Salazar v. Ryan et al

Filing 24

ORDER that Petitioner's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1 ) is DENIED. It is further Ordered that a certificate of appealability is DENIED, b ecause reasonable jurists would not find the Court's ruling debatable. It is further Ordered Petitioner's Motion to Vacate Conviction (Doc. 19 ) is DENIED. It is further Ordered Petitioner's Request for Copy of Docket and Statu s of Case (Doc. 22 ) is GRANTED in part and DENIED in part. The Clerk of the Court shall send a copy of the docket sheet in this case to Petitioner. It is further Ordered this matter is DISMISSED with prejudice. The Clerk of the Court shall enter judgment and close its file in this matter (see attached Order for complete details). Signed by Magistrate Judge Bruce G Macdonald on 8/25/2016.(MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Noa Salazar,

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No. CV-13-01542-TUC-BGM
Petitioner,
ORDER

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v.
Charles L. Ryan, et al.,

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Respondents.

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Currently pending before the Court is Petitioner Noa Salazar’s pro se Petition
Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-

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Death Penalty) (Doc. 1). Respondents have filed an Answer to Petition for Writ of

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Habeas Corpus (“Answer”) (Doc. 15) and Petitioner replied (Doc. 16). The Petition is

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ripe for adjudication.

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Also pending before the Court is Petitioner’s Motion to Vacate Conviction (Doc.

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19) and Petitioner’s Request for Copy of Docket and Status of Case (Doc. 22).

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...

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...
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I.

FACTUAL AND PROCEDURAL BACKGROUND

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The Arizona Court of Appeal stated the facts1 as follows:

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[W]itnesses observed Salazar as he parked his vehicle on the wrong
side of the road in a manner that impeded traffic, got out holding and
drinking an alcoholic beverage, and urinated in the bushes of a nearby
residence. Additional evidence established that, on the same day, Salazar
had an estimated AC of .271 within two hours of driving, his license
previously had been suspended and revoked, and he had been convicted of
three felony offenses committed within the preceding five years.

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Answer (Doc. 15), Ariz. Ct. of Appeals, Memorandum Decision 10/12/2010 (Exh. “J”) at

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2.

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On August 28, 2008, a jury found Petitioner guilty of Aggravated Driving Under

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the Influence While License is Suspended, Revoked or in Violation of a Restriction as

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alleged in Count One of the Indictment and guilty of Aggravated Driving With an

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Alcohol Concentration of 0.08 or More While License is Suspended or Revoked as

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alleged in Count Two of the Indictment. Answer (Doc. 15), Ariz. Superior Ct., Pima

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County, Case No. CR-20080843, Verdict Forms (Exh. “G”) at 1–2. On March 25, 2010,

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Petitioner was sentenced to two aggravated terms of twelve (12) years imprisonment with

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consecutive community supervision in accordance with A.R.S. § 13-603(I), to be served

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concurrently. Answer (Doc. 15), Ariz. Superior Ct., Pima County, Priors Trial/Sentence

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of Imprisonment Minute Entry 3/25/2010 (Exh. “H”) at 2–3.

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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).

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A.

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On July 12, 2010, counsel for Petitioner filed an Anders2 brief with the Arizona

Direct Appeal

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Court of Appeals.3 Answer (Doc. 15), Appellant’s Opening Br. 7/12/2010 (Exh. “I”).
On October 12, 2010, the Arizona Court of Appeals affirmed Petitioner’s conviction.
Answer (Doc. 15), Ariz. Ct. App. Memorandum Decision 10/12/2010 (Exh. “J”). The

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court of appeals concluded that “substantial evidence supported findings of all the

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elements necessary for Salazar’s convictions.” Id., Exh. “J” at 2 (citing A.R.S. §§ 28-

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1381(A)(1),(2); 28-1383(A)(1)). The court further held that “Salazar’s sentences were

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within the range authorized and were imposed in a lawful manner.” Id., Exh. “J” at 2

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(citing A.R.S. §§ 13-105(22)(c); 13-703(C),(J)). The appellate court certified that its

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“examination of the record pursuant to Anders, . . . found no reversible error and no

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arguable issue warranting further appellate review.” Id., Exh. “J” at 3.

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

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The Arizona Court of Appeals has described the procedure of filing an Anders brief as

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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
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).

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B.

Post-Conviction Relief Proceeding

On August 9, 2010, Petitioner filed his Notice of Post-Conviction Relief (“PCR”).

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Answer (Doc. 15), Not. of PCR 8/9/2010 (Exh. “K”). On December 7, 2010, counsel for
Petitioner filed a Petition for Post Conviction Relief. See Answer (Doc. 15), Pet. for PCR
12/7/2010 (Exh. “L”). Petitioner asserted ineffective assistance of trial counsel, alleging

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that counsel 1) failed to inform him of the trial date; and 2) failed to adequately

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investigate and present mitigating evidence at sentencing. See Answer (Doc. 15), Exh.

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“L” at 7, 10–14, 16–19. Petitioner further asserted that his Sixth Amendment right to be

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present at trial was violated. Id., Exh. “L” at 7, 14–16. Finally, Petitioner asserted that

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the trial court committed sentencing error based on its imposition of both aggravated and

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consecutive sentences. Id., Exh. “L” at 7, 20–24.

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On June 18, 2012, the Rule 32 court denied Petitioner’s petition. See Answer

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(Doc. 15), Ariz. Superior Ct., Pima County, Under Advisement Ruling 6/18/2012 (Exh.
“M”). Prior to denial of the petition, the Rule 32 Court held an evidentiary hearing. See
Answer (Doc. 15), Exh. “M” at 3; Rule 32 Evid. Hr’g Tr. Excerpts 3/2/2012 (Exh. “B”);

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Rule 32 Evid. Hr’g Tr. – Afternoon Session Excerpts 3/2/2012 (Exh. “C”). The Rule 32

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court declined to impose on an attorney “a duty to search for [a] client or cause an

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investigation as to the defendant’s whereabouts . . . where [no such duty] is stated in the

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[Ethical] Rule or Comment.” Answer (Doc. 15), Exh. “M” at 4. The court went on to

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note that even if there were such a duty, that duty would be extinguished or waived by a

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client who fails to comply with release conditions including contacting his attorney and

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providing contact information; a client’s failure to appear at hearings of which he had
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notice; a client’s whereabouts are unknown; or the court issues a warrant for defendant’s
arrest before the trial. Id., Exh. “M” at 5. The court found that “[t]he client was

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prejudiced by his own actions but not by the action or inaction of his attorney.” Id., Exh.
“M” at 5. As such, the Rule 32 court held that trial counsel was not ineffective.
The Rule 32 court also recognized Petitioner’s federal and state constitutional

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right to be present at trial. Id., Exh. “M” at 6. It found, however, that “[a] defendant may

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waive his right to be present at any proceeding by voluntarily absenting himself or herself

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from it.” Id., Exh. “M” at 6. The court further found that the Petitioner received court

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orders and acknowledged that his failure to appear could result in the court case and trial

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proceeding in his absence. Answer (Doc. 15), Exh. “M” at 6. In light of Petitioner’s

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failure to contact his attorney, provide his contact information to his attorney, or attend

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the Case Management Conference, the court found that Petitioner’s “conduct was a clear,

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if not express, intentional, voluntary and knowing waiver and rejection of his right to be
present at trial.” Id., Exh. “M” at 8.
The Rule 32 court also denied Petitioner’s ineffective assistance of counsel claim

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for an alleged failure to present additional mitigating evidence at trial. Id., Exh. “M” at 9.

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The Rule 32 court determined that this assertion of ineffectiveness arose “from an

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erroneous understanding of A.R.S. 13-603 L.” Id., Exh. “M” at 9. As such, the Rule 32

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found that “(a) counsel’s representation was not below an objective standard of

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reasonableness; and (b) that the Petitioner suffered no prejudice because the mitigating

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evidence, though important, does not outweigh the aggravating factors found by the court

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at sentencing.” Id., Exh. “M” at 9.
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Regarding any alleged sentencing error, the Rule 32 court noted that the “issue is
arguably precluded as a matter that should have been raised on appeal.” Answer (Doc.

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15), Exh. “M” at 10 (citing Ariz. R. Crim. P. 32.2(a)(1)). The court considered the merits
and held that “[t]he requirement that the sentence in this case run consecutive to the
Maricopa case was a conscious exercise of this court’s discretion . . . [not] from a default

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designation of consecutive sentences pursuant [to] Rule 26.13.” Id., Exh. “M” at 10.

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On September 5, 2012, Petitioner filed a Petition for Review to the Arizona Court

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of Appeals. Answer (Doc. 15), Pet. for Review to the Ariz. Ct. of Appeals 9/5/2012

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(Exh. “N”). Petitioner alleged that “trial counsel failed to advise Petitioner of his trial

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date, and did not conduct an adequate investigation into Petitioner’s whereabouts before

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trial in order to assure his presence at trial” in violation of Strickland,4 Arizona ethical

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rules, and the Due Process Clause. Answer (Doc. 15), Exh. “N” at 15–16. On January 9,

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2013, the Arizona Court of Appeals granted review, but denied relief. See Answer (Doc.
15), Ariz. Ct. of Appeals, Mem. Decision 1/9/2013 (Exh. “O”). The court of appeals
relied on Arizona law and gave the Rule 32 court’s factual findings deference. Id., Exh.

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“O” at 3. The appellate court recognized “an out-of-custody defendant’s duty to maintain

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contact with his or her attorney and to appear in court.” Id., Exh. “O” at 3 (citing State v.

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Muniz-Caudillo, 185 Ariz. 261, 262, 914 P.2d 1353, 1354 (Ct. App. 1996)).

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Accordingly, the court of appeals concluded that there was no error in the Rule 32 court’s

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findings “that counsel’s performance was not deficient and that Salazar’s right to be

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present at trial was not violated.” Id., Exh. “O” at 3. On July 23, 2013, the Arizona

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Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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Supreme Court denied review. Answer (Doc. 15), Ariz. Supreme Ct. Minute Entry
7/23/2013 (Exh. “P”) at 1.

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D.

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The Instant Habeas Proceeding

On October 28, 2013, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a
Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1).

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Petitioner claims two (2) grounds for relief. First, Petitioner argues that trial “counsel

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was prejudicially ineffective, violating the Constitutional Guarantee of reasonable

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competence and undivided loyalty by abandoning his client’s cause and join[ing] the

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Prosecution by advising, directing and representing to the Court to proceed with trial in

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his client’s absence when the Court offered counsel 4 hours to contact and produce his

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client before trial commenced.” Petition (Doc. 1) at 6. Second, Petitioner alleges that his

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“Due Process Rights were violated when he was unreasonably denied the right to be

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present for jury trial because of his lawyer’s intentional conduct to prejudice him by
refusing to even attempt to contact Salazar with notice that trial was commencing.” Id. at
7. On February 5, 2014, Respondents filed their Answer (Doc. 15). On February 13,

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2014, Petitioner replied (Doc. 16).

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II.

STANDARD OF REVIEW

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A. In General

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

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

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that he is in custody in violation of the Constitution or laws of treaties of the United
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States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus
by a person in state custody:

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shall not be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the claim – (1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.

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28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388,

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1398, 179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of

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

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

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comity, finality, and federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct.

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2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337,

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123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet

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

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court decisions be given the benefit of the doubt.” Pinholster, 563 U.S. at 181, 131 S.Ct.

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at 1398 (citations and internal quotation marks omitted).

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

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

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

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

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L.Ed.2d 348 (2013).

Federal courts reviewing a petition for habeas corpus must

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

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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

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unreasonable where a state court properly identifies the governing legal principles

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

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

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

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

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

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

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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

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

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

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

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

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

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

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As such, the

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

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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

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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

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

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

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

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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

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

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

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

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

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

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

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

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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

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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

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

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

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

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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,

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

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C. Procedural Default

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

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

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

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

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

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(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

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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

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

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

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

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

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

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

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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

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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

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

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

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

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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

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

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

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

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

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

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

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

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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).
- 14 -

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;

- 15 -

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 Erickson’s petition. See Answer (Doc. 15).

12
13
14

The Court has 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.

Ground One: Ineffective Assistance of Counsel

19

In his Petition (Doc. 1), Petitioner asserts a single claim for ineffective assistance

20

of counsel for “abandoning his client’s cause and joining the Prosecution by advising,

21
22

directing and representing to the Court to proceed with trial in his client’s absence.” See

23

Petition (Doc. 1). Petitioner’s Petition and its accompanying “Memorandum of Law” can

24

be read broadly to include additional grounds for ineffective assistance of counsel,

25

including: (1) counsel’s alleged failure to use a four (4) hour continuance to attempt to

26
27

contact Petitioner prior to trial; (2) counsel’s alleged failure to contact Petitioner

28

regarding the trial date; and (3) counsel allegedly “waiving” defendant’s appearance at

- 16 -

1
2

trial. Petition (Doc. 1) at 6, 13–16, 19–21. The Court will address each of these in turn.
1. Legal Standards

3
4
5
6

For cases which have been fairly presented to the State court, the Supreme Court
elucidated a two part test for determining whether a defendant could prevail on a claim of
ineffective assistance of counsel sufficient to overturn his conviction. See Strickland v.

7
8

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

9

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

10

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

11
12

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

13

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

14

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

15

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

16
17
18
19

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

20
21

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

22

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

23

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

24
25

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

26

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

27

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

28

(quoting Strickland, 466 at 686) (emphasis and alteration in original).
- 17 -

1
2

“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,

3
4
5
6

562 U.S. 86, 105, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (citations omitted).
Judging counsel’s performance must be made without the influence of hindsight. See
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. As such, “the defendant must overcome

7
8

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

9

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

10

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

11
12

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

13

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

14

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

15

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

16
17
18
19

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

20
21

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

22

466 U.S. at 689, 104 S.Ct. 2052). Accordingly, “[w]e apply the doubly deferential

23

standard to review the state court’s ‘last reasoned decision.’” Vega v. Ryan, 757 F.3d

24
25

960, 966 (9th Cir. 2014) (citations omitted). “By its terms § 2254(d) bars relitigation of

26

any claim ‘adjudicated on the merits’ in state court, subject only to the exceptions in

27

2254(d)(1) and (d)(2).” Harrington, 131 U.S. at 98, 131 S.Ct. at 784. As such, Petitioner

28

also bears the burden of showing that the state court applied Strickland to the facts of his
- 18 -

1
2

case in an objectively unreasonable manner. See Bell v. Cone, 535 U.S. 685, 698–99, 122
S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002); see also 28 U.S.C. § 2254(d).

3
4
5
6

Additionally, “[a]s a general matter, each ‘unrelated alleged instance [ ] of
counsel’s ineffectiveness’ is a separate claim for purposes of exhaustion.” Gulbrandson
v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d

7
8

1044, 1056 (9th Cir. 2005)) (alterations in original). This means “all operative facts to an

9

ineffective assistance claim must be presented to the state courts in order for a petitioner

10

to exhaust his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007).

11
12

This is “[b]ecause ineffective assistance claims are not fungible, but are instead highly

13

fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Id. As

14

such, “a petitioner who presented any ineffective assistance of counsel claim below

15

can[not] later add unrelated instances of counsel’s ineffectiveness to that claim.” Id.

16
17
18
19

(citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736,
788 (D. Ariz. 2008) (“Petitioner’s assertion of a claim of ineffective assistance of counsel
based on one set of facts, does not exhaust other claims of ineffective assistance based on

20
21
22
23
24
25

different facts”).
2. Allowing Trial to Proceed with Defendant in abstentia
Petitioner claims that his trial counsel was “prejudicially ineffective violating the
Constitutional Guarantee of reasonable competence and undivided loyalty by abandoning

26

his client’s cause and join[ing] the Prosecution by advising, directing, and representing to

27

the Court to proceed with trial in his client’s absence[,] when the Court offerred [sic]

28

counsel 4 hours to contact and produce his client before trial commenced.” Petition
- 19 -

1
2

(Doc. 1) at 6. Respondents assert that Petitioner’s “Claim 1 is fundamentally different
than Salazar’s ineffective assistance of counsel (“IAC”) claim in state court.” Answer

3
4
5
6

(Doc. 15) at 6. Respondents therefore argue that Claim 1 is procedurally defaulted. Id. at
7. The Court agrees with Respondents.
Petitioner raised ineffective assistance of trial counsel in his PCR petition. See

7
8

Answer (Doc. 15), Pet.’s Pet. for PCR 12/7/2010 (Exh. “L”). Petitioner alleged that

9

counsel 1) failed to inform him of the trial date; and 2) failed to adequately investigate

10

and present mitigating evidence at sentencing. See Answer (Doc. 15), Exh. “L” at 7, 10–

11
12

14, 16–19. Petitioner re-urged trial counsel’s alleged failure to inform him of the trial

13

date to the Arizona Court of Appeals. See Answer (Doc. 15), Pet. for Review to the Ariz.

14

Ct. of Appeals 9/5/2012 (Exh. “N”) at 15–16. Petitioner did not raise Ground One,

15

however, in either his direct appeal or PCR petitions. See Answer (Doc. 15), Appellant’s

16
17
18
19

Opening Br. 7/12/2010 (Exh. “I”); Answer (Doc. 15), Exh. “L”. Petitioner urges that he
presented the same “essential” claim to the state court. Reply (Doc. 16) at 9. Petitioner’s
Ground One allegation of counsel refusing to delay trial, is factually different from

20
21
22
23
24
25

Petitioner’s claim alleging counsel failed to inform him of the trial date. See Hemmerle
v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007).
As such, the Court finds that Petitioner’s Ground One is unexhausted and would
now be precluded. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; see also Baldwin v.

26

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

27

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

28

Accordingly, Petitioner’s claim is procedurally defaulted. Coleman v. Thompson, 501
- 20 -

1
2

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

3
4
5
6

present his claims in order to meet the exhaustion requirement would now find the claims
procedurally barred”).

Where a habeas petitioner’s claims have been procedurally

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

7
8

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

9

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

10

appellate proceeding barred federal habeas review unless petitioner demonstrated cause

11
12

and prejudice).

13

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

14

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

15

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

16
17
18
19

worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also
Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer

20
21

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

22

which to address the merits of his claims.”).

23

however, that “the cause and prejudice standard will be met in those cases where review

24
25

The Supreme Court has recognized,

of a state prisoner’s claim is necessary to correct ‘a fundamental miscarriage of justice.’”

26

Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting

27

Engle v. Isaac 456 U.S. 107, 135, 102 S.Ct. 1558, 1572-73, 71 L.Ed.2d 783 (1982)).

28

“The fundamental miscarriage of justice exception is available ‘only where the prisoner
- 21 -

1
2

supplements his constitutional claim with 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)

3
4
5
6

(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 innocence’ is not itself a constitutional
claim, but instead a gateway through which a habeas petitioner must pass to have his

7
8

otherwise barred constitutional claim considered on the merits.” Herrara, 506 U.S. at

9

404, 113 S.Ct. at 862. Further, in order to demonstrate a fundamental miscarriage of

10

justice, a habeas petitioner must “establish by clear and convincing evidence that but for

11
12
13
14
15

the constitutional error, no reasonable factfinder would have found [him] guilty of the
underlying offense.” 28 U.S.C. § 2254(e)(2)(B).
Petitioner asserts that he “would have testified on his own behalf at trial[.]”
Petition (Doc. 1) at 17. Petitioner further contends that his testimony would:

16
17
18
19
20
21
22
23
24
25

[E]stablish[] the fact that he actually drove safely; pulling the
vehicle over, parking it and exiting the vehicle, leaving it behind, no longer
under his actual or constructive control.
The facts are in the record and are undisputed. However, Salazar’s
testimony would have established evidence that Salazar disconnected
himself from the possibility of physical DUI when he realized that he was
impaired and should not drive. This would have established reasonable
doubt as to criminal intent.
Moreover the record also demonstrates over an hour of time lapsed
between when Salazar was observed leaving his vehicle and detained by
police.

27

If Salazar’s testimony included the consumption of any alcohol
subsequent to physically leaving his vehicle behind, this evidence would
also have established reasonable doubt as a matter of law.

28

Petition (Doc. 1) at 17–18. The evidence adduced at trial included eyewitness testimony

26

- 22 -

1
2

regarding Petitioner’s behavior as he parked and exited his vehicle. See Answer (Doc.
15), Ariz. Superior Ct., Case No. CR-20080843, Jury Trial Day Two Tr. 8/27/2008 (Exh.

3
4
5
6

“A”) at 8:6–29:19, 32:6–24, 42:6–45:6.

Eyewitnesses testified that Petitioner was

drinking an alcoholic beverage as he exited the vehicle and urinated on some bushes not
far from where he parked. Id., Exh. “A” at 8:6–29:19, 32:6–24, 42:6–45:6. The state

7
8

criminologist testified that Petitioner’s blood alcohol concentration (“BAC”) was 0.258

9

grams of ethanol per 100 milliliters of blood at the time his blood was drawn, and

10

extrapolated the concentration as 0.271 grams of ethanol per 100 milliliters of blood at

11
12

two hours after Petitioner parked his vehicle.

Id., Exh. “A” at 90:21–93:25.

The

13

criminologist further testified that assuming Petitioner did not consume any alcohol prior

14

to stopping his vehicle, he would have had to imbibe sixteen (16) drinks within one (1)

15

hour and five (5) minutes to have a 0.258 BAC. Id., Exh. “A” at 101:7–107:9. The jury

16
17
18
19

was instructed as to the crime of aggravated driving under the influence while license or
privilege to drive is suspended, revoked, or in violation of a restriction, as well as the
lesser included offense of driving while under the influence. Id., Exh. “A” at 143:5–

20
21

149:8.

22

Based on the weight of the evidence adduced at trial, Petitioner cannot “establish

23

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

24
25

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

28 U.S.C. §

26

2254(e)(2)(B). Therefore, Petitioner’s claim for ineffective assistance of counsel based

27

on an alleged failure to delay trial for four (4) hours cannot stand.

28

...
- 23 -

1
2

3. Using Four (4) Hour Continuance to Attempt Contact
Petitioner claims that his trial counsel was ineffective “by refusing the Court’s

3
4
5
6

offer of approximately 4 hours of time to notify Salazar the trial would start that
afternoon.” Petition (Doc. 1) at 13. Respondents assert that Petitioner failed to exhaust
this claim, because he did not present it to the Arizona courts. Answer (Doc. 15) at 7.

7
8

The Court agrees that this claim is unexhausted, and now procedurally defaulted.

9

Petitioner did not raise this claim in either his direct appeal or PCR petitions. See

10

Answer (Doc. 15), Appellant’s Opening Br. 7/12/2010 (Exh. “I”); Answer (Doc. 15),

11
12

Exh. “L;” see also Discussion Section IV.2.A., supra. As such, the claim is unexhausted

13

and would now be precluded. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; see also

14

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

15

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

16
17
18
19

court”).

Accordingly, Petitioner’s claim is procedurally defaulted.

Coleman v.

Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991)
(“petitioner failed to exhaust state remedies and the court to which the petitioner would

20
21

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

22

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

23

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

24
25

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

26

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

27

claims in state appellate proceeding barred federal habeas review unless petitioner

28

demonstrated cause and prejudice). Petitioner has not met his burden to show either
- 24 -

1
2

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

3
4
5
6

possibility of prejudice, but that they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions”) (emphasis in original)
(internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305

7
8

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

9

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

10

claims”); Discussion Section IV.2.A., supra (Petitioner cannot meet his burden regarding

11
12

actual innocence to excuse procedural default).

Therefore, Petitioner’s claim for

13

ineffective assistance of counsel based on an alleged failure to use a four (4) hour

14

continuance to attempt to contact Petitioner and inform him of the imminent start of trial

15

cannot stand. See Petition (Doc. 1) at 13–15.

16
17
18
19

4. Contact Regarding the Trial Date
Petitioner claims that his trial counsel was ineffective for not informing him of the
trial date. Petition (Doc. 1) at 15–16. Respondent asserts that Petitioner failed to exhaust

20
21
22
23
24
25

this claim, because he did not present it to the Arizona courts. Answer (Doc. 15) at 7.
The Court finds this claim exhausted and will reach the merits.
Petitioner raised this issue in his PCR Petition. Answer (Doc. 15), Pet. for PCR
(Exh. “L”) at 7, 10–14, 16–19. The Rule 32 court held an evidentiary hearing. See

26

Answer (Doc. 15), Ariz. Superior Ct., Pima County, Under Advisement Ruling 6/18/2012

27

(Exh. “M”) at 3; Rule 32 Evid. Hr’g Tr. Excerpts 3/2/2102 (Exh. “B”); Rule 32 Evid.

28

Hr’g Tr. – Afternoon Session Excerpts 3/2/2012 (Exh. “C”).
- 25 -

The Rule 32 court

1
2

acknowledged that “[t]o state a colorable claim of ineffective assistance of counsel, a
defendant must show both that counsel’s performance fell below objectively reasonable

3
4
5
6

standards and that this deficiency prejudiced the defendant.” Answer (Doc. 15), Exh.
“M” at 3 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). The Rule 32 court declined to impose on an attorney “a duty to search for [a]

7
8

client or cause an investigation as to the defendant’s whereabouts . . . where [no such

9

duty] is stated in the [Ethical] Rule or Comment.” Answer (Doc. 15), Exh. “M” at 4.

10

The court went on to note that even if there were such a duty, that duty would be

11
12

extinguished or waived by a client who fails to comply with release conditions including

13

contacting his attorney and providing contact information; a client’s failure to appear at

14

hearings of which he had notice; a client’s whereabouts are unknown; or the court issues

15

a warrant for defendant’s arrest before the trial. Id., Exh. “M” at 5. The Rule 32 court

16
17
18
19

found that Petitioner “called his attorney on or about March 31, 2008 and left a message
that he was going into rehab but gave no information as to the name or location of the
facility and gave an incorrect phone number[,] . . . [and] further knowingly deceived his

20
21

attorney by staying only one day at the rehab facility and did not call his attorney back to

22

inform him that he had left rehab.” Id., Exh. “M” at 7. The court further found that

23

“[t]he client was prejudiced by his own actions but not by the action or inaction of his

24
25
26
27
28

attorney.” Id., Exh. “M” at 5. As such, the Rule 32 court held that trial counsel was not
ineffective. See id., Exh. “M.”
Petitioner re-urged this claim in his Petition for Review to the Arizona Court of
Appeals. Answer (Doc. 15), Exh. “N.” Petitioner alleged that trial counsel “failed to
- 26 -

1
2

advise Petitioner of his trial date, and did not conduct an adequate investigation into
Petitioner’s whereabouts before trial in order to assure his presence at trial.” Id., Exh.

3
4
5
6

“N” at 15. The Arizona Court of Appeals recognized “an out-of-custody defendant’s
duty to maintain contact with his or her attorney and to appear in court.” Answer (Doc.
15), Ariz. Ct. of Appeals, Mem. Decision 1/9/2013 (Exh. “O”) at 3 (citing State v. Muniz-

7
8

Caudillo, 185 Ariz. 261, 262, 914 P.2d 1353, 1354 (Ct. App. 1996)). The appellate court

9

held that “[i]n view of that duty and under the circumstances presented here, viewing the

10

evidence at the hearing with deference to the trial court’s findings of fact, we cannot say

11
12
13
14
15

the court erred in concluding that counsel’s performance was not deficient and that
Salazar’s right to be present at trial was not violated.” Id., Exh. “O” at 3.
Here, after an evidentiary hearing during which Petitioner and his former counsel
both testified, the Rule 32 court found that Petitioner’s claim lacked merit. The court of

16
17
18
19

appeals affirmed this ruling recognizing the lower court’s role to resolve conflicts in the
evidence. “A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state

20
21

court’s decision.” Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 786, 178

22

L.Ed.2d 624 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140,

23

158 L.Ed.2d 938 (2004)). Moreover, “Section 2254(d) ‘gives federal habeas courts no

24
25

license to redetermine credibility of witnesses whose demeanor has been observed by the

26

state trial court.” Aiken v. Blodgett, 921 F.2d 214, 217 (9th Cir. 1990) (quoting Marshall

27

v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 851, 74 L.Ed.2d 646 (1983)). “Where

28

there are two permissible views of the evidence, a fact finder’s choice between them
- 27 -

1
2

cannot be clearly erroneous.” Cooper v. Brown, 510 F.3d 870, 919 (9th Cir. 2007) (citing
Amadeo v. Zant, 486 U.S. 214, 226, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988)). Petitioner

3
4
5
6

has failed to present any evidence to show that the Arizona court’s decision regarding his
ineffective assistance claim is contrary to or an unreasonable application of clearly
established Supreme Court law or based on an unreasonable determination of the facts.

7
8

As such, this Court finds that the Arizona courts did not unreasonably apply clearly

9

established Federal law or unreasonably determine the facts in light of the evidence

10

presented, and Petitioner cannot meet his burden to show prejudice. See Gulbrandson,

11
12

738 F.3d at 991.
5. Waiver of Defendant’s Appearance at Trial

13
14
15

Petitioner claims that his trial counsel was ineffective because he “had no legal
right to waive his client’s right to appear for trial[.]”

Petition (Doc. 1) at 20.

16
17
18
19

Respondents assert that Petitioner failed to exhaust this claim, because he did not present
it to the Arizona courts. Answer (Doc. 15) at 7. The Court agrees that this claim is
unexhausted, and now procedurally defaulted.

20
21

Petitioner did not raise this claim in either his direct appeal or PCR petitions. See

22

Answer (Doc. 15), Appellant’s Opening Br. 7/12/2010 (Exh. “I”); Answer (Doc. 15),

23

Exh. “L;” see also Discussion Section IV.2.A., supra. As such, the claim is unexhausted

24
25

and would now be precluded. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; see also

26

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

27

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

28

court”).

Accordingly, Petitioner’s claim is procedurally defaulted.
- 28 -

Coleman v.

1
2

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

3
4
5
6

be required to present his claims in order to meet the exhaustion requirement would now
find the claims procedurally barred”). Where a habeas petitioner’s claims have been
procedurally defaulted, the federal courts are prohibited from subsequent review unless

7
8

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

9

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

10

claims in state appellate proceeding barred federal habeas review unless petitioner

11
12

demonstrated cause and prejudice). Petitioner has not met his burden to show either

13

cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648,

14

91 L.Ed.2d 397 (1986) (Petitioner “must show not merely that the errors . . . created a

15

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

16
17
18
19

infecting his entire trial with error of constitutional dimensions”) (emphasis in original)
(internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305
(9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his

20
21

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

22

claims”); Discussion Section IV.2.A., supra (Petitioner cannot meet his burden regarding

23

actual innocence to excuse procedural default).

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25

ineffective assistance of counsel based on an alleged improper waiver of Petitioner’s

26

presence at trial cannot stand.

27

...

28

Therefore, Petitioner’s claim for

...
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1

B.

2

Due Process Violations

3

Ground Two: Due Process Violation Regarding Denial of
Petitioner’s Presence at Trial

4

Petitioner alleges that his “Due Process Rights were violated when he was

5

1.

unreasonably denied the right to be present for jury trial because of his lawyer’s

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7
8
9

ineffective conduct to prejudice him, by refusing to even attempt to contact Salazar with
notice that trial was commencing.” Petition (Doc. 1) at 7. Respondents assert that
“Salazar has not proved that the state PCR court decision [that he waived his right to be

10
11

present at trial] was contrary to, or based on an unreasonable application of, clearly

12

established federal law, or based on an unreasonable determination of the facts.” Answer

13

(Doc. 15) at 17.

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15

Petitioner initially asserted this claim in his PCR petition. See Answer (Doc. 15),

16

Pet. for PCR 12/7/2010 (Exh. “L”) at 7, 14–16. The Rule 32 court made the following

17

findings of fact relevant to Petitioner’s allegation of a Due Process violation:

18

A.

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On February 16, 2008 the Petitioner was arrested, and an Interim
Complaint was filed charging him with one count of Aggravated
Driving with an Alcohol Concentration of 0.08 or More while
License is Suspended. He was released on a cash bond in the
amount of $1, 100
The Bail Bond and Release Agreement dated February 16, 2008
provides an address of 1504 North 176th Lane, Surprise, Arizona
85388. Mail sent by the court to that address was returned because
the address as written was incorrect. The Financial Affidavit . . .
filed with the court and dated March 13, 2008 shows an address of
15048 North 176th Lane, Surprise, Arizona 85388

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25
26
27

B.

Between February 16 and March 31, 2008 the Petitioner did not
reside at the Surprise, Arizona address

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- 30 -

1

C.

2

The Petitioner was indicted on March 06, 2008; and arraigned on
March 13, 2008. At the arraignment, at which the Petitioner was
present, the following occurred:

3
1.

5

The court appointed Attorney Paul Bates to represent the
Petitioner

2.

4

The Petitioner received oral notification of the following:

6
a. That his failure to appear for trial could result in the trial
proceeding in his absence.

7
8

b. That he shall provide current address and current
telephone number to his defense attorney within 48 hours

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10

c. That he shall meet with defense counsel within 35 days

11

d. That his failure to contact and meet with defense counsel
could result in Defendant’s revocation of release.

12
13

3.

14

The Petitioner received written notification of the following:

15

a. The next court date was a Case Management Conference
set for April 30, 2008 at 9:00 a.m.

16

b. That he must contact defense counsel within seven days

17

c. Mr. Bates’ telephone number

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19

D.

The Petitioner testified that on March 31, 2008 he checked into a
Rehabilitation Center run by the Salvation Army, and spent one day
at the center. The Petitioner left a message on Paul Bates’
voicemail. The Petitioner testified he provided an address and stated
that the center was run by the Salvation Army. Mr. Bates called the
number back and the number was unavailable. The court finds the
testimony of Mr. Bates to be credible.

E.

The Petitioner did not appear at the Case Management Conference
on April 30, 2008. A warrant was issued for his arrest on that date.
Bond was forfeited on June 17, 2008

F.

Between May 01 and June 11, 2008 the Petitioner resided at the
Crossroads Rehabilitation facility. This was not a locked facility,
and the Petitioner could and did leave regularly

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21
22
23
24
25
26
27
28

- 31 -

1

G.

A Pretrial Conference was held on May 27, 2008. The Petitioner
was not present. Trial was set for August 26, 2008

H.

The case proceeded to trial on August 26, 2008. The Petitioner was
tried in abstentia, and convicted on both counts alleged in the
indictment. On August 28, 2008; this court amended the warrant
issued on April 30, 2008 to include entry in the National Crime
Information Center’s database

I.

August/September [20]08, [t]he Petitioner moved from his
Surprise[,] Arizona address, and resided with Katie Madden

J.

On September 28, 2008, Defendant was arrested on the warrant in
Maricopa County, and was released on a $3,600 bond with the
condition that he appear before this court on October 01, 2008. The
Petitioner did not appear. An NCIC (No-Bond) warrant was issued
by this court on October 10, 2008

K.

In October, 2008 the Petitioner contacted Paul Bates by phone and
learned of his conviction. There was no further contact until 2010

L.

The Petitioner was arrested on September 27, 2009 in Maricopa
County and released on a $5,400 bond, upon condition that he
appear before this court on October 1, 2009. The Petitioner did not
appear.

M.

On January 26, 2010, the State – upon learning that the Petitioner
was serving a sentence at the Department of Corrections – filed a
Petition for a writ of Habeas Corpus to have the Petitioner brought
before this court for a priors trial and sentencing

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3
4
5
6
7
8
9
10
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12
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14
15
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19
20

Answer (Doc. 15), Ariz. Superior Ct., Pima County, Findings of Fact 3/19/2012 (Exh.

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22

“M”) at 1–3 (emphasis in original). The Rule 32 court also recognized Petitioner’s

23

federal and state constitutional right to be present at trial. Answer (Doc. 15), Ariz.

24

Superior Ct., Pima County, Under Advisement Ruling 6/18/2012 (Exh. “M”) at 6. It

25
26

found, however, that “[a] defendant may waive his right to be present at any proceeding

27

by voluntarily absenting himself or herself from it.” Id. The Rule 32 court further found

28

that Petitioner received court orders and acknowledged that his failure to appear could

- 32 -

1
2

result in the court case and trial proceeding in his absence. Id. The Rule 32 court
determined that “[i]mplicit within the Petitioner’s conduct is a deliberate and conscious

3
4
5
6

waiver of not just his right to be present at trial but of all other meaningful participation
in the criminal justice process.” Id. The Rule 32 court found that “[i]n addition to the
failures to contact his attorney, provide contact information to his attorney and attend the

7
8

Case Management Conference . . . the Petitioner employed several misdirections and

9

deceptions[.]” Answer (Doc. 15), Ariz. Superior Ct., Pima County, Under Advisement

10

Ruling 6/18/2012 (Exh. “M”) at 6–7. The Rule 32 court further found Petitioner not

11
12

credible and held that “[h]is conduct was a clear, if not express, intentional, voluntary and

13

knowing waiver and rejection of his right to be present at trial.” Id. Ariz. Superior Ct.,

14

Pima County, Under Advisement Ruling 6/18/2012 (Exh. “M”) at 8.

15

Petitioner re-urged his claim to the Arizona Court of Appeals. See Answer (Doc.

16
17
18
19

15), Pet. for Review to the Ariz. Ct. of Appeals 9/5/2012 (Exh. “N”). The court of
appeals relied on Arizona law and gave the Rule 32 court’s factual findings deference.
Answer (Doc. 15), Ariz. Ct. of Appeals, Mem. Decision 1/9/2013 (Exh. “O”). The

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21

Arizona Court of Appeals recognized “an out-of-custody defendant’s duty to maintain

22

contact with his or her attorney and to appear in court.” Id., Exh. “O” at 3 (citing State v.

23

Muniz-Caudillo, 185 Ariz. 261, 262, 914 P.2d 1353, 1354 (Ct. App. 1996)).

24
25

The

appellate court held that “[i]n view of that duty and under the circumstances presented

26

here, viewing the evidence at the hearing with deference to the trial court’s findings of

27

fact, we cannot say the court erred in concluding that counsel’s performance was not

28

- 33 -

1
2

deficient and that Salazar’s right to be present at trial was not violated.” Id., Exh. “O” at
3.

3
4
5
6

The Confrontation Clause of the Sixth Amendment to the United States
Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him[.]” U.S. CONST. amend. VI.

7
8

“One of the most basic of the rights guaranteed by the Confrontation Clause is the

9

accused’s right to be present in the courtroom at every stage of his trial.” Illinois v. Allen,

10

397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970) (citing Lewis v. United

11
12

States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892)). This right, however, may be

13

waived. Allen, 397 U.S. at 342–43, 90 S.Ct. at 1060 (“No doubt the privilege (of

14

personally confronting witnesses) may be lost by consent”). As such, “[a] court is not

15

precluded from holding a trial if the defendant voluntarily waives his presence before the

16
17
18
19

trial commences.” Brewer v. Raines, 670 F.2d 117, 119 (9th Cir. 1982).
Here, Petitioner received written notice of the Case Management conference set
for April 30, 2008 at 9:00 a.m., yet chose not to appear. Moreover, his sole attempt to

20
21

contact his attorney provided counsel with an incorrect telephone number for a facility

22

that Petitioner was only at one day. As the Rule 32 court noted, “Petitioner does not

23

claim that he was physically prevented from attending his trial or was otherwise unable to

24
25

be present in court on the days trial was held[;] [h]e asserts that the only reason he was

26

not in attendance is that his attorney did not inform him of the trial date.” Answer (Doc.

27

15), Exh. “M” at 6. Therefore, Petitioner’s failure to know his trial date “is directly

28

attributable to his failure to keep in contact with the court and his attorney.” Brewer, 670
- 34 -

1
2

F.2d at 119. “A defendant cannot be allowed to keep himself deliberately ignorant and
then complain about his lack of knowledge.” Id. This Court finds that the Arizona courts

3
4
5
6

did not unreasonably apply clearly established Federal law or unreasonably determine the
facts in light of the evidence presented, and Petitioner cannot meet his burden to show
prejudice. See Gulbrandson, 738 F.3d at 991.

7
2.

8

Defense Counsel “Switching” Sides

9

Broadly construed, Petitioner’s Memorandum of Law alleges a due process

10

violation because defense counsel “participate[d] in the prosecution of [Petitioner][.]”

11
12
13
14
15

Petition (Doc. 1) at 22.

Respondents assert that this claim has been procedurally

defaulted, and the Court agrees.
Petitioner did not raise this claim in either his direct appeal or PCR petitions. See
Answer (Doc. 15), Appellant’s Opening Br. 7/12/2010 (Exh. “I”); Answer (Doc. 15),

16
17
18
19

Exh. “L;” see also Discussion Section IV.2.A., supra. As such, the claim is unexhausted
and would now be precluded. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; see also
Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order

20
21

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

22

court”).

23

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

24
25

Accordingly, Petitioner’s claim is procedurally defaulted.

Coleman v.

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

26

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

27

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

28

procedurally defaulted, the federal courts are prohibited from subsequent review unless
- 35 -

1
2

the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S.
288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise

3
4
5
6

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 prejudice. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648,

7
8

91 L.Ed.2d 397 (1986) (Petitioner “must show not merely that the errors . . . created a

9

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

10

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

11
12

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

13

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

14

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

15

claims”); Discussion Section IV.2.A., supra (Petitioner cannot meet his burden regarding

16
17
18

actual innocence to excuse procedural default). Therefore, Petitioner’s Due Process
claim alleging defense counsel “switched” sides cannot stand.

19
20
21

V.

In light of the foregoing, Petitioner’s Motion to Vacate Conviction (Doc. 19) is

22
23

MOTION TO VACATE

DENIED.

24
25
26
27
28

VI.

MOTION FOR STATUS UPDATE
To the extent Petitioner requests a copy of the docket sheet, Petitioner’s motion

(Doc. 22) will be granted. It will be denied as to any other request for relief.
- 36 -

1
2

VII.

CONCLUSION

3
4
5
6

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

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8
9
10
11
12
13
14
15

2) A certificate of appealability is DENIED, because reasonable jurists would not
find the Court’s ruling debatable. See 28 U.S.C. § 2253;
3) Petitioner’s Motion to Vacate Conviction (Doc. 19) is DENIED;
4) Petitioner’s Request for Copy of Docket and Status of Case (Doc. 22) is
GRANTED in part and DENIED in part;
5) The Clerk of the Court shall send a copy of the docket sheet in this case to
Petitioner;

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17
18
19

6) This matter is DISMISSED with prejudice; and
7) The Clerk of the Court shall enter judgment and close its file in this matter.
Dated this 25th day of August, 2016.

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22
23

Honorable Bruce G. Macdonald
United States Magistrate Judge

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