Ring #131722 v. Ryan et al

Filing 19

REPORT AND RECOMMENDATION recommending that 1 Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED and DISMISSED WITH PREJUDICE. FURTHER RECOMMENDED that a Certificate of Appealability and leave to pr oceed in forma pauperis on appeal be DENIED because the dismissal of the habeas petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. This recommendation is not an order that is immedi ately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. See document for complete details. Signed by Magistrate Judge Michelle H Burns on 1/22/18. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Timothy Stuart Ring,
Petitioner,

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vs.

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Charles L. Ryan, et al.,

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Respondents.

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CIV 16-04070-PHX-SPL (MHB)
REPORT AND RECOMMENDATION

TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT COURT:

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Petitioner Timothy Stuart Ring, who is confined in the Arizona State Prison Complex,

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Buckley Unit, in Buckeye, Arizona, has filed a pro se Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 13), and

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Petitioner has filed a Reply (Doc. 14).

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BACKGROUND

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Petitioner was convicted following jury trial in Maricopa County Superior Court, case

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#CR1995-001754, of first degree felony murder, conspiracy to commit armed robbery, armed

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robbery, first degree burglary, and theft and was sentenced to death and lesser sentences. See

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State v. Ring, 25 P.3d 1139 (Ariz. 2001). Petitioner’s conviction and sentences were affirmed

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by the Arizona Supreme Court. See id. The United States Supreme Court granted certiorari

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and reversed and remanded regarding Petitioner’s death sentence. See Ring v. Arizona, 536

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U.S. 584 (2002). On September 5, 2003, the Arizona Supreme Court held that a finding that

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Petitioner committed the murder for pecuniary gain was not harmless error and remanded for

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resentencing. See State v. Ring, 76 P.3d 421 (Ariz. 2003). In July 2007, upon remand, the

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trial court resentenced Petitioner to a natural life term of imprisonment on the murder

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conviction pursuant to an agreement he entered with the State.

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The Arizona Supreme Court described the facts of this case as follows:

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¶2 At approximately 2:00 p.m. on November 28, 1994, a Wells Fargo armored
van servicing Dillard’s department store at Arrowhead Mall was reported
missing by Dave Moss, the van’s “hopper.” At approximately 6:30 p.m. that
same day, a Maricopa County Sheriff’s deputy discovered the missing van in
the parking lot of a Sun City church. All of the van’s doors were locked, the
engine was running, and a body was slumped over on the passenger side. The
body was that of the van’s driver, John Magoch, who had been killed by a
gunshot wound to the head.

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¶3 Wells Fargo determined that its losses from the robbery totaled
$833,798.12, of which $562,877.91 was in cash. Although no eyewitnesses to
the crime came forward, one person riding his bicycle in Sun City on the
afternoon of the robbery claimed to have seen a white van, followed by a red
pick-up truck, run a stop sign. This witness stated that one man was driving the
red truck while two people were in the van. Another witness also saw a white
van followed by a red pick-up truck. Although she remembered one man
driving the van, she testified that either two or three men were in the red truck.
¶4 Through information provided by an informant, the Glendale Police
Department contacted Judy Espinoza, who believed that her boyfriend James
Greenham and a friend of Greenham’s named “Tim” may have been involved
in the robbery. “Tim” later turned out to be Defendant—Timothy Ring.
Glendale Police interviewed Espinoza on December 30, 1994. Espinoza stated
that when she heard about the robbery on the radio, she remembered that a
week before Greenham had asked her what she would do “if he hit an Armored
car.” Espinoza also remembered that, although Greenham had been staying
with her, he was not at home on the night of the robbery and during that week
he was “very stressed out.” In addition, shortly after the robbery, Greenham
handed Espinoza a bag of rolled coins totaling approximately $250 and gave
Espinoza’s mother $800 in cash to pay bills. Finally, Espinoza informed the
police that Greenham’s friend Tim owned a red truck. About a week before the
interview with police, Greenham had stopped dating Espinoza and had moved
out of her home.
¶5 While conducting surveillance of Greenham, the police noticed that he
appeared to be riding a new motorcycle. Random phone calls to motorcycle
dealerships revealed that, in December 1994, Greenham and Defendant made
large cash purchases at Metro Motor Sports. Specifically, Defendant bought
two ATVs and a motorcycle from the dealership for $7,500 and $7,300,
respectively. Over the next several weeks, Defendant and Greenham both
made many more expensive purchases, all of them cash transactions. Wiretaps
on certain telephones belonging to Defendant and Greenham began on January
9, 1995. On January 21, 1995, Defendant called William Ferguson and
discussed Greenham’s purchase of a new truck, the trouble this caused with
Greenham’s ex-wife, and what impact that trouble might have on their plans
“up north.” In that call, Defendant threatened to “cut off” Greenham’s supply,
as Defendant held “both his and mine.” The two also talked about disappearing
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for two years after “up north happens,” then reuniting in Las Vegas. Four days
later, Ferguson bought a new motorcycle for $8,700 cash, paying in fifty and
one-hundred dollar bills.
¶6 On January 26, 1995, Greenham called Defendant’s pager and entered the
following code: 20*2000*04. He followed that call with another code:
50*5000*04. In conversations between Defendant and Ferguson, Defendant
had referred to Greenham as “zero four.” Later that day, Defendant asked
Greenham, “The two pages you sent ... those are your requests, is that right?”
To which Greenham responded, “Yeah.”

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¶7 As part of the investigation of Defendant, arrangements were made with
Waste Management Company to perform a “trash cover,” enabling
investigators to sort through and survey Defendant’s waste. During this
process, police acquired two notecards, written by Defendant, with addresses
of businesses serviced by Loomis Armored Cars, as well as numbers
corresponding to Loomis trucks. Defendant was employed by Loomis in
1988–89 and, at trial, claimed that the notecards pertained to his employment
at that time.
¶8 The police then attempted to generate discussion between the conspirators
about the robbery. On January 31, 1995, the police issued a news release that
was aired on local television stations. Defendant called Greenham at
approximately 10:30 that evening and left a message on Greenham’s
answering machine to “remind me to talk to you tomorrow and tell you what
was on the news tonight. Very important, and also fairly good.” A few days
later, Detective Tom Clayton from the Glendale Police Department left his
business card on the door of Greenham’s residence, requesting that Greenham
call and “refer to lead 176.” In response, Greenham made an emotional,
panicked telephone call to Defendant. Greenham also apparently called his
ex-wife, who was so concerned about his well-being that she asked Phoenix
Police to visit Greenham’s apartment to check on him. Coincidentally,
Defendant stopped by Greenham’s apartment at the same time. Defendant later
discussed this incident with Ferguson, telling him “I don’t know what to think
of it. Uhm, his house is clean. Mine, on the other hand, contains a very large
bag.” Later that same day, Defendant also said, “it doesn’t really make a whole
lot of sense, because given the information that they do have, both public and
what I’ve been able to ascertain privately ... if they were gonna come after
somebody, it would be me.” Ferguson ended the call by saying that he would
“keep a suitcase packed.”

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¶9 On February 14, 1995, the police again attempted to generate conversation
by airing a “Silent Witness” re-enactment on the local news that contained
several deliberately incorrect details about the robbery and murder. Defendant
called Ferguson at 10:51 p.m. to talk about the broadcast. Ferguson claimed
to have “laughed my ass off” and said he was “not real worried at all now.”
Defendant stated that “there’s only one thing that slightly concerns me,” and
asked, “What if push comes to shove down the months and they ask for hair
and fibers, so forth, and it happens to somehow....” Later in the conversation,
Defendant said, “there was a couple of in continuities (sic) to their story....
They showed a suppressed revolver of all things.”
¶10 Two days later, on February 16, 1995, a search warrant was served on
Defendant’s residence. Police found a homemade sound suppressor attached
to a Ruger 1022 rifle barrel behind the hot water heater in a corner of
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Defendant’s garage. Also in the garage, inside a storage cabinet, police
discovered a green duffel bag with Defendant’s name on it. The bag contained
bundles of United States currency totaling $271,681. Defendant also had
$1,040 in a headboard in the master bedroom. In a notebook found in the same
headboard, police discovered a post-it note that had the number “575,995” on
it. Below the number was the word “splits,” with the three letters “F,” “Y,” and
“T,” and numbers below the letters totaling 575,995, which is remarkably
similar to the total cash amount taken in the robbery. An expert testified that
this note was written by Defendant. Greenham’s friends often called him
“Yoda”; thus, argued the state, the “Y” represented Greenham, the “F” was for
Ferguson, and the “T” stood for Defendant. A search warrant served on
Ferguson’s residence also turned up $62,601. Approximately $200 was found
at Greenham’s apartment.

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¶11 In his own defense, Defendant claimed to have made more than $100,000
as a confidential informant for the FBI. However, an agent for that agency
testified that Defendant was only paid a total of $458. In addition, Defendant
testified that his income included money made as a bounty hunter and
gunsmith. However, Defendant only made $3,500 working for Don’s Bail
Bonds in 1993 and while working one month for A–1 Bail Bonds in 1994 was
paid $1,600.

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Ring, 25 P.3d at 1142-44, ¶¶ 2-11 (Ariz. 2001) (footnotes and internal citations omitted).

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Petitioner filed a notice of post-conviction relief (PCR) in September 2007. (Exh. E.)

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Petitioner’s PCR petition raised two theories for relief, but alleged multiple claims under

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each theory: ineffective assistance of counsel and prosecutorial misconduct. (Exhs. F, I.) The

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trial court dismissed some of the claims finding them not colorable. (Exh. F.) The court

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ordered an evidentiary hearing on Petitioner’s remaining claims. (Exh. F.) After an

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evidentiary hearing, the court denied the remaining claims, and dismissed the petition. (Exh.

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G.) Petitioner filed a petition for review of the dismissal of his PCR petition with the Arizona

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Court of Appeals. (Exh. B, K.) The appellate court granted review, but denied relief. (Exh.

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B.) The Arizona Supreme Court denied Petitioner’s petition for review. (Exh. H.)

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Petitioner has filed a 471-page habeas petition with 435 pages of accompanying

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exhibits. Petitioner names Charles L. Ryan as Respondent and the Arizona Attorney General

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as an additional Respondent. Petitioner raises seven grounds for relief. In Ground One,

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Petitioner alleges violation of his Fourth, Fifth, and Fourteenth Amendment rights, and

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federal statutory law, in connection with wiretap orders. (Doc. 1 at 6.) In Ground Two,

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Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated when

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he was denied the right to present a third party defense. (Doc. 1-1 at 1.) In Ground Three, he
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alleges that his Fifth and Fourteenth Amendment rights were violated based upon insufficient

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evidence. (Doc. 1-2 at 1.) In Ground Four, Petitioner alleges that his Fifth and Fourteenth

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Amendment rights were violated where the post-conviction review court precluded

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newly-discovered ballistics evidence. (Doc. 1-3 at 1.) In Ground Five, he alleges

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prosecutorial misconduct in violation of his Fifth and Fourteenth Amendment rights. (Doc.

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1-5 at 1.). In Ground Six, Petitioner alleges that he was denied the effective assistance of

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counsel in violation of his Sixth Amendment rights. (Doc. 1-10 at 1.) In Ground Seven,

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Petitioner alleges that he was denied the effective assistance of counsel during

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post-conviction proceedings in violation of his Sixth and Fourteenth Amendment rights.

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(Doc. 1-12 at 1.)

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In their Answer, Respondents argue: (1) Grounds One and Three are procedurally

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defaulted; (2) Grounds Two, Four, and Seven fail to state a cognizable claim; and (3)

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Petitioner’s remaining claims fail on the merits.

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DISCUSSION
A.

Standards of Review

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1.

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A state prisoner must exhaust his remedies in state court before petitioning for a writ

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of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513

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U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To

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properly exhaust state remedies, a petitioner must fairly present his claims to the state’s

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highest court in a procedurally appropriate manner. See O’Sullivan v. Boerckel, 526 U.S.

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838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona

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Court of Appeals by properly pursuing them through the state’s direct appeal process or

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

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

Exhaustion and Procedural Default

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Proper exhaustion requires a petitioner to have “fairly presented” to the state courts

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the exact federal claim he raises on habeas by describing the operative facts and federal legal

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theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78
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(1971) (“[W]e have required a state prisoner to present the state courts with the same claim

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he urges upon the federal courts.”). A claim is only “fairly presented” to the state courts

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when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim

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under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000)

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(quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner

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fails to alert the state court to the fact that he is raising a federal constitutional claim, his

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federal claim is unexhausted regardless of its similarity to the issues raised in state court.”).

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A “general appeal to a constitutional guarantee,” such as due process, is insufficient

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to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518

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U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005)

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(“Exhaustion demands more than drive-by citation, detached from any articulation of an

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underlying federal legal theory.”). Similarly, a federal claim is not exhausted merely because

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its factual basis was presented to the state courts on state law grounds – a “mere similarity

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between a claim of state and federal error is insufficient to establish exhaustion.” Shumway,

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223 F.3d at 988 (quotations omitted); see Picard, 404 U.S. at 275-77.

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Even when a claim’s federal basis is “self-evident,” or the claim would have been

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decided on the same considerations under state or federal law, a petitioner must still present

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the federal claim to the state courts explicitly, “either by citing federal law or the decisions

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of federal courts.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted),

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amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin v. Reese, 541 U.S. 27, 32 (2004)

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(claim not fairly presented when state court “must read beyond a petition or a brief ... that

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does not alert it to the presence of a federal claim” to discover implicit federal claim).

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Additionally, a federal habeas court generally may not review a claim if the state

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court’s denial of relief rests upon an independent and adequate state ground. See Coleman

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v. Thompson, 501 U.S. 722, 731-32 (1991). The United States Supreme Court has explained:

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In the habeas context, the application of the independent and adequate state
ground doctrine is grounded in concerns of comity and federalism. Without the
rule, a federal district court would be able to do in habeas what this Court
could not do on direct review; habeas would offer state prisoners whose
custody was supported by independent and adequate state grounds an end run

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around the limits of this Court’s jurisdiction and a means to undermine the
State’s interest in enforcing its laws.

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Id. at 730-31. A petitioner who fails to follow a state’s procedural requirements for
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presenting a valid claim deprives the state court of an opportunity to address the claim in
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much the same manner as a petitioner who fails to exhaust his state remedies. Thus, in order
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to prevent a petitioner from subverting the exhaustion requirement by failing to follow state
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procedures, a claim not presented to the state courts in a procedurally correct manner is
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deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.
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Claims may be procedurally barred from federal habeas review based upon a variety
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of factual circumstances. If a state court expressly applied a procedural bar when a petitioner
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attempted to raise the claim in state court, and that state procedural bar is both
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“independent”1 and “adequate”2 – review of the merits of the claim by a federal habeas court

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is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law
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default prevents the state court from reaching the merits of a federal claim, that claim can
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ordinarily not be reviewed in federal court.”) (citing Wainwright v. Sykes, 433 U.S. 72, 8715
88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).
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Moreover, if a state court applies a procedural bar, but goes on to alternatively address
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the merits of the federal claim, the claim is still barred from federal review. See Harris v.
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Reed, 489 U.S. 255, 264 n.10 (1989) (“[A] state court need not fear reaching the merits of
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a federal claim in an alternative holding. By its very definition, the adequate and independent
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state ground doctrine requires the federal court to honor a state holding that is a sufficient
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basis for the state court’s judgment, even when the state court also relies on federal law. ...
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In this way, a state court may reach a federal question without sacrificing its interests in
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finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580
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A state procedural default rule is “independent” if it does not depend upon a federal
constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002).
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A state procedural default rule is “adequate” if it is “strictly or regularly followed.” Johnson
v. Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-53 (1982)).

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(9th Cir. 2003) (“A state court’s application of a procedural rule is not undermined where, as

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here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S.

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at 264 n.10).

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A procedural bar may also be applied to unexhausted claims where state procedural

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rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred

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from habeas review when not first raised before state courts and those courts “would now

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find the claims procedurally barred”); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir.

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2002) (“[T]he procedural default rule barring consideration of a federal claim ‘applies only

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when a state court has been presented with the federal claim,’ but declined to reach the issue

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for procedural reasons, or ‘if it is clear that the state court would hold the claim procedurally

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barred.’”) (quoting Harris, 489 U.S. at 263 n.9).

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Specifically, in Arizona, claims not previously presented to the state courts via either

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direct appeal or collateral review are generally barred from federal review because an attempt

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to return to state court to present them is futile unless the claims fit in a narrow category of

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claims for which a successive petition is permitted. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(a)

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(precluding claims not raised on appeal or in prior petitions for post-conviction relief),

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32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty days of trial court’s

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decision). Arizona courts have consistently applied Arizona’s procedural rules to bar further

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review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction

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proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona’s

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procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191,

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1195 n.2 (9th Cir. 2001) (“We have held that Arizona’s procedural default rule is regularly

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followed [“adequate”] in several cases.”) (citations omitted), reversed on other grounds,

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Stewart v. Smith, 536 U.S. 856 (2002); see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th

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Cir. 1998) (rejecting argument that Arizona courts have not “strictly or regularly followed”

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Rule 32 of the Arizona Rules of Criminal Procedure); State v. Mata, 185 Ariz. 319, 334-36,

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916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-

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conviction proceedings).
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Because the doctrine of procedural default is based on comity, not jurisdiction, federal

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courts retain the power to consider the merits of procedurally defaulted claims. See Reed v.

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Ross, 468 U.S. 1, 9 (1984). The federal court will not consider the merits of a procedurally

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defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result,

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or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S.

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298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the

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“cause and prejudice” test, a petitioner must point to some external cause that prevented him

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from following the procedural rules of the state court and fairly presenting his claim. “A

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showing of cause must ordinarily turn on whether the prisoner can show that some objective

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factor external to the defense impeded [the prisoner’s] efforts to comply with the State’s

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procedural rule. Thus, cause is an external impediment such as government interference or

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reasonable unavailability of a claim’s factual basis.” Robinson v. Ignacio, 360 F.3d 1044,

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1052 (9th Cir. 2004) (citations and internal quotations omitted). Ignorance of the State’s

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procedural rules or other forms of general inadvertence or lack of legal training and a

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petitioner’s mental condition do not constitute legally cognizable “cause” for a petitioner’s

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failure to fairly present his claim. Regarding the “miscarriage of justice,” the Supreme Court

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has made clear that a fundamental miscarriage of justice exists when a Constitutional

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violation has resulted in the conviction of one who is actually innocent. See Murray, 477

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U.S. at 495-96. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss

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plainly meritless claims regardless of whether the claim was properly exhausted in state

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court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate

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

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under § 2254(b)(2) as “plainly meritless”).

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2.

Merits

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Pursuant to the AEDPA3, a federal court “shall not” grant habeas relief with respect

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to “any claim that was adjudicated on the merits in State court proceedings” unless the state

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Antiterrorism and Effective Death Penalty Act of 1996.

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

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federal law as determined by the United States Supreme Court; or (2) based on an

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unreasonable determination of the facts in light of the evidence presented in the state court

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proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000)

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(O’Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard

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of review). This standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102

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(2011). It is also a “highly deferential standard for evaluating state court rulings, which

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demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti,

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537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted). “When

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applying these standards, the federal court should review the ‘last reasoned decision’ by a

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state court ... .” Robinson, 360 F.3d at 1055.

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A state court’s decision is “contrary to” clearly established precedent if (1) “the state

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court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,”

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or (2) “if the state court confronts a set of facts that are materially indistinguishable from a

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decision of [the Supreme Court] and nevertheless arrives at a result different from [its]

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precedent.” Williams, 529 U.S. at 404-05. “A state court’s decision can involve an

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‘unreasonable application’ of Federal law if it either 1) correctly identifies the governing rule

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but then applies it to a new set of facts in a way that is objectively unreasonable, or 2)

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extends or fails to extend a clearly established legal principle to a new context in a way that

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is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).

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B.

Grounds One and Three

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In Ground One, Petitioner alleges a violation of his Fourth, Fifth, and Fourteenth

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Amendment rights, as well as, federal statutory law, in connection with wiretap orders. (Doc.

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1 at 6.) Specifically, Petitioner contends that the “State obtained multiple wiretap orders

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through the use of police and FBI perjury, before any other traditional investigative

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techniques were attempted, in violation of U.S. Title III (Wiretap Act), federal law, and due

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process under the 5th and 14th Amendments, as well as the 4th Amendment of the U.S.

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Constitution.”
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In Ground Three, Petitioner alleges that his Fifth and Fourteenth Amendment rights

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were violated based upon insufficient evidence. (Doc. 1-2 at 1.) Petitioner claims that his

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“convictions and death sentence were upheld through accomplice liability despite a

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fundamental insufficiency of evidence of [Petitioner] or either of [Petitioner’s] codefendants

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being placed at the crime scene, in violation of due process under the 5th and 14th

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Amendments of the U.S. Constitution, and established federal law.”

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Petitioner failed to fairly present the claims alleged in Grounds One and Three to the

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state courts. Indeed, Petitioner did not allege, and the state courts did not construe or

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consider, any allegations regarding violations of Petitioner’s Fourth, Fifth, and Fourteenth

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Amendment rights, as well as, federal statutory law, in connection with wiretap orders, or

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allegations regarding violations of Petitioner’s Fifth and Fourteenth Amendment rights due

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to insufficient evidence. (Exhs. I (PCR Petition), F (Minute Entry), G (Minute Entry), K

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(Petition for Review), B (Memorandum Decision).); see State v. Ring, 25 P.3d 1139 (Ariz.

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2001). Failure to fairly present Grounds One and Three has resulted in procedural default

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because Petitioner is now barred from returning to state courts. See Ariz.R.Crim.P. 32.2(a),

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32.4(a).

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Although a procedural default may be overcome upon a showing of cause and

18

prejudice or a fundamental miscarriage of justice, see Coleman, 501 U.S. at 750-51,

19

Petitioner has not established that any exception to procedural default applies. And,

20

Petitioner’s status as an inmate, lack of legal knowledge and assistance, and limited legal

21

resources do not establish cause to excuse the procedural bar. See Hughes v. Idaho State Bd.

22

of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner’s lack of legal

23

assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862

24

F.2d 1376, 1381 (9th Cir. 1988) (petitioner’s reliance upon jailhouse lawyers did not

25

constitute cause). Accordingly, Petitioner has not shown cause for his procedural default.

26

Petitioner has also not established a fundamental miscarriage of justice. A federal

27

court may review the merits of a procedurally defaulted claim if the petitioner demonstrates

28

that failure to consider the merits of that claim will result in a “fundamental miscarriage of
- 11 -

1

justice.” Schlup, 513 U.S. at 327. The standard for establishing a Schlup procedural gateway

2

claim is “demanding.” House v. Bell, 547 U.S. 518, 538 (2006). The petitioner must present

3

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

4

trial.” Schlup, 513 U.S. at 316. Under Schlup, to overcome the procedural hurdle created by

5

failing to properly present his claims to the state courts, a petitioner “must demonstrate that

6

the constitutional violations he alleges ha[ve] probably resulted in the conviction of one who

7

is actually innocent, such that a federal court’s refusal to hear the defaulted claims would be

8

a ‘miscarriage of justice.’” House, 547 U.S. at 555-56 (quoting Schlup, 513 at 326, 327). To

9

meet this standard, a petitioner must present “new reliable evidence – whether it be

10

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

11

evidence - that was not presented at trial.” Schlup, 513 U.S. at 324. The petitioner has the

12

burden of demonstrating that “it is more likely than not that no reasonable juror would have

13

convicted him in light of the new evidence.” Id. at 327. Petitioner has failed to establish, let

14

alone allege, a sufficient showing of actual innocence to establish a miscarriage of justice.

15

Therefore, Petitioner cannot excuse his procedural defaults on this basis.

16

C.

Grounds Two, Four, and Seven

17

In Ground Two, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment

18

rights were violated when he “was denied the right to present a third party defense.” (Doc.

19

1-1 at 1.) Although the specifics of Petitioner’s claim are difficult to pin down, Petitioner

20

appears to argue that the trial court erred by prohibiting the introduction of third-party

21

culpability evidence.

22

In Ground Four, Petitioner alleges that his Fifth and Fourteenth Amendment rights

23

were violated where the post-conviction review court “improperly precluded newly

24

discovered ballistics evidence that undermines [Petitioner’s] felony murder conviction.”

25

(Doc. 1-3 at 1.)

26

In Ground Seven, Petitioner alleges that he was denied the effective assistance of

27

counsel during post-conviction proceedings in violation of his Sixth and Fourteenth

28

Amendment rights. (Doc. 1-12 at 1.)
- 12 -

1

As to Grounds Two and Four, the Court can grant habeas relief “only on the ground

2

that [a petitioner] is in custody in violation of the Constitution or laws or treatises of the

3

United States.” 28 U.S.C. § 2254(a). “[I]t is not the province of a federal habeas court to

4

reexamine state-court determinations on state-law grounds.” Estelle v. McGuire, 502 U.S.

5

62, 67-68 (1991); see Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993) (“[M]ere error of state

6

law, one that does not rise to the level of a constitutional violation, may not be corrected on

7

federal habeas.”); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief

8

does not lie for errors of state law.”). And, a petitioner may not “transform a state law issue

9

into a federal one merely by asserting a violation of due process.” Poland v. Stewart, 169

10

F.3d 573, 584 (9th Cir. 1999) (quoting Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996));

11

see Engle v. Isaac, 456 U.S. 107, 119-21 (1982) (“While they attempt to cast their first claim

12

in constitutional terms, we believe that this claim does no more than suggest that the

13

instructions at respondents’ trials may have violated state law.”).

14

Petitioner does not present a cognizable federal claim in Ground Two. Although

15

Petitioner attempts to transform his attack on a state court evidentiary ruling as a

16

constitutional denial of his right to present a meaningful defense, he cannot transform this

17

state law issue into a federal one merely by asserting a constitutional violation. See, e.g.,

18

Poland, 169 F.3d at 584. This alleged violation of state law is not a claim that is cognizable

19

on federal habeas review.

20

Similarly, Petitioner also fails to assert a cognizable federal claim in Ground Four.

21

Again, whether a state evidentiary ruling is correct or not does not constitute a claim

22

cognizable on federal habeas review. Further, to the extent Petitioner is challenging the state

23

post-conviction court’s ruling on alleged “newly discovered ballistics evidence,” that claim

24

is also not cognizable. Unless the collateral review of a petitioner’s conviction violated some

25

independent constitutional right, an alleged error in the state collateral proceeding cannot

26

form the basis for federal habeas corpus relief. See, e.g., Franzen v. Brinkman, 877 F.2d 26,

27

26 (9th Cir. 1989); Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996). See also Sellers

28

v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (finding that even constitutional error alleged
- 13 -

1

to have occurred in a state post-conviction proceeding would not provide a basis for federal

2

habeas relief). Ground Four is not cognizable on federal habeas review.

3

As to Ground Seven, Petitioner’s claims based on an entitlement to post-conviction

4

counsel under Arizona law are not cognizable on federal habeas corpus review. See Ortiz,

5

149 F.3d at 939 (an alleged violation of Ariz.R.Crim.P. 32.4(c) based on the trial court’s

6

failure to appoint the petitioner counsel in a post-conviction proceeding was not cognizable

7

on federal habeas corpus review). A criminal defendant has no federal constitutional right

8

to counsel in state post-conviction proceedings. See Pennsylvania v. Finley, 481 U.S. 551,

9

555 (1987). Absent such a right, “a petitioner cannot claim constitutionally ineffective

10

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

11

The courts in the District of Arizona recognize that a defendant has a right to the

12

assistance of counsel in a Rule 32 of-right proceeding in Arizona, because the of-right

13

proceeding is a form of direct review. See Summers v. Schriro, 481 F.3d 710, 717-18 (9th Cir.

14

2007). Here, however, Petitioner did not plead guilty and, thus, Petitioner’s post-conviction

15

proceeding was not an of-right proceeding. Accordingly, Petitioner did not have a right to

16

counsel in that proceeding.

17

D.

Ground Five

18

In Ground Five, Petitioner alleges prosecutorial misconduct in violation of his Fifth

19

and Fourteenth Amendment rights. (Doc. 1-5 at 1.) Petitioner contends that the “State

20

engaged in egregious intentional misconduct to deny [Petitioner] a fair trial, which included

21

perjury, witness tampering, evidence tampering, and violations of Brady and the rules of

22

discovery, in violation of federal law and the 5th, 6th, and 14th Amendments of the United

23

States Constitution.”

24

In his 187-page statement supporting his claim of prosecutorial misconduct, Petitioner

25

asserts a litany of facts and conclusory assertions that are difficult to discern. In the last

26

reasoned decision addressing Petitioner’s prosecutorial misconduct claim based on violations

27

of Brady v. Maryland as set forth in his Petition for Review, the Arizona Court of Appeals

28

analyzed Petitioner’s claim that “the state had failed to disclose evidence regarding the
- 14 -

1

relationship between the [Maricopa County Attorney’s Office] and [Michael] Sanders, which

2

would have supported [Petitioner’s] third-party culpability defense and established the nexus

3

the trial court had stated was missing before trial.” (Exh. B at 5.) The appellate court also

4

discussed Petitioner’s claim of “misconduct and Brady violations related to the FBI’s failure

5

to disclose information that would have supported his defense that he had been paid by the

6

FBI to abduct individuals in Mexico.”4 (Exh. B at 6.)

7

Under Brady v. Maryland, 373 U.S. 83 (1963), the government has a constitutional

8

obligation to disclose material, favorable information to the defense. Brady is violated where

9

(1) the evidence in question was favorable to the accused, (2) the government willfully or

10

inadvertently suppressed the evidence, and (3) prejudice resulted from the suppression (i.e.,

11

the evidence was “material”). See Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Banks

12

v. Dretke, 540 U.S. 668, 691 (2004). Evidence is material for Brady purposes “if there is a

13

reasonable probability that, had the evidence been disclosed to the defense, the result of the

14

proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quoting

15

United States v. Bagley, 473 U.S. 667, 682 (1982)). “In other words, favorable evidence is

16

subject to constitutionally mandated disclosure when it ‘could reasonably be taken to put the

17

whole case in such a different light as to undermine confidence in the verdict.’” Cone v. Bell,

18

556 U.S. 449, 470 (2009) (quoting Kyles, 514 U.S. at 435). The duty to disclose includes

19

impeachment as well as exculpatory material. See Bagley, 473 U.S. at 676.

20

“The mere possibility that an item of undisclosed information might have helped the

21

defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in

22

the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10 (1976); see

23
24
25
26
27
28

4

To the extent any additional claims of prosecutorial misconduct could possibly be construed
in Ground Five, those claims which Petitioner never raised in the state courts, as well as those claims
which Petitioner may have raised in the state trial court, but failed to raise in his Petition for Review
and were not considered by court of appeals, have not been fairly presented. Failure to fairly present
any additional claims has resulted in procedural default because Petitioner is now barred from
returning to state courts. See Ariz.R.Crim.P. 32.2(a), 32.4(a). And, Petitioner has not shown, much
less alleged, cause for his procedural default or established a fundamental miscarriage of justice.

- 15 -

1

Runningeagle v. Ryan, 686 F.3d 758, 769 (9th Cir. 2012); Barker v. Fleming, 423 F.3d 1085,

2

1099 (9th Cir. 2005); Downs v. Hoyt, 232 F.3d 1031, 1037 (9th Cir. 2000) (rejecting a Brady

3

claim in part because the petitioner’s arguments were speculative); United States v. Abonce-

4

Barrera, 257 F.3d 959, 970 (9th Cir. 2001) (finding that evidence was not material under

5

Brady where the defendant had only “a hunch” that the evidence would be useful).

6

1.
Non-disclosure of evidence regarding the relationship between the
Maricopa County Attorney’s Office and Michael Sanders

7
The Court will first address Petitioner’s claim that “the state had failed to disclose
8
evidence regarding the relationship between the [Maricopa County Attorney’s Office] and
9
[Michael] Sanders,” who was an informant for the Maricopa County Attorney’s Office and
10
admitted to Glendale police officers that he had helped plan the robbery, but insisted that he
11
had been “cut out of the plan, and not participated in committing it.” (Exh. B at 4.) Petitioner
12
raised this claim in his PCR petition and the trial court found that Petitioner had raised a
13
“colorable claim warranting an evidentiary hearing.” (Exh. B at 5.) Following that hearing,
14
the trial court denied relief “summarizing the record that already existed and entering
15
extensive factual findings based on the evidence and testimony presented in [the] post16
conviction proceeding.” (Exh. B at 5.) The trial court stated, in pertinent part:
17
18
19
20
21
22
23
24
25
26
27
28

Although Clark was not aware of Sanders[’] status as a paid informant in the
years 1986-1988[], prior to trial Clark had plenty of information about Sanders
and his involvement in the case:
• The prosecutor disclosed Sanders as a witness based upon Sanders’
statements to detectives of his, and Ring’s, involvement in the case. ...
• Clark testified at the hearing in these proceedings that prior to trial he knew
Sanders had approached police to sell them information about the Arrowhead
robbery and he knew that Sanders did such things often.
• The search warrant affidavit of January 11, 1995 for Ring, Greenham, and
Ferguson related that affiant Clayton received information from a confidential
informant that had spoken personally to Ring and knew that Ring had
conducted surveillance on armored car routes; would use a fragmenting bullet;
would get the driver while he smoked; and had done an armored car robbery
in Mexico. Clark testified further that not only did he suspect Sanders was the
informant that had been referred to in the search warrant affidavit, Ring also
told him (Clark) that Sanders was likely a snitch.
• On September 10, 1996, Clark specifically referred to the following aspects
of Sanders and his involvement in the case in argument to the trial court: ( 1)
Sanders precisely described the details about the crime to police officers; (2)
Sanders came to work at 3:30 P.M. instead of 2:30 P.M. on the day of the
crime; (3) Sanders sought immunity for himself and for his brother-in-law
Brian Robbins for the crime; (4) Sanders also requested immunity for the
- 16 -

1
2
3
4
5
6
7

PACE warehouse robbery; (5) Sanders told the police that he would have no
problem killing someone; (6) the police placed a pen register device and a trap
and trace device on Sanders’ telephone line, maintaining them even after the
arrests; and (7) Sanders was a convicted felon with a prior history of violent
crimes. ...
(Exh. G at 9-10.) Then, applying the standards set forth in Brady, the court determined:
The State did, indeed, fail to disclose the existence of the prior informant status
of Sanders. However, there was no failure to disclose information that would
have substantially undermined Sanders’ testimony – Sanders did not testify.
Nor was information provided by Sanders of critical significance at trial to the
determination of Ring’s guilt or innocence – the State’s case against Ring
utilized evidence developed entirely from sources independent of Sanders.

8
(Exh. G at 11.)
9
In its analysis of this claim, the trial court also addressed Petitioner’s argument that
10
if the relationship between Sanders and the Maricopa Attorney’s Office would have been
11
disclosed, the trial judge would have permitted Petitioner to raise a third party defense. The
12
court found this issue precluded, and stated that Petitioner’s argument on this point was
13
“simply an attempt to bootstrap his argument that the trial court erred in deciding the issue
14
of third party defense.” (Exh. G at 11.) The court further found:
15
16
17
18

There is no basis to conclude that Ring’s trial judge would have permitted a
third party defense if the relationship between Sanders and the Maricopa
County Attorney’s Office had been disclosed prior to trial. Judge Martin was
the trial judge for both Ring and Ferguson. Judge Martin was aware that the
Court of Appeals had found the appearance of a conflict of interest in the
Ferguson case and addressed the apparent discrepancy before Ring’s
sentencing.

19
20
21
22

In permitting Ferguson to pursue a third party defense Judge Martin found it
debatable whether evidence of Sanders’ statements to the police or his likeness
to one of the composite sketches was real third party evidence that showed the
culpability of another individual to the exclusion of Ferguson. However, Judge
Martin observed that the evidence had an inherent tendency to connect
Sanders with the commission of the crimes, adding that in a close case, a
defendant should prevail on this issue.

23
24
25
26
27
28

In addressing Ring’s motion for new trial on the third party defense issue,
Judge Martin reasoned that Ring’s case was distinguishable from Ferguson’s
case. Judge Martin explained that Ring did not make “as comprehensive and
thorough an offer of proof as Ferguson ... .”
(Exh. G at 11-12.) In addition, the court stated:
there were other factors to justify permitting third party defense evidence by
Ferguson and not Ring. Ferguson argued that Greenham, Sanders and Ring
had committed the robbery. The facts could be construed in favor of
- 17 -

1
2
3
4
5
6
7

Ferguson’s claim that Sanders and Ring were the real perpetrators because
(a) there was a composite drawing resembling Sanders but no composite
drawing resembled Ferguson, (b) Ring owned a red truck and a red truck had
been referred to multiple times as being associated with the robbery, (c) there
was a demonstrable link between Ring, Sanders and Greenham via video of the
PACE robbery, (d) Sanders had made statements admitting involvement in the
planning of the robbery, (e) except for the statements of admitted conspirator
Sanders and admitted perpetrator Greenham, who was unavailable for trial, the
evidence against Ferguson was based primarily upon interpretation of
wiretapped conversations, and (f) Sanders did not provide corroborated
evidence linking Ferguson to the crime but did so regarding Ring.
(Exh. G at 12) (emphasis original).

8

The trial court concluded, “[t]here is no reason to conclude that had Sanders’

9

involvement as a paid informant working with the Maricopa County Attorney’s Office been

10

disclosed to the defense, the result of the trial or sentence would have been different – this

11

Court does not believe there is a probability sufficient to undermine confidence in the

12

outcome. Therefore, Defendant’s claim for relief on this ground is denied.” (Exh. G at 12.)

13

In his petition for review, Petitioner argued that the trial court abused its discretion

14

in denying relief on this claim, insisting that the information the state failed to disclose

15

violated Brady. He argued that the evidence was material and therefore prejudicial,

16

undermining confidence in the verdict. The Arizona Court of Appeals disagreed stating, in

17

pertinent part:

18
19
20
21

¶23 Like the trial court, we disapprove the state’s lack of disclosure regarding
Sanders. Particularly compelling was [defense counsel’s] testimony at the Rule
32 evidentiary hearing about the effect this had on his ability to defend Ring,
as was similar testimony by his co-counsel, Treasure VanDreumel. The court
acknowledged “[t]he State did, indeed, fail to disclose the existence of the
prior informant status of Sanders,” and rejected its characterization of funds
paid to Sanders as “reimbursement for lost wages and living expenses and not
compensation.”

22
23
24
25
26

¶24 Nevertheless, the trial court concluded the evidence the state failed to
disclose
would [not] have substantially undermined Sanders’
testimony—Sanders did not testify. Nor was information
provided by Sanders of critical significance at trial to the
determination of Ring’s guilt or innocence—the State’s case
against Ring utilized evidence developed entirely from sources
independent of Sanders.

27
28

The trial court also addressed Ring’s related claim that the lack of disclosure
deprived him of evidence that would have supported a third-party culpability
- 18 -

1
2
3

defense. The court stated that the claim was precluded, having been raised and
rejected by our supreme court on appeal, adding that the argument in this
proceeding “is simply an attempt to bootstrap his argument that the trial court
erred in deciding the issue of third party defense.” The court stated, in any
event, the additional information would not have changed the trial court's
rulings.

4
5

¶25 On review Ring argues the trial court’s conclusion is erroneous. But there
was sufficient evidence before the court to support the ruling and we have no
basis for disturbing it.

6
(Exh. B at 5-6.)
7
Petitioner has failed to demonstrate that the state courts’ adjudication of his Brady
8
claim related to Michael Sanders’ informant status resulted in a decision that was contrary
9
to, or involved an unreasonable application of, clearly established Federal law, or resulted
10
in a decision that was based on an unreasonable determination of the facts in light of the
11
evidence presented. In the 187 pages he devotes to supporting his claim, Petitioner has failed
12
to offer anything beyond a narrative of the facts coupled with speculative and conclusory
13
allegations.
14
As demonstrated from the record, the state courts properly assessed Petitioner’s Brady
15
claim pursuant to the relevant constitutional standards ultimately finding that the failure to
16
disclose the relationship and prior informant status of Sanders was not material, in that, there
17
was no reasonable probability that the outcome of his trial would have been different. Among
18
other things, the record establishes that (1) Petitioner’s counsel “had plenty of information
19
about Sanders and his involvement in the case” prior to trial; (2) there was no evidence that
20
Maricopa County Attorney’s Office extended any privileges to Sanders due to the prior
21
relationship; (3) since Sanders did not testify there was no failure to disclose information that
22
would have substantially undermined his testimony; and (4) the State’s case against
23
Petitioner utilized evidence developed entirely from sources independent of Sanders. The
24
Court finds no error.
25
2.

Non-disclosure of FBI files

26
The Court will next address Petitioner’s claim of “misconduct and Brady violations
27
related to the FBI’s failure to disclose information that would have supported his defense that
28
- 19 -

1

he had been paid by the FBI to abduct individuals in Mexico.” (Exh. B at 6.) In his PCR

2

petition, Petitioner argued that “the joint nature of the investigation by the State authorities

3

and the FBI was such that the FBI was subject to the control of the prosecutor and the rules

4

of discovery and due process required information possessed by the FBI to be disclosed to

5

him.” (Exh. G at 7; Exh. B at 6.) The trial court found that this issue needed to be further

6

developed in an evidentiary hearing. Following the hearing, the trial court denied relief

7

“thoroughly address[ing] this claim in light of arguments and evidence presented in

8

[Petitioner’s] post-conviction proceeding, including testimony by Clark and prosecutor

9

Alfred Fenzel, and documents obtained through a Freedom of Information Act request.”

10

(Exh. B at 6; Exh. G at 6-7.) The trial court first noted that the issue of non-disclosure of FBI

11

files was addressed by the Arizona Supreme Court on direct appeal. (Exh. G at 6-7; Exh. B

12

at 6.) The trial court discussed the supreme court’s decision stating:

13

17

the Arizona Supreme Court concluded that Ring “should have acted to procure
the entire file instead of waiting until trial and using the alleged discrepancy
to argue that the FBI was unwilling to proffer the entire file as part of a more
general cover-up or conspiracy theory.” In addition, the court commented,
“trial testimony demonstrated that it would be unlikely that the FBI file would
corroborate Defendant’s claims.” Ring, 200 Ariz. at 274, 25 P.3d at 1 146. The
Arizona Supreme Court concluded that, given Agent Tanner’s testimony, the
“Defendant’s alleged inability to access his entire FBI file did not render his
trial so unfair as to require the granting of a new trial.”

18

(Exh. G at 7.) Then, the trial court addressed Petitioner’s PCR claim. The court found, as

19

follows:

14
15
16

20
21
22
23
24
25
26
27
28

At the hearing on post-conviction relief, Clark testified that he asked the
prosecutor for information in the possession of the FBI and the prosecutor
stated that he had disclosed what he had gotten from the FBI. There is no
evidence that the State possessed more FBI information than was disclosed by
the prosecutor. Indeed, Clark testified that he had no reason to believe that
prosecutor Fenzel had the entire FBI files or that he provided false information
to Clark. Clark’s opinion was that prosecutor Fenzel was being misled into
believing that all information had been disclosed as opposed to some having
been withheld for “good reason”.
Clark testified that he attempted to subpoena the FBI files. Prosecutor Fenzel
testified that Judge Ryan conducted an in camera proceeding concerning the
subpoena for FBI records. Judge Ryan apparently quashed the subpoena. Judge
Ryan’s ruling was not appealed and his determination precludes the issue
unless there was a Brady violation by deliberate concealment of information
known by the prosecution. Furthermore, the fact that the trial judge conducted
an in camera inspection/consideration of the subpoena of FBI records in which
- 20 -

1

the FBI opposed the subpoena, supports the conclusion that the FBI was not
an agency under the control of the State.

2
3
4
5
6
7

In State v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985),
the Supreme Court expressed agreement with the proposition in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that
evidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would
have been different or that there was “a probability sufficient to undermine
confidence in the outcome”. Bagley held that whether the defendant had made
“no request,” a “general request,” or a “specific request” for exculpatory
information, under the Strickland formulation a reviewing court could consider
any adverse effect that non-disclosure might have had on the preparation or
presentation of the defendant’s case.

8
9
10
11
12
13

During the pendency of this proceeding, Defendant utilized the Freedom of
Information Act to obtain further information from federal agencies.
Defendant was unable to obtain or produce any materially new or exculpatory
information for this proceeding. The Court finds that Defendant failed to prove
the existence of exculpatory evidence or that such evidence was in possession
of State or federal authorities and was not disclosed; therefore, there is no
reasonable probability that there was evidence available to the Defendant
which would undermine the confidence in the outcome of the case.
The Court finds that Defendant has failed to meet his burden of proof and the
request for relief on this ground is denied.

14
(Exh. G at 7-8.) In denying the same claim alleged in his Petition for Review, the Arizona
15
Court of Appeals stated, “[b]ecause the record supports the court’s ruling and Ring has not
16
sustained his burden of establishing the court abused its discretion, we adopt this portion of
17
the ruling.” (Exh. B at 6.)
18
Here too, Petitioner has failed to demonstrate that the state courts’ resolution of his
19
Brady claim related to the FBI’s alleged failure to disclose information resulted in a decision
20
that was contrary to, or involved an unreasonable application of, clearly established Federal
21
law, or resulted in a decision that was based on an unreasonable determination of the facts
22
in light of the evidence presented. Again, Petitioner has failed to offer anything beyond his
23
conclusory allegations and recitation of facts.
24
The record of the state court proceedings demonstrates a proper assessment of
25
Petitioner’s Brady claim finding that Petitioner failed to establish the existence of any
26
exculpatory evidence, or that the State or federal agencies had any evidence that was not
27
disclosed. And, thus, Petitioner has failed to demonstrate that there was any undisclosed
28
- 21 -

1

material evidence that, if the evidence had been disclosed, there was a reasonable probability

2

that the outcome of his trial would have been different or that confidence in the verdict would

3

have been undermined. The Court, again, finds no error.

4

E.

Ground Six

5

In Ground Six, Petitioner alleges that he was denied the effective assistance of counsel

6

in violation of his Sixth Amendment rights. (Doc. 1-10 at 1.) In the 74 pages supporting his

7

claim, Petitioner recites a narrative of facts and conclusory allegations claiming that defense

8

counsel was ineffective in almost every aspect of his performance. Petitioner’s broad

9

allegations are vague and unsupported, making it difficult for the Court to identify and

10

meaningfully address any sub-claims alleged therein. And, Petitioner fails to delineate any

11

of the sub-claims he raises under Ground Six. The Court will, however, address the following

12

six claims, which were also raised in his Petition for Review to the Arizona Court of

13

Appeals: (1) trial counsel was ineffective for failing to obtain and present ballistics and

14

stippling evidence; (2) trial counsel was ineffective for failing to challenge grand jury

15

proceedings; (3) trial counsel was ineffective for informing the jury during opening statement

16

that cross-border abductions are illegal, and failing to investigate and provide expert

17

testimony to support Petitioner’s defense; (4) trial counsel was ineffective with respect to the

18

wiretap tapes; (5) trial counsel was ineffective based on the stun belt Petitioner was

19

compelled to wear during trial; and (6) trial counsel was ineffective for failing to request a

20

second-degree murder instruction and failing to object to consecutive sentences.

21

To establish a claim of ineffective assistance of counsel a petitioner must demonstrate

22

that counsel’s performance was deficient under prevailing professional standards, and that

23

he suffered prejudice as a result of that deficient performance. See Strickland v. Washington,

24

466 U.S. 668, 687-88 (1984). To establish deficient performance, a petitioner must show

25

“that counsel’s representation fell below an objective standard of reasonableness.” Id. at 699.

26

A petitioner’s allegations and supporting evidence must withstand the court’s “highly

27

deferential” scrutiny of counsel’s performance, and overcome the “strong presumption” that

28

counsel “rendered adequate assistance and made all significant decisions in the exercise of
- 22 -

1

reasonable professional judgment.” Id. at 689-90. A petitioner bears the burden of showing

2

that counsel’s assistance was “neither reasonable nor the result of sound trial strategy,”

3

Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001), and actions by counsel that

4

“‘might be considered sound trial strategy’” do not constitute ineffective assistance.

5

Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

6

To establish prejudice, a petitioner must show a “reasonable probability that, but for

7

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

8

at 694. A “reasonable probability” is one “sufficient to undermine confidence in the

9

outcome.” Id. Courts should not presume prejudice. See Jackson v. Calderon, 211 F.3d 1148,

10

1155 (9th Cir. 2000). Rather, a petitioner must affirmatively prove actual prejudice, and the

11

possibility that a petitioner suffered prejudice is insufficient to establish Strickland’s

12

prejudice prong. See Cooper v. Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001) (“[A

13

petitioner] must ‘affirmatively prove prejudice.’ ... This requires showing more than the

14

possibility that he was prejudiced by counsel’s errors; he must demonstrate that the errors

15

actually prejudiced him.”) (quoting Strickland, 466 U.S. at 693). However, the court need

16

not determine whether counsel’s performance was deficient if the court can reject the claim

17

of ineffectiveness based on the lack of prejudice. See Jackson, 211 F.3d at 1155 n.3 (the

18

court may proceed directly to the prejudice prong).

19

1.
Trial counsel was ineffective for failing to obtain and present ballistics and
stippling evidence

20
Petitioner argues that his trial counsel was ineffective for failing to obtain and present
21
ballistics and stippling evidence. In rejecting this claim as alleged in his Petition for Review
22
to the Arizona Court of Appeals, the court stated:
23
24
25
26
27
28

¶7 Ring contends the trial court abused its discretion by summarily denying
relief on his claim that trial counsel Greg Clark had been ineffective in failing
to request testing and information regarding ballistics and gunshot residue
(GSR) or stippling, which was noted in the autopsy report. Arguing he was
entitled to an evidentiary hearing on this claim, Ring refers to juror affidavits,
which “[t]he defense presented,”[] stating GSR testing results would have been
of interest to them. Ring asserts such evidence would have refuted the state’s
theory of the case that Ring, known for proficiency with guns and accuracy
with respect to long-range shots, was the shooter, establishing instead that the
victim had been shot at close range. Ring maintains this type of evidence also
- 23 -

1
2
3
4
5
6
7
8
9

would have refuted the statements of Ring’s co-defendant James Greenham,
who testified only during the sentencing phase of trial, that Ring had shot the
victim from a distance. He also argues the evidence would have suggested the
shooting had taken place somewhere other than the known crime scene,
because there was no evidence anyone had approached the victim, giving that
person an opportunity to shoot the victim at close range. And there was no
evidence placing Ring at any other possible locations.
¶8 The trial court determined Ring had not raised a colorable claim that
Clark’s performance had been deficient or prejudicial. The court relied, in part,
on our supreme court’s comment in Ring, 200 Ariz. 267, ¶ 48, 25 P.3d at 1152,
that the jury found him guilty of murder based on felony murder, not
premediated murder, possibly signifying jurors did not believe Ring had
participated in, planned, “or even expect[ed] the killing.” Thus, the court
implicitly found it would have made no difference if Ring was the shooter or
an accomplice, given the evidence that was presented at trial and the verdict.
The court stated any effect such evidence might have had on the sentence
made no difference, given that the original sentence was vacated.

10
11
12
13
14
15
16
17
18
19
20
21
22

¶9 The trial court’s ruling appears to be related specifically to the effect this
testimony might have had on the sentence, presumably because Greenham
testified only at sentencing, not trial. Nevertheless, we infer from the denial of
relief on this claim that the court was addressing the claim as presented, which
was that the absence of this evidence affected the proceedings as a whole. In
any event, to the extent the court failed to address this claim more broadly, any
complaint in this regard was waived. The court held a hearing on April 11,
2012, after distributing its ruling as a draft, and asked counsel to specify if it
had failed to address or mischaracterized any claim that Ring had raised. Ring
never challenged the ruling on this claim as being too restrictive.
¶10 Even assuming the trial court considered the jurors’ affidavits and the
claim as it related to the convictions, Ring’s arguments are based on
speculation about what might have occurred at trial and possibly could occur
during a retrial, such as the impeachment of Greenham if he testified. See State
v. Meeker, 143 Ariz. 256, 264, 693 P.2d 911, 919 (1984) (“Proof of
ineffectiveness must be a demonstrable reality rather than a matter of
speculation.”). Furthermore, in view of the jury’s verdict specifying the murder
conviction was based on felony murder and the guilty verdicts on the
remaining offenses, Ring has not established there is a reasonable probability
the outcome would have been different if Clark had obtained and presented
this evidence. See Strickland, 466 U.S. at 694.
(Exh. B at 2-3, ¶¶ 7-10.)

23

Petitioner has failed to demonstrate deficient performance and resulting prejudice as

24

his claim relies on unsupported argument as opposed to specific facts or other evidence. See

25

Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (conclusory assertions of ineffective

26

assistance fall far short of stating a valid claim of constitutional violation); James v. Borg,

27

24 F.3d 20, 26 (9th Cir. 1994) (conclusory allegations of ineffective assistance without

28

statement of specific facts do not warrant habeas relief). As the appellate court correctly
- 24 -

1

determined, Petitioner’s claim of deficient performance is entirely speculative, and there is

2

no reasonable probability that the outcome would have been different if any ballistics and

3

stippling evidence were obtained and presented because the jury’s verdict specified that the

4

murder conviction was based on felony murder. The Court finds that the state court’s

5

rejection of this claim was neither contrary to, nor an unreasonable application of, clearly

6

established federal law.

7

2.

8
9
10
11
12
13
14
15

Trial counsel was ineffective for failing to challenge grand jury proceedings
Petitioner alleges that his trial counsel was ineffective for failing to challenge grand

jury proceedings. The Arizona Court of Appeals found, as follows:
¶11 Ring next argues he was entitled to an evidentiary hearing on his claim
that Clark had been ineffective in failing to challenge the grand jury
proceeding on the ground that Detective Thomas Clayton allegedly had
provided perjured testimony. The trial court correctly concluded that grand
jury proceedings must be challenged by special action and can be challenged
on appeal only if an indictment was based on perjured testimony. See State v.
Gortarez, 141 Ariz. 254, 258, 686 P.2d 1224, 1228 (1984) (grand jury
proceedings must be challenged by special actions, except when proceedings
are tainted with information the state knew was based on perjured, material
testimony). The issue Ring raised, however, was one of ineffective assistance
of trial counsel, which can be raised only in a post-conviction proceeding. See
State v. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d 525, 527 (2002).

16
17
18
19
20
21
22
23
24

¶12 Ring has not, however, persuaded us the trial court abused its discretion.
Ring has not established that counsel’s failure to seek dismissal of the
indictment was deficient or that such dismissal probably would have been
granted. Clayton testified before the grand jury that the actual size of the bullet
could not be determined because it had disintegrated. This apparently was
incorrect; the bullet had exited the victim’s head and was not found and,
therefore, the exact caliber could not be determined. Thus, although Clayton
incorrectly described the reason for law enforcement’s inability to identify the
caliber of the bullet, his answer to the grand juror’s question about what the
wound showed in relation to the caliber of the weapon was correct—it could
not be determined. In light of that fact and the other evidence of Ring’s
participation in the robbery as an accomplice, and given the fact that the jury
found him guilty of the charged offenses, the trial court either would have
denied a grand jury challenge, or Ring would have been re-indicted as the
verdicts demonstrate there was probable cause. Thus, even assuming arguendo
Clark’s performance had been deficient, it was not prejudicial, and the court
did not err in denying relief on this claim summarily.

25
(Exh. B at 3, ¶¶ 11-12.)
26
Petitioner has not demonstrated deficient performance or prejudice. Not only is
27
Petitioner’s claim speculative and self-serving, but any such challenge to the grand jury
28
- 25 -

1

proceedings would have been meritless. See Shah v. United States, 878 F.2d 1156, 1162 (9th

2

Cir. 1989) (“The failure to raise a meritless legal argument does not constitute ineffective

3

assistance of counsel.”). Although the record reflects that Clayton may have given inaccurate

4

testimony in that he “testified before the grand jury that the actual size of the bullet could not

5

be determined because it had disintegrated,” the record reflects that the reason for law

6

enforcement’s inability to identify the caliber of the bullet was correct – it could not be

7

determined. Thus, Petitioner has not established that counsel’s failure to challenge the grand

8

jury proceedings based on Clayton’s inaccurate testimony was ineffective. Even assuming

9

counsel’s performance was deficient for failing to challenge the grand jury proceedings,

10

Petitioner has not established prejudice. The Court finds that the state court’s rejection of this

11

claim was neither contrary to, nor an unreasonable application of, clearly established federal

12

law.

13
14

3.
Trial counsel was ineffective for informing the jury during opening statement
that cross-border abductions are illegal, and failing to investigate and provide expert
testimony to support Petitioner’s defense

15

Petitioner contends that his trial counsel was ineffective for informing the jury during

16

opening statement that cross-border abductions are illegal, and failing to investigate and

17

provide expert testimony to support Petitioner’s defense. The Arizona Court of Appeals

18

rejected this claim finding:

19
20
21
22
23
24
25
26
27

¶13 One of Ring’s defenses at trial was that he had been paid by the Federal
Bureau of Investigations (FBI) to kidnap individuals in Mexico and return
them to the United States for prosecution, thereby explaining his increased
expenditures after the robbery and murder and his possession of a large
amount of cash. He contends Clark undermined this defense during his
opening statement at trial when he stated it was illegal for law enforcement
agents to engage in such conduct, insisting Clark should have presented
evidence to refute the testimony of federal agents that it was against the law
for them to conduct such operations.
¶14 The trial court summarily denied relief on this claim, finding the agents’
testimony “was not clearly wrong.” The court rejected Ring’s assertion that the
Supreme Court held in United States v. Alvarez–[Machain], 504 U.S. 655
(1992), that abductions of persons from another country is lawful. The court
further found Ring had failed to support his claim with expert testimony, did
not establish such evidence “was available or admissible at the time of trial,”
and did not otherwise show he had been paid by the FBI.

28
- 26 -

1

¶15 Ring contends the trial court’s interpretation of Alvarez–[Machain] was
incorrect. We disagree. The Supreme Court stated the issue in that case was
“whether a criminal defendant, abducted to the United States from a nation
with which it has an extradition treaty, thereby acquires a defense to the
jurisdiction of this country’s courts.” Alvarez–[Machain], 504 U.S. at 657. The
Court held, “he does not, and ... he may be tried in federal district court for
violations of the criminal law of the United States.” Id. Based on the terms of
the extradition treaty between Mexico and the United States and prior case
law, the Court concluded that because the treaty did not expressly prohibit
prosecution in this country of persons abducted from Mexico, the defendant
could be prosecuted here following his abduction. Id. at 670. The Court
observed, however, that the abduction could have violated “general
international law principles,” id. at 669, noting the Mexican government had
asked the United States to extradite individuals suspected of having kidnapped
the defendant, id. at 669 n. 16. The case does not, therefore, stand for the
proposition that such abductions are lawful.

2
3
4
5
6
7
8
9

¶16 Ring’s contention on review that presentation of expert testimony about
Alvarez–Machain and cross-border kidnappings “would, in all likelihood, have
made a difference in the outcome,” was not only contrary to the Court’s
holding in that case, but speculative and unsupported as well. Ring did not
establish a colorable claim that Clark’s performance fell below prevailing
professional norms. See Strickland, 466 U.S. at 687–88 (colorable claim of
ineffective assistance of counsel requires showing counsel’s performance was
deficient and prejudicial); Nash, 143 Ariz. at 397-98, 694 P.2d at 227–28
(prejudice element requires showing outcome probably would have been
different without deficient performance). Ring has not persuaded this court that
the trial court abused its discretion in denying relief on this claim without an
evidentiary hearing.

10
11
12
13
14
15
16

(Exh. B at 4, ¶¶ 13-16.)

17

Petitioner has failed to established deficient performance and prejudice. Again,

18

Petitioner’s claim relies on unsupported statements and speculation, rather than specific facts

19

and evidence. See Jones, 66 F.3d at 205; James, 24 F.3d at 26. Further, the appellate court

20

correctly found that Petitioner failed to demonstrate a “colorable claim that Clark’s

21

performance fell below prevailing professional norms,” in that any statements made that

22

abductions of persons from another country is lawful pursuant Alvarez–Machain, or evidence

23

presented to refute the testimony of federal agents regarding cross-border kidnappings would

24

have been erroneous. The Court finds that the state court’s rejection of this claim was neither

25

contrary to, nor an unreasonable application of, clearly established federal law.

26

4.

27
28

Trial counsel was ineffective with respect to the wiretap tapes
Petitioner argues that his trial counsel was ineffective with respect to the wiretap

tapes. In rejecting this claim, the Arizona Court of Appeals stated:
- 27 -

1
2
3
4
5
6
7
8
9
10

¶27 Ring contends the trial court abused its discretion in denying relief after
an evidentiary hearing on his claim that Clark had failed to adequately prepare
for trial in a variety of respects: failing to listen to multiple, extensive tapes of
wiretapped conversations, failing to compare transcripts of the conversations
with the tapes, failing to play the tapes to the jury and point out the
discrepancies, and failing to play certain tapes to impeach one of the state’s
witnesses.
¶28 Clark testified at the evidentiary hearing about his preparation, including
his review of the tapes. Characterizing the court’s order as “manifestly
unreasonable,” Ring faults the trial court for believing Clark in light of other
evidence, including his own testimony and that of VanDreumel. But as we
stated above, we defer to the trial court with respect to credibility
determinations and will not reweigh the evidence. Rodriguez, 205 Ariz. 392,
¶ 18, 71 P.3d at 924. It was for the trial court, not this court, to resolve the
conflicts in the testimony presented. We agree with the state that, in any event,
Ring did not sustain his burden of establishing prejudice.
(Ex. B at 7, ¶¶ 27-28.) 5

11

The Court finds that Petitioner has failed to demonstrate deficient performance and

12

prejudice. “[A] federal court may not second-guess a state court’s fact-finding process unless,

13

after review of the state-court record, it determines that the state court was not merely wrong,

14

but actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004), abrogated

15

on other grounds, Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014); see Pollard v.

16
17
18
19
20
21
22
23
24
25
26
27
28

5

Following an evidentiary hearing, the trial court denied relief on this issue stating, in
pertinent part:
Ring testified that he never heard the wiretaps or saw transcripts of them until the
trial had commenced; before then he had only seen police report summaries. He
testified he first heard the wiretap tapes in 2008; it took him 90 days, 8-10 hours per
day, 7 days per week to get through all 400+ tapes.
VanDreumel testified that Clark was responsible for reviewing the wiretaps and she
reviewed none.
Clark testified that he listened to and read transcripts of wiretaps – he asserted that
one of the trial strategies was to attack the tapes as being unreliable because they
were of poor quality. Clark testified that not only did he communicate with Ring
about the wiretaps, he obtained notes from Ring, including notes (which numbered
in the thousands of pages) about the wiretaps, and that he, Clark, still had the notes
in his possession.
(Exh. G at 4.)

- 28 -

1

Galaza, 290 F.3d 1030, 1033, 1035 (9th Cir. 2002) (the statutory presumption of correctness

2

applies to findings by both trial courts and appellate courts). Additionally, state court’s

3

findings of fact are presumed to be correct. See 28 U.S.C. § 2254(e)(1). A petitioner may

4

rebut this presumption with “clear and convincing evidence.” Id.

5

“Where there are two permissible views of the evidence, a fact finder’s choice

6

between them cannot be clearly erroneous.” Cooper v. Brown, 510 F.3d 870, 919 (9th

7

Cir.2007) (citing Amadeo v. Zant, 486 U.S. 214, 226 (1988)). Petitioner has not presented

8

any evidence, much less clear and convincing evidence, to rebut that presumption of

9

correctness that applies to the state court’s factual findings regarding Clark’s testimony about

10

the wiretaps. See 28 U.S.C. § 2254(e)(2). Additionally, the Court must defer to the state

11

court’s credibility determinations. See Aiken v. Blodgett, 921 F.2d 214, 217 (9th Cir. 1990).

12

Thus, considering the state court’s presumably correct findings regarding the testimony about

13

the wiretaps, Petitioner has not shown that counsel’s performance was deficient and,

14

therefore, cannot establish a claim of ineffective assistance of counsel. Accordingly,

15

Petitioner has not established that the state court’s determination is based on an unreasonable

16

determination of the facts, or is contrary to, or an unreasonable application of federal law.

17

5.
Trial counsel was ineffective based on the stun belt Petitioner was compelled to
wear during trial

18
Petitioner asserts that his trial counsel was ineffective based on the stun belt Petitioner
19
was compelled to wear during trial. The Arizona Court of Appeals rejected this claim
20
finding:
21
22
23
24
25

¶29 The trial court denied relief on this claim after the evidentiary hearing in
part because it expressly found Clark more credible than Ring. The court also
found (1) there was no evidence Ring had been prejudiced in terms of what the
jurors might have seen, and (2) Clark had made a tactical decision “to forego
alternative security measures” that did not amount to “deficient
representation.” There is reasonable evidence in the record to support these
findings. And again, we defer to the trial court with respect to any credibility
determinations. Rodriguez, 205 Ariz. 392, ¶ 18, 71 P.3d at 924. We have no
basis for interfering here.

26
27
28
- 29 -

1

(Ex. B at 7, ¶ 29 (internal footnote omitted).)6

2
3
4
5
6

6

The trial court denied relief on this issue stating, in pertinent part:

Ring testified at the hearing that he wore street clothes during the trial. He testified
that the stun belt was described to him as being a new type of restraint device, which
might go off accidentally. He testified that the stun belt had two electrodes which
made protrusions on his jacket that could be seen by jurors when he went to and from
the witness stand.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

There was no evidence that any juror saw the stun belt. There was no evidence that
protrusions in Defendant’s clothing were seen by a juror – even if the protrusions had
been seen, the Court does not believe that two protrusions on Defendant’s jacket,
visible to the jury only when he went to and from the witness stand, can support a
finding that any juror would know what a stun belt was, or that Ring was wearing a
stun belt, or that any juror would draw an adverse conclusion about wearing a stun
belt.
Clark was aware that Defendant was wearing a stun belt. Defendant was dressed at
counsel table, he was not wearing handcuffs, there were no additional security
officers present to raise the suggestion of Ring being a dangerous person. Clark said
he had no information to suggest recent “accidental” discharges.
Clark testified that he was aware that he could have challenged the use of the stun
belt; he even mentioned to a detention officer that if it went off it might mean a
mistrial. As a tactical decision, he did not object. Clark reasoned that the County
Attorney considered Ring an especially dangerous person; his assessment was that
the alternative to the stun belt would be multiple detention/security officers who
would be a more visible sign to jurors that Ring was a potentially dangerous person.
The Court does not believe that Clark’s tactical decision to forego alternative
security measures by the Sheriff’s Department was deficient representation.
Ring said that because of a near death experience with electricity and the prospect
that the stun belt might go off accidentally, he was unable to think and give clear
testimony. Ring said he asked Clark to get the stun belt removed and when Clark
didn’t, he asked VanDreumel to get it removed. VanDreumel did not testify that
Defendant asked her to seek removal of the stun belt or expressed fear from its use.

24
25
26
27
28

Clark testified that Ring never indicated any difficulty with the belt or difficulty
concentrating. The Court found Clark’s testimony more credible than Ring’s
testimony.
This Court finds that Defendant has failed to demonstrate ineffective assistance of
counsel on this issue. ...
(Exh. G at 4-5.)

- 30 -

1

Petitioner has not demonstrated deficient performance or prejudice. Here again,

2

Petitioner has not presented clear and convincing evidence to rebut that presumption of

3

correctness that applies to the state court’s factual findings regarding Clark’s testimony about

4

the stun belt. See 28 U.S.C. § 2254(e)(2). And, the Court must defer to the state court’s

5

credibility determinations. See Aiken, 921 F.2d at 217.

6

In any event, disagreements regarding trial tactics or strategy cannot form the basis

7

for a claim of ineffective assistance of counsel. See Strickland, 466 U.S. at 690; People of

8

Territory of Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984) (stating that a “tactical

9

decision by counsel with which the defendant disagrees cannot form the basis of a claim of

10

ineffective assistance of counsel”). Ineffective assistance is not shown “where counsel’s

11

actions or omissions reflected tactical decisions, even if better tactics appear in retrospect to

12

have been available.” U.S. v. Stern, 519 F.2d 521, 524 (9th Cir. 1975). Here, the record

13

reflects that there was a tactical reason for not objecting to the stun belt as Petitioner was

14

dressed at counsel table, was not wearing handcuffs, and there were no additional security

15

officers present to raise the suggestion of Petitioner being a dangerous person. Counsel made

16

a tactical decision that the alternative to wearing a stun belt would be a more visible sign to

17

jurors that Petitioner was a potentially dangerous person.

18

Accordingly, Petitioner has not established that the state court’s determination is

19

based on an unreasonable determination of the facts, or is contrary to, or an unreasonable

20

application of federal law.

21

6.
Trial counsel was ineffective for failing to request a second-degree murder
instruction and failing to object to consecutive sentences

22
Petitioner alleges that trial counsel was ineffective for failing to request a second23
degree murder instruction and failing to object to consecutive sentences. The Arizona Court
24
of Appeals found:
25
26
27
28

¶32 Ring was sentenced on October 29, 1997, to consecutive prison terms of
twenty-one years on counts two, three, and four, and a term of 8.75 years for
theft, the first twenty-one-year term to commence upon his discharge from the
death sentence imposed for the murder conviction. Pursuant to an agreement
Ring entered into with the state after the case was remanded for resentencing
on the murder conviction, he was sentenced on July 17, 2007, to a prison term
- 31 -

1

of natural life. Clark’s alleged ineffectiveness in failing to object to
consecutive sentences is moot in light of the natural-life term that Ring agreed
would be imposed for first-degree murder.

2
3

¶33 Furthermore, in light of Ring’s defense, Ring has not shown that Clark’s
failure to request a second-degree murder instruction as a lesser-included
offense of first-degree murder based on premediated murder, was deficient
performance or prejudicial. Rather, the record before us shows that Clark made
a tactical decision. “[D]isagreements as to trial strategy or errors in trial tactics
will not support an effectiveness claim so long as the challenged conduct could
have some reasoned basis.” Meeker, 143 Ariz. at 262, 693 P.2d at 917. Ring’s
alibi defense—that payment he received from the FBI and for work as a
bounty hunter explained his excessive expenditures around the time of the
robbery and the large amount of cash found in his garage—was, as he admitted
in his Rule 32 petition, an “all-or-nothing defense.” As the state points out in
its response to the petition for review, further illustrating the lack of prejudice
here, the jury found Ring guilty of murder based on felony murder, not
first-degree, premediated murder. Thus, the trial court did not err in summarily
denying relief on this claim.

4
5
6
7
8
9
10
11

(Ex. B at 8, ¶¶ 32-33.)

12

The Court finds that Petitioner has not established deficient performance or prejudice.

13

Petitioner again objects to what appears to be a tactical and strategic decision by counsel in

14

presenting the “alibi defense – that payment he received from the FBI and for work as a

15

bounty hunter explained his excessive expenditures around the time of the robbery and the

16

large amount of cash found in his garage,” versus requesting a second-degree murder

17

instruction as a lesser-included offense of first-degree murder based on premediated murder.

18

Disagreements regarding trial tactics or strategy cannot form the basis for a claim of

19

ineffective assistance of counsel. See Strickland, 466 U.S. at 690; People of Territory of

20

Guam, 741 F.2d at 1169. In any event, as the appellate court stated, there is no prejudice as

21

the jury found Petitioner guilty of murder based on felony murder – not first-degree,

22

premediated murder.

23

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24

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25

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26

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27

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28

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- 32 -

1

As to counsel’s failure to object to consecutive sentences, again, Petitioner has not

2

shown prejudice as the issue is mooted in light of the natural-life term that Petitioner agreed

3

would be imposed for first-degree murder conviction. As such, Petitioner has not established

4

that the state court’s determination is based on an unreasonable determination of the facts,

5

or is contrary to, or an unreasonable application of federal law.

6

CONCLUSION

7

Having determined that Grounds One and Three are procedurally defaulted; (2)

8

Grounds Two, Four, and Seven fail to state a cognizable claim; and (3) Petitioner’s

9

remaining claims fail on the merits, the Court will recommend that Petitioner’s Petition for

10

Writ of Habeas Corpus be denied and dismissed with prejudice.

11

IT IS THEREFORE RECOMMENDED that Petitioner’s Petition for Writ of

12

Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH

13

PREJUDICE.

14

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave

15

to proceed in forma pauperis on appeal be DENIED because the dismissal of the habeas

16

petition is justified by a plain procedural bar and jurists of reason would not find the

17

procedural ruling debatable.

18

This recommendation is not an order that is immediately appealable to the Ninth

19

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of

20

Appellate Procedure, should not be filed until entry of the district court’s judgment. The

21

parties shall have fourteen days from the date of service of a copy of this recommendation

22

within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1);

23

Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen

24

days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of

25

Civil Procedure for the United States District Court for the District of Arizona, objections

26

to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure

27

timely to file objections to the Magistrate Judge’s Report and Recommendation may result

28

in the acceptance of the Report and Recommendation by the district court without further
- 33 -

1

review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure

2

timely to file objections to any factual determinations of the Magistrate Judge will be

3

considered a waiver of a party’s right to appellate review of the findings of fact in an order

4

or judgment entered pursuant to the Magistrate Judge’s recommendation. See Rule 72,

5

Federal Rules of Civil Procedure.

6

DATED this 22nd day of January, 2018.

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