Hollenback v. Ryan et al

Filing 18

ORDER granting in part and denying in part 1 Petition for Writ of Habeas Corpus (State/2254) filed by Robert Michael Hollenback. It is Ordered that Grounds One, Two and Three of the Petition (Doc. 1) are denied with prejudice. It is further O rdered that Ground Four of the Petition is granted to the extent that the state court is DIRECTED to vacate Count 1 of Petitioner's conviction. It is further Ordered that the Clerk of the Court shall enter Judgment accordingly. It is further Ordered that, if Petitioner appeals the denial of his petition for habeas relief, any request for certificate of appealability is denied (see attached PDF for more information). Signed by Senior Judge Frank R Zapata on 9/19/2013. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Michael Hollenback,

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Petitioner,

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ORDER

vs.

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No. CV 10-333-TUC-FRZ

Charles Ryan, et al.,

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Respondents.

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On June 3, 2010, Petitioner, Robert Michael Hollenback, an inmate confined in the

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Arizona State Prison Complex-Florence in Florence, Arizona, filed a pro se Petition for

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Writ of Habeas Corpus by a Person in State Custody, pursuant to Title 28, U.S.C. § 2254,

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with exhibits A through E attached. (“Petition”). (Doc. 1.) Respondents have filed an

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answer to the Petition (“Answer”) with exhibits A through H attached. (Doc. 8.)

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Petitioner filed a reply (“Reply”) on April 19, 2011. (Doc. 9). For the reasons discussed

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below, the Court (1) dismisses grounds one and two of the Petition as procedurally

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defaulted, alternatively, denies relief for grounds one and two on the merits; (2) denies

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relief for ground three on the merits; and (3) grants relief on ground four of the Petition.

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I.

BACKGROUND
A. Trial Court Proceedings
On March 28, 2003, Petitioner was indicted by the grand jurors of Pima County in

Arizona Superior Court, on charges of one count each of molestation of a child, sexual

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conduct with a minor under fifteen years of age, and luring a minor for sexual

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exploitation. (Doc. 8, Ex. A, Indictment.). The State separately filed an allegation that all
three counts as charged were offenses involving dangerous crimes against children,

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pursuant to A.R.S. § 13-604.01. (Id., Allegations.) The State also filed allegations of a

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predicate offense and prior conviction of attempted sexual conduct with a minor under

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fourteen. (Id.)

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A jury convicted Petitioner on all three counts, and, on March 29, 2004, the trial

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court sentenced Petitioner to the presumptive terms of imprisonment on all counts: 28

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years for count one; life imprisonment for count two; and 10 years for count three. (Id.,

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Minute Entry 3/29/04.) The trial court ordered that all counts be served consecutively.

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(Id.)
B. Appeal
Petitioner filed a direct appeal of his conviction and sentence raising five grounds

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for relief: (1) A.R.S. § 13-3554 is inapplicable to conduct that does not involve producing

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pornographic material; (2) the trial court erred in enhancing Petitioner’s sentence using

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the State’s late-requested interrogatory that asked the jury to determine whether the

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victims were under 12 years old; (3) fundamental error occurred when the trial court

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sentenced Petitioner in count two under A.R.S. § 13-604.01 and not A.R.S. § 13-702.02;

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(4) fundamental error occurred when the trial court sentenced Petitioner to life when that

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was not required under A.R.S. § 13-604.01(B); and (5) fundamental error occurred when

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14 jurors deliberated. (Doc. 8, Ex. B.) The appellate court affirmed the convictions and

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sentences in an opinion filed on December 29, 2005. (Doc. 1, Ex. A). Petitioner’s petition

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for review to the Arizona Supreme Court was denied without comment on September 26,
2006. (Id., Ex. B).

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C. Petition for Post-Conviction Relief

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Petitioner’s notice of post-conviction relief was filed on November 2, 2006. (Doc.

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8, Ex. D.) Petitioner, through counsel, filed a Petition for Post-Conviction Relief (“PCR”)

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on June 21, 2007. (Id.) Petitioner argued that trial counsel was ineffective for (1) failing

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to properly object to hearsay testimony; (2) failing to object to other act evidence; (3)

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failing to request a lesser included jury instruction of attempted molestation of a child;

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and (4) failing to call an expert witness on the effect of improperly conducted forensic

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interviews with children. (Id.)
The trial court denied relief without an evidentiary hearing and dismissed the
notice on December 20, 2007. (Doc. 1, Ex. C.) In his petition for review of the trial

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court’s decision to the court of appeals, Petitioner argued that trial counsel was

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ineffective for (1) failing to object to the State’s improper use of hearsay as substantive

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evidence; and (2) failing to request a lesser included jury instruction of attempted

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molestation of a child. (Doc. 8, Ex. E.)

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On September 5, 2008, in a memorandum decision, the Arizona Court of Appeals

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granted review, and denied relief. (Doc. 1, Ex. D.) Petitioner’s petition for review to the

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Arizona Supreme Court was denied without comment on June 1, 2009. (Id., Ex. E.)

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D. Federal Habeas Petition
Petitioner’s habeas corpus petition, placed in the prison mailing system on May

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19, 2010 (Id. at 11), raises four grounds in support of his request for habeas relief. In
Ground One, Petitioner contends that his Fifth and Fourteenth Amendment due process

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rights were violated because he was convicted of “luring a minor for sexual exploitation,”

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but the conduct in which he engaged—“the mere solicitation for oral sex”—is not

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conduct that violates Arizona Revised Statutes § 13-3554(A). In Ground Two, Petitioner

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asserts that his due process rights were violated because he was sentenced with an “under

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12” enhancement “without proper notice of such enhancement.” In Grounds Three and

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Four, Petitioner claims he received ineffective assistance of counsel (“IAC”), in violation

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of the Sixth and Fourteenth Amendments.

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II.

DISCUSSION
A. Standard of Review
Because Petitioner filed his petition after April 24, 1996, this case is governed by

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the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)
(“AEDPA”).
B. Statute of Limitations

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Under the AEDPA, a state prisoner must generally file a petition for writ of habeas

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corpus within one year from “the date on which the judgment became final by the

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conclusion of direct review or the expiration of time for seeking such review [.]” 28

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U.S.C. § 2244(d)(1)(A). The running of this one-year statute of limitations on habeas

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petitions for state convictions is tolled during any period when "a properly filed

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application for state post-conviction or other collateral review with respect to the

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pertinent judgment or claim is pending" in any state court. See 28 U.S.C. § 2244(d)(2).
Thus, the statute of limitations is tolled during the pendency of a state court action for

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post-conviction relief. 28 U.S.C. § 2244(d)(2).
C. Exhaustion of State Remedies

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

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

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

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

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

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

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78 (1971). If a habeas claim includes new factual allegations not presented to the state

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

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claim presented and considered in state court. Vasquez v. Hillery, 474 U.S. 254, 260
(1986).
In Arizona, there are two primary procedurally appropriate avenues for petitioners

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

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

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petitioner is precluded from relief on any claim that could have been raised on appeal or

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in a prior PCR petition. Ariz.R.Crim.P. 32.2(a)(3). The preclusive effect of Rule 32.2(a)

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may be avoided only if a claim falls within certain exceptions (subsections (d) through

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(h) of Rule 32.1) and the petitioner can justify why the claim was omitted from a prior

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petition or not presented in a timely manner. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(b),
32.4(a).

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

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

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

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501 U.S. at 729–30. Second, a claim may be procedurally defaulted if the petitioner failed

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

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present his claims in order to meet the exhaustion requirement would now find the claims

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procedurally barred.” Coleman, 501 U.S. at 735 n. 1; see also Ortiz v. Stewart, 149 F.3d

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923, 931 (9th Cir. 1998) (stating that the district court must consider whether the claim

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could be pursued by any presently available state remedy). If no remedies are currently

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available pursuant to Rule 32, the claim is “technically” exhausted but procedurally

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defaulted. Coleman, 501 U.S. at 732, 735 n. 1; see also Gray v. Netherland, 518 U.S.
152, 161-62 (1996).
Because the doctrine of procedural default is based on comity, not jurisdiction,

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federal courts retain the power to consider the merits of procedurally defaulted claims.

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

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procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the

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failure to properly exhaust the claim in state court and prejudice from the alleged

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constitutional violation, or shows that a fundamental miscarriage of justice would result if

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the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750.

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Cause is defined as a "legitimate excuse for the default," and prejudice is defined
as "actual harm resulting from the alleged constitutional violation." Thomas v. Lewis, 945

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F.2d 1119, 1123 (9th Cir. 1991); see Murray v. Carrier, 477 U.S. 478, 488 (1986) (a

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showing of cause requires a petitioner to show that "some objective factor external to the

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defense impeded counsel's efforts to comply with the State's procedural rule"). Prejudice

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need not be addressed if a petitioner fails to show cause. Thomas, 945 F.2d at 1123 n.10.

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To bring himself within the narrow class of cases that implicate a fundamental

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miscarriage of justice, a petitioner "must come forward with sufficient proof of his actual

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innocence" Sistrunk v. Armenakis, 292 F.3d 669, 672-73 (9th Cir. 2002) (internal

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quotation marks and citations omitted), which can be shown when "a petitioner ‘presents

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evidence of innocence so strong that a court cannot have confidence in the outcome of

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the trial unless the court is also satisfied that the trial was free of nonharmless

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constitutional error.'" Id. at 673 (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)).
D. Standard of Review: Merits
Petitioner's habeas claims are governed by the applicable provisions of the

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Antiterrorism and Effective Death Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S.

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320, 336 (1997). The AEDPA established a “substantially higher threshold for habeas

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relief” with the “acknowledged purpose of ‘reduc[ing] delays in the execution of state

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and federal criminal sentences.’” Schriro v. Landrigan, 550 U.S. 465, 475 (2007)

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(quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003)). The AEDPA's “‘highly

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deferential standard for evaluating state-court rulings' ... demands that state-court

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decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam) (quoting Lindh, 521 U.S. at 333 n. 7).

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Under the AEDPA, a petitioner is not entitled to habeas relief on any claim
“adjudicated on the merits” by the state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d). The relevant state court decision is the last reasoned state decision

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regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v.

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Nunnemaker, 501 U.S. 797, 803–04 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664

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(9th Cir. 2005).

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“The threshold question under AEDPA [is] whether [the petitioner] seeks to apply

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a rule of law that was clearly established at the time his state-court conviction became

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final.” Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under

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subsection (d)(1), the Court must first identify the “clearly established Federal law,” if

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any, that governs the sufficiency of the claims on habeas review. “Clearly established”

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federal law consists of the holdings of the Supreme Court at the time the petitioner's state

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court conviction became final. Williams, 529 U.S. at 365; see Carey v. Musladin, 549

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U.S. 70, 74 (2006); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003), overruled on

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other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003). Habeas relief cannot be

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granted if the Supreme Court has not “broken sufficient legal ground” on a constitutional
principle advanced by a petitioner, even if lower federal courts have decided the issue.

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Williams, 529 U.S. at 381; see Musladin, 549 U.S. at 76-77; Casey v. Moore, 386 F.3d

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896, 907 (9th Cir. 2004). Nevertheless, while only Supreme Court authority is binding,

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circuit court precedent may be “persuasive” in determining what law is clearly

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established and whether a state court applied that law unreasonably. Clark, 331 F.3d at
1069.
The Supreme Court has provided guidance in applying each prong of §
2254(d)(1). The Court has explained that a state court decision is “contrary to” the

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Supreme Court's clearly established precedents if the decision applies a rule that

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contradicts the governing law set forth in those precedents, thereby reaching a conclusion

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opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set

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of facts that is materially indistinguishable from a decision of the Supreme Court but

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reaches a different result. Williams, 529 U.S. at 405–06; see Early v. Packer, 537 U.S. 3,

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8 (2002) (per curiam). In characterizing the claims subject to analysis under the “contrary

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to” prong, the Court has observed that “a run-of-the-mill state-court decision applying the

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correct legal rule to the facts of the prisoner's case would not fit comfortably within §

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2254(d)(1)'s ‘contrary to’ clause.” Williams, 529 U.S. at 406; see Lambert v. Blodgett,

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

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

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

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[the Supreme] Court's cases but unreasonably applies it to the facts of the particular ...
case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a

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

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a new context where it should apply.” Williams, 529 U.S. at 407. For a federal court to

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find a state court's application of Supreme Court precedent “unreasonable,” the petitioner

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must show that the state court decision was not merely incorrect or erroneous, but
“objectively unreasonable.” Id. at 409; Landrigan, 550 U.S. at 473; Visciotti, 537 U.S. at
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Under the standard set forth in § 2254(d)(2), habeas relief is available only if the

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state court decision was based upon an unreasonable determination of the facts. Miller–El

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

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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,

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537 U.S. 322, 340 (2003) ( Miller–El I ); see Taylor v. Maddox, 366 F.3d 992, 999 (9th

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Cir. 2004). In considering a challenge under § 2254(d)(2), state court factual

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

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

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550 U.S. at 473–74; Miller–El II, 545 U.S. at 240.

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III.

ANALYSIS

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A. Timeliness
Petitioner had until one year after his conviction and sentence became final to file

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his federal petition. Relying on the Ninth Circuit’s adherence to the “prison mailbox rule”
Respondents concede (Doc. 8 at 5) and the Court finds that, pursuant to the AEDPA, the

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Petition, placed in the prison mailing system on May 19, 2010, (Doc. 1 at 11) and filed in

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this Court on June 3, 2010, is timely. See Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir.

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2001)(citing Houston v. Lack, 487 U.S. 266 (1988)(a prisoner’s federal habeas petition is

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deemed filed when he hands it over to prison authorities for mailing to the district court)).
B. Ground One
Petitioner asserts in Ground One of the Petition that his Fifth and Fourteenth
Amendment due process rights were violated because he was convicted of “luring a

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minor for sexual exploitation,” but the conduct in which he engaged—“the mere

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solicitation for oral sex”—is not conduct that violates Arizona Revised Statutes § 13-

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3554(A). (Doc. 1 at 6). Respondents argue that Petitioner failed to fairly present Ground

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One as a constitutional claim to the state courts on direct appeal, and thus this claim is not

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exhausted. (Doc. 8 at 8-9). Respondents further contend that Ground One is procedurally

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defaulted because any attempt to return to state court to present that claim would be futile

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because it would be procedurally barred pursuant to Arizona law. (Id. at 10-11.)

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Respondents also contend that Petitioner’s argument is not cognizable on habeas corpus

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review. (Id. at 15.)

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1.

Procedural Default

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Petitioner contends that he was convicted in Count 3 of the Indictment pursuant to

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a statute, A.R.S. § 13-3554, which did not apply to Petitioner’s alleged conduct, in

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violation of his Fifth and Fourteenth Amendment due process rights. (Doc. 1 at 6.)
Petitioner argues that the appellate courts’ interpretation of A.R.S. § 13-3554 is

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untenable; Petitioner asserts that, in order to convict under A.R.S. § 13-3554, the State is

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required to present evidence that Petitioner “intended to or did photograph, film, or

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otherwise create any visual item depicting the minor engaging in sexual conduct”

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contrary to the appellate court’s interpretation. (Id.)

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Respondents assert that Petitioner's federal claims are procedurally defaulted and

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barred from habeas corpus review. Petitioner argued in the first claim of his direct appeal

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that the trial court erroneously denied his motion for judgment of acquittal. Petitioner

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argued the court erred for two reasons. First, because the offense of luring a minor for

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sexual exploitation requires some sort of intent to photograph or otherwise record a

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minor’s image. Second, as an alternative ground for relief, Petitioner argued that the

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motion was denied because there was insufficient evidence to establish guilt in Count 3,

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in violation of his right to due process and a fair trial: “Alternatively, insufficient

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evidence existed to support [Count 3] because the [S]tate failed to prove that Hollenback

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intended to photograph, or otherwise visually depict sexual conduct. Thus, the State’s

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evidence was wholly insufficient to establish guilt in Count 3, which also violated

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Petitioner’s right to due process and a fair trial. U.S. Const., Amends. 5, 6, and 14; Ariz.

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Const., art. 2, §§4 and 24.” (Doc. 8, Ex. B at 8-9). The appellate court found that one of

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Petitioner’s victims, Z., who was eight at the time of the offenses, testified that

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Hollenback had asked him repeatedly on multiple occasions to participate in oral sex, and

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thus, substantial evidence supported this charge. (Doc.1, Ex. A at ¶ 8.) The Court
reviewed the sufficiency of the evidence argument under an abuse of discretion standard,

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citing State v. Carlos, 199 Ariz. 273 (App. 2001)(court reviews a trial court’s denial of a

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Rule 20 motion for an abuse of discretion and will reverse a conviction only if there is a

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complete absence of substantial evidence to support the charges). (Id.) Although

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Petitioner mentioned, in passing, “due process” and a “fair trial,” the abuse of discretion
standard was in fact the appropriate standard of review set forth by Petitioner for
reviewing his alternative claim. (Doc. 8., Ex. B at 5.)
Petitioner's passing reference to “his federal rights,” was not sufficient to fairly

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present a federal claim to the State courts. General appeals to broad constitutional

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principles, such as due process, equal protection, and the right to a fair trial, are

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insufficient to establish a fair presentation of a federal constitutional claim. Lyons v.

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Crawford, 232 F.3d 666, 669 (9th Cir.2000), amended on other grounds, 247 F.3d 904

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(9th Cir. 2001); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (insufficient for

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prisoner to have made “a general appeal to a constitutional guarantee,” such as a naked

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reference to “due process,” or to a “constitutional error” or a “fair trial”). Likewise, a

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mere reference to the “Constitution of the United States” does not preserve a federal

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claim. Gray, 518 U.S. at 162–63 (1996).

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Petitioner failed to fairly present Ground One as a federal claim in state court. If

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

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

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Procedure because it does not fall within an exception to preclusion. Ariz.R.Crim.P.
32.2(b); 32.1(d)-(h). This claim is technically exhausted but procedurally defaulted.

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Petitioner presents no cause for the default nor has he demonstrated that a fundamental

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miscarriage of justice would occur if federal review of this claim is barred. Accordingly,

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this claim is properly dismissed.

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Nonetheless, regardless of exhaustion, the Court considers the claim and finds, it
should be denied on the merits. See 28 U.S.C. § 2254(b)(2) (allowing denial of
unexhausted claims on the merits); see also Rhines v. Weber, 544 U.S. 269, 277 (2005).
2.

Merits

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Petitioner’s due process argument is without merit. Petitioner challenges the

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appellate court’s determination that there was sufficient evidence presented at trial to

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support his conviction. Pursuant to Jackson v. Virginia, in determining a due process

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claim based on the sufficiency of the evidence, “the critical inquiry ... is whether, after

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viewing the evidence in the light most favorable to the prosecution, any rational trier of

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fact could have found the essential elements of the crime beyond a reasonable doubt.”

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443 U.S 307, 318 (1979). “When we undertake collateral review of a state court decision

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rejecting a claim of insufficiency of the evidence pursuant to 28 U.S.C. § 2254(d)(1),

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however, our inquiry is even more limited; that is, we ask only whether the state court's

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decision was contrary to or reflected an unreasonable application of Jackson to the facts

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of a particular case.” Emery v. Clark, 643 F.3d 1210, 1213–14 (9th Cir. 2011) (citing Juan

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H. v. Allen, 408 F.3d 1262, 1274–75 (9th Cir. 2005)).

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Initially, to the extent Petitioner raises a state-law claim, the Arizona Constitution
affords Petitioner no relief in this federal habeas corpus proceeding. Lewis v. Jeffers, 497

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U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state

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law[.]”) (citations omitted); Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 630 & n.3

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(1988) (recognizing that the federal habeas court is “not at liberty to depart from state

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appellate court’s resolution of...issues of state law...” where the state supreme court

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denied review of the underlying state case at bar.). “[A] state court's interpretation of state

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law ... binds a federal court sitting in habeas corpus” unless the state court's decision

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presents a violation of the Constitution or the laws or treaties of the United States.

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Bradshaw v. Richey, 546 U.S. 74, 75 (2005); see Swarthout v. Cooke, ––– U.S. ––––, 131

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S.Ct. 859 (2011) (extent of liberty interest in parole is a question of state law, which is

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reviewable by a federal court only for a violation of the Due Process Clause). “Our

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deference to the [state court] is suspended only upon a finding that the court's

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interpretation is untenable or amounts to a subterfuge to avoid federal review of a

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constitutional violation.” Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989).

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The court of appeals held that A.R.S. § 13-3554, the statute proscribing luring a

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minor for sexual exploitation, does not require intent to photograph or otherwise record a

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minor's image, notwithstanding Petitioner’s argument that Ariz. Rev. Stat. Ann. § 13-

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3553, the statute proscribing sexual exploitation of a minor, defines that offense in terms

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of producing and distributing child pornography. The appellate court’s consideration of

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the issue was thorough, its reasoning was sound and logical, and the court relied on well-

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established tenets of statutory construction under Arizona law: See State v. Sepahi, 206
Ariz. 321, ¶ 16 (2003) (“[A] statute's language is the most reliable index of its meaning”);

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State v. Brown, 204 Ariz. 405, (App.2003) (Howard, J., concurring) (“Had the legislature

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desired the facilitation portion of § 13–1805(I) to include a mens rea of intentionally, it

6

most likely would have utilized precise language defined by statute.”); State v. Hauser,

7
8

209 Ariz. 539, 542 (2005)( the heading of a statute is not part of the law and may only aid

9

in clarifying ambiguity if such exists); see also A.R.S. § 1–212 (headings not part of the

10

law, but merely for reference purposes). Since there is no evidence of state court

11

unreasonableness or subterfuge, this Court will not re-examine the state court's

12
13
14
15

interpretation of section 13-3554 as applied to Petitioner's conduct.
Insufficient evidence claims are reviewed by looking at the elements of the offense
under state law. Emery, 643 F.3d at 1214 (citing Jackson, 443 U.S. at 324 n. 16; see also

16
17

Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (in determining whether sufficient evidence

18

supports a state law statutory enhancement, federal courts are bound by “a state court's

19

interpretation of state law”).). At the time of Petitioner’s trial, the offense of luring a

20
21

minor for sexual exploitation was committed “by offering or soliciting sexual conduct

22

with another person knowing or having reason to know that the other person is a minor.”

23

A.R.S. § 13-3554. The appellate court held that “One of Hollenback's victims, Z., who

24

was eight at the time of the offenses, testified that Hollenback had asked him repeatedly

25
26

on multiple occasions to participate in oral sex. Thus, substantial evidence supported this

27

charge, and the trial court did not err in denying the Rule 20 motion.” (Doc. 1, Ex. A at ¶

28
- 16 -

1
2

8.) Although Petitioner disagrees with the state court’s conclusion, this is not a case
where the state court failed “to take into account and reconcile key parts of the record....”

3
4

Taylor v. Maddox, 366 F.3d at 1008. The record is clear that the state court considered

5

and weighed the relevant evidence in applying the applicable state law in rendering its

6

decision. Aside from the argument rejected by the state courts and not cognizable in this

7
8

habeas review, that the State mischarged the offense under A.R.S. § 13-3554 and the state

9

court’s misinterpreted that statute, Petitioner makes no argument that the prosecution

10

failed to prove the elements of the offense of luring a minor for sexual exploitation under

11

state law, as construed by the state courts. On such a record, the state-court decision was

12
13

not based on an unreasonable determination of the facts in light of the evidence presented

14

in the state proceeding.

15

C. Ground Two

16
17

In Ground Two, Petitioner contends that his due process rights were violated

18

because he was sentenced with an “under 12” enhancement “without proper notice of

19

such enhancement.” (Doc. 1 at 7.) Respondents argue that Petitioner failed to fairly

20
21

present Ground Two as a constitutional claim to the state courts on direct appeal, and thus

22

this claim is not exhausted. (Doc. 8 at 9-10). Respondents further contend that Ground

23

Two is procedurally defaulted because any attempt to return to state court to present that

24

claim would be futile because it would be procedurally barred pursuant to Arizona law,.

25
26

(Id. at 10-11.) Alternatively, Respondents argue that Ground Two is without merit. (Id. at

27

15-18.)

28
- 17 -

1
2

1. Procedural Default
Petitioner contends that he did not receive sufficient notice that, if convicted, he

3
4

would be sentenced under A.R.S. § 13-604.01(A) or (B), in violation of his due process

5

guarantee under the Fifth and Fourteenth Amendment of the U.S. Constitution. (Doc. 1 at

6

7; Memorandum at 5-6.)

7
8

Petitioner argued in his opening brief to the Arizona Court of Appeals, that, under

9

State v. Guytan, 192 Ariz. 514 (App.1998), when the state offers no excuse for an

10

untimely sentence enhancement allegation, and when there is no citation in the

11

indictment to the enhancement provision, it is error to sentence the defendant using the

12
13
14
15

enhancement. (Doc. 8, Ex. B at 10-11.)
Respondents assert that Petitioner's federal claims are procedurally defaulted and
barred from habeas corpus review. As the appellate court found, Petitioner’s argument

16
17

relied entirely on the state court of appeals case State v. Guytan, 192 Ariz. at 595-96,

18

which held that permitting an amendment to the indictment to allege gang motivation as a

19

potential sentence enhancement nine days after the jury had been impaneled was

20
21

improper because the request to amend had been untimely under Rule 16.1,

22

Ariz.R.Crim.P. After arguing at length how the indictment was insufficient under Guytan,

23

supra, and Rule 16.1, Petitioner concluded his argument, mentioning in closing that:

24

“The trial court abused its discretion in placing an interrogatory before the jury and using

25
26

that finding to enhance [Petitioner’s] sentence under § 13-604.01’s more severe penalty

27

provisions and violated Petitioner’s right to due process. U.S. Const., Amends. 5 and 14;

28
- 18 -

1
2

Ariz. Const., art. 2, §§1 and 4.” (Doc. 8, Ex. B at 13.)
Petitioner's passing reference to “due process” is not sufficient to fairly present a

3
4

federal claim to the state courts. Lyons v. Crawford, 232 F.3d at 669; Shumway, 223 F.3d

5

at 987. Petitioner failed to fairly present Ground One as a federal claim in state court. If

6

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

7
8

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

9

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

10

32.2(b); 32.1(d)-(h). This claim is technically exhausted but procedurally defaulted.

11

Petitioner presents no cause for the default nor has he demonstrated that a fundamental

12
13

miscarriage of justice would occur if federal review of this claim is barred, accordingly,

14

this claim is properly dismissed.

15

Nonetheless, regardless of exhaustion, the Court considers the claim and finds it

16
17
18
19

should be denied on the merits. See 28 U.S.C. § 2254(b)(2) (allowing denial of
unexhausted claims on the merits); see also Rhines, 544 U.S. at 277.
2.

Merits

20
21

Petitioner’s due process argument is without merit. Petitioner challenges the

22

appellate court’s determination that the State’s separate allegations that each offense was

23

a dangerous crime against children, and the indictment which included a reference to §

24

13-604.01, the dangerous crimes against children statute, which provides an enhanced

25
26

penalty when a defendant is convicted of sexual conduct with a minor under twelve years

27

of age, is adequate notice of the State’s intent to enhance Petitioner’s sentence under that

28
- 19 -

1
2

statute. The trial court granted the State’s request, over Petitioner’s objection based on
insufficient notice, to include an interrogatory on the verdict form for Count 2 (sexual

3
4

conduct with a minor) asking the jury to find whether the victim was under 12 years of

5

age. (Doc. 8, Reporter’s Transcript (“R.T.” 2/20/04 at 67–69, 79.) After the jury made

6

this finding, Petitioner was sentenced accordingly, and the state appellate court affirmed

7
8

his enhanced sentence on count 2. (Doc. 1, Ex. A at ¶¶ 9- 11.) The state appellate court

9

found: “Here, the state separately alleged each offense was a dangerous crime against

10

children and each count of the indictment included a reference to § 13-604.01, the

11

dangerous crimes against children statute, which provides an enhanced penalty when a

12
13

defendant is convicted of sexual conduct with a minor twelve years of age or younger.”

14

(Id. at ¶ 10.) The appellate court, relying on state supreme court precedent, held that the

15

indictments’ reference to the number of the statute providing for enhanced punishment

16
17

was adequate notice of the State’s intent to enhance the defendant’s sentence under that

18

statute. (See Doc. 8, Ex. A, ¶ 11)(citing State v. Waggoner, 144 Ariz. 237, 239 (1985);

19

State v. Barrett, 132 Ariz. 88, 89 (1982)(“Th[e] recital of A.R.S. § 13-604 [in the

20
21

information] was sufficient to put [defendant] on notice that the prosecutor would seek an

22

enhanced sentence.”), overruled on other grounds by State v. Burge, 167 Ariz. 25

23

(1990)).

24

First, it is the Fourteenth Amendment, not the Fifth Amendment that protects a

25
26

person against deprivations of due process by a state. See U.S. Const. amend XIV, § 1

27

(“nor shall any state deprive any person of life, liberty, or property without due process of

28
- 20 -

1
2

law.”); Castillo v. McFadden, 399 F.3d 993, 399 F. 3d at 1002 n. 5 (9th Cir. 2005) (“The
Fifth Amendment prohibits the federal government from depriving persons of due

3
4

process, while the Fourteenth Amendment explicitly prohibits deprivations without due

5

process by the several States.”). Because the Fifth Amendment Due Process Clause does

6

not provide a cognizable ground for relief regarding Petitioner's state court conviction,

7
8

his allegations under the Fifth Amendment Due Process Clause should be dismissed.

9

Next, as Respondents correctly note in their Answer, notwithstanding Petitioner’s

10

denial that he has a “6th Amendment ‘Notice’ issue” (Doc. 9 at 5), Petitioner’s argument

11

appears to allege a violation of his Sixth Amendment right “to be informed of the nature

12
13

and cause of the accusation” against him. U.S. Const. amend. VI. It is clearly established

14

federal law under the Constitution that a criminal defendant have “reasonable notice of a

15

charge against him, and an opportunity to be heard in his defense.” In re Oliver, 333 U.S.

16
17

257, 273 (1948); Cole v. Arkansas, 333 U.S. 196, 201(1948); Gautt v. Lewis, 489 F.3d

18

993, 1002 (9th Cir. 2007) (criminal defendant has fundamental right to notice of charges

19

“to permit adequate preparation of a defense”). The Due Process Clause of the Fourteenth

20
21

Amendment renders this Sixth Amendment guarantee applicable to the states. Gautt v.

22

Lewis, 489 F.3d at 1003; see also Cole, 333 U.S. at 201 (“No principle of procedural due

23

process is more clearly established than that notice of the specific charge, and a chance to

24

be heard in a trial of the issues raised by that charge, if desired, are among the

25
26

constitutional rights of every accused in a criminal proceeding in all courts, state or

27

federal.”).

28
- 21 -

1
2

In determining whether a petitioner received fair notice of the charges against him,
the court “begin[s] by analyzing the content of the information.” Gautt, 489 F.3d at 1003.

3
4

Additionally, absent clearly established Supreme Court precedent on point, the court of

5

appeals did not unreasonably apply federal law in relying on additional, noncharging

6

sources to conclude that Petitioner received fair notice. See Wright v. Van Patten, 552

7
8

U.S. 120, 125–26 (2008) (holding that state court could not have unreasonably applied

9

federal law if no clearly contrary Supreme Court precedent existed); see also Gautt, 489

10

F.3d at 1010 (assuming without deciding that other sources, such as jury instructions,

11

may be examined for evidence of notice to a petitioner).

12
13

Petitioner argues that the indictment expressly alleged that the minor victim was

14

“under 15”, a term of art implicating a lesser sentencing range, and thus, because of this

15

express language in the indictment, he was put on notice that he could be sentenced only

16
17

pursuant to A.R.S. § 13-604.01(C)(minor victims between the ages of twelve and

18

fourteen) and not under A.R.S. §§ 13-604.01(A) or (B)(minor victims under the age of

19

twelve), which were not specifically alleged. (Doc. 1, Memorandum at 5.) Contrary to

20
21

Petitioner’s assertion that this language indicates a lesser sentencing range, the “under

22

fifteen years of age” language in the indictment indicates that, under the substantive

23

charging statute, A.R.S. § 13-1405(B), the defendant is charged with a class 2 felony

24

offense, subject to the further sentencing enhancements of § 13-604.01. See A.R.S. § 13-

25
26

1405(B)(“Sexual conduct with a minor who is under fifteen years of age is a class 2

27

felony and is punishable pursuant to § 13-604.01. Sexual conduct with a minor who is at

28
- 22 -

1
2

least fifteen years of age is a class 6 felony.”) The substantive offense classifies the
felony no differently for an offense if the victim is under fifteen, or under twelve. Both

3
4

are class 2 felony offenses. See A.R.S. § 13-1405(B). On the other hand, the sentencing

5

enhancements under A.R.S. § 13-604-01, which was alleged both in the indictment and in

6

the allegation of dangerous crimes against children, contain three specific subsections

7
8

that apply to the substantive offense of sexual conduct with a minor, but distinguish

9

between defendants who commit the offense against a minor who is under twelve years

10

of age (A.R.S. §§ 13-604.01(A) and (B)) and defendants who commit sexual conduct

11

with minors who are twelve, thirteen or fourteen years of age (A.R.S. § 13-604.01(C)).

12
13

In Gautt, the Ninth Circuit found a petitioner’s right to notice was violated when

14

the petitioner was charged with a sentencing enhancement under one subdivision of a

15

statute, but the jury was provided with verdict forms, and his sentence was enhanced

16
17

under a different subdivision of the statute, which required additional elements and

18

carried a much harsher penalty. 489 F.3d at 1008. The instant case is not like Gautt. The

19

State did not allege the wrong subsection of the sentencing enhancement statute. As noted

20
21

above, the references to the “under fifteen” language implicated the felony classification

22

of the substantive offense which was a necessary prerequisite to determine which

23

subsection of the sentencing enhancement statute to apply. Compare A.R.S. §§ 13-

24

604.01(A) and (B) with A.R.S. § 13-604.01(C). The State did not allege a particular

25
26

subsection of the sentencing enhancement statute and mislead Petitioner, as in Gautt;

27

rather the State alleged the sentencing enhancement statute generally, referring to no

28
- 23 -

1
2

subsection at all. The appellate court found that Petitioner’s indictment included citations
to §13-604.01, and the state separately alleged each offense was a dangerous crime

3
4

against children and each count of the indictment included a reference to § 13-604.01, the

5

dangerous crimes against children statute, and that, under Arizona law, this was sufficient

6

notice. The appellate court’s decision was not contrary to, or involved an unreasonable

7
8
9
10
11

application of, clearly established Federal law under § 2254(d)(1). Nor, on this record,
did the state court's proceeding result in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented.
D.

Grounds Three and Four – IAC claim

12
13

Petitioner contends in Ground Three that he received ineffective assistance of

14

counsel in violation of the Sixth and Fourteenth Amendments when his trial counsel

15

failed to object to the State’s inappropriate use of hearsay evidence to impeach its own

16
17

witness. (Doc. 1 at 8.) Respondents assert that because trial counsel was not obligated to

18

object to the trial court’s proper admission of the statements, the appellate court

19

reasonably determined that counsel’s failure to object was not deficient performance

20
21

which fell below an objective standard of reasonableness. (Doc. 8 at 23.)

22

Petitioner contends in Ground Four that that he received ineffective assistance of

23

counsel in violation of the Sixth and Fourteenth Amendments when his trial counsel

24

failed to request a jury instruction on the lesser included offense of attempted child

25
26

molestation in Count One. (Doc. 1 at 9.) Respondents argue that Petitioner cannot

27

overcome the presumption that, under the circumstances, counsel’s decision not to seek a

28
- 24 -

1
2

lesser included offense instruction might be considered sound trial strategy, and thus, the
state court’s decision on his IAC claim was reasonable. (Doc. 8 at 25.)

3
1. Exhaustion/Procedural Default

4
5

Respondents acknowledge that Petitioner presented an IAC claim in the state trial

6

and appellate courts, which claim raised the same issue as those he raises in Grounds

7
8
9
10

Three and Four of this habeas petition. (Doc. 8 at 20, 23.) The Court finds Petitioner has
properly exhausted Grounds Three and Four, and addresses the merits of the claims
below.

11
12
13

2. Merits
To prevail on a claim of ineffective assistance of counsel, Petitioner must satisfy

14
15

two separate requirements: he must (1) show that counsel’s performance fell below

16

objective standards of reasonableness and “outside the wide range of professionally

17

competent assistance,” and (2) establish that counsel’s performance prejudiced Petitioner

18

by creating “a reasonable probability that absent the errors the fact finder would have had

19
20

a reasonable doubt respecting guilt.” Strickland v. Washington, 466 U.S. 668, 687–94

21

(1984); see also Williams, 529 U.S. at 390; Kimmelman v. Morrison, 477 U.S. 365, 375

22

(1986). Strickland is the clearly established law for IAC claims. See Harrington v.

23
24

Richter, ___ U.S. ___, 131 S. Ct. 770, 780 (2011).

25

Regarding the performance prong, a reviewing court engages a strong presumption

26

that counsel rendered adequate assistance, and exercised reasonable professional

27
28

judgment in making decisions. See id. at 690. “[A] fair assessment of attorney

- 25 -

1
2

performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

3
4

evaluate the conduct from counsel’s perspective at the time.” Bonin v. Calderon, 59 F.3d

5

815, 833 (9th Cir. 1995) (quoting Strickland, 466 U.S. at 689). Moreover, review of

6

counsel’s performance under Strickland is “extremely limited”: “The test has nothing to

7
8

do with what the best lawyers would have done. Nor is the test even what most good

9

lawyers would have done. We ask only whether some reasonable lawyer at the trial could

10

have acted, in the circumstances, as defense counsel acted at trial.” Coleman v. Calderon,

11

150 F.3d 1105, 1113 (9th Cir.), judgment rev’d on other grounds, 525 U.S. 141 (1998).

12
13

Thus, a court “must judge the reasonableness of counsel’s challenged conduct on the

14

facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466

15

U.S. at 690.

16
17

If the prisoner is able to satisfy the performance prong, he must also establish

18

prejudice. See id. at 691-92; see also Smith v. Robbins, 528 U.S. 259, 285 (2000) (burden

19

is on defendant to show prejudice). To establish prejudice, a prisoner must demonstrate a

20
21

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

22

proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable

23

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

24

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

25
26

whether prejudice resulted from the alleged deficiencies. See Robbins, 528 U.S. at 286

27

n.14. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of

28
- 26 -

1
2

sufficient prejudice, which we expect will often be so, that course should be followed.”
Id. (quoting Strickland, 466 U.S. at 697).

3
4
5
6
7
8
9
10
11

In reviewing a state court’s resolution of an IAC claim, the Court considers
whether the state court applied Strickland unreasonably:
For [a petitioner] to succeed [on an ineffective assistance of counsel claim],
... he must do more than show that he would have satisfied Strickland’s test
if his claim were being analyzed in the first instance, because under §
2254(d)(1), it is not enough to convince a federal habeas court that, in its
independent judgment, the state-court decision applied Strickland
incorrectly. Rather, he must show that the [state court] applied Strickland to
the facts of his case in an objectively unreasonable manner.
Bell v. Cone, 535 U.S. 685, 698-99 (2002) (citations omitted); see also Woodford v.

12
13

Visciotti, 537 U.S. at 24-25 (“Under § 2254(d)’s ‘unreasonable application’ clause, a

14

federal habeas court may not issue the writ simply because that court concludes in its

15

independent judgment that the state-court decision applied Strickland incorrectly. Rather,

16
17
18
19

it is the habeas applicant’s burden to show that the state court applied Strickland to the
facts of his case in an objectively unreasonable manner.”) (citations omitted).
Having reviewed the record, the Court finds that the state court did not

20
21

unreasonably apply Strickland and denies Petitioner’s claim as asserted in Ground Three,

22

but finds that the state court’s factual determination in Ground Four was unreasonable,

23

and grants relief as to Ground Four.

24

3. Trial Court Proceedings

25
26

During trial, Officer Wright testified that he had spoken with J. while investigating

27

the claims of molestation. (Doc. 8, Ex. F, R.T. 2/18/04 at 155-57.) When the prosecutor

28
- 27 -

1
2

asked Wright what J. had told him, defense counsel objected because it was not clear at
that point whether J. was going to testify at trial. (Id. at 173.) The trial court sustained the

3
4

objection. (Id. at 174.) Later at trial J. testified that Hollenback had “tried” to touch him.

5

(Doc. 8, Ex. G, R.T. 2/19/04 at 125.) He indicated that he had told the policeman about

6

the incident. (Id. at 130.) He also remembered being interviewed the same night at a

7
8

different location. (Id. at 117, 120.)

9

Throughout the prosecutor’s questioning, however, J. was unresponsive, did not

10

acknowledge that Petitioner had actually touched him, and repeatedly stated he did not

11

know or remember events. (Id. at 121-29.) The prosecutor called Detective Mann for

12
13

purposes of impeaching J’s testimony. (Id. at 133.) Mann had interviewed J. at the

14

Children’s Advocacy Center the day of Petitioner’s arrest. (Id. at 207.) Mann testified

15

that J. had indicated through words and demonstration that Petitioner had touched J.’s

16
17

groin with his hand over J.’s clothes using a squeezing motion. (Answer, Ex. H., R.T.

18

2/20/04 at 21-24.) The prosecutor also recalled Officer Wright, and Wright testified that

19

J. told him that Petitioner had “touched his pee-pee with his clothing on.” (Id. at 87.)

20
21

Petitioner’s counsel did not object to the State’s use of Mann and Wright’s impeachment

22

testimony. Defense counsel did, however, cross-examine both Mann and Wright on the

23

statements they took. (Id. at 35-50, 88.)

24

4. Ground Three

25
26

Petitioner argued in his PCR petition that defense counsel failed to properly object

27

to Officer Wright and Detective Mann’s hearsay testimony, thus allowing the statements

28
- 28 -

1
2

which were admitted under the guise of impeachment evidence to be used as substantive
evidence to support the charge of child molestation. (Doc. 8, Ex. D at 7-.) The trial court,

3
4

ruling on the PCR petition, found that Mann’s and Wright’s impeachment testimony was

5

admissible under Ariz. R. Evid. 801(d)(1)(A) as evidence of J’s prior inconsistent

6

statements. (Petition, Ex. C at 3-4.) Following Arizona law, the trial court also found that

7
8

the prior inconsistent statement could be considered substantively as well as for

9

impeachment. (Id.)(citing State v. Skinner, 515 P.2d 880, 887 (Ariz. 1973)). Further,

10

using the five factors set forth in State v. Allred, 655 P.2d 1326, 1330 (Ariz. 1982), the

11

court ruled that the probative value of the officers’ testimony was not substantially

12
13

outweighed by the danger of prejudice. (Id.) Because the evidence was admissible, the

14

trial court denied relief on Petitioner’s claim that counsel was ineffective for not

15

objecting. (Id. at 5.)

16
17

In his petition for review to the appellate court, Petitioner conceded that the trial

18

court was correct that Rule 801(d)(1)(A), Ariz.R.Evid., generally permits a party to

19

impeach the party’s own witness with prior inconsistent statements, but argued that the

20
21

court erred when it determined “the evidence was admissible under Rule 801(d)(1)(A)

22

and was not unfairly prejudicial under Rule 403, [Ariz.R.Evid.].” (Answer, Ex. E. at 10.)

23

Petitioner argued that the trial court did not address the fact that J.’s out-of-court

24

statements were the only evidence of Petitioner’s guilt on Count One of the indictment,

25
26

thus, their introduction as impeachment evidence is prohibited by caselaw. (Id.)(citing

27

State v. Cruz, 128 Ariz. 538 (1981); State v. Allred, 135 Ariz. 274 (1982); State v.

28
- 29 -

1
2

Thomas, 148 Ariz. 225 (1986); and State v. Allen, 157 Ariz. 165 (1988)). The Arizona
Court of Appeals reviewed the trial court’s minute entry, finding that the order

3
4

demonstrated the court was aware of and considered the appropriate factors in

5

determining whether it would have permitted the testimony if counsel had objected,

6

specifically applying the test set forth in Allred, supra. (Petition, Ex. D at 5) The

7
8

appellate court agreed with the trial court’s analysis, finding that Detective Mann’s

9

testimony was not the only substantive evidence of the offense; Z’s testimony provided,

10

at the least, circumstantial evidence, and at best, direct, albeit equivocal, evidence. The

11

appellate court concluded that counsel’s performance was not deficient, nor was it

12
13
14
15

prejudicial. (Id. at 5-6.)
As indicated, in addressing this IAC claim, the state court found, assuming that
counsel had performed deficiently, Petitioner was not prejudiced by counsel’s

16
17

performance. (Petition, Ex. D. at 6) Specifically, the appellate court stated, “the court

18

would not have abused its discretion by overruling an objection, had counsel made one.

19

... Therefore, counsel’s performance was not deficient, nor was it prejudicial.” (Id.)

20
21

(internal citation omitted). In making this determination, the court reasonably applied

22

Strickland. Because the underlying issue was meritless, and the evidence was properly

23

admitted, Petitioner cannot show that he was prejudiced by the manner in which counsel

24

litigated this issue. See Kimmelman, 477 U.S. at 375 (1986); Wilson v. Henry, 185 F.3d

25
26

986, 990 (9th Cir. 1999) (counsel did not perform deficiently by failing to move for

27

exclusion of defendant’s prior bad acts because the evidence “was almost certainly

28
- 30 -

1

admissible”). Petitioner is not entitled to relief on Ground Three.

2

5. Ground Four

3
4

Petitioner argued to the trial court in his PCR petition that J.’s testimony supplied

5

enough facts to warrant a jury instruction on the lesser included offense of attempted

6

child molestation. (Doc. 8, Ex. D at 20-21.) Petitioner further asserted that he was

7
8

prejudiced by trial counsel’s ineffectiveness in failing to request the lesser included

9

offense. (Id.) The trial court conceded that the instruction would have been supported by

10

J’s testimony, but found that trial counsel was not ineffective for failing to request the

11

instruction because it would have been entirely inconsistent with the defense theory that

12
13

“Robert Hollenback did nothing” (Doc. 1, Ex. C at 5.) Given the theory of the defense

14

that Petitioner was innocent of any crime, the trial court reasoned that it was within trial

15

counsel’s discretion to not seek an instruction inconsistent with this defense, and thus

16
17
18
19

trial counsel’s performance was not deficient. (Id.)(citing State v. Jerousek, 121 Ariz. 420
(1979)).
Petitioner disagreed with the trial court’s ruling, arguing in his petition for review

20
21

that requesting a lesser-included instruction would not have been inconsistent with the

22

defense strategy. (Doc. 8, Ex. E at 16-17.) Petitioner argued that even if it were

23

inconsistent,

24
25
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. . . the only way counsel’s failure to request the instruction could have
been a legitimate strategic choice would be if the inconsistency would have
been apparent to the jury, thus undermining the defense of actual
innocence. This, of course, could not have happened. All argument by
counsel regarding jury instructions takes place out of the presence of the
jury. If defense counsel had believed the lesser-included instruction

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4

undermined his defense strategy, he could have simply omitted any
reference to it from his closing argument. The mere presence of the
instruction could not possibly have tainted the defense in the eyes of the
jury.
(Doc. 8, Ex. E at 16.) Finally, Petitioner argued that defense counsel’s failure to ask for

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6

the lesser-included instruction was not a strategic choice. (Id.)

7

The appellate court rejected Petitioner’s argument, finding that the trial court

8

believed counsel’s decision not to request the instruction was likely a reasonable tactical

9
10

decision based on the asserted defense that nothing had occurred at all. (Doc. 1, Ex. D. at

11

6-7)(citing State v. Webb, 164 Ariz. 348 (1990) (“Actions of defense counsel which

12

appear to be trial tactics will not support an allegation of ineffective assistance of

13

counsel.”).

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15

Federal courts may only grant habeas relief in cases where the state court decision

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“was based on an unreasonable determination of the facts in light of the evidence

17

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2); Taylor, 366 F.3d at

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999-1000 (stating that § 2254(d)(2) “applies most readily to situations where petitioner

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challenges the state court's findings based entirely on the state record”); see also Wood v.

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Allen, 588 U.S. 290, (2010) (noting that the appellate courts have split on whether a state

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court's factual determination should be reviewed under 28 U.S.C. § 2254(d)(2) or §

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2254(e)(1)). The Court finds that the state court's factual finding that trial counsel made a

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tactical decision in this case is “unreasonable.”

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“[A] state-court factual determination is not unreasonable merely because the

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federal habeas court would have reached a different conclusion in the first instance.”

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1
2

Wood, 558 U.S. at 301. However, “[a] decision cannot be fairly characterized as
“strategic” unless it is a conscious choice between two legitimate and rational

3
4

alternatives. It must be borne of deliberation and not happenstance, inattention, or

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neglect.” Id. at 307 (Stevens, J., dissenting) (citing Wiggins v. Smith, 539 U.S. 510, 526

6

(2003) (concluding that counsel's “failure to investigate thoroughly resulted from

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8

inattention, not reasoned strategic judgment”); Strickland, 466 U.S. at 690–91). As the

9

Supreme Court stated in Strickland, and later reiterated in Wiggins, “strategic choices

10

made after thorough investigation of law and facts relevant to plausible options are

11

virtually unchallengeable[.]” Strickland, 466 U.S. at 690-91; Wiggins, 539 U.S. at 510.

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13

The Court finds that the state court record is void of any evidence demonstrating

14

that counsel's failure to request a lesser included instruction was the result of a deliberate

15

decision. As the Supreme Court explained in Wood, “Whether the state court reasonably

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17

determined that there was a strategic decision under § 2254(d)(2) is a different question

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from whether the strategic decision itself was a reasonable exercise of professional

19

judgment under Strickland or whether the application of Strickland was reasonable under

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§ 2254(d)(1).” 558 U.S. at 304. The trial court stated that “[g]iven the theory of the

22

defense, that Petitioner was innocent of any crime, it was well within trial counsel’s

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discretion to not seek an instruction inconsistent with this defense.” (Doc. 1, Ex. C at 23.)

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The appellate court concluded based on this finding that the trial court believed counsel’s

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decision not to request the instruction was “likely a reasonable tactical decision based on

27

the asserted defense that nothing had occurred at all.” (Id., Ex. D at 7.)

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1
2

The Court finds no support for the state court's factual determination that counsel
made a tactical or strategic choice to not request the lesser included jury instruction of

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4

attempted child molestation. Cf. Wood, 558 U.S. at 301-302 (“This evidence in the state-

5

court record can fairly be read to support the [state] court's factual determination that

6

counsel's failure to pursue or present evidence of Wood's mental deficiencies was not

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8

mere oversight or neglect but was instead the result of a deliberate decision to focus on

9

other defenses.”). First, the Court rejects the trial court’s attempts to characterize

10

counsel’s choice as strategic simply because it was the only legitimate and rational choice

11

counsel could have made because a lesser included jury instruction would have been

12
13

inconsistent with an innocence defense. As Petitioner argued in his Petition, the evidence

14

supported the jury instruction, and Petitioner would not have to draw attention to the

15

instruction by arguing it to the jury. The Court finds no support for the trial court’s

16
17

conclusion that innocence or insufficiency of the evidence theories of defense (see

18

Answer, Ex. H, Reporter’s Transcript, 2/20/2004 at 141, ll. 23-25) are per se inconsistent

19

with the lesser included instruction of attempted child molestation. See State v. Wall, 212

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Ariz. 1, 5-6 (2006)(there is no bright-line rule under Arizona law that a lesser-included

22

offense instruction is never proper if a defendant has asserted an all-or-nothing defense).

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[A] lesser-included offense instruction is not appropriate “when the ‘defendant's theory of

24

the case denies all involvement in the [offense], and [when] no evidence provides a basis

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for [the lesser included offense], ... [and] the record is such that defendant is either guilty

27

of the crime charged or not guilty.’ ” State v. Van Adams, 194 Ariz. 408, 414

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1
2

(1999)(quoting State v. Salazar, 173 Ariz. 399, 408 (1992)). (emphasis added); see also
State v. Whaley, 2011 WL 92990 (Ariz.App. 2011)(rejecting State’s argument that court

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4

correctly refused attempt instruction because defendant’s only defense was that he did not

5

engage in any sexual misconduct whatsoever with child; noting that a defendant’s all-or-

6

nothing defense does not preclude a lesser-included offense instruction when the record

7
8

contains evidence warranting the instruction). Second, the Court finds that there is no

9

evidentiary basis in the state court record for such a finding: there was no PCR hearing in

10

state court; counsel submitted no affidavit explaining his decision; and the transcripts

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submitted with this Petition contain no discussion that sheds any light on counsel’s

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13

decision-making process. The Court agrees with Respondents that, given the facts of the

14

case, counsel might have made a tactical decision to pursue an all-or-nothing defense;

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that is, the absence of the instruction placed Petitioner’s jury in the position where it

16
17

might acquit him rather than convict him of the completed offense. As compelling and

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reasonable as this might sound in hindsight, however, there is nothing in the record

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before this Court that suggests that counsel actually made this strategic decision. See

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Debarge v. Stewart, 39 Fed.Appx. 577 (9th Cir. 2002)(Defense counsel’s failure to

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request jury instruction on lesser included offenses to the charge of intentional child

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abuse was objectively unreasonable where failure to request the instructions was not a

24

strategic choice, but the result of counsel’s failure to understand the law). An equally

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plausible strategic position, and the reason for the rule requiring instruction on lesser-

27

included offenses in Arizona, is that a jury will convict a defendant of a crime even

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2

though the evidence “remains in doubt, simply because he “is plainly guilty of some
offense.” Wall, 212 Ariz. at 4. (quoting Beck v. Alabama, 447 U.S. 625, 634 (1980)). The

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4

Court finds that the state court record is void of any evidence demonstrating that

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counsel's failure to request the lesser included jury instruction was the result of a

6

deliberate decision, and finds the trial court’s finding an unreasonable factual

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8
9
10
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determination based on flawed speculation that defense counsel actually made this
reasoned decision.
To prevail in this action, however, Petitioner must demonstrate not only that
Petitioner performed deficiently, but also that he was prejudiced as a result of the

12
13

deficient performance. A lesser-included offense instruction is required if the jury could

14

“find (a) that the State failed to prove an element of the greater offense and (b) that the

15

evidence is sufficient to support a conviction on the lesser offense.” Wall, 212 Ariz. At 4

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17

(citing State v. Caldera, 141 Ariz. 634, 636-37 (1984). Because the trial court made a

18

finding that the instruction would have been supported by J’s testimony, under Arizona

19

law, and this finding is uncontested, there is no question that the lesser-included

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24

instruction would have been given if counsel had requested it. Thus, Petitioner was
prejudiced by counsel’s failure to request the instruction.
Accordingly, the Court finds that the state court’s determination that trial
counsel’s performance was not deficient was based on an unreasonable determination of

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26

facts. Because the trial court concedes that the instruction would have been given, the

27

prejudice prong has been established. Because the jury necessarily found all the facts

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1
2

essential to convict Petitioner for a violation of attempted child molestation when it found
all the facts necessary to convict Petitioner of the completed offense, the state court can

3
4

modify the judgment from a conviction of the completed offense, to reflect the conviction

5

of the proven, lesser-included offense of attempt, and resentence accordingly. See e.g.

6

State v. Gray, 227 Ariz. 424, 429 (App. 2011)(citing State v. Rowland, 12 Ariz.App. 437

7
8

(1970); State v. Garcia, 138 Ariz. 211 (App. 1983). Accordingly, the proper remedy for

9

this Court is to order that the state court immediately vacate Petitioner’s sentence, or to

10

postpone such relief for a reasonable period to allow the state court to vacate the

11

conviction on the completed offense and enter conviction of the attempted offense and

12
13

resentence the Petitioner. See Douglas v. Jacquez, 626 F.3d 501, 505 (2010)(Where the

14

state court “has the power to correct the constitutional error … it should be given the

15

opportunity to do so.”).

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17

IV.

CONCLUSION

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The Court finds that Petitioner procedurally defaulted Grounds One and Two of

19

his Petition. Nonetheless, considering the merits of the claim, the Court finds Grounds

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21

One and Two, as well as Petitioner’s IAC claim raised in Ground Three, are without

22

merit and are denied with prejudice. The Court finds that Petitioner has raised a

23

meritorious claim as to Ground Four, however, and grants relief as to this claim only.

24

Accordingly,

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26
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IT IS HEREBY ORDERED that the Petition (Doc. 1) is GRANTED IN PART
AND DENIED IN PART.

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1
2

IT IS FURTHER ORDERED that Grounds One, Two and Three of the Petition
(Doc. 1) are DENIED WITH PREJUDICE.

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4

IT IS FURTHER ORDERED that Ground Four of the Petition is GRANTED to

5

the extent that the state court is DIRECTED to vacate Count 1 of Petitioner’s conviction,

6

molestation of a child, under § 13-1410, unless, within 90 days from the entry of

7
8

Judgment, the state court modifies the state court judgment and conviction by vacating

9

the conviction of the completed offense of molestation of child in Count 1 and entering

10

conviction of the attempted molestation of a child molestation and resentences Petitioner

11

accordingly.

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13
14
15

IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment
accordingly.
IT IS FURTHER ORDERED that, if Petitioner appeals the denial of his petition

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17

for habeas relief, any request for certificate of appealability is denied based on the

18

Court’s determination of the claims presented on the merits and that Petitioner has failed

19

to make the requisite substantial showing of a denial of a constitutional right on the

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21
22

grounds presented. See 28. U.S.C. § 2253(c)
Dated this 19th day of September, 2013.

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