Summers v. Schriro, et al

Filing 33

ORDER granting 32 Motion for Ruling. Summers' Amended Petition for Writ of Habeas Corpus is DENIED. This matter is DISMISSED with prejudice. Clerk of the Court to enter joudment and shall close the file. Signed by Judge Cindy K Jorgenson on 6/2/09.(LSI, ) Modified on 6/2/2009 TO ADD WRITTEN OPINION (LSI, ).

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MARILYN GENE SUMMERS, Petitioner, vs. DORA B. SCHRIRO, et al., Respondents. ) ) ) ) ) ) ) ) ) ) No. CV 03-620-TUC-CKJ ORDER On or about December 12, 2003, Petitioner Marilyn Gene Summers ("Summers") filed the instant Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. 2254. An Amended Petition was filed on April 2, 2004. Respondents filed an Answer. The Petition was denied and the matter dismissed on June 7, 2005. Following reversal and remand by the Ninth Circuit Court of Appeals, Respondents filed a Supplemental Answer and Summers filed a Traverse. Also pending before the Court is Summers' Motion for Ruling [Doc. # 32]. I. Factual and Procedural Background The Court of Appeals of Arizona stated the facts1 and state procedural history as follows: Petitioner Marilyn Gene Summers, a paralegal who specialized in probate and As these state court findings are entitled to a presumption of correctness and Summers has failed to show by clear and convincing evidence that the findings are erroneous, the Court hereby adopts these factual findings. See Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985), and 28 U.S.C. 2254(e)(1). 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conservator estates and who served as a court-appointed fiduciary, was charged with more than eighty felony counts in three indictments for having misappropriated the funds of at least eighty-nine victims during a period of about ten years, which resulted in losses of over two million dollars. Answer, Ex. I, pp. 1-2. On October 15, 1997, and October 20, 1997, Marilyn Gene Summers ("Summers") was examined by psychologist Gary Perrin, Ph.D., upon a referral by counsel who requested Summers be examined relative to her general psychological status as it may relate to the criminal charges against her. Supp. Answer, Ex. R, internal exhibit. Dr. Perrin administered standardized tests and reviewed the records of Dr. Steven Bupp, Gale Calloll, Ph.D., and John Tinone, Ph.D. In his report, Dr. Perrin stated: Ms. Summers appeared her stated age. She was well-oriented in all spheres. Attention, concentration, and memory abilities were grossly intact, although she reported having some deficient attentional abilities related to her depression. Insight and judgment were variable. Range of affect was within normal limits. Mood was variable from euthymic to dysphoric. Rate of speech was consistent with emotional content. Psychomotor activity was within normal limits. There were no indications that she was experiencing auditory or visual hallucinations, delusions, or other signs of psychosis or mania at the time of the examination. There were no indications that she presented a foreseeable risk of danger to herself or others. ***** . . . The test results reflected her current level of substantial psychological distress. There were no indications that she was experiencing a psychotic disorder or a disorder related to impaired brain function. Ms. Summers' test results reflected the presence of high levels of anxiety, tension, self-doubt, inadequacy and guilt. She tends to ruminate frequently at present, has difficulty concentrating, and is preoccupied with her current problems, feelings of guilt, and worries about her future. She reportedly views herself as a condemned person. She also has symptoms of depression, including depressed mood, disrupted sleep, feelings of hopelessness, withdrawal, and low levels of energy. ***** . . . Ms. Summers does not exhibit a profile that would be classified as characteristic of psychopathy. . . . It appears that Ms. Summers did not have a major psychological disorder at the time of the alleged offenses. Her current depression and anxiety appear to be the effects of her current legal situation. Although Ms. Summers utilized the terms "addiction" and "compulsion" to describe her behavior, there is no evidence that she was addicted or had compulsions in a clinical or diagnostic sense. -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. On November 12, 1997, Summers entered into a plea agreement that provided that she would plead guilty to five counts2 and would be subject to a sentence range from one to 32.5 years in prison at the discretion of the court. On December 15, 1997, Summers was sentenced to a total of 20 years imprisonment, seven years of consecutive probation, and ordered to pay restitution in an amount over $1.5 million. On March 10, 1998, Summers filed a Notice of Post-Conviction Relief pursuant to Ariz.R.Crim.P. 32. The Petition for Post-Conviction Relief was filed on May 19, 2000. The post-conviction court denied relief on March 7, 2001. The Arizona Court of Appeals summarized Summers' ineffective assistance claims as follows: In her Rule 32 petition, Summers claimed that trial counsel had been ineffective for failing to seek a change of venue and that, as a result of the pretrial publicity, which included a report of the charges against her in a probate newsletter authored by then-presiding probate judge Margaret Houghton, other judges on the same court had a conflict of interest and would likely be biased against her. Additionally, she contended that counsel had coerced her into entering her guilty plea, that counsel had failed to consider her mental status at the time he urged her to enter the plea, and that counsel had failed to thoroughly investigate her mental status, She claimed that, had counsel investigated her mental status, he would have discovered she suffers from a mental illness, specifically, a severe personality disorder. Summers attached to the Rule 32 petition the report of her April 2000 psychological evaluation by Joseph Geffen, Ph.D., in which he diagnosed her as suffering from a personality disorder but stated that she was relatively stable at that time. He also reiterated her statements to him about how confused she claims she was when she entered her guilty plea because of the medication she was taking for depression, sleep difficulties, and stress because of the pending charges. Summers also attached the affidavit of defense counsel in which he conceded that he might have been ineffective in not further investigating her mental status at the time she entered her plea. Summers argued that, had counsel discovered the depth of her mental problems and the severity of her purported confusion, he would have been more careful in presenting and explaining the plea agreement to her. She insisted that she had not completely understood the plea agreement and the consequences of entering into it, that counsel had misinformed her (or she simply had not understood), particularly, about the terms of the agreement, the sentencing possibilities, and that her guilty plea had not been knowing, voluntary, or intelligent. Summers also contended that counsel had been ineffective in not hiring an accountant to "determine a realistic figure of restitution" and, therefore, he had been unprepared to represent her at the restitution hearing. Finally, she Summers was convicted of two counts of perjury by a false sworn statement, two counts of theft by control or conversion, and one count of fraudulent scheme and artifice. -32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claimed the court had erred by including in its order of restitution interest on the amounts it had ordered her to pay. Answer, Ex. I, pp. 2-3. Summers also raised claims that her guilty plea was not voluntarily and intelligently entered into and that it was improper to order interest on the restitution. The Court of Appeals granted review but denied relief on April 16, 2002. The Supreme Court of Arizona summarily denied review on October 31, 2002. The Court of Appeals issued its mandate on December 12, 2002. On December 12, 2003, Summers' filed a Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. 2254. On March 9, 2004, the court issued an Order finding the original petition contained both exhausted and unexhausted claims. The court dismissed without prejudice the original petition, "leaving [Summers] with the choice of returning to state court to exhaust her claims or of amending or resubmitted the habeas petition to present only exhausted claims to the district court." March 9, 2004, Order, p.3. The court advised Summers that, "by amending the Petition to present only exhausted claims, Petitioner will be presumed to have deliberately waived her right to raise any constitutional errors or deprivations other than those set forth in her amended habeas petition, and . . . that all grounds alleged in her original Petition which are not alleged in any amended petition will be waived." Id. at 4. An Amended Petition was filed on April 2, 2004. The Amended Petition asserts that Summers was denied effective assistance of counsel in connection with her change of plea and sentencing. Specifically, Summers asserts counsel was deficient in the following ways: 1. Although counsel believed Summers suffered from a serious mental illness, counsel failed to investigate Summers' capacity to appreciate the wrongfulness of her conduct at the time of the offenses. 2. Counsel failed to consult with or retain an accountant to review the thousands of pages of documents, many of which related to financial records. Additionally, counsel failed to properly investigate and rebut the state's accounting testimony. -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Counsel failed to seek a change of venue even though the charges arose from probate and conservatorship matters adjudicated in the Pima County Superior Court. 4. 5. Counsel did not seek or obtain a cap on the prison sentence she was facing. Counsel was unaware of statutory sentencing changes which applied to offenses that occurred after January 1, 1994, and which substantially reduced the availability of early release credits. Additionally, counsel misinformed Summers about early release eligibility. 6. Counsel failed to inform Summers that her sentences could be imposed consecutively. 7. Counsel failed to adequately investigate or challenge in court Summers' mental capacity to accept a change of plea or otherwise participate in change of plea proceedings. 8. Although aware of Summers' symptoms of impaired capacity to rationally evaluate a plea offer, counsel only permitted Summers eight minutes to consider the plea offer before accepting or rejecting it. 9. Counsel failed to advise Summers that some of the claims that she was pleading guilty to could not be proven by the State. 10. Counsel failed to object to the introduction of inadmissible evidence at the time of sentencing. 11. Counsel never discussed the contents of the state's sentencing memorandum with her, nor did counsel ask her to assist him in refuting factual allegations contained in the memorandum. 12. Counsel never sought a change of venue and failed to voir dire the sentencing judge regarding a memorandum that included damning statements about Summers that was circulated by the presiding probate judge of the Pima County Superior Court. 13. Counsel failed to address the sentencing court's presumptions regarding -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 consecutive sentences. 14. Counsel failed to object to the assessment of interest on the restitution orders which was prohibited under state law. See, Amended Petition, pp. 2-5. Summers also asserts that her guilty plea was not knowingly, intelligently, and voluntarily made on the following grounds: 1. 2. 3. Counsel misinformed Summers regarding early release eligibility. Counsel failed to inform her that her sentences could run consecutively. Counsel failed to adequately investigate and challenge her mental capacity to accept a change of plea or otherwise participate in change of plea proceedings. 4. Summers was not permitted sufficient time to decide whether to accept or reject the plea offer. 5. Counsel failed to advise her that some of the claims that she was pleading guilty to could not be proven by the state. Id. at 5-6.3 Respondents filed an Answer on July 2, 2004. On June 7, 2005, a district court judge denied the petition as time-barred. The case was reassigned to this Court. Summers appealed to the Ninth Circuit Court of Appeals. On March 13, 2007, the appellate court issued an opinion holding that Summers' Ariz.R.Crim.P. 32 "of-right proceeding was a form of direct review under 2244(d)(1)(A)[.]" Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007). Therefore, the "AEDPA's statute of limitations did not begin to run until 90 days after the Arizona Supreme Court denied her petition for review on October 31, 2002 . . . Therefore, Summers had until January 29, 2004 to file her petition for federal habeas relief, and her December 12, 2003 petition was timely Included in the original Petition, but not in the Amended Petition, is a claim that Summers' sentence constitutes cruel and unusual punishment and post-conviction counsel was ineffective for failing to raise that issue. -6- 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 filed." Id. The appellate court reversed and remanded this matter. On April 14, 2008, Respondents filed a supplemental Answer. On June 27, 2008, Summers filed a Traverse. II. Standard of Review Federal courts may consider a state prisoner's petition for habeas relief only on the grounds that the prisoner's confinement violates the Constitution, laws, or treaties of the United States. See Reed v. Farley, 512 U.S. 339, 347, 114 S.Ct. 2291, 2296, 129 L.Ed.2d 271 (1994). Indeed, a habeas corpus petition by a person in state custody: shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. 2254(d); see also Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). General improprieties occurring in state proceedings are cognizable only if they resulted in fundamental unfairness and consequently violated a petitioner's Fourteenth Amendment right to due process. See generally, Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479, 116 L.Ed.2d 385 (1991). This Court must review claims consistent with the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). "The Act limits the ability of federal courts to reexamine questions of law and mixed questions of law and fact." Jeffries v. Wood, 114 F.3d 1484, 1498 (9th Cir. 1997). Indeed, the AEDPA creates "an independent, high standard to meet before a federal court may issue a writ of habeas corpus to set aside state-court rulings." Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007), citations omitted. This Court may only overturn a state court finding if a petitioner shows by clear and convincing evidence that the finding was erroneous. See 28 U.S.C. 2254(e)(1). An "unreasonable application of clearly established law" exists if the state court identified the correct governing legal principle -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from Supreme Court decisions but unreasonably applied that principle to the facts of the case. See Taylor. III. Statute of Limitations Under the AEDPA, a state prisoner must generally file a petition for writ of habeas corpus within one year from the date upon which his judgment became final or the expiration of time for seeking such review. See 28 U.S.C. 2244(d)(1)(A). As determined by the Ninth Circuit, Summers' Petition was timely filed. IV. Exhaustion of State Remedies Before a federal court may review a petitioner's claims on the merits, a petitioner must exhaust her state remedies, i.e., have presented in state court every claim raised in the federal habeas petition. See Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999) (a state prisoner in a federal habeas action must exhaust his claims in the state courts "by invoking one complete round of the State's established appellate review process" before he may submit those claims in a federal habeas petition); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). Exhaustion of state remedies is required in order to give the "State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights . . . To provide the State with the necessary opportunity, the prisoner must fairly present his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004), internal quotation marks and citations omitted. In Arizona, exhaustion is satisfied if a claim is presented to the Arizona Court of Appeals. A discretionary petition for review to the Supreme Court of Arizona is not -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 necessary for purposes of federal exhaustion.4 Swoopes, 196 F.3d at 1010; State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989) (in non-capital cases, state remedies are exhausted by review by the court of appeals). A claim is "fairly presented" if the petitioner has described the operative facts and legal theories on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). In state court, the petitioner must describe not only the operative facts but also the asserted constitutional principle. The United States Supreme Court has stated: If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995). A petitioner does not ordinarily "fairly present" a federal claim to a state court if that court must read beyond a petition, brief, or similar papers to find material that will alert it to the presence of a federal claim. See e.g., Baldwin, 541 U.S. at 33 (rejecting contention that petition fairly presented federal ineffective assistance of counsel claim because "ineffective" is a term of art in Oregon that refers only to federal law claims since petitioner failed to demonstrate that state law uses "ineffective assistance" as referring only to federal law rather than a similar state law claim); Harless, 459 U.S. at 6 (holding that mere presentation of facts necessary to support a federal claim, or presentation of state claim similar to federal claim, is insufficient; petitioner must "fairly present" the "substance" of the federal claim); Hivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner In light of the Ninth Circuit's specific consideration in Swoopes of Sandon, Arizona's procedurals laws, and the Supreme Court's response to certified questions from the Ninth Circuit in Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998), this Court finds a discretionary petition for review to the Supreme Court is not necessary for purposes of federal exhaustion. See also Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005). -9- 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 presented claim in state court only on state grounds), cert. denied, 529 U.S. 1009 (2000); Gatlin v. Madding, 189 F.3d 882 (9th Cir. 1999) (holding that petitioner failed to "fairly present" federal claim to state courts where he failed to identify the federal legal basis for his claim), cert. denied, 52 U.S. 1087. V. Procedural Default The Ninth Circuit Court of Appeals has explained the distinction between exhaustion and procedural default as follows: The exhaustion requirement is distinct from the procedural default rule. The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner's claims and that opportunity may still be available to the petitioner under state law. In contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but declined to reach the issue for procedural reasons, or if it is clear that the state court would hold the claim procedurally barred. Thus, in some circumstances, a petitioner's failure to exhaust a federal claim in state court may cause a procedural default. A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer 'available' to him. A federal claim that is defaulted in state court pursuant to an adequate and independent procedural bar may not be considered in federal court unless the petitioner demonstrates cause and prejudice for the default, or shows that a fundamental miscarriage of justice would result if the federal court refused to consider the c l a i m. Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005), internal quotation marks and citations omitted. In other words, a habeas petitioner's claims may be precluded from federal review in either of two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, the claim may be procedurally defaulted in federal court if the petitioner failed to present the claim in a necessary state court and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Id. at 735 n. 1. This is often referred to as "technical" exhaustion because although the claim was not actually exhausted in state court, the petitioner no longer has an available state remedy. See id. at 732 ("A habeas petitioner who has - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer 'available' to him."). If a claim is procedurally defaulted, it may not be considered by a federal court unless the petitioner demonstrates cause and prejudice to excuse the default in state court, or that a fundamental miscarriage of justice would result. Id. at 753; Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). If a claim has never been fairly presented to the state court, a federal habeas court may determine whether state remedies remain unavailable. See Harris v. Reed, 489 U.S. 255, 269-70, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Teague v. Lane, 489 U.S. 288, 298-99, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989). A. Ineffective Assistance of Counsel Failure to Investigate Summer's Capacity to Appreciate the Wrongfulness of Her Conduct at the Time of the Offenses Summers asserts that, although counsel believed Summers suffered from a serious mental illness, counsel failed to investigate Summers' capacity to appreciate the wrongfulness of her conduct at the time of the offenses. Respondents argue that this issue was not presented to the post-conviction court or to the Arizona Court of Appeals although Summers asserted in post-conviction proceedings that counsel was ineffective, she did not present this basis as an ineffective assistance of counsel claim. Summers argues, however, that, although her federal claims have been reformulated from the state claims, the substance of the federal claims have been fairly presented. Tampua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986), abrogated on other grounds. The Ninth Circuit Court of Appeals has subsequently determined, however, that new bases for ineffective assistance of counsel claims that were not raised in the state proceedings are not exhausted. Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005). The Court's review indicates that this claim was presented to the post-conviction court. See, Supp. Answer, Ex. M, pp. 4-5 (In discussing the report of Dr. Joseph Geffen, Summers states that "[i]t was incumbent on trial counsel to obtain a proper evaluation of [Summers] . . - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . for purposes of mitigation.").5 However, this claim was not presented to the Arizona Court of Appeals. Indeed, Summers appeared to be asserting the opposite in her Petition for Review: "[Summers] is only claiming that the emotional distress, in conjunction with the other facts of the case, created a situation which could not have rendered the plea to be entered into voluntarily. . . . The mental state had nothing to do with the actual charges. It does relate, however, to the acceptance of the plea agreement[.]" Supp. Answer, Ex. V, p. 19. The Court finds this claim was not fairly presented to the state appellate court and, therefore, this claim has not been exhausted. Moreover, if Summers would now be procedurally barred from presenting this issue to the state courts, this claim would be technically exhausted. Summers asserts that she may be able to return to the state courts to assert a claim of ineffective assistance of post-conviction counsel. However, if Summers were to fairly present this issue in a subsequent Petition for Post-Conviction Relief, such presentation would be untimely. Moreover, this claim does not qualify for any of the timeliness exceptions: (d) (e) (f) (g) (h) The person is being held in custody after the sentence imposed has expired; Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence . . . ; The defendant's failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on the defendant's part; or There has been a significant change in the law that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence; or The defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt, or that the court would not have imposed the death penalty. Rules 32.1 and 32.4(a), Ariz.R.Crim.P. Such a new petition, therefore, would be subject to summary dismissal. State v. Rosario, 195 Ariz. 264, 266, 987 P.2d 226, 228 (App. The Petition for Post-Conviction Relief also states, however, that counsel "considered [Summer's mental condition as it related to the offenses, and he was unable to show that she had suffered from any mental condition during the time that she actually committed the offenses." Supp. Answer, Ex. M, p.4. - 12 - 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1999); State v. Jones, 182 Ariz. 432, 897 P.2d 734 (App. 1995); Moreno v. Gonzales, 192 Ariz. 131, 135, 962 P.2d 205, 209 (1998) (timeliness is a separate inquiry from preclusion). This claim is technically exhausted and, therefore, procedurally defaulted.6 Park v. California, 202 F.3d 1146, 1150-51 (9th Cir. 2000) (federal habeas review is precluded where prisoner has not raised his claim in the state courts and the time for doing so has expired). B. Ineffective Assistance of Counsel Failure to Inform Summers that Her Sentences Could be Imposed Consecutively Summers asserts that counsel failed to inform Summers that her sentences could be imposed consecutively. Respondents argue that this issue was not presented to the post-conviction court or to the Arizona Court of Appeals. Summers asserts that the claim was presented as a failure to provide sufficient information for Summers to conduct a "risk-benefit" analysis. See Supp. Answer, Ex. M, pp.7-8 ("Because of the manner in which the plea was negotiated, the defendant was deprived of the basic information she needed to be able to make an informed decision on whether to accept or reject the plea. She needed to make the proper risk-benefit analysis in order to make a voluntary, intelligent and reasoned decision of whether to accept or reject the plea."); see also id., at p. 20, citations omitted ("It is impossible to effectively perform the risk-benefit analysis if either the risk or the benefit is unknown or erroneous. The defendant was Because this claim is procedurally defaulted pursuant to Rule 32.4(a), Ariz.R.Crim.P., this Court need not determine whether the claim is of "sufficient constitutional magnitude" to require a knowing, voluntary, and intelligent waiver such that the claim is precluded pursuant to Cassett. Moreover, the procedural timeliness bar of Rule 32.4(a), Ariz.R.Crim.P., is clear, consistently applied, and well established. Powell v. Lambert, 357 F.3d 871 (9th Cir. 2004); see e.g., State v. Rosario, 195 Ariz. 264, 987 P.2d 226 (App. 1999) (where petition did not raise claims pursuant to Rule 32.1(d) through (g), the petition could be summarily dismissed if untimely); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998) (timeliness provision of Rule 32.4(a) became effective September 20, 1992); State v. Jones, 182 Ariz. 432, 897 P.2d 734 (App. 1995) (Rule 32.4(a) was amended to "address potential abuse by defendants caused by the old rule's unlimited filing periods"). - 13 - 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 entitled to rely on the actual facts in order to make a risk-benefit analysis to determine whether to enter into the plea. Without the proper information from counsel, the defendant was unable to make an intelligent and voluntary plea through the risk-benefit analysis. She was effectively prevented from make a clear and rational decision whether to plead guilty or withdraw from the plea and proceed to trial. The defendant needed to be apprised of all aspects of the case, charges, defenses, and potential exposure, so that she would properly weigh the risk versus the benefit in accepting or rejecting the plea.").7 However, there is no discussion that the risk-benefit analysis did not include consideration of consecutive sentences based on counsel's ineffectiveness. Indeed, the only statement possibly related to this issue was set forth in the Petition for PostConviction Relief: "[Counsel] stated that, at the time, there was a presumption that the duration of imprisonment for the offenses would be run concurrently, and he found it strange when the court indicated that there were no factors to cause her to consider running them concurrently. However, [counsel] never challenged that statement." Supp. Answer, Ex. M, p. 12. This discussion addresses whether counsel should have challenged the sentencing court, not whether counsel had discussed consecutive sentences with Summers. Indeed, Summers stated in her Petition for Review that "she knew the available consequences of the plea." Supp. Answer, Ex. V. p. 18. Moreover, in asserting that the post-conviction court failed to deal with certain issues, Summers did not assert that the post-conviction court failed to address this issue. See Supp. Answer, Ex. V. p. ii ("The Court did not deal with certain issues asserted as claims in the petition for postconviction relief. She failed to address the issue of a conflict with the court as it related to a change of venue, and she failed to address the improper interest placed on restitution, when the amount of restitution is to this day, still in dispute, and it was improper for interest to be added pursuant to State v. Foy, 176 Ariz. 166, 859 P.2d 789 (App. 1993)."). The Court notes that the Petition for Post-Conviction Relief and the Petition for Review also discussed how counsel needed to be concerned with the maximum sentence exposure that Summers faced. Supp. Answer, Ex. M, p. 21; Supp. Answer, Ex. V. p. 17. - 14 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Although Summers asserted in post-conviction proceedings that counsel was ineffective, she did not present this basis as an ineffective assistance of counsel claim. New bases for ineffective assistance of counsel claims that were not raised in the state proceedings are not exhausted. Moormann, 426 F.3d at 1056. The Court finds this claim has not been exhausted. Moreover, if Summers were to fairly present this issue in a subsequent Petition for Post-Conviction Relief, such presentation would be untimely. Ariz.R.Crim.P. 32.1 and 32.4(a). Such a new petition, therefore, would be subject to summary dismissal. Rosario, 195 Ariz. at 266, 987 P.2d at 228; Moreno, 192 Ariz. at 135, 962 P.2d at 209. This claim, therefore, is technically exhausted and, therefore, procedurally defaulted. Park, 202 F.3d at 1150-51. C. Ineffective Assistance of Counsel Failure to Advise Summers that Some of the Pleaded-To Claims Could Not be Proven by the State Summers asserts that counsel failed to advise Summers that some of the claims that she was pleading guilty to could not be proven by the state. Respondents argue that this issue was not presented to the post-conviction court or to the Arizona Court of Appeals. Summers asserts that her affidavit, attached in support of the Petition for Post-Conviction Relief, fairly presented the claim.8 See Supp. Answer, Ex. M, internal exhibit A, 8 (". . . I was very uncomfortable pleading to perjury on the Robles Estates, because the Inventory and Appraisement amount was the correct amount at the time. When I discussed this with [counsel], he told me not to say anything about that to the court, but to just plead guilty to the charge."). The Ninth Circuit has not addressed whether merely referencing a possible claim in an attachment, without argument in support of the claim, is sufficient to fairly present the claim. See Insyxiengmay v. Morgan, 403 F.3d 657 (9th Cir. 2005) (claims were fully and fairly presented where petitioner presented extensive argument and authority in support of claims in appendix). Indeed, "a state prisoner does The Court notes that the attached copy of the affidavit is not signed. However, a copy of the same affidavit, which is signed, was attached to the Petition for Review. 8 - 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not `fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Baldwin, 541 U.S. at 32, 124 S.Ct. at 1351. Although Summers asserted in post-conviction proceedings that counsel was ineffective, she did not present this basis as an ineffective assistance of counsel claim. New bases for ineffective assistance of counsel claims that were not raised in the state proceedings are not exhausted. Moormann, 426 F.3d at 1056. The Court finds this claim has not been exhausted. Moreover, if Summers were to fairly present this issue in a subsequent Petition for Post-Conviction Relief, such presentation would be untimely. Ariz.R.Crim.P. 32.1 and 32.4(a). Such a new petition, therefore, would be subject to summary dismissal. Rosario, 195 Ariz. at 266, 987 P.2d at 228; Moreno, 192 Ariz. at 135, 962 P.2d at 209. This claim is technically exhausted and, therefore, is procedurally defaulted. Park, 202 F.3d at 1150-51. D. Ineffective Assistance of Counsel Failure to Address Sentencing Court's Misunderstanding of the Law as to Consecutive Sentences Summers asserts counsel failed to address the sentencing court's presumptions regarding consecutive sentences.9 Respondents, citing to Ex. R at 17, assert that this claim was presented to the appellate court. That exhibit is the State's Response to the Petition for Post-Conviction Relief. Further, page 17 does not address this claim. Moreover, the Court's review indicates that while this claim was arguably presented to the post-conviction court, see Supp. Answer, Ex. M., p. 12, ("[Counsel] stated that, at the time, there was a presumption that the duration of imprisonment for the offenses would The Court notes that Summers has simply failed to provide any information as to the basis of her claim. During the plea proceeding, the court confirmed with counsel which offenses were subject to consecutive sentences and confirmed that Summers was aware of that possibility. Indeed, in informing Summers of the range of sentences, the court stated the range from the low end of concurrent sentences to the high end of consecutive sentences. It is clear the court was aware that the decision of whether to impose a consecutive sentence was in her discretion. - 16 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be run concurrently, and he found it strange when the court indicated that there were no factors to cause her to consider running them concurrently. However, [counsel] never challenged that statement."), this claim was not presented to the Arizona Court of Appeals. Although Summers asserted in post-conviction proceedings that counsel was ineffective, she did not present this basis as an ineffective assistance of counsel claim. New bases for ineffective assistance of counsel claims that were not raised in the state proceedings are not exhausted. Moormann, 426 F.3d at 1056. The Court finds this claim has not been exhausted. Moreover, if Summers were to fairly present this issue in a subsequent Petition for Post-Conviction Relief, such presentation would be untimely. Ariz.R.Crim.P. 32.1 and 32.4(a). Such a new petition, therefore, would be subject to summary dismissal. Rosario, 195 Ariz. at 266, 987 P.2d at 228; Moreno, 192 Ariz. at 135, 962 P.2d at 209. This claim is technically exhausted and, therefore, is procedurally defaulted. Park, 202 F.3d at 1150-51. E. Ineffective Assistance of Counsel Remaining Claims Additionally, Summers asserts that counsel provided ineffective assistance of counsel as follows: 1. counsel failed to consult with or retain an accountant to review the thousands of pages of documents, many of which related to financial records; 2. counsel failed to properly investigate and rebut the state's accounting t e s t i mo n y ; 3. counsel failed to seek a change of venue even though the charges arose from probate and conservatorship matters adjudicated in the Pima County Superior Court; 4. 5. counsel did not seek or obtain a cap on the prison sentence she was facing; counsel was unaware of statutory sentencing changes which applied to offenses that occurred after January 1, 1994, and which substantially - 17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reduced the availability of early release credits; 6. 7. counsel misinformed Summers about early release eligibility; counsel failed to adequately investigate or challenge in court Summers' mental capacity to accept a change of plea or otherwise participate in change of plea proceedings; 8. although aware of Summers' symptoms of impaired capacity to rationally evaluate a plea offer, counsel only permitted Summers eight minutes to consider the plea offer before accepting or rejecting it; 9. counsel failed to object to the introduction of inadmissible evidence at the time of sentencing; 10. counsel never discussed the contents of the state's sentencing memorandum with her and did not ask her to assist him in refuting factual allegations contained in the memorandum; 11. counsel never sought a change of venue and failed to voir dire the sentencing judge regarding a memorandum that included damning statement about Summers that was circulated by the presiding probate judge of the Pima County Superior Court, and; 12. counsel failed to object to the assessment of interest on the restitution orders which was prohibited under state law. The Court finds these claims were fairly presented to the state courts and that these claims have been exhausted. F. Guilty Plea as Not Knowingly, Intelligently and Voluntarily Entered Into Counsel Misinforming Summers Regarding Early Release Eligibility Summers asserts that her guilty plea was not knowingly, intelligently, and voluntarily made based on counsel's misinformation to Summer's regarding early-release eligibility. Respondents argue that this claim was only presented to the state courts as an ineffective assistance of counsel claim. However, Summers did present this claim to the - 18 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 post-conviction court. See Supp. Answer, Ex. M, p, 22 ("Defense counsel never considered the fact that the charges were post-1995, and he failed to consider that the defendant could be subjected to the maximum sentence available. If he never considered it, he certainly did not convey adequate information to his client in order for her to make an informed decision whether to accept the plea agreement."). Additionally, Summers presented this claim to the Arizona Court of Appeals. See Supp. Answer, Ex. V. p, 3. However, Summers did not cite to any federal authority regarding the requirement of a knowing and voluntary plea of guilty in her Petition for Review. See Connor, 404 U.S. at 227-28 (raising a claim that is "somewhat similar" in state court does not fairly present a claim for federal habeas review); see also Ruiz v. Quarterman, 460 F.3d 638, 643 (5th Cir. 2006) ("An argument based on a legal theory distinct from that relied upon in the state court does not meet the exhaustion requirement."); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) ("If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court."). Rather, Summers only cited to state authority regarding plea requirements in the state courts. The Court finds this claim was not "fairly presented" to the state courts. Anderson, 459 U.S. at 6 (A claim is "fairly presented" if the petitioner has described the operative facts and legal theories on which his claim is based.). The Court finds this claim has not been exhausted. Moreover, if Summers were to fairly present this issue in a subsequent Petition for Post-Conviction Relief, such presentation would be untimely. Ariz.R.Crim.P. 32.1 and 32.4(a). Such a new petition, therefore, would be subject to summary dismissal. Rosario, 195 Ariz. at 266, 987 P.2d at 228; Moreno, 192 Ariz. at 135, 962 P.2d at 209. This claim is procedurally defaulted and, therefore, technically exhausted. Park, 202 F.3d at 115051. ..... ..... - 19 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G. Guilty Plea as Not Knowingly, Intelligently and Voluntarily Entered Into Counsel Failing to Inform Summers that Sentences May be Consecutive Summers asserts that her guilty plea was not knowingly, intelligently, and voluntarily made because counsel did not inform her that her sentence could be imposed consecutively. Respondents argue that this issue was not presented to the post-conviction court or to the Arizona Court of Appeals. Summers asserts that the claim was presented as a failure to provide sufficient information for Summers to conduct a "risk-benefit" analysis. See Supp. Answer, Ex. M, pp.7-8 ("Because of the manner in which the plea was negotiated, the defendant was deprived of the basic information she needed to be able to make an informed decision on whether to accept or reject the plea. She needed to make the proper risk-benefit analysis in order to make a voluntary, intelligent and reasoned decision of whether to accept or reject the plea."); see also id., at p. 20, citations omitted ("It is impossible to effectively perform the risk-benefit analysis if either the risk or the benefit is unknown or erroneous. The defendant was entitled to rely on the actual facts in order to make a risk-benefit analysis to determine whether to enter into the plea. Without the proper information from counsel, the defendant was unable to make an intelligent and voluntary plea through the risk-benefit analysis. She was effectively prevented from make a clear and rational decision whether to plead guilty or withdraw from the plea and proceed to trial. The defendant needed to be apprised of all aspects of the case, charges, defenses, and potential exposure, so that she would properly weigh the risk versus the benefit in accepting or rejecting the plea.").10 However, there is no discussion that the risk-benefit analysis did not include consideration of consecutive sentences based on counsel's ineffectiveness. Indeed, the only statement possibly related to this issue was set forth in the Petition for Post-Conviction Relief: "[Counsel] stated that, at the time, there was a presumption that the duration of imprisonment for the The Court notes that the Petition for Post-Conviction Relief and the Petition for Review also discussed how counsel needed to be concerned with the maximum sentence exposure that Summers faced. Supp. Answer, Ex. M, p. 21; Supp. Answer, Ex. V. p. 17.. 10 - 20 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 offenses would be run concurrently, and he found it strange when the court indicated that there were no factors to cause her to consider running them concurrently. However, [counsel] never challenged that statement." Supp. Answer, Ex. M, p. 12. This discussion addresses whether counsel should have challenged the sentencing court, not whether counsel had discussed consecutive sentences with Summers. Indeed, Summers stated in her Petition for Review that "she knew the available consequences of the plea." Supp. Answer, Ex. V. p. 18. Moreover, in asserting that the post-conviction court failed to deal with certain issues, Summers did not assert that the post-conviction court failed to address this issue. See Supp. Answer, Ex. V. p. ii ("The Court did not deal with certain issues asserted as claims in the petition for post-conviction relief. She failed to address the issue of a conflict with the court as it related to a change of venue, and she failed to address the improper interest placed on restitution, when the amount of restitution is to this day, still in dispute, and it was improper for interest to be added pursuant to State v. Foy, 176 Ariz. 166, 859 P.2d 789 (App. 1993)."). This claim was not fairly presented to the state courts. See Connor, 404 U.S. at 227-28; see also Anderson, 459 U.S. at 6. Moreover, Summers did not cite to any federal authority regarding the requirement of a knowing and voluntary plea of guilty in her Petition for Review. The Court finds this claim has not been exhausted. Moreover, Summers' claim would be untimely if she would now present it in a subsequent petition. Ariz.R.Crim.P. 32.1 and 32.4(a). Such a new petition, therefore, would be subject to summary dismissal. Rosario, 195 Ariz. at 266, 987 P.2d at 228; Moreno, 192 Ariz. at 135, 962 P.2d at 209. This claim is procedurally defaulted and, therefore, technically exhausted. Park, 202 F.3d at 1150-51. H. Guilty Plea as Not Knowingly, Intelligently and Voluntarily Entered Into Counsel Failing to Adequately Investigate Mental Capacity Summers asserts that her guilty plea was not knowingly, intelligently, and voluntarily made because counsel failed to adequately investigate and challenge her mental capacity to accept a change of plea or otherwise participate in change of plea - 21 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 proceedings. Respondents do not dispute that this claim was presented to the state courts. However, the Court's review indicates Summers did not cite to any federal authority regarding the requirement of a knowing and voluntary plea of guilty in her Petition for Review. See Johnson, 88 F.3d at 830 ("If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court."). The Court finds this claim was not "fairly presented" to the state courts. The Court finds this claim has not been exhausted. Moreover, if Summers were to fairly present this issue in a subsequent Petition for Post-Conviction Relief, such presentation would be untimely. Ariz.R.Crim.P. 32.1 and 32.4(a). Such a new petition, therefore, would be subject to summary dismissal. Rosario, 195 Ariz. at 266, 987 P.2d at 228; Moreno, 192 Ariz. at 135, 962 P.2d at 209. This claim is procedurally defaulted and, therefore, technically exhausted. Park, 202 F.3d at 115051. However, because Respondents have not argued that this claim was not fairly presented to the appellate court, this Court will review this claim. See infra section VII.E. I. Guilty Plea as Not Knowingly, Intelligently and Voluntarily Entered Into Insufficient Time to Determine Whether to Accept or Reject Plea Offer Summers asserts that her guilty plea was not knowingly, intelligently, and voluntarily made because Summers was not permitted sufficient time to decide whether to accept or reject the plea offer. Respondents do not dispute that this claim was presented to the state courts. However, the Court's review indicates Summers did not cite to any federal authority regarding the requirement of a knowing and voluntary plea of guilty in her Petition for Review. See Johnson, 88 F.3d at 830 ("If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court."). The - 22 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court finds this claim was not "fairly presented" to the state courts. The Court finds this claim has not been exhausted. Moreover, if Summers were to fairly present this issue in a subsequent Petition for Post-Conviction Relief, such presentation would be untimely. Ariz.R.Crim.P. 32.1 and 32.4(a). Such a new petition, therefore, would be subject to summary dismissal. Rosario, 195 Ariz. at 266, 987 P.2d at 228; Moreno, 192 Ariz. at 135, 962 P.2d at 209. This claim is procedurally defaulted and, therefore, technically exhausted. Park, 202 F.3d at 115051. However, because Respondents have not argued that this claim was not fairly presented to the appellate court, this Court will review this claim. See infra section VII.E. J. Guilty Plea as Not Knowingly, Intelligently and Voluntarily Entered Into Counsel Failing to Advise Summers that Some of the Charges Could Not be Proven by the State Summers asserts that her guilty plea was not knowingly, intelligently, and voluntarily made because counsel did not inform her that the State could not prove some of the charges against her. Respondents assert this claim was not fairly presented to the state courts. See Connor, 404 U.S. at 227-28; see also Anderson, 459 U.S. at 6. Summers asserts that her affidavit, attached in support of the Petition for Post-Conviction Relief, fairly presented the claim. See Supp. Answer, Ex. M, internal exhibit A, 8 (". . . I was very uncomfortable pleading to perjury on the Robles Estates, because the Inventory and Appraisement amount was the correct amount at the time. When I discussed this with [counsel], he told me not to say anything about that to the court, but to just plead guilty to the charge."). The Ninth Circuit has not addressed whether merely referencing a possible claim in an attachment, without argument in support of the claim, is sufficient to fairly present the claim. See Insyxiengmay; Baldwin. Moreover, Summers did not cite to any federal authority regarding the requirement of a knowing and voluntary plea of guilty in her Petition for Review. The Court finds this claim has not been exhausted. - 23 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moreover, Summers' claim would be untimely if presented in a second petition for postconviction relief. Ariz.R.Crim.P. 32.1 and 32.4(a). Such a new petition, therefore, would be subject to summary dismissal. Rosario, 195 Ariz. at 266, 987 P.2d at 228; Moreno, 192 Ariz. at 135, 962 P.2d at 209. This claim is procedurally defaulted and, therefore, technically exhausted. Park, 202 F.3d at 1150-51. VI. Cause and Prejudice Analysis As to Summers' procedurally defaulted claims, federal habeas review is barred unless Summers demonstrates "cause for the default and prejudice attributable thereto, or demonstrates that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 749-750 (citations omitted; internal quotation marks omitted); Correll v. Stewart, 137 F.3d 1404, 1411 (9th Cir. 1998), citing Keeney v. Tamayo-Reyes, 504 U.S. 1, 11, 112 S.Ct. 1715, 1721, 118 L.Ed.2d 318 (1992) (generally, if a petitioner "has failed to develop material facts in state court proceedings, he or she must demonstrate adequate cause for his or her failure and actual prejudice resulting from that failure). Cause is defined as a "legitimate excuse for the default," and prejudice is defined as "actual harm resulting from the alleged constitutional violation." Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991) (citation omitted); Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (a showing of cause requires a petitioner to show that "some objective factor external to the defense impeded counsel's efforts" to raise the claim in state court). Prejudice need not be addressed if a petitioner fails to show cause. Murray. To bring herself within the narrow class of cases that implicate a fundamental miscarriage of justice, a petitioner "must come forward with sufficient proof of [her] actual innocence[.]" Sistrunk v. Armenakis, 292 F.3d 669, 672-73 (9th Cir. 2002), citations omitted. "Actual innocence can be shown when a petitioner 'presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'" Sistrunk, 292 F.3d at 673, quoting Schlup v. - 24 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Summers asserts that ineffective assistance of post-conviction counsel, for failing to raise the defaulted claims, presents cause. United States v. De La Fuente, 8 F.3d 1333, 1336-37 (9th Cir. 1993). However, Summers has not provided any reason why she did not file a timely successive petition for post-conviction relief alleging her claims. As Summers has argued, such a claim may be accepted by the state courts in a second petition for post-conviction relief where the first petition for post-conviction relief is a form of direct review (i.e., where a petitioner entered a plea of guilty). However, Summers has not argued any basis for this Court to conclude that the state courts would accept an untimely petition setting forth such a claim. The Court finds Summers has failed to show (1) cause any impediments preventing Summers from complying with Arizona's procedural rules, Murray, 477 U.S. at 488; (2) prejudice any constitutional violation so basic as to infect Summers' entire proceedings with error, United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), or (3) fundamental miscarriage of justice that no reasonable juror could find her guilty, Schlup, 513 U.S. at 327. Summers' procedural default cannot be excused. VII. Ineffective Assistance of Counsel To establish a claim of ineffective assistance of counsel, a petitioner must show that counsel's actions fell below an objective standard of reasonableness and that petitioner was prejudiced by the alleged ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 252, 2064 (1984). In ineffective assistance of counsel claims, the prejudice requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). Further, the Supreme Court has stated that review of - 25 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defense counsel's conduct is "highly deferential and doubly deferential when it is conducted through the lens of federal habeas." Yarborough v. Gentry, 540 U.S 1, 6, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003). Summers did state in her Petition for Review that, "[h]ad she understood that she was looking at such a lengthy prison sentence, she would have sought new counsel, and very probably would have gone to trial." Supp. Answer, Ex. V., p.10. Furthermore, in her affidavit that was attached to the Petition for Post-Conviction Relief and the Petition for Review, Summers stated: Had I not received misadvice [sic] from my counsel . . . I would not have entered into the plea. I would have requested that my plea be withdrawn and I would have proceeded with trial. In consideration of my age, a twenty year sentence is like a life sentence, therefore, I would have had absolutely nothing to lose by going to trial. Supp. Answer, Ex. M., internal exhibit A, 23; Supp. Answer, Ex. V., internal exhibit 3, 23. This Court must determine if the state courts unreasonably applied Strickland and its progeny. See Taylor; Bell v. Cone, 535 U.S. 685, 699, 122 S.Ct. 1843, 1852 (2002). A. Ineffective Assistance of Counsel Accountant Summers asserts that counsel failed to consult with or retain an accountant to review the thousands of pages of documents, many of which related to financial records and that counsel failed to properly investigate and rebut the state's accounting testimony at the restitution hearing. As to these claims, the post-conviction court stated: [Summers] next argues that failure to hire an accountant to review the financial data and failure to object to the State's investigator from giving expert testimony constituted ineffective assistance of counsel. The issues that pertain to the financial loss do not go to the validity of the plea. They go to the issue of restitution. Whether the amount stolen was two thousand dollars or two million dollars had little to do with the sentence imposed. The exact amount of restitution was established after multiple and lengthy evidentiary hearings were held. [Summers] now claims that her lawyer was ineffective in the way he handled those hearings. The proper measure of an attorney's performance remains whether it was reasonable under prevailing professional norms. The burden is on [Summers] to - 26 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 show that the performance was both deficient and that the deficient performance prejudiced the defense. [Strickland.] [Summers] has made numerous assertions in her pleadings, but has not provided any support for her claim that her trial counsel fell below the prevailing standards. She has presented no evidence or affidavits establishing that his conduct fell below the prevailing professional norms or that establish at least a colorable claim that his allege deficient performance prejudiced her. Answer, Ex. H, p. 3. As to these claims, the Arizona Court of Appeals stated: The trial court's order is amply supported by the record before us and demonstrates the court correctly resolved this claim. [Citation omitted.] We note, moreover, that, even though trial counsel may find fault with his own performance with the benefit of hindsight, Summers has not shown that the amount of restitution the court ordered her to pay would have been different had counsel hired an expert and cross-examined the state's witness in some respect. Based on the record before us, the restitution order is sufficiently supported. Answer, Ex. I, p. 9. This Court does not find that the state courts' determination that counsel was not ineffective to be objectively unreasonable. 28 U.S.C. 2254(d); Bell v. Cone, 535 U.S. at 698-99, 122 S.Ct. at 1852. The plea agreement provided for a restitution range, the amount of restitution was within that range, and Summers has not shown that the amount of restitution would have been different if counsel had not been allegedly ineffective. Indeed, Summers has "not shown that the amount of restitution the court ordered her to pay would have been different" had counsel hired an accounting expert and more thoroughly cross-examined the State's expert. Id.; see Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) (rejecting federal habeas claim that counsel should have retained an expert because petitioner "offered no evidence" that the expert "would have testified on his behalf at trial. He merely speculates that such an expert could be found. Such speculation, however, in insufficient to establish prejudice."), citation omitted. Summers asserts that the lack of precision of the restitution alleged by the State (roughly one million dollars to six million dollars) is outside the boundaries that would be tolerated by anyone employing sound accounting practices. However, Summers has not presented any basis to conclude that the amount of restitution would have been different if an expert would have been hired, i.e., Summers has failed to show that she was prejudiced by the alleged deficiency. The Court finds Summers is not entitled to habeas relief on these claims of - 27 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ineffective assistance of counsel. B. Ineffective Assistance of Counsel Venue Summers asserts that counsel was ineffective for failing to seek a change of venue or voir dire the sentencing judge even though the charges arose from probate and conservatorship matters adjudicated in the Pima County Superior Court and the presiding probate judge had issued a memorandum that included a damning statement about Summers. As to Summers' claim that counsel failed to seek a change of venue, the postconviction court stated: [Summers'] four remaining claims do not merit discussion: failure to seek a change of venue (the matter was resolved by a plea, not a jury trial, therefore, the claim that [Summers] was entitled to a change of venue is without merit)[.] Answer, Ex. H, p.3. The appellate court stated: Summers next contends the trial court abused its discretion by summarily denying relief on her claim that counsel had been ineffective because he did not seek a change of venue early in the case. She also claims that, as a consequence, the trial court had a conflict and was biased and prejudiced against her. The trial court rejected these arguments, apparently finding no merit to them because the case had been resolved by guilty pleas rather than a trial. Although the court's reason for denying post-conviction relief is less than clear, nevertheless, the court did not abuse it discretion. These claims were waived by Summers's failure to raise them below, see Ariz.R.Crim.P. 32.2(a)(3), and by entering a guilty plea, she waived all nonjurisdictional defects. [Citation omitted.] We recognize that claims of ineffective assistance of counsel relating to the validity of a guilty plea are not waived by the entry of the plea, [citation omitted], but Summers's claims may not be so characterized. These claims of ineffective assistance of counsel relate to counsel's pretrial and pre-guilty plea performance rather than counsel's performance directly connected to the entry of the guilty plea. The claims are therefore waived. And, even assuming the ineffective-assistance-of-counsel claim was not waived, Summers has shown no prejudice resulting from trial counsel's failure to seek a change of venue. That is, she has not shown the outcome would have been different, particularly because her convict

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