Rimer #189871 v. Ryan et al
Filing
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REPORT AND RECOMMENDATION: the Magistrate Judge recommends that the District Judge enter an order denying 1 Petition for Writ of Habeas Corpus (State/2254) filed by Ignacio Esteban Rimer. Any party may serve and file written objections within 1 4 days after being served with a copy of this Report and Recommendation. A party may respond to another partys objections within 14 days after being served with a copy. If objections are filed, the parties should use the following case number: CV-14-01930-TUC-RCC. Signed by Magistrate Judge Bruce G Macdonald on 2/3/2017. (BAR) Modified on 2/3/2017 to add WO (BAR).
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Ignacio Esteban Rimer,
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Petitioner,
REPORT AND RECOMMENDATION
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No. CV-14-01930-TUC-RCC (BGM)
v.
Charles L. Ryan, et al.,
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Respondents.
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Currently pending before the Court is Petitioner Ignacio Esteban Rimer’s pro se
Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State
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Custody (Non-Death Penalty) (Doc. 1). Respondents have filed an Answer to Petition for
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Writ of Habeas Corpus (“Answer”) (Doc. 16). Petitioner did not file a Reply. The
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Petition is ripe for adjudication.
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Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,1 this matter
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was referred to Magistrate Judge Macdonald for Report and Recommendation. The
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Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).
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Rules of Practice of the United States District Court for the District of Arizona.
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I.
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FACTUAL AND PROCEDURAL BACKGROUND
The Arizona Court of Appeal stated the facts2 as follows:
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At trial, the state presented evidence that Rimer and his half-brother,
codefendant
Howard
McMonigal,
conducted
an
on-going
methamphetamine and stolen-property business out of McMonigal’s
residence. The two utilized a number of women to assist in conducting the
business, and when they did not perform as ordered, the women were
punished in various ways, including rape. After their arrest, Rimer and
McMonigal were charged with illegally conducting an enterprise as well as
various counts of kidnapping, sexual assault, and aggravated assault.
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Answer (Doc. 16), Ariz. Ct. of Appeals, Memorandum Decision 1/7/2011 (Exh. “A”) at
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1–2.
The Arizona Court of Appeal further noted:
After a jury trial, appellant Ignacio Rimer was convicted of one
count of illegally conducting an enterprise, one count of kidnapping, one
count of sexual assault, and one count of aggravated assault. The trial court
sentenced him to a combination of concurrent and consecutive prison terms
totaling 23.75 years.
Id. at 1–2.
A. Direct Appeal
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On April 1, 2010, Petitioner filed his Opening Brief with the Arizona Court of
Appeals. Answer (Doc. 16), Appellant’s Opening Br. 4/1/2010 (Exh. “B”). Petitioner
presented the issues on appeal as follows:
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(1) Whether the court committed reversible error in denying Appellant’s
Motion to Sever/Motion to Disqualify.
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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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(2) Whether the evidence was insufficient to sustain a guilty verdict as to
Count One.
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(3) Whether the court committed reversible error in denying Appellant’s
Motion for New Trial.
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Id., Exh. “B” at 39.
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1. Motion to Sever/Motion to Disqualify
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Relying on the Arizona Rules of Criminal Procedure and Arizona state law,
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Petitioner argued that because “an allegation that [M.K. and W.H.] were co-conspirators
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on some counts and that [M.K.] was a victim in other counts [made the relationship
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between the alleged victim and the prosecutor] so severe as to deprive Appellant of
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fundamental fairness in a manner shocking to the universal sense of justice.” Answer
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(Doc. 16), Appellant’s Opening Br. 4/1/2010 (Exh. “B”) at 44. In light of this, Petitioner
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further asserted that disqualification of the Pima County Attorney’s Office was required.
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Id.
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Petitioner also argued that “telephone calls from [Petitioner’s co-defendant]
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McMonigal in which he made incriminating statements about Appellant and otherwise
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linked Appellant to McMonigal’s alleged efforts to tamper with witnesses . . . deprived
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Appellant of his right to confront and cross-examine.” Id., Exh. “B” at 45. Petitioner
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asserted that “[e]vidence for the charges in which McMonigal was charged alone clearly
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spilled over onto the charges involving [M.K.] because the types of criminal activity and
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modus operandi was repeated over and over by each of the female witnesses . . . ma[king]
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it more believable that the offenses occurred as [M.K.] described them when the jury had
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already heard testimony of [J.F.], [W.H.], and [L.K.].” Id. Petitioner further asserted that
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“[n]one of these witnesses would have testified against Appellant had he been on trial
alone for the offenses involving [M.K.]”. Petitioner also alleged that “counsel for the co-
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defendant raised certain matters which resulted in the admission of evidence that would
not otherwise have been admitted.” Id., Exh. “B” at 46. Finally, Petitioner asserted that
witness L.K. and his co-defendant McMonigal winked and exchanged smiles during
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L.K.’s testimony which occurred to his detriment. Answer (Doc. 16), Exh. “B” at 46–47.
2. Insufficient Evidence as to Count One
Petitioner also alleged that although “[t]he evidence of guilt as to all chargers was
overwhelming with respect to Howard McMonigal[,] . . . there was very little evidence to
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establish Appellant’s guilt as to any of the charges related to him.” Answer (Doc. 16),
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Exh. “B” at 48. Petitioner argued that “for the vast majority of the time that Howard
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McMonigal was conducting his illegal enterprise, Appellant wasn’t there.” Id., Exh. “B”
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at 49. Petitioner asserted that DNA on the handle of a gun found in one of the stolen
vehicles on McMonigal’s property was linked to Petitioner, but not conclusively. Id.,
Exh. “B” at 50. Petitioner argued that “[t]his paltry bit of evidence [was] entirely
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insufficient to connect Appellant with the criminal enterprise conducted by his half-
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brother Howard McMonigal[,] . . . [and] the rub-off effect of McMonigal’s extensive
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criminal activity and the fact that Appellant was related to him by blood no doubt
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resulted in the jury’s conviction.” Id. Petitioner’s claims were based on Arizona state
law. Id., Exh. “B” at 47–50.
3. Denial of Motion for New Trial
Petitioner asserted that “the prosecutor argued facts not in evidence as it related to
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the barred window.” Answer (Doc. 16), Exh. “B” at 55. Petitioner argued that the
prosecutor “waited until his rebuttal closing argument to present his expert opinion that
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the photographs showed tampering.”
Id., Exh. “B” at 56 (emphasis in original).
Petitioner further argued that the prosecutor’s “conclusions about the bars went far
beyond a ‘reasonable inference.’” Id., Exh. “B” at 56–57. As such, Petitioner asserted
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that “[b]ecause Appellant was denied his constitutional right to a fair trial by virtue of
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prosecutorial misconduct[,]” he was entitled to a new trial. Id., Exh. “B” at 58. Although
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Petitioner made passing reference to his right to due process and a fair trial, he relied
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solely on state law in his argument. See id., Exh. “B” at 54–58.
4. Court of Appeals Decision and Subsequent Review
On January 7, 2011, the Arizona Court of Appeals affirmed Petitioner’s
convictions and sentences. Answer (Doc. 16), Ariz. Ct. App. Memorandum Decision
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1/7/2011 (Exh. “A”). The court of appeals held that Petitioner “ha[d] failed to offer any
apposite or persuasive authority demonstrating the trial court abused its discretion in
denying his motion to disqualify the county attorney’s office from prosecuting his case
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based on W.H.’s and M.K.’s status as both victims and co-conspirators.” Id., Exh. “A” at
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3. The court further noted that “[n]either the statutes granting rights to victims nor the
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cases upon which Rimer relies support his position and, to the extent they are applicable
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here, they instead inform a contrary conclusion.” Id. The court also recognized that “the
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trial court instructed the jury to consider the evidence as to the charges against each
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defendant separately.” Id., Exh. “A” at 7. As such, the court further held that “Because
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the jury was so instructed, it ‘is presumed to have considered the evidence against each
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defendant separately in finding both guilty[,]’ . . . and Rimer has failed to demonstrate the
court abused its discretion in denying his motion to sever his trial from McMonigal’s.”
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Id., Exh. “A” at 7 (citing State v. Murray, 184 Ariz. 9, 25, 906 P.2d 542, 558 (1995)).
The appellate court also noted that Petitioner waived his argument regarding severance of
Count One by failing to renew his motion to sever during trial. Answer (Doc. 16), Ariz.
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Ct. App. Memorandum Decision 1/7/2011 (Exh. “A”) at 5 n.2. The appellate further
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found Petitioner waived his argument regarding the introduction of telephone calls made
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by McMonigal depriving Petitioner of his right to confront and cross-examine because he
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failed to cite the record supporting such an argument or develop it adequately on appeal.
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Id., Exh. “A” at 6 n.3. Regarding sufficiency of the evidence, the court of appeals held
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that “[t]he record reflects that substantial evidence was presented at trial to support
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Rimer’s conviction.” Id., Exh. “A” at 8. This holding applied to all of the counts for
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which Petitioner was found guilty, including illegally conducting an enterprise. Id., Exh.
“A” at 8–10. Finally, the court of appeals found that “by failing to object at trial and
instead of raising th[e] issue [of the prosecutor arguing facts not in evidence] . . . for the
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first time in a motion for a new trial, Rimer ha[d] waived this issue for all but
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fundamental error.” Id., Exh. “A” at 10. As such, the court held that “because Rimer
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ha[d] failed to argue that the alleged error here was fundamental, and because we find no
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error that can be so characterized, the argument is waived.” Answer (Doc. 16), Ariz. Ct.
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App. Memorandum Decision 1/7/2011 (Exh. “A”) at 11. The appellate court relied only
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on state court law and procedural rules throughout its decision. See Answer (Doc. 16),
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Exh. “A.”
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Petitioner did not seek review with the Arizona Supreme Court.
B. First Post-Conviction Relief Proceeding
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On January 21, 2011, Petitioner filed his Notice of Post-Conviction Relief
(“PCR”). Answer (Doc. 16), Not. of PCR 1/21/2011 (Exh. “E”). On June 8, 2011,
counsel for Petitioner filed a Rule 32 Montgomery Notice; Motion for Extension of Time
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to File pro se Brief; Motion to Withdraw. See Answer (Doc. 16), Rule 32 Montgomery
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Notice (Exh. “F”). Pursuant to Montgomery v. Sheldon (I),3 counsel stated that there
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were no issues to appropriate for Rule 32 relief.4 Id., Exh. “F” at 1. On November 14,
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2011, Petitioner filed his pro se Petition for Post-Conviction Relief. See Answer (Doc.
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16), Pet.’s pro se Pet. for PCR (Exh. “G”). By checking the boxes, Petitioner broadly
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asserted the following grounds for relief: 1) “[t]he denial of the constitutional right to
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representation by a competent lawyer at ever critical stage of the proceeding”; 2) “[t]he
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unconstitutional use by the state of perjured testimony”; 3) “[t]he abridgement of any
other right guaranteed by the constitution or the laws of this state, or the constitution of
the United States, including a right that was not recognized as existing at the time of the
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trial if retrospective application of that right is required”; and 4) “[t]he lack of jurisdiction
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Montgomery v. Sheldon (I), 181 Ariz. 256, 889 P.2d 614 (1995).
The Arizona Supreme Court has held that in Rule 32 proceedings, where counsel
concludes that the proceeding has no merit, “a pleading defendant has a right under Ariz. Const.
art. 2 § 24 to file a pro se PCR petition.” Montgomery (I), 181 Ariz. at 260, 889 P.2d at 618.
Subsequently, the Arizona Supreme Court affirmed this rule and reiterated:
If, after conscientiously searching the record for error, appointed counsel in a
PCR proceeding finds no tenable issue and cannot proceed, the defendant is
entitled to file a pro se PCR.
State v. Smith, 184 Ariz. 456, 459, 910 P.2d 1, 4 (1996).
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of the court which entered the conviction or sentence.” Id., Exh. “G” at 2.
Petitioner first alleged that his constitutional rights were abridged, because he was
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not informed of the nature of the charges against him. Id., Exh. “G” at 7.5 Petitioner
asserted that “the State argued, and presented, alleged evidence of conspiracy as defined
in A.R.S. § 13-1003, and not the elements of racketeering pursuant to § 13-2312, and thus
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violated Mr. Rimer’s right to be notified of the nature and cause of the accusations.” Id.,
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Exh. “G” at 10–12 (citing State v. Neese, 126 Ariz. 499, 504, 616 P.2d 959, 964 (Ct. App.
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1980)). Petitioner states that he was “charged, along with Howard Ned McMonigal, III
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with the Arizona RICO statute in violation of A.R.S. §13-2312 in Count One.” Id., Exh.
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“G” at 8. Petitioner goes on to assert that through the jury instruction regarding this
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count, “the judge took away the basic elements that must be proven to sustain the
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conviction under A.R.S. §13-2312(B).” Id., Exh. “G” at 9. Petitioner also argued that
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“[t]he state [sic] cannot circumvent the basic rules of law that requires [sic] the state to
prove every element of every alleged offense ‘beyond a reasonable doubt.’” Answer
(Doc. 16), Exh. “G” at 10 (citing State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995).
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Petitioner asserted that “[a]bsent these essential elements a conviction cannot stand and
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due process has been violated[,] [a]s it is required that a predicate felony conviction of
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racketeering be proven as to each defendant, the record is absent any prior racketeering
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conviction as to each named individual within Count One.”
Id., Exh. “G” at 10.
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Because Exhibit “G” was inconsistently hand numbered when Petitioner
originally drafted it, the Court relies on the CM/ECF docket page numbers for its
pinpoint citations within this exhibit.
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Petitioner noted that his trial counsel “joined in the argument of Mr. Rimer’s codefendant Mr. McMonigal’s defense attorney . . . that all of the other counts within the
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charging indictment are insufficient to prove any predicate felony convictions of
racketeering.” Id., Exh. “G” at 7. Petitioner further argued that “[t]he state [sic] did not
prove the existance [sic] of an enterprise nor able to provide any evidence of a decision-
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making structure, and organized structure designed to maintain the purported enterprise[;]
[t]he state [sic] presented conclusory allegations that a RICO enterprise existed.” Id.,
Exh. “G” at 15.
Petitioner also alleged that M.K. “committed unsworn falsification in the pretrial
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context, and perjury during her trial testimony.” Id., Exh. “G” at 18. After a review of
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M.K.’s statements, Petitioner asserted that “[w]ithin this case at bar, [M.K.] committed
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perjury and unsworn falsification by stating that the alleged crimes committed against her
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by Ignacio Rimer actually took place.” Id., Exh. “G” at 21. Petitioner further asserted
that “[t]hese perjurious statements prejudiced Mr. Rimer and violated the 6th Amendment
U.S. Const., Ariz. Const. Art. 2 § 24, respectively, and the constitutional safeguards to
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the right of due process.” Answer (Doc. 16), Exh. “G” at 22.
Petitioner also alleged that “trial counsel . . . was so ineffective that it prejudiced
Mr. Rimer.”
Id., Exh. “G” at 24.
Petitioner alleged that trial counsel “failed to
adequately research the Arizona RICO statute (A.R.S. § 13-2312) for the basic
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understanding in dealing with this alleged offense to provide a meaningful defense.” Id.,
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Exh. “G” at 25. Petitioner speculated that “[i]f proper representation had been provided
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to Mr. Rimer . . . then a conviction would not have been rendered.” Id., Exh. “G” at 25.
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Petitioner asserted that “[d]ue to this incompetence and lack of skill worth total disregard
to Mr. Rimer’s constitutional rights, [trial counsel] created such prejudice to Mr. Rimer
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that a conviction was a formality[,] [i]f proper care had been given the proceedings would
have been different.” Id., Exh. “G” at 26. Additionally, Petitioner argued that trial
counsel “allowed the prosecution to preclude the medically diagnosed health problem [of
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erectile dysfunction] that Mr. Rimer suffers.”
Answer (Doc. 16), Exh. “G” at 26.
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Petitioner urged that “[t]he failure of [trial counsel] to adequately admit, and present this
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alibi defense, violated due process and the 6th & 14th Amendments of the constitution;
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Ariz. Const. Art. 2 § 24.” Id.
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Petitioner alleged that appellate counsel was ineffective for failing “to adequately
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review the voluminous appeal file, and present a cogent legal brief.” Id., Exh. “G” at 27.
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Petitioner further alleged that appellate counsel “failed to raise any material issue that
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may have been raised within the direct appeal process.” Id. Similarly, Petitioner asserted
that his Rule 32 counsel “fail[ed] to adequately review the voluminous amount of appeals
file, [and] . . . failed to diligently provide competent legal representation to Mr. Rimer
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within the[] Rule 32 proceedings.” Id.
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On November 17, 2011, the Rule 32 court issued its Ruling. See Answer (Doc.
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16), Ariz. Superior Ct., Pima County, Ruling—In Chambers Ruling Re: Motion for
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Reconsideration Re: Request for Extension of Time and Rule 32 Petition for Post-
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Conviction Relief Filed November 14, 2011 11/17/2011 (Exh. “H”). The Rule 32 court
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stated that it had twice granted Petitioner’s requests for additional time to file his PCR
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petition, but denied his third request. Answer (Doc. 16), Exh. “H” at 1. The Rule 32
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court denied Petitioner’s request for reconsideration of its denial. Id., Exh. “H” at 1–2.
The Rule 32 court further noted that “[d]espite having filed the motion for
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reconsideration, Petitioner filed a petition for post-conviction relief on November 14,
2011.” Id., Exh. “H” at 2. The Rule 32 court stated that it “ha[d] reviewed the petition
and f[ound] no colorable claim for relief.” Id. As such, the petition was summarily
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dismissed. Id.
On December 8, 2011, Petitioner filed his Petition for Review in the Arizona
Court of Appeals.
See Answer (Doc. 16), Pet. for Review 12/8/2011 (Exh. “I”).
Petitioner asserted six (6) grounds for relief: 1) “[d]oes the ruling rendered within Baines
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v. Superior Court County of Pima, 142 Ariz. 145, 688 P.2d 1037 (1984), apply within the
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petitioner’s immediate case”; 2) “[d]id the state prove every element of the RICO charge
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that constitutes a valid conviction of Mr. Rimer, pursuant to the mandate given within In
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re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970)”; 3) “[d]id the final jury instructions that
pertained to the Arizona RICO statute properly state the law”; 4) “[d] the state give
adequate notice to the defendant when it charged Mr. Rimer with the Arizona RICO
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statute”; 5) “[w]as trial counsel ineffective”; and 6) “[d]id the prosecutrix give perjured
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material testimony at trial[.]” Id., Exh. “I” at 2–11. On March 12, 2012, the Arizona
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Court of Appeals granted review, but denied relief. Answer (Doc. 16), Ariz. Ct. App.
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Mem. Decision 3/12/2012 (Exh. “J”). The court of appeals noted “[o]n review, Rimer
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repeats his arguments that the state failed to prove beyond a reasonable doubt all the
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required elements of the charge of illegally conducting an enterprise and that his
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convictions were based on perjured testimony.” Id., Exh. “J” at 3. The appellate court
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determined that “[t]hese claims could have been raised in Rimer’s direct appeal.” Id.,
Exh. “J” at 3. As such, the appellate court held that “he is precluded from raising them in
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a petition for post-conviction relief and the trial court did not err in summarily dismissing
them.” Id., Exh. “J” at 3 (citing Ariz. R. Crim. P. 32.2.(a)(3)).
The appellate court acknowledged Petitioner’s claim “that trial counsel had been
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ineffective by agreeing to a jury instruction that, he asserts, misstated the elements of
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illegally conducting an enterprise and in failing to adequately investigate and raise the
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issue of perjured testimony.” Id., Exh. “J” at 3. The court went on to analyze Petitioner’s
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claim regarding the jury instruction, and determined that “[t]he jury instructions
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regarding illegally conducting an enterprise, read as a whole, are consistent with Baines
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and are legally correct.” Id., Exh. “J” at 4 (citing A.R.S. §§ 13-2301(D)(4); 13-2312(B);
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State v. Prince, 226 Ariz. 516, ¶ 77, 250 P.3d 1145, 1165 (2011)). As such, the appellate
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court held that “Rimer ha[d] identified no reasonable basis for his trial counsel to have
objected to the jury instructions and his claim of ineffective assistance of counsel on this
basis necessarily fail[ed].” Answer (Doc. 16), Exh. “J” at 4. The appellate court further
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held that “Rimer’s claim of ineffective assistance of counsel grounded in alleged perjury
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also fails.” Id. The appellate court found Petitioner’s “unsupported assertion” regarding
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trial counsel’s alleged failure to “adequately ‘expose this perjurious testimony’” was
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“insufficient to establish a colorable claim of ineffective assistance of counsel.” Id., Exh.
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“J” at 5 (citing State v. Meeker, 143 Ariz. 256, 264, 693 P.2d 911, 919 (1984); Ariz. R.
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Crim. P. 32.9(c)(1); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995)). The
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appellate court held that “the trial court did not abuse its discretion in summarily
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dismissing Rimer’s petition for post-conviction relief.” Id., Exh. “J” at 5.
On August 1, 2012, the Arizona Supreme Court denied review without comment.
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Answer (Doc. 16), Ariz. Supreme Ct. ME 8/1/2012 (Exh. “K”); see also Answer (Doc.
16), Ariz. Ct. App. Mandate 10/30/2012 (Exh. “L”).
C. Second Post-Conviction Relief Proceeding
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On September 7, 2012, Petitioner filed his second Notice of Post-Conviction
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Relief (“PCR”). Answer (Doc. 16), Not. of PCR 9/7/2012 (Exh. “M”). Included with
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this second notice were arguments for PCR. See id. Petitioner alleged “[i]neffective
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assistance of appellate counsel, re judicial bias, whereby, appellate counsel provide[d]
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ineffective assistance by failing to investigate and raise due process, equal protection, and
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fair trial issues[.]” Id., Exh. “M” at 5. Petitioner took issue with the trial court’s
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evidentiary rulings, as well as the final jury instructions.
Id., Exh. “M” at 6–10.
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Petitioner further alleged that testimony of witnesses describing him in handcuffs tainted
the jury. Id., Exh. “M” at 10. The Rule 32 court found that “Petitioner’s claims [were]
all precluded under Rule 32.2., Ariz. R. Crim. P.” Answer (Doc. 16), Ariz. Superior Ct.,
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Pima County, Ruling—In Chambers Ruling Re: Not. of Post-Conviction Relief
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9/19/2012 (Exh. “N”) at 2. Accordingly, the Rule 32 court held that “Petitioner having
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failed to raise a colorable claim, his notice of post-conviction relief is hereby dismissed.”
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Id., Exh. “N” at 3.
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On October 4, 2012, Petitioner filed a Successive Petitioner for Post-Conviction
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Relief. Answer (Doc. 16), Pet.’s Successive Pet. for PCR (Exh. “O”). Consistent with
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his Notice, Petitioner raised an ineffective assistance of appellate counsel claim regarding
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her alleged failure to investigate: 1) judicial bias; and 2) the revealing of felony and
custody status to the jury. Id., Exh. “O” at 5. On October 5, 2012, the Rule 32 Court
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found that Petitioner’s claims of “ineffective assistance of appellate counsel, erroneous
evidentiary rulings made at trial, error in giving a standard jury instruction, and that the
trial court was based against him . . . were raised in Petitioner’s Notice of Post-
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Conviction Relief[.]” Answer (Doc. 16), Ariz. Superior Ct., Pima County, Ruling—In
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Chambers Ruling Re: Petitioner [sic] for Post-Conviction Relief 10/5/2012 (Exh. “P”) at
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1. The Rule 32 court held that “Petitioner’s claims are precluded under Ariz. R. Crim. P.
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32.2(a)[,] and [he] shall not receive and evidentiary hearing.” Id.
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On October 23, 2012, Petitioner filed a Petition for Review with the Arizona Court
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of Appeals. Answer (Doc. 16), Pet.’s Pet. for Review 10/23/2012 (Exh. “Q”). Petitioner
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alleged ineffective assistance of appellate counsel in light of her failure to investigate 1)
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judicial bias; and 2) the revealing of his felony and custody status to the jury. Id., Exh.
“Q” at 5. Petitioner took issue with jury instructions issued by the trial court, as well as
its evidentiary rulings. Id., Exh. “Q” at 5–8. Petitioner asserted that these alleged errors
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resulted in “judicial bias.” Id., Exh. “Q” at 8–9. Petitioner further asserted that his due
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process rights were violated because of a witness referenced that he had been in jail. Id.,
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Exh. “Q” at 10–13.
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On February 20, 2013, the Arizona Court of Appeals granted review of
26
Petitioner’s second PCR petition, but denied relief. See Answer (Doc. 16), Ariz. Ct.
27
App., Mem. Decision 2/20/2013 (Exh. “R”). The appellate court held that “the trial court
28
correctly concluded, Rimer’s claims are precluded pursuant to Rule 32.2(a).” Id., Exh.
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1
2
“R” at 3. The appellate court further stated that “although Rimer checked the box on the
notice of post-conviction relief form indicating his claim was based on newly discovered
3
4
5
6
evidence, an exception to preclusion under Rule 32.2(b), he did not present his claims as
such, nor has he provided any reason why his claims should not be precluded.” Id., Exh.
“R” at 3.
7
8
9
10
On June 12, 2013, the Arizona Supreme Court denied review without comment.
Answer (Doc. 16), Ariz. Supreme Ct. ME 6/12/2013 (Exh. “S”); see also Answer (Doc.
16), Ariz. Ct. App. Mandate 2/20/2013 (Exh. “T”).
11
12
D. The Instant Habeas Proceeding
13
On March 4, 2014, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ
14
of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Petitioner
15
claims four (4) grounds for relief. First, Petitioner alleges ineffective assistance of trial
16
17
18
19
counsel for counsel’s alleged failure to 1) “raise the issue to sever [Petitioner’s] case
which should of [sic] never been under the clot [sic] of the RICO Act”; 2) “research the
law”; 3) “fully investigate the facts of the case”; 4) “raise a possible defense to make a
20
21
suppression motion”; 5) object to a clearly improper opening statement from the
22
Prosecution”; and 6) “object to evidence that was Clearly [sic] Inadmissible [sic][.]”
23
Petition (Doc. 1) at 6. Second, Petitioner alleges prosecutorial misconduct in violation of
24
25
the Sixth and Fourteenth Amendments. Id. at 7. Petitioner alleges that he “was place
26
[sic] under Vindictive [sic] Prosecution [sic] due to the fact that I had exercised my
27
consitutional [sic] rights.” Id. Petitioner further alleges that his “two femal [sic] [co-
28
]defendants were given allocution from prosecution if they would now become victims
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1
2
which in turn lead to a [sic] that keep [sic] me from defending myself[.]” Id. Petitioner
asserts that his female co-defendants “made inconsistent statements when they became
3
4
5
6
so-called victims.” Id. Third, Petitioner claims that his Fifth and Fourteenth Amendment
rights were violated because “on March 12, 2009 . . . [he] was given a Polygraph [sic]
test . . . [which] revealed physiological responses indicative of truthful answers proving
7
8
my inosence [sic].” Petition (Doc. 1) at 8. Petitioner further alleged that “[t]he State
9
Attorney would neither accept or review the results.” Id. Fourth, Petitioner asserts a
10
violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights based upon
11
12
alleged “willful blindness.” Id. at 9. Petitioner alleges that he did not have “process for
13
obtaining witnesses in [his] favor no did [he] have proper assistance of counsel.” Id.
14
Petitioner further alleges that this has resulted in “unusual and cruel time to serve as
15
inflicted punishment.” Id. On October 2, 2014, Respondents filed their Answer (Doc.
16
17
16). Petitioner did not file a reply.
18
19
II.
STANDARD OF REVIEW
20
21
A. In General
22
The federal courts shall “entertain an application for a writ of habeas corpus in
23
behalf of a person in custody pursuant to the judgment of a State court only on the ground
24
25
that he is in custody in violation of the Constitution or laws of treaties of the United
26
States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus
27
by a person in state custody:
28
- 16 -
1
5
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.
6
28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398,
2
3
4
7
179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal
8
9
habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116
10
L.Ed.2d 385 (1991). Ultimately, “[t]he statute’s design is to ‘further the principles of
11
comity, finality, and federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct.
12
13
2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337,
14
123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet
15
and highly deferential “for evaluating state-court rulings, [and] which demands that state-
16
17
18
19
20
court decisions be given the benefit of the doubt.”
Pinholster, 131 S.Ct. at 1398
(citations and internal quotation marks omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat.
1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The
21
22
“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims
23
have been adjudicated in state court.” Burt v. Titlow, — U.S. —, 134 S.Ct. 10, 16, 187
24
L.Ed.2d 348 (2013).
Federal courts reviewing a petition for habeas corpus must
25
26
“presume the correctness of state courts’ factual findings unless applicants rebut this
27
presumption with ‘clear and convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465,
28
473–74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)).
- 17 -
1
2
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
3
4
5
6
1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is
unreasonable where a state court properly identifies the governing legal principles
delineated by the Supreme Court, but when the court applies the principles to the facts
7
8
before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct.
9
770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146
10
L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004).
11
12
“AEDPA requires ‘a state prisoner [to] show that the state court’s ruling on the claim
13
being presented in federal court was so lacking in justification that there was an error . . .
14
beyond any possibility for fairminded disagreement.’” Burt, 134 S.Ct. at 10 (quoting
15
Harrington, 562 U.S. at 103, 131 S.Ct. at 786–87) (alterations in original).
16
17
18
19
B. Exhaustion of State Remedies
Prior to application for a writ of habeas corpus, a person in state custody must
exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This
20
21
“provides a simple and clear instruction to potential litigants: before you bring any claims
22
to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy,
23
455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982).
24
25
As such, the
exhaustion doctrine gives the State “the opportunity to pass upon and correct alleged
26
violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct.
27
1347, 1349, 158 L.Ed. 2d 64 (2004) (internal quotations omitted). Moreover, “[t]he
28
exhaustion doctrine is principally designed to protect the state courts’ role in the
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1
2
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
3
4
5
6
of comity which “teaches that one court should defer action on causes properly within its
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
7
8
Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)).
9
Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long
10
as the applicant “has the right under the law of the State to raise, by any available
11
12
procedure the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has
13
been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard
14
v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair
15
presentation requirement mandates that a state prisoner must alert the state court “to the
16
17
18
19
presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting
the state court to read beyond the four corners of the petition is insufficient. Baldwin v.
Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting
20
21
petitioner’s assertion that his claim had been “fairly presented” because his brief in the
22
state appeals court did not indicate that “he was complaining about a violation of federal
23
law” and the justices having the opportunity to read a lower court decision addressing the
24
25
federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999)
26
(holding that petitioner failed to exhaust federal due process issue in state court because
27
petitioner presented claim in state court only on state grounds). Furthermore, in order to
28
“fairly present” one’s claims, the prisoner must do so “in each appropriate state court.”
- 19 -
1
2
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
3
4
5
6
appellate process of the state, or (2) throughout one entire judicial postconviction process
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.
7
8
1998)).
9
In Arizona, however, for non-capital cases “review need not be sought before the
10
Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d
11
12
1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz.
13
2007); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the
14
Supreme Court has further interpreted § 2254(c) to recognize that once the state courts
15
have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for
16
17
18
19
the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346,
350, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989).
C. Procedural Default
20
21
“A habeas petitioner who has defaulted his federal claims in state court meets the
22
technical requirements for exhaustion; there are no state remedies any longer ‘available’
23
to him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d
24
25
650 (1991). Moreover, federal courts “will not review a question of federal law decided
26
by a state court if the decision of that court rests on a state law ground that is independent
27
of the federal question and adequate to support the judgment.” Id., 501 U.S. at 728, 111
28
S.Ct. at 2254. This is true whether the state law basis is substantive or procedural. Id.
- 20 -
1
2
(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).
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
The Ninth Circuit Court of Appeals explained the difference between exhaustion
and procedural default as follows:
The exhaustion doctrine applies when the state court has never been
presented with an opportunity to consider a petitioner’s claims and that
opportunity may still be available to the petitioner under state law. In
contrast, the procedural default rule barring consideration of a federal claim
applies only when a state court has been presented with the federal claim,
but declined to reach the issue for procedural reasons, or if it is clear that
the state court would hold the claim procedurally barred. Franklin v.
Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and
citations omitted). Thus, in some circumstances, a petitioner’s failure to
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)).
18
Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005). Thus, a prisoner’s habeas
19
petition may be precluded from federal review due to procedural default in two ways.
20
First, where the petitioner presented his claims to the state court, which denied relief
21
22
based on independent and adequate state grounds. Coleman, 501 U.S. at 728, 111 S.Ct.
23
at 2254. Federal courts are prohibited from review in such cases because they have “no
24
power to review a state law determination that is sufficient to support the judgment,
25
26
resolution of any independent federal ground for the decision could not affect the
27
judgment and would therefore be advisory.” Id. Second, where a “petitioner failed to
28
exhaust state remedies and the court to which the petitioner would be required to present
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1
2
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
3
4
5
6
federal court “must consider whether the claim could be pursued by any presently
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).
7
8
Where a habeas petitioner’s claims have been procedurally defaulted, the federal
9
courts are prohibited from subsequent review unless the petitioner can show cause and
10
actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068,
11
12
103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding
13
barred federal habeas review unless petitioner demonstrated cause and prejudice); see
14
also Smith v. Murray, 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986)
15
(recognizing “that a federal habeas court must evaluate appellate defaults under the same
16
17
18
19
standards that apply when a defendant fails to preserve a claim at trial.”).
“[T]he
existence of cause for a procedural default must ordinarily turn on whether the prisoner
can show that some objective factor external to the defense impeded counsel’s efforts to
20
21
comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106
22
S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d
23
1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally
24
25
defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on
26
which to address the merits of his claims.”). In addition to cause, a habeas petitioner
27
must show actual prejudice, meaning that he “must show not merely that the errors . . .
28
created a possibility of prejudice, but that they worked to his actual and substantial
- 22 -
1
2
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).
3
4
5
6
Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the
procedural default and gain review by the federal courts. Id., 106 S.Ct. at 2649.
The Supreme Court has recognized, however, that “the cause and prejudice
7
8
standard will be met in those cases where review of a state prisoner’s claim is necessary
9
to correct ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722,
10
111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102
11
12
S.Ct. 1558, 1572–73, 71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice
13
exception is available ‘only where the prisoner supplements his constitutional claim with
14
a colorable showing of factual innocence.’” Herrara v. Collins, 506 U.S. 390, 404, 113
15
S.Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v.
16
17
18
19
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 otherwise barred constitutional claim considered
20
21
on the merits.” Herrara, 506 U.S. at 404, 113 S.Ct. at 862. Further, in order to
22
demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by
23
clear and convincing evidence that but for the constitutional error, no reasonable
24
25
26
27
28
factfinder would have found [him] guilty of the underlying offense.”
28 U.S.C. §
2254(e)(2)(B).
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
- 23 -
1
2
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,
3
4
5
6
voluntarily and intelligently’ waived the claim.” Id., 2002 cmt. Neither Rule 32.2 nor
the Arizona Supreme Court has defined claims of “sufficient constitutional magnitude”
requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 202 Ariz.
7
8
9
10
446, 46 P.3d 1067 (2002). The Ninth Circuit Court of Appeals recognized that this
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.
11
12
13
III.
14
15
STATUTE OF LIMITATIONS
As a threshold matter, the Court must consider whether Petitioner’s petition is
barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921–22 (9th Cir.
16
17
18
19
2002).
The AEDPA mandates that a one-year statute of limitations applies to
applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. §
2244(d)(1). Section 2244(d)(1) provides that the limitations period shall run from the
20
21
22
23
24
25
26
27
28
latest of:
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
the State action in violation of the Constitution or laws of the United States
is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
- 24 -
1
2
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.
3
28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time
4
during which a properly filed application for State post-conviction or other collateral
5
6
review with respect to the pertinent judgment or claim is pending shall not be counted
7
toward any period of limitation under this subsection.”
8
Respondents do not dispute the timeliness of Rimer’s petition.
9
28 U.S.C. § 2244(d)(2).
The Court has
independently reviewed the record and finds that the Petition (Doc. 1) is timely pursuant
10
11
to 28 U.S.C. § 2244(d)(1)(A).
12
13
IV.
ANALYSIS
14
15
16
17
18
A.
Ground One: Ineffective Assistance of Counsel
1. Legal Standards
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
19
20
21
22
ineffective assistance of counsel sufficient to overturn his conviction. See Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Petitioner must
show that counsel’s performance was deficient. Id. at 687, 104 S.Ct. at 2064. “This
23
24
requires showing that counsel made errors so serious that counsel was not functioning as
25
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, Petitioner
26
must show that this performance prejudiced his defense. Id. Prejudice “requires showing
27
28
that counsel’s errors were so serious as to deprive the defendant of a fair trial whose
- 25 -
1
2
result is reliable.” Id. Ultimately, whether or not counsel’s performance was effective
hinges on its reasonableness under prevailing professional norms. Strickland, 466 U.S. at
3
4
5
6
688, 104 S.Ct. at 2065; see also State v. Carver, 160 Ariz. 167, 771 P.2d 1382 (1989)
(adopting Strickland two-part test for ineffective assistance of counsel claims). The Sixth
Amendment’s guarantee of effective assistance is not meant to “improve the quality of
7
8
legal representation,” rather it is to ensure the fairness of trial. Strickland, 466 U.S. at
9
689, 104 S.Ct. at 2065. “Thus, ‘[t]he benchmark for judging any claim of ineffectiveness
10
must be whether counsel’s conduct so undermined the proper functioning of the
11
12
adversarial process that the trial cannot be relied on as having produced a just result.’”
13
Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011)
14
(quoting Strickland, 466 at 686) (emphasis and alteration in original).
15
“The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ .
16
17
18
19
. . and when the two apply in tandem, review is ‘doubly’ so[.]” Harrington v. Richter,
562 U.S. 86, 105, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (citations omitted).
Judging counsel’s performance must be made without the influence of hindsight. See
20
21
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. As such, “the defendant must overcome
22
the presumption that, under the circumstances, the challenged action ‘might be
23
considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76
24
25
S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Without the requisite showing of either “deficient
26
performance” or “sufficient prejudice,” Petitioner cannot prevail on his ineffectiveness
27
claim. Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. “[T]he question is not whether
28
counsel’s actions were reasonable. The question is whether there is any reasonable
- 26 -
1
2
argument that counsel satisfied Strickland’s deferential standard.” Gentry v. Sinclair, 705
F.3d 884, 899 (9th Cir. 2013) (quoting Harrington, 562 U.S. at 105, 131 S.Ct. at 788)
3
4
5
6
(alterations in original). “The challenger’s burden is to show ‘that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.’” Harrington, 562 U.S. at 104, 131 S.Ct. at 787 (quoting Strickland,
7
8
466 U.S. at 689, 104 S.Ct. 2052). Accordingly, “[w]e apply the doubly deferential
9
standard to review the state court’s ‘last reasoned decision.’” Vega v. Ryan, 757 F.3d
10
960, 966 (9th Cir. 2014) (citations omitted). “By its terms § 2254(d) bars relitigation of
11
12
any claim ‘adjudicated on the merits’ in state court, subject only to the exceptions in
13
2254(d)(1) and (d)(2).” Harrington, 131 U.S. at 98, 131 S.Ct. at 784. As such, Petitioner
14
also bears the burden of showing that the state court applied Strickland to the facts of his
15
case in an objectively unreasonable manner. See Bell v. Cone, 535 U.S. 685, 698–99, 122
16
17
18
19
S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002); see also 28 U.S.C. § 2254(d).
Additionally, “[a]s a general matter, each ‘unrelated alleged instance [ ] of
counsel’s ineffectiveness’ is a separate claim for purposes of exhaustion.” Gulbrandson
20
21
v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d
22
1044, 1056 (9th Cir. 2005)) (alterations in original). This means “all operative facts to an
23
ineffective assistance claim must be presented to the state courts in order for a petitioner
24
25
to exhaust his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007).
26
This is “[b]ecause ineffective assistance claims are not fungible, but are instead highly
27
fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Id. As
28
such, “a petitioner who presented any ineffective assistance of counsel claim below
- 27 -
1
2
can[not] later add unrelated instances of counsel’s ineffectiveness to that claim.” Id.
(citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736,
3
4
5
6
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
different facts”).
7
8
2. Failure to Raise Severance
9
Petitioner claims that his trial counsel was ineffective for failing to raise the issue
10
of having his case severed. Petition (Doc. 1) at 6. Respondents assert that Petitioner
11
12
13
14
15
failed to exhaust this claim, because he did not present it to the Arizona Court of Appeals.
Answer (Doc. 16) at 9. The Court agrees with Respondent.
Petitioner failed to raise this claim in either of his pro se PCR petitions. Answer
(Doc. 16), Pet.’s Pro Se Pet. for PCR (Exh. “G”) & Pet.’s Successive Pet. for PCR (Exh.
16
17
18
19
“O”). Neither did Petitioner raise it to the Arizona Court of Appeals. See Answer (Doc.
16), Pet. for Review 12/8/2011 (Exh. “I”) & Pet. for Review 10/23/2012 (Exh. “Q”). “As
a general matter, each ‘unrelated alleged instance [ ] of counsel’s ineffectiveness’ is a
20
21
separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992
22
(9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005))
23
(alterations in original). This means “all operative facts to an ineffective assistance claim
24
25
26
27
28
must be presented to the state courts in order for a petitioner to exhaust his remedies.”
Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007).
Accordingly, this 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
- 28 -
1
2
S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the
prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is
3
4
5
6
procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546,
2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the
court to which the petitioner would be required to present his claims in order to meet the
7
8
exhaustion requirement would now find the claims procedurally barred”).
9
Where a habeas petitioner’s claims have been procedurally defaulted, the federal
10
courts are prohibited from subsequent review unless the petitioner can show cause and
11
12
actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068,
13
103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding
14
barred federal habeas review unless petitioner demonstrated cause and prejudice).
15
Petitioner has not met his burden to show either cause or actual prejudice. Murray v.
16
17
18
19
Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner
“must show not merely that the errors . . . created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire trial with error of
20
21
constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also
22
Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer
23
any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on
24
25
which to address the merits of his claims.”). In fact, Plaintiff’s counsel filed a pre-trial
26
Motion to Sever Count One and Any Other Related Counts; Motion to Disqualify Pima
27
County Attorney’s Office. See Answer (Doc. 16), Exh. “U.”
28
As such, Petitioner’s claim for ineffective assistance of counsel based on an
- 29 -
1
2
alleged failure to raise the issue of severance cannot stand.
3. Failure to Research the Law
3
4
5
6
Petitioner claims that his trial counsel was ineffective for an alleged failure “to
research the law[.]” Petition (Doc. 1) at 6. Respondents assert that Petitioner failed to
exhaust this claim, because he did not present it to the Arizona Court of Appeals.
7
8
Answer (Doc. 16) at 9. The Court agrees that this claim is unexhausted.
9
Petitioner arguably raised this claim in his initial pro se PCR petition. See Answer
10
(Doc. 16), Pet.’s Pro Se Pet. for PCR (Exh. “G”) at 25. Petitioner alleged that trial
11
12
counsel “failed to adequately research the Arizona RICO statute (A.R.S. § 13-2312) for
13
the basic understanding in dealing with this alleged offense to provide a meaningful
14
defense.” Id., Exh. “G” at 25. Petitioner did not, however, raise this claim to the Arizona
15
Court of Appeals. See Answer (Doc. 16), Pet. for Review 12/8/2011 (Exh. “I”).
16
17
18
19
Accordingly, this 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 to “fairly present” one’s claims, the
20
21
prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is
22
procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546,
23
2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the
24
25
26
27
28
court to which the petitioner would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally barred”).
Where a habeas petitioner’s claims have been procedurally defaulted, the federal
courts are prohibited from subsequent review unless the petitioner can show cause and
- 30 -
1
2
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 claims in state appellate proceeding
3
4
5
6
barred federal habeas review unless petitioner demonstrated cause and prejudice).
Petitioner has not met his burden to show either cause or actual prejudice. Murray v.
Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner
7
8
“must show not merely that the errors . . . created a possibility of prejudice, but that they
9
worked to his actual and substantial disadvantage, infecting his entire trial with error of
10
constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also
11
12
Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer
13
any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on
14
which to address the merits of his claims.”).
15
As such, Petitioner’s claim for ineffective assistance of counsel based on an
16
17
18
19
alleged failure to research the law cannot stand.
4. Failure to Fully Investigate the Facts
Petitioner claims that his trial counsel was ineffective for allegedly failing “to fully
20
21
investigate the facts of the case[.]” Petition (Doc. 1) at 6. Respondent asserts that
22
Petitioner properly exhausted this claim. Answer (Doc. 23) at 10. The Court agrees and
23
finds this claim exhausted.
24
25
Liberally construed, Petitioner arguably raised this claim in his initial pro se PCR
26
petition. See Answer (Doc. 16), Pet.’s Pro Se Pet. for PCR (Exh. “G”) at 17–22, 26.
27
Petitioner then reiterated that his trial counsel “failed to properly investigate and expose
28
adequately the perjurious trial testimony of [M.K.]” Answer (Doc. 16), Pet. for Review
- 31 -
1
2
12/8/2011 (Exh. “I”) at 9.
The Arizona Court of Appeals stated that “[w]ithout
explanation or citation to the record, [Petitioner] argues his trial counsel failed to
3
4
5
6
adequately ‘expose[] this perjurious testimony.’” Answer (Doc. 16), Ariz. Ct. App.
Mem. Decision 3/12/2012 (Exh. “J”) at 5 (alterations in original). The court of appeals
went on to hold that “[t]his unsupported assertion is insufficient to establish a colorable
7
8
9
10
claim of ineffective assistance of counsel.” Id., Exh. “J” at 5 (citing State v. Meeker, 143
Ariz. 256, 264, 693 P.2d 911, 919 (1984); Ariz. R. Crim. P. 32.9(c)(1); State v. Bolton,
182 Ariz. 290, 298, 896 P.2d 830, 838 (1995)).
11
Petitioner has failed to present any evidence to show that the Arizona court’s
12
13
decision regarding his ineffective assistance claim is contrary to or an unreasonable
14
application of clearly established Supreme Court law or based on an unreasonable
15
determination of the facts. As such, this Court finds that the Arizona courts did not
16
17
18
19
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. “It is all too tempting for a defendant to second-guess
20
21
counsel’s assistance after conviction or adverse sentence[;] . . . [however,] [b]ecause of
22
the difficulties inherent in making the evaluation, a court must indulge a strong
23
presumption that counsel’s conduct falls within the wide range of reasonable professional
24
25
assistance[.]” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80
26
L.Ed.2d 674 (1984). Accordingly, Petitioner’s ineffective assistance of counsel claim
27
regarding an alleged failure to investigate the facts of the case is without merit.
28
...
- 32 -
1
2
5. Suppression Motion
Petitioner claims that his trial counsel was ineffective for allegedly failing “to raise
3
4
5
6
a possible defense to make a suppression motion[.]” Petition (Doc. 1) at 6. Respondents
assert that Petitioner failed to exhaust this claim, because he did not present it to the
Arizona Court of Appeals. Answer (Doc. 16) at 9. The Court agrees with Respondent.
7
8
Petitioner failed to raise this claim in either of his pro se PCR petitions. See
9
Answer (Doc. 16), Pet.’s Pro Se Pet. for PCR (Exh. “G”) & Pet.’s Successive Pet. for
10
PCR (Exh. “O”). Neither did Petitioner raise it to the Arizona Court of Appeals. See
11
12
Answer (Doc. 16), Pet. for Review 12/8/2011 (Exh. “I”) & Pet. for Review 10/23/2012
13
(Exh. “Q”). “[A]ll operative facts to an ineffective assistance claim must be presented to
14
the state courts in order for a petitioner to exhaust his remedies.” Hemmerle v. Schriro,
15
495 F.3d 1069, 1075 (9th Cir. 2007).
16
17
18
19
Accordingly, this 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 to “fairly present” one’s claims, the
20
21
prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is
22
procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546,
23
2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the
24
25
26
27
28
court to which the petitioner would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally barred”).
Where a habeas petitioner’s claims have been procedurally defaulted, the federal
courts are prohibited from subsequent review unless the petitioner can show cause and
- 33 -
1
2
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 claims in state appellate proceeding
3
4
5
6
barred federal habeas review unless petitioner demonstrated cause and prejudice).
Petitioner has not met his burden to show either cause or actual prejudice. Murray v.
Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner
7
8
“must show not merely that the errors . . . created a possibility of prejudice, but that they
9
worked to his actual and substantial disadvantage, infecting his entire trial with error of
10
constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also
11
12
Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer
13
any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on
14
which to address the merits of his claims.”).
15
As such, Petitioner’s claim for ineffective assistance of counsel based on an
16
17
18
19
alleged failure to file a suppression motion cannot stand.
6. No Objection to Opening Statement
Petitioner claims that his trial counsel was ineffective for allegedly failing “to
20
21
object to a clearly improper opening statement from the Prosecution.” Petition (Doc. 1)
22
at 6. Respondents assert that Petitioner “did not ‘fairly present’ [this claim] to the
23
Arizona Court of Appeals” and it is therefore unexhausted. See Answer (Doc. 23). The
24
25
Court agrees, and finds this claim to be unexhausted.
26
Petitioner failed to raise this claim in either of his pro se PCR petitions. See
27
Answer (Doc. 16), Pet.’s Pro Se Pet. for PCR (Exh. “G”) & Pet.’s Successive Pet. for
28
PCR (Exh. “O”). Neither did Petitioner raise it to the Arizona Court of Appeals. See
- 34 -
1
2
Answer (Doc. 16), Pet. for Review 12/8/2011 (Exh. “I”) & Pet. for Review 10/23/2012
(Exh. “Q”). “[A]ll operative facts to an ineffective assistance claim must be presented to
3
4
5
6
the state courts in order for a petitioner to exhaust his remedies.” Hemmerle v. Schriro,
495 F.3d 1069, 1075 (9th Cir. 2007).
Accordingly, this claim is unexhausted and would now be precluded. Ariz. R.
7
8
Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; see also Baldwin v. Reese, 541 U.S. 27, 29, 124
9
S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the
10
prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is
11
12
procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546,
13
2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the
14
court to which the petitioner would be required to present his claims in order to meet the
15
exhaustion requirement would now find the claims procedurally barred”).
16
17
18
19
Where a habeas petitioner’s claims have been procedurally defaulted, the federal
courts are prohibited from subsequent review unless the petitioner can show cause and
actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068,
20
21
103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding
22
barred federal habeas review unless petitioner demonstrated cause and prejudice).
23
Petitioner has not met his burden to show either cause or actual prejudice. Murray v.
24
25
Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner
26
“must show not merely that the errors . . . created a possibility of prejudice, but that they
27
worked to his actual and substantial disadvantage, infecting his entire trial with error of
28
constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also
- 35 -
1
2
Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer
any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on
3
4
5
6
which to address the merits of his claims.”).
As such, Petitioner’s claim for ineffective assistance of counsel based on an
alleged failure to object to the prosecution’s Opening Statement is without merit.
7
8
7. Inadmissible Evidence
9
Petitioner claims that his trial counsel was ineffective for allegedly failing “to
10
object to evidence that was clearly inadmissible[.]” Petition (Doc. 1) at 6. Respondents
11
12
13
14
15
assert that Petitioner failed to exhaust this claim. Answer (Doc. 16) at 9. The Court
agrees that this claim is unexhausted.
Petitioner failed to raise this claim in either of his pro se PCR petitions. See
Answer (Doc. 16), Pet.’s Pro Se Pet. for PCR (Exh. “G”) & Pet.’s Successive Pet. for
16
17
18
19
PCR (Exh. “O”). Neither did Petitioner raise it to the Arizona Court of Appeals. See
Answer (Doc. 16), Pet. for Review 12/8/2011 (Exh. “I”) & Pet. for Review 10/23/2012
(Exh. “Q”). “[A]ll operative facts to an ineffective assistance claim must be presented to
20
21
22
23
24
25
the state courts in order for a petitioner to exhaust his remedies.” Hemmerle v. Schriro,
495 F.3d 1069, 1075 (9th Cir. 2007).
Accordingly, this 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
26
S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the
27
prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is
28
procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546,
- 36 -
1
2
2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the
court to which the petitioner would be required to present his claims in order to meet the
3
4
5
6
exhaustion requirement would now find the claims procedurally barred”).
Where a habeas petitioner’s claims have been procedurally defaulted, the federal
courts are prohibited from subsequent review unless the petitioner can show cause and
7
8
actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068,
9
103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding
10
barred federal habeas review unless petitioner demonstrated cause and prejudice).
11
12
Petitioner has not met his burden to show either cause or actual prejudice. Murray v.
13
Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner
14
“must show not merely that the errors . . . created a possibility of prejudice, but that they
15
worked to his actual and substantial disadvantage, infecting his entire trial with error of
16
17
18
19
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 claims[,] . . . [and as such,] there is no basis on
20
21
22
23
which to address the merits of his claims.”).
As such, Petitioner’s claim for ineffective assistance of counsel based on an
alleged failure to object to certain evidence cannot stand.
24
25
B.
Ground Two: Prosecutorial Misconduct
26
Petitioner asserts that he suffered “vindictive prosecution due to the fact that [he]
27
had exercised [his] constitutional rights.” Petition (Doc. 1) at 7. Petitioner further
28
alleged that the prosecution acted improperly by allowing the two female co-defendants
- 37 -
1
2
to “become victims” thereby preventing Petitioner “from defending [him]self” and
resulting in “a perverse verdict.” Id. Petitioner also takes issue with his female co-
3
4
5
6
defendants allegedly inconsistent statements as a result of becoming victims.
Id.
Respondents assert that Petitioner failed to raise these claims to the state court, thereby
only technically exhausting these claims. Answer (Doc. 16) at 9. The Court disagrees
7
8
9
10
11
12
and finds these claims exhausted; however, as discussed, infra, the claims are
procedurally defaulted.
Broadly construed, Petitioner raised these claims in his direct appeal. See Answer
(Doc. 16), Appellant’s Opening Br. 4/1/2010 (Exh. “B”) at 41–44. Petitioner asserted
13
that the Pima County Attorney’s office should have been disqualified because W.H. and
14
M.K. were “co-conspirators on some counts and that [M.K.] was a victim in other
15
counts[,]” thereby violating “fundamental fairness in a manner shocking to the universal
16
17
18
19
sense of justice.” Id. at 44. The court of appeals found that “Rimer has failed to offer
any apposite or persuasive authority demonstrating the trial court abused its discretion in
denying his motion to disqualify the county attorney’s office from prosecuting his case
20
21
based on W.H.’s and M.K.’s status as both victims and co-conspirators.” Answer (Doc.
22
16), Ariz. Ct. of Appeals, Memorandum Decision 1/7/2011 (Exh. “A”) at 3.
23
appellate court held that “[n]either the statutes granting rights to victims nor the cases
24
25
The
upon which Rimer relies support his position and, to the extent they are applicable here,
26
they instead inform a contrary conclusion.” Id. (citing A.R.S. §§ 13-4401 through 13-
27
4440; State ex rel. Romley v. Superior Court, 181 Ariz. 378, 381–83, 891 P.2d 246, 249–
28
51 (Ct. App. 1995); Villalpando v. Reagan, 211 Ariz. 305, 308 1221 P.3d 172, 175 (Ct.
- 38 -
1
2
App. 2005); Bicas v. Superior Court, 116 Ariz. 69, 74, 567 P.2d 1198, 1203 (Ct. App.
1977)). The court of appeals concluded that the trial court “did not abuse its discretion in
3
4
5
6
denying Rimer’s motion to disqualify the Pima County Attorney’s Office.” Id., Exh. “A”
at 4.
Petitioner’s claims regarding prosecutorial misconduct as it relates to his female
7
8
co-defendants/victims have been procedurally defaulted. Petitioner presented his claims
9
to the state court, which denied relief based on independent and adequate state grounds.
10
See Coleman v. Thompson, 501 U.S. 722, 728, 111 S.Ct. 2546, 2254, 115 L.Ed.2d 640
11
12
(1991). Accordingly, this Court has “no power to review a state law determination that is
13
sufficient to support the judgment, [and] resolution of any independent federal ground for
14
the decision could not affect the judgment and would therefore be advisory.” Id.
15
Therefore, Petitioner’s claims regarding allegedly vindictive prosecution or his
16
17
18
19
female co-defendants as victims cannot stand.
C.
Ground Three: Polygraph Test
Petitioner asserts that he “was given a polygraph test . . . [which] revealed
20
21
physiological responses indicative to truthful answers proving my inosence [sic] to the
22
charge brough [sic] forth.” Petition (Doc. 1) at 8. Petitioner acknowledged that “[t]he
23
State of Arizona does not reconkize [sic] the use of polygraphs but the federal courts do.”
24
25
26
27
28
Id. Respondents assert that Petitioner raised this claim in state court, and as such, it is
precluded from review. Answer (Doc. 16) at 10.
Petitioner failed to raise this claim on direct appeal or in either of his pro se PCR
petitions. See Answer (Doc. 16), Appellant’s Opening Br. (Exh. “B”) & Pet.’s Pro Se
- 39 -
1
2
Pet. for PCR (Exh. “G”) & Pet.’s Successive Pet. for PCR (Exh. “O”). Neither did
Petitioner raise it to the Arizona Court of Appeals. See Answer (Doc. 16), Pet. for
3
4
5
6
Review 12/8/2011 (Exh. “I”) & Pet. for Review 10/23/2012 (Exh. “Q”).
Accordingly, this 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
7
8
S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the
9
prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is
10
procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546,
11
12
2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the
13
court to which the petitioner would be required to present his claims in order to meet the
14
exhaustion requirement would now find the claims procedurally barred”).
15
Where a habeas petitioner’s claims have been procedurally defaulted, the federal
16
17
18
19
courts are prohibited from subsequent review unless the petitioner can show cause and
actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068,
103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding
20
21
barred federal habeas review unless petitioner demonstrated cause and prejudice).
22
Petitioner has not met his burden to show either cause or actual prejudice. Murray v.
23
Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner
24
25
“must show not merely that the errors . . . created a possibility of prejudice, but that they
26
worked to his actual and substantial disadvantage, infecting his entire trial with error of
27
constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also
28
Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer
- 40 -
1
2
any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on
which to address the merits of his claims.”).
3
4
5
6
The Supreme Court has recognized, however, that “the cause and prejudice
standard will be met in those cases where review of a state prisoner’s claim is necessary
to correct ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722,
7
8
111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102
9
S.Ct. 1558, 1572–73, 71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice
10
exception is available ‘only where the prisoner supplements his constitutional claim with
11
12
a colorable showing of factual innocence.’” Herrara v. Collins, 506 U.S. 390, 404, 113
13
S.Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v.
14
Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)). Thus, “‘actual
15
innocence’ is not itself a constitutional claim, but instead a gateway through which a
16
17
18
19
habeas petitioner must pass to have his otherwise barred constitutional claim considered
on the merits.” Herrara, 506 U.S. at 404, 113 S.Ct. at 862. Further, in order to
demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by
20
21
clear and convincing evidence that but for the constitutional error, no reasonable
22
factfinder would have found [him] guilty of the underlying offense.”
23
2254(e)(2)(B).
24
25
28 U.S.C. §
It is well established law that “all references to polygraph tests, absent stipulation,
26
are inadmissible for any purpose in Arizona. State v. Hoskins, 199 Ariz. 127, 144, 14
27
P.3d 997, 1014 (2000). Petitioner concedes that this is the law. Petition (Doc. 1) at 8.
28
The Supreme Court of the United States has held that a per se rule excluding all
- 41 -
1
2
polygraph evidence does not abridge a defendant’s constitutional rights. United States v.
Scheffer, 523 U.S. 303, 309–17, 118 S.Ct. 1261, 1264–69, 140 L.Ed.2d 413 (1998).
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Furthermore, Petitioner failed to submit any evidence, beyond a bald assertion, that his
polygraph test was favorable to him. See id. Finally, Petitioner seeks habeas review of
this issue as a standalone claim; however, “‘actual innocence’ is not itself a constitutional
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claim, but instead a gateway through which a habeas petitioner must pass to have his
otherwise barred constitutional claim considered on the merits.” Herrara, 506 U.S. at
404, 113 S.Ct. at 862.
As such, Petitioner’s claim regarding an alleged favorable
polygraph test cannot stand.
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D.
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Petitioner asserts that “[b]ecause of the charges that have been brough [sic] against
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Ground Four: Willful Blindness
me I have been deprived of life, liberty without proper due process of the law[.]” Petition
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(Doc. 1) at 9. Petitioner further complains of the process “for obtaining witnesses in [his]
favor” and the lack of “proper assistance of counsel for [his] defense.” Id. Finally,
Petitioner asserts that he has “unusual and cruel time to serve as inflicted punishment.”
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Id. Respondents assert that this is the first time Petitioner has raised this claim. Answer
(Doc. 16) at 10.
A review of the record indicates that Petitioner did not raise this claim to the state
courts. See Answer (Doc. 16), Appellant’s Opening Br. (Exh. “B”) & Pet.’s Pro Se Pet.
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for PCR (Exh. “G”) & Pet.’s Successive Pet. for PCR (Exh. “O”). As discussed in
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Section II., supra, prior to bringing a claim to federal court, a habeas petitioner must
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present all claims first to the state court. Because Petitioner did not fairly present this
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claim to the state courts, it is unexhausted and procedurally defaulted. Ariz. R. Crim. P.
32.1(d)–(h), 32.2(a)(3), 32.4; Coleman, 501 U.S. at 735 n.1, 111 S.Ct. at 2557 n.1
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(citations omitted).
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).
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Petitioner has not met his burden to show either cause or actual prejudice. Murray v.
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Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner
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“must show not merely that the errors . . . created a possibility of prejudice, but that they
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worked to his actual and substantial disadvantage, infecting his entire trial with error of
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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 claims[,] . . . [and as such,] there is no basis on
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which to address the merits of his claims.”). Furthermore, “[c]onclusory allegations
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which are not supported by a statement of specific facts do no warrant habeas relief.”
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James v. Borg, 24 F.2d 20, 26 (9th Cir. 1994) (citations omitted). As such, Petitioner’s
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claims as alleged in Ground Four cannot stand.
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E.
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In light of the foregoing, the Court finds that Petitioner’s habeas claims are
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Conclusion
without merit, and the Petition (Doc. 1) shall be denied.
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V.
RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the
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District Judge enter an order DENYING Petitioner’s Petition Under 28 U.S.C. § 2254 for
a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1);
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil
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Procedure, any party may serve and file written objections within fourteen (14) days after
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being served with a copy of this Report and Recommendation. A party may respond to
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another party’s objections within fourteen (14) days after being served with a copy. Fed.
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R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from the District
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Court. If objections are filed, the parties should use the following case number: CV-14-
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01930-TUC-RCC.
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Failure to file timely objections to any factual or legal determination of the
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Magistrate Judge may result in waiver of the right of review. The Clerk of the Court
shall send a copy of this Report and Recommendation to all parties.
Dated this 3rd day of February, 2017.
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Honorable Bruce G. Macdonald
United States Magistrate Judge
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