Thompson v. Ryan et al

Filing 29

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the District Judge enter an order DENYING Petitioner's 1 Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty). Any par ty may serve and file written objections within 14 days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within 14 days after being served with a copy. No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CV-12-0766-TUC-DCB. Signed by Magistrate Judge Bruce G Macdonald on 7/31/15.(BAC)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Lyndall Dwaine Thompson,

10

Petitioner,

No. CV-12-00766-TUC-DCB (BGM)
REPORT AND RECOMMENDATION

11
12
13

v.
Charles L. Ryan, et al.,

14

Respondents.

15
16
17

Currently pending before the Court is Petitioner Lyndall Dwaine Thompson’s pro
se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State

18
19

Custody (Non-Death Penalty) (“Petition”) (Doc. 1). Respondents have filed an Answer

20

to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 11).

21

Petitioner filed his

Traverse (Doc. 13). The Petition is ripe for adjudication.

22
23

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,1 this matter

24

was referred to Magistrate Judge Macdonald for Report and Recommendation. The

25

Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).

26
27
28

1

Rules of Practice of the United States District Court for the District of Arizona.

1
2

I.

FACTUAL AND PROCEDURAL BACKGROUND
The Arizona Superior Court, Pima County stated the facts2 as follows:

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

The charges in the Petitioner’s case stem from the following incident. On
June 29, 2007, the Petitioner and his brother Clark got into an argument
which erupted into a fist fight. The Petitioner was carrying two handguns a
.45 and a 9mm when the fight began. Before the fight ensued, the
Petitioner removed the handguns from his person and tossed them aside or
dropped them so that they could not be used during the fight. Clark pinned
the Petitioner to the ground during the fight and was getting the better of
the Petitioner when the Petitioner managed to escape from beneath Clark
and run inside his trailer home. The Petitioner claimed that during the fight
Clark repeatedly threatened to kill him and that after running inside, he
feared that Clark now had access to the handguns which were still outside.
Based on these fears the Petitioner retrieved his SKS rifle and he went back
outside carrying the rifle. When the Petitioner emerged from the trailer
with the SKS rifle he saw Clark nearby, walking in the other direction. The
Petitioner then chambered a round of ammunition in the rifle and as he did
so, he claimed that Clark turned abruptly to confront him once again. The
Petitioner claimed that he could not see Clark’s hands because his view was
blocked by a nearby parked vehicle. As Clark turned, he began
approaching the Petitioner at a rapid pace. The Petitioner claims that at that
point he shot Clark several times, emptying the magazine of the SKS. The
Petitioner claimed he then threw down the rifle and ran back inside his
trailer to retrieve his cellular phone before he fled on foot.

18
19
20
21
22
23
24

The Petitioner fled to a nearby intersection where he flagged down a
passing driver. The Petitioner called 911 and asked the driver to tell the
911 operator that he had just shot his brother. Police arrived and took the
Petitioner into custody. Deputies Almarez and Sutton and Sergeant James
arrived at the scene of the shooting and conducted a search for any victims.
The deputies cleared the Petitioner’s trailer and though they found no
victims there, they did find a malfunctioned 9mm handgun with a live
round of ammunition “stovepiped” in the ejection part of the weapon. The
deputies then proceeded to clear the remainder of the property whereupon
the discovered the Petitioner’s brother lying shot to death on a path between

25
2

26
27
28

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); 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
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

the two trailer homes. There were several spent shell casings and a spent
shotgun shell lying nearby. Deputy Sutton’s report states that an SKS rifle
and a .45 caliber handgun were found next to each other near the north side
of the Petitioner’s trailer home. Later, when Deputy Sutton was
interviewed by Defense Counsel he claimed that he did not actually
discover the weapons and that he could not remember if they were found on
the ground, but that he believed they were found by a uniformed officer
atop the engine compartment of a vehicle parked on the property. None of
the reports from officers at the scene indicate whether the weapons were
actually discovered atop the vehicle or whether they were placed there after
being discovered on the ground. At trial, Detective Copeland testified that
the weapons were discovered on the engine compartment of the vehicle by
uniformed officers who initially responded to the scene. Detective Pruess
also testified that the weapons were found on the vehicle.
Meanwhile, the Petitioner was read his Miranda[3] rights and transported to
the Green Valley substation for questioning. The Petitioner agreed to
waive his right to remain silent based on the condition that the detectives
answer any questions that he might have. The Petitioner made it clear that
he would terminate the interview if the detectives failed to answer any of
his questions. The detectives agreed to this arrangement. Specifically, the
following exchange took place:
DETECTIVE COPELAND:

(Reading Miranda rights) Do you
understand these rights?

PETITIONER:

I understand those rights and I’ll
act as my own attorney. When I
ask you a question, I’ll need your
answer or we’ll stop the
interview. Fair is fair.

DETECTIVE COPELAND:

Okay. So, so you’re.

PETITIONER:

You can ask me anything you
want, I’m my own lawyer. I’ll
represent myself. I’ll ask you
anything I want, if you stop
answering questions for me, then
I’ll stop answering questions for
you.

17
18
19
20
21
22
23
24
25
26
27
28
[3 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).]

-3-

1

DETECTIVE COPELAND:

Okay.

2

PETITIONER:

Fair is fair.

DETECTIVE COPELAND:

Fair is fair. [Footnote omitted]

3
4

During the interrogation, the Petitioner asked the detectives about his
brother and the detectives led the Petitioner to believe that his brother was
still alive and that one [of] the handguns he had discarded before the flight
had been fired. The Petitioner made several incriminating statements
which were used against him at trial. After the Petitioner was informed that
his brother was dead, he terminated the interview and refused to answer any
more questions.

5
6
7
8
9
10
11

Answer (Doc. 11), In Chambers Ruling, Re: Petition for Post-Conviction Relief 8/3/2010
(Exh. “E”) at 1–3.

12

On July 10, 2007, a grand jury indicted the Petitioner on one count of first degree

13
14

murder for the shooting death of his brother Clark Duval. Id., Exh. “E” at 1; see also

15

Answer (Doc. 11), Ct. App. Mem. Decision 9/24/2009 (Exh. “C”) at ¶ 1. On April 11,

16

2008, a jury found Petitioner not-guilty of first degree murder, but found him guilty of

17
18

the lesser-included offense of second degree murder, a class two felony. Answer (Doc.

19

11), Exh. “C” at ¶ 1, Exh. “E” at 1. On July 14, 2008, Petitioner was sentenced to the

20

presumptive term of sixteen years imprisonment. Id., Exh. “C” at ¶ 1, Exh. “E” at 1.

21

A. Direct Appeal

22
On March 2, 2009, counsel for Petitioner filed an Anders4 brief with the Arizona

23
24

Court of Appeals.5 Answer (Doc. 11), Appellant’s Opening Br. 3/2/2009 (Exh. “G”).

25
26
27
28

4
5

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).

The Arizona Court of Appeals has described the procedure of filing an Anders brief as follows:
Under our procedure, when appointed counsel determines that a defendant's case
discloses no arguable issues for appeal, counsel files an Anders brief. The brief

-4-

1
2

Subsequently, Petitioner filed two pro se supplemental appellate briefs. Answer (Doc.
11), Appellant’s Pro Se Suppl. Br. 7/17/2009 (Exh. “I”) & Appellant’s Pro Se Suppl. Br.

3
4
5
6

7/8/2009 (Exh. “M”). Petitioner initially alleged six (6) claims for relief, including that
(1) “because of the ‘irreconcilable conflict and friction’ between him and his attorney of
record, the trial court abused its discretion in refusing to replace trial counsel[;]” (2)

7
8

“because he was prevented from participating in an effective and amicable manner with

9

his trial counsel, he was deprived of the opportunity and right to put forth mitigating

10

factors into the record of testimony and complete and full disclosure[;]” (3) because of

11
12

the conflict between Petitioner and counsel “request after request for interview and

13

investigation concerning family, friends, associates and witnesses went entirely unheeded

14

or considered[,]” preventing Petitioner for establishing mitigating factors and “conditions

15

of historical background and motives of conduct[;]” (4) prosecutorial misconduct by the

16
17
18
19

State “because it engaged in presenting facts and various misstatements about Appellant
during the trial and sentencing that were prejudicial[;]” (5) “all officers of the honorable
court did not participate in or take action to insure or represent a profound attitude of

20
21
22
23
24
25
26
27
28

contains a detailed factual and procedural history of the case, with citations to the
record. See Scott, 187 Ariz. at 478 n. 4, 930 P.2d at 555 n. 4. Counsel submits the
brief to the court and the defendant. The defendant is then given the opportunity
to file a brief pro per. After receiving all briefing, the court reviews the entire
record for reversible error. If any arguable issue presents itself, the court directs
appointed counsel to brief the issue. Only after the court has ascertained that
counsel has conscientiously performed his or her duty to review the record, and
has itself reviewed the record for reversible error and found none, will the court
allow counsel to withdraw. See State v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d
154, 156–57 (1984). We conclude that this procedure permits counsel to perform
ethically, while simultaneously ensuring that an indigent defendant's
constitutional rights to due process, equal protection, and effective assistance of
counsel are protected.
State v. Clark, 196 Ariz. 530, 537, 2 P.3d 89, 96 (Ct. App. 1999).

-5-

1
2

fairness[;]” and (6) based on the conflict between Petitioner and counsel “he was not
given proper nor full and complete full disclosure of evidence[.]” Answer (Doc. 11),

3
4
5
6

Exh. “M” at 2–3. The majority of Petitioner’s first supplemental brief focused on the
trial court’s alleged failure to replace his attorney despite the “irreconcilable conflict”
between them. See id., Exh. “M.” Petitioner’s second supplemental brief alleged that (1)

7
8

“the trial court abused its discretion by not allowing attorney [sic] and Public Defender’s

9

Office [sic] to withdraw wholly and completely and the court’s failure to acknowledge a

10

gross conflict of interest and denial, summarily, of the Appellant’s due process[;]” (2)

11
12

Petitioner was “denied his right to pre-trial and hearing that would put forth mitigating

13

factors and circumstances reflecting his nature and associations surrounding all trial

14

issues and alleged events . . . [including] knowledge of a right to preliminary hearings, to

15

include mitigation hearings and hearing of discovery[;]” and (3) the “denial of due

16
17
18
19

process did not allow [Petitioner] to present mitigating testimony for the record nor for
the jury’s review.”

Id., Exh. “I” at 3–4.

The majority of Petitioner’s second

supplemental brief focused on the alleged denial of a preliminary hearing. See id., Exh.

20
21

“I.”

22

On September 24, 2009, the Arizona Court of Appeals affirmed Petitioner’s

23

convictions. See Answer (Doc. 11), Ariz. Ct. App. Mem. Decision 9/24/2009 (Exh. “C”).

24
25

As an initial matter the appellate court “note[d] that most of the arguments Thompson has

26

attempted to assert in his first supplemental brief appear to have been copied from the

27

pleadings of other defendants.” Id., Exh. “C” at 3. The court went on to state that “[a]s

28

such, they are generally unclear and unsupported by the record on appeal.” Id. “To the
-6-

1
2

extent Thompson intended to challenge Skitzki’s conduct at trial, his arguments
constitute claims of ineffective assistance of counsel,” which the Arizona Court of

3
4
5
6

Appeals recognized must be brought in a post-conviction relief proceeding pursuant to
Rule 32, Arizona Rules of Criminal Procedure, and that it therefore could not consider on
appeal. Id., Exh. “C” at 4. The court further “reject[ed] Thompson’s argument that his

7
8

due process rights were violated because he was charged by indictment following a grand

9

jury proceeding rather than by information following a preliminary hearing.” Id., Exh.

10

“C” at 5. In assessing this claim, the court of appeals recognized that “[i]n Arizona, a

11
12

defendant may be charged by indictment, issued by a grand jury upon its finding that

13

probable cause exists to believe the defendant committed the alleged offense, or by

14

information, filed after a finding of probable cause is made by the court.” Answer (Doc.

15

11), Exh. “C” at 5 (citing Ariz. Const. art. II, § 30; Ariz. R. Crim. P. 5.1, 13.1(c)). “The

16
17
18
19

use of either procedure satisfies the requirements of due process.” Id., Exh. “C” at 5
(citing State v. Neese, 126 Ariz. 499, 502–03, 616 P.2d 959, 962–63 (Ct. App. 1980)).
Petitioner did not seek review of this decision with the Arizona Supreme Court.

20
21

Petition (Doc. 1) at 4.

22

B. Initial Post-Conviction Relief Proceeding

23

On October 2, 2009, Petitioner filed his Notice of Intent to File for Post-

24
25

Conviction Relief (“PCR”). Answer (Doc. 11), Not. of Intent to File for PCR 10/2/2009

26

(Exh. “D”). On April 14, 2010, Petitioner filed his Petition for Post Conviction Relief.

27

Answer (Doc. 11), Pet. for PCR (Exh. “L”). Petitioner claimed that his trial counsel was

28

ineffective for failing “to file a motion to suppress the Defendant’s statement based on it
-7-

1
2

having been unconstitutionally obtained.” Id., Exh. “L” at 12. In furtherance of this
argument, Petitioner alleged that he “agreed to answer questions only if the detectives

3
4
5
6
7
8

promised to answer his questions” and that “but for the detective’s [sic] promise that the
interview would proceed on a quid pro quo basis, the Defendant would have exercised
his 5th Amendment right to remain silent.” Id., Exh. “L” at 13–14. Petitioner further
argued that the detectives “breach” of their agreement, invalidated Petitioner’s Miranda6

9

waiver. Id., Exh. “L” at 20. Petitioner claimed that based upon the detectives’ alleged

10

“breach,” counsel’s “failure to file a motion to suppress Defendant’s statement constitutes

11
12

deficient performance[.]”

Id., Exh. “L” at 15.

Petitioner also claimed ineffective

13

assistance of counsel, because trial counsel failed “to request additional disclosure to

14

determine who actually located the weapons and the specific location where the weapons

15

were found.” Answer (Doc. 11), Exh. “L” at 23. Petitioner asserted that “[a]bsent

16
17
18
19

disclosure of that information, counsel should have moved in limine to prevent the State
from soliciting testimony that the weapons were found on the vehicle[.]” Id. Finally,
Petitioner argued that trial counsel was ineffective for failing to create a record specifying

20
21
22
23
24
25

which portions of Defendant’s statement were redacted from the transcripts and compact
discs that were “provided to the jury.” Id., Exh. “L” at 24–25.
On August 3, 2010, the trial court denied Petitioner’s post-conviction relief
(“PCR”) petition. See Answer (Doc. 11), Exh. “E.” The trial court stated that “[i]n order

26

for a petitioner to raise a colorable ineffective assistance of counsel claim, he must show

27

that counsel’s performance fell below objectively reasonable standards, and that this poor

28

6

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

-8-

1
2

performance prejudiced him.” Id. at 4 (citing Strickland v. Washington, 466 U.S. 668,
687 (1984); State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985); State v.

3
4
5
6

Jackson, 209 Ariz. 13, 14, 97 P.3d 113, 114 (2005)). In considering whether trial counsel
was ineffective for failing to file a motion to suppress Petitioner’s allegedly
unconstitutionally obtained statements, the trial court first addressed the voluntariness of

7
8

Petitioner’s statement. Answer (Doc. 11), Exh. “E” at 5–6. The trial court noted that the

9

record showed “that the Petitioner conditioned his willingness to answer the detective’s

10

[sic] questions on their assent to answer any questions he might have of them and the

11
12

detectives agreed to this arrangement.” Id., Exh. “E” at 6. The trial court further noted

13

that “the record also reveals that it was Petitioner who solicited this arrangement with the

14

police.” Id. As such, the trial court found that the police did not promise a “benefit or

15

leniency that would render the Petitioner’s statement involuntary.” Id. The trial court

16
17
18
19

further found that trial counsel’s “failure to seek suppression of the Petitioner’s
statements was a matter of trial strategy” and that trial counsel’s actions were reasonable.
Id.

20
21

The trial court analyzed Petitioner’s claim of ineffective assistance of counsel due

22

to an alleged failure “to seek additional disclosure regarding the weapons evidence and

23

failed to preclude testimony as to the exact location of the discovery of the weapons.”

24
25
26
27
28

Answer (Doc. 11), Exh. “E” at 7. The trial court delineated counsel’s duty as follows:
[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. In
any ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments.
-9-

1
2

Id., Exh. “E” at 7 (quoting Strickland v. Washington, 466 U.S. 668, 691 (1984))
(alterations in original). Upon review of the record and the pleadings, the trial court

3
4
5
6

found that all witnesses “consistently claimed and testified that the weapons were
discovered atop the car.” Answer (Doc. 11), Exh. “E” at 8. As such, the trial court found
counsel’s decision not to seek suppression was reasonable and a matter of trial strategy.

7
8
9
10
11
12

Alternatively, the trial court noted that “even if Trial Counsel’s actions were
unreasonable, the Petitioner ha[d] failed to demonstrate any prejudice[,] and [his] claim
that the weapons testimony affected the outcome of his case [was] speculative.” Id.
Regarding trial counsel’s alleged ineffectiveness for failing to make a record

13

regarding the redaction of Petitioner’s derogatory statements about illegal aliens, the trial

14

court stated that “[t]here is no Arizona authority to support the proposition that a hearing

15

cannot be waived and the matter submitted by stipulation of counsel[.]” Answer (Doc.

16
17
18
19

11), Exh. “E” at 8 (quoting State v. Contreras, 112 Ariz. 358, 359, 542 P.2d 17, 18
(1975)). Furthermore, “in Arizona, courts encourage stipulations ‘to narrow the facts and
promote judicial economy.’” Id., Exh. “E” at 8 (quoting State v. Allen, 223 Ariz. 125, ¶

20
21

11, 220 P.3d 245, 247 (2009). The trial court determined that even if trial counsel’s

22

actions were unreasonable, “Petitioner has failed to demonstrate any prejudice and his

23

claims are speculative.” Id., Exh. “E” at 9. As such, the trial court denied relief.

24
25

On August 16, 2010, Petitioner filed his Petition for Review to Arizona Court of

26

appeals. See Pet. for Review to Ariz. Ct. App. 8/16/2010 (Doc. 1-4) at 11. On February

27

8, 2011, the Arizona Court of Appeals granted review, but denied relief. Ariz. Ct. App.

28

Mem. Decision 2/8/2011 (Doc. 1-4) at 33. The court of appeals considered Petitioner’s
- 10 -

1
2

claims of ineffective assistance of counsel due to (1) an alleged failure to move to
suppress Thompson’s statements to police as involuntary, and (2) an alleged failure to

3
4
5
6

move for additional disclosure regarding who had located the weapons and where they
had been found. Id. at 34. The court of appeals further noted that “Thompson also
claimed in his petition below that the ‘redaction of [his] statement was improper under

7
8

the circumstances.’ He does not mention this argument on review and we therefore do

9

not address it.” Id. at 34 n. 1. The court of appeals stated that “[i]n the context of an

10

ineffective assistance of counsel claim like the one before us, . . . a petitioner bears the

11
12

burden to show counsel’s deficient performance prejudiced him—‘that counsel’s errors

13

were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’”

14

Id. at 36 (quoting Strickland, 466 U.S. at 687). The court of appeals went on to “agree

15

with the trial court that Thompson ha[d] not met that standard.” Id. Moreover the court

16
17
18
19

of appeals also found that the trial court “correctly rejected Thompson’s other claims in a
thorough and well-reasoned minute entry.” Id. As such it saw “no purpose in repeating
or embellishing the court’s rulings on those claims . . ., and therefore adopt[ed] them.”

20
21

Id. (citing State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (Ct. App. 1993)).

22

On March 4, 2011, Petitioner sought review of the denial of his PCR petition by

23

the Arizona Supreme Court. Pet. for Review to Ariz. Supreme Ct. 3/4/2011 (Doc. 1-4) at

24
25
26
27
28

38. On June 8, 2011, the Arizona Supreme Court denied review. Ariz. Supreme Ct. ME
6/8/2011 (Doc. 1-4) at 54.
C. Second Post-Conviction Relief Proceeding
On October 27, 2011, Petitioner filed his Notice of Post-Conviction Relief. Not.
- 11 -

1
2

of PCR 10/27/2011 (Doc. 1-4 at 60).

Based upon newly discovered evidence, a

significant change in the law, actual innocence, and that his failure to file a timely PCR

3
4
5
6

notice was not his fault, Petitioner claimed (1) a Brady violation based upon the State’s
alleged failure to disclose a complete transcript of Petitioner’s own statement to police;
(2) the State’s alleged failure to disclose evidence “led directly to Extrinsic Collateral

7
8

Fraud” in violation of his due process rights; (3) false evidence was used to obtain a

9

conviction against him, as a result of the allegedly shortened version of the transcript of

10

his police interview relied on by the State; (4) state court errors denied Petitioner a fair

11
12

trial; (5) spoliation of evidence due to the alleged alteration of Petitioner’s interview

13

transcript; (6) fraudulent concealment based upon the State’s alleged failure to disclose

14

the complete transcript of Petitioner’s interview; (7) a fundamental miscarriage of justice

15

based upon the alleged alteration of the transcript of Petitioner’s statement to police; and

16
17
18
19

(8) that the jury instructions were inconsistent with S.B. 1449.

Notice of PCR

10/27/2011 (Doc. 1-4) at 60–87.
On January 6, 2012, the trial court denied Petitioner second PCR petition. In

20
21

Chambers Ruling, Re: Pet. for PCR 1/6/2012 (Doc. 1-5) 23–26. The trial court analyzed

22

Petitioner’s claims regarding alleged inconsistencies in the transcripts of his police

23

interview under the standard of newly discovered evidence. Id. at 23. The trial court

24
25

observed that “Petitioner’s argument is severely flawed[,]” noting that “Exhibit is A is in

26

fact the Pima County Public Defender’s transcription of Thompson’s interview with

27

police created on July 3, 2007[,] [which] was created, maintained, and possessed by

28

Petitioner and his counsel since July 3, 2007.” Id. The trial court further noted that
- 12 -

1
2

“Exhibit B is in fact the Pima County Attorney’s transcription of the same interview, but
was created on July 7, 2007 . . . [and] not within the sole possession of the State and . . .

3
4
5
6

available to Petitioner at the time of trial.” Id. The Court found that “only the CD audio
recording of the interview was admitted, not the transcript[,] [and] [t]he CD contains the
accurate and unredacted statements made by Petitioner without the concern of conflicting

7
8

transcripts.” Id. at 23–24. The trial court analyzed Petitioner’s claim regarding allegedly

9

improper jury instructions as one for ineffective assistance of counsel. In Chambers

10

Ruling, Re: Pet. for PCR 1/6/2012 (Doc. 1-5) at 25. The trial court found that “Petitioner

11
12

ha[d] failed to identify the statute at issue which would require the alternate jury

13

instruction[,] that a review of SB 1449 was unhelpful, and that in light of Petitioner’s

14

admission to shooting the victim in this case, “[a] jury instruction defining assault as

15

being without physical contact is irrelevant[.]” Id.

16
17
18
19

On February 6, 2012, Petitioner filed a Petition for Review (Doc. 1-5) at 40–73.
See also Answer (Doc. 11), Pet. for Review 2/6/2012 (Exh. “N”). Subsequently, on
February 10, 2012, Petitioner filed a Notice of Filing Petition for Review. (Doc. 1-5) at

20
21

28. On May 30, 2012, the Arizona Court of Appeals granted review, but denied relief.

22

See Ariz. Ct. App. Mem. Decision (Doc. 1-5) at 76–80. Regarding the transcripts of

23

Petitioner’s police interview, the court of appeals found that “only the audio recording of

24
25

the statements was played for the jury; the redacted version of the state’s transcript was

26

used during testimony[,] but was not admitted into evidence.” Id. at 78. The appellate

27

court further found that “the transcript Thompson claimed the state had failed to disclose

28

to him was actually the transcript prepared by the Public Defender’s office, exhibit A to
- 13 -

1
2

Thompson’s petition.” Id. Additionally, any redaction had occurred due to Petitioner’s
desire not to have the jury “hear anything about his having individuals suspected of being

3
4
5
6

undocumented immigrants at gunpoint on his property.” Id. Ultimately, both transcripts
were marked as exhibits during trial, but not admitted. Id. at 78–79. The court of appeals
found that Petitioner had “failed to establish the [trial] court abused its discretion when it

7
8

summarily dismissed his notice/petition.” Ariz. Ct. App. Mem. Decision (Doc. 1-5) at

9

79. The appellate court also found that the trial court properly addressed the timeliness of

10

the State’s response to Petitioner’s second PCR petition. Id. As such, the Arizona Court

11
12

of Appeals found that “[i]n all other respects, in its well-reasoned minute entry the trial

13

court clearly identified and correctly resolved the claims Thompson had raised . . . [and]

14

we adopt that ruling.” Id. at 79–80.

15

On September 13, 2012, the Arizona Supreme Court denied review. Answer

16
17
18
19

(Doc. 11), Ariz. Supreme Ct. ME 9/13/2012 (Exh. “K”).
D. The Instant Habeas Proceeding
On October 18, 2012, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a

20
21

Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1).

22

Petitioner claims eight (8) grounds for relief, with some issues including multiple

23

subparts. First, Petitioner alleges ineffective assistance of trial counsel due to an alleged

24
25

failure “to move to suppress petitioners [sic] unconstitutionally obtained statement this

26

violated petitioners [sic] Right to Counsel and Right to Due Process of the Law[.]”

27

Petition (Doc. 1) at 6. Petitioner further alleges that the trial court erred in not finding his

28

statement to police to be coerced. Id. Second, Petitioner alleges ineffective assistance of
- 14 -

1
2

trial counsel based on an alleged “fail[ure] to move for additional disclosure as to who
found the SKS & .45 cal. weapons this precluded testimony as to the exact location of

3
4
5
6

discovery of weapons.” Id. at 7. Petitioner further alleges that counsel “failed to conduct
reasonable pre-trial investigation” in violation of his right to counsel and due process. Id.
Third, Petitioner claims that “[t]he State failed to disclose ‘Brady” evidence (23) pages of

7
8

Mr. Thompson’s statement in possession of Pima County Sheriff’s Office and

9

investigative agencies which the State had access to . . . in violat[ion] [of] petitioners [sic]

10

right to Due Process of the Law[.]” Id. at 8. Fourth, Petitioner asserts that “[t]he State

11
12

failed to disclose evidence favorable to the accused as defense requested disclosure under

13

Rule 15.1 & 15.1(b) . . . [in violation of] the petitioner’s Rights to Due Process of the

14

Law[.]” Petition (Doc. 1) at 9. Fifth, Petitioner alleges that “[f]alse evidence [was] used

15

to convict . . . [in violation of] petitioners [sic] right to a fair trial, [and] rights to due

16
17
18
19

process of the law.” Id. at 10. As with Grounds Three and Four, this relates to the
redacted transcription relied on by the State during trial.

See id. at 8–10.

Sixth,

Petitioner claims that “State Court Errors Denied Defendant a Fair Trial as defendants

20
21

[sic] conviction resulted from state court errors[.]” Id. at 11. This ground for relief

22

includes “supporting facts” which appear to be either ways in which the trial court erred

23

or possibly additional claims. See id. These include: (a) 18 U.S.C. §§ 1001, 1021 &

24
25
26
27
28

1622; (b) 18 U.S.C. § 1506; (c) Rules of Evidence 1002 & 106;7 (d) Federal Rules of
Criminal Procedure 26.2(f)(2); (e) twenty-three (23) “pages of the July 8, 2007
7

Petitioner does not indicate whether he is referring to the Federal Rules of Evidence or
the Arizona Rules of Evidence, but comments that he is referring to the “[r]equirement of the
original[.]” Petition (Doc. 1) at 11.

- 15 -

1
2

[transcript] required to be released the same time the [ninety-four] (94) pages were
released[;]” (f) “the Court was supposed to do the redaction and seal the entire

3
4
5
6

statement[;]” (g) “any part of the statement should be considered contemporaneously
with it[;]” (h) “139, 140 & 141 was never as of yet released to petitioner[;]” (i) spoliation
“because it was harmful to prosecution’s case[;]” (j) “Petitioner meets all (5) criteria of

7
8

fraudulent concealment[;]” and (k) a reference to pages 9–18 of Petitioner’s October 27,

9

2011 PCR petition. Petition (Doc. 1) at 11. Seventh, Petitioner alleges that “[t]he State

10

denied the defense the right to reciprocal discovery . . . [in violation of] the petitioners

11
12

[sic] rights to due process of the law[.]” Id. at 12. This again relates to the differing

13

transcriptions of Petitioner’s statements to police. See id. Eighth, Petitioner alleges

14

“[o]utside influences upon the jury raise the presumption of prejudice that imposes a

15

heavy burden on the State to overcome by showing that these influences were harmless to

16
17
18
19

the petitioner.” Id. at 13. Petitioner is referring to the redacted transcript relied on by the
State during his trial and provided to the jury during its case in chief. See id. On January
22, 2013, Respondents filed their Answer (Doc. 11), and on February 7, 2013, Petitioner

20
21

filed his Traverse (Doc. 13).

22
23

II.

STANDARD OF REVIEW

24
25

A. In General

26

The federal courts shall “entertain an application for a writ of habeas corpus in

27

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

28

that he is in custody in violation of the Constitution or laws of treaties of the United
- 16 -

1
2

States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus
by a person in state custody:

3
4
5
6
7
8

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.

9

28 U.S.C. § 2254(d); see also Cullen v. Pinholster, — U.S. —, 131 S.Ct. 1388, 1398, 179

10

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

11

corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385

12
13

(1991). Ultimately, “[t]he statute’s design is to ‘further the principles of comity, finality,

14

and federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 2854, 168

15

L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029,

16
17

154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet and highly

18

deferential “for evaluating state-court rulings, [and] which demands that state-court

19

decisions be given the benefit of the doubt.” Pinholster, 131 S.Ct. at 1398 (citations and

20

internal quotation marks omitted).

21
22

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

23

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

24

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

25
26

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

27

L.Ed.2d 348 (2013).

Federal courts reviewing a petition for habeas corpus must

28

“presume the correctness of state courts’ factual findings unless applicants rebut this
- 17 -

1
2

presumption with ‘clear and convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465,
473–74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)).

3
4
5
6

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

7
8

unreasonable where a state court properly identifies the governing legal principles

9

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

10

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

11
12

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

13

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

14

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

15

being presented in federal court was so lacking in justification that there was an error . . .

16
17
18
19

beyond any possibility for fairminded disagreement.’” Burt, 134 S.Ct. at 10 (quoting
Harrington, 562 U.S. at 103, 131 S.Ct. at 786–87) (alterations in original).
B. Exhaustion of State Remedies

20
21

Prior to application for a writ of habeas corpus, a person in state custody must

22

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

23

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

24
25

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

26

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

27

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

28

As such, the

violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct.
- 18 -

1
2

1347, 1349, 158 L.Ed. 2d 64 (2004) (internal quotations omitted). Moreover, “[t]he
exhaustion doctrine is principally designed to protect the state courts’ role in the

3
4
5
6

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

7
8
9
10
11
12

jurisdiction until the courts of another sovereignty with concurrent powers, and already
cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. (quoting
Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)).
Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long

13

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

14

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

15

been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard

16
17
18
19

v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair
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

20
21

the state court to read beyond the four corners of the petition is insufficient. Baldwin v.

22

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

23

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

24
25

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

26

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

27

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

28

(holding that petitioner failed to exhaust federal due process issue in state court because
- 19 -

1
2

petitioner presented claim in state court only on state grounds). Furthermore, in order to
“fairly present” one’s claims, the prisoner must do so “in each appropriate state court.”

3
4
5
6

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

7
8
9
10
11
12

available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting
Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed.
1998)).
In Arizona, however, for non-capital cases “review need not be sought before the

13

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

14

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

15

2007); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the

16
17
18
19

Supreme Court has further interpreted § 2254(c) to recognize that once the state courts
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,

20
21

350, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989).

22

C. Procedural Default

23

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

24
25

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

26

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

27

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

28

by a state court if the decision of that court rests on a state law ground that is independent
- 20 -

1
2

of the federal question and adequate to support the judgment.” Id., 501 U.S. at 728, 111
S.Ct. at 2254. This is true whether the state law basis is substantive or procedural. Id.

3
4
5
6

(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).
The Ninth Circuit Court of Appeals explained the difference between exhaustion

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

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

21
22

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

23

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

24

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

25
26

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

27

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

28

resolution of any independent federal ground for the decision could not affect the
- 21 -

1
2

judgment and would therefore be advisory.” Id. Second, where a “petitioner failed to
exhaust state remedies and the court to which the petitioner would be required to present

3
4
5
6

his claims in order to meet the exhaustion requirement would now find the claims
procedurally barred.” Id. at 735 n.1, 111 S.Ct. at 2557 n.1 (citations omitted). Thus, the
federal court “must consider whether the claim could be pursued by any presently

7
8
9
10
11
12

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

13

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

14

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

15

barred federal habeas review unless petitioner demonstrated cause and prejudice); see

16
17
18
19

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

20
21

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

22

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

23

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

24
25

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

26

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

27

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

28

which to address the merits of his claims.”). In addition to cause, a habeas petitioner
- 22 -

1
2

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

3
4
5
6

disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray,
477 U.S. at 494, 106 S.Ct. at 2648 (emphasis in original) (internal quotations omitted).
Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the

7
8

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

9

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

10

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

11
12

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

13

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

14

S.Ct. 1558, 1572–73, 71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice

15

exception is available ‘only where the prisoner supplements his constitutional claim with

16
17
18
19

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

20
21

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

22

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

23

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

24
25

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

26

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

27

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

28

2254(e)(2)(B).
- 23 -

28 U.S.C. §

1
2

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

3
4
5
6

previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3). “if an asserted claim is of
sufficient constitutional magnitude, the state must show that the defendant ‘knowingly,
voluntarily and intelligently’ waived the claim.” Id., 2002 cmt. Neither Rule 32.2. nor

7
8

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

9

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

10

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

11
12
13

assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are
better suited to make these determinations.” Cassett, 406 F.3d at 622.

14
15

III.

STATUTE OF LIMITATIONS

16
As a threshold matter, the Court must consider whether Petitioner’s petition is

17
18
19

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

20
21

applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. §

22

2244(d)(1). Section 2244(d)(1) provides that the limitations period shall run from the

23

latest of:

24
25
26
27
28

(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;

- 24 -

1

(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

2
3
4
5

(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.

6

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

7

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

8
9

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

10

toward any period of limitation under this subsection.”

28 U.S.C. § 2244(d)(2).

11

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

The Court has

12
13
14

independently reviewed the record and finds that the Petition (Doc. 1) is timely pursuant
to 28 U.S.C. § 2244(d)(1)(A).

15
16

IV.

ANALYSIS

17
18

A. Grounds One and Two: Ineffective Assistance of Counsel

19

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

20

elucidated a two part test for determining whether a defendant could prevail on a claim of

21
22

ineffective assistance of counsel sufficient to overturn his conviction. See Strickland v.

23

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Petitioner must

24

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

25
26

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

27

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

28

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

- 25 -

1
2

that counsel’s errors were so serious as to deprive the defendant of a fair trial whose
result is reliable.” Id. Ultimately, whether or not counsel’s performance was effective

3
4
5
6

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

7
8

Amendment’s guarantee of effective assistance is not meant to “improve the quality of

9

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

10

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

11
12

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

13

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

14

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

15

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

16
17
18
19

“The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ .
. . 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).

20
21

Judging counsel’s performance must be made without the influence of hindsight. See

22

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. As such, “the defendant must overcome

23

the presumption that, under the circumstances, the challenged action ‘might be

24
25

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

26

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

27

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

28

claim. Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. “[T]he question is not whether
- 26 -

1
2

counsel’s actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Gentry v. Sinclair, 705

3
4
5
6

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

7
8

Sixth Amendment.’” Harrington, 562 U.S. at 104, 131 S.Ct. at 787 (quoting Strickland,

9

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

10

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

11
12

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

13

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

14

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

15

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

16
17
18
19

1. Ground One: Failure to move to suppress Petitioner’s statements
Petitioner claims that his “[t]rial counsel was ineffective for failing to move to
suppress petitioners [sic] unconstitutionally obtained statement . . . [in violation of his]

20
21

Right to Counsel and Rights to Due Process of the Law[.]” Petition (Doc. 1) at 6.

22

Petitioner asserts that “[t]he trial court erred in finding the petitioners [sic] statement not

23

to have been coersed [sic] to the extent that it induced the petitioner to waive his

24
25

“Miranda Rights” because it was petitioner who solicited the agreement with police for

26

Quid pro Quo exchange for information [.]” Id. The Rule 32 court stated that “[t]he

27

admissibility of a defendant’s custodial statements is conditioned on warning the

28

defendant of his Miranda rights, and obtaining the defendant’s voluntary and intelligent
- 27 -

1
2

waiver of those rights before any interrogation takes place.” In Chambers Ruling, Re:
Pet. for PCR 8/4/2010 (Doc. 1-4) at 5 (citing Miranda v. Arizona, 384 U.S. 436, 444

3
4
5
6

(1966); Missouri v. Seibert, 542 U.S. 600, 608 (2004)). The court went onto determine
the voluntariness of Petitioner’s confession, relying on Arizona state law. In Chambers
Ruling, Re: Pet. for PCR 8/4/2010 (Doc. 1-4) at 6. Upon finding Petitioner’s statement to

7
8

be voluntary, the Rule 32 court held that “Trial Counsel’s failure to seek suppression of

9

the Petitioner’s statements was a matter of trial strategy and it does not find that

10

Counsel’s actions were unreasonable.” Id. The Rule 32 court further found that even if a

11
12

Miranda violation had occurred, that “there was an abundance of evidence adduced at

13

trial [other than Petitioner’s statements] from which the jury might have concluded that

14

the Petitioner was guilty[,]” and as such he could not show prejudice. Id. at 6–7. The

15

Rule 32 court’s decision was adopted in total by the Arizona Court of Appeals. Ariz. Ct.

16
17
18
19

App. Mem. Decision 2/8/2011 (Doc. 1-4) at 36. This Court is “not required to defer to
the state court’s decision because the issue involves an alleged violation of the federal
Constitution.”

Brown v. Anderson, 164 F.3d 629 (9th Cir. 1998) (citing Estelle v.

20
21
22
23
24
25

McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). As such, the
Court will consider Petitioner’s alleged Miranda violation.
a. Miranda Waiver
“In Miranda v. Arizona, the Court recognized that custodial interrogations, by

26

their very nature, generate ‘compelling pressures which work to undermine the

27

individual’s will to resist and to compel him to speak where he would not otherwise do so

28

freely.’” Moran v. Burbine, 475 U.S. 412, 420, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410
- 28 -

1
2

(1985) (quoting Miranda, 384 U.S. at 467, 86 S.Ct. at 1624). As such, in order “[t]o
combat this inherent compulsion, and thereby protect the Fifth Amendment privilege

3
4
5
6

against self-incrimination, Miranda imposed on the police an obligation to follow certain
procedures in their dealings with the accused[,]” which include the familiar Miranda
warnings. Burbine, 475 U.S. at 420, 106 S.Ct. at 1140. “Miranda holds that ‘[t]he

7
8

defendant may waive effectuation’ of the rights conveyed in the warnings provided the

9

waiver is made voluntarily, knowingly and intelligently.’” Id., 475 U.S. at 421, 106 S.Ct.

10

at 1140–41 (quoting Miranda, 384 U.S. at 444, 475, 86 S.Ct. at 1612, 1628). “The

11
12

waiver inquiry ‘has two distinct dimensions’” waiver must be ‘voluntary in the sense that

13

it was the product of a free and deliberate choice rather than intimidation, coercion or

14

deception,’ and ‘made with a full awareness of both the nature of the right being

15

abandoned and the consequences of the decision to abandon it.’” Berghuis v. Thompkins,

16
17
18
19

560 U.S. 370, 382, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010) (quoting Burbine,
475 U.S. at 421, 106 S.Ct. 1135). “Only if the ‘totality of the circumstances surrounding
the interrogation’ reveal both an uncoerced choice and the requisite level of

20
21
22
23
24
25

comprehension may a court properly conclude that the Miranda rights have been
waived.” Burbine, 475 U.S. at 421, 106 S.Ct. at 1141.
Here, it is undisputed that Petitioner was given Miranda warnings prior to any
discussion with police officers. Petitioner alleges, however, that he “did not just simply

26

waive his ‘Miranda Rights’ but obviously by the record request with the waiver to act as

27

his own attorney or other word’s [sic] put in the position where police are not allowed to

28

lie or create gamesmanship.” Petition (Doc. 1) at 7. At the beginning of the taped portion
- 29 -

1
2

of the interview, Detective Copeland read Petitioner his Miranda rights. Petition (Doc.
1), Thompson Interview (Exh. “A”) at 2. As found by the Rule 32 court, Detective

3
4
5
6

Copeland asked if Petitioner understood these rights, and the following exchange took
place:
THOMPSON:

I understand those rights and I will act as my
own attorney when I as you a question and you
just answered it was documented. There I said
it.

DET. COPELAND:

Okay. So, so you’re . . .

THOMPSON:

You can ask me anything you want, I am my
own lawyer, I’ll represent myself, I ask you
anything I want, if you stop answering
questions for me then I’ll stop answering
questions for you.

COPELAND:

Okay.

7
8
9
10
11
12
13
14
15
16

Petition (Doc. 1), Exh. “A” at 2:3-22; see also Answer (Doc. 11), Exh. “E” at 1–3.

17

Detective Copeland begins questioning Petitioner about where he lives, where he receives

18

mail, and his telephone number. Petition (Doc. 1), Exh. “A” at 3. Petitioner asked about

19

the status of his residence and dog, and Detective Copeland stated the information that he

20
21

had. Id. Then Petitioner began discussing his brother, including the particulars of their

22

familial relationship, his name, his residence. Id., Exh. “A” at 3–6. The interview then

23

returned to Petitioner’s job status and more about his property. Id., Exh. “A” at 7–9.

24
25

Petitioner complained of being cold, and asked for cigarettes. Id., Exh. “A” at 6:13-38,

26

9:36-10:2. Before Petitioner began providing any information regarding the incident with

27

his brother, the following occurred:

28

- 30 -

HESS:8

I’ve got to interrupt really quick and I’m sorry. I just
want you to know Lyndall that just because we’re
getting you a shirt and some cigarettes, there’s no
promise, if you don’t want to talk and you want to
stop. . . .

5

THOMPSON:

I want to talk.

6

HESS:

You do?

7

THOMPSON:

I don’t have any problem with this. I didn’t do
anything wrong, I haven’t done anything right, but I
defended myself with lethal force.

HESS:

I just want you to understand that we’re not here to go
do talk so we’re gonna give you something to warm up
and we’re going to give a cigarette.

THOMPSON:

(12:45) see what you guys are up to, you can
see what I’m up to.

HESS:

Okay, we’re not up to anything, we want to know, if
you want to talk, talk, but I, I’m not making you any
promises.

THOMPSON:

I do want to talk.

HESS:

Okay.

19

THOMPSON:

I don’t need any promises.

20

HESS:

Okay, very well.

21

THOMPSON:

I understand the law completely.

HESS:

Okay, good.

1
2
3
4

8
9
10
11
12
13
14
15
16
17
18

22
23

Petition (Doc. 1), Exh. “A” at 11:15-12:5. The record supports the state court’s finding

24
25

that no quid pro quo promise related to Petitioner’s waiver existed. The totality of the

26
8

27
28

This individual is identified as “Q2” on the transcript, and the heading refers to
“Detectives Copeland & Hess.” Petition (Doc. 1), Exh. “A” at 1. “Q” identified himself
as Detective Copeland on the tape. See id. “Q2” is identified as Detective Hess on the
State’s transcript. See Petition (Doc. 1), Exh. “B” at 1.
- 31 -

1
2

circumstances demonstrates “both an uncoerced choice and the requisite level of
comprehension” that Petitioner voluntarily, knowingly, and intelligently waived his

3
4
5
6

Miranda rights in speaking with Detectives Copeland and Hess. Burbine, 475 U.S. at
421, 106 S.Ct. at 1141. Petitioner “did not invoke his right to remain silent and stop the
questioning[;] [and] [u]nderstanding his rights in full, he waived his right to remain silent

7
8
9
10
11
12

by making a voluntary statement to the police.” Berghuis, 560 U.S. at 389, 130 S.Ct. at
2264.
b. Strickland Error
“[T]he failure to file a suppression motion does not constitute per se ineffective

13

assistance of counsel[.]” Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574,

14

2587, 91 L.Ed.2d 305 (1986). Moreover, “[c]ounsel’s competence . . . is presumed, . . .

15

and the defendant must rebut this presumption by proving that his attorney’s

16
17
18
19

representation was unreasonable under prevailing professional norms and that the
challenged action was not sound strategy.” Id. at 384, 106 S.Ct. at 2588 (citations
omitted). The Rule 32 court held that “Trial Counsel’s failure to seek suppression of the

20
21

Petitioner’s statements was a matter of trial strategy and it does not find that Counsel’s

22

actions were unreasonable.” In Chambers Ruling, Re: Pet. for PCR 8/4/2010 (Doc. 1-4)

23

at 6. This decision was adopted in total by the Arizona Court of Appeals. Ariz. Ct. App.

24
25

Mem. Decision 2/8/2011 (Doc. 1-4) at 36. In light of Petitioner’s clear and unequivocal

26

waiver of his Miranda rights, this Court finds that the Arizona courts did not

27

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

28

light of the evidence presented. Therefore, Petitioner cannot meet his burden to show
- 32 -

1
2

“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

3
4
5
6

S.Ct. at 787 (quotations omitted). As such, Petitioner cannot show either deficient
performance or prejudice, and Petitioner’s ineffective assistance of counsel claim
regarding counsel’s alleged failure to move to suppress Petitioner’s statements must fail.

7
8

See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
2. Ground Two: Discovery Regarding Weapons

9
10
11
12

Petitioner claims that his trial counsel was ineffective for failing “to move for
additional disclosure as to who found the SKS & .45 cal[iber] weapons [because] this

13

precluded testimony as to the exact location of discovery of weapons.” Petition (Doc. 1)

14

at 7.

15

Petitioner further alleges that “counsel failed to conduct reasonable pre-trial

investigation . . . [in violation of his] Right to Counsel and Rights to Due Process of the

16
17
18
19

Law[.]” Id. Petitioner additionally claims that he “has discovered after receipt of his
entire case file Sgt. James actually found [the guns.]” Id.
The Rule 32 court stated that:

20
21
22
23
24
25
26
27
28

The Court has reviewed the record and the pleadings and finds that Deputy
Sutton’s statements in his report and his interview were consistent. The
Deputy never claimed to have discovered the weapons and maintained that
he believed they were discovered atop the car and not on the ground though
he couldn’t remember with absolute certainty. Nonetheless, the other
witnesses consistently claimed and testified that the weapons were
discovered atop the car. For these reasons, the Court presumes that Trial
Counsel elected not to explore the matter further and decided not to seek
suppression of the witness testimony regarding the the [sic] location of the
weapons as a matter of trial strategy. The Court finds that Trial Counsel’s
actions were reasonable and it will not second-guess Trial Counsel’s
tactical decisions. Moreover, even if Trial Counsel’s actions were
unreasonable, the Petitioner has failed to demonstrate any prejudice. The
- 33 -

1

3

Petitioner’s claim that the weapons testimony affected the outcome of his
case is speculative. There is nothing in the record which indicates that the
weapons testimony was dispositive or that suppression would have changed
the outcome of the Petitioner’s case.

4

Answer (Doc. 11), Exh. “E” at 6; In Chambers Ruling, Re: Petition for Post-Conviction

2

5
6

Relief 8/3/2010 (Doc. 1-4) at 6. The court of appeals agreed that Petitioner had failed to

7

meet his “burden to show counsel’s deficient performance prejudiced him—‘that

8

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

9

result is reliable.’” Ariz. Ct. App. Mem. Decision 2/8/2011 (Doc. 1-4) at 35–36 (citing

10
11
12
13

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064).
Based on the foregoing, this Court finds that the Arizona courts did not
unreasonably apply clearly established Federal law or unreasonably determine the facts in

14
15

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

16

prejudice. See Gulbrandson, 738 F.3d at 991. Regarding Plaintiff’s claim that Sgt.

17

James found the weapons, there is no evidence, beyond Plaintiff’s bald assertion, before

18
19

the Court regarding this claim. Furthermore, and as the Rule 32 court noted, irrespective

20

of where the weapons were found, “Petitioner’s claim that the weapons testimony

21

affected the outcome of his case is speculative.” Answer (Doc. 11), Exh. “E” at 6; In

22

Chambers Ruling, Re: Petition for Post-Conviction Relief 8/3/2010 (Doc. 1-4) at 6.

23
24

“Newly discovered evidence is a ground for habeas relief only when it bears on the

25

constitutionality of an appellant's conviction and would probably produce an acquittal.”

26

Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999) (citations omitted). Petitioner cannot

27
28

meet his burden, and his ineffective assistance of counsel claim regarding counsel’s

- 34 -

1
2

alleged failure to seek additional disclosure regarding the location of the guns and pretrial
investigation into the same must fail. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

3
4
5
6

B. Grounds Three, Four, and Five: Brady Material
“[S]uppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to

7
8

punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v.

9

Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196–97, 10 L.Ed.2d 215 (1963). The

10

Supreme Court of the United States has subsequently held that “the duty to disclose such

11
12

evidence is applicable even though there has been no request by the accused[.]” Strickler

13

v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999) (citing

14

United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49, L.Ed.2d 342 (1976)). As

15

such, “[d]ue process imposes an ‘inescapable’ duty on the prosecutor ‘to disclose known,

16
17
18
19

favorable evidence rising to a material level of importance.’” Milke v. Ryan, 711 F.3d
998, 1012 (9th Cir. 2013) (quoting Kyles v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555,
131 L.Ed.2d 490 (1995)).

20
21

A Brady violation results if “the nondisclosure was so serious that there is a

22

reasonable probability that the suppressed evidence would have produced a different

23

verdict.” Strickler, 527 U.S. at 281, 119 S.Ct. at 1948. Such a violation has three

24
25

elements: (1) “[t]he evidence at issue must be favorable to the accused, either because it

26

is exculpatory, or because it is impeaching;” (2) “that evidence must have been

27

suppressed by the State, either willfully or inadvertently;” and (3) “prejudice must have

28

ensued.” Id.
- 35 -

1
2

1. Ground Three: Alleged Failure to Disclose Pima County Sheriff’s
Office Transcription of Petitioner Interview

3

Petitioner alleges that “[t]he State failed to disclose ‘Brady’ evidence (23) pages of

4

Mr. Thompson’s statement in possession of Pima County Sheriff’s Office and

5
6

investigative agencies which the State had access to . . . [in violation of ] petitioners [sic]

7

right to Due Process of the Law[.]” Petition (Doc. 1) at 8. Petitioner further describes

8

the timeline of transcription of his interview with police by the Pima County Public

9

Defender’s Office and the Pima County Sheriff’s Office, and details the discrepancies

10
11

between the two transcripts. Id.; Pet.’s Addendum (Doc. 1-3) at 2–56; Pro Se Suppl. Br.

12

Under 28 U.S.C. § 2254 (Doc. 1-6) at 1–19.

13

The Rule 32 court found “Petitioner’s argument is severely flawed.” In Chambers

14
15

Ruling, Re: Petition for Post-Conviction Relief 1/4/2012 (Doc. 1-5) at 25. Upon review,

16

the court of appeals noted that “there was only one recording of Thompson’s statements

17

to law enforcement officers; there were, however, two transcriptions, one prepared by the

18
19

Pima County Sheriff’s office, which seems to have become the transcript used by the

20

Pima County Attorney’s office (the state’s transcript”), and the other by the Pima County

21

Public Defender’s office, which differed in nonmaterial ways.” Ariz. Ct. App. Mem.

22

Decision 5/30/2012 (Doc. 1-5) at 77–78. Both the Rule 32 court and the court of appeals

23
24

recognized that “only the audio recording of the statements was played for the jury; the

25

redacted version of the state’s transcript was used during testimony but was not admitted

26

into evidence.” Id. at 78. Moreover, “the transcript Thompson claimed the state had

27
28

failed to disclose to him was actually the transcript prepared by the Public Defender’s

- 36 -

1
2

office[,] . . . [and] with respect to the redaction of portions of Thompson’s recorded
statements, the prosecutor explained to the court during a bench conference on the second

3
4
5
6

day of trial that Thompson did not want the jury to hear anything about his having held
individuals suspected of being undocumented immigrants at gunpoint on his property.”
Id. Additionally, both Detectives Hess and Copeland, who were involved in Petitioner’s

7
8

interview, testified at trial regarding what occurred when the recorder had been stopped,

9

as well as to the accuracy of the State’s transcription. Id. at 79. The court of appeals

10

adopted the Rule 32 court’s determination that transcript’s “continued absence from trial

11
12

would not have altered the verdict.” Id.; In Chambers Ruling, Re: Petition for Post-

13

Conviction Relief 1/4/2012 (Doc. 1-5) at 26. The Rule 32 court, however, considered

14

this claim under Arizona law regarding newly-discovered evidence, but did not directly

15

address any alleged Brady violation. In such a situation, this Court is “not required to

16
17
18
19

defer to the state court’s decision because the issue involves an alleged violation of the
federal Constitution.” Brown v. Anderson, 164 F.3d 629 (9th Cir. 1998) (citing Estelle v.
McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)).

20
21

In order for a Brady violation to occur, “[t]he evidence at issue must be favorable

22

to the accused[.]” Strickler, 527 U.S. at 281, 119 S.Ct. at 1948. Favorable evidence is

23

defined as “[a]ny evidence that would tend to call the government’s case into doubt is

24
25

favorable for Brady purposes.” Milke, 711 F.3d at 1011 (citing Strickler, 527 U.S. at 290,

26

119 S.Ct. 1936). As an initial matter, contrary to Petitioner’s assertions, the transcript

27

was not favorable to him.

28

It contained the entirety of his confession to police.

Furthermore, the transcript was produced by his counsel’s office. Trial counsel received
- 37 -

1
2

the recordings of Petitioner’s interview with police, and were able to create a
transcription from the same. As such, the State did not fail to turn over evidence, and

3
4
5

even if there was a failure, the material was not favorable to the defense. Accordingly,
no Brady violation occurred, and Petitioner’s habeas claim regarding the same must fail.

6

2. Count Four: State’s Alleged Failure to Disclose Evidence

7
Petitioner alleges that “[t]he State failed to disclose evidence favorable to the

8
9

accused as defense requested disclosure under Rule 15.1 & 15.1(b) . . . [in violation of]

10

petitioner’s Rights to Due Process of the Law[.]” Petition (Doc. 1) at 9. Petitioner again

11
12

cites Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and

13

discusses the differences between the two transcripts. Id. Respondents assert that this

14

“claim is unexhausted because it was not made in the state court.” Answer (Doc. 11) at

15

6.

As such, Respondents argue that it is procedurally defaulted.

Id.

Contrary to

16
17
18
19

Respondents’ position, however, Petitioner asserted this claim in his second PCR
petition, and on appeal of the same. See Answer (Doc. 11), Not. of PCR 10/27/2011
(Exh. “O”) at 4–23; see also Pet. for Review (Doc. 1-5) at 40–64. Petitioner intermingled

20
21

this claim with his Brady claim and others.

The Court finds that Petitioner did

22

sufficiently raise this claim to the State court, and as discussed in Section IV.B.1., supra,

23

the Arizona courts denied relief. Therefore, the Court finds Ground 4 is exhausted. The

24
25

Court further finds that because “the relevant state court decision . . . fairly appear[s] to

26

[be] . . . interwoven with [federal] law” it may properly address this ground for relief.

27

Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640

28

(1991).
- 38 -

1
2

“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.

3
4
5
6

Ct. 475, 480, 116 L. Ed. 2d 385 (1991). Therefore, “[i]n conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States.” Id. at 68 (citations omitted). Petitioner appears to be

7
8

relying on Rules 15.1(b) and 16, Arizona Rules of Criminal Procedure, in part to support

9

his Brady claim. Not. of PCR 10/27/2011 (Doc. 1-4) at 64–67. As discussed in Section

10

IV.B.1., supra, Petitioner cannot meet the elements of a Brady violation. The addition of

11
12
13
14
15

the State disclosure rules does nothing change this analysis. Therefore, the Court finds
that Petitioner’s Ground 4 is denied.
3. Count Five: False Evidence
Petitioner alleges that “[f]alse evidence [was] used to convict [him] . . . [in

16
17
18
19

violation of his] right to a fair trial, [and] right to due process of the law.” Petition (Doc.
1) at 10. Respondents claim that this “claim is unexhausted because it was not made in
state court[.]” Answer (Doc. 11) at 6. The Court finds Respondents assertion incorrect.

20
21

Petitioner raised this identical claim in his second PCR petition, stating that “False

22

Evidence [was] used to convict[.]” Not. PCR 10/27/2011 (Doc. 1-4) at 68. As in the

23

instant habeas petition, Petitioner cited Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17

24
25

L.Ed.2d 660 (1967), in support of this argument. Id. This argument was also contained,

26

albeit obliquely, within Petitioner’s appeal of his second PCR petition. Pet. for Review

27

2/2/2012 (Doc. 1-5) at 40–64. Accordingly, the Court finds Count Five exhausted.

28

“[T]he transcript Thompson claimed the state had failed to disclose to him was
- 39 -

1
2

actually the transcript prepared by the Public Defender’s office[,] . . . [and] with respect
to the redaction of portions of Thompson’s recorded statements, the prosecutor explained

3
4
5
6

to the court during a bench conference on the second day of trial that Thompson did not
want the jury to hear anything about his having held individuals suspected of being
undocumented immigrants at gunpoint on his property.” Ariz. Ct. App. Mem. Decision

7
8

5/30/2012 (Doc. 1-5) at 77–78. Additionally, both Detectives Hess and Copeland, who

9

were involved in Petitioner’s interview, testified at trial regarding what occurred when

10

the recorder had been stopped, as well as to the accuracy of the State’s transcription. Id.

11
12

at 79.

13

The Supreme Court of the United States has observed that “[a] state-court decision

14

is ‘contrary to’ our clearly established precedents if it ‘applies a rule that contradicts the

15

governing law set forth in our cases’ or if it ‘confronts a set of facts that are materially

16
17
18
19

indistinguishable from a decision of this Court and nevertheless arrives at a result
different from our precedent.’” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365, 154
L.Ed.2d 263 (2002) (citations omitted). The Court went on to note that “[a]voiding these

20
21

pitfalls does not require citation of our cases—indeed, it does not even require awareness

22

of our cases, so long as neither the reasoning nor the result of the state-court decision

23

contradicts them.” Id. (emphasis in original).

24
25

Petitioner’s reliance on Miller is misplaced, however.

In that case “[t]he

26

prosecution deliberately misrepresented the truth.” Miller, 386 U.S. at 6, 87 S.Ct. at 788.

27

The Arizona courts found that the two transcripts were not materially different, were not

28

admitted into evidence, and the CD containing the recording of Petitioner’s interview
- 40 -

1
2

with police was played for the jury.

In Chambers Ruling, Re: Petition for Post-

Conviction Relief 1/4/2012 (Doc. 1-5) at 25–26; Ariz. Ct. App. Mem. Decision

3
4
5
6

5/30/2012 (Doc. 1-5) at 77–79. Accordingly, the state courts denied Petitioner’s PCR
petition. In Chambers Ruling, Re: Petition for Post-Conviction Relief 1/4/2012 (Doc. 15) at 27; Ariz. Ct. App. Mem. Decision 5/30/2012 (Doc. 1-5) at 80. The Court finds that

7
8
9
10

this determination is neither “contrary to” or an “unreasonable application of” clearly
established Federal law, nor “based on an unreasonable determination of the facts[.]” 28
U.S.C. § 2254(d). Accordingly, Petitioner’s claim is denied.

11
12
13
14
15

C. Ground Six: Alleged State Court Errors
Petitioner alleges that “State Court Errors Denied Defendant a Fair Trial as
defendants conviction resulted from state court errors.”

Petition (Doc. 1) at 11

(grammatical errors in original). Respondents assert that this “claim is unexhausted

16
17
18
19

because it was not made in state court.” Answer (Doc. 11) at 7. Petitioner lists several
alleged “errors,” some of which he alleged in the Arizona courts, others that he did not.
The Court will address each of these in turn.

20
21
22
23
24
25

1. Fraud, False Statements, and Perjury
Petitioner cites to Sections 1001, 1621, and 1622, Title 18 of the United States
Code alleging the State courts erred under these statutes.

Petition (Doc. 1) at 11.

Petitioner asserts this claim in his Second PCR Petition. Not. of PCR 10/27/2011 (Doc.

26

1-4) at 68–69, 75. Petitioner did not address this claim to the Arizona Court of Appeals,

27

however. See Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64

28

(2004) (in order to “fairly present” one’s claims, the prisoner must do so “in each
- 41 -

1
2

appropriate state court”).

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

3
4
5
6

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 exhaust state remedies and the court to which
the petitioner would be required to present his claims in order to meet the exhaustion

7
8

requirement would now find the claims procedurally barred”).

Where a habeas

9

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

10

from subsequent review unless the petitioner can show cause and actual prejudice as a

11
12

result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334

13

(1989) (holding that failure to raise claims in state appellate proceeding barred federal

14

habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not

15

met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S.

16
17
18
19

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 prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire trial with error of constitutional

20
21

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

22

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

23

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

24
25

address the merits of his claims.”).

26

The Court notes that even if it were to excuse Petitioner’s procedural default, these

27

sections of the United States Code are criminal statutes, and “[s]uch sections in no

28

respect provide affirmative relief of the nature requested[.]” Peabody v. United States,
- 42 -

1
2

394 F.2d 175, 177 (9th Cir. 1968) (state prisoner seeking a 28 U.S.C. § 2255 vacation of
sentence is not entitled to relief pursuant 18 U.S.C. §§ 241, 242); see also Cok v.

3
4
5
6

Consentino, 876 F.2d 1, 2 (1st Cir. 1989) (“Generally, a private citizen has no authority
to initiate a federal criminal prosecution. . . . Only the United States as prosecutor can
bring a complaint under 18 U.S.C. §§ 241-242[.]” Id. (citations omitted)). Petitioner is

7
8
9
10
11
12

not entitled to habeas relief.
2. Theft or Alteration of Record
Petitioner cites to Sections 1506, Title 18 of the United States Code alleging the
State courts erred under this statute. Petition (Doc. 1) at 11. Petitioner asserts this claim

13

in his Second PCR Petition. Not. of PCR 10/27/2011 (Doc. 1-4) at 68–69, 75–76.

14

Petitioner did not address this claim to the Arizona Court of Appeals, however. See

15

Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order

16
17
18
19

to “fairly present” one’s claims, the prisoner must do so “in each appropriate state
court”). 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.

20
21

Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991)

22

(“petitioner failed to exhaust state remedies and the court to which the petitioner would

23

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

24
25

find the claims procedurally barred”). Where a habeas petitioner’s claims have been

26

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

27

the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S.

28

288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise
- 43 -

1
2

claims in state appellate proceeding barred federal habeas review unless petitioner
demonstrated cause and prejudice). Petitioner has not met his burden to show either

3
4
5
6

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

7
8

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

9

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

10

(9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his

11
12
13
14
15

claims[,] . . . [and as such,] there is no basis on which to address the merits of his
claims.”).
The Court notes that even if it were to excuse Petitioner’s procedural default, this
section of the United States Code is also a criminal statute, and “[s]uch sections in no

16
17
18
19

respect provide affirmative relief of the nature requested[.]” Peabody v. United States,
394 F.2d 175, 177 (9th Cir. 1968) (state prisoner seeking a 28 U.S.C. § 2255 vacation of
sentence is not entitled to relief pursuant 18 U.S.C. §§ 241, 242); see also Cok v.

20
21

Consentino, 876 F.2d 1, 2 (1st Cir. 1989) (“Generally, a private citizen has no authority

22

to initiate a federal criminal prosecution. . . . Only the United States as prosecutor can

23

bring a complaint under 18 U.S.C. §§ 241-242[.]” Id. (citations omitted)). As such,

24
25
26
27
28

Petitioner is not entitled to habeas relief.
3. Federal Rules of Evidence
Petitioner cites to the Federal Rules of Evidence to support his claim that he was
denied a fair trial. Petition (Doc. 1) at 11. Petitioner pointed to these same rules in his
- 44 -

1
2

Second PCR petition, and appeal from denial of the same. Not. of PCR 10/27/2011 (Doc.
1-4) at 69–71; Pet. for Review 2/2/2012 (Doc. 1-5) at 61. The Court finds that this claim

3
4
5
6

is exhausted. The Court further finds that Petitioner is not entitled to relief, because the
Federal Rules of Evidence do not apply in state court proceedings. See United States v.
Chase, 340 F.3d 978, 985 (9th Cir. 2003) (“The Federal Rules of Evidence apply only to

7
8
9
10
11
12

proceedings in federal court.”). Therefore, Petitioner’s claim is denied.
4. Federal Rules of Criminal Procedure
Petitioner cites to the Federal Rules of Criminal Procedure to support his claim
that he was denied a fair trial. Petition (Doc. 1) at 11. Petitioner pointed to these same

13

rules in his Second PCR petition. Not. of PCR 10/27/2011 (Doc. 1-4) at 68–69, 72–73.

14

Petitioner did not address this claim to the Arizona Court of Appeals, however. See

15

Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order

16
17
18
19

to “fairly present” one’s claims, the prisoner must do so “in each appropriate state
court”). 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.

20
21

Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991)

22

(“petitioner failed to exhaust state remedies and the court to which the petitioner would

23

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

24
25

find the claims procedurally barred”). Where a habeas petitioner’s claims have been

26

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

27

the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S.

28

288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise
- 45 -

1
2

claims in state appellate proceeding barred federal habeas review unless petitioner
demonstrated cause and prejudice). Petitioner has not met his burden to show either

3
4
5
6

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

7
8

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

9

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

10

(9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his

11
12
13

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

14
15

The Court notes that even if it were to excuse Petitioner’s procedural default,
Petitioner is not entitled to relief, because the Federal Rules of Criminal Procedure do not

16
17
18
19

apply in state court proceedings. Fed. R. Crim. P. 1 (“These rules govern the procedure in
all criminal proceedings in the United States district courts, the United States courts of
appeals, and the Supreme Court of the United States.”); see, e.g., United States ex rel.

20
21

Gaugler v. Brierley, 477 F.2d 516, 523 (3d Cir. 1973) (The Federal Rules of Criminal

22

Procedure “do not extend to prosecutions in state courts for violations of state criminal

23

laws.”). Therefore, Petitioner’s claim is denied.

24
5. Simultaneous Release of Transcript Portions

25
26

Petitioner asserts that the two sections of the July 8, 2007 transcription of his

27

interview with police were required to be disclosed at the same time. Petition (Doc. 1) at

28

11.

Petitioner did not present this claim to the State court, and it would now be
- 46 -

1
2

precluded. Ariz. R. Crim. P. 32.2(a)(3). As such, Petitioner’s claim regarding an alleged
right to simultaneous disclosure of the transcript is unexhausted, and as a result,

3
4
5
6

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 exhaust state remedies and the
court to which the petitioner would be required to present his claims in order to meet the

7
8

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

9

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

10

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

11
12

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

13

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

14

barred federal habeas review unless petitioner demonstrated cause and prejudice).

15

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

16
17
18
19

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 prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire trial with error of

20
21

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

22

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

23

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

24
25
26
27
28

which to address the merits of his claims”). Therefore, Petitioner’s claim is denied.
6. Redaction and Sealing of Transcript
Petitioner asserts that “the Court was supposed to do the redaction and seal the
entire statement.” Petition (Doc. 1) at 11. Petitioner did not present this claim to the
- 47 -

1
2

State court, and it would now be precluded. Ariz. R. Crim. P. 32.2(a)(3). As such,
Petitioner’s claim regarding an alleged right to redaction and sealing of the transcript is

3
4
5
6

unexhausted, and as a result, 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
exhaust state remedies and the court to which the petitioner would be required to present

7
8
9
10
11
12

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

13

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

14

appellate proceeding barred federal habeas review unless petitioner demonstrated cause

15

and prejudice).

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

16
17
18
19

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

20
21

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

22

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

23

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

24
25
26
27
28

and as such] there is no basis on which to address the merits of his claims”). Therefore,
Petitioner’s claim is denied.
7. Contemporaneous Consideration
Petitioner asserts that “any part of the statement should be considered
- 48 -

1
2

contemporaneously with it.” Petition (Doc. 1) at 11. Petitioner did not present this claim
to the State court, and it would now be precluded. Ariz. R. Crim. P. 32.2(a)(3). As such,

3
4
5
6

Petitioner’s claim regarding an alleged right to contemporaneous consideration of his
entire statement is unexhausted, and as a result, 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)

7
8

(“petitioner failed to exhaust state remedies and the court to which the petitioner would

9

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

10

find the claims procedurally barred”). Where a habeas petitioner’s claims have been

11
12

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

13

the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S.

14

288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise

15

claims in state appellate proceeding barred federal habeas review unless petitioner

16
17
18
19

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 “must show not merely that the errors . . . created a

20
21

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

22

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

23

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

24
25

(9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his

26

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

27

claims”).

28

To the extent that this claim can be construed as contained within Petitioner’s
- 49 -

1
2

general argument against the use of the redacted transcript, as presented in his second
PCR petition, and appeal therefrom, such a claim must fail. The Arizona courts found

3
4
5
6

that the two transcripts were not materially different, were not admitted into evidence,
and the CD containing the recording of Petitioner’s interview with police was played for
the jury. In Chambers Ruling, Re: Petition for Post-Conviction Relief 1/4/2012 (Doc. 1-

7
8

5) at 25–26; Ariz. Ct. App. Mem. Decision 5/30/2012 (Doc. 1-5) at 77–79. Accordingly,

9

the state courts denied Petitioner’s PCR petition. In Chambers Ruling, Re: Petition for

10

Post-Conviction Relief 1/4/2012 (Doc. 1-5) at 27; Ariz. Ct. App. Mem. Decision

11
12

5/30/2012 (Doc. 1-5) at 80. The Court finds that this determination is neither “contrary

13

to” or an “unreasonable application of” clearly established Federal law, nor “based on an

14

unreasonable determination of the facts[.]” 28 U.S.C. § 2254(d). Therefore, Petitioner’s

15

claim is denied.

16
17
18
19

8. Release of Exhibits 139, 140, and 141
Petitioner asserts that Exhibits 139, 140 and 141 were never released to him.
Petition (Doc. 1) at 11.

This issue was never raised in an appellate or collateral

20
21

proceeding before the state courts, and it would now be precluded. Ariz. R. Crim. P.

22

32.2(a)(3). As such, Petitioner’s claim regarding an alleged right to the release of certain

23

exhibits is unexhausted, and as a result, procedurally defaulted. Coleman v. Thompson,

24
25

501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner

26

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

27

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

28

procedurally barred”).

Where a habeas petitioner’s claims have been procedurally
- 50 -

1
2

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

3
4
5
6

S.Ct. 1060, 1068, 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).

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

7
8

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

9

(1986) (Petitioner “must show not merely that the errors . . . created a possibility of

10

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

11
12

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

13

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

14

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

15

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

16
17
18
19

Petitioner’s claim is denied.
9. Spoliation
Petitioner asserts that spoliation of records occurred, depriving him of a fair trial.

20
21

Petition (Doc. 1) at 11. Although Petitioner raised this issue in his second PCR petition,

22

he failed to raise it in the appeal of the same. Not. of PCR 10/27/2011 (Doc. 1-4) at 71.

23

As such, the claim is unexhausted, and would now be precluded. Ariz. R. Crim. P.

24
25

32.2(a)(3); see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158

26

L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the prisoner must do so “in

27

each appropriate state court”). Therefore, Petitioner’s claim is procedurally defaulted.

28

Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d
- 51 -

1
2

640 (1991) (“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

3
4
5
6

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 can show cause and actual prejudice as a

7
8

result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334

9

(1989) (holding that failure to raise claims in state appellate proceeding barred federal

10

habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not

11
12

met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S.

13

478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner “must show not

14

merely that the errors . . . created a possibility of prejudice, but that they worked to his

15

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

16
17
18
19

dimensions”) (emphasis in original) (internal quotations omitted); see also MartinezVillareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause
“for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to

20
21

address the merits of his claims.”). Petitioner’s claim is denied.
10. Fraudulent Concealment

22
23
24
25

Petitioner alleges that he meets “all (5) criteria of fraudulent concealment.
Petition (Doc. 1) at 11.

Although Petitioner raised this issue in his second PCR petition,

26

he failed to raise it in the appeal of the same. Not. of PCR 10/27/2011 (Doc. 1-4) at 71–

27

72.

28

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 S.Ct. 1347, 1349, 158
- 52 -

1
2

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.

3
4
5
6

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 exhaust state remedies and the court to which the
petitioner would be required to present his claims in order to meet the exhaustion

7
8

requirement would now find the claims procedurally barred”).

Where a habeas

9

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

10

from subsequent review unless the petitioner can show cause and actual prejudice as a

11
12

result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334

13

(1989) (holding that failure to raise claims in state appellate proceeding barred federal

14

habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not

15

met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S.

16
17
18
19

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 prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire trial with error of constitutional

20
21

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

22

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

23

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

24
25
26
27
28

address the merits of his claims.”). Petitioner’s claim is denied.
11. General Reference to Postconviction Relief Petition
Petitioner generally refers to his second PCR petition in support of his claim for
the alleged denial of a fair trial. Petition (Doc. 1) at 11. “Judges are not like pigs,
- 53 -

1
2

hunting for truffles buried in briefs.” Christian Legal Soc. Chapter of Univ. of Cal. v.
Wu, 626 F.3d 483, 488 (9th Cir. 2010) (citations omitted). This Court has carefully

3
4
5
6

considered each of Petitioner’s stated claims, and declines his apparent invitation to
search for those which he may have missed.
D. Ground Seven: Right to Reciprocal Discovery

7
8

Petitioner asserts that “[t]he State denied the defense the right to reciprocal

9

discovery . . . [in violation of] the petitioners [sic] right to due process of the law[.]”

10

Petition (Doc. 1). Respondents assert that this “claim is unexhausted because it was not

11
12

made in state court.” Answer (Doc. 11) at 7. The Court agrees. Although Petitioner

13

raised this issue in his second PCR petition, he failed to raise it in the appeal of the same.

14

Not. of PCR 10/27/2011 (Doc. 1-4) at 74–77.

15

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

16
17
18
19

U.S. 27, 29, 124 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.

20
21

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

22

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

23

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

24
25

barred”). Where a habeas petitioner’s claims have been procedurally defaulted, the

26

federal courts are prohibited from subsequent review unless the petitioner can show cause

27

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

28

1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate
- 54 -

1
2

proceeding barred federal habeas review unless petitioner demonstrated cause and
prejudice). Petitioner has not met his burden to show either cause or actual prejudice.

3
4
5
6

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

7
8

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

9

omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996)

10

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

11
12
13
14
15

such,] there is no basis on which to address the merits of his claims.”). Petitioner’s claim
is denied.
E. Outside Influences on the Jury
Petitioner alleges that “[o]utside influences upon the jury raise the presumption of

16
17
18
19

prejudice that imposes a heavy burden on the state to overcome by showing that these
influences were harmless to the petitioner.” Petition (Doc. 1) at 13. Respondents assert
that this “claim is unexhausted because it was not made in state court.” Answer (Doc.

20
21

11) at 7. The Court agrees. Although Petitioner raised this issue in his second PCR

22

petition, he failed to raise it in the appeal of the same. Not. of PCR 10/27/2011 (Doc. 1-

23

4) at 78–80.

24
25

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 S.Ct. 1347, 1349,

26

158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the prisoner must do so

27

“in each appropriate state court”). Therefore, Petitioner’s claim is procedurally defaulted.

28

Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d
- 55 -

1
2

640 (1991) (“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

3
4
5
6

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 can show cause and actual prejudice as a

7
8

result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334

9

(1989) (holding that failure to raise claims in state appellate proceeding barred federal

10

habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not

11
12

met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S.

13

478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner “must show not

14

merely that the errors . . . created a possibility of prejudice, but that they worked to his

15

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

16
17
18
19

dimensions”) (emphasis in original) (internal quotations omitted); see also MartinezVillareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause
“for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to

20
21

address the merits of his claims.”). Petitioner’s claim is denied.

22

F. Conclusion

23

In light of the foregoing, the Court finds that Petitioner’s habeas claims are

24
25

without merit, and the Petition (Doc. 1) shall be denied.

26
27
28

V.

RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the
- 56 -

1
2

District Judge enter an order DENYING Petitioner’s Petition Under 28 U.S.C. § 2254 for
a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1);

3
4
5
6

Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil
Procedure, any party may serve and file written objections within fourteen (14) days after
being served with a copy of this Report and Recommendation. A party may respond to

7
8

another party’s objections within fourteen (14) days after being served with a copy. Fed.

9

R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from the District

10

Court. If objections are filed, the parties should use the following case number: CV-12-

11
12

0766-TUC-DCB.

13

Failure to file timely objections to any factual or legal determination of the

14

Magistrate Judge may result in waiver of the right of review. The Clerk of the Court

15

shall send a copy of this Report and Recommendation to all parties.

16
17

Dated this 31st day of July, 2015.

18
19
20

Honorable Bruce G. Macdonald
United States Magistrate Judge

21
22
23
24
25
26
27
28

- 57 -