Erickson v. Ryan et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION: It is Ordered that the 22 Report and Recommendation is accepted and adopted in full. It is further Ordered that the Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1 ) is deni ed, and this case is dismissed with prejudice. The Clerk of Court is directed to enter judgment accordingly and close this case. It is further Ordered that the Court declines to issue a certificate of appealability, because reasonable jurists would not find the Court's ruling debatable. Signed by Judge Rosemary Marquez on 9/13/2016. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jon Erickson,

No. CV-13-01102-TUC-RM
Petitioner,

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v.

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ORDER

Charles L Ryan, et al.,

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Respondents.

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On August 9, 2016, Magistrate Judge Bruce G. Macdonald issued a Report and

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Recommendation (Doc. 22) recommending that this Court deny Petitioner’s Petition

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Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1). On August 26, 2016,

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Petitioner filed an Objection (Doc. 24).1 The Court has reviewed Judge Macdonald’s

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Report and Recommendation, the parties’ briefs, Petitioner’s Objection, and the record.

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I.

Standard of Review

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A district judge must “make a de novo determination of those portions” of a

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magistrate judge’s “report or specified proposed findings or recommendations to which

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objection is made.” 28 U.S.C. § 636(b)(1). The advisory committee’s notes to Rule

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72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is

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filed, the court need only satisfy itself that there is no clear error on the face of the record

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Petitioner’s Objection was due within 14 days of service of Judge
Macdonald’s Report and Recommendation. Petitioner’s Objection is dated August 23,
2016. Attached as an Exhibit to the Objection is a copy of an Inmate Legal Mail Log
indicating Petitioner received a copy of Judge Macdonald’s Report and Recommendation
on August 13, 2016. The Court finds that Petitioner’s Objection is timely.

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in order to accept the recommendation” of a magistrate judge. Fed. R. Civ. P. 72(b)

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advisory committee’s note to 1983 addition; see also Johnson v. Zema Sys. Corp., 170

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F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the

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district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan,

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CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for

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clear error unobjected-to portions of Report and Recommendation). Accordingly, the

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Court will review de novo the portions of Judge Macdonald’s Report and

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Recommendation to which Petitioner objected, and the Court will review for clear error

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the portions of the Report and Recommendation to which Petitioner did not object.

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II.

Analysis

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In his Objection, Petitioner argues (A) that Judge Macdonald’s factual findings are

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objectively unreasonable because Judge Macdonald relied on the state courts’ view of the

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facts; (B) Petitioner’s appellate attorney rendered ineffective assistance by failing to

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federalize on direct appeal the claim that there was insufficient evidence to sustain a

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conviction of first-degree murder; (C) post-conviction counsel rendered ineffective

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assistance in failing to allege claims of ineffective assistance of trial and appellate

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counsel; (D) trial counsel rendered ineffective assistance in failing to assert a double

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jeopardy violation and in failing to raise various other issues.

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A.

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In reviewing a habeas application filed by a person in custody pursuant to the

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judgment of a state court, the Court is required to presume that the state court’s factual

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determinations are correct. 28 U.S.C. § 2254(e)(1). The habeas petitioner bears “the

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burden of rebutting the presumption of correctness by clear and convincing evidence.”

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Id.

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convincing evidence that the state court’s factual findings are incorrect. Accordingly, it

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was appropriate for Judge Macdonald to rely upon the state court’s factual findings.

Factual Findings

In the present case, Petitioner has not met his burden of presenting clear and

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B.

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Petitioner’s argument regarding ineffective assistance of appellate counsel relates

Ineffective Assistance of Appellate Counsel

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to Judge Macdonald’s analysis of Ground One of Petitioner’s § 2254 Petition. Judge

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Macdonald found that Ground One, asserting insufficient evidence to sustain a conviction

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of first-degree murder, was procedurally defaulted because Petitioner relied only on state

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law in presenting the claim to the state court. (Doc. 22 at 22-23.) In his opening brief on

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direct appeal to the Arizona Court of Appeals, Petitioner argued that there was

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insufficient evidence to sustain his conviction for first-degree murder, but he relied only

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on state law in making the argument and he did not clearly indicate that he was asserting

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a federal claim. (Doc. 11-2, Exh. I at ¶¶ 42-49.) Petitioner appears to concede that he did

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not fairly present his insufficient evidence claim in state court as a federal claim.

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However, Petitioner argues in his Objection that the procedural default of the claim

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should be excused pursuant to Martinez v. Ryan, 132 S. Ct. 1309 (2012).

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Under Martinez, ineffective assistance of counsel at initial-review collateral

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proceedings may establish cause to excuse a prisoner’s procedural default of claims of

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ineffective assistance of trial counsel. Id. at 1318. The Ninth Circuit has held that the

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standard for “cause” articulated in Martinez extends to cases in which the underlying

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alleged ineffective assistance is by appellate counsel rather than trial counsel. Nguyen v.

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Curry, 736 F.3d 1287, 1293 (9th Cir. 2013). To overcome a procedural default pursuant

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to Martinez, a prisoner must show (1) that post-conviction relief counsel was ineffective

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under the standard announced in Strickland v. Washington, 466 U.S. 668 (1984), (2) that

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the underlying ineffective assistance of counsel claim is substantial, and (3) prejudice.

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Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (citing Martinez, 132 S. Ct. at

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1321).

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Petitioner cannot rely on Martinez to excuse the procedural default of Ground One

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of his Petition, because the rule announced in Martinez is limited to underlying Sixth

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Amendment ineffective-assistance of counsel claims. See Pizzuto v. Ramirez, 783 F.3d

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1171, 1177 (9th Cir. 2015). Ground One of Petitioner’s § 2254 Petition does not raise a

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Sixth Amendment ineffective assistance of counsel claim. It raises a claim of insufficient

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evidence to sustain a conviction. Petitioner argues for the first time in his Objection that

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the procedural default of the insufficient evidence claim should be excused pursuant to

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Martinez, because effective appellate counsel would have federalized the claim in state

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court and thus prevented the procedural default. However, permitting any claims of error

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“to be considered ineffective assistance of counsel claims because an effective attorney

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would have prevented or remedied that purported error” would impermissibly expand

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Martinez to include all potential errors. Id. Martinez cannot be used to excuse the

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procedural default of Petitioner’s insufficient evidence claim.

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Even if Petitioner had raised a claim of ineffective assistance of appellate counsel

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in his § 2254 Petition, such a claim is unexhausted and procedurally defaulted, and

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Petitioner cannot establish cause to excuse the procedural default under Martinez. Even

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assuming that Petitioner’s appellate counsel’s performance was deficient, and that post-

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conviction counsel rendered ineffective assistance in failing to raise an ineffective

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assistance of appellate counsel claim, Petitioner cannot show prejudice. See Sexton, 679

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F.3d at 1159. To prevail on an ineffective assistance of counsel claim, a prisoner must

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show that his counsel rendered deficient performance and that the deficient performance

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prejudiced the prisoner. Porter v. McCollum, 558 U.S. 30, 38 (2009). To establish

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prejudice, the prisoner “must show that there is a reasonable probability that, but for

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counsel’s unprofessional errors, the result of the proceeding would have been different.”

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Strickland, 466 U.S. at 694. In the present case, there is no reasonable probability that

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the result of the proceedings would have been different if Petitioner’s appellate counsel

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had federalized his insufficiency of the evidence claim. Even if the claim had clearly

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been presented as a federal claim, the Arizona Court of Appeals would still reasonably

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have found sufficient evidence to sustain a conviction of first-degree murder.2 Because

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To establish a federal constitutional claim of insufficiency of the evidence to
support a state conviction, a prisoner must show that, viewing the evidence in the light
most favorable to the prosecution, no “rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). This standard is similar to the state-law standard applied by the Court of
Appeals. (See Doc. 11-1, Exh. A at 3.) Petitioner argues that he acted in self-defense
when he killed the victim, and that there was no evidence to sustain a finding of
premeditation. As the Court of Appeals noted, the evidence presented at Petitioner’s trial
showed that the victim sustained multiple stab wounds, including defensive wounds and
at least two wounds that would have caused a loss of consciousness. (Doc. 11-1, Exh. A
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Petitioner cannot show prejudice resulting from any deficient performance on the part of

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appellate counsel, Judge Macdonald correctly found that any underlying ineffective

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assistance of appellate counsel claim is not substantial. (See Doc. 22 at 24 n.10.)

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C.

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Petitioner objects to Judge Macdonald’s analysis of Ground Three of the § 2254

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Petition, which alleges ineffective assistance of post-conviction relief counsel. Judge

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Macdonald correctly rejected Ground Three, because there is no constitutional right to

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counsel in state post-conviction review proceedings, and accordingly ineffective

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assistance of post-conviction relief counsel is not a freestanding constitutional claim

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meriting habeas relief. See Detrich v. Ryan, 740 F.3d 1237, 1242 (9th Cir. 2013) (citing

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Coleman v. Thompson, 501 U.S. 722, 752-53 (1991)). Judge Macdonald appropriately

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considered Petitioner’s allegations of ineffective assistance of post-conviction relief

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counsel not as freestanding constitutional claims but rather in the context of whether

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Petitioner can show cause to excuse the procedural default of ineffective assistance of

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trial counsel claims pursuant to Martinez. (See, e.g., Doc. 22 at 32-36.)

Ineffective Assistance of Post-Conviction Relief Counsel

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D.

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Petitioner objects to Judge Macdonald’s analysis of Ground Eight of his § 2254

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Petition, which asserts that the state violated the Double Jeopardy clause by retrying him

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after his original conviction was vacated on account of an incomplete transcript of the

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original trial. Judge Macdonald correctly found that the procedural default of this claim

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cannot be excused under Martinez and that the claim is meritless.

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Double Jeopardy and Ineffective Assistance of Trial Counsel

As explained above, the rule announced in Martinez is limited to underlying Sixth
Amendment ineffective-assistance of counsel claims.

Pizzuto, 783 F.3d at 1177.

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at 4-5.) Petitioner himself sustained no injuries during the incident and later made
statements which could reasonably have been interpreted by the jury as showing
premeditation. (Id. at 5.) In light of the nature of the victim’s wounds, the time required
for completion of the assault on the victim, Petitioner’s lack of injuries, and Petitioner’s
statements, a rational trier of fact could have rejected Petitioner’s self-defense story and
instead concluded that Petitioner acted with premeditation.

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Petitioner does not raise an ineffective-assistance of trial or appellate counsel claim in

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Ground Eight. Even if Petitioner had raised a claim in his § 2254 Petition that trial

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counsel rendered ineffective assistance by failing to assert a Double Jeopardy violation,

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such a claim is unexhausted and procedurally defaulted, and the procedural default

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cannot be excused under Martinez because the ineffective-assistance claim is not

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substantial. Petitioner’s Double Jeopardy argument is meritless. “It has long been settled

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. . . that the Double Jeopardy Clause’s general prohibition against successive prosecutions

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does not prevent the government from retrying a defendant who succeeds in getting his

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first conviction set aside, through direct appeal or collateral attack, because of some error

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in the proceedings leading to the conviction.” Lockhart v. Nelson, 488 U.S. 33, 38

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(1988). Trial counsel did not render ineffective assistance by failing to raise a meritless

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issue, and post-conviction relief counsel did not render ineffective assistance in failing to

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raise an ineffective assistance of trial counsel claim on this ground.

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In the final two pages of his Objection, Petitioner makes various allegations of

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ineffective assistance of trial counsel. (See Doc. 24 at 6-7.) These allegations were not

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raised as claims in Petitioner’s § 2254 Petition, and they do not cast doubt on any aspect

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of Judge Macdonald’s Report and Recommendation.

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E.

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The Court has conducted a de novo review of the portions of Judge Macdonald’s

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Report and Recommendation to which Petitioner has objected. The Court agrees with the

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conclusions of the Report and Recommendation, and finds no merit in the arguments

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made in Petitioner’s Objection (Doc. 24). The Court has reviewed the unobjected-to

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portions of Judge Macdonald’s Report and Recommendation for clear error, and has

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found none.

Conclusion

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Accordingly,

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IT IS ORDERED that the Report and Recommendation (Doc. 22) is accepted

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and adopted in full.
IT IS FURTHER ORDERED that the Petition Under 28 U.S.C. § 2254 for a

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Writ of Habeas Corpus (Doc. 1) is denied, and this case is dismissed with prejudice.

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The Clerk of Court is directed to enter judgment accordingly and 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, the Court declines to issue a certificate of appealability, because

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reasonable jurists would not find the Court’s ruling debatable. See Slack v. McDaniel,

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529 U.S. 473, 484 (2000).

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Dated this 13th day of September, 2016.

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Honorable Rosemary Márquez
United States District Judge

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