Steah v. Department of Corrections et al

Filing 45

ORDER that Petitioner's 6 -15 Motion for an Evidentiary Hearing is denied. ORDERED the 33 Report and Recommendation is accepted and adopted, the 41 Objections are overruled, the Petition in this case is denied with prejudice and the Clerk of the Court shall enter judgment accordingly. ORDERED the 43 Motion for Extension of Time is denied. However, the Court will consider Petitioner's reply regardless. IT IS FURTHER ORDERED that in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability. Signed by Senior Judge James A Teilborg on 3/24/2015. (LFIG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kee Nelson Steah, Sr., Petitioner, 10 11 ORDER v. 12 No. CV-12-8224-PCT-JAT (LOA) Charles L. Ryan, et al., 13 Respondents. 14 15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus. The 16 Magistrate Judge to whom this case was assigned issued a Report and Recommendation 17 (R&R) recommending that this Court deny the Petition. Petitioner has filed objections to 18 the R&R. In addition, the Petitioner also requested an evidentiary hearing that the R&R 19 recommends the Court denies. 20 I. 21 22 23 24 25 26 27 28 Factual Background As the R&R quoted, the Arizona Court of Appeals summarized the facts of this case as follows: On December 20, 2004, suspecting his wife, Laverne Steah, was having an affair, Steah left his jobsite in Craig, Colorado and drove home to St. Johns, Arizona. At home, Steah discovered Laverne together with another man, B.C. A fight ensued between Steah and B.C. Shortly thereafter, St. Johns Police Officer Aaron Smith responded to a dispatch concerning a knife fight at Steah’s home. Officer Smith testified that upon arriving at the scene, he observed Steah kicking and hitting B.C., who was trying to get up from the ground in the front yard. Officer Smith stated that Steah was covered in blood from “head to toe” 1 and that B.C. had multiple wounds, including a wound “from the base of his ear . . [that] was bleeding profusely.” Officer Smith recalled Steah stating, “I cut him and stabbed him . . . . I, [sic] had the only knife . . . . I’m not hurt, none of this blood is mine. It’s all his.” B.C. was transported to a hospital and later died while in the emergency room. Maricopa County medical examiner, Dr. Vladimir Shvarts, opined that the cause of death was “multiple wounds.” According to Dr. Schvarts, B.C. had sustained ten wounds to the head and neck area, including a stab wound by the ear that damaged a major artery, eleven wounds and multiple superficial cuts on other parts of his body, and blunt force injuries. 2 3 4 5 6 7 8 9 10 R&R at 1–2. II. Petitioner submitted a reply to the Respondents’ reply to Petitioner’s initial 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply by Petitioner to Respondents’ Reply objection to the R&R. (Doc. 44). While a reply to Respondents’ reply is not allowed by the Federal Rules of Civil Procedure (“Rule”) 72 and is moot, the Court will consider it regardless. III. Review of Report and Recommendation This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that the district judge must review the magistrate judge’s findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D.Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge’s] recommendations to which the parties object.”). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.”). -2- 1 The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is 2 incarcerated based on a state conviction. With respect to any claims that Petitioner 3 exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must 4 deny the Petition on those claims unless “a state court decision is contrary to, or involved 5 an unreasonable application of, clearly established Federal law”1 or was based on an 6 unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 7 This is a “highly differential standard for evaluating state-court rulings, which demands 8 that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 9 U.S. 19, 24 (2002) (citation and internal quotation omitted). The petitioner bears the 10 burden of proving the standards for habeas relief have been met. Id. at 25. Further, this 11 Court must presume the correctness of the state court’s factual findings regarding a 12 petitioner’s claims. 28 U.S.C. § 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923, 936 (9th Cir. 13 1998). Additionally, “[a]n application for a writ of habeas corpus may be denied on the 14 merits, notwithstanding the failure of the applicant to exhaust the remedies available in 15 the courts of the State.” 28 U.S.C. § 2254(b)(2). 16 “When applying these standards, the federal court should review the ‘last reasoned 17 decision’ by a state court . . . .” Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 18 Accordingly, the summary denial of Petitioner’s petition for review by the Arizona Court 19 of Appeals renders the trial court’s decision on Petitioner’s Petition for Post-Conviction 20 Relief the “last reasoned decision” of the state court, subject to this Court’s review. See 21 Y1st v. Nunnemaker, 501 U.S. 797, 803-03 (1991) (“later unexplained orders upholding 22 [a] judgment [rejecting a federal claim]” raises a presumption that the reviewing court 23 “looks through” that order to the last reasoned decision). 24 In his Petition, Petitioner raised one legal theory for habeas relief, ineffective 25 assistance of counsel. However, Petitioner raised eight different factual variations of 26 ineffective assistance of counsel. The Court will review the theory and factual variations 27 28 1 Further, in applying “Federal law” the state courts only need to act in accordance with Supreme Court case law. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). -3- 1 on which Petitioner filed an objection de novo. 2 A. 3 The R&R recounts the law governing a claim for ineffective assistance of counsel 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Legal Standards for Ineffective Assistance of Counsel as follows: The controlling Supreme Court precedent on claims of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a convicted defendant must show that counsel’s performance was objectively deficient and counsel’s deficient performance prejudiced the petitioner. Id. at 687. To be deficient, counsel’s performance must fall “outside the wide range of professionally competent assistance.” Id. at 690. When reviewing counsel’s performance, the court engages a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. Id. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689. Review of counsel’s performance is “extremely limited.” Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir. 1998), rev’d on other grounds, 525 U.S. 141 (1998). Acts or omissions that “might be considered sound trial strategy” do not constitute ineffective assistance of counsel. Strickland, 466 U.S. at 689. In addition to showing counsel’s deficient performance, a petitioner must establish that he suffered prejudice as a result of that deficient performance. Id. at 691-92. To show prejudice, a petitioner must demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694; Hart v. Gomez, 174 F.3d 1067, 1069 (9th Cir. 1999); Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998). The prejudice component “focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). It is not enough to merely show “that the errors had some conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693. A habeas court may proceed directly to the prejudice prong without deciding whether counsel’s performance was deficient. Id. at 697; Jackson v. Calderon, 211 F.3d 1148, 1155 n. 3 (9th Cir. 2000) (citing Strickland). The court, however, may not assume prejudice solely from counsel’s allegedly deficient performance. Jackson, 211 F.3d at 1155. In the context of a habeas petition, a petitioner must do more than demonstrate to the federal court that the state court applied Strickland -4- 1 2 3 4 5 6 7 incorrectly. Bell, 535 U.S. at 698-99. Rather, a petitioner must show the state court “applied Strickland to the facts of his case in an objectively unreasonable manner.” Id. Because the standards created by Strickland and § 2254(d) are both “highly deferential,” review under both standards in tandem is even more deferential. Richter, 131 S. Ct. at 788 (citations omitted). “[T]he question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. R&R at 7–9. 8 B. 9 As noted above, Petitioner argues only one legal theory: ineffective assistance of 10 counsel. However, Petitioner asserts eight different factual variations upon this single 11 legal theory. 12 Ineffective Assistance of Counsel Claim 1. Ground One 13 “Petitioner alleges in ground one that his trial counsel provided ineffective 14 assistance when he failed to elicit a statement Petitioner made while being questioned by 15 the police chief that during the fight with the victim, Petitioner picked up from a table the 16 knife he used to defend himself and stab the victim.” R&R at 9. As the R&R states, 17 Petitoner’s counsel did in fact elicit a statement from the police chief in regards to the 18 knife. R&R at 9; (Doc. 19. Ex. R at 1182). As the record reflects, Petitioner’s trial 19 counsel questioned: “Now, Nelson told you that he picked up the knife, the knife he used 20 off the table in the living room, correct?” (Doc. 19, Ex. R at 1182). The police chief then 21 responded with: “Yes. That’s what Mr. Steah told me.” (Id.). Thus, Petitioner’s first 22 ineffective assistance of counsel claim is not supported by the facts in the record. 23 Petitioner continues to argue in his objection to the R&R that his counsel did not 24 elicit the statement from the police chief and that this undermined Petitioner’s self- 25 defense argument. (Doc. 41 at 12–13). This assertion is simply not supported by the 26 record. Therefore, the Court agrees with the R&R that Petitioner has failed to show that 27 the trial court’s decision denying this claim on post-conviction relief was contrary to, or 28 an objectively unreasonable application of, Strickland, or that the decision was based on -5- 1 an unreasonable determination of the facts in light of the record before the trial court. 2 Ground one is denied. 3 2. Ground Two 4 “Petitioner alleges in ground two that his trial counsel provided ineffective 5 assistance when he failed to protect Petitioner’s right to [a] unanimous jury verdict on his 6 claim of self-defense.” R&R at 10. Petitioner claims that his counsel “failed to request a 7 jury instruction requiring a unanimous verdict on the affirmative defense and failed to 8 inquire after the verdict whether the jury unanimously rejected the defense.” R&R at 10. 9 Here, the trial court judge instructed the jury as to the Petitioner’s burden of proof 10 for self-defense by stating: “[t]he defendant must prove the defense of self-defense by a 11 preponderance of the evidence.” (Doc. 19, Exh. T at 1411). Furthermore, the trial judge 12 also instructed the jury to the State’s burden of proof in regards to the elements of the 13 charged offense by stating: “the burden of proof with regard to the elements of the 14 charged offense is with the state. The burden of proof is beyond a reasonable doubt as 15 defined in these instructions.” (Doc. 19, Exh. T at 1412). The trial judge then proceeded 16 to define self-defense and explain what the jury would need to find to conclude that the 17 Petitioner committed the act in self-defense. (Doc. 19, Exh T at 1412–13). Finally, the 18 trial judge instructed the jurors that their verdicts “do need to be unanimous.” (Doc. 19, 19 Exh. U at 1487). 20 agree upon a verdict.” (Id.). The trial judge then explained that this means “all twelve of you must 21 Petitioner cites to a number of cases to support his argument that the trial court 22 should have instructed the jury with a specific unanimity instruction for Petitioner’s 23 affirmative defense. (Doc. 32 at 9–11). Petitioner then argues that because his trial 24 counsel failed to seek this jury instruction, his counsel provided ineffective assistance. 25 (Doc. 32 at 11). 26 Williams v. Taylor, 529 U.S. 362, 402–03 (2000) (whether a state court ruling was 27 contrary to or an unreasonable application of “clearly established” Federal law, is 28 determined only by the Supreme Court of the United States in the context of habeas While some of these cases are indeed Supreme Court cases, see -6- 1 cases), other cases cited by Petitioner are not and will not be taken into consideration. 2 (Doc. 32 at 9–11). Looking exclusively at the Supreme Court cases, none of these cases 3 addresses the issue of specific unanimity instruction for an affirmative defense. 4 Furthermore, as stated in United States v. Southwell, 432 F.3d 1050, 1054 (9th Cir. 2005), 5 the Supreme Court has not resolved the question of whether a specific unanimity 6 instruction is needed for an affirmative defense. Therefore, there is no clearly established 7 Federal law—as determined by the Supreme Court of the United States—on this 8 question. Petitioner cannot show that the trial court’s denial of this ineffective assistance 9 of counsel claim was contrary to, or an unreasonable application of United States 10 Supreme Court precedent. 11 Additionally, Petitioner has failed to show that the trial court’s decision was based 12 on an unreasonable determination of the facts. Based on the instructions that the trial 13 judge gave, the jury knew they had to unanimously convict Petitioner. They also knew 14 the burdens that both the State and Petitioner had to meet regarding the charged offense 15 and the affirmative defense. The jury implicitly indicated that they unanimously rejected 16 Petitioner’s self-defense argument by finding Petitioner unanimously guilty. For these 17 reasons, ground two is denied. 18 3. Ground Three 19 “Petitioner alleges in ground three that his trial counsel provided ineffective 20 assistance when he failed to seek a jury instruction on the shifting burden of proof for an 21 affirmative defense.” R&R at 12. Petitioner further explains that the jury needs to be 22 instructed as to the precise burden that the “defense was legally required to bear in order 23 to make a prima facie case for self-defense. (Doc. 6 at 8). Petitioner seems to be 24 confused as to the jury instruction provided by the trial judge. The trial judge instructed 25 the jury that “[t]he defendant must prove the defense of self-defense by a preponderance 26 of the evidence. Preponderance of the evidence means that the defense of self-defense is 27 more probably true than not.” (Doc. 19, Exh. T at 1411). Furthermore, as stated in the 28 above section, the trial judge instructed the jury that “the burden of proof with regard to -7- 1 the elements of the charged offense is with the state. The burden of proof is beyond a 2 reasonable doubt as defined in these instructions.” (Id. at 1412). 3 Therefore, Petitioner’s belief that there was no jury instruction on the shifting 4 burden of proof for an affirmative defense is not supported by the record. The trial court 5 instructed the jury as to the burden of proof for Petitioner’s affirmative defense and as to 6 the State’s higher burden of proof to the charged offense. Because there is no factual 7 basis behind Petitioner’s claim of ineffective assistance of counsel for not seeking a jury 8 instruction on the shifting burden of proof for an affirmative defense, ground three is 9 denied. 10 4. Ground Four 11 Petitioner alleges in ground four that his trial counsel provided ineffective 12 assistance of counsel when his counsel “entered into a stipulation without Petitioner’s 13 knowledge or consent, that was: a) false and b) allowed the prosecution to introduce 14 highly prejudicial and inflammatory expert testimony that was otherwise inadmissible.” 15 (Doc. 6 at 9). Petitioner further asserts that “[t]he stipulation entered into by defense 16 counsel held that the marriage between Petitioner and his wife was abusive and that he 17 was controlling her.” (Id.). The two stipulations at issue in ground four are: 18 19 20 21 22 Number ten, the parties stipulate that the defendant Kee Nelson Steah, Sr. and his wife Laverne Steah were involved in an abusive marriage. Number eleven, the parties further stipulate that the prior stipulation of an abusive marriage provides the foundational requisite necessary for Kathleen Ferraro, Ph.D. to testify on the general characteristic of abusive relationships and its effects. 23 (Doc. 19, Exh. T at 1401–02). There is nothing in the record as to the reasons that parties 24 entered into the stipulations. Furthermore, there is nothing on the record that indicates 25 Petitioner was unaware of, or opposed to the stipulations. 26 Strickland provides that there is a strong presumption that counsel rendered 27 adequate assistance and exercised reasonable professional judgment in the context of an 28 ineffective assistance claim. Strickland, 466 U.S. at 687. Additionally, acts or omissions -8- 1 that “might be considered sound trial strategy” do not constitute ineffective assistance of 2 counsel. Id. at 689. 3 The timeline of events in this case leading up to the stipulations shown above are 4 informative as to Petitioner’s trial counsel’s strategy and could prove the soundness of 5 such a strategy. Initially, Petitioner filed a motion in limine to stop the State from 6 introducing evidence of five prior acts of violence “alleged to have been directed against 7 [Petitioner] at [Petitioner’s wife] . . . .” (Doc. 19, Exh. F). The Court granted the 8 Petitioner’s motion in limine and then moved to bar admission of trial testimony by the 9 State’s expert witness about “battered spouse syndrome.” (Id.). The State then moved in 10 limine to introduce prior acts of the Petitioner on June 14, 2005 in response to Petitioner’s 11 introduction of his intention to present a claim of self-defense. (Doc. 19, Exh. E). The 12 State alleged that these prior acts of violence were admissible to refute Petitioner’s claim 13 of self-defense. (Id.). 14 In response to the State’s motion in limine filed on June 14, 2005, Petitioner 15 argued that no alleged prior acts of violence by Petitioner against Petitioner’s wife should 16 be admitted. (Doc. 19, Exh. G). The State’s response to Petitioner’s motion to preclude 17 the State’s expert testimony was that the prior acts of violence were admissible and 18 provided a proper foundation for the expert testimony. (Doc. 19, Exh. H). During a pre- 19 trial motions hearing on June 27, 2005, Petitioner’s wife testified that she was physically 20 and emotionally abused during their twenty-five years of marriage. (Doc. 19, Exh. I at 21 49, 57). On a June 30, 2005 continuation of the pre-trial motions hearing, before the 22 Court issued a ruling on the motions, the State withdrew its “404B Motion regarding 23 prior bad acts.” (Doc. 19, Exh J). 24 As stated above under Strickland, acts or omissions that might be considered 25 sound trial strategy do not constitute ineffective assistance of counsel. Strickland, 466 26 U.S. at 689. It is plausible to the Court that Petitioner’s trial counsel stipulated to the 27 abusive marriage to eliminate the risk of an adverse ruling by the trial court on the State’s 28 motion in limine. And Petitioner’s trial counsel may also have stipulated to the abusive -9- 1 marriage to eliminate the risk of the jury hearing damaging testimony from Petitioner’s 2 wife about several specific incidents of domestic violence. Petitioner’s trial counsel 3 could have agreed to a more general stipulation of an “abusive marriage” rather than risk 4 this damaging testimony. 5 Further evidence of this potential agreement is that Petitioner’s wife did not testify 6 at trial about any specific incidents of domestic violence, (Doc. 19, Exh. M at 479–514, 7 Exh. N at 519–623, Exh. O at 628–684) and the prosecutor, during Petitioner’s cross 8 examination, did not ask any specific domestic violence questions. (Doc. 19, Exh. S at 9 1300–1323, Exh. T at 1348–1379). The State’s expert witness only testified about 10 general abusive relationships, and not specifically about Petitioner’s relationship with his 11 wife. (Doc. 19, Exh. P at 936–965). 12 Petitioner argues that the R&R did not properly address whether the trial strategy 13 was sound trial strategy and that “numerous other family members who had lived with 14 Petitioner” would testify that Petitioner’s wife was the actual abuser. (Doc. 41 at 14). 15 Petitioner then claims that with this testimony, the stipulations at issue cannot reasonably 16 be considered sound trial strategy. (Id.). However, as shown above, there is a plausible 17 reason as to why Petitioner’s trial counsel stipulated to the “abusive marriage.” 18 Therefore, the Court cannot conclude that the trial court applied Strickland to the facts in 19 an objectively unreasonable manner in light of this potential strategy. Bell, 535 U.S. at 20 698-99. It was reasonable for the trial court to conclude that the stipulations at issue 21 made by Petitioner’s trial counsel did not constitute ineffective assistance of counsel. As 22 stated above, Petitioner’s counsel prevented Petitioner’s wife from giving damaging 23 testimony about Petitioner’s abusive marriage, and prevented Petitioner from being cross 24 examined as to the same. For these reasons, ground four is denied. 25 5. Ground Five 26 Petitioner alleges in ground five that his “trial counsel failed to adduce testimony 27 from available witness[es] refuting the stipulation and other testimony.” (Doc. 6 at 10). 28 Petitioner further states that Petitioner’s children would testify that it was Petitioner’s - 10 - 1 wife, not Petitioner, who was “controlling and argumentative.” (Id.). Furthermore, 2 Petitioner’s children would also testify that Petitioner would diffuse hostile situations by 3 leaving. (Id.). 4 As stated in the above section, the Court found that the trial court’s decision that 5 trial counsel’s decision to stipulate to an “abusive marriage” did not constitute ineffective 6 assistance of counsel. The Court also found that it was reasonable for the trial court to 7 conclude that the stipulation was sound trial strategy by Petitioner’s trial counsel by 8 limiting potentially damaging testimony about Petitioner’s abusive marriage. 9 primary purpose of the “abusive marriage” stipulation was to prevent the jury from 10 hearing specific evidence of Petitioner’s domestic violence against Petitioner’s wife. 11 This purpose would be undermined by having Petitioner’s children testify to refute the 12 stipulation. The testimony would then allow the prosecution to cross-examine Petitioner 13 and question Petitioner’s wife as to specific evidence of Petitioner’s domestic violence 14 against Petitioner’s wife. The 15 Therefore, Petitioner has not shown that his trial counsel was objectively deficient. 16 Furthermore, Petitioner has not shown that the trial court’s decision “applied Strickland 17 to the facts of the case in an objectively unreasonable manner.” Bell, 535 U.S. at 698-99. 18 For this reason, ground five is denied. 19 6. Ground Six 20 Petitioner alleges that his “[a]ppellate counsel [provided ineffective assistance 21 when she] failed to challenge the trial court’s constitutional error, preserved by objection, 22 in failing to sup[p]ress Petitioner’s statements that were made after he was in custody but 23 prior to being Mirandized.” (Doc. 6 at 11). 24 counsel preserved the issue by objecting at trial. (Id.). Petitioner further alleges that his trial 25 The trial court, in an order filed on May 26, 2005, ruled on “Defendant’s Motion 26 to Suppress certain Statements.” (Doc. 19, Exh. C). Within this order the trial court 27 attempted to separate different statements based upon the timeframe. (Id.). The trial 28 court ruled that statements by Petitioner made to the initial arriving officer were - 11 - 1 admissible because the Petitioner “was not in custody at the time and the statements 2 were made in response to questions from the officer” determining the “status of the scene 3 and the safety risks to the officer and others.” (Id.). The trial court also ruled that 4 statements made to the police chief “while [Petitioner] was in the back of the ambulance 5 [were] admissible” because the chief was asking questions related to the Petitioner’s 6 well-being and the statements were “clearly voluntary.” (Id.). Finally, the trial court 7 ruled that the only statements not admissible were those made after Petitioner invoked his 8 Miranda rights at the police station, but before Petitioner “clearly withdrew” the 9 invocation of his Miranda rights and “agreed to talk to the officers.” (Id.). 10 Petitioner fails to identify in his Amended Petition, Memorandum of Points and 11 Authorities, and his objection to the R&R, the specific statements he is claiming should 12 have been suppressed and should have then been addressed on direct appeal. 13 Petitioner’s objection to the R&R, he asserts that “it is the height of absurdity to assert 14 that Petitioner was not in custody immediately” upon the first police officer’s arrival at 15 the scene. (Doc. 41 at 16). The Court interprets this statement as an assertion that none 16 of Petitioner’s statements to police were admissible. Petitioner further supports this 17 statement by asserting that Petitioner was in custody immediately after the initial 18 handcuffing by the arriving officer at the scene and assumedly for the rest of the police’s 19 questioning. (Doc. 41 at 17). Petitioner cites to several Miranda-related Supreme Court 20 cases supporting his assertion that he was in custody for all of the questioning. (Id.). In 21 As noted above, Petitioner bears the burden of proving that the high standards for 22 habeas relief have been met. See Woodford, 537 U.S. at 25. Petitioner has not met this 23 burden here. While Petitioner does argue generally that he was in custody, he does not 24 address the different times or situations specifically and how these different 25 circumstances affect his general custody argument. The trial court ruled that various 26 statements were admissible for a variety of reasons, including that the questioning was 27 not a custodial interrogation, the statements were clearly voluntary, and that the Petitioner 28 withdrew his invocation of his Miranda rights. (Doc. 19, Exh. C). Without an analysis - 12 - 1 tailored to the different times or statements made to police, Petitioner has not shown that 2 the trial court’s decision denying his post-conviction relief was contrary to, or an 3 unreasonable application of Strickland, or that the decision was based on an unreasonable 4 determination of the facts in light of the record before the trial court. For these reasons, 5 ground six is denied. 6 7. Ground Seven 7 Petitioner alleges in ground seven that his direct appeal counsel provided 8 ineffective assistance when she failed to “assert a claim of prosecutorial misconduct for 9 impeaching the Petitioner with an alleged statement that had not been disclosed by the 10 prosecution” and when she failed to seek “appellate review of the trial court’s ruling on 11 the issue.” (Doc. 6 at 12). Petitioner is referring to a statement made by the police chief 12 stating that Petitioner had told the police chief that he “pulled the knife.” (Id.). Petitioner 13 further asserts that the alleged statement was not found on any recordings or transcripts 14 and was not disclosed by the prosecution. (Id.). 15 The statement at issue occurred when the police chief testified on rebuttal that he 16 reviewed the audio recording that morning of Petitioner’s statements during the booking 17 process. (Doc. 19, Exh. T at 1381–82). The police chief then testified that after a 18 detective commented on eating too much pizza, Petitioner stated “I should have just 19 kicked his ass. I shouldn’t have pulled the knife. I just should have kicked his ass.” (Id. 20 at 1383). The police chief further testified that the above statement by Petitioner was 21 exactly what was on the audio recording. (Id. at 1384). Before this rebuttal testimony, 22 Petitioner initially testified that he told the police chief that he picked the knife up off the 23 table after he and the victim started fighting. (Doc. 19, Exh. S at 1311). Petitioner, on 24 cross-examination, also denied telling the police chief that he “pulled the knife” during 25 the booking process. (Doc. 19, Exh. T at 1365). This is where the statement comes 26 under dispute. 27 Petitioner’s trial counsel initially objected on the ground that the prosecutor was 28 asking the same questions he asked when the police chief was previously on the stand. - 13 - 1 (Doc. 19, Exh. T at 1383). The trial court overruled the objection. (Id.). Petitioner’s trial 2 counsel did not object on the basis of non-disclosure or prosecutorial misconduct. (Id.). 3 On a later motion for a new trial, Petitioner’s trial counsel argued that the prosecution 4 failed to disclose this statement about Petitioner pulling the knife instead of picking the 5 knife up off the table. (Doc. 19, Exh. X at 14–15). Petitioner’s trial counsel explained 6 that the audio recording was of poor quality and that the statement was neither on the 7 initial transcript, nor the police chief’s annotated version of the transcript. 8 Petitioner’s trial counsel then argued that the first mention of this statement was when the 9 police chief testified that he heard Petitioner state it based off the audio recording the 10 (Id.). police chief reviewed that morning. (Id.). 11 The trial court denied the motion for a new trial by finding that the police chief’s 12 rebuttal testimony was proper impeachment evidence, and the statement was properly 13 admitted. (Doc. 19, Exh. X at 23–24). The trial court also found that the transcripts and 14 recording were “troublesome,” but both parties knew that going into trial, and the officers 15 were available before trial to resolve any problems prior to trial. (Id. at 24). Finally, the 16 trial court found that the state did not err in regards to the statement. (Id.). Furthermore, 17 the trial court, on post-conviction review, rejected Petitioner’s claim that his appellate 18 counsel was ineffective when she did not pursue this issue on direct appeal. (Doc. 19, 19 Exh. JJ). 20 The Court finds no basis to conclude that the trial court’s denial of this ground on 21 post-conviction relief was an objectively unreasonable application of Strickland to the 22 facts of this case. 23 concluded that the trial court erred in its ruling on the police chief’s rebuttal testimony, 24 even if Petitioner’s appellate counsel had raised it. Counsel is not ineffective for failing 25 to make a futile argument. Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (In 26 evaluating counsel’s performance, counsel’s failure to take action that would have been 27 futile can never be deficient performance.). 28 Therefore it is unlikely that the Arizona Court of Appeals would have Petitioner states in his objection to the R&R that the prosecution must have had - 14 - 1 advanced knowledge of the content of the statement because they used the statement to 2 impeach Petitioner. (Doc. 41 at 18). Petitioner further argues that this is prosecutorial 3 misconduct and the Magistrate Judge incorrectly concluded that it was highly unlikely 4 Petitioner would have prevailed on direct appeal. (Id.). While Petitioner disagrees with 5 the Magistrate Judge’s conclusion, he fails to argue how the trial court’s denial of post- 6 conviction relief was an objectively unreasonable application of Strickland to the facts of 7 this case. 8 objectively deficient, and that this performance prejudiced Petitioner. Strickland, 466 9 U.S. at 687. Here, as stated above, at trial both sides knew about the “troublesome” 10 audio recording and the trial judge found that the State did not err in regards to the 11 statement made by the police chief. Petitioner has not met his burden of showing that his 12 direct appeal counsel’s performance was objectively deficient for not seeking review of 13 the issue on appeal. For these reasons, ground seven is denied. 14 Strickland requires that Petitioner shows his counsel’s performance was 8. Ground Eight 15 Petitioner alleges in ground eight that his direct appeal counsel provided 16 ineffective assistance when she “failed to challenge the trial court’s denial of trial 17 counsel’s objection to the state’s introduction of a prior bad act that the trial court had 18 precluded.” (Doc. 6 at 13). Petitioner further alleges that a statement the police chief, 19 made in regards to a prior knife fight Petitioner was involved in, denied Petitioner a fair 20 trial and was preserved for appellate review. (Id.). 21 Due to a pre-trial motion in limine, the trial court granted Petitioner’s request to 22 preclude the State from introducing evidence of a prior knife fight between Petitioner and 23 his brother in 1982. (Doc. 19, Exh. D at 5–8). During the police chief’s questioning, the 24 prosecution asked the police chief about his initial questioning of Petitioner’s wife at the 25 scene of the alleged crime. (Doc. 19, Exh. R at 1168). The police chief stated that 26 Petitioner’s wife said “he was a very violent man. This is not his first knife fight.” (Id.). 27 Petitioner’s trial counsel promptly objected and moved for a mistrial, which the trial 28 judge denied. (Id. at 1168–69). The trial court offered to order the testimony stricken, - 15 - 1 but Petitioner’s trial counsel declined. (Id. at 1169). Petitioner’s trial counsel again 2 raised the issue in the trial judge’s chambers that the statement by the police chief was 3 deeply prejudicial and warranted a mistrial. (Id. at 1180). The trial court clarified its 4 ruling that while it had excluded the evidence of the previous knife fight, the statement 5 that the police chief attributed to Petitioner’s wife “probably reflects more on her state of 6 mind.” (Id.). The trial court then found that there had been a lot of testimony on 7 Petitioner’s wife’s state of mind, and the statement did not warrant a mistrial (Id. at 8 1180–81). Petitioner’s trial counsel raised this issue for a third time at the end of the trial 9 in another motion for a new trial. (Doc. 19, Exh. X at 13). The trial court again denied 10 the motion for a new trial, finding that any error was cured by the trial court’s ruling. (Id. 11 at 24). 12 The Arizona Court of Appeals also addressed the argument in their memorandum 13 decision on Petitioner’s direct appeal. (Doc. 19, Exh. EE at 7–11). The Court of Appeals 14 explained that the statement “could not be so prejudicial as to tip the scale against 15 [Petitioner] because that statement alone does not suggest [Petitioner] was the aggressor 16 in the fight or that [Petitioner] was acting in ways other than self-defense.” (Id. at 10). 17 This shows that Petitioner’s direct appeal counsel did indeed raise the issue on appeal. 18 Thus, Petitioner has not shown that his direct appeal counsel was objectively deficient, as 19 required under Strickland. 20 Petitioner argues in his objection to the R&R that his direct appeal counsel only 21 argued the “prejudicial effect of the statement, not the trial court’s improper basis for 22 denying the trial attorney’s objection or the trial court’s improper basis for denying the 23 defense motion for mistrial.” (Doc. 41 at 19). Petitioner also argues that the Arizona 24 Court of Appeals’ conclusion that the statement was not significantly prejudicial, “flies in 25 the face of Supreme Court precedent.” (Id.). Neither of these arguments show deficient 26 performance of Petitioner’s direct appeal counsel nor prejudice under Strickland. 27 Therefore, Petitioner has not shown that the trial court’s denial of post-conviction relief 28 was an objectively unreasonable application of Strickland to the facts of this case. For - 16 - 1 these reasons, ground eight is denied. 2 IV. Request for Evidentiary Hearing 3 Petitioner filed a motion for an evidentiary hearing. (Doc. 6 at 15). In order to be 4 entitled to a federal evidentiary hearing, Petitioner needs to show that “(1) he has alleged 5 facts that, if proven, would entitle him to habeas relief, and (2) he did not receive a full 6 and fair opportunity to develop those facts in a state court.” Williams v. Woodford, 384 7 F.3d 567, 586 (9th Cir. 2002). As shown by the analysis above, Petitioner has not alleged 8 facts that, if true, would entitle him to habeas relief. Therefore, the Court denies the 9 request for an evidentiary hearing. 10 11 12 V. Conclusion IT IS ORDERED that Petitioner’s motion for an evidentiary hearing (Doc. 6 at 15) is denied. 13 IT IS FURTHER ORDERED that the Report and Recommendation is accepted 14 and adopted (Doc. 33), the objections are overruled (Doc. 41), the Petition in this case is 15 denied, with prejudice, and the Clerk of the Court shall enter judgment accordingly. 16 IT IS FURTHER ORDERED that the “Motion for Extension of Time for Filing 17 Reply to Objection to Report and Recommendation” (Doc. 43) is denied. However, the 18 Court will consider Petitioner’s reply regardless. 19 IT IS FINALLY ORDERED that pursuant to Rule 11 of the Rules Governing 20 Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a 21 certificate of appealability because Petitioner has not made a substantial showing of the 22 denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). 23 Dated this 24th day of March, 2015. 24 25 26 27 28 - 17 -

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