Leon v. Ryan et al

Filing 66

ORDER DENYING re 59 Amended Complaint filed by Jose Acencion Leon. Court grants a certificate of appealability as to Ground One claim. For the reasons stated in this Order the Court declines to issue a certificate of appealability for Petitioner's remaining claims and procedural issues. The Clerk is directed to prepare a judgment and close the case. Signed by Magistrate Judge Bernardo P Velasco on 1/24/14. (SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Acencion Leon,

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Petitioner,

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ORDER

vs.

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No. CV 11-0129-TUC-BPV

Charles Ryan, et al.,

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Respondent.

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Petitioner, Jose Acencion Leon, presently confined in the Arizona State Prison

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Complex, Central Unit, in Florence Arizona, filed a pro se Petition Under 28 U.S.C. §

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2254 for a Writ of Habeas Corpus (Petition). (Doc. 1.) After Respondents filed an answer

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to the petition (Answer) (Doc. 11) with Exhibits A through BB attached, Attorney Adam

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Bleier, on behalf of the Arizona Justice Project, filed a notice of appearance for

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Petitioner. Petitioner, through counsel, filed a supplemental memorandum in support of

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the Petition (Supplemental Petition) (Doc. 21) with Exhibits 1-30 attached. Respondents

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filed a response to the Supplemental Petition (Supplemental Response) (Doc. 24) with

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Exhibits CC through FF attached, and Petitioner filed a Reply (Doc. 33).

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On January 31, 2013, the Court granted Petitioner’s Motion to Amend the Petition.

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(Doc. 55.) Petitioner’s Amended Petition (Doc. 59) with Exhibit 1-2 attached was filed.

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Respondent’s filed a Supplemental Answer (Doc. 60) with Exhibit GG attached.

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Petitioner filed a Supplemental Reply. (Doc. 65.)

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In accordance with provisions of Title 28, U.S.C. § 636(c)(1), all parties consented
to proceed before a United States Magistrate Judge to conduct any and all further
proceedings in this case, including trial and entry of a final judgment, with direct review
by the Ninth Circuit Court of Appeals if an appeal is filed. (Doc. 56)

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For the reasons discussed below, the Magistrate Judge denies the Amended
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).
I.

BACKGROUND

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A.

Trial Court Proceedings

On December 11, 2002, an indictment was returned by the grand jurors of Pima
County in Arizona Superior Court, alleging Petitioner molested his girlfriend’s minor
daughter, (“L.”), on two occasions, once in March and again in October of 2002; the
indictment charged Petitioner with two counts of sexual abuse of a minor under 15, one
count of molestation of a child, and one count of sexual abuse of a minor under 15 (all
dangerous crimes against children under A.R.S. §13-604.01). (Supplemental Petition, Ex.
1 (Indictment).) After a jury trial, Petitioner was found guilty on all counts. (Ex. A.)1
Petitioner was sentenced on February 23, 2004, to concurrent mitigated sentences of 2.5
years for the sexual abuse counts, a concurrent mitigated sentence of 10 years on the
molestation count, and (after a resentencing on March 20, 2006) (Ex. G, Memorandum
Decision (“M.D.”) 5/05/05 at ¶ 19-20; Ex. H, Minute Entry (“M.E”) 3/20/06) a mitigated
sentence of 13 years on the count of sexual conduct with a minor. The 13-year sentence
was consecutive to the 2.5-year sentence and the 10-year sentence, for a total of 23 years.
(Ex. B, Sentencing 2/23/03; Ex. G, M.D. 5/05/05.) There are no sentencing issues
presented in the Petition.
L., thirteen year’s old at the time of trial, testified as follows: L. lived with her
mother, her older brother, her younger sister, her mother’s boyfriend, Petitioner, and

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Unless otherwise noted, exhibits attached to the State’s Answer, Supplemental
Response and Supplemental Answer are referenced hereinafter as “Ex. ___.”
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Petitioner’s niece. (Ex. BB, RT 9/23/03, at 145- 149.) Early in the morning on a day in
March, 2002, before school, Petitioner went to L.’s room and called to her while she was
in bed, woke her up, and she went to the living room with him and sat on the couch. (Id.
at 178-181.) Petitioner touched her breasts and her “private spots” with his hand under
her clothes. (Id. at 181-183.) L. testified that when she said “private spots” she was
referring to her vagina. (Id. at 162.) L. testified that Petitioner stopped because she had to
go to school. (Id. at 184.) Petitioner told L. “[n]ot to tell her mom”. (Id. at 183.) L. did
tell her mother, but mother took no action when Petitioner denied the conduct. (Ex. DD,
RT 9/24/03, at 259.)
Petitioner had a paper route, and L. and her brother, and sometimes Petitioner’s
niece helped deliver the papers on the weekends. (Ex. BB, RT 9/23/03, at 149-150.) One
Sunday in October 2002, Petitioner had L. and her brother help him with the delivery.
(Id. at 152.) After picking up the papers that morning, Petitioner stopped his vehicle in a
parking lot to fold the newspapers. (Id. at 153-154.) L.’s brother walked to a nearby
convenience store to get something to eat. (Id. at 156-158.) After the brother left,
Petitioner told L. to get into the truck, where he touched her breasts under her clothes and
touched her under her pants on her “private spots.” (Id. at 160-163.) Petitioner then
crawled on top of L., but got off her when her brother returned from the convenience
store. (Id. at 163-164.) They then went back to folding the papers and then delivering
them. (Id. at 164-165.) When her brother returned from the convenience store, L. did not
talk to him about what had happened. (Id. at 164.) L. did not go home and immediately
tell her mother what happened. (Ex. BB, RT 9/23/03, at 170.)
A few days later, when her mom returned from work, L. told her what had
happened on Sunday. (Id. at 170-172.) After L.’s mother picked Petitioner up from work,
and returned home, the three of them talked about what happened on Sunday. (Id. at 173.)
On Tuesday, L. told some people at school what had allegedly happened. (Id. at 184.)
After phoning her mother for permission, which her mother gave, L. also went to talk to a

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school counselor. (Id. at 184-186.) Her mother came to the school around the same time
she was talking to the counselor. (Id. at 186.) L. was never medically examined.
L. recanted her allegations on three occasions prior to trial. L. told a Child
Protective Services worker, that she had lied about what she had said. (Ex. BB, RT
9/23/03, at 187.) L. wrote a letter addressed to the judge in which she stated that “it didn’t
really happen, ‘I just said that because he was mean to us and he always yelled.’” (Id. at
188.) During a meeting with the prosecutor, defense attorney and her mother, L. stated
that she had lied. (Id. at 189.) L. stated she lied “[b]ecause they kept changing the court
dates and kept me from my school work like I said it didn’t happen.” (Id. at 189.)

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B.

The state appellate court affirmed Petitioner’s conviction on direct appeal. (Ex. G,
M.D. 5/05/05) The appellate court addressed Petitioner’s arguments, rejecting
Petitioner’s contentions that: (1) the evidence of sexual conduct with a minor was
insufficient to support the verdict; and (2) the trial court abused its discretion in denying
Petitioner’s requested Willits2 instruction. Id.
Petitioner filed a petition for review to the Arizona Supreme Court on August 10,
2005 (Ex. I), and on January 5, 2006, that court denied review, (Ex. J).

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Appeal

C.

First Petition for Post-Conviction Relief

Petitioner’s notice of post-conviction relief was filed on March 3, 2005. (Ex. K.)
Petitioner filed a petition for post-conviction relief (PCR) on May 7, 2008. (Ex. M.)
Petitioner presented the following claims of ineffective assistance of counsel (“IAC”) in
his petition: (1) failure to communicate to and properly evaluate the State’s plea offer
with Mr. Leon; (2) failure to present an expert witness to undermine the testimony of the
State’s “cold” expert witness, Wendy Dutton, and failure to properly cross-examine her;
(3) failure to call factual witnesses that were listed on the Petitioner’s witness list prior to
trial; (4) failure to call character witnesses; (5) failure to object to the manner in which

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State v. Willits, 96 Ariz. 548 (1964).
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the prosecutor led the alleged victim through her direct testimony; and (6) failure to
introduce a letter which showed that the alleged victim had sexual knowledge where her
trial testimony suggested that she did not. (Id.) Petitioner also raised two claims of new
evidence: (1) the discovery of a friend and neighbor who made similar allegations against
her own father immediately prior to L.P. making allegations against the Petitioner; and
(2) there existed evidence that the State’s expert had fabricated her credentials regarding
her education. (Id.)
The trial court reviewed the petition and granted a hearing on the allegation that
trial counsel was ineffective in not explaining the proposed plea agreement. (Answer, Ex.
O, Ruling, 8/05/05.) The trial court also allowed further argument on whether a hearing
should be held on Petitioner’s claim of newly discovered evidence regarding the
allegations by the victim’s friend, but ultimately limited the scope of the evidentiary
hearing to the issue of whether trial counsel was ineffective in not explaining the plea
agreement to Petitioner. (Ex. O, M.E. 8/05/05; Ex. P, Ruling 8/15/08.) Following an
evidentiary hearing (Ex. R, R.T. 10/29/08), the court addressed the merits of each claim,
and denied the PCR. (Ex. S, Ruling, 12/11/08.) Regarding the newly discovered evidence
claims, the trial court found that the claim regarding Wendy Dutton was impeachment
material, but that Dutton’s testimony was not of sufficient critical significance at trial that
the impeaching evidence probably would have changed the verdict or sentence. (Ex. S,
Ruling, 12/11/08 at 2-3); see Rule 32.1(e)(3)(Newly discovered material facts exist if
“[t]he newly discovered material facts are not merely cumulative or used solely for
impeachment, unless the impeachment evidence substantially undermines testimony
which was of critical significance at trial such that the evidence probably would have
changed the verdict or sentence.”) As to the newly discovered evidence about the
victim’s friend, the trial court found that the evidence existed well before the time of trial,
there was no affidavit of newly discovered evidence from defendant or his counsel, and
also that the attenuation in time and lack of evidence of factual similarity made it

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inappropriate to grant a new trial. (Ex. S, Ruling, 12/11/08 at 4-5).
Petitioner moved for a rehearing, asserting that the trial court made two errors of
fact in its ruling on Petitioner’s claim of newly discovered evidence regarding the
allegations by the victim’s friend. (Ex. T.) The trial court addressed the factual issues,
found that the evidence was newly discovered, and that the defense had exercised due
diligence in discovering the evidence, but affirmed its previous ruling, finding that the
newly discovered evidence was for the purposes of impeachment, that it did not
substantially undermine the victim’s testimony, nor was it probable that it would have
changed the verdict in the case. (Ex. U, Ruling, 1/28/09.)
Petitioner filed a petition for review of the trial court’s ruling alleging the court
erred in denying relief on all eight of the claims raised in the PCR. (Ex. V.) The appellate
court expressed satisfaction with the trial court’s identification, analysis, and resolution
of the PCR, and, without further elaboration, found no abuse of discretion by the trial
court and denied relief on the petition. (Ex. W, M.D., 7/31/09)(citing State v. Whipple,
177 Ariz. 272 (App. 1993).
Petitioner’s petition for review to the Arizona Supreme Court was denied without
comment on March 3, 2010 (Ex. Y), making the trial court’s ruling, as adopted by the
appellate court’s decision, the last reasoned decision on these claims.
D.

Federal Habeas Petition

On February 18, 2011, Petitioner deposited his habeas petition for mailing in the
prison mailing system. (Doc. 1, Petition.) Petitioner filed a supplemental memorandum
on November 18, 2011. (Doc. 21, Supplemental Petition.) On January 30, 2013, the Court
granted Petitioner’s Motion to Amend his habeas petition and ordered Petitioner to file
his verified amended petition. (Doc. 55.) Petitioner filed the Amended Petition on
February 18, 2013. (Doc. 59, Amended Petition.)
Eight grounds for relief were raised by the Petitioner in his pro se Petition:
Grounds One through Six alleged claims of ineffective assistance of trial counsel; Ground

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Seven alleged newly discovered evidence that the victim’s friend made the same
allegations against her father prior to the victim’s allegations against Petitioner; and
Ground Eight alleged newly discovered evidence that the State’s expert witness falsified
her academic credentials. (Petition, at 6-13.)
The Amended Petition modified Petitioner’s newly discovered evidence claims in
the following manner: Ground Seven of the Amended Petition alleges that Petitioner’s
Sixth Amendment right to effective assistance of counsel was violated by trial counsel’s
failure to investigate and discover that a neighbor the same age as the victim had made
similar allegations. In addition, post-conviction counsel was ineffective in failing to
properly “federalize” this claim and raise it as an IAC claim under the Sixth Amendment.
(Amended Petition, at 8-9.) Ground Eight of the Amended Petition alleges that
Petitioner’s Sixth Amendment right to effective assistance of counsel was violated by
trial counsel’s failure to investigate and discover the important impeachment evidence of
the State’s expert witness. In addition, the Petitioner’s due process rights under Brady v.
Maryland, 373 U.S. 83 (1963) and the Fifth and Fourteenth Amendment were violated by
the State’s failure to disclose such evidence. Post-conviction counsel was ineffective in
failing to properly “federalize” this claim and raise it as an IAC claim under the Sixth
Amendment. (Amended Petition, at 9-10.)
II.

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DISCUSSION
A.

Standard of Review

Because Petitioner filed his petition after April 24, 1996, this case is governed by
the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)
(“AEDPA”).
B.

Statute of Limitations

Under the AEDPA, a state prisoner must generally file a petition for writ of habeas
corpus within one year from “the date on which the judgment became final by the
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
petitions for state convictions is tolled during any period when "a properly filed
application for state post-conviction or other collateral review with respect to the
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
post-conviction relief. 28 U.S.C. § 2244(d)(2).

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C.

Exhaustion of State Remedies

A writ of habeas corpus may not be granted unless it appears that a petitioner has
exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v.
Thompson, 501 U.S. 722, 731 (1991). To exhaust state remedies, a petitioner must “fairly
present” the operative facts and the federal legal theory of his claims to the state's highest
court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848
(1999); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277–
78 (1971). If a habeas claim includes new factual allegations not presented to the state
court, it may be considered unexhausted if the new facts “fundamentally alter” the legal
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
to exhaust federal constitutional claims: direct appeal and PCR proceedings. Rule 32 of
the Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a
petitioner is precluded from relief on any claim that could have been raised on appeal or
in a prior PCR petition. Ariz.R.Crim.P. 32.2(a)(3). The preclusive effect of Rule 32.2(a)
may be avoided only if a claim falls within certain exceptions (subsections (d) through
(h) of Rule 32.1) and the petitioner can justify why the claim was omitted from a prior
petition or not presented in a timely manner. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(b),
32.4(a).
A habeas petitioner's claims may be precluded from federal review in two ways.

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First, a claim may be procedurally defaulted in federal court if it was actually raised in
state court but found by that court to be defaulted on state procedural grounds. Coleman,
501 U.S. at 729–30. Second, a claim may be procedurally defaulted if the petitioner failed
to present it in state court and “the court to which the petitioner would be required to
present his claims in order to meet the exhaustion requirement would now find the claims
procedurally barred.” Coleman, 501 U.S. at 735 n. 1; see also Ortiz v. Stewart, 149 F.3d
923, 931 (9th Cir. 1998) (stating that the district court must consider whether the claim
could be pursued by any presently available state remedy). If no remedies are currently
available pursuant to Rule 32, the claim is “technically” exhausted but procedurally
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,
federal courts retain the power to consider the merits of procedurally defaulted claims.
Reed v. Ross, 468 U.S. 1, 9 (1984). However, the Court will not review the merits of a
procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the
failure to properly exhaust the claim in state court and prejudice from the alleged
constitutional violation, or shows that a fundamental miscarriage of justice would result if
the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750.
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
F.2d 1119, 1123 (9th Cir. 1991). Ordinarily, “cause” to excuse a default exists if the
petitioner “can show that some objective factor external to the defense impeded counsel's
efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488
(1986). Prejudice need not be addressed if a petitioner fails to show cause. Thomas, 945
F.2d at 1123 n.10. To bring himself within the narrow class of cases that implicate a
fundamental miscarriage of justice, a petitioner "must come forward with sufficient proof
of his actual innocence" Sistrunk v. Armenakis, 292 F.3d 669, 672-73 (9th Cir. 2002)

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(internal quotation marks and citations omitted), which can be shown when "a petitioner
‘presents evidence of innocence so strong that a court cannot have confidence in the
outcome of the trial unless the court is also satisfied that the trial was free of nonharmless
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
Antiterrorism and Effective Death Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S.
320, 336 (1997). The AEDPA established a “substantially higher threshold for habeas
relief” with the “acknowledged purpose of ‘reduc[ing] delays in the execution of state
and federal criminal sentences.’” Schriro v. Landrigan, 550 U.S. 465, 475 (2007)
(quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003)). The AEDPA's “‘highly
deferential standard for evaluating state-court rulings' ... demands that state-court
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).
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 was either (1)
“contrary to” clearly established federal law as determined by the Supreme Court, (2)
“involved an unreasonable application of such law,” or (3) “was based on an
unreasonable determination of the facts in light of the record before the state court.”
Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 785 (2011) (quoting 28 U.S.C. §
2254) (internal quotation marks omitted).
Because the relevant state court decision is the last reasoned state decision
regarding a claim, the Court reviews the trial court’s ruling on Petitioner’s PCR for all
claims raised in the Amended Petition. See Barker v. Fleming, 423 F.3d 1085, 1091 (9th
Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991)); Insyxiengmay v.
Morgan, 403 F.3d 657, 664 (9th Cir. 2005). “State-court decisions are measured against
[the Supreme Court’s] precedents as of ‘the time the state court renders its decision.’”

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Cullen v. Pinholster, 131 S. Ct. 1388, 1399 (2011) (quoting Lockyer v. Andrade, 538 U.S.
63, 71–72 (2003)). Therefore, to assess a claim under subsection (d)(1), the Court must
first identify the “clearly established Federal law,” if any, that governs the sufficiency of
the claims on habeas review. Habeas relief cannot be 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. Williams v. Taylor, 529
U.S. 362, 381 (2000). Nevertheless, while only Supreme Court authority is binding,
circuit court precedent may be “persuasive” in determining what law is clearly
established and whether a state court applied that law unreasonably. Clark v. Murphy,
331 F.3d 1062, 1069 (9th Cir.2003), overruled on other grounds by Andrade, 538 U.S.
63.
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
Supreme Court's clearly established precedents if the decision applies a rule that
contradicts the governing law set forth in those precedents, thereby reaching a conclusion
opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set
of facts that is materially indistinguishable from a decision of the Supreme Court but
reaches a different result. Williams, 529 U.S. at 405–06; see Early v. Packer, 537 U.S. 3,
8 (2002) (per curiam). In characterizing the claims subject to analysis under the “contrary
to” prong, the Court has observed that “a run-of-the-mill state-court decision applying the
correct legal rule to the facts of the prisoner's case would not fit comfortably within §
2254(d)(1)'s ‘contrary to’ clause.” Williams, 529 U.S. at 406; see Lambert v. Blodgett,
393 F.3d 943, 974 (9th Cir. 2004).
Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas
court may grant relief where a state court “identifies the correct governing legal rule from
[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
a new context where it should apply.” Williams, 529 U.S. at 407. For a federal court to
find a state court's application of Supreme Court precedent “unreasonable,” the petitioner
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
25.
Under the standard set forth in § 2254(d)(2), habeas relief is available only if the
state court decision was based upon an unreasonable determination of the facts. Miller–El
v. Dretke, 545 U.S. 231, 240 (2005) (Miller–El II ). A state court decision “based on a
factual determination will not be overturned on factual grounds unless objectively
unreasonable in light of the evidence presented in the state-court proceeding.” Miller–El
v. Cockrell, 537 U.S. 322, 340 (2003) (Miller–El I ); see Taylor v. Maddox, 366 F.3d 992,
999 (9th Cir. 2004). In considering a challenge under § 2254(d)(2), state court factual
determinations are presumed to be correct, and a petitioner bears the “burden of rebutting
this presumption by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Landrigan,
550 U.S. at 473–74; Miller–El II, 545 U.S. at 240.
III.

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ANALYSIS
A.

Timeliness

Respondents submit that the claims in the original Petition, placed in the prison
mailing system on February 23, 2011, are timely. (Answer, at 5.) The Court agrees.
At the earliest3, Petitioner's conviction and sentence became final on April 5,
2006, ninety (90) days after the Arizona Supreme Court denied Leon’s petition for review
from his direct appeal. See 28 U.S.C. § 2244(d)(1)(A). (“[T]he period of ‘direct review’
in 28 U.S.C. § 2244(d)(1)(A) includes the [90–day] period within which a petitioner can
file a petition for a writ of certiorari from the United States Supreme Court, whether or

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It is not clear when the mandate issued in this case, however, it is not necessary
to ascertain this date because relying on the date the Arizona Supreme Court issued its
ruling, the Petition is timely.
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not the petitioner actually files such a petition.”); see also Bowen v. Roe, 188 F.3d 1157,
1158-59 (9th Cir. 1999). The limitations period was tolled prior to this date by Petitioner’s
filing of a notice of post-conviction relief. See U.S.C. §2244(d)(2)(“The time during
which a properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending shall not be counted toward
any period of limitation.”) The limitations period was tolled until Leon’s Rule 32
proceedings concluded on March 3, 2010, when the Arizona Supreme Court denied his
petition for review. Petitioner was required to file his petition for writ of habeas corpus
within 1 year of this date. Thus, the Petition, deposited in the prison mailing system on
February 18, 2011, is timely.
Petitioner’s Amended Petition was filed after the limitations period expired. Thus,
in order to be considered timely, any new claims in the Amended Petition that were not
included in the original petition must relate back to the claims in the original petition.
Mayle v. Felix, 545 U.S. 644, 659 (2005). Respondents object to the Court’s previous
determination that Petitioner’s new claims, Grounds Seven and Eight of the Amended
Petition, relate back to the timely filed Petition and are thus timely. The Court construes
this argument as a motion to reconsider its previous ruling on the timeliness of the claims
raised in the Amended Petition.
Generally, motions to reconsider are appropriate only if the Court “(1) is presented
with newly discovered evidence, (2) committed clear error or the initial decision was
manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist.
No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A
motion for reconsideration should not be used to ask a court “to rethink what the court
had already thought through, rightly or wrongly.” Above the Belt, Inc. v. Mel Bohannon
Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). The purpose of a motion for
reconsideration is to correct manifest errors of law or fact or to present newly discovered
evidence. ACandS, Inc., 5 F.3d at 1263.

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The facts and circumstances surrounding Plaintiffs’ claims have not changed since
this Court's Order concerning these matters; there are no new facts which were
discovered since the Court’s disposition of the motion to amend. There is no manifest
error of law.
Accordingly, the Court rejects Respondents’ argument, construed as a motion for
reconsideration, that Petitioner’s new claims of IAC and a violation of due process do not
arise out of the same core facts as any of his claims in his original petition and therefore
do not relate back. The Court will, however, at Respondents’ urging, readdress its finding
concerning the procedural default status of these claims, as discussed in § III.B.1, infra.

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B.

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Procedural Default
1.

Grounds Seven and Eight

Prior to the filing of an Amended Petition, Respondents argued that Grounds
Seven and Eight, as presented in the original Petition, were not properly presented to the
state court as federal claims and were therefore procedurally defaulted because the
Petitioner cannot return to state court to do so. (Answer at 11-12.) The State also argued
that the claims, as presented in the original Petition, failed to state a cognizable federal
claim. (Answer at 6-7.) Both Grounds Seven and Eight of the original Petition allege that
newly discovered evidence exists which, if available at the time of the trial, would have
affected the verdicts. (Petition at 12-13, 15.) In the state courts, Petitioner claimed that he
had newly discovered evidence that the victim’s friend had made similar allegations of
sexual abuse against her father before the victim made allegations against Petitioner and
that the State’s expert witness had lied about her academic credentials. (Ex. M at 24– 27,
and Ex. V at 27–32.) He did not state a federal basis for his substantive claim.4 The state
court analyzed Petitioner’s claim that newly discovered evidence in the form of a

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Petitioner did assert that his right to an evidentiary hearing on the newly
discovered evidence was protected “by the Due Process clauses of the Fifth and
Fourteenth Amendments to the United States Constitution.” (Ex. M at 24) Petitioner does
not argue in the Petition that he was denied a right to a hearing in violation of federal law.
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newspaper article about Wendy Dutton’s credentials entitled him to relief under the
standard for review set out in Rule 32 for newly discovered evidence. (Ex. S at 2.)
Similarly, the state court analyzed Petitioner’s claim that newly discovered evidence
existed regarding the victim’s friend’s allegations under Rule 32 and relevant state court
authority. (Ex. S at 4-5.) This Court can grant habeas relief “only on the ground that [a
petitioner] is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Leon has not stated a federal claim with respect to either of
these claims, thus they are non-cognizable on federal habeas review.
To the extent Leon’s argument in his habeas petition can be understood as an
argument that the state court erred in not granting him an evidentiary hearing based on
the alleged new evidence, his claim is not cognizable on habeas review. “Federal habeas
relief is not available to redress errors in state post-conviction proceedings.” Franzen v.
Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam); Ortiz,149 F.3d at 939 (“[F]ederal
habeas relief is not available to redress alleged procedural errors in state post-conviction
proceedings”).
To the extent Leon’s claim can be understood as a freestanding claim that the
newly discovered evidence shows that he is actually innocent, his claim is also not
cognizable on habeas review. The Supreme Court has never recognized factual innocence
as a free-standing constitutional claim, but rather indicated it is not a free-standing
constitutional claim. Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual
innocence based on newly discovered evidence have never been held to state a ground for
federal habeas relief absent an independent constitutional violation occurring in the
underlying state criminal proceeding.”); Coley v. Gonzales, 55 F.3d 1385, 1387 (9th Cir.
1995) (claim that petitioner is factually innocent not reviewable on habeas). Petitioner’s
claims as presented in Grounds Seven and Eight of the original Petition are noncognizable.
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Respondents’ arguments that Grounds Seven and Eight of the Amended Petition were
procedurally defaulted because the “cause” for the procedural default –that postconviction counsel’s failure to raise these claims before the state court was itself
ineffective assistance of counsel – was not raised as a claim before the Arizona courts.
Again, the Court considers Respondents’ arguments in the Supplemental Answer as a
motion to reconsider this Court’s previous ruling. The purpose of a motion for
reconsideration is to correct manifest errors of law or fact or to present newly discovered
evidence. ACandS Inc., 5 F.3d at 1263.
The basis for Respondents’ argument is that the Court erred by relying on the
Ninth Circuit’s holding in Dickens v. Ryan, 668 F.3d 1054, 1072 (2012) when the case
was pending rehearing en banc, 704 F.3d 816 (9th Cir. 2013).
Petitioner’s urge as cause for default of the Grounds Seven and Eight of the
Amended Petition the ineffectiveness of counsel in Petitioner’s first PCR proceeding.
Federal courts had long held that only constitutionally ineffective assistance of counsel
could establish cause to excuse a procedural default or procedural bar. In Martinez v.
Ryan, --- U.S. ---, 132 S. Ct. 1309 (2012), the Supreme Court recognized a “narrow
exception” to that rule:

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Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was
ineffective.

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132 S.Ct. at 1320.

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Respondents argue that Martinez does not excuse Petitioner’s failure to exhaust,

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because Petitioner has not in the first instance raised his IAC of PCR counsel claim to the

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state courts. See Edwards v. Carpenter, 529 U.S. 446, 451–54 (2000) (requiring that

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claim of appellate IAC be properly exhausted in state court before serving as cause to
excuse default of other claims). Respondents assert that Martinez did not abrogate the
Supreme Court’s holdings in Carpenter, nor did it hold that an ineffective-assistance–ofPCR-counsel claim need not be exhausted before it can constitute cause. The Ninth
Circuit expressly rejected this argument in an unpublished opinion, Dickens v. Ryan, 688
F.3d 1054, 1072–73 (9th Cir. 2012) vacated by 704 F.3d 816 (9th Cir. 2013)(granting
rehearing en banc). As Respondents assert, this Court’s reliance on Dickens, after the
Ninth Circuit granted a rehearing en banc, was in error, as the order granting the
rehearing states: “The three-judge panel opinion shall not be cited as precedent by or to
any court of the Ninth Circuit.” Dickens, 704 F.3d 816.
The Ninth Circuit has since issued its en banc ruling in Dickens, explaining that:
Pinholster, 131 S. Ct. 1388 (2011), does not bar the federal district court from
considering the procedurally barred ineffective assistance claim because it was not
previously adjudicated on the merits by the state courts; and 28 U.S.C. § 2254(e)(2) does
not bar an evidentiary hearing on remand for a petitioner to show cause and prejudice
under Martinez to overcome the procedural bar. Dickens v. Ryan, --- F.3d ---, 2014 WL
241871, *12-14 (9th Cir. 2014). The Ninth Circuit concluded:

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[A] petitioner, claiming that PCR counsel's ineffective assistance
constituted “cause,” may present evidence to demonstrate this point. The
petitioner is also entitled to present evidence to demonstrate that there is
“prejudice,” that is that petitioner's claim is “substantial” under Martinez.
Therefore, a district court may take evidence to the extent necessary to
determine whether the petitioner's claim of ineffective assistance of trial
counsel is substantial under Martinez.
Dickens, 2014 WL 241871, *14.

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Thus, this Court considers, in the first instance, Petitioner’s IAC of PCR counsel

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claim as cause, under Martinez, to excuse Petitioner’s procedural default of Grounds

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Seven and Eight. The Supreme Court has provided guidance in the application of

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Martinez, describing a four prong test that Petitioner must meet to overcome a procedural
default of an IAC of trial counsel claim, under Martinez:

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(1) the claim of “ineffective assistance of trial counsel” was a “substantial”
claim; (2) the “cause” consisted of there being “no counsel” or only
“ineffective” counsel during the state collateral review proceeding; (3) the
state collateral review proceeding was the “initial” review proceeding in
respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state
law requires that an “ineffective assistance of trial counsel [claim] ... be
raised in an initial-review collateral proceeding.” Martinez, 132 S.Ct. at
1318-19, 1320-21.

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Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 1918 (2013). Accordingly, this Court

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will analyze Petitioner’s amended claims under the four requirements established in

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Martinez, as instructed by Trevino.

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2.

Martinez analysis of Grounds Seven and Eight of the
Amended Petition

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Petitioner argues that the procedural default of his claims that trial counsel was

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ineffective is excused because Rule 32 counsel was ineffective in failing to plead the

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claims as federal constitutional claims as opposed to only state law claims that were not

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cognizable in federal court. (Doc. 34, Motion to Amend, at 4.) The third and fourth

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prongs of the Martinez test are not at issue here. The first requirement the Court

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addresses is that Petitioner must show a “substantial” underlying trial-counsel IAC claim.

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A “substantial” claim is a claim that “has some merit.” Martinez, 132 S.Ct. at 1318. Like

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the standard for issuing a certificate of appealability, “substantially” requires the

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petitioner to demonstrate that “reasonable jurists could debate whether … the petition

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should have been resolved in a different manner or that the issues presented were

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adequate to deserve encouragement to proceed further.” Detrich v. Ryan, --- F.3d ---,

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2013 WL 4712729 *6 (internal quotations omitted); cf. Hoak v. Idaho, 2013 WL 5410108
(D. Idaho 2013).
Whether Petitioner’s claim is analyzed on the merits, or under the first prong of
Martinez, the result is the same: Petitioner’s claims have no substantial merit. Petitioner’s
Ground Seven is that his Sixth Amendment right to the effective assistance of counsel
was violated by his trial counsel’s failure to investigate and discover that a girl in the
neighborhood had made similar allegations of sexual abuse against her father before the
victim made allegations against Petitioner. (Amended Petition, at 8.) To prevail on a
claim of ineffective assistance of counsel, Petitioner must satisfy two separate
requirements: he must (1) show that counsel’s performance fell below objective standards
of reasonableness and “outside the wide range of professionally competent assistance,”
and (2) establish that counsel’s performance prejudiced Petitioner by creating “a
reasonable probability that absent the errors the fact finder would have had a reasonable
doubt respecting guilt.” Strickland v. Washington, 466 U.S. 668, 687–94 (1984).
Respondent argues that Petitioner’s claim of IAC of trial counsel fails under both prongs
of Strickland – deficient performance and prejudice. See id. Respondents assert that
Petitioner cannot show that his counsel fell below an objective standard of reasonableness
in failing to discover this information before Petitioner’s trial; neither can Petitioner show
that there is a reasonable probability that this evidence, had it been presented, would have
changed the outcome of Petitioner’s trial.
Although an IAC claim was not presented to the trial court, the court nonetheless
addressed the issue of whether or not it was probable that the newly discovered evidence
would have changed the verdict in the case when it analyzed the new evidence claim
presented by Petitioner’s PCR.
Counsel must make reasonable investigations or make a reasonable decision that
makes particular investigations unnecessary. Strickland, 466 U.S. at 691. Strickland,
however, does not impose a constitutional requirement that every conceivable witness be

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interviewed. Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995)(citing United

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States v. Tucker, 716 F.2d 576, 594 (9th Cir. 1983). In determining whether counsel's

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conduct falls within the broad range of professionally acceptable conduct, the Court will
not view counsel's actions through “the distorting lens of hindsight.” Id. at 1036 (citing
Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir.1989), vacated on other grounds,
Angelone v. Deutscher, 500 U.S. 901 (1991)).
Petitioner attached to his Rule 32 petition an affidavit from his nephew stating that
the victim and “the girl across the street, K[.]” were friends. K. accused her father of
molesting her in February, 2002. The victim here testified that she was first abused by
Petitioner in March 2002. Petitioner’s claim is that his counsel was ineffective in failing
to discover this evidence that the victim’s friend had made similar allegations because he
could have argued that it was “further evidence” that the victim had fabricated her story.
(Amended Petition, at 8–9.)
In Cannedy v. Adams, 706 F.3d 1148 (2013), as amended on denial of rehearing,
733 F.3d 794 (9th Cir. 2013), the Ninth Circuit considered a trial counsel’s failure to
investigate a friend of the victim after the petitioner had informed his counsel that the
friend could give favorable testimony on his behalf as to a motive for the victim to falsely
accuse the petitioner. Id. at 1161. Like this case, the trial in Cannedy was largely a “he
said, she said” case, with no physical evidence linking the petitioner to the alleged abuse.
The Ninth Circuit found that there was no reasonable argument that counsel’s failure to
contact the friend did not amount to incompetence under the prevailing norms, as
evidence that the victim had a motive to implicate Petitioner falsely would have been
vital to the petitioner’s defense and consistent with the defense strategy. The Ninth
Circuit further found that “[n]o competent lawyer would have declined to interview such
a potentially favorable witness when that witness had been clearly identified, the witness
was easily accessible and willing to provide information, and trial counsel faced a dearth
of defense witnesses. Id. at 1161.

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Though the facts of the trial in this case are similar, unlike the petitioner in
Cannedy, there is no evidence that the friend of the victim in this case was “clearly
identified, … easily accessible and willing to provide information.” See id. Petitioner in
this case sets forth no facts showing that the neighbor’s allegations against her father
were known to Petitioner’s counsel at any time before trial, or facts that would suggest
that a reasonably competent attorney would have discovered the evidence. In fact,
Petitioner asserted during his PCR proceedings that all of Petitioner’s family members, as
well as Petitioner, “had no idea that [L.’s] friend made the same allegations until after the
trial.” See (Ex. N. at 11 and Attachment: Petitioner’s affidavit). Because the facts
surrounding the neighbor’s allegation were unknown to Petitioner’s trial counsel, and
because Petitioner presents no facts upon which the court could conclude that the
evidence and witnesses related to the neighbor’s allegation could have been readily found
by counsel prior to Petitioner’s trial, Petitioner fails to demonstrate that counsel’s
performance fell below an objective standard of reasonableness.
Additionally, Petitioner fails to establish a reasonable probability that, but for such
failure to discover and investigate the issues surrounding the neighbor’s allegation, the
trial result would differ. Even assuming there was evidence that K. had told the victim
what had happened to her and such evidence was presented at trial, the trial court found it
would not have substantially undermined the victim’s testimony or change the verdict,
particularly since the jury heard evidence that the victim wanted Petitioner out of the
family. See (Ex. U, Ruling 1/28/09, at 2-3.) In fact, the jury heard evidence that the
victim did not want the Petitioner in the family, and would prefer that her family consist
only of her, her mother, brother, and newborn sister, and not Petitioner. See (Ex. BB, RT
at 211) Additionally, they heard evidence that she had recanted her testimony, and in a
letter gave as a reason that she had accused Petitioner because he was mean, and yelled a
lot, and had also told a C.P.S. worker that she had accused Petitioner because he was
mean and nasty and she wanted him out of the house. (Ex. BB, RT at 212-213.) The

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newly discovered evidence, at most, would have allowed counsel to argue a possible
source where the victim got the idea for the allegations.
It follows that, because the underlying IAC claim of trial counsel lacks merit,
Petitioner’s claim that his Rule 32 counsel was ineffective in failing to present this claim
is also meritless. Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“PCR counsel
would not be ineffective for failure to raise an ineffective assistance of counsel claim
with respect to trial counsel who was not constitutionally ineffective”).
Petitioner’s Ground Eight is that his trial counsel was ineffective by failing to
investigate and discover the impeachment evidence of the State’s expert witness, Wendy
Dutton. Petitioner also asserts that his due process rights under Brady and the Fifth and
Fourteenth Amendment were violated by the State’s failure to disclose such evidence.
Initially, the Court notes that, by failing to raise the claim in the State court,
Petitioner has procedurally defaulted his claim of a due process violation, and this
subsection of Ground Eight cannot be excused by the holding in Martinez, as it does not
allege the ineffective assistance of trial counsel. See Hunton v. Sinclair, 732 F.3d 1124
(9th Cir. 2013) (Martinez does not apply to underlying defaulted Brady claim).
Accordingly, this subsection of Ground Eight is dismissed as procedurally defaulted.
Petitioner argues that trial counsel was ineffective in failing to discover that
Dutton had falsified her academic and professional credentials. In the present case,
Dutton testified that she was “currently a doctoral student at Arizona State University”
(Ex. DD at 402.) Petitioner argues that that statement is completely misleading.
(Amended Petition at 10.) Petitioner asserts that evidence that Dutton had been falsifying
her credentials was discovered in May 2006, when it was reported in the Arizona Daily
Star that defense attorney Dan Cooper filed a motion to preclude Dutton from testifying
in a case on the ground that she had falsified her academic and professional credentials
under oath in several jury trials. (Supplemental Petition, Ex. 4.)

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Dutton is currently enrolled in the ASU doctoral program only because she pays
an annual enrollment fee. (Supplemental Petition, Ex. 5, at 13.) She has made no forward
progress in obtaining her Ph.D. since her committee disbanded in 1998. (Id. at 8-15.)
According to the requirements of the program, Dutton was required to sit for and pass her
comprehensive exams immediately after finishing her coursework. (Supplemental
Petition, Ex. 15.) Then, she was required to complete and defend her dissertation within
five years of passing the comprehensive exams. (Id.) She cannot receive a letter of
candidacy until she passes the comprehensive examinations and successfully defends the
dissertation prospectus. (Id.)
As with Petitioner’s Ground Seven, the starting point for analyzing a failure to
investigate IAC claim is Strickland, which instructs that counsel must make reasonable
investigations or make a reasonable decision that makes particular investigations
unnecessary. Strickland, 466 U.S. at 691. To determine whether the investigation was
reasonable, the court “must conduct an objective review of [counsel's] performance,
measured for reasonableness under prevailing professional norms, which includes a
context-dependent consideration of the challenged conduct as seen from counsel's
perspective at the time.” Wiggins v. Smith, 539 U.S. 510, 523 (2003) (citation and
quotation marks omitted); Rompilla v. Beard, 545 U.S. 374, 381 (2005). Petitioner cannot
show that his counsel fell below an objective standard of reasonableness in failing to
discover this information before trial. Petitioner claims that Dutton’s testimony regarding
her credentials were, at a minimum, misleading, however, Petitioner makes no argument
in support of the claim that his trial counsel’s failure to investigate or discover Dutton’s
true academic background was unreasonable. See (Supplemental Response at 26-28;
Amended Petition at 9-10). The basis for Petitioner’s claim is the appearance, three years
after trial, of a newspaper article raising questions about Dutton’s academic credentials.
Petitioner’s counsel had no apparent reason at the time of trial to inquire into Dutton’s
academic credentials beyond the allegations in her curriculum vitae, which was in

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counsel’s trial file, together with a transcript of Dutton’s testimony in Arizona v. Don
Wayne Meadows, Pima County Court cause no. CR2002-2627, and a printout of Arizona
v. Curry, 187 Ariz. 623 (1996).
Petitioner makes no claim that the material in his trial counsel’s possession,
Dutton’s curriculum vitae, and the transcripts and opinion of other state cases in which
she had testified, would have put counsel on notice that her curriculum vitae was
embellished, or that her testimony regarding her credentials would be misleading or
impeachable. See Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998)(observing that
counsel not deficient for failing to find evidence if, after a reasonable investigation,
nothing has put counsel on notice of the existence of that evidence.) Neither does
Petitioner argue that the research trial counsel had conducted into Dutton’s background
was unreasonable, only that he failed to investigate her academic background. Petitioner
has not alleged any facts showing that trial counsel had reason to believe that Dutton’s
credentials or academic background was misleading in any way.
Because an ineffective assistance claim must satisfy both prongs of Strickland,
failure to meet either prong is fatal to a claim and there is no requirement that the Court
“address both components of the inquiry if the defendant makes an insufficient showing
on one.” Strickland, 466 U.S. at 697. Because the Court determines that it is not
unreasonable to dispose of this claim on the deficient performance prong, there is no need
to address the prejudice prong.
The Court finds that reasonable jurists would not encourage Petitioner to pursue
either Ground Seven or Eight in the Amended Petition. Petitioner has presented no facts
which would have put a reasonable trial attorney on notice that further investigation was
necessary of either claim. Accordingly, these claims are not substantial and do not qualify
for the Martinez exception. The Court dismisses these claims as procedurally defaulted.
Alternatively, for the reasons stated above, the Court finds that, on the merits, Petitioner

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has failed to demonstrate, on either ground, a meritorious trial-counsel IAC claim under
Strickland, 466 U.S. 668.
C.

Merits

Federal habeas relief may not be granted for claims subject to § 2254(d) unless it
is shown that the earlier state court's decision “was contrary to” federal law then clearly
established in the holdings of this Court, § 2254(d)(1); Williams, 529 U.S. at 412; or that
it “involved an unreasonable application of” such law, § 2254(d)(1); or that it “was based
on an unreasonable determination of the facts” in light of the record before the state
court, § 2254(d)(2).
With respect to Grounds One through Six, alleging ineffective assistance of
counsel, the clearly established federal law is set forth in Strickland, 466 U.S. 668. Under
Strickland, a petitioner must show that counsel's performance was deficient, falling
outside the wide range of professionally competent assistance, and prejudicial, so that
there is a “reasonable probability that, but for counsel's unprofessional errors, the result
of the proceedings would have been different.” Id. at 690, 694. The pivotal question in
this federal review, is not whether defense counsel’s performance fell below Strickland’s
standard, but “whether the state court's application of the Strickland standard was
unreasonable.” Richter, 131 S.Ct. at 785 (2011). The court must judge the reasonableness
of counsel's conduct “on the facts of the particular case, viewed as of the time of
counsel's conduct.” Strickland, 466 U.S. at 690. The court may “neither second-guess
counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight....” Matylinsky
v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009) (citation and quotations omitted); see
Yarborough v. Gentry, 540 U.S. 1, 8, (2003) (“The Sixth Amendment guarantees
reasonable competence, not perfect advocacy judged with the benefit of hindsight.”)
(citations omitted). Petitioner bears the burden to show that “counsel made errors so
serious that counsel was not functioning as the counsel guaranteed the defendant by the
Sixth Amendment.” Richter, 131 S.Ct. at 787 (citation and internal quotations omitted);

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see Strickland, 466 U.S. at 689 (petitioner bears burden to “overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial
strategy”) (citation and quotations omitted). The combination of Strickland and AEDPA
renders habeas review of ineffectiveness claims “doubly deferential .” See Pinholster,
131 S.Ct. at 1403. Therefore, to establish entitlement to relief, Petitioner must make the
additional showing that the PCR court, in ruling that trial counsel was not ineffective,
applied Strickland in an objectively unreasonable manner. In making this determination,
“the question is not whether counsel's actions were reasonable,” but “whether there is any
reasonable argument that counsel satisfied Strickland' s deferential standard.” Richter,
131 S.Ct. at 788. Because the Strickland standard is a general one, “the range of
reasonable applications is substantial.” Id.
“In assessing prejudice under Strickland, the question is not whether a court can be
certain counsel's performance had no effect on the outcome or whether it is possible a
reasonable doubt might have been established if counsel acted differently.” Id. at 791–92
(citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error,
it is “ ‘reasonably likely’ “ that the result would have been different. Id. at 792 (quoting
Strickland, 466 U.S. at 696). “The likelihood of a different result must be substantial, not
just conceivable.” Id.
As Respondents correctly argue, Petitioner is not entitled to an evidentiary hearing
in this Court. The Supreme Court’s decision in Pinholster, 131 S. Ct. at 1398, makes
clear that review of § 2254(d) claims “is limited to the record that was before the state
court that adjudicated the claim on the merits.” Petitioner’s Grounds One through Six,
even those summarily denied by the state courts, were adjudicated on the merits. Id. at
1402. With respect to Claims Seven and Eight, as demonstrated above, even assuming
Petitioner’s allegations are true, he is not entitled to relief under Strickland and is not
entitled to further evidentiary development. See Landrigan, 550 U.S. at 481 (district court
properly exercised discretion to deny evidentiary hearing where, even assuming the truth

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of all facts sought to be proven at an evidentiary hearing, claim failed on merits); West v.
Ryan, 608 F.3d 477, 485–90 (9th Cir. 2010) (where defendant failed to allege facts that, if
found to be true, would establish a colorable claim under Strickland, there was “nothing
to be determined in an evidentiary hearing” and the district court did not abuse its
discretion by denying one).

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1.

Ground One5

At trial, Wendy Dutton testified as an expert witness for the State of Arizona. (Ex.
DD, RT 9/24/03, at 400-424.) Petitioner argues that his trial counsel was ineffective for
(1) failing to adequately investigate Dutton’s background; (2) failing to challenge
Dutton’s assertions regarding Child Sexual Abuse Accommodation Syndrome
(“CSAAS”) and her assertion that children who disclose abuse commonly recant their
allegations; (3) failing to elicit testimony from Dutton to highlight the deficiencies in the
prosecutor’s examination of the victim during the trial through the use of leading
questions; and (4) failing to call an expert witness. The trial court resolved these claims,
finding the claim that counsel had not adequately researched or investigated Dutton to be
without merit, and that the other claims involved matters of trial strategy. (Ex. S)
Petitioner presented these claims in his petition for review to the Arizona Court of
Appeals, which denied relief without comment. (Ex. V at 12; Ex. W.)
Petitioner’s Strickland claim was clearly presented to the state courts. See (Ex. M ,
at 12.) Though the trial court did not explicitly state that it was relying on Strickland, the
court made a finding that trial counsel’s performance was not deficient, and that there
was a strong presumption that defense counsel’s decisions were made for strategic or
tactical purposes. See (Ex. S, at 1-2).
At trial, Dutton testified that she was a certified professional counselor and a
forensic interviewer at the Child Abuse Assessment Center at St. Joseph’s Hospital in
Phoenix for a little more than ten years. (Ex. DD, RT 9/24/03 at 401.) Dutton’s

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5

Ground One was listed in the original Petition as Ground Two.
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experience included dealing with children as part of an outpatient counseling study and
inpatient treatment programs and in both clinical and forensic settings. Id. at 402. Dutton
testified as a “cold expert,” that is, having not reviewed any police reports or statements
in the case, and not having talked to the victim or other witnesses. Id. at 404.6 Dutton
explained that, generally, children disclose abuse in “a piecemeal fashion,” evaluating
how their message is received first before disclosing more detail and possibly additional
incidents of abuse. (Id. at 408.) According to Dutton, if the initial disclosure is met with
disbelief, or blame of the victim, then the child may not disclose any more to anyone else.
(Id.) Dutton explained that “script memory” occurs when many incidents of abuse have
been chronic over a period of time, and results in a blending of memories and children’s
difficulty remembering specific incidents of abuse. (Id. at 409.) When a forensic
interview is conducted between the victim and a stranger, some children’s disclosure may
be inhibited because they are anxious and uncomfortable, either because they are
speaking with somebody who is new to them, or are fearful of police or are
uncomfortable talking to a male about what happened. (Id. at 410.) It would not be
unusual for a child to wait a couple of days before disclosing an event, and that the closer

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6

Although Dutton did not testify about CSAAS by name, her testimony was consistent
with the theory of CSAAS, which in general, “describes various emotional stages,
experienced by sexually abused children, that may explain their sometimes piecemeal and
contradictory manner of disclosing abuse.” Brodit v. Cambra, 350 F.3d 985, 991 (9th Cir.
2003). As one state court describes it, CSSAS evidence “does not detect sexual abuse. . .
it assumes the presence of sexual abuse, and explains a child’s often counter-intuitive
reactions to it.” New Jersey v. W.B., 205 N.J. 588, 610 (2011)(internal citation omitted).
The Ninth Circuit has noted that expert testimony about CSAAS has been admitted “in
federal child-sexual-abuse trials, when the testimony concerns general characteristics of
victims and is not used to opine that a specific child is telling the truth.” Brodit, 350 F.3d
at 991 (citing United States v. Bighead, 128 F.3d 1329 (9th Cir.1997), and United States
v. Antone, 981 F.2d 1059 (9th Cir.1992)). The Ninth Circuit has found that this type of
general testimony “merely assist[s] the trier of fact in understanding the evidence; it
[does] not improperly bolster the particular testimony of the child victim.” Antone, 981
F.2d at 1062.

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the relationship between the victim and the abuser, the “longer the delay in disclosing is
likely to be.” (Id. at 410-411.) Moreover, “half of all children will exhibit some kind of
behavioral or emotional symptoms” but, on the other hand, “half the children may show
no signs or symptoms that would lead them to the attention of the mental health system.”
(Id. at 411.) Dutton testified that children “can and do” exhibit various symptoms,
including “getting in trouble, aggression, having difficulty paying attention in school,
dropping in grades, nightmares, bed wetting, temper tantrums, self[-]destructive behavior,
suicidal thoughts, drug and alcohol abuse… a lot of symptoms that can indicate that a
child has experienced some kind of trauma” but not necessarily just sexual abuse. (Id. at
411-12.) Dutton testified that it was also not unusual for the people that are closest to the
victim to not be aware that abuse may be happening. (Id. at 412.) Dutton also agreed that
it is not uncommon for children to lose memories about things that have happened to
them when they are abused because children use disassociation as a coping mechanism
while the abuse is happening, and because, in cases where children delay disclosure, the
passage of time makes it more difficult to remember certain details of the abuse. (Id. at
413.)
Dutton also opined that it is “not uncommon for children to recant true allegations
of abuse” and that certain factors increase the chance of recantation, including parents
who don’t believe or support or protect them, or side with the perpetrator rather than
taking the side of the victim, pressure from their family or perpetrator to recant, and
negative personal consequences, such as being placed in foster care. (Id. at 416-17.) Once
these impediments are removed, “many children later reaffirm the original allegation.”
(Id. at 418.)
On cross-examination, Dutton admitted that the presence or absence of any of the
factors she had described on direct examination would not necessarily be telling as to
whether or not any sexual abuse had occurred in a particular case. (Id. at 421.) Defense
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investigations should be conducted, which included taking sexual abuse victims to be
examined by a medical doctor. (Id. at 422.)

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Through examination of trial counsel’s file and testimony at a PCR evidentiary
hearing, the trial court found that trial counsel’s investigation into Dutton’s background
lacked merit. Petitioner asserts that it is evident from Dutton’s cross-examination by trial
counsel that he had not researched CSAAS or had any understanding of what Dutton’s
potential testimony might be. Contrary to this assertion, however, the trial court noted
that counsel had “extensive materials in his file related to this expert” including Dutton’s
curriculum vitae, a copy of a reported case discussing CSAAS and another lawyer’s
attempt to disqualify Dutton as a witness, and a transcript from Dutton’s testimony in
another state case. Additionally, the trial court noted that trial counsel had conducted a
pretrial interview of Dutton7, and filed a Motion in Limine to preclude her testimony. At
the evidentiary hearing on Petitioner’s PCR, counsel testified that he had also discussed
the issues involving Dutton with other attorneys who had cross-examined her in another
case.
Review of the trial transcript demonstrates that counsel did effectively crossexamine Dutton, though not specifically referring to either CSAAS or recantation:

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Q:

The factors that you have been telling us about that are generally
present in these types of cases, child abuse cases, sexual molest
cases, those are the ones that - - all the factors are now present on all
the cases; right?

A:

No, not necessarily.

Q:

And there are some cases, child abuse cases, sexual abuse cases in
which some of the factors are present and some not; right?

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It is not clear that this finding is supported by the record in this case. The Court
finds that, even if counsel had not conducted a pretrial interview of Dutton, it does not
change the Court’s determination in this review.
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A:

That’s correct.

Q:

And does the presence of any of those factors or absence of any of
those factors tell us whether or not any sexual abuse occurred in a
particular case?

A:

No, not necessarily.

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(Ex. DD, RT 9/24/03 at 420-21.) To the extent that Petitioner asserts that the purpose of
Dutton’s testimony was to convey to the jury “that no matter what the behavior of the
child in any particular case, that behavior is consistent with the child having been
abused” (Supplemental Petition at 12) counsel addressed this issue in his crossexamination with follow-up questions that “went to the heart of her ability to vouch for
the accuser.” (Id. at 13).

The trial court found that having presided over Petitioner’s

trial, counsel’s performance on cross-examination of Dutton was not ineffective, and that
there was a strong presumption that all of the claims raised by Petitioner involved trial
strategy, and indulged a “strong presumption that defense counsel’s decisions were made
for strategic or tactical purposes.” (Ex. S at 2)(citing Arizona v. Salazar, 146 Ariz. 540,
541 (1985)). Though perhaps Dutton could have been cross-examined more
comprehensively, the Court finds that there is a “reasonable argument that counsel
satisfied Strickland's deferential standard.” See Richter, 131 S.Ct. at 788 (emphasis
added). The trial court’s finding that the claim that Petitioner’s counsel did not
adequately investigate or research Dutton, or cross-examine her effectively, was without
merit is supported by the record before this Court, and is not an unreasonable application
of Strickland.
Petitioner further claims that counsel was ineffective for failing to consult or call
an expert witness on the issue of recantation. Petitioner argues that Dutton’s testimony,
that those who are abused and eventually disclose their abuse commonly recant those
allegations, was unsupported by the leading research in the field, which demonstrates that
recantation is extremely uncommon among those children whose abuse can be verified.

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Petitioner submits that “local psychologists such as Richard Hinton, Ph.D. were available
to testify to the real state of the research.” (Supplemental Petition at 14, Letter from Dr.
Hinton dated March 27, 2008 (Petitioner’s Ex. 17).) Dr. Hinton’s letter to PCR counsel
regarding the “state of the research as of September 2003 on recantation” established that
articles published between 1994 and 1999 “consistently demonstrate that prior disclosure
of sexual abuse predicts disclosure of abuse during formal assessments”; that articles
published between 1994 and 2000 report that recantation rates in child sexual abuse cases
range from 4 to 27 percent, and that when the sexual abuse has not been validated with
certainty, the likelihood of recantations appears to be higher; and, that a 2005 research
article on the subject, which Dr. Hinton had concluded was based on the studies
published well before 2003, concluded that there is “little evidence to suggest that denials
and recantations are typical.” (Supplemental Petition, Ex. 17 at 1.)
Assuming arguendo failure to retain an expert was deficient performance,
Petitioner cannot show he suffered prejudice as a result. Dutton testified at trial to very
broad generalities, and not about L.’s accusations or recantations specifically. Dutton
refrained from expressing that any particular percentage of children recanted, stating only
that is was “not uncommon.” Dutton’s testimony did not create an impermissible
inference that L.’s original accusation was credible notwithstanding her subsequent
recantations. Petitioner’s counsel elicited specific testimony about the inconsistencies in
L.’s explanation for her recantations, and the motivations to falsely accuse Petitioner,
specifically her dislike of Petitioner and desire to remove Petitioner from the home. In
closing argument trial counsel went into great detail about the specific motives that L.
had to falsely accuse Petitioner in order to have him removed from the house. Trial
counsel also emphasized in closing arguments that Dutton knew “nothing about the
case.” (Ex. FF, RT 9//03, at 725.) In assessing the previously discussed new evidence
claims, the trial court assessed Dutton’s testimony as not of sufficient critical significance
at trial that impeaching evidence probably would have changed the verdict or sentence.

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(Ex. S, Ruling, 12/11/08 at 2-3) While Dr. Hinton’s letter suggests that the incidence of
recantation is not typical, nothing Petitioner presented to the state court challenged as
inaccurate the reasons cited by Dutton as explanations offered for recantations when a
true allegation has been made, such as: lack of parental support or protections; family
siding with the perpetrator rather than taking the side of the victim; pressure from the
family or perpetrator to recant; and negative personal consequences, such as being placed
in foster care. Petitioner’s proffer of an expert’s report does not suggest that these reasons
which were cited by Dutton for recantation are inaccurate. This was particularly
important in this case because the emphasis of the testimony elicited by the State went to
the reasons that L. might have recanted, and did not rely on Dutton’s testimony that
recantations are “not uncommon” in general. Counsel adequately challenged these
reasons in this case. The Court finds that the expert testimony would not have improved
this line of questioning, and that trial counsel’s failure to call or consult an expert did not
prevent counsel from effectively addressing the recantation evidence offered by Dutton.
The trial court’s ruling was not an unreasonable application of Strickland.

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2.

Ground Two8

Petitioner argues that trial counsel’s advice about the merits of the plea offer was
deficient for two reasons. First, trial counsel did not explain the terms of the plea
agreement to Petitioner and never reviewed the agreement with him. Second, trial counsel
evaluated the strength of the State’s case in such a manner to fall below standards of
practice for a case involving allegations of child molestation. Petitioner

these

claims in his PCR proceeding.
A defendant has the right to effective assistance of counsel when considering
whether to accept or reject a plea offer. See Hill v. Lockhart, 474 U.S. 52, 57 (1985)
(holding that the same two-part standard announced in Strickland is applicable to
ineffective-assistance claims arising out of the plea process.”). In the context of plea

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Ground Two is listed as Ground One of the original Petition.
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agreements, an attorney provides ineffective assistance of counsel when both of the
following conditions exist: (1) “the defendant must show that counsel's representation fell
below an objective standard of reasonableness,” Hill, 474 U.S. at 57 (quoting Strickland,
466 U.S. at 687–88); and (2) there exists “a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill,
474 U.S. at 59. In Nunes v. Mueller, the Ninth Circuit acknowledged that Supreme Court
law had never explicitly addressed whether the right of effective assistance of counsel
extends to a decision to reject a plea offer, and thus a state court decision rejecting such a
claim could not be “contrary to” Supreme Court law. 350 F.3d 1045, 1053 (9th Cir. 2003).
The court in Nunes, however, ultimately concluded that the right for a defendant to accept
a plea is a right “clearly found in Supreme Court law.” Id. at 1053. Respondents assert
that this determination was based on the Ninth Circuit’s interpretation of Strickland, and
not any holding of Strickland, and thus there can be no finding of Strickland prejudice
arising from plea bargaining if the defendant is later convicted at a fair trial because the
Supreme Court has never held that a defendant who received a fair trial may state a claim
based on advice in rejecting a plea. (Doc. 11 at 15-17.) Since Respondents’ Answer was
filed, the Supreme Court addressed the application of Strickland’s prejudice prong to
cases where a plea has been rejected and held “a defendant must show that but for the
ineffective advice of counsel there is a reasonable probability that the plea offer would
have been presented to the court (i.e., that the defendant would have accepted the plea
and the prosecution would not have withdrawn it in light of intervening circumstances),
that the court would have accepted its terms, and that the conviction or sentence, or both,
under the offer's terms would have been less severe than under the judgment and sentence
that in fact were imposed.” Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012).
In applying Strickland's two-part test to the context of plea offers, the Arizona
Court of Appeals has stated:

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To establish deficient performance during plea negotiations, a petitioner
must prove that the lawyer either (1) gave erroneous advice or (2) failed to
give information necessary to allow the petitioner to make an informed
decision whether to accept the plea. [Citations omitted.] ...
To establish prejudice in the rejection of a plea offer, a defendant must
show “a reasonable probability that, absent his attorney's deficient advice,
he would have accepted the plea offer” and declined to go forward to trial.
[Citations omitted.]

7
8

Arizona v. Donald, 198 Ariz. 406 (App.2000).

9

The trial court found a colorable claim regarding the argument that trial counsel

10

was ineffective in not explaining the proposed plea agreement, and held an evidentiary

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hearing. (Ex. O.) Both trial counsel and Petitioner testified at the evidentiary hearing.

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(Ex. Q.) The trial court issued a ruling denying the claim, and made the following

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findings. The defendant and trial counsel appeared in court on February 10, 2003, at

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which time the prosecutor gave them a proposed plea agreement, and requested that a

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record be made pursuant to Donald, 198 Ariz. 406.9 (Ex. S, at 5.) Because counsel and

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Petitioner had not had a chance to review and discuss the plea agreement, which was to a

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probation eligible offense, the Donald hearing was not held at that time, and was

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ultimately never rescheduled. Petitioner claimed in his affidavit that counsel never

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discussed the plea agreement with him, and that he would have seriously considered it at

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that time. (Id.) Counsel testified at the hearing that he did discuss the plea agreement with

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Petitioner, and that Petitioner was not inclined to accept the plea agreement, both because

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the case against him was weak (the victim had recanted previously) and because pleading

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to a dangerous crime against children would cost him his job as a school bus driver. (Id.)

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The trial court found that, although the presentation of the plea was not the reason for the

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Arizona courts conduct a Donald hearing to ensure that the defendant has been
informed of the content of the State’s plea offer, where one had been made, and that the
defendant understands the consequences of a decision to reject the offer. See Donald, 198
Ariz. 406.
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hearing held on February 10, 2003, the court “fully explained the terms of the plea
agreement to the defendant and explained the consequences of being convicted at trial.”
(Id.) (citing RT 2/10/03 at 24-30.) The trial court considered whether counsel’s
performance was deficient under the test laid down in Donald: To establish deficient
performance during plea negotiations, a petitioner must prove that the lawyer either (1)
gave erroneous advice, or (2) failed to give information necessary to allow the petitioner
to make an informed decision whether to accept the plea. (Id. at 6) (citing Donald, 198
Ariz. at 413.) The trial court found Petitioner was arguing that counsel’s performance
was deficient under the second part of the test, but that petitioner failed to demonstrate
either deficient performance, or prejudice. (Id.) Specifically, the trial court found:

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As trial judge this court has had the opportunity to observe Mr. Leon’s trial
testimony and to observe the demeanor of both the defendant and trial
counsel at the hearing in this matter, and finds that Mr. Lopez’ testimony is
more credibile [sp] than that of Mr. Leon. The court does not find that Mr.
Lopez failed to give the information necessary for his client to make an
informed decision whether to accept the plea in this case. The court also
finds that Mr. Leon was fully informed of the sentence ranges under both
the proposed plea and the offenses in the indictment. The court further finds
that there is no meaningful likelihood that this defendant would have taken
the plea agreement under any circumstances, given the likelihood of losing
his job and the properly perceived weakness of the state’s case. In addition
the court, having heard defendant’s trial testimony as well as his testimony
at the hearing in this matter, finds that the defendant could not have made
an appropriate factual basis for a guilty plea.

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(Id.) Petitioner presented the same claim in his petition for review to the appellate court,

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which denied relief without comment. (Ex. V at 9 and Ex. W.)

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The state court record supports the appellate court's rejection of Petitioner's

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allegation that counsel had rendered deficient performance. At the hearing, Leon’s

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counsel testified that he had received information from the State regarding a plea offer for

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been made with Petitioner in counsel’s office before a hearing on February 10, 2003. (Ex.
R, RT 10/29/08 at 10–13.) He further testified that after receiving the plea agreement he
gave a copy of the agreement to petitioner, and discussed the plea agreement with him, as
well as the possibility of prison time. (Id. at 15.) He also testified that he had previously
discussed with Leon that the charges he was facing were “very serious” and “he was
potentially looking at a substantial period of time in prison,” i.e., 17 to 24 years. (Id. at
14–15.) He said he had reviewed the State’s evidence with Leon, and that Leon had
expressed concern about his prospects of employment (he was a school bus driver) if he
accepted a plea agreement. (Id. at 17, 24–27.) And he testified that Leon had maintained
throughout that he was innocent of the charges and did not want to accept the State’s
offer. (Id. at 27–28.) The state court found this testimony credible.
State court findings are generally presumed correct unless they are rebutted by
clear and convincing evidence or based on an unreasonable evidentiary foundation
(Sections 2254(e)(1) and (d)(2); Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir. 2003)).
“Surmounting Strickland's high bar is never an easy task.” Richter, 131 S.Ct. at 788
(quoting Padilla v. Kentucky, 559 U.S. 356 371 (2010)). Establishing that a state court's
application of Strickland was unreasonable under § 2254(d) is even more difficult,
because both standards are “highly deferential,” and because Strickland's general
standard has a substantial range of reasonable applications. Richter, 131 S.Ct. at 788
(citations omitted). Given the standards of review, this Court cannot find the decision
unreasonable. The trial court found credible the testimony of trial counsel that counsel
had informed Petitioner of the plea agreement, its terms, and the sentencing ranges. We
presume the correctness of credibility determinations made at the trial court level. See 28
U.S.C. § 2254(e) (providing that a factual determination by the state court “shall be
presumed to be correct”); see also Ortiz v. Stewart, 149 F.3d 923, 936 (9th Cir. 1998)
(federal habeas courts have no license to “redetermine credibility of witnesses whose
demeanor has been observed by the state trial court, but not by them.”)(citations omitted).

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Petitioner has failed to present any evidence rebutting the presumption of correctness that
attaches to the state court’s finding that Petitioner’s claim of both deficient performance
and prejudice was unsubstantiated. Petitioner has not demonstrated an unreasonable
application by the State court of the Strickland standard, and thus, the Court denies this
claim.
3.

Ground Three and Four

In Ground Three Petitioner argues that trial counsel was ineffective for failing to
call two witnesses who had observed and would have testified regarding L.’s “sexual
behavior with other boys,” including “giving lapdances” to one of the witnesses. The trial
court rejected this claim, stating that “[c]alling such witnesses was solely a matter of trial
strategy and might well have backfired.” (Ex. S at 3.) In Ground Four, Petitioner argues
that trial counsel was ineffective for failing to call Petitioner’s younger sister, Lizette
Estrada, who wished to testify as a character witness on behalf of her brother. Petitioner
asserts that Estrada would have testified that Petitioner took care of Estrada as a baby,
including for a time sharing a bed with her when she was a little girl, and that Estrada
informed trial counsel that Petitioner was always appropriate with her and never did
anything that would constitute sexually aberrant behavior, and that neither she nor
anyone else in her family ever observed Petitioner act inappropriately toward children.
(Supplemental Petition, citing Ex. 22, Affidavit of Lizette Veronica Estrada.) The trial
court rejected the claim, relying on Petitioner’s statement that counsel had told him that
“he did not think this testimony would help [Petitioner] at trial because the prosecution
would paint Leon as interested only in black women” and finding that “[w]hile this is an
unusual statement this [is] a classically strategic decision.” (Ex. S at 3)
To prove ineffective assistance of counsel, “the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’ ” Strickland, 466 U.S. at 689. The trial court did not unreasonably
apply Strickland in finding that Leon’s counsel’s decision to not call these witnesses was

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a matter of trial strategy that did not fall below the standard of reasonableness. Petitioner
has not shown that his trial counsel's handling of his case fell outside “the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689. Furthermore, Petitioner
has not demonstrated prejudice. Petitioner argues that the fact witnesses’ testimony
would have opened the door to further admission of L.’s sexual activities, specifically,
the admission of the so-called “lapdance” letter. Together, this testimony and evidence
would have been admissible as providing motive for L. to fabricate her allegation. Given
the already ample evidence of motive in this case, the evidence that L. was already in
trouble with her mother for hanging around boys without permission or approval, the
Court finds that evidence of L.’s sexual activity would not have cast sufficient doubt on
her credibility such that there would have been a reasonable probability that the verdict
would have been different. The Court also finds that the testimony of Estrada would not
have affected the outcome of the trial. Crediting counsel with Petitioner’s assertion that
trial counsel did not call her as a witness because her testimony as to any lack of aberrant
behavior on Petitioner’s part towards her could be perceived as due to sufficient
dissimilarity between her race or ethnicity and the victim’s, additional dissimilarities
between the witness and the victim would have further rendered this testimony less
persuasive: Estrada testified that she and Petitioner slept in the same bed when she was
an infant and a “little girl,” the victim, on the other hand, was an adolescent pre-teen
when the abuse occurred; additionally, Estrada was a sister of Petitioner’s, while the
victim, being the daughter of Petitioner’s girlfriend, was not related to Petitioner in any
way. This Court's review on a federal habeas petition requires Petitioner to show that the
state court's rejection of his claim of ineffective assistance of counsel was contrary to
clearly established federal law, was based on an unreasonable application of clearly
established federal law, or was based on an unreasonable determination of the facts
considering the evidence presented in state court. Petitioner has not met that standard
here.

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4.

Ground Five

Petitioner asserts that trial counsel was ineffective for failing to object to the
prosecutor asking leading questions during direct examination of the victim. This claim
was presented to the trial court. The court rejected the claim, finding that “whether or not
to object” to the form of questions was a matter of trial strategy. The trial court
considered the circumstances of the case, noting that objection to the form of questions
can be perceived by the jury as an unfair attack on the victim, furthermore, counsel could
have thought that the witness was not doing well, and that the jury was having a negative
reaction to her testimony. (Ex. S, at 3-4.)
The trial court did not unreasonably apply Strickland in finding that trial counsel’s
decision to not call these witnesses was a matter of trial strategy that did not fall below
the standard of reasonableness. “[F]ailure to object to leading questions and the like is
generally a matter of trial strategy as to which [courts] will not second guess counsel.”
Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993). Even assuming that counsel
objected on the basis that the prosecutor was leading the witness, in Arizona, a trial court
has discretion to allow leading questions during direct examination of minor witnesses.
See Arizona v. Jerousek, 121 Ariz. 420, 426 (1979). L. was thirteen, and review of the
trial transcript reveals that she had trouble remembering things, and was perhaps reluctant
to testify or was having difficulty testifying against her mother’s boyfriend. Furthermore,
Petitioner has failed to show how the leading questions prejudiced Petitioner’s defense.
Petitioner argues that “had [L.] been required to testify on her own, without being led by
the prosecutor, it is almost certain that her testimony would have been different. For
example, she may have maintained her recantation of the allegations.” Petitioner
concludes that “[b]ecause [L.’s] testimony would have been different without the leading
questions to direct her, it is reasonable to conclude that the jury would have acquitted the
Petitioner.” This conclusion is both conclusory and speculative, and not supported by the
record. The trial court did not unreasonably apply Strickland in finding that trial

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counsel’s decision to not object to the leading questions was a matter of trial strategy that
did not fall below the standard of reasonableness.

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5.

Ground Six

Petitioner argues that trial counsel was ineffective for failing to seek
reconsideration of the trial court’s order precluding relevant evidence. Specifically, a
letter known as the “lapdance letter,” which was a note written from L. to a friend,
demonstrating L.’s sexual knowledge and experiences with boys her own age, was
precluded by the trial court as inflammatory and prejudicial. The trial court left the door
open for use of the letter as impeachment “if the prosecutor puts the victim’s prior sexual
conduct in issue.” (Ex. AA at 14-15.)
Leon presented this claim that his counsel should have sought reconsideration of
this order because the prosecutor had elicited testimony about the victim’s lack of sexual
knowledge in his PCR proceeding. (Ex. M at 23.) The only fact he cited in support of this
argument is that the prosecutor asked the victim whether she knew what a vagina is. (Id.)
The trial court resolved this issue by finding that the prosecutor’s question did not open
the door sufficient to allow reconsideration of the ruling “and the court would not have
allowed the introduction of the letter solely because of this one question.” (Ex. S.) Leon
presented this claim in his petition for review to the Arizona Court of Appeals, which
denied relief without comment. (Ex. V at 24, and W).
The trial court did not unreasonably apply Strickland in finding that Leon’s
counsel’s decision to not seek reconsideration of the trial court’s ruling did not fall below
the standard of reasonableness. Nothing about the question or the answer implied to the
jury that the victim lacked sexual knowledge or put the victim’s sexual conduct in issue:

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Q:

Do you remember what area he touched you?

A:

On my – the area where my private spots are.

Q:

And just so I’m clear, when you mean “private spots”, what are you

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referring to? Do you want me to say the word?

2

A:

Yes

Q:

Are you referring to your vagina?

A:

Yes.

Q:

Do you know what a vagina is, [L,]?

A:

Yes

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The prosecutor asked her the question in the context of clarifying what she meant

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by referring to her private spots.” (Ex. BB, RT 9/24/03 at 162.) The question did not

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pertain to the victim’s sexual conduct or knowledge beyond merely inquiring whether the

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victim knew some basic vocabulary for purposes of clarifying her testimony.

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Furthermore, the trial court indicated in its ruling on Petitioner’s PCR that, even had

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Leon’s counsel moved for reconsideration based on that question, he would not have

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been successful. Counsel cannot be ineffective for doing that which would have been

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futile. See Rupe v. Wood, 93 F.3d 1434, 1444- 1445 (9th Cir. 1996) (“[T]he failure to take

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a futile action can never be deficient performance.”)

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IV.

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The Court finds that Petitioner procedurally defaulted Grounds Seven and Eight

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of the Amended Petition. Grounds One through Six of the Amended Petition are without

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merit and are denied with prejudice.

CONCLUSION

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Accordingly,

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IT IS ORDERED that the amended petition for writ of habeas corpus pursuant to

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28 U.S.C. § 2254 (Doc. 59) is DENIED.

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The Clerk is directed to prepare a judgment and close the case.

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//

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//

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CERTIFICATE OF APPEALABILITY
In the event Petitioner appeals from this Court's judgment, and in the interests of
conserving scarce resources that otherwise might be consumed drafting an application for
a certificate of appealability to this Court, the Court on its own initiative has evaluated
the claims within the Amended Petition for suitability for the issuance of a certificate of
appealability. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65 (9th
Cir. 2002).
Rule 22(b) of the Federal Rules of Appellate Procedure provides that when an
appeal is taken by a petitioner, the district judge who rendered the judgment “shall” either
issue a certificate of appealability (“COA”) or state the reasons why such a certificate
should not issue. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the
petitioner “has made a substantial showing of the denial of a constitutional right.” With
respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable
jurists would find the district court's assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463
U.S. 880, 893 & n. 4, (1983)). For procedural rulings, a COA will issue only if
reasonable jurists could debate (1) whether the petition states a valid claim of the denial
of a constitutional right and (2) whether the court's procedural ruling was correct. Id.
The Court finds that reasonable jurists could debate its resolution of Ground One
of the Amended Petition. The Court therefore grants a certificate of appealability as to
this claim. For the reasons stated in this Order the Court declines to issue a certificate of
appealability for Petitioner's remaining claims and procedural issues.
Dated this 24th day of January, 2014.

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