James v. Schriro et al

Filing 87

ORDER re 1 Petition for Writ of Habeas Corpus (State/2254), filed by Thomas M James. Petitioners Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 is DENIED, action isDISMISSED WITH PREJUDICE. Clerk of Court to enter judgment and close this case. Petitioner is DENIED a certificate of appealability in this case. Signed by Judge A Wallace Tashima on 9/27/11. (SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas M. James,
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Petitioner,
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vs.
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Charles Ryan, et al.,
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Respondents.
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No. CV 07-160-TUC-AWT
ORDER

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Petitioner Thomas M. James, presently incarcerated at the Arizona State Prison 15
Mohave Unit, in Douglas, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant
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to 28 U.S.C. § 2254. Before the Court are the Amended Petition and Affidavit in Support
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(Docs. 26, 27), Respondents’ Answer (Doc. 34), and Petitioner’s Reply (Doc. 45). After
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review of the pleadings and record, and for the following reasons, the Petition is DENIED.
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I.

Factual and Procedural Background

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In 2000, Petitioner was indicted for the first degree murder of John Hoskin. (Doc. 34,
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Ex. A at 4.) He was convicted in the Pima County Superior Court of second degree murder,
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of a dangerous nature involving a deadly weapon. (Id. at 15.) The court sentenced him to an
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aggravated sentence of 19 years. (Id. at 32.)
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Petitioner filed an appeal before the Arizona Court of Appeals, and the court affirmed
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his conviction and sentence. (Doc. 34, Exs. B, C.) On May 14, 2004, Petitioner filed a notice
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of post-conviction relief (“PCR”) pursuant to Arizona Rule of Criminal Procedure 32 (id.,
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Ex. D); he filed his PCR petition on September 29, 2004 (id., Ex. E). The PCR court held an
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evidentiary hearing on January 9, 2006, on one of Petitioner’s claims of ineffective assistance

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of counsel (“IAC”). (Doc. 57 at 10-92.) On June 5, 2006, the PCR court denied relief. (Doc.

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34, Ex. I.) The Arizona Court of Appeals granted Petitioner’s request for review but denied

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relief. (Doc. 57 at 104-23; Doc. 34, Ex. J.)

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II.

Discussion1

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Petitioner alleges in Claim One that: (a) trial counsel was ineffective because he

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presented an implausible defense that impeded James’s right to testify; (b) the trial court

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should have held a hearing regarding evidence suppressed by the prosecution; (c) the

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prosecution suppressed evidence in violation of Brady v. Maryland; and (d) the prosecution

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presented perjured testimony by witness Detective Paul Montano. In Claim Two, Petitioner

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alleges: (a) trial counsel was ineffective for failing to object to admission of his coerced

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confession; and (b) the trial court violated his right to due process in admitting the

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confession. In Claim Three, Petitioner alleges appellate counsel was ineffective for failing

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to raise a claim: (a) challenging the admission of Detective Montano’s interrogation of

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Petitioner, which was hearsay, violated the Confrontation Clause and amounted to improper

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vouching for another witness; (b) challenging the trial court’s refusal to accept a

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manslaughter verdict; (c) alleging trial court error for not instructing on reckless

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manslaughter;2 and (d) alleging an Apprendi-Blakely violation. Additionally, Petitioner

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argues the trial court violated his rights under the Confrontation Clause by admitting

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Detective Montano’s testimony, Claim 3(e). Claim Four alleges Petitioner’s sentencing was

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defective because the court failed to make Faretta findings regarding his self-representation.

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Petitioner’s claim numbering is not clear and fails to break out subparts of certain
claims. Respondents failed to fully clear-up the confusion in their Response. The Court has
followed Petitioner’s numbering as possible, but has added or changed the numbering as
necessary for clarity.

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To the extent Petitioner is attempting to raise an independent claim that the trial court
erred in failing to instruct on reckless manslaughter, Petitioner presents this solely as a statelaw claim, which is not cognizable before this Court.
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Finally, Petitioner alleges in Claim Five that the cumulative errors arising from all these

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claims warrants relief.

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A.

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Respondents argue that Petitioner failed to properly exhaust Claims 1(b), 1(c), 1(d),

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Exhaustion and Procedural Default

2(b), and 3(c). The Court also evaluates the procedural status of Claim 3(e).
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Principles of Exhaustion and Procedural Default

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A writ of habeas corpus may not be granted unless it appears that a petitioner has

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exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v.

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Thompson, 501 U.S. 722, 731 (1991). To exhaust state remedies, a petitioner must “fairly

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present” the operative facts and the federal legal theory of his claims to the state’s highest

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court in a procedurally appropriate manner. O’Sullivan v. Boerckel, 526 U.S. 838, 848

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(1999); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78

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(1971). If a habeas claim includes new factual allegations not presented to the state court,

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it may be considered unexhausted if the new facts “fundamentally alter” the legal claim

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presented and considered in state court. Vasquez v. Hillery, 474 U.S. 254, 260 (1986).

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Exhaustion requires that a petitioner clearly alert the state court that he is alleging a

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specific federal constitutional violation. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir.

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2004); see also Gray v. Netherland, 518 U.S. 152, 163 (1996) (general appeal to due process

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not sufficient to present substance of federal claim); Lyons v. Crawford, 232 F.3d 666, 669-

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70 (2000), as amended by 247 F.3d 904 (9th Cir. 2001) (general reference to insufficiency

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of evidence, right to be tried by impartial jury, and ineffective assistance of counsel lacked

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specificity and explicitness required); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999)

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(“The mere similarity between a claim of state and federal error is insufficient to establish

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exhaustion.”). A petitioner must make the federal basis of a claim explicit either by citing

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specific provisions of federal law or case law, Lyons, 232 F.3d at 670, or by citing state cases

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that plainly analyze the federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153,

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1158 (9th Cir. 2003) (en banc); cf. Fields v. Washington, 401 F.3d 1018, 1022 (9th Cir. 2005)

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(mere citation to a state case that conducts both a state and federal law analysis does not, by
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itself, satisfy exhaustion).

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In Arizona, there are two primary procedurally appropriate avenues for petitioners to

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exhaust federal constitutional claims: direct appeal and PCR proceedings. Rule 32 of the

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Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner

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is precluded from relief on any claim that could have been raised on appeal or in a prior PCR

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petition. Ariz. R. Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a) may be avoided

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only if a claim falls within certain exceptions (subsections (d) through (h) of Rule 32.1) and

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the petitioner can justify why the claim was omitted from a prior petition or not presented in

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a timely manner. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(b), 32.4(a).

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A habeas petitioner’s claims may be precluded from federal review in two ways.

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First, a claim may be procedurally defaulted in federal court if it was actually raised in state

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court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S.

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at 729-30. Second, a claim may be procedurally defaulted if the petitioner failed to present

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it in state court and “the court to which the petitioner would be required to present his claims

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in order to meet the exhaustion requirement would now find the claims procedurally barred.”

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Coleman, 501 U.S. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998)

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(stating that the district court must consider whether the claim could be pursued by any

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presently available state remedy). If no remedies are currently available pursuant to Rule 32,

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the claim is “technically” exhausted but procedurally defaulted. Coleman, 501 U.S. at 732,

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735 n.1; see also Gray, 518 U.S. at 161-62.

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Because the doctrine of procedural default is based on comity, not jurisdiction, federal

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

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468 U.S. 1, 9 (1984). However, the Court will not review the merits of a procedurally

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defaulted claim unless a petitioner demonstrates legitimate cause for the failure to properly

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

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

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

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2.

Procedural Default Analysis
a.

Claims 1(b), 1(c)

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These two claims are premised on Brady v. Maryland, although the exact claims are

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not entirely clear. The Court summarizes them as alleging that (b) the trial court should have

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held a hearing regarding evidence suppressed by the prosecution; and (c) the prosecution

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suppressed evidence. Regardless of the exact characterization of the claims, Petitioner did

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not raise any Brady claims in state court. (See Doc. 34, Exs. B, E, F.)

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Petitioner argues that he “raised those concerns stemming from a Brady request in the

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Superior Court prior to filing supplement PCR,” raised it in a footnote of his PCR petition

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(Doc. 45 at 13), and in numerous places in special actions, on appeal and in the PCR

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proceeding (Id. at 15). The footnote merely mentions a related factual allegation in the

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context of a different claim, it does not mention Brady or any federal claim. (Doc. 34, Ex.

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E at 3 n.3.) Further, review of the materials cited by Petitioner indicates that he repeatedly

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sought disclosure, what he refers to as Brady material, to support an IAC claim. He does not

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allege and the record demonstrates that he did not properly raise a claim in his PCR petition

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or supplement based on Brady.

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If Petitioner were to return to state court now to litigate these claims, they would be

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found waived and untimely under Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules of

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Criminal Procedure because they do not fall within an exception to preclusion. Ariz. R. Crim.

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P. 32.2(b); 32.1(d)-(h). Therefore, these claims are technically exhausted but procedurally

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defaulted. Petitioner has not alleged cause and prejudice or that a fundamental miscarriage

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of justice will result if these issues are not reviewed on the merits. Claims 1(b) and 1(c) are

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procedurally defaulted.

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b.

Claim 1(d)

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Petitioner alleges that his due process rights were violated by the admission of

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perjured testimony by witness Detective Paul Montano. Petitioner presented this claim in his

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PCR petition but then withdrew it. (Doc. 34, Ex. E at 14-16, Ex. G at 2.) Promptly thereafter,

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he filed a Notice of Errata, alerting the PCR court that he did not intend to withdraw the
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claim. (Doc. 47-4 at 124.) The PCR court did not acknowledge the errata and did not address

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the claim on the merits.

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However, Petitioner did not fairly present this claim in his petition for review to the

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appellate court. (Doc. 57 at 104-23.) For a petitioner to exhaust a claim in state court, the

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petitioner must bring the same federal claim before both the trial (PCR) court and the court

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of appeals. See O’Sullivan, 526 U.S. at 848. Here, Petitioner did not raise the issue at all in

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his petition for review. Thus, Petitioner did not fairly and properly present the same claim

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in the state courts and has not properly exhausted Claim 1(d). See id. at 845.

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If Petitioner were to return to state court now to litigate this claim, it would be found

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waived and untimely under Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules of Criminal

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Procedure because it does not fall within an exception to preclusion. Ariz. R. Crim. P.

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32.2(b); 32.1(d)-(h). Therefore, this claim is technically exhausted but procedurally

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defaulted. Petitioner has not alleged cause and prejudice or that a fundamental miscarriage

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of justice will result if this claim is not reviewed on the merits. Claim 1(d) is procedurally

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defaulted.
c.

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Claims 2(b) and 3(e)

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In Claim 2(b), Petitioner alleges the court violated his right to due process by

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admitting his confession. In Claim 3(e), Petitioner alleges the trial court violated his rights

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under the Confrontation Clause by admitting Detective Montano’s testimony.3 The PCR

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Respondents did not acknowledge Claim 3(e) and did not, therefore, argue that the
claim is defaulted. However, in his Amended Petition, Petitioner acknowledged that the PCR
court found the claim precluded and he argued cause and prejudice to overcome the default;
therefore, the Court finds it proper to address procedural default. See Vang v. Nevada, 329
F.3d 1069, 1073 (9th Cir. 2003) (finding district court can raise procedural default sua sponte
under appropriate circumstances); cf. Day v. McDonough, 547 U.S. 198, 209 (2006) (holding
that district courts may sua sponte consider the timeliness of a habeas petition, just as circuit
courts have held can be done for other affirmative defenses such as procedural default).
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court found both of these claims precluded for failure to raise them on appeal.4 (Doc. 34, Ex.

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I at 5-6.) Therefore, these claims are procedurally defaulted.

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Petitioner argues the default of Claim 3(e) is overcome by IAC on appeal. He does not

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make such an argument regarding Claim 2(b). Even if he did, this cannot operate as cause

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to excuse the defaults of either claim because IAC for failure to raise these claims on appeal

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was not exhausted as an independent claim in Petitioner’s PCR proceeding. Such claims also

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are technically exhausted but procedurally defaulted. See Murray v. Carrier, 477 U.S. 478,

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489 (1986); Gray, 518 U.S. at 161-62; Coleman, 501 U.S. at 735 n.1; Edwards v. Carpenter,

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529 U.S. 446, 453 (2000) (ineffective counsel as cause can itself be procedurally defaulted).

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d.

Claim 3(c)

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Petitioner alleges appellate counsel was ineffective for not raising a claim of trial court

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error in failing to instruct on reckless manslaughter. Petitioner is accurate that he raised this

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claim in a supplemental motion for rehearing before the PCR court and in his Petition for

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Review. However, under Arizona’s rules, fair presentation requires including the ground in

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the PCR petition, Ariz. R. Crim. P. 32.5, which he did not do (Doc. 34, Ex. E); mentioning

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it for the first time in a motion for rehearing is not fair presentation, Ariz. R. Crim. P. 32.9

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(motions for rehearing are solely to raise error in the court’s ruling).

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If Petitioner were to return to state court now to litigate this claim, it would be found

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waived and untimely under Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules of Criminal

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Procedure because it does not fall within an exception to preclusion. Ariz. R. Crim. P.

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32.2(b); 32.1(d)-(h). Therefore, this claim is technically exhausted but procedurally

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The PCR court cited Arizona Rule of Criminal Procedure 32.2(a)(1), which states that
a claim is precluded if it is “[r]aisable on direct appeal.” The comment to the rule clarifies
that this provision applies to grounds that may still be raised before an appellate court on
direct appeal. The PCR court, however, was clear in its discussion of both these claims that
Petitioner had completed his appeal without raising these claims. (Doc. 34, Ex. I at 5, 6.)
Therefore, it is unambiguous that the judge precluded the claims because they were waived
on appeal, which falls within a separate preclusion subpart, Rule 32.2(a)(3). Because the
PCR court’s intent is clear, and Petitioner does not challenge the erroneous citation, the Court
relies upon the preclusion.
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defaulted. Petitioner has not alleged cause and prejudice or that a fundamental miscarriage

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of justice will result if this claim is not reviewed on the merits. Claim 3(c) is procedurally

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defaulted.

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B.

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The Court reviews the merits of Claims 1(a), 2(a), 3(a), 3(b), 3(d), 4 and 5.

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Merits

1.

Legal Standard for Relief Under the AEDPA

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The Antiterrorism and Effective Death Penalty Act (AEDPA) established a

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“substantially higher threshold for habeas relief” with the “acknowledged purpose of

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‘reducing delays in the execution of state and federal criminal sentences.’” Schriro v.

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Landrigan, 550 U.S. 465, 473-74 (2007) (quoting Woodford v. Garceau, 538 U.S. 202, 206

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(2003)). The AEDPA’s “‘highly deferential standard for evaluating state-court rulings’ . . .

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

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537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7

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(1997)).

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Under the AEDPA, a petitioner is not entitled to habeas relief on any claim
“adjudicated on the merits” by the state court unless that adjudication:
(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.

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28 U.S.C. § 2254(d). The relevant state court decision is the last reasoned state decision
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regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v.
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Nunnemaker, 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664
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(9th Cir. 2005).
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“The threshold question under AEDPA is whether [the petitioner] seeks to apply a rule
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of law that was clearly established at the time his state-court conviction became final.”
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Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under subsection
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(d)(1), the Court must first identify the “clearly established Federal law,” if any, that governs
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the sufficiency of the claims on habeas review. “Clearly established” federal law consists

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of the holdings of the Supreme Court at the time the petitioner’s state court conviction

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became final. Williams, 529 U.S. at 365; see Carey v. Musladin, 549 U.S. 70, 74 (2006).

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The Supreme Court has provided guidance in applying each prong of § 2254(d)(1).

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The Court has explained that a state court decision is “contrary to” the Supreme Court’s

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clearly established precedents if the decision applies a rule that contradicts the governing law

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set forth in those precedents, thereby reaching a conclusion opposite to that reached by the

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Supreme Court on a matter of law, or if it confronts a set of facts that is materially

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indistinguishable from a decision of the Supreme Court but reaches a different result.

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Williams, 529 U.S. at 405-06; see Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). In

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characterizing the claims subject to analysis under the “contrary to” prong, the Court has

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observed that “a run-of-the-mill state-court decision applying the correct legal rule to the

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facts of the prisoner’s case would not fit comfortably within § 2254(d)(1)’s ‘contrary to’

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clause.” Williams, 529 U.S. at 406; see Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir.

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2004).

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Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court

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may grant relief where a state court “identifies the correct governing legal rule from [the

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Supreme] Court’s cases but unreasonably applies it to the facts of the particular . . . case” or

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“unreasonably extends a legal principle from [Supreme Court] precedent to a new context

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where it should not apply or unreasonably refuses to extend that principle to a new context

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where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state court’s

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application of Supreme Court precedent “unreasonable,” the petitioner must show that the

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state court’s decision was not merely incorrect or erroneous, but “objectively unreasonable.”

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Id. at 409; Landrigan, 550 U.S. at 473; Visciotti, 537 U.S. at 25.

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Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state

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court decision was based upon an unreasonable determination of the facts. Miller-El v.

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Dretke, 545 U.S. 231, 240 (2005) (Miller-El II). A state court decision “based on a factual

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determination will not be overturned on factual grounds unless objectively unreasonable in
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light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. 322, 340

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(2003) (Miller-El I); see Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). In considering

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a challenge under § 2254(d)(2), state court factual determinations are presumed to be correct,

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and a petitioner bears the “burden of rebutting this presumption by clear and convincing

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evidence.” 28 U.S.C. § 2254(e)(1); Landrigan, 550 U.S. at 473-74; Miller-El II, 545 U.S.

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at 240.

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2.

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Merits Analysis
a.

Standard for Ineffective Assistance of Counsel

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Claims 1(a), 2(a), 3(a), 3(b) and 3(d) allege ineffective assistance of counsel. IAC

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claims are governed by Strickland v. Washington, 466 U.S. 668 (1984). To prevail under

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Strickland, a petitioner must show that counsel’s representation fell below an objective

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standard of reasonableness and that the deficiency prejudiced the defense. 466 U.S. at 687-

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88.

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The inquiry under Strickland is highly deferential, and “every effort [must] be made

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to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

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challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id.

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at 689. Thus, to satisfy Strickland’s first prong, deficient performance, a defendant must

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overcome “the presumption that, under the circumstances, the challenged action might be

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considered sound trial strategy.” Id.

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Because an IAC claim must satisfy both prongs of Strickland, the reviewing court

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“need not determine whether counsel’s performance was deficient before examining the

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prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at 697 (“if it

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is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice

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. . . that course should be followed”). A petitioner must affirmatively prove prejudice. Id. at

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693. To demonstrate prejudice, he “must show that there is a reasonable probability that, but

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

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A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

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Id. at 694. The calculus involved in assessing prejudice “should proceed on the assumption
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that the decision-maker is reasonably, conscientiously, and impartially applying the standards

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that govern the decision.” Id. at 695.

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b.

Claim 1(a)

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Claim 1(a) was raised in this Court, and before the PCR court, as two intertwined

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issues: trial counsel failed to raise a plausible defense, which impeded Petitioner’s right to

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testify. Petitioner argues that he wanted counsel to present self-defense but counsel chose

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to argue that Petitioner’s wife killed the victim, which he believes was not supported by the

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evidence. Further, Petitioner contends that he could not testify because the defense counsel

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chose was in contradiction to his statements to the police and would have required him to lie.

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The PCR court held an evidentiary hearing on this claim and made the following fact

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findings and ruling:
Petitioner testified at the evidentiary hearing on January 9, 2006, that he
wanted to make a self-defense claim, that he wanted to testify and that he had
fired other attorneys who did not agree to this. According to Petitioner, counsel
Dan Cooper did not believe Petitioner’s self-defense theory. Petitioner
conceded his statements were “messed up” and “stupid” because he was drunk.
Petitioner said that he “bugged” Mr. Cooper throughout the trial about
testifying and was ignored. In fact, Petitioner said that all of his attorneys told
him he could not testify.

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According to Petitioner, Mr. Cooper told him that he, not Petitioner,
would decide on the defense. Petitioner claimed that, at the time of the hearing,
Mr. Cooper lied to Petitioner and told him that he would present the selfdefense theory, thus averting “firing” by Petitioner.
Petitioner agreed that the problems with his statements were that: first,
he said that a masked intruder, either “Tattoo Bob” or “Biker Bob,” was the
murderer; second, he said a guy named Adam might have done it; third, he said
that Sonny possibly had stabbed the victim; and, finally, Petitioner said that he
had stabbed the victim but in self defense.
Petitioner’s trial counsel, Dan Cooper, testified at the same hearing that
he selected the defense theory that Petitioner’s wife killed the victim and he
hired a blood expert to bolster that theory. Counsel rejected a self-defense
theory because of the physical evidence, particularly the blood spatter
evidence, and problems with Petitioner’s credibility due to his various
statements.

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The physical evidence revealed that the victim had been stabbed in the
back and the victim’s throat had been cut. The lack of defensive wounds on
Petitioner suggested there had been no struggle and the evidence suggested an
ambush instead. The court has reviewed the color copies of photographs
submitted by Petitioner purporting to illustrate defensive wounds. Four photos
show some redness on the scalp but no laceration or swelling; one shows a
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bruise but no laceration or swelling on the left knee. None of the photos
support Petitioner’s claim that he was involved in a struggle.

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In addition, because Petitioner had given so many different statements,
trial counsel believed Petitioner would have little or no credibility. Trial
counsel said that when Petitioner gave his statements to the police, he was a
“cold stone liar,” was belligerent and appeared to be a “real jerk.” Trial
counsel also believed, from his own experiences with Petitioner, that he lacked
the ability to control his temper and would be an “absolute horrible witness.”
Trial counsel said a self-defense theory was a “really, really poor defense” in
view of the physical evidence. In electing to pursue the defense that
Petitioner’s wife killed the victim, trial counsel chose what he thought was the
better of two bad defenses.
All of counsel’s conclusions were reasonable under prevailing standards
and the court does not reach the issue of prejudice. Further, if the evidence did
not support a credible self-defense theory, it was not unreasonable for counsel
to refuse to advance a self-defense theory, even if it ultimately precluded
counsel from arguing for a lesser-included offense.
With respect to Petitioner’s right to testify, trial counsel was unequivocal.
Had Petitioner insisted on testifying, Mr. Cooper would not have stood in his
way. Instead, he would have made a record that Petitioner’s testimony was
over his objection and Petitioner would have testified. The court has
considered the credibility of both witnesses and finds that Mr. Cooper did not
prevent Petitioner from testifying.

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Trial counsel has been a criminal defense attorney for most of his twentynine years of practice. He has represented approximately 120 persons charged
with murder. In this case, he hired an investigator, an expert, and a child
psychologist and personally interviewed all of the State’s witnesses. He
investigated the victim’s background, learned that the victim had little, if any
record and was a docile person. The Court finds that trial counsel’s
representation was reasonable under all the facts and circumstances of this
case. Petitioner has failed to show ineffective assistance of trial counsel.
(Doc. 34, Ex. I at 3-5.)

20

Petitioner disputes several of the PCR court’s fact findings. First, he notes that the

21

PCR court interpreted his lack of defensive wounds as an indication that he was not attacked

22

by the victim. Petitioner claims to have been hit from behind, therefore, he argues that typical

23

defensive wounds would not be found. The Court’s finding regarding the lack of struggle

24

was based on both the lack of typical defense wounds and review of the alleged atypical

25

injuries asserted by Petitioner, i.e., his knee and scalp injuries. The Court found neither

26

sufficient. Petitioner has not demonstrated this finding to be incorrect by clear and

27

convincing evidence. Second, Petitioner argues the PCR court found his scalp wound

28

irrelevant. That is not an accurate reflection of the court’s findings. The PCR court stated that
- 12 -

1

the photos indicate only some redness of the scalp and a bruise on the knee. (Doc. 34, Ex. I

2

at 4.) The court did not find a scalp wound irrelevant, merely that any injury was nominal and

3

did not evidence a struggle. (Id.)

4

Third, Petitioner contends the PCR court’s credibility finding regarding counsel was

5

flawed because counsel Dan Cooper testified that Petitioner did not agree to the defense

6

presented, but in response to a state bar complaint Cooper stated that Petitioner did agree.

7

Cooper testified that, although they disputed the best defense up to trial and Petitioner was

8

not happy with his choice of defense, Petitioner understood that Cooper thought it was their

9

only chance. (Doc. 57, RT 1/6/06 at 72.) Petitioner has not identified an inconsistency. Nor

10

has he undermined the overall credibility finding by clear and convincing evidence.

11

Now the Court must review the objective reasonableness of the state courts’ ruling

12

that counsel’s decision fell within reasonable professional judgment under Strickland. See

13

Wood v. Allen, 130 S.Ct. 841, 849 at 850-51 & n.3 (2010); Matylinsky v. Budge, 577 F.3d

14

1083, 1091-92 (9th Cir. 2009) (counsel’s choice of defense is one of strategy entitled to

15

deference unless below professional norms). Petitioner contends counsel’s decision to reject

16

a self-defense theory was unreasonable because self-defense was the only plausible theory.

17

Counsel’s testimony, which the PCR court found credible, demonstrated that self-defense

18

was not the only plausible theory. To the contrary, counsel was convinced that the physical

19

evidence undermined self-defense and he hired a blood spatter expert to support his theory.

20

The victim was stabbed in the back and his throat was cut. Additionally, Petitioner did not

21

have wounds evidencing a struggle nor did the victim have any defensive wounds. Finally,

22

counsel reasonably concluded that Petitioner was not credible and would be a terrible

23

witness, which made self-defense a less viable defense. In light of those facts, it was not

24

unreasonable for counsel to argue that the other person present at the scene, Petitioner’s wife,

25

had killed the victim.

26

Petitioner relies on the case of Phillips v. Woodford, 267 F.3d 966 (9th Cir. 2001), in

27

which the Ninth Circuit found that Phillips had put forth a colorable claim that his counsel’s

28

performance was deficient. Phillips is distinguishable for several reasons. In Phillips, the
- 13 -

1

court looked only at the defendant’s allegations to assess whether there was a colorable

2

claim. Here, the Court is assessing not the allegations but whether Petitioner satisfied the

3

Strickland standard based on the evidence presented. More importantly, in Phillips, counsel

4

was alleged not to have investigated the facts of the case beyond asking his client what

5

happened, including not reviewing relevant evidence in his possession. Id. at 976, 977. The

6

evidence is undisputed in this case that Cooper thoroughly investigated the case by

7

examining the physical evidence, hiring experts and interviewing all of the State’s witnesses.

8

Further, counsel in Phillips averred that he thought his client’s alibi defense was meritless

9

from the beginning but he relied upon that false information in failing to investigate another

10

defense. Id. at 978. Petitioner’s counsel thoroughly investigated the facts of the case and

11

selected what he thought was the best defense in light of all the information he possessed.

12

Finally, Petitioner contends that counsel precluded him from testifying because of the

13

defense he chose. The thrust of this argument is primarily a restatement of Petitioner’s

14

objection to the defense counsel presented. To the extent it is an independent subclaim it has

15

no merit. Although counsel chose not to present self-defense, as Petitioner desired, he did not

16

foreclose Petitioner from testifying. Counsel stated at the evidentiary hearing that if

17

Petitioner had insisted on testifying, he would have made a record of his objection and

18

allowed him to testify.

19

As counsel testified, this was a difficult case and he chose the best of two bad options

20

for a defense. The state court’s conclusion that his decisions were within prevailing

21

professional norms was not unreasonable under Strickland.

22

c.

Claim 2(a)

23

Petitioner alleges his trial counsel was ineffective for failing to object to his coerced

24

confession. Specifically, he argues that his confession was coerced by the playing of a

25

recording of his daughter’s interview and by threatening him with the loss of his child.

26

The PCR court interpreted this claim as alleging appellate IAC for failing to raise a

27

claim objecting to the admission of his coerced confession. Therefore, although this claim

28

was fairly presented, there is no merits ruling on the trial IAC claim and the Court evaluates
- 14 -

1

it de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). However, there are

2

relevant state court factual determinations, which this Court must presume correct. 28 U.S.C.

3

§ 2254(e)(1).

4

To ensure the voluntariness of a statement, the court must consider the effect that the

5

totality of the circumstances had upon the will of the defendant. See Schneckloth v.

6

Bustamonte, 412 U.S. 218, 226-27 (1973). “The question is ‘whether the defendant’s will

7

was overborne at the time he confessed.’” Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir.

8

2003) (quoting Haynes v. Washington, 373 U.S. 503, 513-14 (1963)). Absent police

9

misconduct causally related to the confession, there is no basis for concluding that a

10

confession was involuntary. Colorado v. Connelly, 479 U.S. 157, 167 (1986) (“coercive

11

police activity is a necessary predicate to the finding that a confession is not ‘voluntary’

12

within the meaning of the Due Process Clause of the Fourteenth Amendment”).

13

Utilizing the totality of the circumstances test, both the characteristics of the accused

14

and the details of the interrogation are considered. See Dickerson v. United States, 530 U.S.

15

428, 434 (2000); see also Haynes, 373 U.S. at 513-14. Factors related to the accused include

16

youth, lack of education, low intelligence, and lack of advice regarding constitutional rights.

17

See Schneckloth, 412 U.S. at 426. Factors related to the interrogation include length of

18

detention, the location of the interrogation, the repeated or prolonged nature of the

19

questioning, and the use of physical punishment, including deprivation of food or sleep. Id.;

20

see also Withrow v. Williams, 507 U.S. 680, 693-94 (1993). While a confession obtained by

21

physical violence is per se involuntary, a confession obtained by psychological coercion is

22

not. United States v. Miller, 984 F.2d 1028, 1030 (9th Cir. 1993) (citing Haynes, 373 U.S.

23

at 515).

24

The question of whether a suspect’s inculpatory statements were voluntary is typically

25

a mixed question of law and fact. See Miller v. Fenton, 474 U.S. 104, 111-12 (1985). This

26

Court must defer to the underlying factual determinations. Lambert v. Blodgett, 393 F.3d

27

943, 977-78 (9th Cir. 2004). The PCR court made the following factual findings:

28

[D]etectives confronted Petitioner with statements by his wife and daughter
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1
2

that contradicted Petitioner’s statements to police. There was no physical
abuse, promise or benefit or leniency, threats, or use of force . . . . The record
does not support Petitioner’s claim that police coerced his statement by
threatening to charge his wife with murder or with the loss of his child.

3
(Doc. 34, Ex. I at 12.) Petitioner has not argued much less provided clear and convincing
4
evidentiary support to overcome the PCR court’s finding that he was not threatened with the
5
loss of his child. See Lambert, 393 F.3d at 976 (state court’s finding that the interviewing
6
officer made no threats or promises in connection with the confession is “essentially a factual
7
conclusion, which is entitled to deference”) (quoting Rupe v. Wood, 93 F.3d 1434, 1444 (9th
8
Cir. 1997)). Because this Court defers to that finding, that portion of Petitioner’s claim fails.
9
The PCR court did not make a fact finding regarding Petitioner’s other factual
10
allegation of coercion – the playing of his child’s interview. During his interrogation,
11
Petitioner repeatedly asked what statements his wife was making. (Doc. 55 at 18-20.) The
12
detectives told him that his wife and daughter were both providing consistent information
13
that was in contradiction to what he was telling them. (Id. at 18.) Petitioner objects
14
specifically to a portion of his interrogation in which it appears the detectives played a
15
portion of a recording of his daughter being questioned:
16
Q:
17

This, this detective here spoke to your daughter, what do you think about
this?

18

Q4: Okay, everything you saw tonight and everything about that?

19

A2: And, uh, he then ran in our bed and ______. He just died.

20

Q4: He did? Do you know why?

21

A2: He cutted his neck off.

22

Q4: Oh.

23

Q:

Your daughter saw more than you’re telling me.

24

(Id. at 20.) On the next page of the transcript, Petitioner requested that the detectives play the

25

recording again, which they did, and told them he wanted to know what his daughter had

26

said. (Id. at 21-22.) One of the detectives told him that what his daughter said was irrelevant

27

because the detectives knew what had happened and had already processed the scene. (Id.

28

at 22.) Petitioner’s expressed focus of concern was that his wife would get in trouble even
- 16 -

1

though she was not at fault. (Id. at 23.) He requested that the detectives turn off the tape

2

recording so he could talk to them off the record and then he provided inculpatory

3

information. (Id. at 23-24.)

4

The playing of two sentences by Petitioner’s daughter does not support Petitioner’s

5

claim that his will was overborne by the detectives. As found by the trial court, there was no

6

use of physical force, threats or promises made during the interrogation. Further, the state

7

courts found that Petitioner was properly advised of his Miranda rights. (Doc. 34, Ex. C at

8

4-5.) Petitioner repeatedly sought information from the detectives about what his family

9

members were saying and asked to hear his daughter’s recording for a second time. That was

10

not coercive. After review of the record, the state court factual findings, and the totality of

11

the circumstances, this Court finds that Petitioner’s statements were not involuntary.

12

d.

Claim 3(a)

13

Petitioner alleges counsel was ineffective for failing to argue on appeal that Detective

14

Montano’s interrogation of Petitioner should have been excluded as hearsay, improper

15

vouching and violative of the Confrontation Clause.

16
17

The disputed statement admitted at trial is one by Detective Montano during his
interrogation of Petitioner:

18

Q:

. . . Is, is what you’re telling me right now is what happened?

19

A:

Well, let’s do this, let’s go, I wanna find out what’s going on with Chris
and then we’ll finish up this conversation.

Q:

Well, Chris is, is, is talking, like I said, uh, they’re telling me that, uh,
Chris is, is saying, answering all the questions. She’s coming across
truthfully, um, you know, she’s basically talking. She’s talking to
Detective Amado. She’s talked to Detective Amado. Uh, we’ve talked to
your daughter, um, what your daughter says, is it matches what your,
what Chris is saying, and Chris is matching what, uh, uh, Christy is
saying and basically, um, it doesn’t match you, that’s why I’m asking
you, is what you’re saying . . .

20
21
22
23
24
25

(Doc. 56 at 75.) The trial court ruled that it was not hearsay because there was no substance

26

to the statement, just a reference comparing conversations; the judge equated it to an

27

investigative technique. (Doc. 34, RT 11/29/01 at 102-03.) The court went on to note the

28

context of the statements was that the officer was answering questions by the defendant
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1

regarding what his wife had said. (Id. at 103-04.)

2

The PCR court provided the following background and analysis of this claim:

3

Trial counsel objected on hearsay grounds. The prosecutor responded that the
police used the statements only as a tactic to obtain Petitioner’s statement. The
trial court ruled that references to Petitioner’s wife’s and daughter’s statements
were not hearsay. The trial court explained that its ruling took into account the
context of the officer’s conversation with Petitioner in that Petitioner
continued to ask the officer for his wife’s specific statements. . . .

4
5
6
7
8
9
10
11
12
13
14

In its response, the State argues that specific statements by Petitioner’s
daughter were not presented to the jury in any form. The court has reviewed
the audiotape which was played for the jury (State’s Exhibit 32B) and admitted
into evidence. The audiotape contains the reference by detectives to the wife’s
statement that “you guys shouldn’t have done it” but contains none of the
specific statements by Petitioner’s daughter as set out in section 4.D above.
Thus, the record does not support Petitioner’s claims with respect to his
daughter.
Petitioner’s wife’s statement that “you guys shouldn’t have done it” was
not offered for the truth of the matter and is so vague that is of minimal value.
The detective’s purpose in informing Petitioner of his wife’s statement was to
inform him that her statement was consistent with his daughter’s statement but
inconsistent with Petitioner’s version of events the night of the murder. By
confronting Petitioner with this information, the detective[s] were attempting
to elicit additional statements from Petitioner. Given that the physical evidence
also contradicted Petitioner’s early statements, that tactic was reasonable.

15
16
17

Finally, trial counsel did not request a curative instruction or move for a
mistrial. On the facts of this case, there was no reason for the trial court to give
a curative instruction or grant a mistrial. Appellate counsel is not required to
raise a non-meritorious issue and Petitioner suffered no prejudice by appellate
counsel’s decision.

18
(Doc. 34, Ex. I at 13.)
19
Petitioner had a right under the Confrontation Clause of the Sixth Amendment and the
20
Due Process Clause to cross-examine the witnesses against him. Davis v. Alaska, 415 U.S.
21
308, 315 (1974); Pointer v. Texas, 380 U.S. 400, 403-04 (1965). The Confrontation Clause
22
precludes admission of testimonial out-of-court statements if the party against whom they
23
are offered has not had an opportunity to confront that witness. Crawford v. Washington, 541
24
U.S. 36, 69 (2004). However, statements that are not hearsay or are non-testimonial do not
25
implicate the Confrontation Clause. Id. at 59 n.9, 68 (citing Tennessee v. Street, 471 U.S.
26
409, 414 (1985)).
27
Under Arizona Rule of Evidence 801(c), hearsay is “a statement, other than one made
28
- 18 -

1

by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth

2

of the matter asserted.” In the portion of transcript to which Petitioner objects, Detective

3

Montano did not recount any statements made by Petitioner’s wife or daughter. As noted by

4

the trial court, in response to a question posed by Petitioner, the detective told him that his

5

wife was talking and that her story did not match his but was consistent with what his

6

daughter had stated. There was no actual statement by his wife or daughter offered. The

7

detective’s statement was not offered for its truth, as the state court concluded, it was merely

8

an investigative technique and the interrogation was offered for Petitioner’s statements not

9

the detective’s. Because the statement was not hearsay, the Confrontation Clause was not

10

implicated.

11

Because there is no merit to the underlying claim, Petitioner cannot establish that he

12

was prejudiced by his appellate counsel’s failure to raise the claim. The PCR court’s decision

13

– that appellate counsel was not ineffective for failing to raise a claim challenging the

14

admission of Detective Montano’s interrogation – was not an unreasonable application of

15

Strickland to the facts.

16

e.

Claim 3(b)

17

Petitioner alleges appellate counsel was ineffective for failing to raise a claim

18

challenging the trial court’s refusal to accept a manslaughter verdict. Petitioner contends that

19

when the jury informed the court that it was unanimous on second degree murder and

20

manslaughter, deliberations should have ceased and the court should have accepted the lesser

21

verdict.

22

In denying this claim on the merits, the PCR court set forth the relevant background:

23

during deliberation, the jury submitted questions which dealt with unanimity
requirements and lesser-included offenses. The jury indicated that all members
were unanimous as to guilt on second degree murder and manslaughter, but
that they were split 8/4 on first degree (8 not guilty; 4 guilty). Two of the four
apparently questioned whether they were compelled to vote for second degree
when they believed it was first degree. . . .

24
25
26
27
28

The court referred the jurors to instructions on the lesser-included
offenses of second degree murder and manslaughter, both lesser offenses
which could be considered after making reasonable efforts but failing to reach
a verdict on the greater offense. After further deliberations, the jury returned
- 19 -

1

a verdict of guilty on second degree murder, a lesser-included offense.

2

This record does not support Petitioner’s claim that the trial court rejected
the jury’s unanimous manslaughter verdict. The jury’s revelation of its division
and standing on the lesser-included offenses was not a formal verdict. The
questions were not written or signed by all jurors or by the foreperson, whose
signature is required on the verdict. Therefore, even if appellate counsel had
raised this non-meritorious issue, it would not have changed the outcome of
the appeal.

3
4
5
6

(Doc. 34, Ex. I at 7-8.)

7

As pointed out by the PCR court, the jury question did not satisfy the requirements

8

for a jury verdict because it was not signed by the foreman nor returned in open court. Ariz.

9

R. Crim. P. 23.1(a). Further, even if the jurors had rendered a verdict at that time, Petitioner’s

10

argument is flawed. He relies on the premise that the court was obligated to accept the lesser

11

of the two alleged verdicts, because one was improper or there was doubt as to which of the

12

two he was found guilty. At the time of the jury question, the jury clearly indicated

13

unanimous findings on both second degree murder and manslaughter, therefore, there was

14

no doubt regarding the finding and the court would not have been obligated to accept the

15

lesser of the two offenses.

16

Because there is no merit to the underlying claim, Petitioner cannot establish that he

17

was prejudiced by his appellate counsel’s failure to raise the claim. The PCR court’s decision

18

– that Petitioner’s appellate counsel was not ineffective for failing to raise a claim

19

challenging the trial court’s refusal to accept a manslaughter verdict – was not an

20

unreasonable application of Strickland to the facts.

21
22
23

f.

Claim 3(d)

Petitioner alleges his appellate counsel was ineffective for failing to raise a claim
based on Apprendi-Blakely that he had a right to a jury trial on aggravating factors.

24

At sentencing the judge imposed an aggravated term based on Petitioner’s 1993

25

Arizona felony conviction, and his long history of involvement in the criminal justice system.

26

(Doc. 34, Ex. A at 33-34.) The PCR court agreed that the Blakely decision applied to

27

Petitioner because it was issued while Petitioner’s direct appeal was pending. (Id., Ex. I at

28

7.) However, the trial court aggravated Petitioner’s sentence based on his criminal history
- 20 -

1

and prior convictions, which are exempt from Blakely’s requirement of a jury finding. (Id.)

2

Because Petitioner was not prejudiced by appellate counsel omitting this non-meritorious

3

issue from the appellate brief, the PCR court rejected this claim. (Id.)

4

“Other than the fact of a prior conviction, any fact that increases the penalty for a

5

crime beyond the prescribed statutory maximum must be submitted to a jury, and proved

6

beyond a reasonable doubt.” Blakely v. Washington, 542 U.S. 296, 301 (2004) (quoting

7

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). “The ‘statutory maximum’ for Apprendi

8

purposes is the maximum sentence a judge may impose solely on the basis of the facts

9

reflected in the jury verdict or admitted by the defendant.” Id. at 303 (citations omitted). Prior

10

convictions are excepted because they are entered during a proceeding with its own

11

procedural safeguards. Apprendi, 530 U.S. at 488. In assessing how Blakely applied to the

12

Arizona sentencing scheme, the state supreme court held:

13
14
15
16

Under A.R.S. § 13-702, the existence of a single aggravating factor exposes
a defendant to an aggravated sentence. Therefore, once a jury finds or a
defendant admits a single aggravating factor, the Sixth Amendment permits the
sentencing judge to find and consider additional factors relevant to the
imposition of a sentence up to the maximum prescribed in that statute.
State v. Martinez, 210 Ariz. 578, 585, 115 P.3d 618, 625 (2005).

17

Because the sentencing judge relied upon Petitioner’s prior conviction as an

18

aggravating factor, which did not have to be found by a jury, he could consider other factors

19

in aggravation and impose an aggravated sentence. Petitioner argues that the PCR court erred

20

in relying on Blakely rather than Apprendi. Because they were both decided before his appeal

21

was final, they both apply. More importantly, their decision regarding prior convictions as

22

a basis for an aggravated sentence is identical. Petitioner also argues that he did not admit

23

his criminal history. Admission of a fact by the defendant is a separate Apprendi-exemption,

24

but it is irrelevant in this case because the aggravated sentence was based on a prior

25

conviction. Finally, Petitioner disagrees with the Supreme Court’s decision exempting prior

26

convictions from a jury finding. Habeas relief can only be premised upon clearly established

27

Supreme Court law, therefore, his argument for a change in the law is fruitless.

28

Because there is no merit to the underlying claim, Petitioner cannot establish that he
- 21 -

1

was prejudiced by his appellate counsel’s failure to raise the claim. The PCR court’s decision

2

– that Petitioner’s appellate counsel was not ineffective for failing to raise a claim based on

3

Apprendi-Blakely – was not an unreasonable application of Strickland to the facts.

4

g.

Claim 4

5

Petitioner argues his sentencing was defective because the court allowed him to

6

represent himself without making Faretta findings. Petitioner argues that because his counsel

7

informed the court that he did not believe Petitioner should represent himself, the Court was

8

required to hold a hearing and make a record of his competency to represent himself.

9

Following his conviction, Petitioner filed a motion to terminate his counsel and allow

10

him to represent himself. (Doc. 34, Ex. A at 17.) The trial court held a hearing and granted

11

Petitioner’s request:

12

Defendant states that he wishes to represent himself at sentencing . . . .

13

Mr. Cooper states that, although he wishes to withdraw, he does not
believe the defendant should represent himself.

14
15

The Court questions the defendant as to his understanding of his right to
counsel, the sentence range in his case, and the possible consequences of his
proceeding to sentencing without counsel.

16
Defendant again states that he wishes to waive his right to counsel.
17
FILED IN COURT: Waiver of Right to Lawyer.
18
19
20

THE COURT FINDS that the defendant has knowingly, intelligently and
voluntarily waived his right to counsel from this point forward, up to and
including sentencing in this case. This does not preclude defendant from
retaining counsel at any time.

21
22

....
Defendant is advised that he is still eligible to have counsel appointed by
the Court . . . .

23
(Id. at 26.)
24
The appellate court denied this claim:
25
26
27

[T]he trial court informed James of the seriousness of his decision to represent
himself and the possible consequences of that decision and that James validly
waived his right to counsel. The trial court was in the best position to assess
James’s competency. On this record, we have no basis to reverse its decision
to allow James to represent himself during sentencing.

28
- 22 -

1

(Doc. 34, Ex. C at 7.)

2

A defendant has a constitutional right to represent himself, however, because that

3

choice involves relinquishing the right to counsel and related benefits, he must knowingly

4

and intelligently waive those rights. Faretta v. California, 422 U.S. 806, 819-20, 835 (1975).

5

Such a waiver requires that the defendant is aware of the pitfalls of self-representation and

6

knowingly assesses his right to defend himself. Id. at 835-36.

7

The trial judge documented that he informed Petitioner of the dangers of self-

8

representation and the sentence he was facing, as well as questioning him regarding his right

9

to counsel. Petitioner does not question that he possessed the necessary information to make

10

a knowing waiver. He contends only that his competency was in question in light of his

11

counsel’s opinion that he should not represent himself. The trial judge possessed that

12

information, along with his observations of Petitioner throughout the pre-trial and trial

13

period. Counsel did not opine that Petitioner was incompetent. Although the record does not

14

reveal the basis for his opinion, it is clear from other parts of the record that counsel and

15

Petitioner did not agree on trial strategy. Thus, he could have believed that Petitioner would

16

be better served with a counsel’s strategy for sentencing. See, e.g. Faretta, 422 U.S. at 834

17

(“It is undeniable that in most criminal prosecutions defendants could better defend with

18

counsel’s guidance than by their own unskilled efforts.”). Regardless, the appellate court’s

19

decision – that Petitioner’s waiver was knowing and intelligent – was not an unreasonable

20

application of clearly established Federal law.

21

h.

Claim 5

22

Petitioner alleges the cumulative prejudicial effect of the errors alleged in his other

23

claims warrants reversal of his conviction. Respondents did not discuss the exhaustion of this

24

claim but the Court notes that Petitioner did not raise a cumulative error claim in state court.

25

Because he would be precluded from raising such a claim now, it is technically exhausted

26

and procedurally defaulted.

27

Regardless, because the Court has not found merit to any of Petitioner’s allegations

28

of error, there is no prejudicial cumulative effect to analyze and Claim 5 fails on the merits.
- 23 -

1
2
3

III.

Conclusion
Claims 1(b)-1(d), 2(b), 3(c), and 3(e) are procedurally defaulted. Claims 1(a), 2(a),

3(a), 3(b), 3(d), 4 and 5 fail on the merits.

4

Rule 11(a) of the Rules Governing Section 2254 Cases, requires that in habeas cases

5

the “district court must issue or deny a certificate of appealability when it enters a final order

6

adverse to the applicant.” Such certificates are required in cases concerning detentions

7

arising “out of process issued by a State court,” or in a proceeding under 28 U.S.C. § 2255

8

attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).

9

Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention

10

pursuant to a state court judgment. This Court must determine, therefore, if a certificate shall

11

issue. The Court declines to issue a certificate of appealability because Petitioner has not

12

“made a substantial showing of the denial of a constitutional right,” as required under 28

13

U.S.C. § 2253(c)(2).

14

Accordingly,

15

IT IS ORDERED:

16

(1) Petitioner’s Petition for Writ of Habeas Corpus by a Person in State

17

Custody Pursuant to 28 U.S.C. § 2254 is DENIED, and this action is

18

DISMISSED WITH PREJUDICE. The Clerk of Court is directed to

19

enter judgment accordingly and close this case.

20
21

(2) Petitioner is DENIED a certificate of appealability in this case.
DATED this 27th day of September, 2011.

22
23
24
25
26
27
28
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