Pryor #235926 v. Ryan et al

Filing 26

AMENDED ORDER(Amended as to first line only): Petitioner's 11 First Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody is DENIED. A certificate of appealability is DENIED. This matter is DISMISSED with prejudice and the Clerk of the Court shall enter judgment and close its file in this matter. Signed by Magistrate Judge Bruce G Macdonald on 9/28/15.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Oliver Michael Pryor,

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Petitioner,

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No. CV-12-00526-TUC- BGM
AMENDED ORDER
(Amended as to first line only)

v.
Charles L. Ryan, et al.,

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Respondents.

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Currently pending before the Court is Petitioner Oliver Michael Pryor’s pro se
First Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person

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in State Custody (Non-Death Penalty) (“First Amended Petition”) (Doc. 11).

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Respondents have filed an Answer to Petition for Writ of Habeas Corpus (“Answer”)

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(Doc. 17). Petitioner filed a Reply (Doc. 21). The First Amended Petition is ripe for

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adjudication.

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I.

FACTUAL AND PROCEDURAL BACKGROUND
The Arizona Court of Appeals stated the facts1 as follows:

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As these state court findings are entitled to a presumption of correctness and Petitioner

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The victims, M. and K., were the granddaughters of Pryor’s wife,
Gail. Gail often watched the girls for her daughter Michelle while Michelle
worked. Gail also worked, and at times, Pryor took care of the girls when
both Gail and Michelle were working. During the summer of 2004, when
school was not in session, the girls would spend a few days each week at
Pryor and Gail’s home, sleeping there some of the nights. Once school
started in August, the girls would spend the night with Pryor and Gail if
Michelle was on call at work and they could not stay with their father.
Michelle testified that at one point during the summer, the girls no longer
wanted to go to Gail’s home. Over Pryor’s objection, Michelle testified
that in February 2006, the children had told her Pryor had touched them
without their clothes on. The girls had told two of their cousins what had
happened, and the cousins urged the girls to tell their mother. Michelle
called the Pima County Sheriff’s office, and Tucson Police Department
Detective Katherine Kragnes subsequently responded. The girls were
interviewed by a person qualified to conduct a forensic interview of
children.
K. testified she had been eight or nine years old when the detective
had interviewed her. She stated her grandpa more than once had put his
mouth on her vagina. A drawing she had provided police was admitted as
an exhibit; she explained the drawing depicted M. and Pryor in bed and
showed his penis, which she explained had some “[l]ittle hairs.” She also
admitted telling the detective Pryor had “rubb[ed]” her “butt” with his
hand. She recalled telling the detective about one incident in which Pryor
had kissed her and her sister “in the wrong places” and about how she had
seen “white stuff c[o]me out” of his penis. She admitted telling the
prosecutor and defense counsel during an interview that “white stuff . . .
went in [her] mouth sometimes.” She also testified she and her sister had
seen a videotape at Pryor’s house that showed a man putting his mouth on
and rubbing a girl’s private parts and a woman putting her mouth on a
man’s private parts.
M. testified about a number of incidents during which Pryor had
touched her on her “chest, . . . bottom, . . . [and] private area.” She
described how Pryor squeezed her breasts under her clothes and how, on
many occasions, he had gone into the room where she and her sister K.
were sleeping and told her to lick his penis. He also made her “[p]ut [her]
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); 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).

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mouth around it.” She and K. licked his penis and “white stuff” came out.
He also twice touched her inside her private parts with his hand. She
described a game in which she and K. would take turns to see who could
make him “happy fastest,” which she said meant ejaculate. Pryor once paid
K. $20 for making him happy fastest.
Michelle’s husband Jeff, the children’s stepfather, confronted Pryor
at Gail’s house after the children told Michelle what had been happening.
Pryor denied molesting them. Detective Kragnes confronted Pryor and
asked him if he would talk to her. She met with him and took a statement
from him, which she recorded.

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Answer (Doc. 17), Ariz. Ct. of Appeals Mem. Decision (Exh. “G”) at ¶¶ 2–5 (alterations
in original).
Petitioner was charged with two counts of continuous sexual abuse of a child,

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dangerous crimes against children, and two counts of furnishing obscene or harmful

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items to minors. Id., Exh. “G” at ¶ 1. On September 15, 2008, a jury found Petitioner

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guilty of all counts. Id., Ariz. Superior Ct., Pima County, Minute Entry 9/15/2008 (Exh.

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“A”) at 1–2. On October 23, 2008, Petitioner was sentenced to the presumptive term of

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twenty (20) years imprisonment for each count of continuous sexual abuse of a child, to

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run consecutively. Id., Ariz. Superior Ct., Pima County, Order 10/23/2008 (Exh. “B”) at

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2–3. Petitioner was also sentenced to the presumptive term of 2.5 years for each count of

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furnishing harmful items to a minor, to run concurrently with each other, but
consecutively from the second twenty (20) year term. Id., Exh. “B” at 3–4.
A. Direct Appeal

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On October 23, 2008, Petitioner filed his Notice of Appeal. Answer (Doc. 17),

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Notice of Appeal 10/23/2008 (Exh. “C”). On April 7, 2009, Petitioner filed his Opening

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Brief. Id., Appellant’s Opening Br. 4/7/2009 (Exh. “D”). Petitioner alleged three (3)

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claims for relief, including that (1) the trial court “abused its discretion in denying the
motion in limine to preclude evidence of Appellant’s arrest in Mexico[,] [and] giving a

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flight instruction unsupported by the facts[;]” (2) the trial court “erred in denying
[Appellant’s] Rule 20 motion challenging that the state had not proved continuous sexual
abuse per statute in counts one and two[;]” and (3) the trial court erred in “admit[ting] the

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testimony of Michelle Wright regarding what the girls told her, it being inadmissible
hearsay and not within any proper exception[.]” Id., Exh. “D” at 25–39.

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On October 21, 2009, the Arizona Court of Appeals affirmed Petitioner’s
convictions. See Answer (Doc. 17), Ariz. Ct. App. Mem. Decision 10/21/2009 (Exh.

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“G”). In assessing Petitioner’s claim regarding the trial court’s admission of evidence

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regarding Petitioner’s move to Mexico prior to being charged, the court of appeals

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recognized that “[t]he mere fact that Pryor had an explanation for why he left the country

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did not render the evidence irrelevant.” Id., Exh. “G” at 7. Relying on Arizona state case
law and procedural rules, the court of appeals determined that the “alternative
explanation for flight goes to weight not admissibility of evidence and does not preclude

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instruction.” Id. (citing State v. Hunter, 136 Ariz. 45, 49, 664 P.2d 195, 199 (Ariz.

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1983)). Again relying on state case law, the court of appeals further found that the

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evidence was not unduly prejudicial. Answer (Doc. 17), Exh. “G” at 8. As such, the

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court of appeals found that the trial court did not abuse its discretion. Id., Exh. “G” at 7–
8.
The Arizona Court of Appeals also rejected Petitioner’s contention “that the trial
court erred when it instructed the jury it could infer guilt from evidence of flight.” Id.,
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Exh. “G” at 8. The court of appeals noted that although Petitioner objected to the
evidence of flight, he did not expressly object to the instruction. Id., Exh. “G” at 9. As

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such, Petitioner’s only ground for relief in the appellate court was one for fundamental
error. Id. (citing State v. Dann, 220 Ariz. 351, ¶ 51, 207 P.3d 604, 617 (Ariz. 2009)).
Again relying on state law, the court of appeals went on to hold that in light of the

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evidence, the jury had been properly instructed, and even if the instruction were
fundamental error, Petitioner had not met his burden of establishing prejudice. Id., Exh.
“G” at 9–10.

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Regarding Petitioner’s Rule 20 motion, the Arizona Court of Appeals recognized

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that “[a] Rule 20 motion should only be granted if there is no substantial evidence to

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support the conviction.” Answer (Doc. 17), Exh. “G” at 10 (citing Ariz. R. Crim. P.

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20(a)). The court defined “substantial evidence” as “more than a mere scintilla and is

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such proof that ‘reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.’” Id., Exh. “G” at 10–11
(quoting State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (Ariz. 1990)).

Upon

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review of the evidence presented at trial, the court of appeals held that “reasonable jurors

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readily could find beyond a reasonable doubt that Pryor had engaged in at least three

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sexual acts with the victims for a period of three months or longer[,]” and as such the trial

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court did not abuse its discretion in denying Petitioner’s Rule 20 motion. Id., Exh. “G” at
11–12.
Concerning Petitioner’s contention that “the trial court erred in admitting the
statements the victims had made to their mother over his [hearsay] objection[,]” the court
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of appeals held that “[t]o the extent the testimony . . . was presented for the truth of the
matter asserted it was cumulative.” Answer (Doc. 17), Exh. “G” at 12–13. The court

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further held that “[a]ny error in its admission was therefore harmless beyond a reasonable
doubt.” Id., Exh. “G” at 13 (citing State v. Dickens, 187 Ariz. 1, 19, 926 P.2d 468, 486
(Ariz. 1996); State v. Eastlack, 180 Ariz. 243, 256–57, 883 P.2d 999, 1012–13 (Ariz.

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1994)).
Petitioner did not seek review of this decision with the Arizona Supreme Court.
Answer (Doc. 17), Ariz. Ct. App. Mandate 12/2/2009 (Exh. “H”); Petition (Doc. 1) at 3.

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B. Initial Post-Conviction Relief Proceeding

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On February 3, 2010, Petitioner filed his Notice of Post-Conviction Relief

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(“PCR”). Answer (Doc. 17), Not. of PCR 2/3/2010 (Exh. “I”). On September 10, 2010,

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Petitioner filed his Petition for Post Conviction Relief. Answer (Doc. 17), Pet. for PCR

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(Exh. “L”).

Petitioner claimed that his trial counsel was ineffective for “failing to

challenge the prosecutor’s use of peremptory strikes based on gender.” Id., Exh. “L” at 5.
In furtherance of this argument, Petitioner alleged that trial counsel’s failure to challenge

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the prosecution’s peremptory challenges “fell below prevailing norms” and that Petitioner

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was prejudiced by the “structural error” resulting from the alleged deprivation of having

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an impartial jury decide his case. Id., Exh. “L” at 9.

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On November 3, 2010, the trial court denied Petitioner’s PCR petition.

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Answer (Doc. 17), Exh. “O.” The trial court recognized that “[t]o state a colorable claim

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for ineffective assistance of counsel claim, a petitioner must satisfy a two-part test: (1) a

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petitioner must show that his or her counsel’s performance fell below an objective
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standard of reasonableness; and (2) a petitioner must show that the deficient performance
resulted in actual prejudice to his case.” Id., Exh. “O” at 1–2 (citing Strickland v.

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Washington, 466 U.S. 668, 687 (1984)). The Rule 32 court found that it need not decide
whether trial counsel was ineffective for failing to make a Batson challenge, because the
Petitioner had “failed to allege sufficient facts to establish that his case was in fact

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prejudiced.”

Answer (Doc. 17), Exh. “O” at 2.

The Rule 32 court noted that “a

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defendant is not constitutionally entitled to [a] balanced jury, nor a jury comprised of the

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same proportions of genders as exist in the community generally.” Id., Exh. “O” at 2

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(citing State v. Williams, 111 Ariz. 175, 178, (Ariz. 1976)). The Rule 32 court further

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noted that “[a]n examination of the jury roster . . . reveal[ed] that of the fifty-four jurors

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questioned in voir dire, only nineteen were men[,] [and] [o]f these, eleven were struck for

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cause.” Id., Exh. “O” at 2. The Rule 32 court held that “nothing about this factual

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scenario indicates that the prosecutor intentionally used her strikes to remove men from
the panel[,] . . . [and] Petitioner has offered no evidence that his conviction was, in fact,
the result of gender bias.” Id., Exh. “O” at 2. As such, the Rule 32 court determined that

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“Petitioner ha[d] failed to show that he was actually prejudiced in this case, and thus

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ha[d] failed to satisfy the second prong of the Strickland test[,]” and denied relief Id.,

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Exh. “O” at 2.

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On December 27, 2010, Petitioner filed his Petition for Review from Denial of

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Rule 32 Petitioner for Post-Conviction Relief in the Arizona Court of Appeals. See

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Answer (Doc. 17), Pet. for Review from Denial of Rule 32 Pet. For PCR 12/27/2010

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(Exh. “Q”). On April 7, 2011, the Arizona Court of Appeals granted review, but denied
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relief. Answer (Doc. 17), Ariz. Ct. App. Mem. Decision 4/7/2011 (Exh. “R”). The court
of appeals considered Petitioner’s claims of ineffective assistance of counsel due to an

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alleged failure “to raise a claim based on Batson v. Kentucky, 476 U.S. 79 (1986), that the
state had improperly used its peremptory strikes to remove several male jurors.” Id., Exh.
“R” at 2. The court of appeals found that “[e]ven assuming . . . that Pryor ha[d]

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demonstrated his counsel should have raised a Batson challenge, that alone is not

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sufficient to show prejudice.” Id., Exh. “R” at 3. The court of appeals stated that

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Petitioner must also “show a reasonable probability a Batson challenge would have

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resulted in a different jury[.]” Id., Exh. “R” at 3 (quoting Strickland, 466 U.S. at 694).

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The court of appeals held Petitioner failed to make “a colorable showing of such a

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probability.” Id., Exh. “R” at 3.

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On April 11, 2011, Petitioner filed a Motion for Reconsideration, which was

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summarily denied eight (8) days later. See Answer (Doc. 17), Pet.’s Mot. for Recon.
(Exh. “S”) & Ariz. Ct. of Appeals Order 4/19/2011 (Exh. “T”). On April 21, 2011,
Petitioner sought review of the denial of his PCR petition by the Arizona Supreme Court.

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See Answer (Doc. 17), Pet. for Review to Ariz. Supreme Ct. 4/19/2011 (Exh. “U”). On

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September 27, 2011, the Arizona Supreme Court denied review without comment.

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Answer (Doc. 17), Ariz. Supreme Ct. ME 9/27/2011 (Exh. “V”).

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C. Second Post-Conviction Relief Proceeding
On October 27, 2011, Petitioner filed his Notice of Post-Conviction Relief. See
Answer (Doc. 17), Not. of PCR 10/27/2011 (Exh. “W”).

Petitioner argues that

“[b]ecause Arizona law prohibits raising ineffective assistance of counsel claims within a
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direct appeal, to deprive Pryor of effective counsel in a Post-Conviction Proceeding . . .
[violates] Article 2 § 24 of the Arizona Constitution and the Sixth Amendment of the

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United States Constitution.” Answer (Doc. 17), Def.’s (Subsequent) Petition for PCR
10/27/2011 (Exh. “X”) at 5. Petitioner further argued that “[b]oth Appellate [c]ounsel
and Post-Conviction counsel were ineffective for failing to previously present th[e] issue

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[of Petitioner’s competency] to the [c]ourt for consideration.”

Id., Exh. “X” at 5.

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Petitioner argues that his sleep deprivation due to sleep apnea was such that a

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competency hearing was required to assess whether he could “knowingly and

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intelligently” reject a plea, stand trial. Id., Exh. “X” at 5–8. Petitioner further asserts that
this failure violated his Due Process rights. Id., Exh. “X” at 8.
On May 17, 2012, the trial court denied Petitioner second PCR petition. See
Answer (Doc. 17), In Chambers Ruling, Re: Pet. for PCR 5/17/2012 (Exh. “AA”). The

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trial court analyzed whether Petitioner’s claim regarding his alleged incompetency
because he was not permitted to use his Continuous Positive Air Pressure (“CPAP”)
machine while incarcerated at the Pima County Jail could be raised under Rule 32.2,

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Arizona Rules of Criminal Procedure. Id., Exh. “AA” at 2. The trial court observed that

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“Petitioner’s claim that he was not competent does not fall under any of the exceptions

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listed in Rule 32.2(b)[,] . . . [and] could have been raised on direct appeal[.]” Id., Exh.

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“AA” at 2. The trial court further noted that although Petitioner outlined this claim to the

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court of appeals, it was not properly presented for review. Id., Exh. “AA” at 2–3. The

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trial court found that “Petitioner’s failure to fully raise the issue on direct appeal

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constitutes a waiver, and Rule 32.2(a) precludes Petitioner from raising the issue in this
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subsequent Petitioner for Post Conviction Relief.” Id., Exh. “AA” at 3.
In analyzing Petitioner’s claim regarding allegedly ineffective assistance of

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appellate counsel, the trial court again looked to the state procedural rules. Answer (Doc.
17), Exh. “AA” at 3. The trial court found that “Petitioner’s argument . . . [did] not fall
under any of the exceptions listed in Rule 32.2(b)[, Arizona Rules of Criminal Procedure]

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. . . [and] Petitioner could have argued that he received ineffective assistance of appellate

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counsel in his first Petition for Post Conviction Relief.” Id., Exh. “AA” at 3. As such,

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the trial court deemed Petitioner’s claim regarding ineffective assistance of appellate

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counsel waived, and precluded from review. Id., Exh. “AA” at 3.

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Concerning Petitioner’s allegation that he received ineffective assistance of PCR

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counsel due to the latter’s failure to argue ineffective assistance of appellate counsel, the

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trial court held that this claim was without merit. Id., Exh. “AA” at 3. Relying on

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Arizona state law, the court recognized that “non-pleading defendants have no right to
effective PCR counsel.” Id., Exh. “AA” at 3.
On May 30, 2012, Petitioner filed a Motion for Rehearing of the Court’s May 16th

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[sic], 2012 Order, which was denied without comment on June 7, 2012. Answer (Doc.

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17), Mot. for Rehr’g of the Court’s May 16th [sic], 2012 Order (Exh. “BB”) & Ariz.

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Superior Ct. Order 6/7/2012 (Exh. “CC”). Subsequently, on June 27, 2012, Petitioner

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filed a pro se Petition for Review. Answer (Doc. 17), Pet. For Review (Exh. “DD”).

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Relying on Martinez v. Ryan, 132 S.Ct. 1309 (2012), Petitioner argued that the trial court

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erred (1) by holding that the “Petitioner was not entitled to effective assistance of counsel

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in his first Rule 32 Petition[;]” and (2) “by failing to address the issues of competency
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when it relied on State case law for ‘preclusion[.]’” Answer (Doc. 17), Exh. “DD” at 4.
Petitioner further asserted that “under new federal law, Arizona defendants, who go to

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trial, are now constitutionally guaranteed the 6th Amendment right to effective counsel in
a collateral proceeding, attacking the ineffectiveness of all previous counsel.” Id., Exh.
“DD” at 5. Additionally, Petitioner framed the issue of competency as whether he “was

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coherent and competent enough to weight those very benefits and consequences [of a

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plea agreement], and make a knowing and intelligent refusal of that plea agreement.” Id.,

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Exh. “DD” at 7. Petitioner asserts that his sleep deprivation made him incompetent, and

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that the trial courts denial of a competency hearing deprived him of his right to a fair trial,
as did his prior counsel’s failure to raise the issue for review. Id., Exh. “DD” at 8–9.
On October 12, 2012, the Arizona Court of Appeals granted review, but denied
relief. See Answer (Doc. 17) Ariz. Ct. App. Mem. Decision 10/12/2012 (Exh. “EE”). As

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an initial matter, the court of appeals corrected Petitioner’s misapprehension of the
Supreme Court of the United States’ decision in Martinez, recognizing that “the Court did
not ground its decision in a constitutional right, instead determining that defendants had

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an ‘equitable’ right to the effective assistance of initial post-conviction counsel and

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limited [this] decision to the application of procedural default in federal habeas review.”

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Id., Exh. “EE” at 3 (citing Martinez v. Ryan, — U.S. —, 132 S.Ct. at 1319–20). The

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court of appeals held that nothing in Martinez altered Arizona law that “a claim that Rule

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32 counsel was ineffective is not a cognizable ground for relief in a subsequent Rule 32

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proceeding.” Id., Exh. “EE” at 3–4. As such, the Arizona Court of Appeals denied relief.

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Id., Exh. “EE” at 4.
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Petitioner did not seek review with the Arizona Supreme Court. First Amended
Petition (Doc. 11) at 5.

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D. The Instant Habeas Proceeding
On December 11, 2012, Petitioner filed his First Amended Petition Under 28
U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death

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Penalty) (Doc. 11). Petitioner claims five (5) grounds for relief. First, Petitioner alleges

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the trial court erred by denying his “motion in limine to preclude evidence of his arrest in

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Mexico and giving a flight instruction unsupported by the facts creating prejudice

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outweighing any probative value to the State,” thereby denying Petitioner a fair trial in

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violation of the Due Process Clause and the Fifth, Sixth, and Fourteenth Amendments.

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First Amended Petition (Doc. 11) at 6. Second, Petitioner alleges that the trial court erred

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in denying his “Rule 20 Motion,” in which he argued that the “State failed to prove all the

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necessary elements required to find the Defendant guilty of continuous sexual abuse in
counts one and two[.]”

Id. at 7.

Petitioner further alleges that “[t]here [was] no

testimony to tell when the 90 day period started or ended[,] . . . [and] without the required

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testimony, it is impossible to convict the Defendant ‘beyond a reasonable doubt[.]’” Id.

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Third, Petitioner claims that the trial court erred when it admitted “the testimony of

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Michelle Wright (complainant’s [sic] mother) regarding what [M. and K.] (complainants)

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told her, being it was inadmissible hearsay and not within any proper exception.” Id. at 8.

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Petitioner asserts that this violated his rights under the Confrontation Clause of the Sixth

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Amendment. Id. Fourth, Petitioner asserts that “trial counsel render[ed] ineffective

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assistance of counsel by failing to challenge the Prosecutor’s use of peremptory strikes
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against jurors, based on gender[.]”

First Amended Petition (Doc. 11) at 9.

Fifth,

Petitioner alleges ineffective assistance of counsel based upon “appellate and first Rule

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32 counsels’ failure to challenge defendant’s conviction based on defendant’s
competency, due to sleep deprivation[.]” Id. at 10. On April 1, 2013, Respondents filed
their Answer (Doc. 17), and on May 8, 2013, Petitioner filed his Reply (Doc. 21).

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II.

STANDARD OF REVIEW
A. In General
The federal courts shall “entertain an application for a writ of habeas corpus in

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behalf of a person in custody pursuant to the judgment of a State court only on the ground

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that he is in custody in violation of the Constitution or laws of treaties of the United

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States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus

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by a person in state custody:

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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.

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28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398,

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179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal

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habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116

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L.Ed.2d 385 (1991). Ultimately, “[t]he statute’s design is to ‘further the principles of

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comity, finality, and federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct.
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2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337,
123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet

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and highly deferential “for evaluating state-court rulings, [and] which demands that statecourt decisions be given the benefit of the doubt.”

Pinholster, 131 S.Ct. at 1398

(citations and internal quotation marks omitted).

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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat.

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1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The

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“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims

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have been adjudicated in state court.” Burt v. Titlow, — U.S. —, 134 S.Ct. 10, 16, 187

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L.Ed.2d 348 (2013).

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“presume the correctness of state courts’ factual findings unless applicants rebut this

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Federal courts reviewing a petition for habeas corpus must

presumption with ‘clear and convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465,

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473–74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)).
Moreover, on habeas review, the federal courts must consider whether the state court’s
determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473, 127 S.Ct. at

20
21

1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is

22

unreasonable where a state court properly identifies the governing legal principles

23

delineated by the Supreme Court, but when the court applies the principles to the facts

24
25

before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct.

26

770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146

27

L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004).

28

“AEDPA requires ‘a state prisoner [to] show that the state court’s ruling on the claim
- 14 -

1
2

being presented in federal court was so lacking in justification that there was an error . . .
beyond any possibility for fairminded disagreement.’” Burt, 134 S.Ct. at 10 (quoting

3
4
5
6

Harrington, 562 U.S. at 103, 131 S.Ct. at 786–87) (alterations in original).
B. Exhaustion of State Remedies
Prior to application for a writ of habeas corpus, a person in state custody must

7
8

exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This

9

“provides a simple and clear instruction to potential litigants: before you bring any claims

10

to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy,

11
12

455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982).

As such, the

13

exhaustion doctrine gives the State “the opportunity to pass upon and correct alleged

14

violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct.

15

1347, 1349, 158 L.Ed. 2d 64 (2004) (internal quotations omitted). Moreover, “[t]he

16
17
18
19

exhaustion doctrine is principally designed to protect the state courts’ role in the
enforcement of federal law and prevent disruption of state judicial proceedings.” Rose,
455 U.S. at 518, 102 S.Ct. at 1203 (internal citations omitted). This upholds the doctrine

20
21

of comity which “teaches that one court should defer action on causes properly within its

22

jurisdiction until the courts of another sovereignty with concurrent powers, and already

23

cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. (quoting

24
25

Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)).

26

Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long

27

as the applicant “has the right under the law of the State to raise, by any available

28

procedure the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has
- 15 -

1
2

been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard
v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair

3
4
5
6

presentation requirement mandates that a state prisoner must alert the state court “to the
presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting
the state court to read beyond the four corners of the petition is insufficient. Baldwin v.

7
8

Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting

9

petitioner’s assertion that his claim had been “fairly presented” because his brief in the

10

state appeals court did not indicate that “he was complaining about a violation of federal

11
12

law” and the justices having the opportunity to read a lower court decision addressing the

13

federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999)

14

(holding that petitioner failed to exhaust federal due process issue in state court because

15

petitioner presented claim in state court only on state grounds). Furthermore, in order to

16
17
18
19

“fairly present” one’s claims, the prisoner must do so “in each appropriate state court.”
Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349.

“Generally, a petitioner satisfies the

exhaustion requirement if he properly pursues a claim (1) throughout the entire direct

20
21

appellate process of the state, or (2) throughout one entire judicial postconviction process

22

available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting

23

Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed.

24
25

1998)).

26

In Arizona, however, for non-capital cases “review need not be sought before the

27

Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d

28

1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz.
- 16 -

1
2

2007); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the
Supreme Court has further interpreted § 2254(c) to recognize that once the state courts

3
4
5
6

have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for
the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346,
350, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989).

7
8

C. Procedural Default

9

“A habeas petitioner who has defaulted his federal claims in state court meets the

10

technical requirements for exhaustion; there are no state remedies any longer ‘available’

11
12

to him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d

13

650 (1991). Moreover, federal courts “will not review a question of federal law decided

14

by a state court if the decision of that court rests on a state law ground that is independent

15

of the federal question and adequate to support the judgment.” Id., 501 U.S. at 728, 111

16
17
18
19

S.Ct. at 2254. This is true whether the state law basis is substantive or procedural. Id.
(citations omitted). Such claims are considered procedurally barred from review. See
Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

20
21
22
23
24
25
26
27
28

The Ninth Circuit Court of Appeals 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
- 17 -

1
2
3
4
5
6

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)).

7

Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005). Thus, a prisoner’s habeas

8

petition may be precluded from federal review due to procedural default in two ways.

9

First, where the petitioner presented his claims to the state court, which denied relief

10
11

based on independent and adequate state grounds. Coleman, 501 U.S. at 728, 111 S.Ct.

12

at 2254. Federal courts are prohibited from review in such cases because they have “no

13

power to review a state law determination that is sufficient to support the judgment,

14
15

resolution of any independent federal ground for the decision could not affect the

16

judgment and would therefore be advisory.” Id. Second, where a “petitioner failed to

17

exhaust state remedies and the court to which the petitioner would be required to present

18
19

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

20

procedurally barred.” Id. at 735 n.1, 111 S.Ct. at 2557 n.1 (citations omitted). Thus, the

21

federal court “must consider whether the claim could be pursued by any presently

22

available state remedy.” Cassett, 406 F.3d at 621 n.6 (quoting Ortiz v. Stewart, 149 F.3d

23
24
25
26

923, 931 (9th Cir. 1998)) (emphasis in original).
Where a habeas petitioner’s claims have been procedurally defaulted, the federal
courts are prohibited from subsequent review unless the petitioner can show cause and

27
28

actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068,

- 18 -

1
2

103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding
barred federal habeas review unless petitioner demonstrated cause and prejudice); see

3
4
5
6

also Smith v. Murray, 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986)
(recognizing “that a federal habeas court must evaluate appellate defaults under the same
standards that apply when a defendant fails to preserve a claim at trial.”).

“[T]he

7
8

existence of cause for a procedural default must ordinarily turn on whether the prisoner

9

can show that some objective factor external to the defense impeded counsel’s efforts to

10

comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106

11
12

S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d

13

1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally

14

defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on

15

which to address the merits of his claims.”). In addition to cause, a habeas petitioner

16
17
18
19

must show actual prejudice, meaning that he “must show not merely that the errors . . .
created a possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray,

20
21

477 U.S. at 494, 106 S.Ct. at 2648 (emphasis in original) (internal quotations omitted).

22

Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the

23

procedural default and gain review by the federal courts. Id., 106 S.Ct. at 2649.

24
25

The Supreme Court has recognized, however, that “the cause and prejudice

26

standard will be met in those cases where review of a state prisoner’s claim is necessary

27

to correct ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722,

28

111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102
- 19 -

1
2

S.Ct. 1558, 1572–73, 71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice
exception is available ‘only where the prisoner supplements his constitutional claim with

3
4
5
6

a colorable showing of factual innocence.’” Herrara v. Collins, 506 U.S. 390, 404, 113
S.Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v.
Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)). Thus, “‘actual

7
8

innocence’ is not itself a constitutional claim, but instead a gateway through which a

9

habeas petitioner must pass to have his otherwise barred constitutional claim considered

10

on the merits.” Herrara, 506 U.S. at 404, 113 S.Ct. at 862. Further, in order to

11
12

demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by

13

clear and convincing evidence that but for the constitutional error, no reasonable

14

factfinder would have found [him] guilty of the underlying offense.”

15

28 U.S.C. §

2254(e)(2)(B).

16
17
18
19

In Arizona, a petitioner’s claim may be procedurally defaulted where he has
waived his right to present his claim to the state court “at trial, on appeal or in any
previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3). “if an asserted claim is of

20
21

sufficient constitutional magnitude, the state must show that the defendant ‘knowingly,

22

voluntarily and intelligently’ waived the claim.” Id., 2002 cmt. Neither Rule 32.2. nor

23

the Arizona Supreme Court has defined claims of “sufficient constitutional magnitude”

24
25

requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 202 Ariz.

26

446, 46 P.3d 1067 (2002). The Ninth Circuit Court of Appeals recognized that this

27

assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are

28

better suited to make these determinations.” Cassett, 406 F.3d at 622.
- 20 -

1
2

III.

STATUTE OF LIMITATIONS

3
As a threshold matter, the Court must consider whether Petitioner’s petition is

4
5
6

barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921–22 (9th Cir.
2002).

The AEDPA mandates that a one-year statute of limitations applies to

7
8
9
10
11
12
13
14
15
16
17
18
19
20

applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. §
2244(d)(1). Section 2244(d)(1) provides that the limitations period shall run from the
latest of:
(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;
(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;
(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.

21

28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time

22

during which a properly filed application for State post-conviction or other collateral

23

review with respect to the pertinent judgment or claim is pending shall not be counted

24
25

toward any period of limitation under this subsection.”

28 U.S.C. § 2244(d)(2).

26

Respondents do not dispute the timeliness of Pryor’s petition.

27

independently reviewed the record and finds that the First Amended Petition (Doc. 11) is

28
timely pursuant to 28 U.S.C. § 2244(d)(1)(A).
- 21 -

The Court has

1
2

IV.

ANALYSIS
A.

Ground One: Defendant’s Move to Mexico and Flight Instruction

3
4
5
6

Petitioner asserts that the trial court erred by denying his motion in limine “to
preclude evidence of Petitioner’s arrest in Mexico and [by] giving a flight instruction
unsupported by the facts[,] [thereby] creating prejudice outweighing any probative value

7
8

to the State, [and] denying the defendant a fair trial[.]” First Amended Petition (Doc. 11)

9

at 6. Petitioner argues that this error resulted in a violation of his constitutional rights to

10

due process and a fair trial. Id. Respondents assert that “Petitioner did not ‘fairly

11
12

present’ this claim to the state courts.” Answer (Doc. 17) at 9. Respondents point out

13

that Petitioner’s pretrial motion argued “the evidence was irrelevant and unduly

14

prejudicial, and thus inadmissible pursuant to the Arizona Rules of Evidence[,] . . . [and]

15

Petitioner did not object at trial to the trial court’s giving the jury a flight instruction.”

16
17
18
19

Id.; see also Answer (Doc. 17), Appellant’s Opening Br. (Exh. “D”) at 26–30; Trial Tr.
9/9/2008 (Doc. 18-2) 95:23–102:17; Trial Tr. 9/12/2008 (Doc. 18-7) 13:20–21:7.
Additionally, Respondents argue that Petitioner made only a passing reference to an

20
21

alleged violation of his fair trial right in his reply brief to the Arizona Court of Appeals,

22

and as such the argument was waived. Answer (Doc. 17) at 9 (citing State v. Ruggiero,

23

211 Ariz. 262, 267 n. 2, 120 P.3d 690, 695 (Ct. App. 2005)).

24
25

The Court agrees with Respondents and finds that Petitioner did not “fairly

26

present” these claims to the Arizona state courts. See Baldwin v. Reese, 541 U.S. 27, 33,

27

124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner’s assertion that his

28

claim had been “fairly presented” because his brief in the state appeals court did not
- 22 -

1
2

indicate that “he was complaining about a violation of federal law” and the justices
having the opportunity to read a lower court decision addressing the federal claims was

3
4
5
6

not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that
petitioner failed to exhaust federal due process issue in state court because petitioner
presented claim in state court only on state grounds).

“Fair presentation” requires

7
8
9
10
11
12

alerting “each appropriate state court” to the presence of a federal claim, which Petitioner
failed to do.

Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349.

As such, the claim is

unexhausted, and would now be precluded. Ariz. R. Crim. P. 32.2(a)(3). Therefore,
Petitioner’s claim is procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n.

13

1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state

14

remedies and the court to which the petitioner would be required to present his claims in

15

order to meet the exhaustion requirement would now find the claims procedurally

16
17
18
19

barred”). Where a habeas petitioner’s claims have been procedurally defaulted, the
federal courts are prohibited from subsequent review unless the petitioner can show cause
and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060,

20
21

1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate

22

proceeding barred federal habeas review unless petitioner demonstrated cause and

23

prejudice). Petitioner has not met his burden to show either cause or actual prejudice.

24
25

Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986)

26

(Petitioner “must show not merely that the errors . . . created a possibility of prejudice,

27

but that they worked to his actual and substantial disadvantage, infecting his entire trial

28

with error of constitutional dimensions”) (emphasis in original) (internal quotations
- 23 -

1
2

omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996)
(petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as

3
4
5
6

such,] there is no basis on which to address the merits of his claims.”). As such,
Petitioner’s habeas claim must fail.
B.

Ground Two: Motion for Judgment of Acquittal

7
8

Petitioner alleges that the trial court erred in denying his motion for a judgment of

9

acquittal based upon the State’s alleged failure “to prove all the necessary elements

10

required to find the defendant guilty of continuous sexual abuse in counts one and two.”

11
12

First Amended Petition (Doc. 11) at 7. Petitioner argues that this error resulted in a

13

violation of his Due Process rights under the United States Constitution.

14

Respondents assert that “Petitioner did not ‘fairly present’ this claim to the state courts[,]

15

Id.

[because] Petitioner’s motion at trial was based on Arizona’s Rule 20.” Answer (Doc.

16
17
18
19

17) at 11.
The Court agrees with Respondents and finds that Petitioner did not “fairly
present” these claims to the Arizona state courts. See Baldwin v. Reese, 541 U.S. 27, 33,

20
21

124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner’s assertion that his

22

claim had been “fairly presented” because his brief in the state appeals court did not

23

indicate that “he was complaining about a violation of federal law” and the justices

24
25

having the opportunity to read a lower court decision addressing the federal claims was

26

not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that

27

petitioner failed to exhaust federal due process issue in state court because petitioner

28

presented claim in state court only on state grounds). As such, the claim is unexhausted,
- 24 -

1
2

and would now be precluded. Ariz. R. Crim. P. 32.2(a)(3); see also Baldwin v. Reese,
541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly

3
4
5
6

present” one’s claims, the prisoner must do so “in each appropriate state court”).
Therefore, Petitioner’s claim is procedurally defaulted. Coleman v. Thompson, 501 U.S.
722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to

7
8
9
10
11
12

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”).

Where a habeas petitioner’s claims have been procedurally

defaulted, the federal courts are prohibited from subsequent review unless the petitioner

13

can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109

14

S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state

15

appellate proceeding barred federal habeas review unless petitioner demonstrated cause

16
17
18
19

and prejudice).

Petitioner has not met his burden to show either cause or actual

prejudice. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397
(1986) (Petitioner “must show not merely that the errors . . . created a possibility of

20
21

prejudice, but that they worked to his actual and substantial disadvantage, infecting his

22

entire trial with error of constitutional dimensions”) (emphasis in original) (internal

23

quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir.

24
25

1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . .

26

[and as such,] there is no basis on which to address the merits of his claims.”). As such,

27

Petitioner’s claim is denied.

28

- 25 -

1

C.

2

Ground Three: Admission of Hearsay

Petitioner alleges that admitting hearsay testimony of Michelle Wright violated his

3
4
5
6

rights pursuant to the Confrontation Clause of the 6th Amendment. First Amended
Petition (Doc. 11) at 8. Respondents assert that “Petitioner did not ‘fairly present’ this
claim to the state courts[,] [because] Petitioner objected to this testimony at trial on the

7
8
9
10
11
12

ground it was hearsay . . . citing the Arizona Rules of Evidence.” Answer (Doc. 17) at
11–12.

Respondents further note that in his opening appellate brief and in reply,

Petitioner only made passing reference to a denial of a “fair trial.” Id. at 12.
The Court agrees with Respondents and finds that Petitioner did not “fairly

13

present” these claims to the Arizona state courts. See Baldwin v. Reese, 541 U.S. 27, 33,

14

124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner’s assertion that his

15

claim had been “fairly presented” because his brief in the state appeals court did not

16
17
18
19

indicate that “he was complaining about a violation of federal law” and the justices
having the opportunity to read a lower court decision addressing the federal claims was
not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that

20
21

petitioner failed to exhaust federal due process issue in state court because petitioner

22

presented claim in state court only on state grounds). Merely labeling a claim “federal”

23

or making a passing reference to the United States Constitution does not constitute “fair

24
25

presentment.” See Baldwin v. Reese, 541 U.S. at 33, 124 S.Ct. at 1351; see also Duncan

26

v. Henry, 513 U.S. 364, 365–66 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (“If state

27

courts are to be given the opportunity to correct alleged violations of prisoners’ federal

28

rights, they must surely be alerted to the fact that the prisoners are asserting claims under
- 26 -

1
2

the United States Constitution”). As such, the claim is unexhausted, and would now be
precluded. Ariz. R. Crim. P. 32.2(a)(3); see also Baldwin v. Reese, 541 U.S. 27, 29, 124

3
4
5
6

S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the
prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is
procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546,

7
8

2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the

9

court to which the petitioner would be required to present his claims in order to meet the

10

exhaustion requirement would now find the claims procedurally barred”). Where a

11
12

habeas petitioner’s claims have been procedurally defaulted, the federal courts are

13

prohibited from subsequent review unless the petitioner can show cause and actual

14

prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103

15

L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding

16
17
18
19

barred federal habeas review unless petitioner demonstrated cause and prejudice).
Petitioner has not met his burden to show either cause or actual prejudice. Murray v.
Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner

20
21

“must show not merely that the errors . . . created a possibility of prejudice, but that they

22

worked to his actual and substantial disadvantage, infecting his entire trial with error of

23

constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also

24
25

Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer

26

any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on

27

which to address the merits of his claims.”). Therefore, Petitioner’s claim is denied.

28

...
- 27 -

1
2

D.

Grounds Four and Five: Ineffective Assistance of Counsel

For cases which have been fairly presented to the State court, the Supreme Court

3
4
5
6

elucidated a two part test for determining whether a defendant could prevail on a claim of
ineffective assistance of counsel sufficient to overturn his conviction. See Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Petitioner must

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show that counsel’s performance was deficient. Id. at 687, 104 S.Ct. at 2064. “This

9

requires showing that counsel made errors so serious that counsel was not functioning as

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the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, Petitioner

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must show that this performance prejudiced his defense. Id. Prejudice “requires showing

13

that counsel’s errors were so serious as to deprive the defendant of a fair trial whose

14

result is reliable.” Id. Ultimately, whether or not counsel’s performance was effective

15

hinges on its reasonableness under prevailing professional norms. Strickland, 466 U.S. at

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688, 104 S.Ct. at 2065; see also State v. Carver, 160 Ariz. 167, 771 P.2d 1382 (1989)
(adopting Strickland two-part test for ineffective assistance of counsel claims). The Sixth
Amendment’s guarantee of effective assistance is not meant to “improve the quality of

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legal representation,” rather it is to ensure the fairness of trial. Strickland, 466 U.S. at

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689, 104 S.Ct. at 2065. “Thus, ‘[t]he benchmark for judging any claim of ineffectiveness

23

must be whether counsel’s conduct so undermined the proper functioning of the

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adversarial process that the trial cannot be relied on as having produced a just result.’”

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Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011)

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(quoting Strickland, 466 at 686) (emphasis and alteration in original).

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“The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ .
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. . and when the two apply in tandem, review is ‘doubly’ so[.]” Harrington v. Richter,
562 U.S. 86, 105, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (citations omitted).

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Judging counsel’s performance must be made without the influence of hindsight. See
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. As such, “the defendant must overcome
the presumption that, under the circumstances, the challenged action ‘might be

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8

considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76

9

S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Without the requisite showing of either “deficient

10

performance” or “sufficient prejudice,” Petitioner cannot prevail on his ineffectiveness

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claim. Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. “[T]he question is not whether

13

counsel’s actions were reasonable. The question is whether there is any reasonable

14

argument that counsel satisfied Strickland’s deferential standard.” Gentry v. Sinclair, 705

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F.3d 884, 899 (9th Cir. 2013) (quoting Harrington, 562 U.S. at 105, 131 S.Ct. at 788)

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(alterations in original). “The challenger’s burden is to show ‘that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.’” Harrington, 562 U.S. at 104, 131 S.Ct. at 787 (quoting Strickland,

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466 U.S. at 689, 104 S.Ct. 2052). In the instant case, the Rule 32 court properly stated

22

the Strickland rule, and this ruling was adopted by the Arizona Court of Appeals. In

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Chambers Ruling, Re: Pet. for PCR 8/4/2010 (Doc. 1-4) at 4; Ariz. Ct. App. Mem.

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Decision 2/8/2011 (Doc. 1-4) at 36; see also Answer (Doc. 11), Exh. “E.” Accordingly,

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this Court must determine whether the State courts’ conclusions were an unreasonable

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application thereof. 28 U.S.C. § 2254(d).

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1. Ground Four: Failure to make a Batson challenge

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Petitioner claims that his trial counsel was ineffective “by failing to challenge the

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prosecutor’s use of peremptory strikes against jurors, based on gender . . . in violation of
the 6th Amendment . . . and 14th Amendment . . . of the United States Constitution[.]”
Petition (Doc. 11) at 9. Petitioner asserts that “[t]he [court of appeal’s] decision erred by

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requiring the Defendant to prove all three prongs of Batson without the benefit of an
evidentiary hearing.” Id. at 9A.

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a. State Court Decisions

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The Rule 32 court stated that “[t]o state a colorable claim for ineffective assistance

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of counsel, a petitioner must satisfy a two-part test: (1) a petitioner must show that his or

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her counsel’s performance fell below an objective standard of reasonableness; and, (2) a

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petitioner must show that the deficient performance resulted in actual prejudice to his

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case.”

Answer (Doc. 17), In Chambers Ruling: Petition for Post-Conviction Relief

11/3/2010 (Exh. “O”) at 1–2 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
The court found that Petitioner “failed to allege facts sufficient to establish that his case

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was in fact prejudiced.” Answer (Doc. 17), Exh. “O” at 2. The Rule 32 court noted that:
[O]f the fifty-four jurors questioned in voir dire, only nineteen were men.
Of these, eleven were struck for cause. Given the composition of this jury
pool, it is extremely likely that the empaneled jury would consist of more
women than men. Indeed, the final jury included only three men, one of
whom was the foreperson.
Id., Exh. “O” at 2. The Rule 32 court went on to indicate that the prosecutor used one of

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her strikes to remove a woman. The court also found that a previous Batson challenge

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made against the same prosecutor failed, because the strikes were gender-neutral. Id.,
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Exh. “O” at 2. Based on these facts, the Rule 32 court denied post-conviction relief
finding that “Petitioner ha[d] failed to state a colorable claim of ineffective assistance of

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counsel[.]” Id., Exh. “O” at 2.
The Arizona Court of Appeals granted review, but denied relief. See Answer
(Doc. 17), Ariz. Ct. App. Mem. Decision 4/7/2011 (Exh. “R”). The appellate court

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recognized that “[e]ven assuming, without deciding that Pryor ha[d] demonstrated his

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counsel should have raised a Batson challenge, that alone is not sufficient to show

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prejudice. He also must show a reasonable probability a Batson challenge would have

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resulted in a different jury.” Id., Exh. “R” at 3 (citing Strickland, 466 U.S. at 694;

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Batson, 476 U.S. at 99 n. 24 & 100). Relying on the same facts as those found by the

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Rule 32 court, the court of appeals found that the lower court did not abuse its discretion

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in finding that Petitioner had failed to demonstrate a colorable claim of prejudice.

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b. Batson Challenge
“Because we are evaluating the likelihood of success of [Petitioner’s] hypothetical
[Batson] objection in the context of an ineffective assistance claim, he has the burden to

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show under Strickland a reasonable probability he would have prevailed on a [Batson]

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claim.” Carrera v. Ayers, 699 F.3d 1104, 1108 (9th Cir. 2012) (assessing prisoner’s

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habeas claim for ineffective assistance of counsel for an alleged failure to make a

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Wheeler objection – the California equivalent of a Batson challenge). Batson requires

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that (1) a defendant must “make out a prima facie case of purposeful discrimination by

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showing that the totality of the relevant facts gives rise to an inference of discriminatory

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purpose[;]” (2) once the defendant establishes a prima facie case, “the burden shifts to the
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State to explain adequately the racial exclusion . . . [by] demonstrat[ing] that ‘permissible
racially neutral selection criteria and procedures have produced the monochromatic

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result[;]’” and (3) “the trial court must undertake a ‘factual inquiry’ that ‘takes into
account all possible explanatory factors’ to determine if the defendant proved purposeful
racial discrimination. Batson v. Kentucky, 476 U.S. 79, 93–95, 106 S.Ct. 1712, 1721–22,

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90 L.Ed.2d 69 (1986) (citations omitted). This analysis also applies to challenges of

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peremptory strikes based upon gender. See J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct.

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1419, 128 L.Ed.2d 89 (1994) (extending Batson to intentional discrimination on the basis

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of gender).

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In the instant case, nineteen (19) out of fifty-four (54) jurors were men. See

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Answer (Doc. 17), Case Info. Sheet – Panel Jury 9/9/2008 (Exh. “GG”). Of these, eleven

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(11) men and seventeen (17) women were struck for cause. See id. As such, the initial

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panel was comprised of eighteen (18) women and eight (8) men.2 See id. The trial court
judge presided over voir dire, asking the majority of the questions. Trial Tr. 9/9/2008
(Doc. 18-2) 6:6–83:19. The prosecutor, Ms. Araneta, asked three questions of the entire

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panel, as follows: (1) “[I]f you heard testimony from a child, are there any of you that

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would not believe that testimony simply because they are a child?” (2) “[I]s there

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anybody that would require eyewitness testimony to the acts that are alleged before they

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could convict?” and (3) [I]s there anyone that for whatever reason feels that they could

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not sit in judgment of another human being?” Id. at 64:4–25. None of the jury panel

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answered “yes” to the prosecutor’s questions. Id. Of the individuals that the prosecutor

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2

Accordingly, of the twenty-six (26) individuals on the venire, 30.7% were men.
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struck with peremptory challenges, one woman indicated that she had previously sat on
several juries, two of which the defendant was found guilty of a lesser included charge;

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one male stated that his “wife’s occupation is to take care of me[;]” three men were
engineers; and one male was brought in at the very end of voir dire to replace a panel
member who the court excused due to scheduling conflicts. Id. at 70:18–24, 71:16–

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72:12, 73:25–74:6, 75:6–10, 78:13–81:15.

The final panel, not including the two

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alternates, consisted of nine (9) women and three (3) men.3 In the state courts, Petitioner

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also introduced evidence that the same prosecutor had been challenged pursuant to

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Batson in another case, ostensibly to show a pattern of discriminatory conduct. See

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Answer (Doc. 17), Exh. “O,” Ariz. Superior Ct. ME 7/25/2006 (Exh. “HH”); Batson, 476

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U.S. at 95–96, 106 S.Ct. at 1722 (citations omitted) (“a consistent pattern of official

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racial discrimination is not a necessary predicate to a violation of the Equal Protection

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Clause”). This prior challenge failed, however. See Answer (Doc. 17), Exh. “O.”
Based upon the totality of the circumstances, the Court finds that Petitioner is
unable to establish a prima facie case under Batson. The majority of the venire consisted

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of women, and the percentage of men represented in venire and the final panel was

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similar. Furthermore, it is not uncommon for prosecutors to strike engineers from the

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panel, as three of the men struck were. Marvin Zalman & Olga Tsoudis, Plucking Weeds

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from the Garden: Lawyers Speak About Voir Dire, 51 Wayne L. Rev. 163, 313–315, 352

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(attorneys interviewed discuss striking engineers and other technically minded

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prospective jurors because of how they view reasonable doubt). One man appears to be a

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As such, the jury was 25% male.
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chauvinist, which one might surmise would be undesirable in a juror of a sexual abuse
case. Trial Tr. 9/9/2008 (Doc. 18-2) 71:16–22. Additionally, the last male was brought

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in at the very end of voir dire and was young, single, and without children, whereas the
other panel members chosen for the jury were older, married/divorced, and/or had
children. Id. at 69:10–83:5; see also Answer (Doc. 17), Exh. “GG.”

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c. Strickland Error

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Based on the foregoing, this Court finds that the Arizona courts did not

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unreasonably apply clearly established Federal law or unreasonably determine the facts in

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light of the evidence presented. Therefore, Petitioner cannot meet his burden to show

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prejudice.

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circumstances, Petitioner cannot establish a prima facie case under Batson, and as such

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See Gulbrandson, 738 F.3d at 991.

Based upon the totality of the

his ineffective assistance of counsel claim regarding counsel’s alleged failure to

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challenge the prosecutor’s peremptory strikes must fail. See Strickland, 466 U.S. at 687,
104 S.Ct. at 2064.

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2. Ground Five: Failure to challenge competency

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Petitioner claims that his appellate and first Rule 32 counsel were ineffective for

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failing “to challenge defendant’s conviction based on defendant’s competency, due to

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sleep deprivation[,]” because Petitioner did not have his continuous positive airway

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pressure (“CPAP”) machine while incarcerated in the Pima County Jail, and therefore

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could not “knowingly and voluntarily” reject the State’s plea offer and was not competent

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to stand trial. First Amended Petition (Doc. 11) at 10–10B.

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a. Appellate Counsel
In his second PCR petition, Petitioner argued that “[b]oth Appellate [c]ounsel and

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Post-Conviction counsel were ineffective for failing to previously present th[e] issue [of
Petitioner’s competency] to the [c]ourt for consideration. Answer (Doc. 17), Def.’s
(Subsequent) Petition for PCR 10/27/2011 (Exh. “X”) at 5. Regarding Petitioner’s claim

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for allegedly ineffective assistance of appellate counsel, the Rule 32 court found that

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“Petitioner’s argument . . . [did] not fall under any of the exceptions listed in Rule

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32.2(b)[, Arizona Rules of Criminal Procedure,] . . . [and] Petitioner could have argued

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that he received ineffective assistance of appellate counsel in his first Petition for Post

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Conviction Relief.” Answer (Doc. 17), In Chambers Ruling, Re: Pet. for PCR 5/17/2012

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(Exh. “AA”) at 3. As such, the Rule 32 court deemed Petitioner’s claim regarding

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ineffective assistance of appellate counsel waived, and precluded from review. Id., Exh.

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“AA” at 3. Petitioner again argued ineffective assistance of appellate counsel in his
Motion for Rehearing. See Answer (Doc. 17), Exh. “BB.” Petitioner did not appeal the
Rule 32 court’s finding that his ineffective assistance of appellate counsel claim was

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precluded from review. See Answer (Doc. 17) Petition for Review 6/27/2012 (Exh.
“DD”), Ariz. Ct. App. Mem. Decision 10/12/2012 (Exh. “EE”) at 3 n. 1.
As such, Petitioner failed to “fairly present” this claim “in each appropriate state
court.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004).

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Moreover, the state court’s determination that this claim was waived based upon state

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procedural grounds, means that it is procedurally barred from federal habeas review. See

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Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Accordingly,
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Petitioner’s habeas claim regarding ineffective assistant of appellate counsel must be
denied.

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b. PCR Counsel
As noted in Section IV.D.2.a, supra, Petitioner asserted that his Post-Conviction
counsel was ineffective for failing to raise claims related to competency due to sleep

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deprivation in his Second PCR Petition. Answer (Doc. 17), Exh. “X” at 5. More
specifically, Petitioner alleges that his Rule 32 counsel was ineffective for failing to
challenge the effectiveness of his appellate counsel. See id., Exh. “X” at 3–5.
The Rule 32 court held that “ineffective assistance of Post Conviction Relief

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counsel is not a valid claim for defendants who were convicted at trial.” Answer (Doc.

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17), In Chambers Ruling Re: Petition for Post-Conviction Relief 5/16/2012 (Exh. “AA”)

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at 3 (citing State v. Krum, 183 Ariz. 288, 291–92 (1995)).

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In his pro se Petition for Review, Petitioner relied on Martinez v. Ryan, 132 S.Ct.
1309 (2012), to argue that the trial court erred (1) by holding that the “Petitioner was not
entitled to effective assistance of counsel in his first Rule 32 Petition[;]” and (2) “by

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failing to address the issues of competency when it relied on State case law for

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‘preclusion[.]’” Answer (Doc. 17), Pet. For Review (Exh. “DD”) at 4. Petitioner further

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asserted that “under new federal law, Arizona defendants, who go to trial, are now

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constitutionally guaranteed the 6th Amendment right to effective counsel in a collateral
proceeding, attacking the ineffectiveness of all previous counsel.” Id., Exh. “DD” at 5.
The court of appeals corrected Petitioner’s misapprehension of the Supreme Court
of the United States’ decision in Martinez, recognizing that “the Court did not ground its
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decision in a constitutional right, instead determining that defendants had an ‘equitable’
right to the effective assistance of initial post-conviction counsel and limited [this]

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6

decision to the application of procedural default in federal habeas review.” Answer (Doc.
17) Ariz. Ct. App. Mem. Decision 10/12/2012 (Exh. “EE”) at 3 (citing Martinez v. Ryan,
— U.S. —, 132 S.Ct. at 1319–20). The court of appeals held that nothing in Martinez

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altered Arizona law that “a claim that Rule 32 counsel was ineffective is not a cognizable
ground for relief in a subsequent Rule 32 proceeding” and denied relief. Id., Exh. “EE”
at 3–4.

11

The Supreme Court of the United States has held that “a criminal defendant has no

12
13

right to counsel beyond his first appeal in pursuing state discretionary or collateral

14

review[.]” Coleman v. Thompson, 501 U.S. 722, 756, 111 S.Ct. 2546, 2568, 115 L.Ed.2d

15

640 (1991). As such, the Arizona Court of Appeals correctly found Petitioner’s reliance

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19

on Martinez v. Ryan, – U.S. –, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) misplaced. The
Ninth Circuit Court of Appeals has also observed that “Martinez did not create a
constitutional right to effective assistance of counsel in PCR proceedings.” Dickens v.

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Ryan, 688 F.3d 1054 (9th Cir. 2012). “Thus, the claim of ineffective assistance of PCR

22

counsel used to establish cause in the narrow circumstances outlined in Martinez is an

23

equitable claim and not a constitutional claim[.]” Id. As such, any attempt by Petitioner

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to assert an ineffective assistance of counsel claim regarding his PCR counsel must fail.

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V.

CONCLUSION
For the reasons delineated above, IT IS HEREBY ORDERED that:
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1) Petitioner’s First Amended Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus by a Person in State Custody (Doc. 11) is DENIED;

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2) A certificate of appealability is DENIED, because reasonable jurists would not
find the Court’s ruling debatable. See 28 U.S.C. § 2253;
3) This matter is DISMISSED with prejudice; and

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4) The Clerk of the Court shall enter judgment and close its file in this matter.
Dated this 28th day of September, 2015.

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Honorable Bruce G. Macdonald
United States Magistrate Judge

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