Weber #137562 v. Ryan et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS ORDERED that Magistrate Judge Metcalf's R&R (Doc. 19 ) is accepted and adopted as the order of this Court. IT IS FURTHER ORDERED that Grounds 1(a), 1(b), 3, 4, 7, 9, 10, 12, 14, 15, 16, 17(a), a nd 17(b) of Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5 ) be dismissed with prejudice. IT IS FURTHER ORDERED that Grounds 1(c), 2, 5(a), 5(b), 6, 8, 11, and 13 of Petitioner's Amended P etition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5 ) be denied. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability is denied because dismissal of the Amended Petition is in part justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable, and in part justified because reasonable jurists would not find the assessment of the constitutional claims debat able or wrong. IT IS FURTHER ORDERED that the Motion for Case Status (Doc. 24 ) is denied as moot. IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. (See document for complete details). Signed by Judge Diane J Humetewa on 9/25/18. (SLQ)

1

WO

2

NOT FOR PUBLICATION

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Keith Weber,

No. CV-16-01442-PHX-DJH
Petitioner,

10
11

v.

12

ORDER

Charles Ryan, et al.,

13

Respondents.

14
15

This matter is before the Court on Petitioner’s Amended Petition for Writ of

16

Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5) (“Petition”), the Report and

17

Recommendation (“R&R”) issued by United States Magistrate Judge James F. Metcalf

18

on March 9, 2017 (Doc. 19), and Petitioner’s Motion for Case Status pursuant to LRCiv.

19

7.2(l) (Doc. 24).

20

I. Background

21

The Magistrate Judge set forth the full factual and procedural background of this

22

case in his R&R. (Doc. 19 at 1-8). Petitioner has not objected to any of the information

23

in these sections. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (noting that the relevant

24

provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face

25

require any review at all . . . of any issue that is not the subject of an objection”). The

26

Court, however, finds it helpful to restate some of the relevant background facts here.

27

On April 13, 2007, Petitioner was charged in Maricopa County Superior Court

28

with two counts of sexual conduct with a minor, and one count of sexual exploitation of a

1

minor based on a computer image of the alleged sexual conduct. (Doc. 19 at 2). On

2

April 18, 2007, Petitioner was indicted on these three charges, as well as an additional

3

eleven counts of sexual exploitation based on other computer files of child pornography.

4

(Id.) Before jury selection began in Petitioner’s trial, the State sought dismissal of the

5

original three charges “for various reasons that the Court is aware of,” stating that it did

6

not “feel it’s in a position to proceed” with those three counts. (Id. at 3). Petitioner did

7

not object and the state court granted the State’s request. (Id.) No evidence as to those

8

three counts was introduced at trial and the charges were renumbered from one for the

9

jury. (Id.) The jury convicted Petitioner on all eleven counts of child pornography. (Id.)

10

The trial court imposed mitigated sentences of ten years per count, with each sentence to

11

be served consecutively. (Id.)

12

Thereafter, Petitioner filed a direct appeal to the Arizona Court of Appeals. (Id.)

13

Counsel was appointed to represent him. (Id.) After reviewing the record, Petitioner’s

14

appointed counsel was unable to find an issue for appeal and moved to withdraw pursuant

15

to Anders v. California, 386 U.S. 738 (1967). (Id.) Petitioner was then granted leave to

16

file a pro per supplemental brief. (Id.) In his brief, Petitioner made several substantive

17

claims of error as well as ineffective assistance of trial counsel claims. (Id. at 4). He also

18

argued that as a co-worker of his trial counsel, his appointed appellate counsel had a

19

conflict of interest in violation of his Sixth Amendment effective assistance to counsel

20

rights. (Id.) Petitioner did not make any argument regarding the improperness of the

21

indictment in his direct appeal. (Id.)

22

substantive claims Petitioner did advance and declined to address “other alleged

23

irregularities” based on Petitioner’s failure to “support those allegations with either

24

citation to authority or substantive discussion.” (Doc. 14-8, Ex. Z at 10; Doc. 19 at 5;).

25

The court declined to reach Petitioner’s ineffective assistance of trial and appellate

26

counsel claims and directed Petitioner to raise such claims in post-conviction review

27

proceedings. (Doc. 19 at 4). Finding no fundamental error, the Appeals Court ultimately

28

affirmed Petitioner’s convictions and sentences.

The Arizona Court of Appeals rejected the

-2-

(Id. at 5)

Petitioner’s subsequent

1

Motions for Reconsideration and Petition for Review were summarily denied. (Id.)

2

On September 11, 2011, Petitioner filed a Notice of Post-Conviction Relief. (Id.

3

at 5). Counsel was again appointed, but again was unable to find an issue on which to

4

seek relief. (Id.) Accordingly, counsel filed a Notice of Completion seeking leave for

5

Petitioner to file a pro per Post-Conviction Review (“PCR”) petition. (Id.) Petitioner

6

filed his pro per PCR petition on January 17, 2013. (Id.) Therein, Petitioner raised

7

several substantive arguments, one of which was that the state court’s decision to

8

renumber the counts in Petitioner’s indictment after dismissing the first three counts

9

unduly prejudiced him and rendered the indictment defective. (Id.) He also advanced

10

ineffective assistance of trial counsel claims, in which he asserted that his trial counsel

11

failed to challenge the allegedly defective indictment; that he failed to call a retained

12

computer forensic expert; and that he failed to object to argue that Petitioner’s probation

13

officer and a witness known as “M” had no right to search Petitioner’s computer. (Id.)

14

Petitioner did not make an ineffective assistance of appellate counsel argument in these

15

proceedings. The PCR court found that Petitioner’s substantive arguments, including his

16

argument that the amended indictment was defective, were precluded because they

17

“could have been presented at trial or on appeal.” (Id. at 6). The PCR court also

18

dismissed Petitioner’s claims of ineffective assistance of counsel as not colorable. (Id.)

19

Petitioner was denied a rehearing. (Id. at 6). He then filed a Petition for Review with the

20

Arizona Court of Appeals. In that Petition, Petitioner again raised his substantive claims,

21

including his claim that the changes made to the indictment unfairly prejudiced him. (Id.)

22

He also argued that his trial counsel was ineffective in failing to pursue the issues. (Id.)

23

He did not present any argument that his PCR counsel or his appellate counsel was

24

ineffective.

25

The Arizona Court of Appeals granted review but denied relief. (Id.) It first

26

found that Petitioner had waived his right to argue the substantive issues, including issues

27

related to the indictment, by failing to raise them on direct appeal. (Id.; Doc. 14-9, Ex.

28

VV at 2 (“Any claim a defendant raised or could have raised on direct appeal is

-3-

1

precluded.”)). The court also found that “[t]o the extent Weber suggests that his appellate

2

counsel should have raised these issue [sic] on appeal, Weber did not raise this issue

3

below. A petition for review may not present issues not first presented to the trial court.”

4

(Doc. 14-9, Ex. VV at 2-3). The court further found that Petitioner’s trial counsel was

5

not ineffective because “(1) any objection to the amendment of the indictment would

6

have been futile []; failure to present an affidavit from the [computer] expert rendered his

7

claim on that issue unsupported []; (3) the probation officer was authorized to conduct a

8

warrantless search based only on reasonable suspicion, and Petitioner’s probation was

9

still in effect despite being in custody [].” (Id. (internal citations omitted)). The Arizona

10

Supreme Court summarily denied Petitioner’s Petition for Review, and subsequent

11

request for clarifications regarding the reasons for the denial. (Id.)

12

On May 10, 2016, Petitioner filed his original Petition for Writ of Habeas Corpus

13

pursuant to 28 U.S.C. § 2254, (Doc. 1), which was then amended on May 16, 2018 (Doc.

14

5). In his Amended Petition, Petitioner raises seventeen grounds for relief (Doc. 5 at 2-

15

23), which the Magistrate Judge, taking guidance from the parties’ briefings,

16

characterized as follows:

17
18
19
20
21
22
23
24
25
26
27
28

 Ground 1 - Indictment: Petitioner argues that the indictment was improper
because (a): it was amended after it was presented to the grand jury; (b) it was not
supported by the evidence; and (c) the prosecution dropped some of the charges
before trial.
 Ground 2 – Exclusion of Computer Expert: Petitioner argues that his Due
Process rights were violated when the trial court did not allow him to refute the
state’s accusations by presenting the testimony of a computer expert witness;
 Ground 3 – Seizure; and Ground 4 – Destruction of Evidence: Petitioner
argues a Fourth Amendment violation occurred when his probation officer seized
his computers and disks from Petitioner’s residence while Petitioner was
incarcerated and that the officer destroyed forensic evidence by “putting his hands
all…over everything.”
 Ground 5 – Ineffective Assistance of Counsel re: Expert: Petitioner argues (a)
his trial counsel was ineffective for failing to call a computer forensic expert; and
(b) his post-conviction counsel was ineffective for failing to raise the substantive
issue on appeal or that the failure was a basis for an ineffective assistance of
counsel claim.
 Ground 6 – Failure to Disclose; and Ground 11 – Disclosure regarding an
-4-

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





Internal Affairs Investigation: Petitioner argues that his due process rights were
violated when the trial court denied a motion for mistrial based on the state’s
failure to disclose certain information about a detective involved in the case who
was the subject of an internal affirms investigation.
Ground 7 – Failure to Appear for Interview; and Ground 12 – Withholding
Chief Witness: Petitioner argues that the trial court erred in allowing the
testimony of a witness who had failed to appear for a defense interview and
similarly that his Due Process rights were violated when the state withheld this
witness [MW] until “the day of trial (eve thereof).”
Grounds 8 and 13 – Admission of Prejudicial Evidence: Petitioner argues that
trial court violated his Due Process rights by failing to exclude prejudicial
evidence of the pornography.
Ground 9 – False Evidence: Petitioner argues that his Due Process rights were
violated when the state presented evidence in the form of hard drives or modems
that it knew or should have known to be false because they had been planted by
his roommate, MW.
Grounds 10 and 15 – Conflict of Interest of Appellate Counsel: Petitioner
argues that his appointed appellate counsel failed to provide effective
representation by operating under a conflict of interest because he and Petitioner’s
trial counsel were co-workers at the same law firm.
Ground 14 – Jail Clothes: Petitioner argues that his Due Process rights were
violated when he was seen by the jury in “jail clothing.”
Ground 16 – Access to Law Library and Legal Resources: Petitioner argues
that he was denied access to the law library and legal resources prior to and during
his post-conviction proceedings.
Ground 17 – Fingerprints: Petitioner argues that (a) the State improperly relied
upon undisclosed evidence and false statements regarding metaphorical references
to Petitioner’s “fingerprints” on the pornography; and (b) that his post-conviction
counsel was ineffective in failing to raise this issue.
In a 70-page analysis, Judge Metcalf determined that Petitioner had procedurally

defaulted or was procedurally barred from asserting the claims asserted in Grounds 1(a)
(amendment to indictment) and 1(b) (unsupported indictment), 3 (seizure), 4 (destruction
of evidence), 7 (failure to interview), 9 (false evidence), 10 (IAC re: appellate counsel’s
conflict of interest), 12 (withholding witness), 14 (jail clothes), 15 (IAC re: appellate
counsel’s conflict of interest), 16 (access) and 17(a) (fingerprints) and 17(b) (PCR
ineffectiveness with regard to fingerprints).

(Doc. 19 at 67).

He also found that

Petitioner had failed to establish cause and prejudice or actual innocence with regard to
these claims, and all of them lacked merit, and thus recommended dismissing them with
-5-

1

prejudice. (Id.)

2

Although Judge Metcalf found that the issue of exhaustion had not been addressed

3

by Respondents in their Response brief with regard to Grounds 1(c) (dismissal of charges

4

from indictment), 2 (failure to call computer expert), and 5(b) (ineffective assistance of

5

PRC counsel regarding failure to raise ineffective assistance of trial counsel regarding

6

failure to call computer expert), he nonetheless found these claims were plainly without

7

merit, and recommended denying the same. (Id.)

8

Judge Metcalf also found that although Petitioner had properly exhausted his

9

remedies as to Ground 5(a) (ineffective assistance of trial counsel for failing to call

10

computer expert), 6 (failure to disclose detective information), 8 (admission of prejudicial

11

evidence), 11 (failure to disclose internal affairs investigation), and 13 (admission of

12

prejudicial evidence), all of these claims were without merit, and recommended denying

13

the same. (Id.) Finally, Judge Metcalf recommended that if these findings were to be

14

adopted by this Court, Petitioner’s request for a Certificate of Appealability be denied.

15

(Id. at 67-68)

16

Petitioner timely filed a “Response to: Report and Recommendation (of Petitioners

17

Writ of Habeas Corpus)” to the R&R (“Objection”) (Doc. 22) on April 19, 2017. (Doc.

18

22). Respondents filed their Reply to Petitioner’s Objection (“Response”) on April 26,

19

2017. (Doc. 23).

20

II.

Standard of Review

21

The duties of the district court in connection with an R&R by a magistrate judge

22

are set forth in Rule 72 of the Federal Rules of Civil Procedure and 29 U.S.C. § 636(b)(1)

23

of the Federal Magistrates Act. Those authorities represent that a district judge “shall

24

make a de novo determination of those portions of the report or specified proposed

25

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). See

26

also Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the

27

magistrate judge’s disposition that has been properly objected to.”); U.S. v. Reyna-Tapia,

28

328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (same). The judge may then “accept,

-6-

1

reject, or modify, in whole or in part, the findings or recommendations made by the

2

magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).

3

The relevant provision of 28 U.S.C. § 636(b)(1)(C), however, “does not on its face

4

require any review at all…of any issue that is not the subject of an objection.” Thomas v.

5

Arn, 474 U.S. 140, 149 (1989). And as Magistrate Judge Metcalf advised the parties in

6

his R&R, it is well-settled that “‘failure to object to a magistrate judge’s factual findings

7

waives the right to challenge those findings.’” (Doc. 19 at 69); see also Bastidas v.

8

Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015) (quoting Miranda v. Anchondo, 684 F.3d

9

844, 848 (9th Cir. 2012) (internal quotation marks omitted). Moreover, “[a]lthough the

10

Ninth Circuit has not yet ruled on the matter, other circuits and district courts within the

11

Ninth Circuit have held when a petitioner raises a general objection to an R&R, rather

12

than specific objections, the Court is relieved of any obligation to review it.” Martin v.

13

Ryan, 2014 WL 5432133, at *2 (D. Ariz. 2014) (citing Warling v. Ryan, 2013 WL

14

5276367, at *2 (D. Ariz. 2013) (“[A] general objection ‘has the same effect as would a

15

failure to object.’”)) (internal citation omitted); Gutierrez v. Flannican, 2006 WL

16

2816599 (D. Ariz. 2006) (citing Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984); Lockert v.

17

Faulkner, 843 F.2d 1015, 1019 (7th Cir. 1988); Howard v. Sec. of Health and Human

18

Servs., 932 F.2d 505, 509 (6th Cir. 1991); United States v. One Parcel of Real Prop., 73

19

F.3d 1057, 1060 (10th Cir. 1996)).

20

Petitioner’s 22-page handwritten objection to the R&R fails to articulate the

21

specific findings and conclusions of the R&R to which he finds objectionable. As noted,

22

a petitioner’s failure to object with specificity to the Magistrate Judge’s findings and

23

conclusions in the R&R has “the same effect as would a failure to object.” Warling 2013

24

WL 5276367, at *2. Because Petitioner timely filed a responsive pleading to the R&R,

25

however, where feasible, the Court will construe his argument as an objection and

26

attempt to connect those arguments to the findings and conclusions of the R&R.

27

III.

28

Objections
First, throughout his Objection, Petitioner generally seems to argue that all of his

-7-

1

procedurally defaulted claims are excusable under Martinez v. Ryan, 566 U.S. 1, 9

2

(2012).

3

however, arguing the erroneousness of the recommended dismissal of his claim that the

4

trial court violated his constitutional rights when it amended the indictment. (Doc. 22 at

5

6-15). Relatedly, he also seems to object to the Magistrate’s dismissal of his ineffective

6

assistance of appellate counsel claims related to appellate counsel’s refusal to raise trial

7

counsel’s failure to object to the indictment because trial counsel was his co-worker.

8

(Id.) Finally, Petitioner argues that his request for an evidentiary hearing and a new trial

9

should be granted.

10
11

IV.

(See generally Doc. 22).

Petitioner spends the majority of his Objection,

Relevant Standards
A. Default and Excuse

12

Federal review is generally not available for a state prisoner’s claims when those

13

claims have been denied pursuant to an independent and adequate state procedural rule.

14

Coleman v. Thompson, 501 U.S. 722, 750 (1991). However, because procedural default

15

principles are based on considerations of comity and not jurisdiction, federal courts retain

16

the authority to consider the merits of defaulted claims. Reed v. Ross, 468 U.S. 1, 9

17

(1984). Notwithstanding, a Court will not review the merits of a procedurally defaulted

18

claim unless the petitioner demonstrates legitimate cause for his failure to exhaust the

19

claim in state court and prejudice from the alleged constitutional violation, or shows that

20

a fundamental miscarriage of justice would result if the claim were not heard on the

21

merits in federal court. Coleman, 501 U.S. at 750.

22

1. Cause

23

Generally, “cause” for a procedural default exists if a petitioner can demonstrate

24

that “some objective factor external to the defense impeded counsel’s efforts to comply

25

with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); accord

26

Coleman, 501 U.S. at 753. Because the acts of a petitioner’s counsel are not external to

27

the defense, they are generally attributable to the petitioner, and counsel’s negligence,

28

ignorance, or inadvertence does not qualify as “cause.” Coleman, 501 U.S. at 752–54

-8-

1

(citing Carrier, 477 U.S. at 488). Coleman thus held that an attorney error will not

2

constitute “cause” to excuse a procedurally defaulted claim unless the ineffective

3

assistance of counsel itself amounts to an independent constitutional violation. Id. at

4

753–54; Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). In its opinion, the Coleman

5

Court went on to specifically note that because “[t]here is no constitutional right to an

6

attorney in state post-conviction proceedings…a petitioner cannot claim constitutionally

7

ineffective assistance of counsel in such proceedings.” Coleman, 501 U.S. at 752

8

(internal citations omitted). Consequently, it reasoned, the ineffectiveness of PCR

9

counsel will typically not suffice to establish cause to excuse a procedural default.1 The

10

Supreme Court, however, recognized a “narrow exception” to this statement in Martinez

11

v. Ryan, 566 U.S. 1, 9 (2012). In Martinez, the Supreme Court held that
[w]here, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was
ineffective.

12
13
14
15
16
17
18

Id. at 17 (emphasis added). Accordingly, under the equitable ruling of Martinez, a
petitioner may establish cause for the procedural default of an ineffective assistance of
trial counsel claim “where the state (like Arizona) required the petitioner to raise that

19
20
21
22
23
24
25
26
27
28

1

Petitioner objects to the Magistrate Judge’s conclusion that he had no constitutional
right to appointment of counsel in his PCR proceedings. (Doc. 22 at 5). He argues that
because Arizona law “appoints counsel in every first collateral proceeding, see Ariz. R.
Cr. Pr. R. 32.4(c)(2), this counsel must be effective per the USCA 6th Am.” (Id.) In
Douglas v. California, 372 U.S. 353, 357 (1963) the Court held that States must appoint
counsel on a prisoner’s first appeal. Accordingly, courts in this district have found that
Arizona pleading defendants have a constitutional right to counsel in a first, of-right
PCR. See e.g., Pacheco v. Ryan, 2016 WL 7423410, at *25 (D. Ariz. Sept. 23, 2016),
report and recommendation adopted, 2016 WL 7407242 (D. Ariz. Dec. 22, 2016). Such
holdings are in line with Douglas but not Petitioner’s argument. In Arizona, defendants
that plead guilty have no right to a direct appeal. As noted by the Magistrate Judge,
however, these holdings have no applicability to Petitioner, who did not plead guilty. He
thus “not only had a right to seek a traditional direct appeal, he availed himself of that
right. Accordingly, there is no basis to find a constitutional right to counsel in his PCR
proceedings.” (Doc. 19 at 31). See also Martinez, 566 U.S. at 16 (emphasizing that the
limited exception afforded to petitioners seeking to excuse the default of ineffective of
trial counsel claims due to the ineffectiveness of PCR counsel was based in equity, not
constitutional considerations).
-9-

1

claim in collateral proceedings, by demonstrating two things: (1) ‘counsel in the initial-

2

review collateral proceeding, where the claim should have been raised, was ineffective

3

under the standards of Strickland [v. Washington, 466 U.S. 668 (1984)]…’ and (2) ‘the

4

underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to

5

say that the prisoner must demonstrate that the claim has some merit.’” Cook v. Ryan,

6

688 F.3d 598, 607 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 14).

7

2. Prejudice

8

Even in the context of excusing the default of an ineffective assistance of trial

9

counsel claim, Martinez did not alter the prejudice prong of Coleman. “Prejudice” is

10

defined as the actual harm resulting from the alleged constitutional error or violation.

11

Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998).

12

procedural default of any claim, a petitioner bears the burden of showing not merely that

13

the errors at his trial were possibly prejudicial, but that they worked to his actual and

14

substantial disadvantage, infecting his entire trial with errors of constitutional dimension.

15

United States v. Frady, 456 U.S. 152, 170 (1982).

16

In seeking to excuse the

3. Fundamental Miscarriage of Justice

17

“The fundamental miscarriage of justice exception is available ‘only where the

18

prisoner supplements his constitutional claim with a colorable showing of factual

19

innocence.’” Herrera v. Collins, 506 U.S. 390, 404 (1993) (emphasis in original)

20

(quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). Thus, “‘actual innocence’ is

21

not itself a constitutional claim, but instead a gateway through which a habeas petitioner

22

must pass to have his otherwise barred constitutional claim considered on the merits.”

23

Herrera, 506 U.S. at 404. Further, in order to demonstrate a fundamental miscarriage of

24

justice, a habeas petitioner must “establish by clear and convincing evidence that but for

25

the constitutional error, no reasonable factfinder would have found [him] guilty of the

26

underlying offense.” 28 U.S.C. § 2254(e)(2)(B); Schlup v. Delo, 516 U.S. 298, 327

27

(1995) (to prove a “fundamental miscarriage of justice,” a prisoner must establish that, in

28

light of new and reliable evidence, “it is more likely than not that no reasonable juror

- 10 -

1

would have convicted him”).

2

fundamental miscarriage of justice that would justify a federal habeas court hearing a

3

procedurally defaulted claim is only permitted “in the extraordinary case.” House v. Bell,

4

547 U.S. 518, 538 (2006).

A court’s assessment of whether there has been a

5

Finally, this Court notes that issues of default and excuse all relate to the question

6

of whether a claim has been properly exhausted. However, a federal habeas court may

7

reject a claim on the merits without reaching the question of exhaustion at all. See 28

8

U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the

9

merits, notwithstanding the failure of the applicant to exhaust the remedies available in

10

the courts of the State.”); Rhines v. Weber, 544 U.S. 269, 277 (2005) (a stay is

11

inappropriate in federal court to allow claims to be raised in state court if they are subject

12

to dismissal under § 2254(b)(2) as “plainly meritless”); Cassett v. Stewart, 406 F.3d 614,

13

623-24 (9th Cir. 2005) (holding that a federal court may deny an unexhausted petition on

14

the merits when the petition does not raise a colorable federal claim).

15

B. Ineffective Assistance of Counsel

16

As noted in Martinez, the controlling Supreme Court precedent on claims of

17

ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984).

18

Under Strickland, a convicted defendant must show that counsel’s performance was

19

objectively deficient and counsel’s deficient performance prejudiced the petitioner. Id. at

20

687.

21

To be deficient, counsel’s performance must fall “outside the wide range of

22

professionally competent assistance.” Id. at 690.

23

performance, the court engages a strong presumption that counsel rendered adequate

24

assistance and exercised reasonable professional judgment. Id. “A fair assessment of

25

attorney performance requires that every effort be made to eliminate the distorting effects

26

of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

27

evaluate the conduct from counsel’s perspective at the time.” Id. at 689. Thus, review of

28

counsel’s performance is “extremely limited.” Coleman v. Calderon, 150 F.3d 1105,

- 11 -

When reviewing counsel’s

1

1113 (9th Cir. 1998), rev’d on other grounds, 525 U.S. 141 (1998). Acts or omissions

2

that “might be considered sound trial strategy” do not constitute ineffective assistance of

3

counsel. Strickland, 466 U.S. at 689. Indeed, “[t]he law does not require counsel to raise

4

every available nonfrivilous defense.” Knowles v. Mirzayance, 556 U.S. 111, 127 (2009)

5

(citations omitted). And it is without question that counsel’s failure to take futile action

6

will never constitute deficient performance. Sexton v. Cozner, 679 F.3d 1150, 1157 (9th

7

Cir. 2012); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). See also Baumann v.

8

United States, 692 F.2d 565, 572 (9th Cir. 1982) (“The failure to raise a meritless legal

9

argument does not constitute ineffective assistance of counsel.”).

10

In addition to showing counsel’s deficient performance, a petitioner must establish

11

that he suffered prejudice as a result of that deficient performance. Id. at 691-92. In the

12

effective assistance of counsel context, a petitioner must demonstrate prejudice by

13

showing a “reasonable probability that, but for counsel’s unprofessional errors, the result

14

of the proceeding would have been different. A reasonable probability is a probability

15

sufficient to undermine confidence in the outcome.” Id. at 694; Hart v. Gomez, 174 F.3d

16

1067, 1069 (9th Cir. 1999); Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998). The

17

prejudice component “focuses on the question whether counsel’s deficient performance

18

renders the result of the trial unreliable or the proceeding fundamentally unfair.”

19

Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). It is not enough to merely show “that the

20

errors had some conceivable effect on the outcome of the proceeding.” Strickland, 466

21

U.S. at 693.

22

A habeas court may proceed directly to the prejudice prong without deciding

23

whether counsel’s performance was deficient. Id. at 697; Jackson v. Calderon, 211 F.3d

24

1148, 1155 n. 3 (9th Cir. 2000). The court, however, may not assume prejudice solely

25

from counsel’s allegedly deficient performance. Id.

26

V.

27
28

Analysis
A. Inapplicability of Martinez to Petitioner’s Defaulted Claims
As noted, Petitioner invokes Martinez in his Objection. (Doc. 22 at 3, 4). In doing

- 12 -

1

so, he seems to suggest that Martinez should excuse all his defaulted claims, and at the

2

very least, his ineffective assistance of trial counsel claim. Martinez, however, only

3

applies if the defaulted claim is one of ineffective assistance of trial counsel. Martinez,

4

566 U.S. at 17-18; Davila v. Davis, 137 S. Ct. 2058, 2069 (2017). It does not apply when

5

a Petitioner is seeking to excuse a procedural default of any other type of claim for relief.

6

Davila, 137 S. Ct. at 2069 (noting the “domino effect” that could occur by extending

7

Martinez to claims of ineffective assistance of appellate counsel: “Prisoners could assert

8

their postconviction counsel's inadequacy as cause to excuse the default of their appellate

9

ineffectiveness claims, and use those newly reviewable appellate ineffectiveness claims

10

as cause to excuse the default of their underlying claims of trial error. Petitioner’s rule

11

thus could ultimately knock down the procedural barriers to federal habeas review of

12

nearly any defaulted claim of trial error.”).

13

Out of all the defaulted claims the Petitioner raised in his Amended Petition, only

14

two qualify as claims for relief from ineffective assistance of counsel; both of these,

15

however, are claims of ineffective assistance of appellate counsel. The Supreme Court

16

has plainly held that Coleman, not Martinez, applies to the assessment of whether a

17

default of an ineffective assistance of appellate counsel claims should be excused.

18

Davila, 137 S. Ct. at 2062-63, 2069 (reasoning that the exception in Martinez was limited

19

to claims of ineffective assistance of trial counsel because it was based on “the unique

20

importance of protecting a defendant’s trial rights, particularly the right to effective

21

assistance of trial counsel”).

22

The only claim of Petitioner’s to which Martinez may have applied, therefore, is

23

Ground 5(a), Petitioner’s ineffective assistance of trial counsel claim for failing to call a

24

computer expert. Trial counsel’s failure to call a computer expert was the only theory

25

Petitioner advanced in his Amended Petition for his ineffective assistance of trial counsel

26

claim. But the Magistrate Judge properly concluded that this claim was exhausted: it was

27

presented to and resolved on the merits in Petitioner’s PCR appeal. (Doc. 19 at 19).

28

Apart from generally arguing that his Sixth Amendment right to effective counsel has

- 13 -

1

been “egregiously violated,” Petitioner has not specifically objected to the Magistrate

2

Judge’s findings or conclusions as they related to Ground 5(a) and thus the Court is not

3

obligated to review that claim de novo. (Doc. 22 at 1). But because there was no default

4

of his ineffective assistance of trial counsel claim, there is of course no need to assess

5

whether Martinez applies to excuse any default of it. Because Martinez is inapplicable to

6

the sole ineffectiveness of trial counsel claim raised in the Amended Petition, the Court

7

overrules any objection on this basis.

8

B. Properness of the Indictment

9

Liberally construed, Petitioner’s Objection challenges the R&R’s conclusion as to

10

Ground 1(a) that Petitioner’s Sixth Amendment rights were not violated when the trial

11

court amended the indictment after dismissing the first three charges, which consisted of

12

two counts of sexual conduct with a minor and one count of sexual exploitation of a

13

minor based on a computer image of the sexual conduct. (See Doc. 22 at 6-16).

14

Petitioner did not object to the improperness of the amended indictment at trial or,

15

as noted, on direct appeal. He did raise it in his PCR proceedings and in that appeal. The

16

Arizona Court of Appeals found that Petitioner was precluded from arguing the propriety

17

of the indictment because he had waived it by not presenting it on his direct appeal. The

18

state appellate court nonetheless addressed the merits of the claim in the context of

19

resolving Petitioner’s ineffective assistance of trial counsel claim based on the same

20

theory, i.e., in determining whether Petitioner’s Sixth Amendment right to effective

21

counsel were violated when trial counsel failed to object to the indictment. (Doc. 14-9,

22

Ex. VV at 3). The court found the ineffective assistance of trial counsel claim on this

23

theory “not colorable” because “counsel had no grounds to object” to the changes that

24

were made to the indictment. (Id.)

25

Unlike the PCR appeal, the Amended Petition only raises the substantive argument

26

with regard to the indictment and does not assert as an independent ground of relief that

27

Petitioner’s trial counsel was ineffective for failing to object to the indictment. (See Doc.

28

5. See also Doc. 19 at 35 (“Petitioner asserts only three grounds in his Petition based on

- 14 -

1

ineffective assistance of trial or appellate counsel: Ground 5 (IAC re expert) and Grounds

2

10 and 15 (conflict of interest)”).2 In addressing the substantive claim regarding the

3

impropriety of the indictment, the Magistrate Judge first concluded it was procedurally

4

barred on an independent and adequate state ground. (Doc. 19 at 16). He then concluded

5

that ineffective assistance of trial or appellate counsel could not excuse the default of the

6

substantive indictment claim under Strickland because the claim was meritless, and as

7

such, Petitioner could not establish prejudice.3 (Id.)

8

Here is where Petitioner most takes issue with the R&R, arguing at length in his

9

Objection that his ineffective assistance of trial and appellate counsel constitute sufficient

10

cause to excuse his default of this claim and that his counsels’ failure to raise the issue

11

with regard to the defective indictment prejudiced his entire case. The Court disagrees

12

with Petitioner. The Sixth Amendment indictment arguments raised by Petitioner lack

13

merit and thus any attempt to raise them at trial would have been futile.

14

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), to

15

which this case applies, this Court may not grant a writ of habeas corpus to a state

16

2

23

Although his Amended Petition did not seek relief on the grounds that his trial court
was ineffective by failing to object to the amended indictment, Petitioner appears to make
such arguments in his Objection. (Doc. 22 at 11). The Court agrees with the Magistrate
Judge’s conclusion that the amendment to the indictment did not violate Petitioner’s
constitutional rights, however. See infra. Thus, even if this Court were to consider an
ineffective assistance of trial counsel claim that had not been fairly presented to a
magistrate, which it is not required to do, the ineffective assistance of trial counsel claim
for failing to object to the amendment arguably presented in Petitioner’s Objection would
be dismissed on its merits for Petitioner’s inability to establish prejudice under
Strickland. See United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000) (observing
that, although a district court has discretion not to consider an issue raised for the first
time in objections to a report and recommendation, the district court must show that it
“actually exercise[d]” that discretion). See also Brown v. Roe, 279 F.2d 742, 746 (9th
Cir. 2002) (holding that a district court is not required to consider claims raised for the
first time in a party’s objection to a magistrate judge’s recommendation).

24

3

17
18
19
20
21
22

25
26
27
28

Noting the arguable application of Martinez to Petitioner’s defaulted indictment claim,
the Magistrate Judge conducted its merits review of the underlying claim de novo. See
Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (en banc) (finding that a de novo
review should be extended to the determination of cause when Martinez applies).
However, Martinez is inapplicable to the determination as to whether the default of the
arguments raised in Ground 1(a) should be excused. Martinez applies only in the context
of assessing whether to excuse the default of an ineffective assistance of trial counsel
claim, not a substantive ground for relief like Ground 1(a). The Court nonetheless agrees
with the Magistrate Judge’s ultimate conclusion that the claim is meritless, regardless of
which standard is applied.
- 15 -

1

prisoner on a claim adjudicated on the merits in state court proceedings unless the state

2

court’s adjudication of the claim “resulted in a decision that was contrary to, or involved

3

an unreasonable application of, clearly established Federal law, as determined by the

4

Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable

5

determination of the facts in light of the evidence presented in the State court

6

proceeding,” § 2254(d)(2). When conducting its analysis, this Court must review the

7

“last reasoned state court opinion.” Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 (1991).

8

When the state’s highest court denies the claim summarily, the federal court looks

9

through to the last reasoned decision. See Johnson v. Williams (Tara), 568 U.S. 289, 297

10

n.1 (2013). Here, the last reasoned decision on the issue of Petitioner’s indictment is that

11

of the Arizona Court of Appeals, which addressed the claim in assessing whether

12

Petitioner’s Sixth Amendment rights were violated when trial counsel failed to object to

13

the amended indictment. Accordingly, it is to this opinion that the Court will look.

14

1. Federal Law

15

“In all criminal prosecutions, the accused shall enjoy the right…to be informed of

16

the nature and cause of the accusation…” U.S. Const. amend. VI; Gautt v. Lewis, 489

17

F.3d 993, 1002-03 (9th Cir. 2007) (“The Sixth Amendment guarantees a criminal

18

defendant the fundamental right to be informed of the nature and cause of the charges

19

made against him so as to permit adequate preparation of a defense.”).

20

determining whether a defendant has received fair notice of the charges against him, we

21

begin by analyzing the content of the information.” Gautt, 489 F.3d at 1003.

“When

22

Here, prior to trial, the trial judge granted the State’s motion to dismiss the first

23

three charges of the indictment. After they were dismissed, the state court ordered that

24

the charges be renumbered for the convenience of the jury. Petitioner does not contend,

25

and the record does not reflect, that any change or omission was made to the counts that

26

remained and on which he was tried and convicted. The Magistrate Judge concluded that

27

the state court’s change to the indictment did not deny the Petitioner’s notice of the

28

charges he faced. (Doc. 19 at 44). The Court agrees. The charges that remained in the

- 16 -

1

indictment following the dismissal of the first three charges were unchanged from the

2

time they had been presented to the grand jury. Nothing in their substance was altered

3

such that Petitioner was not on notice of the charges being brought against him. Thus,

4

trial counsel’s failure to raise an objection on such grounds did not implicate Petitioner’s

5

Sixth Amendment rights; such an objection would have been futile under federal law. As

6

such, Petitioner suffered no prejudice as a result of trial counsel’s failure to raise it such

7

that his default of the claim should be excused under federal law.

8

2. State Law

9

The change was also not objectionable under state law. Generally, “a trial court

10

may not amend an indictment to charge new and different matters of substance without

11

the concurrence of the grand jury.” State v. O’Haire, 720 P.2d 119, 121 (Ariz. Ct. App.

12

1986). However, Arizona law allows a trial court to amend an indictment “to correct

13

mistakes of fact or remedy formal or technical defects.” Ariz. R. Crim. P. 13.5(b). “A

14

defect in the indictment may be considered formal or technical when its amendment does

15

not operate to change the nature of the offense charged or to prejudice the defendant.”

16

O’Haire, 702 P.2d at 121. The Arizona Court Appeals held:

17
18
19
20
21
22
23
24
25
26
27
28

Regarding the alleged amendment of the indictment, Weber concedes that
the court did nothing more than renumber the counts after the court
dismissed some counts prior to trial. The court did not change the
substance of any of the counts. The sentence minute entry also shows the
court actually renumbered the counts only for presentation to the jury.
Therefore, counsel had no grounds to object.
(Doc. 19-4, Exhibit VV at ¶ 5). Petitioner argues that because the charges that were
dismissed from the indictment were supported by allegedly falsified evidence, their
dismissal called the whole indictment into question. Specifically, he intimates that a
grand jury would “have had a greater suspicion of the entire indictment ‘if’ they would
have known the truth – in that the state fabricated alleged photo of Petitioner caught in a
photo molesting a child[.]” (Doc. 22 at 7). At best, however, Petitioner is asking for
another bite at the grand jury apple. In doing so, he does not explain how the court’s
decision to renumber the counts before trial changed their substantive nature or in any
- 17 -

1

way prejudiced him. O’Haire, 702 P.2d at 121. He certainly has not met his burden of

2

showing that the Arizona Appeals Court’s resolution of the issue was based on an

3

unreasonable determination of the facts in light of the evidence presented to it.

4

§ 2254(d)(2).

5

In sum, the underlying claim related to the improperness of the indictment lacked

6

merit, and thus Petitioner could not establish prejudice by showing that his trial or

7

appellate counsel was ineffective for failing to raise it. Petitioner has not met his burden

8

of showing that the state court’s adjudication of the issue was contrary to or an

9

unreasonable application of federal law related to indictments or that its determination

10

that the amendment was proper was based on an unreasonable determination of the facts

11

presented to that court.

12
13

This Court thus overrules Petitioner’s objection on this Ground.
C. Conflict of Interest Claims

14

In his Amended Petition, Petitioner asserts ineffective assistance of appellate

15

counsel claims (Grounds 10 and 15) in which he contends that his appellate counsel

16

failed to raise unspecified claims on direct appeal because his appellate counsel worked

17

at the same firm as his trial counsel. (Doc. 5 at 14, 19). As a result of their co-worker

18

status, Petitioner argues that Appellate counsel was operating under a conflict of interest

19

and thus motivated not to raise “various trial errors” on appeal. (Id.) The Magistrate

20

Judge concluded Petitioner had not exhausted his state remedies on a claim related to

21

appellate counsel’s ineffective assistance of counsel based on a conflict of interest

22

because he had not raised that claim in his PCR proceedings. (Doc. 19 at 30). Petitioner

23

does not specifically object to this finding and this Court agrees with the conclusion that

24

these claims are procedurally defaulted. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4;

25

see also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (in order to “fairly present” one’s

26

claims, the prisoner must do so “in each appropriate state court”). The Magistrate Judge

27

ultimately concluded that that the Petitioner could not establish he had been prejudiced

28

by any conflict appellate counsel may have had that motivated him to refrain from raising

- 18 -

1

various trial errors because all the errors raised in his Amended Petition were without

2

merit.4 The Magistrate Judge’s conclusion that the claims of trial error themselves were

3

not viable thus dispelled “any presumption that the claim was not pursued because of the

4

conflict of interest, as opposed to the lack of merit,” and further disposed of “any

5

purported prejudice from the conflict of interest.”

6

because the substantive claim of ineffective assistance of appellate counsel due to an

7

alleged conflict lacked merit, it could not provide the basis to excuse any procedural

8

default of other claims.

(Doc. 19 at 40-41).

Moreover,

9

“The due process clause of the fourteenth amendment guarantees a criminal

10

defendant the right to the effective assistance of counsel on his first appeal as of right.”

11

Miller v. Keeney, 882 F.2d 1428, 1431 (9th Cir.1989) (citing Evitts v. Lucey, 469 U.S.

12

387 (1985)). “Where a constitutional right to counsel exists, our Sixth Amendment cases

13

hold that there is a correlative right to representation that is free from conflicts of

14

interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981). Claims of ineffective assistance

15

of appellate counsel, like claims of ineffective assistance of trial counsel, are reviewed

16

under the standards set forth in Strickland. Moorman v. Ryan, 628 F.3d 1102, 1106 (9th

17

Cir. 2010).
First, the petitioner must show that counsel’s performance was objectively
unreasonable, which in the appellate context requires the petitioner to
demonstrate that counsel acted unreasonably in failing to discover and brief
a merit-worthy issue…Second, the petitioner must show prejudice, which
in this context means that the petitioner must demonstrate a reasonable
probability that, but for appellate counsel’s failure to raise the issue, the
petitioner would have prevailed in his appeal.

18
19
20
21
22
23
4

24
25
26
27
28

At the time the Magistrate issued his R&R, Ninth Circuit precedent had extended the
Martinez cause standard to procedurally defaulted ineffective assistance of appellate
counsel claims. See Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013). Accordingly,
the Magistrate Judge applied the standards from Martinez to assess whether Petitioner
had established cause to excuse the procedural default of his ineffective assistance of
appellate counsel claim due to the ineffective assistance of his PCR counsel. (Doc. 19 at
35-41). As noted, Davila has since foreclosed the extension of Martinez to such claims.
The change in precedent is without legal consequence here, however, because the
Magistrate Judge ultimately found the Petitioner could not establish he had been
prejudiced by appellate counsel’s failure to raise meritless claims. Martinez did not
affect the prejudice prong of Coleman.
- 19 -

1

Id. at 1106-07 (citing Smith v. Robbins, 528 U.S. 259, 285-86 (2000) (internal citations

2

omitted).

3

Petitioner’s claims of ineffective assistance of appellate counsel relate to appellate

4

counsel’s failure to raise issues regarding trial counsel’s deficient representation because

5

of appellate counsel’s conflict of interest. But a conflict of interest alone, even an actual

6

conflict, does not render an appellate counsel’s representation constitutionally deficient.

7

Petitioner must first show that trial counsel provided constitutionally deficient

8

representation in taking or failing to take some action. Moormann, 628 F.3d at 1106–07

9

(“[T]o determine whether appellate counsel’s failure to raise these claims was objectively

10

unreasonable and prejudicial, we must first assess the merits of the underlying claims that

11

trial counsel provided constitutionally deficient representation.”) (citing Hain v. Gibson,

12

287 F.3d 1224, 1231 (10th Cir.2002) (to properly address a claim of ineffective

13

assistance of appellate counsel, court must look to the merits of the omitted issue). Only

14

then will the Court need to assess whether appellate counsel failed to raise those

15

deficiencies as a result of his actual conflict of interest. “If trial counsel’s performance

16

was not objectively unreasonable or did not prejudice Petitioner, then appellate counsel

17

did not act unreasonably in failing to raise a meritless claim of ineffective assistance of

18

counsel, and Petitioner was not prejudiced by appellate counsel’s omission.” Moorman,

19

628 F.3d at 1107 (citing Wildman v. Johnson, 261 F.3d 832, 840

20

(“[A]ppellate counsel’s failure to raise issues on direct appeal does not constitute

21

ineffective assistance when appeal would not have provided grounds for reversal.”);

22

Pollard v. White, 119 F.3d 1430, 1435 (9th Cir.1997) (“A hallmark of effective appellate

23

counsel is the ability to weed out claims that have no likelihood of success, instead of

24

throwing in a kitchen sink full of arguments with the hope that some argument will

25

persuade the court.”).

(9th Cir.2001)

26

Petitioner does not specify what claims of error serve as the basis of trial counsel’s

27

deficient representation underlying his conflict of interest claims in his Objection.

28

Construed liberally, this Court interprets the Objection to argue that appellate counsel

- 20 -

1

failed to raise trial counsel’s failure to raise arguments related to the amended indictment

2

because appeals counsel worked at the same firm as trial counsel. Because the Court has

3

already determined, however, that Petitioner’s indictment-related claim lacks merit, it

4

also concludes that Petitioner cannot meet his burden of showing that appellate counsel

5

acted unreasonably in failing to raise this meritless claim of ineffective assistance of trial

6

counsel, or that Petitioner was prejudiced by the omission. The Court notes, however,

7

that it has reviewed the R&R at length and agrees with the Magistrate Judge that all of

8

the claims in the Amended Petition lack merit.

9
10
11
12

The Court therefore overrules any objection to Petitioner’s claims in Grounds 10
and 15.
D. Remaining “Objections”
Petitioner has not triggered de novo review as to the remainder of his Objection

13

because any other objections lack the requisite specificity.

14

characterize Petitioner’s arguments as objections at all; in large part, the Objection

15

restates the points Petitioner argued in his Amended Petition and Reply brief. Moreover,

16

undertaking a de novo review of Petitioner’s general objections at this point would defeat

17

the “obvious purpose” of the specific objection requirement, which is judicial economy.

18

See Warling, 2013 WL 5276367, at *2 (citing Thomas, 474 U.S. at 149; Reyna–Tapia,

19

328 F.3d at 1121). Because de novo review of an entire R&R would defeat the

20

efficiencies intended by Congress, a general objection “has the same effect as would a

21

failure to object” and the Court has no obligation to review the remainder of Petitioner’s

22

general objections to the R&R. See id. (citing Howard, 932 F.2d at 509; Haley, 2006 WL

23

1980649, at *2).

Indeed, it is hard to

24

Notwithstanding, the Court did not simply accept the remainder of the R&R.

25

Instead, the Court reviewed the R&R, the many exhibits referenced therein, and the

26

applicable law and concluded that Magistrate Judge Metcalf’s recommendations are

27

sound and supported by a correct application of the law throughout.

28

E. Evidentiary Hearing

- 21 -

1

Petitioner requests an evidentiary hearing.

The Court will deny Petitioner’s

2

request. The standard for holding an evidentiary hearing in a habeas case is set forth in

3

28 U.S.C. § 2254(e)(2), and states:
If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that –

4
5
6

(A) the claim relies on (i) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was previously
unavailable; or (ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

7
8
9

(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.

10
11

Evidentiary hearings, however, are not authorized for claims adjudicated on the

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

merits in the State court. Cullen v. Pinholster, 131 S. Ct. 1388, 1400-1401 (2011). Such
claims are subject to review under § 2254(d)(1), which asks whether a State Court’s
decision on the claim was contrary to, or an unreasonable application of, clearly
established federal law. Id. at 1398. “[R]eview under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim on the merits.” Id.
Evidence introduced in federal court would, therefore, have no bearing on the Court’s
review under § 2254(d)(1). Id. at 1400. As a result, evidentiary hearings pursuant to 28
U.S.C. § 2254(e)(2) are inapplicable to claims decided on the merits in State Court. Id. at
1401.
As the above analysis demonstrates, the State Court adjudicated Petitioner’s
indictment claim on the merits. Applying § 2254(d)(1), this Court has determined that
the State Court decision was not contrary to, and did not involve an unreasonable
application of, clearly established Supreme Court law. Under Pinholster, the Court’s
analysis was limited to the record before the State Court that decided the claims on the
merits. The Court could not consider any newly presented evidence. Petitioner is
therefore not entitled to an evidentiary hearing.
Accordingly,
- 22 -

1
2

IT IS ORDERED that Magistrate Judge Metcalf’s R&R (Doc. 19) is accepted
and adopted as the order of this Court.

3

IT IS FURTHER ORDERED that Grounds 1(a), 1(b), 3, 4, 7, 9, 10, 12, 14, 15,

4

16, 17(a), and 17(b) of Petitioner’s Amended Petition for Writ of Habeas Corpus

5

pursuant to 28 U.S.C. § 2254 (Doc. 5) be dismissed with prejudice.

6

IT IS FURTHER ORDERED that Grounds 1(c), 2, 5(a), 5(b), 6, 8, 11, and 13 of

7

Petitioner’s Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254

8

(Doc. 5) be denied.

9

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

10

Section 2254 Cases, a Certificate of Appealability is denied because dismissal of the

11

Amended Petition is in part justified by a plain procedural bar and jurists of reason would

12

not find the procedural ruling debatable, and in part justified because reasonable jurists

13

would not find the assessment of the constitutional claims debatable or wrong.

14
15
16
17
18

IT IS FURTHER ORDERED that the Motion for Case Status (Doc. 24) is
denied as moot.
IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 25th day of September, 2018.

19
20
21
22

Honorable Diane J. Humetewa
United States District Judge

23
24
25
26
27
28

- 23 -