Green v. Larson et al

Filing 31

ORDER accepting 29 Report and Recommendations. The Petioner's 1 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is denied. It is further ordered denying Petitioner a Certificate of Appealability.(see attached pdf for complete information) Signed by Judge Raner C Collins on 8/30/2012. (GCP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Petitioner,

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Baron Sylvester Green, II,

vs.

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Barry Larson, et al.,
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Respondent.
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No. CV 10-005-TUC-RCC
ORDER

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On January 6, 2010 Petitioner filed a Petition under 28 U.S.C. § 2254 for a Writ of

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Habeas Corpus by a Person in State Custody. (Doc. 1). The Petition was fully briefed, and

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the Honorable Jacqueline J. Rateau, United States Magistrate Judge, filed a Report and

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Recommendation (Recommendation) in this action, which advised the Court to deny the

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Petition. (Doc. 29). The Recommendation advised the Court to dismiss the claims because

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they were either unexhausted or without merit. (Id.). Petitioner objects and argues the

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Recommendation erred as to all claims except Claims Five, Eight, and Nine. (Doc. 30). The

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Court will adopt the Recommendation and deny the Petition.

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I.

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BACKGROUND
Petitioner does not object to the Recommendation’s summary of the relevant factual

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and procedural history.

(Doc. 30).

The Court has reviewed this portion of the

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Recommendation for clear error and, finding none, adopts the Recommendation’s summary

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of the relevant factual and procedural history.

See Advisory Committee Notes to

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Fed.R.Civ.P. 72 (citing Campbell v. United States District Court, 501 F.2d 196, 206 (9th

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Cir.1974)).

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II.

STANDARD FOR HABEAS RELIEF

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Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a

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petitioner is not entitled to habeas relief on any claim “adjudicated on the merits” by the state

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court unless that adjudication:

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(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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A state court decision is “contrary to” clearly established precedent if the state court

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applies a rule that contradicts governing law set forth by the Supreme Court or if the state

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court arrives at a result different from Supreme Court precedent on materially

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indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). In characterizing

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claims subject to analysis under the “contrary to” prong, the Court has observed that “a run-

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of-the-mill state-court decision applying the correct legal rule to the facts of the prisoner’s

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case would not fit comfortably within § 2254(d)(1)’s ‘contrary to’ clause.” Id. at 406;

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Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004).

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Under the “unreasonable application” prong, a federal habeas court may grant relief

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where a state court “identifies the correct governing legal rule from [the Supreme] Court’s

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cases but unreasonably applies it to the facts of the particular...case” or “unreasonably

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extends a legal precedent from [Supreme Court] precedent to a new context where it should

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

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apply.” Williams, 529 U.S. at 407. The “unreasonable application” clause requires a state

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court decision to be more than incorrect or erroneous; the state court’s application of federal

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law must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct.

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1166 (2003) (citing Williams, 529 U.S. at 409-12).
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Under the standard set for in § 2254(d)(2), habeas relief is available only if the state

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court decision was based on an unreasonable determination of the facts. Miller-El v. Dretke,

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545 U.S. 231, 240, 125 S.Ct. 2317 (2005) (Miller-El II). A state court decision “based on

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a factual determination will not be overturned on factual grounds unless objectively

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unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v.

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Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029 (2003) (Miller-El I); see Taylor v. Maddox, 366

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F.3d 992, 999 (9th Cir. 2004). In considering a challenge under § 2254(d)(2), state court

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factual determinations are presumed to be correct, and a petitioner bears the “burden of

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rebutting this presumption by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1);

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Miller-El II, 545 U.S. at 240.

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III.

INEFFECTIVE ASSISTANCE OF COUNSEL

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A.

Strickland Standard

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Claims of ineffective assistance of counsel are governed by the principles set forth in

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Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a petitioner

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must show that counsel's representation fell below an objective standard of reasonableness

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and that the deficiency prejudiced the defense. Id. at 687-88.

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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; see Wong v. Belmontes, 130 S.Ct. 383, 384 (2009) (per curiam); Bobby v. Van Hook,

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130 S.Ct. 13, 16 (2009) (per curiam). Thus, to satisfy Strickland' s first prong, a defendant

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

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be considered sound trial strategy.” 466 U.S. at 689. With respect to Strickland' s second

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prong, a petitioner must affirmatively prove prejudice by “show[ing] that there is a

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reasonable probability that, but for counsel's unprofessional errors, the result of the

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proceeding would have been different. A reasonable probability is a probability sufficient

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to undermine confidence in the outcome.” Id. at 694.

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B.

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In his petition for post-conviction relief (PCR), Petitioner argued trial counsel was

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ineffective for failing to secure the testimony of five witnesses who would have testified, to

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varying degrees, to Olden’s confession. (Doc. 17-4 at 17-20). The PCR court ruled trial

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counsel was not ineffective for failing to call these witnesses because the decision was

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tactical. (Doc. 1 at 30).

Claim One

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Petitioner re-alleges this same claim now, (Doc. 1 at 3; Doc. 2 at 8-12), and the

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Recommendation found the PCR court’s decision was not unreasonable. (Doc. 29 at 16-19).

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In his objections to the Recommendation, Petitioner argues the Recommendation

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mischaracterizes the potential testimony from the five witnesses, ignores the cumulative

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effect the witnesses’ statements would have had, and does not analyze whether Olden’s

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confessions were statements against interest and excepted from the hearsay rules. (Doc. 30

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at 2-8).

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The Court finds these objections unpersuasive. The question here is whether the PCR

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court was unreasonable in determining that trial counsel employed a reasonable strategy in

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deciding not to call the five witnesses. Based on the record, that determination was not

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unreasonable. Petitioner has not demonstrated ineffectiveness of counsel as to Claim One.

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C.

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At trial, Petitioner’s counsel attempted to introduce the testimony of Ron Perkins.

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(Petition Ex. B at 8::14-15:21).1 Ron Perkins would have testified that Reynaldo Olden told

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him that Olden and Monte Jenkins shot the victims. (Id.). After Perkins invoked his Fifth

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Amendment rights, the trial court found him unavailable as a witness and also precluded

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introduction of his free talk. (Petition Ex. C at 3:3-5:15; 108:13-114:4).

Claim Two

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In his petition for post-conviction review (PCR), Petitioner alleged his trial counsel

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was ineffective for failing to (1) provide the details of Ron Perkins’s proposed testimony to

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Citation is to the page numbers on the transcript originals and not to the page
numbers assigned by CM/ECF.
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the court, (2) tell the court that five independent witnesses could corroborate Perkins’

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testimony, (3) argue Perkins could not invoke his Fifth Amendment rights because he had

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no reason to apprehend prosecution as a result of his testimony, (4) seek use immunity for

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Perkins’s testimony, and (5) seek admission of the free talk transcript through a hearsay

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exception. (Doc. 17-4 at 6-16). The PCR court ruled Petitioner’s claims failed both prongs

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of the Strickland test. (Doc. 1 at 28). Petitioner’s counsel’s performance was not deficient

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because deciding not to re-argue his position after the trial court had already made its

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decision was reasonable. (Id.). Even if counsel’s performance were deficient, it was not

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prejudicial because Perkins’s weak testimony was directly contradicted by the eye witness

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testimony of one victim. (Id. at 29). Finally, the PCR court ruled the free talk was

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inadmissible as hearsay, so trial counsel’s failure to argue for its admission was neither

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deficient nor prejudicial. (Id.).

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Petitioner re-alleges these same claims now in Claim Two of the Petition. (Doc. 1 at

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4; Doc. 2 at 12-21). The Recommendation found the PCR court’s decision was not

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unreasonable. (Doc. 29 at 10-16). In his objections to the Recommendation, Petitioner again

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argues Perkins was not entitled to invoke his Fifth Amendment rights and, if he was, he

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should have been granted use immunity. (Doc. 30 at 8-9).

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These objections only relate to whether trial counsel’s performance was deficient for

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failing to more forcibly argue these issues. The problem remains that Petitioner’s inability

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to call Perkins as a witness or introduce his free talk did not prejudice him. As the PCR court

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noted, Perkins would only be able to testify that Olden and Jenkins were present at the

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shooting but could not testify as to whether Petitioner’s was present. This evidence pales in

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comparison to a victim’s testimony that Petitioner was in the room and held a gun.

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Because failure to introduce Perkins’s testimony or free talk was not prejudicial, the

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Court finds Petitioner has not demonstrated ineffective assistance of counsel as to Claim

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Two.

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D.

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In his PCR, Petitioner argued trial counsel was ineffective because he failed to (1)

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make an adequate pretrial investigation, (2) ask certain questions in voir dire, (3) make an

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adequate opening statement or closing argument, (4) impeach Ron Otteson’s testimony based

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on his admitted drug use, (5) instruct a defense witness how to dress for court, (6) effectively

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cross-exam a victim, (7) suppress Petitioner’s statement, or (8) request certain jury

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instructions. (Doc. 17-4 at 20-25). The PCR court ruled Petitioner’s allegations did not

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amount to ineffective assistance of counsel because he could not demonstrate substantial

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prejudice or lack of strategy. (Doc. 1 at 31).

Claim Four

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Petitioner re-alleges these claims in Claim Four of the Petition. (Doc. 1 at 6; Doc. 2

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at 23-27). The Recommendation found the PCR court’s decision was not unreasonable and,

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after de novo review, that Petitioner’s statement was voluntary. (Doc. 29 at 22-26). In his

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objections to the Recommendation, Petitioner argues the Recommendation did not properly

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analyze the record but fails to give any specific examples or argument. Therefore, the Court

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finds Petitioner has not objected to this portion of the Recommendation. Finding no clear

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error, the Court adopts the Recommendation as to this claim. See Advisory Committee Notes

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to Fed.R.Civ.P. 72 (citing Campbell, 501 F.2d at 206).

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IV.

CLAIM THREE

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At trial, Monte Jenkins invoked his Fifth Amendment rights. (Petitioner Ex. B at

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3:11-7:25). As a result, Petitioner moved to admit a letter Jenkins wrote claiming the

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Petitioner left before the shooting began. (Petition Ex. C at 105:2-108:3). The trial court

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concluded the letter was not a statement against interest and denied the motion. (Id.)

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Petitioner appealed the ruling, but the Arizona Court of Appeals upheld the trial court’s

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decision because the letter did not clearly place Jenkins at the shooting. (Doc. 17-1). The

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Arizona Court of Appeals also found that preclusion of the letter did not violate Petitioner’s

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right to present a defense. (Id.).

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Petitioner now claims now that it violated his right to present a defense. (Doc. 1 at

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5; Doc. 2 at 21-22). The Recommendation found the letter was reasonably interpreted as not
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being against Jenkins’s interest.

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Recommendation, Petitioner argues Jenkins’s statement that Petitioner left before the

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shooting began requires the inference that Jenkins was present at the shooting, which would

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be inculpatory. (Doc. 30 at 10). The Court disagrees. The inference is not unavoidable, and

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Jenkins’s letter was not sufficiently explicit to qualify as a statement against interest. The

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Court will adopt the Recommendation as to this claim.

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V.

(Doc. 29 at 19-22).

In his objections to the

CLAIMS SIX & SEVEN

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In Claims Six and Seven, Petitioner alleges due process violations as a result of the

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PCR court’s refusal to hold an evidentiary hearing or allow discovery. (Doc. 1 at 8-9; Doc.

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2 at 28-29). The Recommendation found these claims were not exhausted because they were

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presented only as state law claims to the Arizona Court of Appeals. (Doc. 29 at 5-7). In his

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objections to the Recommendation, Petitioner argues his citation to federal authority in his

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appeal of these issues is sufficient to exhaust the claims. (Doc. 30 at 12). Simply citing to

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federal authority is not sufficient to raise a claim for exhaustion purposes. See Shumway v.

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Payne, 223 F.3d 982, 987 (9th Cir. 2000); Castillo v. McFadden, 399 F.3d 993, 1003 (9th

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Cir. 2005). Accordingly, the Court adopts the Recommendation as to this issue.

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VI.

REMAINING CLAIMS & MOTIONS

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Petitioner has not objected to the Recommendation’s findings regarding Claims Five,

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Eight, and Nine. (Doc. 30). The Court has reviewed these portions of the Recommendation

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for clear error and, finding none, adopts them.

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Fed.R.Civ.P. 72 (citing Campbell, 501 F.2d at 206).

See Advisory Committee Notes to

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Within his objections, Petitioner also moved for an extension of time to file

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supplemental objections and for discovery and an evidentiary hearing. The Court will not

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extend the time for objections because Petitioner had adequate time to prepare his objections

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and offers no specific reason why the time allotted was not sufficient. The Court will deny

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the motion for discovery and an evidentiary hearing because the Court has determined that

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the Petition is without merit.

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VII.

CERTIFICATE OF APPEALABILITY

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A certificate of appealability may issue “only if the applicant has made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “[A] substantial

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showing of the denial of a constitutional right ... includes showing that reasonable jurists

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could debate whether ... the petition should have been resolved in a different manner or that

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the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack

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v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

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(1983)). “When the district court denies a habeas petition on procedural grounds without

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reaching the prisoner’s underlying constitutional claim, a [certificate of appealability] should

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issue when the prisoner shows, at least, that jurists of reason would find it debatable whether

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the petition states a valid claim of the denial of a constitutional right and that jurists of reason

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would find it debatable whether the district court was correct in its procedural ruling.” Slack,

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529 U.S. at 484.

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The Court finds that Petitioner has not demonstrated that reasonable jurists would find

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it debatable whether the Court was correct in its procedural rulings, that the petition should

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have been resolved in a different manner, or that the issues presented were “adequate to

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deserve encouragement to proceed further.”

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VIII. CONCLUSION

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As discussed above, this Petition is without merit. The state courts reasonably

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resolved Claims One through Four. Petitioner failed to exhaust Claims Six and Seven, and

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Petitioner does not object to the Recommendation’s resolution of the remaining claims.

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Accordingly,

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///
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The Court ACCEPTS the Recommendation of Magistrate Judge Rateau. (Doc. 29).

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IT IS ORDERED that the Petitioner’s Petition is DENIED. (Doc. 1 in CV 10-005).

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IT IS FURTHER ORDERED denying Petitioner a Certificate of Appealability.

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DATED this 30th day of August, 2012.

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