Higgins #248562 v. Ryan et al

Filing 30

ORDER: IT IS ORDERED that the Petition for Writ of Habeas Corpus is DISMISSED. The Clerk of Court should enter judgment and close this case. IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability. Signed by Magistrate Judge D Thomas Ferraro on 9/15/14.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Dale Higgins,
Petitioner,

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ORDER

v.

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No. CV-13-0189-TUC-DTF

Charles L. Ryan, et al.,

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Respondents.

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Petitioner Robert Higgins, presently incarcerated at the Arizona State Prison-

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Eyman, Meadows Unit, in Florence, Arizona, has filed a Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1),

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Respondents’ Answer (Docs. 22-25), and Petitioner’s Reply (Doc. 29). The parties have

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consented to Magistrate Judge jurisdiction. (Doc. 20.) Based on the pleadings and

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exhibits submitted to the Court, the Petition is denied.

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FACTUAL AND PROCEDURAL BACKGROUND
Higgins was convicted in the Superior Court of Cochise County of child
molestation, indecent exposure, tampering with evidence, and 16 counts of sexual

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exploitation of a minor. (Doc. 22, Ex. B.) On October 22, 2009, he was sentenced to
prison terms totaling 227 years. (Id.)

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The convictions were based on the following facts, as summarized by the appellate

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court:
While using Higgins’s desktop computer in October 2007, his girlfriend B.
found and viewed a portion of a recently recorded video depicting Higgins
and his then-four-year-old daughter, T. In the video, Higgins was naked,
while T. was wearing only a t-shirt. Higgins, while masturbating,
approached T. and appeared to speak to her, at which time she “went on all
fours” and turned her “buttocks . . . towards him.” Higgins then reached his
hand toward her genitals and, according to B., “it looked like he had
actually touched her genital area,” although B. also stated she “didn’t
actually see” Higgins “touch [T.’s] area” because T.’s “leg was in the way”
and B. therefore could not see his hand. B. stopped the video before it
ended and called Higgins, threatening to contact law enforcement. Higgins
then returned to his house, and when B. asked him “if he had done it,” he
responded that he wanted to “explain.” B. then left, telling Higgins that she
was going to report him.
After B. spoke with police officers, she agreed to make a recorded
telephone call to Higgins. During that call, Higgins tacitly admitted he had
touched T. inappropriately but explained he had only done it once and it
had been a mistake. Pursuant to a search warrant, police officers searched
Higgins’s home and, although they did not find his desktop computer, they
found a laptop computer. A computer forensics expert discovered on the
laptop computer’s hard drive ten photographs and four videos depicting
child pornography, all involving unknown victims. Police officers later
found Higgins at a hotel and arrested him. Officers found Higgins’s desktop
computer in his hotel room, but the hard drive had been removed and
thrown away and Higgins had installed a replacement.

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(Doc. 22, Ex. E at 2-3.)

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Higgins filed an appeal, and the Arizona Court of Appeals affirmed his

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convictions and sentences. (Doc. 22, Exs. D, E.) Higgins did not seek review in the

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Arizona Supreme Court. (Id., Ex. G.) Higgins filed a Notice of Post-conviction Relief

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(PCR). (Id., Ex. H.) Higgins’s appointed attorney filed an Anders brief, stating that he did

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not find any claims for relief to raise in a PCR petition and seeking leave for Higgins to
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file a pro se petition if he so chose. (Id., Ex. J.) Petitioner filed a PCR petition, which was

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denied. (Id., Exs. K, L.) Higgins sought and was granted review of the PCR denial in the

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Arizona Court of Appeals, but relief was denied. (Id., Exs. M, N.) Higgins did not seek

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review in the Arizona Supreme Court. (Id., Ex. O.)

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DISCUSSION

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Petitioner raises nine claims in his Petition. Respondent does not contest the
timeliness of the Petition but contends Claims 1 and 6 are procedurally defaulted and

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Claim 9 is not cognizable. The Court will first exam exhaustion of Claims 1 and 6 and

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then address the merits of the remaining claims, including the cognizability of Claim 9.

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PRINCIPLES OF EXHAUSTION AND PROCEDURAL DEFAULT

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

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

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

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

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

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

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78 (1971).

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In Arizona, there are two primary procedurally appropriate avenues for petitioners

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to exhaust federal constitutional claims: direct appeal and PCR proceedings. A habeas

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petitioner’s claims may be precluded from federal review in two ways. First, a claim may

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be procedurally defaulted in federal court if it was actually raised in state court but found
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by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30.

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Second, a claim may be procedurally defaulted if the petitioner failed to present it in state

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

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

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barred.” Coleman, 501 U.S. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th

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Cir. 1998) (stating that the district court must consider whether the claim could be

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

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pursuant to Rule 32, the claim is “technically” exhausted but procedurally defaulted.
Coleman, 501 U.S. at 732, 735 n.1; see also Gray, 518 U.S. at 161-62.
Because the doctrine of procedural default is based on comity, not jurisdiction,

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

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

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procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the

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

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

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

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ANALYSIS OF PROCEDURAL DEFAULT

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In Claims 1 and 6, Higgins alleges trial and appellate counsel were ineffective for

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failing to contest the exercise of jurisdiction over the counts in the indictment based on

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the images found on his laptop computer. Specifically, Higgins argues that receipt of the

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images occurred in South Korea in 2005 and the images were never accessed or even
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accessible in Arizona because the laptop was broken. Respondents concede Higgins fairly

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presented these claims in state court (Doc. 22, Ex. K at 5-7, 16-17), but contend they

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were found precluded on state law grounds.

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In the PCR petition, regarding trial counsel, Higgins argued that there was no

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jurisdiction because the images at issue were downloaded outside of Arizona and never

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accessed within the state. (Doc. 22, Ex. K at 6.) He went on to assert that trial counsel

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failed to argue that he did not possess the images within the jurisdictional boundaries of

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Arizona because the computer was broken and the images were only accessible with

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specialized software. (Id. at 7.) Higgins argued that the central question was one of

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possession, without which there was no jurisdiction, (Id. at 8.) In a later section, Higgins

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argued that appellate counsel failed to contest jurisdiction and conceded that Higgins

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possessed the images, despite the last access to the images occurring outside the

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jurisdictional boundary of Arizona. (Id. at 16.)

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The PCR court held that trial counsel did not fall below professional norms

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because “[i]t was clear that Arizona did have jurisdiction to prosecute defendant for

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possession of the images . . . and thus any supposed failure of trial counsel in contesting

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these issues would not have prejudiced defendant’s case.” (Doc. 22, Ex. L at 2.) Thus,

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Claim 1 was squarely addressed on the merits and is properly exhausted.

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The ruling regarding IAC on appeal, Claim 6, is less clear. Some of the confusion

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is due to the terminology used to discuss the claim. As acknowledged by Higgins in the

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PCR petition, his ineffective assistance of counsel (IAC) claims related to jurisdiction
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hinge on the question of “possession”; thus, those two words are used interchangeably by

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him and the state courts to articulate the claim. Therefore, this Court looks at the PCR

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court’s discussion of both jurisdiction and possession.

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The PCR court made the following finding: “Defendant’s argument that trial

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counsel did not argue about whether the images were in his possession is simply factually

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wrong; trial counsel did in fact argue the sufficiency of the evidence. So did appellant

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counsel during the direct appeal.” (Doc. 22, Ex. L at 2.) A few pages later, the PCR court

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discussed the question of jurisdiction more extensively: “As the State correctly argues:

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‘Admittedly, the Court of Appeals did not use the term “jurisdiction” while disposing of

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this issue, yet the legal and factual analyses remains the same. Thus, the issue is

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indistinguishable from the claim . . . that his possession was not intentional.’” (Id. at 4.)
The PCR court went on to hold:
Arizona had (and continues to have) jurisdiction to prosecute
defendant for the images found on the laptop computer, regardless of where
they were downloaded. The Court of Appeals must have determined that
Arizona had such jurisdiction; otherwise, the convictions and sentences
could not have been affirmed. The issue of jurisdiction is thus precluded
under Rule 32.2(a), as having been raisable on direct appeal and in fact
decided on direct appeal.
(Id.) The appellate court found no error in the PCR court’s decision. (Id., Ex. N.)
Arguably, the PCR court ruled on the merits of the claim when it stated that

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appellate counsel raised the issue of possession on appeal. (Doc. 22, Ex. L at 2.) In

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making that finding, the PCR court implicitly concluded the IAC on appeal claim was

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without merit. Two pages later, the PCR court again indicated that appellate counsel

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sufficiently raised jurisdiction, which undermines a claim of ineffectiveness. The PCR

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court remarked that when appellate counsel raised (and the court of appeals decided) the

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claim that Higgins did not intentionally possess the images that addressed the

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jurisdictional argument. (Id. at 4.) Thus, this Court could conclude the PCR court

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addressed this claim on the merits.
Alternatively, the PCR court indicated that this issue was precluded because it was
raised and decided on appeal. There are two difficulties with this Court adopting such a

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finding. First, the PCR court stated that the issue of jurisdiction was decided on appeal,

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not that the IAC claims related to jurisdiction were resolved on appeal. This is logical

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because it is not possible for appellate counsel to raise a claim of her own ineffectiveness

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on appeal. Second, to the extent the PCR court’s ruling was addressing the IAC claim, it

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is evident that the ruling refers to Rule 32.2(a)(2), which addresses claims raised on

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appeal. A preclusion ruling based on Arizona Rule 32.2(a)(2) does not operate as a bar to

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federal review of a claim. See Poland (Patrick) v. Stewart, 169 F.3d 573, 578 (9th Cir.

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1999) (noting that a precluded claim appears to be a “classic exhausted claim”); Ceja v.

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Stewart, 97 F.3d 1246, 1253 (9th Cir.1996) (recognizing the distinction between waiver

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and preclusion, and holding that “[p]reclusion does not provide a basis for federal courts

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to apply a procedural bar”). Normally, when a state court makes a preclusion finding

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under Rule 32.2(a)(2), a federal court reviews the claim by examining the earlier state

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adjudication. In this instance, however, the IAC on appeal claim was not raised or

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decided on direct appeal. Consequently, this Court would have to find that the PCR court
erroneously determined that the issue had been resolved on appeal.
Under either interpretation the claim is not procedurally barred from review in this
Court. Because Petitioner fairly presented Claim 6 in the PCR proceedings, and the state

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courts did not find it defaulted pursuant to an adequate bar, it is properly before this

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Court for review.

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LEGAL STANDARDS FOR RELIEF UNDER THE AEDPA

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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established

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a “substantially higher threshold for habeas relief” with the “acknowledged purpose of

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‘reducing delays in the execution of state and federal criminal sentences.’” Schriro v.

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Landrigan, 550 U.S. 465, 473-74 (2007) (quoting Woodford v. Garceau, 538 U.S. 202,

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206 (2003)). The AEDPA’s “highly deferential standard for evaluating state-court

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rulings’ . . . demands that state-court decisions be given the benefit of the doubt.”

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Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy,

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521 U.S. 320, 333 n. 7 (1997)).
Under the AEDPA, a petitioner is not entitled to habeas relief on any claim
“adjudicated on the merits” by the state court unless that adjudication:

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(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
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resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
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28 U.S.C. § 2254(d). The last relevant state court decision is the last reasoned state

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

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(citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan, 403

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F.3d 657, 664 (9th Cir. 2005).

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“The threshold test under AEDPA is whether [the petitioner] seeks to apply a rule

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of law that was clearly established at the time his state-court conviction became final.”

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

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

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

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

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court conviction became final. Williams, 529 U.S. at 365; see Carey v. Musladin, 549
U.S. 70, 74 (2006).
The Supreme Court has provided guidance in applying each prong of
§ 2254(d)(1).

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

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

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[the Supreme] Court’s cases but unreasonably applies it to the facts of the particular . . .

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case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a

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

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

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a state court’s application of Supreme Court precedent “unreasonable,” the petitioner
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must show that the state court’s decision was not merely incorrect or erroneous, but

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“objectively unreasonable.” Id. at 409; Landrigan, 550 U.S. at 473; Visciotti, 537 U.S. at

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25. “A state court’s determination that a claim lacks merit precludes federal habeas relief

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so long as ‘“fairminded jurists could disagree’ on the correctness of the state court’s

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decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v.

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Alvarado, 541 U.S. 652, 664 (2004)).

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ANALYSIS OF MERITS

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The Court now analyzes the merits of Higgins’s nine claims, eight of which allege
ineffective assistance of counsel by trial or appellate counsel.
Ineffective Assistance of Counsel Standard

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Ineffective assistance of counsel (IAC) claims are governed by Strickland v.

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Washington, 466 U.S. 668 (1984). To prevail under Strickland, a petitioner must show

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that counsel’s representation fell below an objective standard of reasonableness and that

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the deficiency prejudiced the defense. Id. at 687-88.

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The inquiry under Strickland is highly deferential, and “every effort [must] be

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made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

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counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at

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the time.” Id. at 689. Thus, to satisfy Strickland’s first prong, deficient performance, a

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defendant must overcome “the presumption that, under the circumstances, the challenged

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action might be considered sound trial strategy.” Id.

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Because an IAC claim must satisfy both prongs of Strickland, the reviewing court

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

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prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at 697 (“if

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it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

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prejudice . . . that course should be followed”). A petitioner must affirmatively prove

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prejudice. Id. at 693. To demonstrate prejudice, he “must show that there is a reasonable

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

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would have been different. A reasonable probability is a probability sufficient to

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undermine confidence in the outcome.” Id. at 694. Petitioner bears the burden of showing

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the state court applied Strickland to the facts of his case in an objectively unreasonable

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manner. See Bell v. Cone, 535 U.S. 685, 698-99 (2002).

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Claims 1 and 3

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In Claim 1, Higgins alleges trial counsel was ineffective for failing to contest the

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exercise of jurisdiction over the counts in the indictment based on images found on his

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laptop computer. In Claim 3, Higgins argues trial counsel was ineffective for failing to

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argue that Higgins did not “possess” the images found on his laptop. These claims are

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essentially synonymous as Higgins’s argument as to both is that receipt of the images

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occurred in South Korea and the images were never accessed or even accessible in

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Arizona because the laptop was infested with viruses, the keyboard was broken, and it

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required forensic software to access the images.

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After the State rested during trial, defense counsel made an oral motion for

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acquittal based on Arizona Rule of Criminal Procedure 20. (Doc. 22, Ex. V at 58.) He

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argued there was no Arizona jurisdiction for receipt of the images and he disputed

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“possession.” (Id. at 59.) He stated that there was no evidence that Higgins knew the

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images were on his computer and it required special software to locate them. (Id. at 59-

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60.) Finally, he argued that if Higgins ever possessed the photos the possession occurred

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in Korea, where the photos were deleted in an effort to get rid of the images. (Id. at 61.)

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After acknowledging counsel’s arguments, the trial court denied the Rule 20 motion. (Id.
at 80-81, 84-85.)
On appeal, counsel contested the sufficiency of the evidence to support the

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charges based on the images on his laptop. (Doc. 22, Ex. D at 17-18.) The court of

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appeals first stated that Higgins admitted to owning the laptop and the evidence

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established that it had been used to access child pornography websites. (Id., Ex. E at 6-7.)

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The court further stated that the jury could have inferred that Higgins had accessed those

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websites, thereby rejecting his testimony that he had not done so and was not aware the

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images were on his computer. (Id. at 7.) Additionally, the jury could have inferred that

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Higgins knew that images from websites he had visited were stored in hidden files on his

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hard drive. (Id.) Based on the evidence and the current law, the court found that the jury

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could have inferred that Higgins knowingly possessed the images on his laptop in 2007.

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(Id. at 8.)

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In ruling on the IAC claims, the PCR court found that Arizona had jurisdiction

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over the claims and Higgins was not prejudiced by trial counsel not contesting

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jurisdiction. (Doc. 22, Ex. L at 2.) The court further ruled that “Defendant’s argument

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that trial counsel did not argue about whether the images were in his possession is simply

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factually wrong; trial counsel did in fact argue the sufficiency of the evidence.” (Id.)
It is evident that trial counsel raised the issue of jurisdiction and possession when
arguing for dismissal of these charges at trial. Because counsel raised this issue, he was

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not deficient for failing to do so. Further, the court of appeals found there was sufficient

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evidence to find that Higgins knowingly possessed the images in 2007, within the

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jurisdiction of Arizona. Therefore, further argument on this point would not have been

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meritorious and Higgins suffered no prejudice from counsel’s actions regarding this
issue. The state court’s denial of Claims 1 and 3 was not objectively unreasonable.
Claim 2
Higgins argues trial counsel was ineffective for failing to investigate witnesses

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that were stationed in South Korea with Higgins who could have testified that others had

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access to his laptop computer on which the illegal images were found.

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With his PCR petition, Higgins submitted an affidavit in which he attested that he

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provided trial counsel names of witnesses that could have testified that other people had

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unlimited access to his laptop computer while he was stationed in South Korea. (Doc. 22,

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Ex. K, Ex. 1.) The PCR court ruled that Higgins failed to indicate what testimony from

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these witnesses could have aided his defense. (Doc. 22, Ex. L at 2.)
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Even if other people had access to Higgins’s laptop, that would not have precluded

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the jury from concluding that he was the person that downloaded the images found on his

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computer. Regardless, Higgins was charged and the jury found him guilty of possession

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of the images. Whether others had access to the laptop or even downloaded the material

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is of limited relevance to the charge of possession in 2007.

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Thus, Higgins was not prejudiced by counsel’s failure to investigate and present
evidence that others had access to Higgins’s laptop. The state court’s denial of this claim

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was not objectively unreasonable.

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Claim 4

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Higgins alleges trial counsel was ineffective for failing to request a recess or

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continuance to discuss the prosecution’s plea offer. Higgins contends that after two years

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in jail he was mentally prepared for trial. However, he states that he would have accepted

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the plea if counsel had advised him of the likelihood of success at trial.

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In the week before trial, the prosecution offered Higgins a plea deal with a ten-

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year sentence (to serve a minimum of 85% of the time) and lifetime probation. (Doc. 22,

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Ex. Y at 137-38, 140.) At a pretrial motions hearing, counsel discussed the plea with the

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court and the prosecutor stated that the deal was open only until the end of the day. (Id. at

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138.)

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The trial court then held a Donald hearing. (Id. at 137, 140-45.) After going over

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the possible sentence if Higgins were to lose on all counts (258 years, plus fines) and the

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terms of the plea deal, Higgins stated that he understood the possible sentence and the

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plea offer. (Id. at 141-44.) The Court then had the following colloquy with Higgins:

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THE COURT: Do you have any questions you’d like to ask me or
your attorney or the prosecutor about the offer or about your potential
exposure if you go to trial and lose?

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THE DEFENDANT: No, your Honor.
THE COURT: Do you believe that you’ve had a sufficient
opportunity to think about the matter and to talk to your attorney about
what’s best for you?

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THE DEFENDANT: Yes, I do.
THE COURT: And at this time what is your decision? Do you want
to accept the offer, or do you prefer to go to trial?

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THE DEFENDANT: I am declining the offer, your Honor.

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THE COURT: Okay. We will therefore proceed with trial.

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(Id. at 144-45.)

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Higgins attached an affidavit to his PCR petition in which he averred that counsel

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failed to advise him on whether he should take the plea and that he would have accepted

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the deal if given time to reflect. (Doc. 22, Ex. K, Ex. 1.) The PCR court recounted the

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colloquy from the Donald hearing set forth above and held:
The Court recalls that Mr. Higgins was very clear that he wanted to proceed
to trial. He did not waiver or hesitate in rejecting the offered plea.
There was no failing on the part of trial counsel in communicating
the 10-year offer to defendant. There is also no reason to believe that
defendant would ever have accepted that plea, no matter if more time had
been given. Although the court probably would have granted a request for a
recess to allow consideration of a plea, the court would not have continued
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the trial under those circumstances. But the defendant’s decision to go to
trial would not have been affected by any continuance.
(Doc. 22, Ex. L at 2-3.)

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This claim cannot succeed because Higgins has failed to establish that counsel’s

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performance was deficient. First, seeking a continuance of trial would have been futile

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because the plea deal was only available that day and the court stated it would not have

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granted a continuance. Second, the PCR court’s factual findings foreclose Higgins’s

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claim premised on counsel’s failure to seek a recess. Despite Higgins’s attestation to the

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contrary, the PCR court found that counsel did not fail to adequately advise Higgins of

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the plea and that Higgins would not have taken the plea given more time. These fact

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findings are presumed correct and Higgins has presented no evidence to rebut that

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presumption. 28 U.S.C. § 2254(e)(1). In light of the facts found by the PCR court,

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Higgins cannot demonstrate that counsel’s performance was deficient. The state court’s

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denial of this claim was not objectively unreasonable.

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Claim 5

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Higgins argues that trial and appellate counsel were ineffective for failing to

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dispute the jury instruction on indirect contact. Higgins argues there was no evidence that
he indirectly touched his daughter, therefore, the instruction should not have been given.
In discussing jury instructions, the trial court proposed the following instruction,
to which defense counsel did not object:

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The crime of molestation of a child requires proof of the following:

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1. The defendant intentionally or knowingly engaged in any direct or
indirect manipulation of Taylor Higgins’ vulva with his finger, and
2. The child was under 15 years of age.

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(Doc. 22, Ex. W at 108.) The instruction was given as agreed. (Id. at 150.) During

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deliberations, the jury sent out a note, which said “please define ‘indirect manipulation.’”

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(Doc. 22, Ex. X at 2.) Defense counsel proposed a response, which was rejected by the

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trial court in favor of the prosecution’s proposal: “[i]ndirect manipulation means

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manipulation other than by direct touching.” (Id. at 6-10.) Defense counsel went on to

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argue unsuccessfully that the term “indirect manipulation” was unconstitutionally vague
and, therefore, Count 2 should be dismissed. (Id. at 10.)
On direct appeal, counsel challenged the sufficiency of the evidence to support the
molestation conviction. The appellate court held that, in addition to the portion of the

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video seen by Higgins’s girlfriend, Higgins tacitly admitted to touching his daughter

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during a phone call with his girlfriend by stating various things including that he had not

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touched anyone else’s children.

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Appellate counsel also argued that the supplemental jury instruction on indirect

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manipulation was not supported by the evidence and allowed the jury to convict based on

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speculation. (Doc. 22, Ex. D at 19-20.) Additionally, she argued the supplemental

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instruction was unconstitutionally vague. (Id. at 20.) The appellate court agreed that there

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was no evidence of an indirect touching. (Doc. 22, Ex. E at 9.) The court noted that the

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jury was instructed that some instructions might be inapplicable. (Id.) The court of

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appeals concluded the response to the jury’s question was not an incorrect statement of
the law and did not amount to reversible error. (Id.)
In ruling on Claim 5, the PCR court relied on the findings by the appellate court
on the related claim regarding the supplemental jury instruction: the issue of “indirect

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touching” was immaterial because there was no evidence the defendant had touched the

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victim with an object or through her clothing; the jury was instructed that some

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instructions would not apply; and the supplemental instruction was correct. (Doc. 22, Ex.

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L at 3.) Therefore, the PCR court concluded that Higgins was not prejudiced by counsel’s
failure to challenge the instruction at trial or on appeal. (Id.)
The instruction as given was not erroneous as it tracked the statutory language and

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the language of the indictment. The indictment charged Higgins in Count 2 with

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molesting his daughter “by intentionally or knowingly engaging in or causing a person to

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engage in sexual contact, to wit manipulated . . . vulva with his finger.” (Doc. 22, Ex. A

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at 1.) Molestation of a child occurs by a person “intentionally or knowingly engaging in

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or causing a person to engage in sexual contact . . . with a child who is under fifteen years

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of age.” A.R.S. § 13-1410(A). “Sexual contact” is defined as “any direct or indirect

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touching, fondling or manipulating of any part of the genitals, anus or female breast by

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any part of the body or by any object or causing a person to engage in such contact.”

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A.R.S. § 13-1401(2). The trial court’s instruction tracked the statute with some elements

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removed because they were not alleged in the indictment or relevant to the evidence

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presented, such as touching and fondling, or causing someone else to engage in contact.
(See Doc. 22, Ex. W at 102-03, 107.)
Higgins has failed to explain how this accurate jury instruction prejudiced him.
There is no evidence of harm by the inclusion of indirect manipulation simply because

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there may not have been evidence to convict him on that ground. Critically, the court of

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appeals found there was sufficient evidence to support his conviction under the statute

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based on a direct manipulation. The state court’s denial of this claim was not objectively

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unreasonable.

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Claim 6

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Higgins argues appellate counsel was ineffective for failing to argue the lack of

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jurisdiction in light of the fact that Higgins had no “possession” of the images while in
Arizona.
Although appellate counsel did not frame a claim in terms of jurisdiction, she did
argue about the issue of possession during the time-frame alleged in the indictment. She

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argued there was insufficient evidence to establish that Higgins knowingly possessed

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child pornography because there was no evidence he had the knowledge to access deleted

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hidden images in 2007, particularly in light of the evidence that the laptop was broken

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and had no power cord. (Doc. 22, Ex. D at 17-18.) The court of appeals denied the claim

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finding there was sufficient evidence from which the jury could infer that Higgins knew

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the images were on his laptop during the 2007 time-frame alleged in the indictment.

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(Doc. 22, Ex. E at 8.)
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Because the appellate court found there was sufficient evidence to sustain

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Higgins’s convictions for possession of child pornography in 2007, a jurisdictional claim

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premised on the same argument would have failed. Therefore, appellate counsel was not

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deficient for failing to argue a meritless claim and Higgins was not prejudiced by her

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failure to raise it.
Claim 7
Higgins argues appellate counsel was ineffective for failing to argue that his

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sentences violated the Eighth Amendment. Higgins contends his sentences totaling 175

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years should have been challenged on severity in light of the fact that the images were

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“not catalogued nor located within any particular space or file on the hard drive, not

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accessed, modified, or viewed since 2005, and not downloaded by petitioner.” (Doc. 1-2

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at 42.) Further, Higgins’s expert testified that many of the images were likely the result of

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a virus.

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The PCR court ruled that an Eighth Amendment argument was futile in light of

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State v. Berger, 212 Ariz. 473, 134 P.3d 378 (2006). (Doc. 22, Ex. L at 4.) Therefore,

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counsel’s performance was not deficient and, because the appellate court would have

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denied such an argument, Higgins was not prejudiced. (Id.)

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In Berger, the defendant was convicted on twenty counts of sexual exploitation of

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a minor related to child pornography and sentenced to ten years per count, each to be

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served consecutively. 134 P.3d at 380, 212 Ariz. at 475. The Arizona Supreme Court

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stated that generally an Eighth Amendment analysis looks at the sentence for each crime
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not the fact that they were imposed consecutively or that the aggregate sentence is

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lengthy. Id. at 384, 212 Ariz. at 479. The court ultimately held that a ten-year sentence is

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not grossly disproportionate to knowingly possessing child pornography. Id. at 384, 212

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Ariz. at 479.

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Here, Higgins was convicted under the same statute as Berger, A.R.S. § 13-3553,

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and the judge sentenced him to a partly mitigated sentence of 12.5 years on each of 14

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counts. (Doc. 22, Ex. B at 3, 9-22.) The Arizona Court of Appeals has held that it is

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bound to follow Berger and could not grant relief on an Eighth Amendment claim

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involving seven consecutive 10-year sentences for possession of child pornography. See

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State v. McPherson, 269 P.3d 1181, 1186, 228 Ariz. 557, 562 (Ct. App. 2012). Because

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the appellate court would have denied an Eighth Amendment claim by Higgins in light of

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Berger, his counsel was not deficient for failing to raise the claim and Higgins was not

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prejudiced by the failure. See Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985)

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(“Failure to raise a meritless argument does not constitute ineffective assistance”). The

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state court’s denial of this claim was not objectively unreasonable.
Claim 8
Higgins argues trial and appellate counsel were ineffective for failing to challenge

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Counts 2, 3, and 4 as multiplicitous in violation of the Double Jeopardy Clause. Higgins

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contends he received multiple sentences for a single offense, which was a continuous act

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involving one victim. Count 2 was child molestation, and Counts 3 and 4 were sexual

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exploitation of a minor.
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The PCR court did not provide a substantive ruling on this claim, however, the

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court of appeals addressed it. The appellate court held that because there was no double

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jeopardy offense counsel was not deficient for failing to raise the claim and Higgins was

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not prejudiced.

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The double jeopardy clause protects against multiple punishments for the same

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offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). “Often a course of criminal conduct

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will entail the violation of several statutes. In those cases, if the statutes are not

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redundant, the prosecutor may charge the defendant with violating one or all of the

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statutes, and the defendant can be convicted of violating more than one statute.” United

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States v. Duncan, 693 F.2d 971, 975 (9th Cir. 1982). “The applicable rule is that, where

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the same act or transaction constitutes a violation of two distinct statutory provisions, the

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test to be applied to determine whether there are two offenses or only one, is whether

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each provision requires proof of a fact which the other does not.” Blockburger v. United

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States, 284 U.S. 299, 304 (1932). If each statute requires proof of an additional fact the

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charges are not multiplicitous. Morey v. Commonwealth, 108 Mass. 433, 434 (1871).
To gauge potential redundancy, the Court must look at the elements of each
statute. This Court relies upon the analysis conducted by the court of appeals, which set

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forth the distinct elements of each statute:
In this case, Higgins’s two convictions for sexual exploitation of his
daughter were based on one violation of A.R.S. § 13-3553(A)(1), which
prohibits “[r]ecording, filming, photographing, developing or duplicating
any visual depiction in which a minor is engaged in exploitive exhibition or
other sexual conduct,” and one violation of § 13-3553(A)(2), which
prohibits “[d]istributing, transporting, exhibiting, receiving, selling,
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purchasing, electronically transmitting, possessing or exchanging” such
visual depictions. . . . As we explained in State v. Paredes-Solano, 223
Ariz. 284, ¶¶ 15-16, 222 P.3d 900, 906 (App. 2009),

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The actions listed in [Section 13-3553,] subsection
(A)(1) cause harm to the child in the creation of the visual
images, while the acts in subsection (A)(2) harm the child
through the perpetuation of those images. Each subsection is
violated by distinctly different conduct causing different
kinds of harm to the child. The two subsections thus represent
more than merely different ways of committing a single
offense and, we conclude, create offenses that are separate
and distinct.

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Similarly, Higgins’s molestation conviction required proof of
entirely different conduct, specifically that he “intentionally or knowingly
engag[ed] in . . . sexual contact . . . with a child under fifteen years of age.”
1993 Ariz. Sess. Laws, ch. 255, § 29.
(Doc. 22, Ex. N at 5.)
As explained above, each of the three counts required distinct conduct that the
other counts did not. Count 2 required sexual contact, which Counts 3 and 4 did not.

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Count 3 required the creation or duplication of a visual depiction, which Counts 2 and 4

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did not. And, Count 4 required possession of a visual depiction, which Counts 2 and 3 did

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not. Thus, there was no violation of double jeopardy and counsel was not ineffective for

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failing to raise this claim. The state court’s denial of this claim was not objectively
unreasonable.
Claim 9

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Higgins argues the PCR improperly denied him an evidentiary hearing on his PCR

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petition. Petitioner can only raise claims in his federal habeas petition based on a

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violation of the United States Constitution or federal law. 28 U.S.C. § 2254(a). Claim 9
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does not assert a federal law violation, therefore, it is not cognizable before this Court.

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Further, alleged errors in the PCR process are not cognizable in a federal habeas corpus

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proceeding because they do not attack the lawfulness of Petitioner’s detention. See

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Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam) (finding allegations of

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error in state post-conviction review process non-cognizable); Gerlaugh v. Stewart, 129

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F.3d 1027, 1045 (9th Cir. 1997). Claim 9 is not cognizable.

9

CERTIFICATE OF APPEALABILITY

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Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, this Court

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must issue or deny a certificate of appealability (COA) at the time it issues a final order

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adverse to the applicant. A COA may issue only when the petitioner has made a

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substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This

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showing can be established by demonstrating that reasonable jurists could debate whether

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(or, for that matter, agree that) the petition should have been resolved in a different

18

manner or that the issues were adequate to deserve encouragement to proceed further.

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Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880,

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893 & n.4 (1983)). The Court finds that reasonable jurists could not debate that the merits

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of any claim should have been resolved differently. Therefore, a COA will not issue.

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Accordingly,

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IT IS ORDERED that the Petition for Writ of Habeas Corpus is DISMISSED.

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IT IS FURTHER ORDERED that the Clerk of Court should enter judgment and

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close this case.
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IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules Governing

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Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a

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certificate of appealability.

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Dated this 15th day of September, 2014.

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