Baker v. Ryan et al

Filing 18

ORDER that Petitioner's 1 Petition for Writ of Habeas Corpus (State/2254) is denied. It is further ordered that a certificate of appealability is DENIED, because reasonable jurists would not find the Court's ruling debatable. It is further Order that this matter is dismissed with prejudice and the Clerk of the Court shall close its file in this matter. Signed by Magistrate Judge Bruce G Macdonald on 3/5/2015. (MFR)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ryan Robert Baker, Petitioner, 10 11 vs. 12 Charles L. Ryan, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-0140-TUC-BGM ORDER 15 16 Petitioner Ryan Robert Baker, confined in the Arizona State Prison Complex, Tucson, 17 and represented by counsel, has filed a Petition For Writ of Habeas Corpus Pursuant to 28 18 U.S.C. § 2254 (“Petition”) (Doc. 1). Respondents have filed an Answer to Petition for Writ 19 of Habeas Corpus (“Answer”) (Doc. 11) and Petitioner has filed a Reply (Doc.15). The 20 parties have consented to Magistrate Judge jurisdiction. (Doc. 16). Based on the following 21 discussion, the Petition for A Writ of Habeas Corpus is denied. 22 23 24 I. FACTUAL AND PROCEDURAL BACKGROUND The Arizona Court of Appeals stated the facts1 as follows: 25 26 27 28 1 As these state court findings are entitled to a presumption of correctness and Petitioner has failed to show by clear and convincing evidence that the findings are erroneous, the Court hereby adopts these factual findings. 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007); 1 2 3 4 5 6 7 Just after 2:00 a.m. on June 26, 2007, F. and V. were walking along Stone Avenue, when a vehicle with two men inside pulled alongside them. The driver leaned over the passenger and demanded money from them. He then got out of the car and approached them, again demanding money. F. told the man they did not have any money, and he and V. began to walk away. The driver got back in the vehicle and followed F. and V. for a time before again getting out of the car and approaching them on foot. When the driver demanded money again, V. told him to leave them alone. The driver returned to the vehicle to retrieve a bat. He once again demanded money and hit F. in the head with the bat. The driver then got in the car and drove away. F. suffered a traumatic brain injury. 9 After receiving no investigative leads, Tucson Police Detective Haynes resorted to media publicity in an attempt to acquire additional information about the crime. Within the following ten days, Davonn B. came forward, stated that he had been the passenger in the vehicle, and identified Baker as the driver who had assaulted F. 10 Answer (Doc. 11), Ariz. Ct. App. Mem. Decision 5/15/2009, State v. Ryan Robert Baker, No. 11 2 CA-CR 2008-0224, (Exh. “H”) at ¶¶ 2-3. On August 2, 2007, Petitioner was charged by 12 indictment in Pima County Superior Court with two counts of attempted armed robbery 13 (Counts One and Four) and two counts of aggravated assault (Counts Two and Three). 14 Answer (Doc. 11), Indictment (Exh. “A”). On May 2, 2008, Petitioner was convicted on all 15 charges, that is, as to Counts One through Three regarding the male victim, and as to Count 16 Four regarding the female victim. Answer (Doc. 11), Minute Entry 5/2/2008 (Exh. “B”) at 17 3-4. The jury further found as to Counts One and Two that the offense involved the use 18 and/or discharge and/or threatening exhibition of a deadly weapon and/or dangerous 19 instrument, to wit, a bat; as to Count Three that the offense involved the intentional or 20 knowing infliction of serious physical injury; and as to Count Four the offense involved the 21 use and/or discharge and/or threatening exhibition of a deadly weapon, to wit, a bat. Id. The 22 jury found as aggravating factors that the male victim suffered severe physical and emotional 23 harm. Id. On June 20, 2008, Petitioner was sentenced to aggravated concurrent prison terms 24 of 15 years as to the aggravated assault convictions, a consecutive aggravated term of 15 25 years for the attempted armed robbery conviction regarding the male victim, and to a 8 26 27 28 Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985); Cf. Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). -2- 1 consecutive presumptive term of 7.5 years for the attempted armed robbery conviction 2 regarding the female victim, resulting in a total aggregate prison sentence of 37.5 years. 3 Answer (Doc. 11), Aggravation/Mitigation Hr’g & Sent. of Imprisonment 6/20/2008 (Exh. 4 “C”); Sent. Tr. 06/20/08 (Doc. 14-8) at 46-47. 5 A. 6 Petitioner appealed and argued that the trial court had erred in refusing to instruct the 7 jury on third-party culpability and in ordering consecutive sentences. Answer (Doc. 11), 8 Notice of App. (Exh. “D”); Answer (Doc. 11) Appellant’s Opening Brief (Op. Br.) (Exh. 9 “E”) at 1, 7-36. The Arizona Court of Appeals affirmed Petitioner’s conviction and sentence. 10 See Answer (Doc. 11), Exh. “H.” Petitioner timely sought review in the Arizona Supreme 11 Court. Answer (Doc. 11), Ariz. Ct. App. Order 6/16/2009 (Exh. “I”) & Pet. for Review 12 7/20/2009 (Exh. “H”). October 27, 2009, the Arizona Supreme Court denied review. 13 Answer (Doc. 11) Order 10/28/2009, State v. Ryan Robert Baker, No. CR-09-0187-PR (Exh. 14 “J”). Direct Appeal 15 B. 16 While his petition for review was pending, Petitioner filed a Notice of Post- 17 Conviction Relief (PCR notice) under Arizona Rules of Criminal Procedure 32.9 on October 18 30, 2009. Answer (Doc. 11), Notice of PCR Relief (Exh. “L”). Petitioner, represented by 19 counsel, timely filed his PCR petition on April 28, 2010. Answer (Doc. 11), Notice 20 12/8/2009 (Exh. “M”), Orders (Exh. “N”) & Petition for PCR (Exh. “O”). Petitioner alleged 21 that trial counsel had provided ineffective assistance by failing to ascertain whether a crime 22 award program had been initiated and was known to the State at the time prosecution witness 23 Davonn Banks testified at the criminal trial. Answer (Doc. 11), Exh. “O.” The trial court 24 found no merit to the claim and denied relief without an evidentiary hearing. Answer (Doc. 25 11), Ruling Re: Pet. for PCR 7/9/2010 (Exh. “R”). On July 26, 2010, Petitioner sought 26 review in the Arizona Court of Appeals. Answer (Doc. 11), Pet. for Review to Ariz. Ct. App. 27 (Exh. “S”). The court of appeals granted review, but denied relief. Ariz. Ct. App. Mem. 28 Decision 10/4/2010, State v. Ryan Robert Baker, No. 2 CA-CR 2010-0250-PR (Exh. “T”) Post-Conviction Relief Proceeding -3- 1 (Doc. 12). Although Petitioner requested and received extensions of time to file for review 2 in the Arizona Supreme Court, he did not file a petition for review in that forum. Ariz. Ct. 3 App. Orders (Exh. “U”) (Doc. 12). The state court of appeals mandate issued on March 23, 4 2011. Ariz. Ct. App. Mandate (Doc. 4-4). 5 C. 6 Petitioner filed his federal habeas petition on February 27, 2012. Petition (Doc. 1). 7 Petitioner asserts the following grounds for relief: 8 9 10 The Instant Habeas Proceeding (1) Ground One: Petitioner was denied his Fifth and Fourteenth Amendment due process rights to a fair trial when the trial court failed to give a “third party culpability” jury instruction. 11 (2) Ground Two: Arizona’s procedure for determining Petitioner’s eligibility for 12 consecutive sentences as to Counts One through Three violated Petitioner’s Fifth, Sixth and 13 Fourteenth Amendment rights to (a) due process, (b) double jeopardy, and (c) a jury 14 determination of the facts necessary to increase Petitioner’s sentence beyond the statutory 15 maximum. 16 (3) Ground Three: Petitioner was denied his Sixth Amendment right to effective 17 assistance of counsel when trial counsel failed to move for a new trial based on information 18 disclosed at sentencing that the State’s key witness received a $1,000 award for his 19 testimony. (Doc. 1 at 7). 20 21 II. STANDARD OF REVIEW 22 A. 23 The federal courts shall “entertain an application for a writ of habeas corpus in behalf 24 of a person in custody pursuant to the judgment of a State court only on the ground that he 25 is in custody in violation of the Constitution or laws or treaties of the United States.” 28 26 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in 27 state custody: In General 28 -4- 1 4 shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 5 28 U.S.C. § 2254(d); see also Cullen v. Pinholster, — U.S. — , 131 S.Ct. 1388, 1398, 179 6 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal habeas 7 corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 8 (1991). Ultimately, “[t]he statute’s design is to ‘further the principles of comity, finality, and 9 federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 2854, 168 L.Ed.2d 10 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 11 931 (2003)). Furthermore, this standard is difficult to meet and highly deferential “for 12 evaluating state-court rulings, [and] which demands that state-court decisions be given the 13 benefit of the doubt.” Pinholster, 131 S.Ct. at 1398 (citations and internal quotation marks 14 omitted). 2 3 15 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 16 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. “AEDPA 17 erects a formidable barrier to federal habeas relief for prisoners whose claims have been 18 adjudicated in state court.” Burt v. Titlow, — U.S. —, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 19 (2013). Federal courts reviewing a petition for habeas corpus must “presume the correctness 20 of state courts’ factual findings unless applicants rebut this presumption with ‘clear and 21 convincing evidence.’” Schriro v. Landrigen, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940, 22 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the 23 federal courts must consider whether the state court’s determination was unreasonable, not 24 merely incorrect. Id., 550 U.S. at 473, 127 S.Ct. at 1939; Gulbrandson v. Ryan, 738 F.3d 25 976, 987 (9th Cir. 2013). Such a determination is unreasonable where a state court properly 26 identifies the governing legal principles delineated by the Supreme Court, but when the court 27 applies the principles to the facts before it, arrives at a different result. See Harrington v. 28 Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. -5- 1 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 2 (9th Cir. 2004). “AEDPA requires ‘a state prisoner [to] show that the state court’s ruling on 3 the claim being presented in federal court was so lacking in justification that there was an 4 error . . . beyond any possibility for fairminded disagreement.’” Burt, 134 S.Ct. at 10 5 (quoting Harrington, 562 U.S. at 103, 131 S.Ct. at 786-87) (alterations in original). 6 B. Exhaustion of State Remedies 7 Prior to application for a writ of habeas corpus, a person in state custody must exhaust 8 all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This “provides 9 a simple and clear instruction to potential litigants: before you bring any claims to federal 10 court, be sure that you first have taken each one to state court.” Rose v. Lundy, 455 U.S. 509, 11 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). As such, the exhaustion doctrine gives 12 the State “the opportunity to pass upon and correct alleged violations of its prisoners’ federal 13 rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) 14 (internal quotations omitted). Moreover, “[t]he exhaustion doctrine is principally designed 15 to protect the state courts’ role in the enforcement of federal law and prevent disruption of 16 state judicial proceedings.” Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203 (internal 17 citations omitted). This upholds the doctrine of comity which “teaches that one court should 18 defer action on causes properly within its jurisdiction until the courts of another sovereignty 19 with concurrent powers, and already cognizant of the litigation, have had an opportunity to 20 pass upon the matter.” Id. (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 21 94 L.Ed. 761 (1950)). 22 Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long as 23 the applicant “has the right under the law of the State to raise, by any available procedure the 24 question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has been fairly 25 presented to the state courts, the exhaustion requirement is satisfied.” Picard v. Connor, 404 26 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair presentation requirement 27 mandates that a state prisoner must alert the state court “to the presence of a federal claim” 28 in his petition, simply labeling a claim “federal” or expecting the state court to read beyond -6- 1 the four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 2 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner’s assertion that his claim had been 3 “fairly presented” because his brief in the state appeals court did not indicate that “he was 4 complaining about a violation of federal law” and the justices having the opportunity to read 5 a lower court decision addressing the federal claims was not fair presentation); Hiivala v. 6 Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due 7 process issue in state court because petitioner presented claim in state court only on state 8 grounds). Furthermore, in order to “fairly present” one’s claims, the prisoner must do so “in 9 each appropriate state court.” Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349. “Generally, a 10 petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout 11 the entire direct appellate process of the state, or (2) throughout one entire judicial 12 postconviction process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 13 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, §23.3b 14 (4th ed. 1998)). 15 In Arizona, however, for non-capital cases “review need not be sought before the 16 Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 17 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007); 18 Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the Supreme Court 19 has further interpreted § 2254(c) to recognize that once the state courts have ruled upon a 20 claim, it is not necessary for an applicant to seek collateral relief for the same issues already 21 decided upon direct review. Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1060, 22 103 L.Ed.2d 380 (1989). 23 C. Procedural Default 24 “A habeas petitioner who has defaulted his federal claims in state court meets the 25 technical requirements for exhaustion; there are no state remedies any longer ‘available’ to 26 him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640 27 (1991). Moreover, federal courts “will not review a question of federal law decided by a 28 state court if the decision of that court rests on a state law ground that is independent of the -7- 1 federal question and adequate to support the judgment.” Id., 501 U.S. at 728, 111 S.Ct. at 2 2554. This is true whether the state law basis is substantive or procedural. Id. (citations 3 omitted). Such claims are considered procedurally barred from review. See Wainwright v. 4 Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). 5 6 7 8 9 10 11 12 13 14 The Ninth Circuit explained the difference between exhaustion and procedural default as follows: The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner’s claims and that opportunity may still be available to the petitioner under state law. In contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but declined to reach the issue for procedural reasons, or if it is clear that the state court would hold the claim procedurally barred. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and citations omitted). Thus, in some circumstances, a petitioner’s failure to exhaust a federal claim in state court may cause a procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies 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.’” (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991))). 15 Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005). Thus, a prisoner’s habeas petition 16 may be precluded from federal review due to procedural default in two ways. First, where 17 the petitioner presented his claims to the state court, which denied relief based on 18 independent and adequate state grounds. Coleman, 501 at 728, 111 S.Ct. at 2254. Federal 19 courts are prohibited from review in such cases because they have “no power to review a 20 state law determination that is sufficient to support the judgment, resolution of any 21 independent federal ground for the decision could not affect the judgment and would 22 therefore be advisory.” Id. Second, where a “petitioner failed to exhaust state remedies and 23 the court to which the petitioner would be required to present his claims in order to meet the 24 exhaustion requirement would now find the claims procedurally barred.” Id. at 735 n.1, 111 25 S.Ct. at 2557 n.1 (citations omitted). Thus, the federal court “must consider whether the 26 claim could be pursued by any presently available state remedy.” Cassett, 406 F.3d at 621 27 n.6 (quoting Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (emphasis in original). 28 -8- 1 The State retains the burden to prove the adequacy of the bar. Once the State raises 2 procedural default as an affirmative defense, “the burden to place that defense in issue shifts 3 to the petitioner.” Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). “The petitioner 4 may satisfy this burden by asserting specific factual allegations that demonstrate the 5 inadequacy of the state procedure, including citation to authority demonstrating inconsistent 6 application of the rule.” Id. 7 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 8 courts are prohibited from subsequent review unless the petitioner can show cause and actual 9 prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 10 334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal 11 habeas review unless petitioner demonstrated cause and prejudice); see also Smith v. Murray, 12 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986) (recognizing “that a federal 13 habeas court must evaluate appellate defaults under the same standards that apply when a 14 defendant fails to preserve a claim at trial.”). “[T]he existence of cause for a procedural 15 default must ordinarily turn on whether the prisoner can show that some objective factor 16 external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” 17 Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also 18 Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any 19 cause “for procedurally defaulting his claims of ineffective assistance of counsel, [as such] 20 there is no basis on which to address the merits of his claims.”). In addition to cause, a 21 habeas petitioner must show actual prejudice, meaning that he “must show not merely that 22 the errors . . . created a possibility of prejudice, but that they worked to his actual and 23 substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” 24 Murray, 477 U.S. at 494, 106 S.Ct. at 2648 (emphasis in original) (internal quotations 25 omitted). Without a showing of both cause and prejudice, a habeas petitioner cannot 26 overcome the procedural default and gain review by the federal courts. Id., 106 S.Ct. at 27 2649. 28 -9- 1 The Supreme Court has recognized, however, that “the cause and prejudice standard 2 will be met in those cases where review of a state prisoner’s claim is necessary to correct ‘a 3 fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 4 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac 456 U.S. 107, 135, 102 S.Ct. 1558, 1572-73, 5 71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice exception is available 6 ‘only where the prisoner supplements his constitutional claim with a colorable showing of 7 factual innocence.’” Herrara v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862, 122 L.Ed.2d 8 203 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 9 2616, 2627, 91 L.Ed.2d 364 (1986)). Thus, “‘actual innocence’ is not itself a constitutional 10 claim, but instead a gateway through which a habeas petitioner must pass to have his 11 otherwise barred constitutional claim considered on the merits.” Herrara, 506 U.S. at 404, 12 113 S.Ct. at 862. Further, in order to demonstrate a fundamental miscarriage of justice, a 13 habeas petitioner must “establish by clear and convincing evidence that but for the 14 constitutional error, no reasonable factfinder would have found [him] guilty of the underlying 15 offense.” 28 U.S.C. § 2254(e)(2)(B). 16 In Arizona, a petitioner’s claim may be procedurally defaulted where he has waived 17 his right to present his claim to the state court “at trial, on appeal or in any previous collateral 18 proceeding.” Ariz. R. Crim. P. 32.2(a)(3). “If an asserted claim is of sufficient constitutional 19 magnitude, the state must show that the defendant ‘knowingly, voluntarily and intelligently’ 20 waived the claim.” Id., 2002 cmt. Neither Rule 32.2 nor the Arizona Supreme Court has 21 defined claims of “sufficient constitutional magnitude” requiring personal knowledge before 22 waiver. See id.; See also Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). The Ninth 23 Circuit recognized that this assessment “often involves a fact-intensive inquiry” and the 24 “Arizona state courts are better suited to make these determinations.” Cassett, 406 F.3d at 25 622. 26 ... 27 ... 28 ... - 10 - 1 III. STATUTE OF LIMITATIONS 2 A. 3 As a threshold matter, the Court must consider whether Petitioner’s petition is barred 4 by the statute of limitations. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). 5 The AEDPA mandates that a one-year statute of limitations applies to applications for a writ 6 of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) 7 provides that the limitations period shall run from the latest of: 8 Timeliness (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 9 10 (B) the date on which the impediment to filing an application created by the State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 11 12 13 14 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 15 28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). Additionally, 16 “the period of ‘direct review’ in 28 U.S.C. § 2244(d)(1)(A) includes the [90-day] period 17 within which a petitioner can file a petition for writ of certiorari from the United States 18 Supreme Court, whether or not the petitioner actually files such a petition.” Bowen v. Roe, 19 188 F.3d 1157, 1158-59 (9th Cir. 1999). “The time during which a properly filed application 20 for State post-conviction or other collateral review with respect to the pertinent judgment or 21 claim is pending shall not be counted toward any period of limitation under this subsection.” 22 28 U.S.C. § 2244(d)(2). Respondents contend Petitioner’s federal habeas petition is time 23 barred. Answer (Doc. 11) at 3-5. Petitioner did not seek certiorari review in the United 24 States Supreme Court resulting in the conclusion of his direct appeal 90 days after the state 25 supreme court denied review on October 27, 2009. Petitioner’s direct review of his 26 conviction thus concluded on January 25, 2010. AEDPA’s one-year limitations period began 27 28 - 11 - 1 to run on January 26, 2010 except that Petitioner filed a PCR notice on October 30, 2009. 2 Answer (Doc. 11), Exh. “L.” 3 B. 4 The limitations period is tolled during the time in “which a properly filed application 5 for State post-conviction or other collateral review with respect to the pertinent judgment or 6 claim is pending[.]” 28 U.S.C. § 2244(d)(2); Allen v. Siebert, 552 U.S. 3, 4, 128 S.Ct. 2, 3, 7 169 L.Ed.2d 329 (2007). An application for State post-conviction relief is “‘properly filed’ 8 when its deliver and acceptance are in compliance with the applicable laws and rules 9 governing filings.” Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 364, 148 L.Ed.2d 213 10 (2000). Moreover, if a state court rejects a petitioner’s PCR petition as untimely, it cannot 11 be “properly filed” and the petitioner is not entitled to statutory tolling. 12 DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005). “[I]n 13 Arizona, post-conviction ‘proceedings begin with the filing of the Notice.’” Hemmerle, 495 14 F.3d 1069, 1074 (9th Cir. 2007) (quoting Isley v. Arizona Dept. of Corrections, 383 F.3d 15 1054 (9th Cir. 2004)). Petitioner filed his Notice of Post-Conviction Relief on October 30, 16 2009. Answer (Doc. 11), Exh. “I.” This PCR notice was “properly filed,” and therefore 17 tolled AEDPA’s one-year statute of limitations. Hemmerle, 495 F.3d at 1074. Statutory Tolling of the Limitations Period Pace v. 18 Petitioner’s request for review of the state trial court’s denial of his PCR petition was 19 granted and relief denied by the Arizona Court of Appeals on November 4, 2010. Respts.’ 20 Exh. “T” (Doc. 12). Had Petitioner sought review of that decision in the Arizona Supreme 21 Court, his “pending” state post-conviction matter would have concluded on the date review 22 was denied, not the date the state supreme court issued its mandate. White v. Klitzkie, 281 23 F.3d 920, 923 n. 4 (9th Cir. 2002) (date review is denied, not date the mandate is issued, is 24 relevant for AEDPA time calculations); Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir. 25 2007) (after the Arizona Supreme Court denied review of petitioner’s Rule 32 application, 26 “nothing remained ‘pending’ for purposes of § 2244(d)(2); . . . the statute of limitations set 27 forth in § 2244(d)(2) began running again”). However, Petitioner did not file for review in 28 the Arizona Supreme Court. Under such circumstances, Petitioner’s state post-conviction - 12 - 1 matter was no longer pending as of the date the Arizona Court of Appeals issued its mandate 2 regarding its grant of review but denial of relief as to Petitioner’s request for review of the 3 trial court’s denial of his PCR petition. See Celaya v. Stewart, 691 F. Supp. 2d 1046, 1054- 4 55 (D. Ariz. 2010), aff’d 497 Fed. Appx. 744, 2012 WL 5505736 (9th Cir. Nov. 14, 2012), 5 cert. denied, 133 S.Ct. 1824 (U.S. Apr. 15, 2013) (Under Arizona law, an “appellate court 6 decision is not final until the mandate issues” if no further review is sought). The state court 7 of appeals mandate issued on March 23, 2011, and the tolling period in state court ceased on 8 that date. Ariz. Ct. App. Mandate (Doc. 4-4). Petitioner therefore had one year from March 9 23, 2011 to file his federal habeas petition. As Petitioner filed his habeas petition on 10 February 27, 2012, his petition was timely filed. 11 12 IV. ANALYSIS 13 A. 14 Petitioner asserts that he was denied his Fifth and Fourteenth Amendment due process 15 rights to a fair trial when the trial court failed to give a “third party culpability” jury 16 instruction. Respondents argue that Ground One is technically exhausted, but procedurally 17 defaulted because Petitioner’s one line reference to “due process” in his appellate brief was 18 insufficient to present the claim to the state court. Answer (Doc. 11) at 9-10. Ground One: Third Party Culpability Jury Instruction 19 With respect to Ground One and the trial court’s failure to give a third party 20 culpability instruction, Petitioner raised this issue on direct appeal based on state case law. 21 Answer (Doc. 11), Exh. “E” at 7-18. Petitioner’s argument contained only the single passing 22 assertion that “the judge violated Baker’s state and federal constitutional due process and fair 23 trial rights. U.S. Const. Amends. 5 and 14; Ariz. Const. Art. 2, § 4.” (Id. at 15). Petitioner’s 24 Reply brief similarly relied on a discussion of state case law without reference to federal 25 precedent. Answer (Doc. 11), Appellant’s Reply Br. (Exh. “G”) at 1-7. The state court of 26 appeals rejected Petitioner’s argument based on a discussion of state case law. Answer (Doc. 27 11), Exh. “H” at 3-7. The court of appeals made no finding regarding a violation of 28 constitutional due process. Petitioner did not sufficiently alert the state court that he was - 13 - 1 raising a federal constitutional violation. Petitioner therefore did not “fairly present” the jury 2 instruction issue as a federal constitutional claim to the state appellate court. 3 Any return to state court by Petitioner, with respect to Ground One, would be “futile.” 4 Petitioner would no longer have a remedy if he returned to the state court. The time has 5 passed to seek post-conviction relief in state court under Ariz.R.Crim.P. 32.4(a) and 6 Petitioner has not shown any of the exceptions to the time limits under Rule 32.1(d), (e), (f), 7 (g) or (h) apply to him. Petitioner’s Ground One claim is procedurally defaulted. 8 Where issues are procedurally defaulted, federal review of the claim is barred unless 9 the petitioner demonstrates “cause and prejudice” or a “fundamental miscarriage of justice.” 10 Petitioner does not argue any of these grounds in his Reply. Petitioner has not established 11 “cause” for the procedural default or resulting prejudice. He does not contend he is actually 12 innocent and has not shown a miscarriage of justice. As such, Ground One is denied and 13 dismissed as procedurally defaulted. 14 B. Ground Two: Due Process, Double Jeopardy, and Jury Determination Regarding Facts for Sentencing 15 Petitioner asserts that Arizona’s procedure for determining Petitioner’s eligibility for 16 consecutive sentences as to Counts One through Three violated his Fifth, Sixth and 17 Fourteenth Amendment rights to (a) due process, (b) double jeopardy, and (c) a jury 18 determination of the facts necessary to increase Petitioner’s sentence beyond the statutory 19 maximum. Respondents contend that subclaim (a) is abandoned as not raised in Petitioner’s 20 federal habeas petition and that subclaims (b) and (c) are procedurally defaulted because 21 Petitioner did not assert them in the state court in a procedurally appropriate manner. 22 Answer (Doc. 11) at 10-14. 23 1. Direct Appeal 24 On direct appeal, Petitioner argued that the trial court’s imposition of consecutive 25 sentences violated his “state and federal constitutional due process and double jeopardy 26 rights.” Answer (Doc. 11) Exh. “E” at 18-36. Petitioner supported this argument with 27 references to United States Supreme Court precedent and Arizona statutory and case law. 28 - 14 - 1 Id. He further argued that A.R.S. § 13-116 provided him with “a substantive liberty interest 2 and rights under the state and federal double jeopardy clauses in receiving concurrent 3 sentences for offenses arising from the same act,” relying in part on Whalen v. United States, 4 445 U.S. 684, 688 (1980). Id. at 21, 23.2 5 The Arizona Court of Appeals considered and rejected Petitioner’s due process 6 argument, finding that it essentially was a “critique of [State v. Gordon, 778 P.2d 1204 (Ariz. 7 1989)], and what [Petitioner] view[ed] as its shortcomings.” Answer (Doc. 11), Exh. “H” 8 at 11-13).3 It distinguished Mathews v. Eldridge, 424 U.S. 319 (1976), which involved civil 9 administrative proceedings, based on State v. Wagner, 982 P.2d 270, 273 (Ariz. 1999), which 10 held “that ‘the balancing test set forth in Mathews does not provide the correct standard to 11 evaluate constitutional challenges to criminal sentencing procedures.’” Id. at 12. It 12 concluded that “Baker has not persuaded us that the current procedure, whereby a defendant 13 is given an opportunity at the sentencing hearing to argue whether he is entitled to concurrent 14 prison terms and an evaluation by a sentencing judge of the propriety of consecutive 15 sentences based on Gordon, fails to provide ‘a fair sentencing procedure.’ See State v. Grier, 16 146 Ariz. 511, 515, 707 P.2d 309, 313 (1985).” Id. The court of appeals did not consider 17 Petitioner’s double jeopardy argument, finding that it was abandoned as not raised in the trial 18 court and that the issue was not developed on appeal separately from Petitioner’s discussion 19 of § 13-116 or supported by authority on the merits. Id. at 7, n. 1. 2. Due Process 20 21 In his federal habeas petition, Petitioner alleges in subclaims (a) and (b) that Arizona’s 22 procedure for determining his eligibility for consecutive sentences violated his Fifth, Sixth 23 24 25 26 2 Arizona Revised Statutes, § 13-116 provides in part that “An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent.” 3 27 28 Gordon sets forth the test for determining under A.R.S. § 13-116 whether a defendant’s criminal conduct constitutes a single act requiring concurrent sentences. Gordon, 778 P.2d at 1210-11. - 15 - 1 and Fourteenth Amendment rights to due process and double jeopardy. Petition (Doc. 1) at 2 20. Petitioner’s argument in Ground Two mentions double jeopardy grounds but not due 3 process grounds. 4 process claim to the state appellate court that was considered and determined on appeal, he 5 has now abandoned any separate claim for federal habeas relief based on a violation of due 6 process by failing to include the issue in the argument portion of his federal habeas petition. 7 Petitioner appears to concede the issue because he makes no mention of a violation of due 8 process claim in his Reply. Reply (Doc. 15) at 11-18. As such, Petitioner’s due process 9 claim asserted as subclaim (a) of Ground Two is foreclosed. 10 Id. at 20-24. Accordingly, although Petitioner fairly presented a due 3. Double Jeopardy 11 With respect to the double jeopardy claim asserted in Petitioner’s habeas petition, the 12 Arizona Court of Appeals specifically found that he abandoned and waived the claim because 13 he failed to assert it in the trial court and because he had not sufficiently argued the issue on 14 appeal, in violation of Arizona Rule of Criminal Procedure 31.13(c)(1)(vi). Rule 15 31.13(c)(1)(vi) provides that the appellant’s opening brief “shall contain the contentions of 16 the appellant ... and the reasons therefor, with citations to the authorities, statutes, and parts 17 of the record relied on.” Application of Rule 31.13(c)(1)(vi) is firmly established and 18 regularly followed in Arizona. See State v. Carver, 771 P.2d 1382, 1390 (Ariz. App. 1989); 19 State v. Lopez, 175 P.3d 682, 687 n. 5 (Ariz. App. 2008) (declining to address defendant’s 20 argument that did not comply with Rule 31.13(c)(1)(vi)); State v. Burdick, 125 P.3d 1039, 21 1042 n. 4 (Ariz. App. 2005); State v. Eddington, 244 P.3d 76, 85 (Ariz. App. 2010); see also 22 Bersane v. Ryan, No. CV 07-8085-PCT-PGR (HCE), 2010 WL 1195162, at *23 (D. Ariz. 23 Jan. 21, 2010) (where state appellate court declined to address double jeopardy claim for 24 failure to comply with Rule 31.13(c)(1)(vi), such determination is independent of federal 25 law). Federal courts “will not review a question of federal law decided by a state court if the 26 decision of that court rests on a state law ground that is independent of the federal question 27 and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 728, 111 S.Ct. 28 2546, 2554, 115 L.Ed.2d 640 (1991). This is true whether the state law basis is substantive - 16 - 1 or procedural. Id. (citations omitted). Accordingly, the state appellate court’s application 2 of its procedural rules, which has nothing to do with a federal constitutional question, is an 3 independent and adequate state ground determination that prohibits federal review of the 4 claim. See Brown v. Ryan, No. CV-09-2625-PHX-GMS (LOA), 2010 WL 2491460, at *7 5 (D. Ariz. May 24, 2010) (habeas petitioner’s state and federal double jeopardy claims 6 procedurally defaulted by virtue of state court’s application of a procedural bar when 7 petitioner attempted to raise the claims in state court). 8 Petitioner argues in his Reply that under Arizona law the failure to argue double 9 jeopardy in the trial court does not waive the issue, citing Arizona cases. Reply (Doc. 15) 10 at 11-12. He further argues that the single sentence in his state appellate brief that supported 11 his double jeopardy argument was sufficient to alert the state court of the federal claim and 12 that the state court of appeals erred in finding the claim abandoned. Id. at 13-14. Petitioner, 13 however, has not provided sufficient argument demonstrating that the state court of appeals 14 relied on a procedural rule in error or that its interpretation was “‘clearly untenable and 15 amounts to a subterfuge to avoid federal review of a deprivation by the state’” of federal 16 constitutional rights. Compare Sivak v. Hardison, 658 F.3d 898, 906–07 (9th Cir.2011) 17 (“[A]n erroneously applied procedural rule does not bar federal habeas review”), with Lopez 18 v. Schriro, 491 F.3d 1029, 1043 (9th Cir.1997) (quoting Knapp v. Cardwell, 667 F.2d 1253, 19 1260 (9th Cir.1982)) (a federal court must respect a state court's interpretation of state 20 procedural law unless that interpretation is “‘clearly untenable and amounts to a subterfuge 21 to avoid federal review of a deprivation by the state of rights guaranteed by the 22 Constitution’”). Petitioner’s double jeopardy claim is procedurally barred. 23 4. Jury Determination of Facts for Sentencing 24 Respondents further argue that Petitioner did not “fairly present” subclaim (c) of 25 Ground Two asserting that he was entitled to a jury determination of the facts that made him 26 eligible for consecutive sentences under Arizona law. Answer (Doc. 11) at 13. Respondents 27 contend that Petitioner did not cite in his opening state appellate brief Apprendi v. New 28 Jersey, 530 U.S. 466 (2000), and made only passing reference to Blakely v. Washington, 542 - 17 - 1 U.S. 296 (2004), in the context of seemingly acknowledging that Blakely does not apply to 2 the imposition of consecutive sentences. Id. at 14, referring to Exh. “E” at 24-25. 3 Petitioner asserted in his state appellate brief as part of his improper sentencing 4 argument that, “The law does not provide an original fact-finder.” Answer (Doc. 11), Exh. 5 “E” at 24. In support of this issue, Petitioner argued that Arizona law presumably allows for 6 the trial court to make the findings relevant to imposing consecutive sentences but that this 7 assumption is not supported by Arizona statute or case law. Id. at 24. Petitioner next noted 8 in his brief that “[w]hile, in general, the federal constitution’s due process clauses require 9 jury findings of facts that increase the available punishment, [citing Blakely v. Washington], 10 nothing in the law prohibits jury findings of facts that lack this feature.” Id. at 24. Petitioner 11 concluded this portion of his argument by asserting that “Arizona law leaves undetermined 12 who the fact-finder is” regarding the decision to impose consecutive sentences and that “[a] 13 basic component of procedural due process is a meaningful opportunity to be heard. 14 Mathews, 424 U.S. at 333-34.” Id. at 25. In subsequent sections of his argument, Petitioner 15 contended that Arizona law left undetermined what fact must be found and who has the 16 burden of establishing that fact; Arizona law does not provide for the standard of proof 17 applicable to factual determinations; and the standard for appellate review is problematic, all 18 of which violate due process. Id. at 26-34. The state court of appeals did not address a jury 19 fact-finding issue based on Apprendi and Blakely in affirming Petitioner’s sentence. Answer 20 (Doc. 11), Exh. “H.” 21 Petitioner contends in his Reply that he raised this claim on direct appeal. Reply 22 (Doc. 15) at 14-15. Petitioner supports this contention by characterizing his claim as a 23 “Blakely argument” but relies exclusively on Arizona authority he contends demonstrates 24 “unique conditions in Arizona.” Id. Based on this Court’s review of the state court 25 proceedings, Petitioner did not argue on appeal the claim he now raises in his federal habeas 26 petition based on Apprendi and Blakely that the jury must be the fact-finder for purposes of 27 determining imposition of consecutive sentences. Petitioner therefore failed to “fairly 28 present” subclaim (c) of Ground Two in the state court. - 18 - 1 5. Procedural Default of Ground Two Claims 2 Ground Two, subclaim (a), is dismissed as foreclosed from habeas review because it 3 was not argued in Petitioner’s federal habeas petition. With respect to Ground Two, 4 subclaims (b) and (c), any return to state court by Petitioner would be “futile.” Petitioner 5 would no longer have a remedy if he returned to the state court. The time has passed to seek 6 post-conviction relief in state court under Ariz.R.Crim.P. 32.4(a) and Petitioner has not 7 shown any of the exceptions to the time limits under Rule 32.1(d), (e), (f), (g) or (h) apply 8 to him. Petitioner’s Ground Two, subclaims (b) and (c), are procedurally defaulted. 9 Where issues are procedurally defaulted, federal review of the claim is not barred if 10 the petitioner demonstrates “cause and prejudice” or a “fundamental miscarriage of justice.” 11 Petitioner does not argue any of these grounds in his Reply. Petitioner has not established 12 “cause” for the procedural default or resulting prejudice. He does not contend he is actually 13 innocent and has not shown a miscarriage of justice. Ground One and Ground Two, 14 subclaims (b) and (c), are denied and dismissed as procedurally defaulted. 15 C. Ground Three: Ineffective Assistance of Counsel 16 Petitioner asserts in Ground Three that defense counsel was ineffective in failing to 17 move for a new trial when its was disclosed at sentencing that a State’s key witness received 18 a $1,000 reward for his testimony. Petition (Doc. 1) at 25. Petitioner contends that had 19 counsel been aware of this circumstance, counsel could have moved for a new trial based on 20 newly discovered impeachment evidence and requested an evidentiary hearing. Id. at 26-27. 21 Petitioner requests an evidentiary hearing on this claim. Id. at 28. 22 For cases which have been fairly presented to the State court, the Supreme Court 23 elucidated a two part test for determining whether a defendant could prevail on a claim of 24 ineffective assistance of counsel sufficient to overturn his conviction. See Strickland v. 25 Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Petitioner must 26 show that counsel’s performance was deficient. Id. at 687, 104 S.Ct. at 2064. “This requires 27 showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ 28 guaranteed the defendant by the Sixth Amendment.” Id. Second, Petitioner must show that - 19 - 1 this performance prejudiced his defense. Id. Prejudice “requires showing that counsel’s 2 errors were so serious as to deprive the defendant of a fair trial whose result is reliable.” Id. 3 Ultimately, whether or not counsel’s performance was effective hinges on its reasonableness 4 under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; see also 5 State v. Carver, 160 Ariz. 167, 771 P.2d 1382 (1989) (adopting Strickland two-part test for 6 ineffective assistance of counsel claims). The Sixth Amendment’s guarantee of effective 7 assistance is not meant to “improve the quality of legal representation,” rather it is to ensure 8 the fairness of trial. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. “Thus, ‘[t]he benchmark 9 for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined 10 the proper functioning of the adversarial process that the trial cannot be relied on as having 11 produced a just result.’” Cullen v. Pinholster, — U.S. — , 131 S.Ct. 1388, 1403, 179 L.Ed.2d 12 557 (2011) (quoting Strickland, 466 at 686) (emphasis and alteration in original). 13 “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ . . 14 . and when the two apply in tandem, review is ‘doubly’ so[.]” Harrington, 562 U.S. at 105, 15 131 S.Ct. at 788 (citations omitted). Judging counsel’s performance must be made without 16 the influence of hindsight. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. As such, “the 17 defendant must overcome the presumption that, under the circumstances, the challenged 18 action ‘might be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 19 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955). Without the requisite showing of either 20 “deficient performance” or “sufficient prejudice,” Petitioner cannot prevail on his 21 ineffectiveness claim. Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. “[T]he question is not 22 whether counsel’s actions were reasonable. The question is whether there is any reasonable 23 argument that counsel satisfied Strickland’s deferential standard.” Gentry v. Sinclair, 705 24 F.3d 884, 899 (9th Cir. 2013) (quoting Harrington v. Richter, 131 U.S. 86 , 105 , 131 S.Ct. 25 770, 788, 178 L.Ed.2d 624 (2011)) (alterations in original). “The challenger’s burden is to 26 show ‘that counsel made errors so serious that counsel was not functioning as the ‘counsel’ 27 guaranteed the defendant by the Sixth Amendment.’” Harrington, 131 U.S. at 104, 131 S.Ct. 28 at 787 (citations omitted). Accordingly, “[w]e apply the doubly deferential standard to - 20 - 1 review the state court’s ‘last reasoned decision.’” Vega v. Ryan, 757 F.3d 960, 966 (9th Cir. 2 2014) (citations omitted). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated 3 on the merits’ in state court, subject only to the exceptions in 2254(d)(1) and (d)(2).” 4 Harrington, 131 U.S. at 98, 131 S.Ct. at 784. As such, Petitioner also bears the burden of 5 showing the state court applied Strickland to the facts of his case in an objectively 6 unreasonable manner. See Bell v. Cone, 535 U.S. 685, 698-99 (2002). 7 During sentencing, defense counsel reported that she had learned the previous day that 8 State’s witness Banks had received a $1,000 reward from a crime reporting hotline. Sent. 9 Tr. 06/20/08 (Doc. 14-8) at 28-29. Counsel expressed concern about whether Banks knew 10 of the reward when he testified. Id. The prosecutor responded that it was his understanding 11 based on information from Detective Haynes that the award had just occurred and Banks had 12 not known of its possibility when he testified at trial. Id. at 44-45. 13 Petitioner raised this claim in his PCR petition filed in the trial court, submitting in 14 support the affidavit of a private investigator that discussed the 88-Crime’s procedures. 15 Answer (Doc. 11) Exh. “O,” Godoy Aff, (Att. “1”). The State filed a response that included 16 a Memorandum dated May 15, 2008 sent by Detective Haynes to the director of the crime- 17 reporting hotline inquiring about Banks’ eligibility for a reward for his trial testimony. 18 Answer (Doc. 11), Exh. “P,” Att. “A.” The State also submitted Detective Haynes’ affidavit 19 dated June 10, 2010 avowing that he had not discussed the possibility of the reward with 20 Banks or the prosecutor at any time before the jury’s verdict and that he submitted the 21 Memorandum after the jury’s verdict. Answer (Doc. 11), Exh. “P”, Att. “B.” The trial court 22 found that information about the award did not exist until after the jury had rendered its 23 verdict and that “Banks did not know that he was being considered for the award when he 24 testified.” Answer (Doc. 11) Exh. “R.” The court further found that “[t]here was nothing 25 for defense counsel to pursue once the facts behind the 88-Crime award were determined.” 26 Id. Petitioner’s request for review was granted by the state court of appeals who agreed with 27 the trial court’s determination and denied relief. Respts.’ Exh. “T” (Doc. 12). 28 - 21 - 1 Defense counsel has a “duty to make reasonable investigations or to make a 2 reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. 3 at 691. Counsel must, “at a minimum, conduct a reasonable investigation enabling him to 4 make informed decisions about how best to represent his client.” Hendricks v. Calderon, 70 5 F.3d 1032, 1036 (9th Cir.1995) (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th 6 Cir.1994) (internal citation and quotations omitted)). 7 Defense counsel was not deficient for failing to investigate the issue of Banks’ 8 knowledge of the possibility of the reward. Petitioner has not pointed to any circumstances 9 that casts doubt on the prosecutor’s statement at sentencing that Banks did not know of the 10 possibility of the reward. Petitioner did not provide any information during the state post- 11 conviction proceedings showing that there was reason to believe that Banks had some 12 expectation of receiving the reward before he testified. The evidence in the record, which 13 includes the police detective’s sworn affidavit, shows that Banks did not know of the 14 possibility of the reward when he testified. 15 During trial, Banks testified that he first called Crime Stoppers and then the police to 16 provide information about the assault. Banks specifically asked the authorities if they would 17 get his girlfriend out of jail. Hr’g Tr. 4/30/08 (Doc. 13) 165-67, 185-87. Banks told the 18 police what he knew about the crime even though the police said they could not help his 19 girlfriend. Id. at 166-67. Banks at the time of Petitioner’s trial had been charged with a 20 criminal offense and testified that the prosecutor told him that if he provided truthful 21 testimony that information would be reported to the prosecutor and sentencing judge in 22 Banks’ case. Id. at 167-68, 210-11. Banks testified at trial that he had not received a plea 23 deal or anything in exchange for his testimony and he was not charged with the assault. Id. 24 at 169, 199. He also testified that he was upset with Petitioner because Banks’ girlfriend had 25 been arrested regarding damage to a motel room that he felt was Petitioner’s fault. Id. at 173- 26 77. Banks had asked Petitioner to put up his car for collateral to get his girlfriend out of jail. 27 Id. at 173-74, 177-78. Evidence relevant to Banks’ motivation for testifying or any reward 28 for his testimony was before the jury. - 22 - 1 Review of § 2254(d) claims “is limited to the record that was before the state court 2 that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). 3 Petitioner’s claim of ineffective assistance of counsel was adjudicated on the merits by the 4 state court. Where, as here, “the record refutes the [habeas] applicant’s factual allegations 5 or otherwise precludes habeas relief, a district court is not required to hold an evidentiary 6 hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (a hearing is not required if the 7 allegations would not entitle the petitioner to relief under § 2254(d)). 8 Petitioner has not demonstrated that defense counsel was deficient in failing to 9 investigate the issue of the reward after learning about it at the sentencing hearing. The state 10 court’s determination that defense counsel did not provide ineffective representation was not 11 objectively unreasonable. Petitioner is not entitled to an evidentiary hearing on this claim. 12 13 V. CONCLUSION 14 For the reasons delineated above, IT IS HEREBY ORDERED that: 15 1) Petitioner’s Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 16 17 18 (Doc. 1) is DENIED; 2) A certificate of appealability is DENIED, because reasonable jurists would not find the Court’s ruling debatable. See 28 U.S.C. § 2253; 19 3) This matter is DISMISSED with prejudice; and 20 4) The Clerk of the Court shall close its file in this matter. 21 DATED this 5th day of March, 2015. 22 23 24 25 26 27 28 - 23 -

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