Holden v. Schriro et al

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS 10 in its entirety. The Objections (Doc. 13 ) raised by the Petitioner are OVERRULED. It is ORDERED that the Court has determined, without need for additional argument, to DENY the Certificate of Appealabi lity. It is further ORDERED that the Petition for Writ of Habeas Corpus (Doc. 1 ) is DENIED and this action is DISMISSED. A Final Judgment shall enter separately. This case is closed. Signed by Judge David C Bury on 9/21/12. (See attached PDF for complete information.) (KAH)

1
2
3
4
UNITED STATES DISTRICT COURT

5
DISTRICT OF ARIZONA

6
7
8
9
10
11

Benjamin Patrick Holden,

)
)
Petitioner,
)
)
v.
)
)
Charles L. Ryan, et al.,
)
)
Respondents.
)
______________________________________ )

CV-09-435-TUC-DCB

ORDER

12
13

Petitioner, Benjamin Patrick Holden, filed a Petition for Writ of

14

Habeas Corpus pursuant to 28 U.S.C. §2254. (Doc. 1.) This matter was

15

referred to the United States Magistrate Judge pursuant to

16

§636(b) and the local rules of practice of this Court for a Report and

17

Recommendation (R&R) on the habeas petition.

18

Judge recommends to the Court that the petition should be denied and the

19

action should be dismissed. Before the Court are the Magistrate Judge’s

20

R&R and Petitioner’s Objections.1 Having conducted a de novo review, this

21

Court will adopt the Report and Recommendation in its entirety, deny the

22

habeas petition and dismiss this action.

23

28 U.S.C.

In the R&R, the Magistrate

FACTUAL BACKGROUND

24

The Arizona Court of Appeals articulated the facts, as follows:

25

On July 29, 2002, the victim, T., arrived uninvited at the
home of L., an acquaintance. A group of people, including

26
27
1

28

Upon request of the Court, the state trial record was also filed.
(Docs. 14-17.)

1

Holden, were gathered at L.’s home. T., who was both
intoxicated and confrontational, entered L.’s bedroom, where
L. was in bed with an injured leg. L. and his girlfriend,
K., repeatedly asked T. to leave L.’s home, but T. refused.
As the argument between L. and T. escalated, L. and K.
summoned Holden to the bedroom to “get [T.] out of here.”
Holden asked T. to leave the home but T. refused and
advanced upon him, holding a ceramic cow’s head and large
conch shells.

2
3
4
5
6

Holden brandished a handgun and ordered T. several times to
leave the home, threatening to shoot him if he did not
comply.

7
8

T. refused and Holden shot him in the head, killing him.
Holden was arrested approximately one week later, and a
grand jury indicted him for first-degree murder. The jury
rejected Holden’s alternative theories of self-defense and
accident and found him guilty as charged. The trial court
sentenced Holden to life in prison.

9
10
11

(Doc. 9-1 at 3-4.)

12

PROCEDURAL BACKGROUND

13

On July 21, 2003, a jury in the Pima County Superior Court returned

14

a guilty verdict for first degree murder of Daniel Tilley.

15

was sentenced to life in prison.

16

the verdict and sentence on the direct appeal and the Arizona Supreme

17

Court denied review.

18

relief was denied without a hearing, the Arizona Court of Appeals

19

corrected the sentence imposed to 25 to life imprisonment and remanded

20

for

21

established his counsel was ineffective for depriving him of his right

22

to testify.

23

without a hearing.

an

evidentiary

Petitioner

The Arizona Court of Appeals affirmed

Although his first petition for post-conviction

hearing

to

determine

whether

Petitioner

had

The state trial court denied the claim on December 30, 2008
Petitioner did not appeal that ruling.

24

On August 7, 2009, Petitioner timely filed the herein federal

25

petition for habeas corpus, making the following claims: (1) “Holden’s

26

conviction and sentence violated the Sixth Amendment because of the

27

ineffective assistance of trial counsel through failure to consult and

28

2

1

present necessary experts”; (2) “The erroneous denial of Holden’s request

2

for a crime prevention jury instruction denied Holden due process under

3

the Fourteenth Amendment”; (3) “The State’s submission of an unredacted

4

tape

5

constituted prosecutorial misconduct and a violation of Holden’s right

6

to effective counsel”; and (4) “The improper comments made by the

7

prosecutor violated the defendant’s right to due process.”

8

filed an Answer on December 9, 2009.

9

issued on June 28, 2012.

to

the

jury

and

counsel’s

failure

to

investigate

[the]

tape

Respondents

The Report and Recommendation

10

The R&R recommends that Ground 2, failure to instruct jury on crime

11

prevention, was fairly exhausted and may be resolved on the merits;

12

Grounds 3 and 4, regarding prosecutorial misconduct were not properly

13

exhausted and procedurally defaulted, such that they are not subject to

14

review on the merits.

15

trial counsel, the R&R resolved the claims on the merits, finding no

16

violation of the 6th Amendment with reference to lack of expert testimony,

17

failure to instruct the jury on crime prevention, and the mistakenly

18

unredacted audio tape of Petitioner’s statement to the police.

19

As the remainder go to ineffective assistance of

STANDARD OF REVIEW

20

When objection is made to the findings and recommendation of a

21

magistrate judge, the district court must conduct a de novo review.

22

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

23

PETITIONER’S OBJECTIONS

24

Petitioner objects to the analysis and conclusions contained in the

25

R&R, as follows: “Claim 1 sought relief because of a violation of the

26

Sixth Amendment’s right to effective assistance of counsel based on a

27

failure to consult and present necessary experts. Claim 2 presented a due

28

3

1

process claim under the Fourteenth Amendment based on a denial of

2

Petitioner’s

3

(Objection at 1.)

4

of ineffective assistance of trial and appellate counsel, as articulated

5

in

6

request

for

a

crime

prevention

jury

instruction.”

Both claims are essentially based in the allegation

Strickland v. Washington, 466 U.S. 668 (1984)
Under

Strickland's

first

prong,

a

defendant

must

prove

that

7

counsel's performance was “deficient.”

8

111 (2009). Counsel's performance will be held constitutionally deficient

9

only if the defendant proves that it “fell below an objective standard

10

of reasonableness,” as measured by “prevailing professional norms.”

11

Strickland, 466 U.S. at 688. In reviewing counsel's performance for

12

deficiency, courts “must be highly deferential” and avoid the temptation

13

to

14

unreasonable” simply because in hindsight the defense has proven to be

15

unsuccessful. Id. at 689. Courts are required to “indulge a strong

16

presumption that counsel's conduct falls within the wide range of

17

reasonable professional assistance.” Id. The defendant bears the burden

18

of overcoming the strong presumption that counsel performed adequately.

19

Id.

20

“conclude

Even

if

that

the

a

particular

defendant

Knowles v. Mirzayance, 556 U.S.

act

succeeds

or

in

omission

of

showing

counsel

that

was

counsel's

21

performance was deficient, the second prong of the Strickland test

22

requires

23

prejudicial to the defense. Id. at 692. To establish prejudice, the

24

defendant “must show that there is a reasonable probability that, but for

25

counsel's unprofessional errors, the result of the proceeding would have

26

been different.” Id. at 694. “A reasonable probability is a probability

27

sufficient to undermine confidence in the outcome.” Id. “It is not enough

28

4

the

defendant

to

prove

that

counsel's

deficiencies

were

1

for the defendant to show that the errors had some conceivable effect on

2

the

3

Strickland places the burden of proving prejudice on the defendant, not

4

the government. Wong v. Belmontes, 558 U.S. 15 (2009).

outcome

of

the

proceeding.”

Id.

at

693.

As

with

deficiency,

5

The Supreme Court has provided two reasons why the federal court

6

must apply a “doubly deferential” judicial review to a state court's

7

application of the Strickland standard under the AEDPA. Yarborough v.

8

Gentry, 540 U.S. 1, 5–6 (2003). First, as noted above, Strickland

9

instructs courts to review a defense counsel's effectiveness with great

10

deference, Strickland, 466 U.S. at 689, and AEDPA requires federal courts

11

to defer to the state court's decision unless its application of Supreme

12

Court precedent was objectively unreasonable, Renico v. Lett, ––– U.S.

13

––––, 130 S.Ct. 1855, 1862 (2010). When a federal court reviews a state

14

court's Strickland determination under AEDPA, both AEDPA and Strickland's

15

deferential standards apply; hence, the Supreme Court's description of

16

the standard as “doubly deferential.”

Yarborough, 540 U.S. at 6.

17

Second, our review is “doubly deferential” because Strickland

18

provides courts with a general standard, rather than a specific legal

19

rule. Knowles, 556 U.S. at 123; see also Bobby v. Van Hook, 558 U.S. 4

20

(2009)(holding that Strickland necessarily established a general standard

21

because “[n]o particular set of detailed rules for counsel's conduct can

22

satisfactorily take account of the variety of circumstances faced by

23

defense counsel or the range of legitimate decisions regarding how best

24

to represent a criminal defendant” (internal quotation marks omitted)).

25

Because

26

substantial element of judgment,” the more general the rule provided by

27

the Supreme Court, the more latitude the state courts have in reaching

28

5

judicial

application

of

a

general

standard

“can

demand

a

1

reasonable outcomes in case-by-case determinations. Yarborough, 541 U.S.

2

at 664. In turn, the state courts' greater leeway in reasonably applying

3

a general rule translates to a narrower range of decisions that are

4

objectively unreasonable under AEDPA. See id. Accordingly, we review a

5

state court's decision applying Strickland's general principles with

6

increased, or double, deference. See Knowles, 556 U.S. at 123. When

7

applying this heightened deferential standard, we review the “last

8

reasoned decision” by the state court addressing the petitioner's claim.

9

Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.2004).

10

Here,

the

last

reasoned

decision

addressing

Petitioner’s

11

ineffective assistance of counsel claim is that of the Arizona Court of

12

Appeals on state post-conviction review.

13

A.

Claim 1:Failure to Present Expert Testimony

14

In a nutshell, Petitioner claims that trial counsel was ineffective

15

in that no counter expert testimony was offered during the jury trial.

16

Petitioner argues that the analysis taken in the R&R followed the same

17

missteps taken by the Arizona Court of Appeals; the decision of the state

18

court was based on an unreasonable determination of the facts in light

19

of

20

Strickland’s prejudice prong. Petitioner claims that the R&R and the

21

state court failed to embrace the facts pointed to by Petitioner. With

22

respect to the potential impact of Dr. Enoka’s expert testimony, the R&R

23

took aim at Petitioner’s inability to offer evidence “…to undermine the

24

appellate court’s finding that ‘none of the three eyewitnesses to the

25

shooting corroborated that Danny aggressively lunged at Holden.’” R&R at

26

14:15-18. Petitioner claims that the R&R, like the Court of Appeals,

27

miscasts the facts upon which Enoka relied, commenting that “neither

28

6

the

evidence

presented

and

was

an

unreasonable

application

of

1

witness whose testimony he (Enoka) was provided was able to see what

2

happened at the time the weapon was discharged.” (Doc. 10 at 18-20.)

3

Petitioner maintains that the failure to present an expert such as Enoka

4

prejudiced his case before the jury, because there was at least a

5

reasonable probability that opinions such as Enoka's and Bevel's would

6

have favorably impacted the jury. For example, jurors would have learned

7

that the blood patterns in the bedroom supported Petitioner’s explanation

8

and that his assertion of no intent to pull the trigger was an acceptable

9

explanation under the facts. The expert opinions would have countered the

10

prosecutor’s insistence that Petitioner’s alleged threats, issued in his

11

effort to make victim leave, conclusively established intent to kill.

12

During the state post-conviction relief proceeding, Petitioner

13

submitted two affidavits containing the opinions of two experts: one,

14

Enoka, to support his theory that the gun had discharged involuntarily

15

and two, Bevel, to corroborate his theory of how the incident had

16

happened through the analysis of bloodstain patterns.

17

After a review of the record and the two affidavits, the appellate court

18

found that Petitioner did not establish prejudice and that there was no

19

reasonable probability that the result of the trial would be different

20

but for the inclusion of the expert testimony.

21

A state court’s factual findings “are presumed

(Doc. 1-1 at 5.)

correct unless

22

rebutted by clear and convincing evidence.” See Gonzalez v. Pliler, 341

23

F.3d 897, 903 (9th Cir. 2003); Williams v. Taylor, 529 U.S. 362, 400

24

(2000). “When a federal claim has been presented to a state court and the

25

state court has denied relief, it may be presumed that the state court

26

adjudicated the claim on the merits in the absence of any indication or

27

state-law procedural principles to the contrary.” Harrington v. Richter,-

28

7

1

-- U.S.--- , 131 S. Ct. 770, 784 (2011). “Clearly established Federal

2

law” means federal law clearly defined by the holdings of the Supreme

3

Court at the time of the state court decision. Cullen v. Pinholster,---

4

U.S.--- , 131 S. Ct. 1495 (2011) “A state court’s determination that a

5

claim lacks merit precludes federal habeas relief so long as ‘fairminded

6

jurists

7

decision.” Harrington v. Richter, 131 S. Ct. at 786 (citation omitted).

8

When the claim is ineffective assistance of counsel, Strickland provides

9

the clearly established federal law here. 466 U.S. at 690.

10

could

disagree’

on

the

correctness

of

the

The Arizona Court of Appeals addressed this claim.

state

court’s

(Answer, Ex.

11

H at 4-10.)

12

whether trial attorney decisions were unreasonable resulting in such

13

prejudice to the Petitioner that his due process fundamental right to a

14

fair trial was violated.

15

to due process is, in essence, the right to a fair opportunity to defend

16

against the State's accusations. The right[ ] ... to call witnesses in

17

one's own behalf ha[s] long been recognized as essential to due process.”

18

Chambers v. Mississippi, 410 U.S. 284, 294 (1973); see also Crane v.

19

Kentucky, 476 U.S. 683, 690 (1986) (holding that “an essential component

20

of procedural fairness is an opportunity to be heard”); Washington v.

21

Texas, 388 U.S. 14, 19 (1967) (“The right to offer the testimony of

22

witnesses ... is in plain terms the right to present a defense, the right

23

to present the defendant's version of the facts.... [The accused] has the

24

right to present his own witnesses to establish a defense. This right is

25

a fundamental element of due process of law.”).

At this juncture, as a federal court, the issue becomes

“The right of an accused in a criminal trial

26

That the Constitution affords Petitioner the right to present

27

witnesses in his defense does not mean that this right is absolute. “Even

28

8

1

relevant and reliable evidence can be excluded when the state interest

2

is strong.” Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir.1983). While

3

“[t]he right to present a defense is fundamental,” id., “the state's

4

legitimate interest in reliable and efficient trials is also compelling.”

5

Id. at 1451.

6

such

7

Petitioner’s

8

testimony of witnesses against Petitioner.

9
10
11
12
13

an

Here the focus is on whether or not the failure to present

expert
case

witness
before

amounted
the

jury,

to

constitutional

ie,

experts

to

prejudice
contradict

The appellate court dealt with this issue, as follows:
Holden argues his trial counsel was ineffective for failing
to consult with experts or present expert testimony to
support his defense. As part of his post-conviction
petition, Holden submitted affidavits containing the
opinions of two experts: one to support his theory that the
gun had discharged involuntarily and one to corroborate his
theory of how the incident had happened through the analysis
of bloodstain patterns.

14

27

Holden cites cases from Arizona as well as other
jurisdictions in which courts have found counsel ineffective
for failing to consult with an expert or secure scientific
testimony in defending a case. See, e.g., State v. Edwards,
139 Ariz. 217, 221, 677 P.2d 1325, 1329 (App.1983) (counsel
ineffective in context of insanity defense when he failed
to interview defendant's psychiatrist until day of trial);
see also Dugas v. Coplan, 428 F.3d 317, 331-32 (1st
Cir.2005) (finding counsel ineffective because “hopelessly
unprepared” to challenge state's “many expert witnesses” on
arson); Holsomback v. White, 133 F.3d 1382, 1387-88 (11th
Cir.1998) (finding counsel ineffective for not calling or
consulting expert witness in sexual abuse case with no
medical evidence of abuse and only evidence of guilt
testimony of alleged victim); Foster v. Lockhart, 9 F.3d
722, 726-27 (8th Cir.1993) (finding counsel ineffective for
failing to investigate or present defense of impotency in
rape case when “uncontradicted medical evidence” showed
defendant was “physically incapable of committing the rape
in the manner the victim and the State alleged at trial”);
Sims v. Livesay, 970 F.2d 1575, 1580-81 (6th Cir.1992)
(trial counsel's failure to investigate role of quilt in
shooting was ineffective when evidence would have “presented
the defense with a theory of the case that squared fully
with [defendant]'s version of events”). But our evaluation
of ineffective assistance of counsel claims is case

28

9

15
16
17
18
19
20
21
22
23
24
25
26

to
the

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

specific, and Holden is only entitled to relief on this
basis if counsel's failure to secure scientific testimony
constituted both deficient performance of counsel and could
have affected the outcome of the case. See Strickland, 466
U.S. at 687, 104 S.Ct. at 2064.
Because Holden has not shown he was prejudiced as a result,
we need not decide whether his counsel's performance was
deficient. See State v. Fulminante, 161 Ariz. 237, 260, 778
P.2d 602, 625 (1988) (applying prejudice prong first to
ineffective assistance of counsel claim); see also State v.
Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945 (1985)
(failure of one prong of the Strickland test results in
failure of claim). Holden contends an expert was needed to
refute Pima County Sheriff's Detective Marcus Amado's
testimony about the location of Danny's body and the lack
of blood in the area Holden claimed Danny had lunged.FN1 In
support of this argument, he submitted the opinion of Tom
Bevel, a forensic consultant.
Holden also claims Bevel's expert bloodstain analysis
supports his claim Danny “had moved to within an arm's
length of Holden, who was standing near the doorway.” But
Bevel's opinion was that Danny had been “standing in the
bedroom near the foot of the bed at the time he was shot.”
This opinion does not conflict with the state's theory, and
therefore, we fail to see how it would have changed the
outcome of the case had Bevel's opinion been introduced at
trial. See Bennett, 213 Ariz. 562, ¶ 25, 146 P.3d at 69
(defendant only suffers prejudice from counsel's alleged
errors if reasonable probability result of trial would have
been different but for errors).

17

27

Holden also emphasizes that Bevel stated Danny could have
remained upright for a few moments after he had been shot.
He argues this evidence “supports the inference that [Danny]
could have moved after being shot.” But he does not specify
how such an inference would have helped his defense when he
was claiming Danny had moved toward him before he was shot.
Similarly, Holden emphasizes that, in Bevel's opinion,
Danny's arm probably was in a raised position when he had
been shot. But Bevel never stated that such evidence
supports Holden's contention that Danny had been reaching
for the gun. Rather, Bevel opines that the bloodstains are
consistent with Danny's hand having been up by his head or
face, rather than Danny reaching out in front of him.
Because Bevel's opinion would not have changed the result
at trial, Holden has not established he suffered prejudice
as a result of counsel's failure to present that testimony.
Holden also argues his trial counsel was ineffective for
failing to use crime scene photographs to impeach Amado's
testimony that no blood was found near the doorway where
Holden said he was standing when he shot Danny. The

28

10

18
19
20
21
22
23
24
25
26

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

photograph at issue, which was not admitted at trial, shows
a tiny bloodstain on the ceiling. At trial, the prosecutor
asked Amado, “Did y[ou] find any bloodstains in the area
described by Mr. Holden as the area where the incident
occurred?” And the detective responded, “No, I did not.
Assuming for the sake of argument Amado's answer was
erroneous because of the photograph in question, Holden has
not demonstrated he suffered prejudice as a result. Holden's
own expert, Bevel, concluded that the photograph “further
substantiates that [Danny] was standing in the bedroom near
the foot of the bed at the time he was shot, as his head
would be near the ceiling and the backspatter would be
capable of reaching this area of the ceiling.” Thus,
Holden's own proffered expert testimony does not support the
inferences Holden would have us draw from the location of
the ceiling bloodstain. Holden has not demonstrated that the
admission of the photograph would have changed the outcome
of the case.
Holden has not shown he suffered prejudice by counsel's
failure to call a witness on the topic. Enoka would not
conclude with certainty the evidence showed the discharge
had been accidental but simply concluded the circumstances
surrounding the shooting “could have caused Mr. Holden to
hold the gun more firmly and thereby unintentionally pull[
] the trigger.” And many of the circumstances on which he
based that conclusion were taken from Holden's version of
events-a version that was discredited on many points by the
testimony of other witnesses. In addition, had the jury
believed Holden's version of the events, the jury could have
drawn many of the same inferences as Enoka without the
benefit of his expert testimony. See Gorney v. Meaney, 214
Ariz. 226, ¶ 15, 150 P.3d 799, 804 (App.2007) (expert
testimony inappropriate when jury can determine issue
without it).

19
20
21
22
23
24
25

Thus, although Enoka's testimony would have provided a
scientific explanation for Holden's theory that he had
accidentally pulled the trigger, it would not have been
enough to change the outcome of this case, given evidence
that strongly contradicted Holden's assertion that the gun
had discharged accidentally. Holden discharged the gun
within three inches of Danny's head, he did so after
repeatedly threatening to kill Danny, and none of the three
eyewitnesses to the shooting corroborated that Danny
aggressively lunged at Holden. Therefore, although the
testimony most likely would have been relevant and
admissible, Holden did not suffer prejudice by its absence
and the trial court did not err by dismissing the claim.

26
State v. Holden, 2008 WL 4559872 (Ariz.App. January 8, 2008.)

27
28

11

1

Having carefully reviewed the trial testimony and having compared

2

it

3

inconsistent with and add no new evidence to the evidence that was

4

already before the jury. (Docs. 14 - 17.) It cannot be said that the

5

failure to elicit this particular testimony rendered the result of the

6

trial unreliable or the proceeding fundamentally unfair. See Lockhart v.

7

Fretwell, 506 U.S. 364, 369(1993).

8

reveals that, had the jury believed Petitioner’s version of events, the

9

jury could have drawn many of the same inferences without the benefit of

to

the

post-trial

affidavits

of

Bevel

and

Enoka,

all

are

not

A review of the trial transcript

10

expert testimony.

11

(expert testimony inappropriate when jury can determine issue without

12

it.).

13

claim fails on the merits.

14

Cir. 1998).

15

B.

See Gorney v. Meaney, 214 Ariz. 226 (Ariz.App. 2007)

Consequently, the Court can find no resultant prejudice and this
Ainsworth v. Calderon, 138 F.3d 787, 791 (9th

Claim 2:Failure to Address Jury Instruction on Direct Appeal

16

Petitioner claims that his appellate counsel was ineffective for

17

not raising the issue on direct appeal of the trial court decision not

18

to give the jury a crime prevention instruction.

19

requested the jury be instructed on the crime prevention justification

20

set forth in A.R.S. § 13-411. The trial court refused the instruction,

21

after a lengthy discussion with counsel. Although not specifically raised

22

by appellate counsel in the direct appeal, the Arizona Court of Appeals

23

addressed the substantive question of whether the trial court should have

24

included the crime prevention instruction at trial in the post-conviction

25

and appeal from the post-conviction relief proceeding. (Answer, Ex. H.)

26

The R&R recommends denial of this claim because Petitioner fails to

27

demonstrate that the state appellate court’s factual findings were

28

12

At trial, Petitioner

1

unreasonable. Petitioner objects that the appellate court bent the facts

2

to sustain the denial of the instruction.

3

Two questions are raised: first whether there was ineffective

4

assistance of appellate counsel and second whether or not the state

5

appellate court properly resolved the issue of the jury instruction.

6

Because the appellate court directly addressed this issue, there is no

7

Strickland prejudice with reference to the ineffective assistance of

8

appellate counsel claim.

9

The other question is whether or not the failure to give the jury

10

instruction can be raised to a

11

violation as interpreted and applied by the state trial and appellate

12

courts. See Estelle v. McGuire, 502 U.S. 62, 71-72 (recognizing that

13

erroneous jury instruction under state law could only be cognizable in

14

federal habeas if it so infected trial it violated due process); Souch

15

v. Schaivo,

16

state

17

proceedings), cert. denied, 537 U.S. 859 (2002). The state court and the

18

appellate court engaged in factfinding to resolve this issue.

19

requires federal courts to accord more deference to state court decisions

20

underlying a §2254 petition with regards to both law and facts. See

21

Harrington, 131 S. Ct. at 785; see also Robinson v. Schriro, 595 F.3d

22

1086, 1099 (9th Cir. 2010), cert. denied, 131 S. Ct. 566 (2010). Under

23

the AEDPA, “state court findings of fact are presumed correct unless

24

rebutted by clear and convincing evidence.” Gonzalez v. Pliler, 341 F.3d

25

897, 903 (9th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1)). “Even in the

26

context of federal habeas, … [d]eference does not by definition preclude

27

relief. A federal court can disagree with a state court’s credibility

28

13

law

federal constitutional due process

289 F.3d 616, 623 (9th Cir.) (recognizing that generally
errors

are

not

cognizable

in

federal

habeas

corpus

The AEDPA

1

determination and, when guided by the AEDPA, conclude the decision was

2

unreasonable or that the factual premise was incorrect by clear and

3

convincing evidence.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003);

4

see also Hall v. Dir. of Corrs., 343 F.3d 976, 984 n.8 (9th Cir. 2003)

5

(“AEDPA, although emphasizing proper and due deference to the state

6

court?s findings, did not eliminate federal habeas review. Where there are

7

real, credible doubts about the veracity of essential evidence and the

8

person who created it, AEDPA does not require us to turn a blind eye.”)

9

“The state court unreasonably applies clearly established federal law if

10

it “either 1) correctly identifies the governing rule but then applies

11

it to a new set of facts in a way that is objectively unreasonable, or

12

2) extends or fails to extend a clearly established legal principle to

13

a new context in a way that is objectively unreasonable.”

14

Runnels, 556 F.3d 995, 997 (9th Cir. 2009) (quoting Hernandez v. Small,

15

282 F.3d 1132, 1142 (9th Cir. 2002)). This court “must defer to the state

16

court?s factual findings unless a defect in the process is so apparent

17

that “any appellate court . . . would be unreasonable in holding that the

18

state court?s factfinding process was adequate.” DeWeaver, 556 F.3d at 997

19

(quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)). This is

20

a “highly deferential standard for evaluating state-court rulings,” Lindh

21

v. Murphy, 521 U.S. 320, 333 (1997). The Supreme Court has held that the

22

petitioner has the burden of showing that the state court decision is

23

objectively unreasonable. See Harrington, 131 S.Ct. at 784.

24

Petitioner’s

trial

attorney

argued

for

the

use

of

DeWeaver v.

the

crime

25

prevention jury instruction to the trial judge.

26

persuasive, the court ruled against him, and he lodged his objection.

27

(Doc. 16-2 at 109 - 122.) “[I]t is not reversible error to reject a

28

14

His argument was not

1

defendant’s proposed instruction on his theory of the case if other

2

instructions, in their entirety, adequately cover that defense theory.”

3

Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir. 1995)(quotation marks

4

omitted). The issue was addressed by the appellate court, as follows:

5
6
7
8
9
10
11
12
13
14
15
16
17

At trial, Holden requested the jury be instructed on the crime
prevention justification set forth in A.R.S. § 13-411. The
trial court refused the instruction. Holden now contends his
appellate counsel was ineffective in failing to challenge that
ruling on appeal.
Section 13-411(A) provides a defense to the use of physical
force or deadly physical force against another person “if and
to the extent the person reasonably believes that physical
force or deadly physical force is immediately necessary to
prevent the other's commission of [one of the enumerated
crimes].” The statute further provides there is no duty to
retreat before using deadly or nondeadly physical force and
that a person “is presumed to be acting reasonably” when
acting pursuant to the statute. § 13-411(B), (C). Holden
contends he was entitled to this instruction because, in
attempting to remove Danny from the residence, he was
preventing Danny from committing aggravated assault. See §
13-411(A) (aggravated assault committed under § 13-1204(A)(1)
or (2) one of enumerated crimes under crime prevention
statute). The trial court refused the requested instruction
after the state argued that the defense was not supported by
the evidence.

27

A defendant is entitled to any justification instruction
“supported by ‘the slightest evidence.’ “ State v. Hussain,
189 Ariz. 336, 337, 942 P.2d 1168, 1169 (App.1997), quoting
State v. Dumaine, 162 Ariz. 392, 404, 783 P.2d 1184, 1196
(1989). Holden emphasizes the crime prevention defense is
broader than the other justification defenses. Its only
limitation upon the use of deadly force is “the reasonableness
of the response,” State v. Korzep, 165 Ariz. 490, 492, 799
P.2d 831, 833 (1990), while “the other justification defenses
require an immediate threat to personal safety before deadly
force may be used.” Id. Therefore, the self-defense
instruction was not necessarily adequate because a jury could
find one without the other. See id. (emphasizing differences
between § 13-411 and other justification defenses); State v.
Garfield, 208 Ariz. 275, ¶ 15, 92 P.3d 905, 909 (App.2004)
(because crime prevention justification “presents a unique
defense,” not harmless error when jury merely instructed on
self-defense); Hussain, 189 Ariz. at 339, 942 P.2d at 1171
(self-defense instruction did not adequately cover the
requested instruction based on § 13-411); see also State v.
Taylor, 169 Ariz. 121, 123, 817 P.2d 488, 490 (1991)

28

15

18
19
20
21
22
23
24
25
26

1

(reversible error to fail to instruct jury when slightest
evidence supported crime prevention justification).

2
3
4
5
6
7
8
9
10

Holden contends that, had appellate counsel raised the issue
to this court, the outcome of his appeal might have been
different. [footnote omitted] See Bennett, 213 Ariz. 562, ¶
25, 146 P.3d at 69. He relies on Garfield, issued while his
appeal was pending in this court, in which we reversed a
conviction for the trial court's refusal to instruct the jury
on the crime prevention defense. See 208 Ariz. 275, ¶ 15, 92
P.3d at 909. Holden complains that his counsel failed to seek
leave to file a supplemental brief pursuant to Garfield and,
in the alternative, that his appellate counsel could have made
the same argument the defendant made in Garfield in his
opening brief-that the crime prevention instruction applies to
an invited guest-based on Arizona law at that time. See
Korzep, 165 Ariz. at 493-94, 799 P.2d at 834-35 (holding crime
prevention defense applicable to resident of house protecting
against crime by another resident and suggesting defense
applicable to even broader classes of persons).

11
12
13
14
15
16

In Garfield, the trial court had refused to provide an
instruction on the crime prevention defense because the
defendant was only a guest in the home he was arguably trying
to protect. 208 Ariz. 275, ¶ 10, 92 P.3d at 908. Anchoring our
analysis
in
the
legislative
intent
behind
the
statute-protecting Arizona homes from crime-we rejected that
distinction and found that such an instruction was reasonably
supported by the evidence. Id. ¶¶ 14-15, 92 P.3d 905. We
reversed the defendant's conviction, finding he had suffered
prejudice, in part because the self-defense instruction had
not been an adequate substitute. Id. ¶ 15, 92 P.3d 905.

17

27

We agree with Holden that Garfield might have changed the
outcome of his case if the evidence supported such an
instruction. But unlike in Garfield, where we held the
defendant was entitled to the crime prevention instruction
based on evidence the victim had drawn a gun before the
defendant shot him, id. ¶ 12, 92 P.3d 905, there was no
evidence Danny was threatening anyone with a deadly weapon or
dangerous instrument at the time Holden entered the bedroom in
an effort to make Danny leave. And even assuming the cow's
head or conch shells could be considered dangerous
instruments, the record is clear Holden continued to point the
gun at Danny well after Danny had put any such items down.
Although Holden emphasizes the breadth of the crime prevention
defense in comparison to self-defense, the former defense is
not available to a defendant who uses greater force than
necessary to prevent the crime. See State v. Martinez, 202
Ariz. 507, ¶ 12, 47 P.3d 1145, 1147-48 (App.2002) (defendant
must have reasonable belief that force need be used and amount
of force is necessary to justify actions under crime
prevention defense). Holden presented no evidence that, at the

28

16

18
19
20
21
22
23
24
25
26

1
2
3
4
5
6
7

time he first threatened and then used deadly physical force
against Danny, Holden could have “reasonably believe[d]” that
such force was “immediately necessary” to prevent Danny from
assaulting anyone with a deadly weapon or dangerous
instrument. § 13-411(A). Therefore, Holden could not have
suffered prejudice when the trial court refused the
instruction and when appellate counsel failed to raise the
issue on appeal. We find no abuse of discretion in the trial
court's dismissal of this claim.
State v. Holden, 2008 WL 4559872 (Ariz.App. January 8, 2008.)
Having reviewed the trial transcript, this Court does not find that

8

the appellate court’s decision was objectively reasonable.

9

claim of ineffective assistance of appellate counsel lacks a showing of

10

prejudice such that no further review is warranted.

11
12
13
14

Further, the

CONCLUSION
Accordingly, after conducting a de novo review of the record, which
included reading the entire record and the transcript of the trial,
IT IS ORDERED that the Court ADOPTS the Report and Recommendation

15

(Doc. 10) in its entirety.

16

Petitioner are OVERRULED.

17

The Objections (Doc. 13) raised by the

IT IS FURTHER ORDERED that the Court has determined, without need

18

for additional argument, to DENY the Certificate of Appealability.

19

11, Rules Governing Section 2254 Cases.

20

specific issues that serve to satisfy the showing required by 28 U.S.C.

21

§2253(c)(2), and finds none present in this case.

22

The Court has considered

IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus

23

(Doc. 1) is DENIED and this action is DISMISSED.

24

enter separately.

25

A Final Judgment shall

This case is closed.

DATED this 21th day of September, 2012.

26
27
28

Rule

17