Amaro v. State of Arizona
Filing
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REPORT AND RECOMMENDATIONS, Magistrate Judge recommends that the District Court, enter an order DENYING 5 Amended Petition for Writ of Habeas Corpus (State/2254). The Clerk is directed to send a copy of this report and recommendation to the petitioner and the respondents.. Signed by Magistrate Judge Glenda E Edmonds on 7/12/2011. (JKM)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Ramon Amaro,
Petitioner,
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vs.
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Charles Ryan; et al.,
Respondents.
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No. CIV-10-048-TUC-RCC (GEE)
REPORT AND
RECOMMENDATION
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On January 21, 2010, Ramon Amaro, an inmate confined at the Arizona State Prison
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Complex in Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to Title 28,
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United States Code, Section 2254. He filed an amended petition on March 17, 2010. (Doc. 5)
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Amaro claims his trial counsel was ineffective and counsel’s erroneous advice prevented him
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from testifying on his own behalf. Id.
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Pursuant to the Local Rules, this matter was referred to Magistrate Judge Edmonds for
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report and recommendation. See LRCiv. 72.1. The Magistrate Judge recommends the District
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Court, after its independent review of the record, enter an order denying the Amended Petition
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for Writ of Habeas Corpus. Counsel was not ineffective, and Amaro’s right-to-testify claim is
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procedurally defaulted.
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Summary of the Case
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On December 18, 2006, Amaro was convicted after a jury trial of one count of
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continuous sexual abuse of a child under fourteen, two counts of sexual conduct with a minor
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under fifteen, one count of sexual abuse of a minor under fifteen, and one count of furnishing
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obscene or harmful items to a minor. (Doc. 19, pp. 2-3) The trial court imposed a sentence of
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life imprisonment without parole for 35 years for the continuous sexual abuse count to run
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consecutively to terms of imprisonment for the remaining counts totaling 47.5 years. (Doc. 19,
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p. 7)
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At the trial, the state presented evidence that Amaro molested two sisters, Vanessa and
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Sierra, who lived with their mother in the same trailer court as Amaro. (Doc. 19, pp. 2-7)
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Amaro was a family friend who became their “main grandfather figure.” Id., p. 3. The offenses
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came to light when Amaro mailed to a third sister, Stephanie, photographs of himself engaging
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in sexual intercourse with Vanessa. Id., pp. 5-6. Police subsequently tape recorded a telephone
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conversation between Vanessa and Amaro. Id., p. 6. In that conversation, Amaro admitted to
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sending the photographs and agreed that “it all started” when Vanessa “got back from Alaska.”
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Id., p. 6. Vanessa returned from her trip to Alaska when she was in the eighth grade. Id., p.
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4.
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Amaro maintained at trial that the photographs were taken when Vanessa was 18 years
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old. Id., p. 6. He argued that Vanessa’s mother took them to the police because she was
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embarrassed and wanted to prevent him from possibly showing up at her older daughter’s
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upcoming wedding where he might embarrass the family further. Id., p. 28.
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After the trial and sentencing, Amaro filed a timely notice of appeal. Id., p. 7. Counsel
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filed an Anders brief informing the court that he could find no meritorious issues. Id. Amaro
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filed a supplemental brief pro se in which he gave a rambling account of his version of the
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events that led to his prosecution. (Doc. 19, Exhibit J) He made no specific reference to either
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state or federal law. Id. The court of appeals affirmed on May 8, 2008. Id., p. 7.
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Previously on April 22, 2008, Amaro filed a notice of post-conviction relief pursuant to
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Ariz. R. Crim. P. 32. Id., p. 8. Amaro argued his trial counsel was ineffective because he
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“failed to conduct witness interviews, file pretrial motions, or discuss the case with [Amaro],
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denying [him] his right to make reasonable decisions regarding the case.” (Doc. 19, Exhibit M,
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p. 5) He further argued counsel failed to effectively advise him concerning the state’s plea offer
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and was ineffective at the trial. (Doc. 19, Exhibit M) The trial court held an evidentiary hearing
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on July 14, 2008. (Doc. 19, p. 8) The trial court denied the petition on August 7, 2008. Id., p.
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Amaro appealed arguing trial counsel was ineffective for failing to interview witnesses
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and file pretrial motions. (Doc. 19, Exhibit R, p. 7) He further argued counsel’s advice to reject
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the plea offer was ineffective as was his advice that Amaro should not testify on his own behalf.
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(Doc. 19, Exhibit R, pp. 8-13) The Arizona Court of Appeals granted review but denied relief
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on April 30, 2009. Id., Exhibit T.
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Amaro filed several motions to extend the time to file a petition for review with the
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Arizona Supreme Court, but he ultimately failed to file a timely petition. (Doc. 19, p. 11)
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Amaro filed a late petition with the Arizona Supreme Court on November 18, 2009. Id. The
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court ordered the petition withdrawn and returned to the petitioner. Id.
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On January 21, 2010, Amaro filed in this court a Petition for Writ of Habeas Corpus
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pursuant to Title 28, United States Code, Section 2254. He filed the instant amended petition
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on March 17, 2010. (Doc. 5) He claims (I) his “Sixth Amendment” rights were violated when
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trial counsel failed to (1) “investigate the case fully,” (2) “interview witnesses,” or (3) “consult
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with client about important decisions about the trial, evidence, or any proceedings pertaining
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to trial” and (II) his “Fourth Amendment” right to “Due Process” was violated by counsel’s
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erroneous advice that he had a prior felony conviction for molestation that affected his right to
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testify on his own behalf and “left only one version of events . . . for the jury to judge the case
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upon.” Id.
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The respondents filed an answer on May 20, 2011. They concede the petition is timely
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but assert claims (I)(3) and (II) are procedurally defaulted. They argue the remaining claims
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should be denied on the merits. Amaro did not file a reply.
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Discussion
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The writ of habeas corpus affords relief to prisoners in custody in violation of the
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Constitution or laws or treaties of the United States. 28 U.S.C. § 2241. If the petitioner is in
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custody pursuant to the judgment of a state court, the writ will not be granted unless prior
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adjudication of the claim –
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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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28 U.S.C. § 2254(d). The petitioner must shoulder an additional burden if the state court
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considered the issues and made findings of fact.
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In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of
a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.
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28 U.S.C.A. § 2254 (e)(1).
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A decision is “contrary to” Supreme Court precedent if the “state court confronted a set
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of facts that are materially indistinguishable from a decision of the Supreme Court and
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nevertheless arrived at a result different from Supreme Court precedent.” Vlasak v. Superior
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Court of California ex rel. County of Los Angeles, 329 F.3d 683, 687 (9th Cir. 2003).
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decision is an “unreasonable application” if “the state court identified the correct legal
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principles, but applied those principles to the facts of [his] case in a way that was not only
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incorrect or clearly erroneous, but objectively unreasonable.” Id. “It is not enough that our
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independent review of the legal question leaves us with a firm conviction that the state court
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decision was erroneous.” Id. If the state court denied on the merits but did not explain its
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reasoning, this court must independently review the record to determine whether the state court
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clearly erred in its application of Supreme Court law. Pirtle v. Morgan, 313 F.3d 1160, 1167
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(9th Cir. 2002), cert. denied, 539 U.S. 916 (2003). If the highest state court fails to explain its
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decision, this court looks to the last reasoned state court decision. See Brown v. Palmateer, 379
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F.3d 1089, 1092 (9th Cir. 2004).
Federal review is limited to those issues that have already been fully presented to the
state court. This so-called “exhaustion rule” reads in pertinent part as follows:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that – (A) the applicant has exhausted the remedies available in the courts of the
State. . . .
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28 U.S.C. § 2254(b)(1)(A). This rule permits the states “the initial opportunity to pass upon and
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correct alleged violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275
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(1971).
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To be properly exhausted, the federal claim must be “fairly presented” to the state courts.
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Picard v. Connor, 404 U.S. 270, 275 (1971). In other words, the state courts must be apprised
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of the legal issue and given the first opportunity to rule on the merits. Id. at 275-76.
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Accordingly, the petitioner must “present the state courts with the same claim he urges upon the
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federal courts.” Id. The state courts have been given a sufficient opportunity to hear an issue
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when the petitioner has presented the state court with the issue’s factual and legal bases.
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Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999).
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In addition, the petitioner must explicitly alert the state court that he is raising a federal
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constitutional claim. Duncan v. Henry, 513 U.S. 364, 366 (1995); Lyons v. Crawford, 232 F.3d
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666, 668 (9th Cir. 2000), as modified 247 F.3d 904 (9th Cir. 2001); Johnson v. Zenon, 88 F.3d
828, 830 (9th Cir. 1996). The petitioner must make the federal basis of the claim explicit either
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by citing specific provisions of federal law or federal case law, even if the federal basis of a
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claim is “self-evident,” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), cert. denied, 528
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U.S. 1087 (2000), or by citing state cases that explicitly analyze the same federal constitutional
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claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).
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If the petitioner is in custody pursuant to a judgment imposed by the State of Arizona,
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he must present his claims to the state appellate court for review. Swoopes v. Sublett, 196 F.3d
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1008 (9th Cir. 1999), cert. denied, 529 U.S. 1124 (2000). If state remedies have not been
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exhausted, the petition may not be granted and should ordinarily be dismissed. See Johnson v.
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Lewis, 929 F.2d 460, 463 (9th Cir. 1991). In the alternative, the court has the authority to deny
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on the merits rather than dismiss for failure to exhaust. 28 U.S.C. § 2254(b)(2).
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A claim is “procedurally defaulted” if the state court declined to address the issue on the
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merits for procedural reasons. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002).
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Procedural default also occurs if the claim was not fairly presented to the state court and it is
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clear the state would now refuse to address the merits of the claim for procedural reasons. Id.
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A claim that is procedurally defaulted must be denied unless the petitioner can “demonstrate
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cause for the default and actual prejudice as a result of the alleged violation of federal law, or
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demonstrate that failure to consider the claims will result in a fundamental miscarriage of
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justice.” Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998) (quoting Coleman v.
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Thompson, 501 U.S. 722, 750 (1991)).
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Discussion: Claims (I)(1,2)
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Amaro claims his “Sixth Amendment” rights were violated when trial counsel failed to
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(1) “investigate the case fully” and (2) “interview witnesses.” (Doc. 5) The respondents
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concede these claims were properly exhausted. They nevertheless urge the court to deny the
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claims on the merits.
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These issues were raised in Amaro’s Rule 32 post-conviction relief petition and denied
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by the trial court. The court of appeals affirmed without analysis. Accordingly, this court looks
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to the reasoning offered by the state trial court on these issues. See Brown v. Palmateer, 379
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F.3d 1089, 1092 (9th Cir. 2004) (If the highest state court fails to explain its decision, this court
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looks to the last reasoned state court decision.).
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“The Sixth Amendment guarantees criminal defendants the right to effective assistance
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of counsel.” Luna v. Cambra, 306 F.3d 954, 961(9th Cir. 2002), reissued as amended, 311 F.3d
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928 (9th Cir. 2002) (quoting Strickland v. Washington, 466 U.S. 668 (1984)). Habeas relief,
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however, is available only if “counsel’s performance was deficient” and the “deficient
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performance prejudiced the defense.” Id. To show prejudice, the petitioner “must demonstrate
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a reasonable probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.” Id. “A reasonable probability is a probability sufficient
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to undermine confidence in the outcome.” Id. Because Amaro challenges his conviction, he
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must show “there is a reasonable probability that, absent the errors, the fact finder would have
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had a reasonable doubt respecting guilt.” Id.
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“Judicial scrutiny of counsel’s performance must be highly deferential.” Strickland v.
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Washington, 466 U.S. 668, 689 (1984). “A fair assessment of attorney performance requires
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that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
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circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
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perspective at the time.” Id. “Because of the difficulties inherent in making the evaluation, a
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court must indulge a strong presumption that counsel’s conduct falls within the wide range of
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reasonable professional assistance; that is, the defendant must overcome the presumption that,
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under the circumstances, the challenged action might be considered sound trial strategy.” Id.
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(internal citation omitted).
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At the Rule 32 hearing, Amaro’s trial counsel explained that he interviewed all the
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potential defense witnesses suggested by Amaro with the exception of a husband and wife that
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he was unable to locate. (Doc.19, Exhibit Q) On the other hand, counsel spoke with only one
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of the state’s witnesses, a detective, choosing instead to rely on the disclosure supplied to him.
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Id. He was, of course, precluded from interviewing the two alleged victims. Id.
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Amaro did not provide an expert opinion suggesting trial counsel’s performance was
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deficient. He did not suggest what trial counsel might have learned had he conducted more
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witness interviews or what else he should have done to prepare for trial. On this record, the trial
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court concluded that trial counsel was not ineffective. Id. His performance was not deficient
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and Amaro was not prejudiced by his performance. Id.
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The trial court’s decision was neither contrary to nor an unreasonable application of
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clearly established Federal law. Putting aside the issue of counsel’s performance, Amaro offers
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no evidence at all that counsel’s allegedly deficient performance affected the outcome of the
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case. Accordingly counsel was not ineffective, and the decision of the state court was not
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unreasonable. This claim should be denied on the merits. See, e.g., Crisp v. Duckworth, 743
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F.2d 580, 584 (7th Cir. 1984) (“Though we conclude that it would have been prudent for
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[defense counsel] to interview [the prosecution witnesses], Crisp has not demonstrated that
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conducting personal interviews would have yielded different testimony or cross-examination
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in this particular case, and therefore has not shown any prejudice.”).
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Discussion: Claim (I)(3)
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Amaro argues his “Sixth Amendment” rights were violated when trial counsel failed to
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“consult with client about important decisions about the trial, evidence, or any proceedings
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pertaining to trial.” (Doc. 5) The respondents argue this claim was not properly exhausted and
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is now procedurally defaulted. They are correct.
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This claim appears in Amaro’s Rule 32 petition for post-conviction relief but it was not
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included in his appeal. Accordingly, it was not properly exhausted. See Swoopes v. Sublett, 196
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F.3d 1008 (9th Cir. 1999), cert. denied, 529 U.S. 1124 (2000) (If the petitioner is in custody
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pursuant to a judgment imposed by the State of Arizona, he must present his claims to the state
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appellate court for review.).
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Barring special circumstances, the Arizona post-conviction relief process allows for only
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one Rule 32 petition. See Ariz.R.Crim.P. 32.2, 32.9. Accordingly, Amaro cannot return to the
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state court and raise this issue in a subsequent Rule 32 petition. Id. His claims are procedurally
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defaulted. Amaro does not argue cause and prejudice or raise the miscarriage of justice
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exception. See Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998) (quoting Coleman v.
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Thompson, 501 U.S. 722, 750 (1991)). This claim must be dismissed.
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Discussion: Claim II
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Amaro argues his “Fourth Amendment” right to “Due Process” was violated by counsel’s
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erroneous advice that he had a prior felony conviction for molestation that prevented him from
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testifying on his own behalf and “left only one version of events . . . for the jury to judge the
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case upon.” (Doc. 5) The respondents argue this claim was not properly exhausted and is now
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procedurally defaulted. They are correct.
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“As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting
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the federal claim to the appropriate state court . . . in the manner required by the state courts,
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thereby affording the state courts a meaningful opportunity to consider allegations of legal
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error.” Casey v. Moore, 386 F.3d 896, 915 -916 (9th Cir. 2004) (punctuation modified). Each
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claim must be raised at every level of the review process, “not just at the tail end in a prayer for
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discretionary review.” Id. A claim raised for the first time on discretionary review is not fairly
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presented. Id. at 918.
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In this case, Amaro presented claim (II) for the first time in his appeal from the trial
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court’s denial of his Rule 32 petition for post-conviction relief. It was not included in his
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original Rule 32 petition.
Appeal from a Rule 32 denial, however, is discretionary.
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Ariz.R.Crim.P. 32.9(f). Amaro raised his claim for the first time in a petition for discretionary
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review. Amaro therefore did not fairly present his claim. See, e.g., Martin v. Rider, 2009 WL
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151170, *10 (D.Ariz. 2009).
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In the alternative, the court finds that Amaro failed to fairly present his claim because
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he did not apprise the state court of the federal basis for his claim. In the instant petition, Amaro
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claims that his “Fourth Amendment” and “Due process” rights were violated when counsel’s
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erroneous advice that he had a prior felony conviction for molestation prevented him from
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testifying on his own behalf. See Rock v. Arkansas, 483 U.S. 44, 52-52, 107 S.Ct. 2704, 2709-
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10 (1987) (holding that the defendant’s right to testify is rooted in the Due Process Clause of
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the Fourteenth Amendment, the Compulsory Process Clause of the Sixth Amendment, the Sixth
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Amendment right to conduct one’s own defense and the Fifth Amendment’s guarantee against
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compelled testimony). In his appeal, however, Amaro did not inform the state court that he was
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asserting a violation of this federal right. He stated only that his counsel was ineffective in
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violation of the Sixth Amendment and that counsel’s poor advice caused him to involuntarily
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waive a fundamental right in violation of state law citing State v. Draper, 162 Ariz. 433, 438,
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784 P.2d 259, 264 (1989). (Doc. 19, Exhibit R, p. 10) The Sixth Amendment’s right to
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counsel, however, does not encompass the right to testify on one’s own behalf. Amaro’s
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reference to this clause does not constitute fair presentation of his federal right to testify on his
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own behalf. Draper holds that under certain circumstances a defendant “can voluntarily and
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intelligently forgo the right to interview the victim as part of a plea agreement with the state.”
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Draper, 162 Ariz at 435, 784 P.2d at 261. Draper likewise does not fairly present the nature of
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his federal claim.
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constitutional claim. Accordingly, he did not fairly present this issue below. See Anderson v.
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Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277 (1982) (“It is not enough that all the facts necessary
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to support the federal claim were before the state courts . . . or that a somewhat similar
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state-law claim was made.); see, e.g., Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509,
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513 (1971) (Petitioner’s Fourteenth Amendment equal protection claim was not exhausted by
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his Fourteenth Amendment grand jury presentation claim.); Rose v. Palmateer, 395 F.3d 1108,
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1112 (9th Cir. 2005) (“Here, although Rose’s Fifth Amendment claim is related to his claim of
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ineffective assistance, he did not fairly present the Fifth Amendment claim to the state courts
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when he merely discussed it as one of several issues which were handled ineffectively by his
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trial and appellate counsel.”), cert. denied, 545 U.S. 1144, 125 S.Ct. 2971 (2005).
Neither of these references apprises the state court of his federal
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Moreover, Amaro cannot return to the state court and raise this issue in a subsequent
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Rule 32 petition. Ariz.R.Crim.P. 32.2, 32.9. His claim is procedurally defaulted. Amaro does
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not argue cause and prejudice or raise the miscarriage of justice exception. See Boyd v.
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Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998) (quoting Coleman v. Thompson, 501 U.S. 722,
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750 (1991)). This claim must be dismissed.
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RECOMMENDATION
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The Magistrate Judge recommends that the District Court, after its independent review
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of the record, enter an order DENYING the Amended Petition for Writ of Habeas Corpus.
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(Doc. 5)
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Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within
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14 days of being served with a copy of this report and recommendation. If objections are not
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timely filed, the party’s right to de novo review may be waived. See U. S. v. Reyna-Tapia, 328
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F.3d 1114, 1121 (9th Cir. 2003) (en banc), cert. denied, 540 U.S. 900 (2003).
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The Clerk is directed to send a copy of this report and recommendation to the petitioner
and the respondents.
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DATED this 12th day of July, 2011.
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