) (stating that courts have generally found delays approaching one year to be

27
2

28

“The Sixth Amendment’s provision of a ‘right to a speedy and public trial . . .’ applies
to state court proceedings pursuant to the Fourteenth Amendment.” (R. & R. at 11
(citations omitted).)
-6-

1

“presumptively prejudicial”).3 Petitioner’s trial began on April 30, 2014—342 days after

2

the State filed a direct complaint.4 (R. & R. at 12 (citing State v. Farr, No. 1 CA-CR 15-

3

0421, 2016 WL 1425804, at *3 (Ct. App. Ariz. Div. 1 Apr. 12, 2016)).) Yet even treating

4

Petitioner’s delay as “approach[ing] one year” and therefore “presumptively prejudicial,”

5

upon application of the Barker factors, the Court finds no violation of Petitioner’s

6

constitutional rights because Petitioner has not demonstrated actual prejudice.

7

First, the Report and Recommendation notes that the reasons for delay were

8

neither deliberate nor sufficiently prejudicial to hamper Petitioner’s defense: “the trial

9

court continued an early January 2014 trial date when it granted Petitioner’s pro se

10

motion for change of counsel two days before trial,” and “the court continued on another

11

occasion when the State had a trial conflict.” (R. & R. at 12.) Second, Petitioner asserted

12

his right only two days before the trial began. (Id.) Third, Petitioner fails to establish

13

prejudice suffered as a result of the delay, making only vague assertions concerning loss

14

of memory and evidence.5 See, e.g., United States v. Manning, 56 F.3d 1188, 1194 (9th

15

Cir. 1995) (“Generalized assertions of the loss of memory, witnesses, or evidence are

16

insufficient to establish actual prejudice.”).6

17

With respect to Petitioner’s pre-indictment delay claim, the Court agrees with the

18

Magistrate Judge’s findings that the state court’s determination was not contrary to nor an

19

unreasonable application of federal law. (See R. & R. at 13.) “Protection from pre-

20
3

21
22
23
24
25
26
27
28

The Report and Recommendation effectively summarized the level of weight that is
accorded to each type of delay:
Deliberate delay “to hamper the defense” weighs heavily against the prosecution. Barker,
407 U.S. at 531. “[M]ore neutral reason[s] such as negligence or overcrowded courts”
weigh less heavily “but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the government rather than with the
defendant.” Id. Additionally, because defense counsel is defendant’s agent, delay caused
by the defendant’s counsel is charged against the defendant. See Brillon, 556 U.S. at 90–
91.
(R. & R. at 11.)
4
The State filed the direct complaint against Petitioner on May 23, 2013. (Doc. 65,
Limited Answer to Am. Pet. (“Limited Answer”), Ex. A.)
5
“Actual and substantial prejudice has resulted because of the delay, memories have
faded so the petitioner has lost the ability to elicit evidence that has now been forgotten.”
(Am. Pet. at 6.)
6
In his Objections, Petitioner’s arguments concerning prejudicial delay are similarly
vague. (See Obj. at 9.)
-7-

1

indictment delay is based upon the Due Process Clause.” Manning, 56 F.3d at 1194

2

(citation omitted). The court engages three factors to determine whether pre-indictment

3

delay may prevent prosecution: “(1) the actual prejudice to the defendant[;] (2) the length

4

of the delay[;] and (3) the reason for the delay.” Id. (citation omitted). Of the three

5

factors, the first is most crucial. See id. (citation omitted). For the same reasons discussed

6

with respect to Petitioner’s speedy trial claim, the Court finds that Petitioner fails to

7

demonstrate actual, nonspeculative prejudice as a result of pre-indictment delay. Because

8

Petitioner fails to demonstrate the most important factor, the Court need not proceed with

9

the remaining factors.

10

In his Objections, Petitioner additionally offers a bare assertion that the State

11

violated his right to a “speedy appeal.” (Obj. at 7–8.) The Court is unaware of a

12

constitutional right to a speedy appeal. Cf. Betterman v. Montana, 136 S. Ct. 1609, 1615

13

(2016) (“Adverse consequences of postconviction delay, though subject to other checks .

14

. . are similarly outside the purview of the Speedy Trial Clause.”) (citation omitted). The

15

Court treats this claim as waived. Petitioner’s objections to Ground One are overruled,

16

and the Report and Recommendation is adopted with respect to Ground One.

17
18

B. Ground Two
Petitioner alleges that the State committed prosecutorial misconduct in violation of

19

the Fifth, Sixth, and Fourteenth Amendments. (Am Pet. at 7; R. & R. at 13.) Petitioner

20

alleges that the “prosecutor and police department filed false charges and collaborated

21

together to mislead the court and the jury into believing the 1991 chev. [sic] pickup was

22

stolen.” (Am. Pet. at 5; R. & R. at 13.) Petitioner, however, failed to raise the specific

23

claim asserted in Ground Two on direct appeal or in his PCR proceedings. (Limited

24

Answer, Exs. K–M, P, R.) A state prisoner must exhaust his remedies in state court

25

before petitioning for a writ of habeas corpus in federal court. See 28

26

U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365–66 (1995); McQueary v.

27

Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a

28

petitioner must fairly present his claims to the state highest court in a procedurally

-8-

1

appropriate manner. See Sullivan v. Boerckel, 526 U.S. 838, 839–46 (1999). In Arizona, a

2

petitioner must fairly present his claims to the state’s direct appeal process or through

3

appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.

4

1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). The Magistrate Judge

5

concluded that because Petitioner failed to fairly present his claim of prosecutorial

6

misconduct, Petitioner’s claim is considered procedurally defaulted. (R. & R. at 13 (citing

7

Ariz. R. Crim. P. 32.2, 32.4(a)).)

8

A federal court may review the merits of a procedurally defaulted claim if the

9

petitioner: (1) demonstrates that failure to consider the merits of that claim will result in a

10

“fundamental miscarriage of justice,” or (2) establishes “cause” for his noncompliance

11

and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman v.

12

Thompson, 501 U.S. 722, 750–51 (1991); Murray v. Carrier, 477 U.S. 478, 495–96

13

(1986). As the Report and Recommendation correctly states, Petitioner has not

14

demonstrated a “fundamental miscarriage of justice” because Petitioner has failed to

15

present “evidence of innocence so strong that a court cannot have confidence in the

16

outcome of the trial.” Schlup, 513 at 316. Because Petitioner has not offered “new

17

reliable evidence” that was “not presented at trial,” Petitioner has not demonstrated

18

evidence of innocence to establish a miscarriage of justice. Id. at 324.

19

Petitioner attempts to establish “cause,” arguing that his procedural default is

20

excused under Martinez v. Ryan. See 566 U.S. 1, 9 (2012). Under Martinez, “cause” is

21

established when: “(1) the claim of ‘ineffective assistance of trial counsel’ was a

22

‘substantial’ claim; (2) the ‘cause’ consisted of there being ‘no counsel’ or only

23

‘ineffective’ counsel during the state collateral review proceeding; (3) the state collateral

24

review proceeding was the ‘initial’ review proceedings in respect to the ‘ineffective-

25

assistance-of-trial-counsel claim’; and (4) state law requires that an ‘ineffective

26

assistance of trial counsel [claim] . . . be raised in an initial-review collateral

27

proceeding.’” Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citation omitted). In Ground

28

Two, Petitioner does not allege ineffective assistance of counsel—Petitioner alleges that

-9-

1

the State committed prosecutorial misconduct. The Martinez exception, therefore, does

2

not apply. Petitioner’s prosecutorial misconduct claims are procedurally defaulted, his

3

objections to these grounds are overruled, and the Report and Recommendation is

4

adopted with respect to Ground Two.

5

C. Ground Three

6

Petitioner alleges that he received ineffective assistance of counsel because his

7

counsel, among other things, “failed or deliberately did not introduce important

8

documents” and exculpatory evidence, “did not object to prosecutorial misconduct,” “did

9

not object to almost all of the Petitioner’s motions being denied,” and “did absolutely

10

nothing to help this Petitioner in his case.” (Am. Pet. at 8; R. & R. at 15.) Although

11

Petitioner presented a similar ineffective assistance claim in his PCR petition, he failed to

12

file a petition for review to the appellate court. (Doc. 59, Status Report at 1; R. & R. at

13

16.)7 The Magistrate Judge concluded that because Petitioner failed to fairly present his

14

claim of ineffective assistance of counsel, Petitioner’s claim is considered procedurally

15

defaulted. (R. & R. at 16 (citing Ariz. R. Crim. P. 32.2, 32.4(a)).)

16

Petitioner argues, again, that his procedural default is excused under Martinez.

17

Petitioner’s argument, again, fails. As discussed above, the Martinez exception applies

18

only to the ineffectiveness of post-conviction counsel in the initial post-conviction review

19

proceeding. Martinez does not apply to Petitioner’s ineffective assistance of counsel

20

claim because his claim derives from an allegation of ineffective assistance of counsel at

21

trial—not during post-conviction review proceedings. (Am. Pet. at 8; Reply to Answer at

22

8–13).8 The Court agrees with the Report and Recommendation and finds that Petitioner

23

has not demonstrated a substantial claim of ineffective assistance of trial counsel during

24

7

25
26
27
28

The state court dismissed Petitioner’s ineffective assistance of counsel claim, finding
that while evidence of a Craigslist ad and a satellite image of the 1991 Chevrolet pickup
truck would have supported Petitioner’s testimony, there was no reasonable probability
that the outcome of the case would have been different had those documents been
presented to the jury. (Limited Answer, Ex. R at 2–3.)
8
In his Objections, Petitioner alleges ineffective assistance of counsel during postconviction relief proceedings. (Obj. at 9.) Yet the allegation lacks sufficient factual
support to indicate that counsel’s performance was deficient under prevailing
professional standards, and that Petitioner suffered prejudice due to that deficient
performance. See Strickland v. Washington, 466 U.S. at 691–92 (1984).
- 10 -

1

his post-conviction relief proceedings. See Martinez, 566 U.S. at 14. Petitioner’s

2

ineffective assistance of counsel claims are procedurally defaulted, his objections to

3

Ground Three are overruled, and the Report and Recommendation is adopted with

4

respect to Ground Three.

5

D. Grounds Four and Five

6

In Ground Four, Petitioner alleges that he was “prosecuted in a ‘biased and unfair

7

venue,’” because the judge overseeing his trial both trained prosecutors in Maricopa

8

County and failed to sustain Petitioner’s objections or grant Petitioner’s motions. (Am.

9

Pet. at 9; R. & R. at 18.) Petitioner alleges that he “cannot and will not get an impartial or

10

unbiased decision from a Maricopa County Superior Court.” (Am. Pet. at 9; R. & R. at

11

18–19.)9 In Ground Five, Petitioner alleges that the grand jury process in his case violated

12

Arizona Rule of Criminal Procedure Rule 12.2 because the grand jury was

13

“unqualified/illegal.” (Am. Pet. at 10; R. & R. at 19.) The Magistrate Judge determined

14

that Petitioner’s claims in Grounds Four and Five are not amenable to federal habeas

15

review. (R. & R. at 19.) Under § 2254(a), the scope of federal habeas review is limited to

16

challenges to state court judgments based on allegations of federal constitutional

17

violations, laws, or treaties. See 28 U.S.C. § 2241(c)(3) (“The writ of habeas corpus shall

18

not extend to a prisoner unless—He is in custody in violation of the Constitution or law

19

or treaties of the United States[.]”); see also Estelle v. McGuire, 502 U.S. 62, 67–68

20

(1991) (“[W]e reemphasize that it is not the province of a federal habeas court to

21

reexamine state-court determinations on state-law questions.”).

22

The Court agrees with the Magistrate Judge that Petitioner’s claims regarding

23

venue and a defective grand jury process in violation of state law are not cognizable

24

under § 2254(a). (R. & R. at 19–20.) Petitioner does not make a well-formed objection to

25

the Magistrate Judge’s conclusion with respect to Ground Five, only offering equivocal

26

allegations about the unfairness of the grand jury process. (See Obj. at 5, 13.) Petitioner

27

objects to the Magistrate Judge’s conclusion with respect to Ground Four by making

28

9

With respect to Ground Four, “Petitioner does not allege any violation of unfair venue
based on prejudicial pretrial publicity.” (R. & R. at 19.)
- 11 -

1

conclusory allegations about the judge overseeing his trial; namely, that he lacked

2

“jurisdiction over any contested case in the State of Arizona,” and his rulings were

3

“erroneous” and “borderline incompetent.” (Id. at 13.) The Court overrules Petitioner’s

4

objections to Ground Four, and the Report and Recommendation is adopted with respect

5

to Grounds Four and Five.

6

III.

CONCLUSION

7

Having reviewed the record de novo, the Court adopts the Report and

8

Recommendation and denies and dismisses the Amended Petition with prejudice. The

9

Court agrees with the Magistrate Judge’s conclusion that Ground One fails on the merits,

10

Grounds Two and Three are procedurally defaulted, and Grounds Four and Five are not

11

cognizable in federal habeas proceedings.

12
13

IT IS ORDERED overruling the Objections to the Magistrate Judge’s Report and
Recommendation (Doc. 80).

14
15

IT IS FURTHER ORDERED denying Petitioner’s Request for an Evidentiary
Hearing (Doc. 81).

16
17

IT IS FUTHER ORDERED adopting the Report and Recommendation of the
Magistrate Judge as the Order of this Court (Doc. 77).

18
19

IT IS FURTHER ORDERED denying and dismissing Petitioner’s Amended
Petition for Writ of Habeas Corpus with prejudice (Doc. 5).

20

IT IS FURTHER ORDERED denying any Certificate of Appealability and leave

21

to proceed in forma pauperis on appeal because Petitioner has not made a substantial

22

showing of the denial of a constitutional right and because the dismissal of the petition is

23

justified by a plain procedural bar and jurists of reason would not find that procedural

24

ruling debatable.

25

...

26

...

27

...

28

...

- 12 -

1

IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly.

2
3

Dated this 10th day of October, 2018.

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

- 13 -