Edgar #291050 v. Ryan et al

Filing 37

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the District Judge enter an order DENYING Petitioner's 1 Petition Under 28 USC § 2254 for Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty). Any party ma y serve and file written objections within 14 days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within 14 days after being served with a copy. No replies shall be filed unles s leave is granted from the District Court. If objections are filed, the parties should use the following case number: CV-15-0063-TUC-CKJ. Failure to file timely objections to any factual or legal determination of the 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. Signed by Magistrate Judge Bruce G Macdonald on 1/31/18.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jonathan B. Edgar,

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No. CV-15-0063-TUC-CKJ (BGM)
Petitioner,
REPORT AND RECOMMENDATION

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v.
Charles L. Ryan, et al.,

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Respondents.

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Currently pending before the Court is Petitioner Jonathan B. Edgar’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) (“Petition”) (Doc. 1). Respondents have filed a Limited

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Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 18), as well as a

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Supplemental Answer to Limited Answer to Petition for Writ of Habeas Corpus

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(“Supplemental Answer”) (Doc. 29). Petitioner filed a Reply (Doc. 21) to the limited
answer, as well as a Supplemental Reply (Doc. 32). The Petition is ripe for adjudication.
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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Rules of Practice of the United States District Court for the District of Arizona.

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

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I.

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FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Charge and Sentencing

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On March 9, 1997, Petitioner was charged with sexual assault, kidnapping, and

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second degree burglary. See Answer (Doc. 18), Interim Compl. (Exh. “A”). The Arizona
Court of Appeal stated the facts2 as follows:

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Pursuant to a plea agreement, Edgar was convicted in June 1997 of
second-degree burglary, a class three felony. In August 1997, the trial
court suspended the imposition of sentence and placed Edgar on intensive
probation for five years. A petition to revoke probation was filed just a few
months later; the court continued Edgar on probation in January 1998 after
he admitted one of the allegations in the petition. In May 1998, a second
petition to revoke probation was filed, asserting, inter alia, that Edgar had
“changed his residence without prior approval of his probation officer and
his current whereabouts [were] unknown.” Edgar was arrested almost
sixteen years later, in April 2014, at which time he admitted having
absconded from probation. At the disposition hearing in May 2014, the
court imposed a maximum seven-year term of imprisonment, finding as
aggravating factors trauma to the victim and Edgar’s having absconded,
and as a mitigating factor, Edgar’s difficult childhood.

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Suppl. Answer (Doc. 29), Ariz. Ct. of Appeals, Memorandum Decision 7/14/2015 (Exh.

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“S”) at 2.

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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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B. Post-Conviction Relief Proceeding
On October 14, 2014, Petitioner filed his Petition for Post-Conviction Relief. See

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Answer (Doc. 18), Pet.’s Pet. for PCR (Exh. “K”). Petitioner presented two (2) grounds
for relief, as follows:
1)
Petitioner’s sentence is in violation of the Constitutions of the
United States and the State of Arizona and exceeded the maximum
authorized by law because the aggravating factors used to determine his
sentence were not proven to a jury beyond a reasonable doubt.
2)
Petitioner’s counsel at sentencing was ineffective, denying
Petitioner his rights under the Sixth Amendment of the United States
Constitution because trial counsel failed to recognize that any aggravation
must be proved to a jury beyond a reasonable doubt.

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Answer (Doc. 18), Exh. “K” at 1.

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First, Petitioner argued that based on his plea, “the maximum sentence faced by

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Petitioner was the presumptive sentence of 3.5 years, absent an admission or waiver by

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the Petitioner to allow the Court to find aggravating factors.”

Id., Exh. “K” at 3.

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Petitioner further alleged that because “[n]o such admission or waiver is contained in the

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record of Petitioner’s plea[,] [n]o jury was convened to consider the aggravating factors[,]

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[and] Petitioner had no prior convictions, other than juvenile adjudications[,] . . .

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[Petitioner] was denied his right to have facts decided by a jury beyond a reasonable

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doubt, in violation of his Fifth and Sixth Amendment rights.” Id., Exh. “K” at 3–4.

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Petitioner also asserted that he was prejudiced by this error, because “it [wa]s not clear

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that a jury, considering the matter under the standard of beyond a reasonable doubt,
would have found the harm to the victim as an aggravating factor.” Id., Exh. “K” at 4.
Second, Petitioner also argued that trial counsel’s actions were not reasonable,

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requiring the court to determine “whether those deficiencies were prejudicial.” Answer
(Doc. 18), Exh. “K” at 5. Petitioner asserted that counsel’s alleged failure to review his

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original plea agreement to determine that Petitioner had not waived his right to have a
jury determine any aggravating sentencing factors beyond a reasonable doubt, was
prejudicial since “a jury may not have found both aggravating factors beyond a

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reasonable doubt and the aggravating factors may not have outweighed the mitigating
factor.” Id., Exh. “K” at 5.
Finally, counsel certified that the Petition included every ground known to her that
was appropriate for a PCR petition; however, Petitioner wished to raise four (4) issues
pro se. Id., Exh. “K” at 5. Petitioner asserted the following:
(1) Petitioner’s term of probation expired prior to the revocation and the
State failed to timely revoke his probation;
(2) violation of the Double Jeopardy clause of the U.S. constitution as a
result of his sentence subsequent to the expiration of his probation;
(3) ineffective assistance of counsel based on a lack of a factual basis for
the crime he plead to, burglary, because Petitioner was a leaseholder on the
property he was charged with burglarizing; [and]
(4) ineffective assistance of counsel based on counsel’s failure to challenge
the indictments of sexual assault, class two felonies, instead of sexual
assault of a spouse, class six felonies.
Answer (Doc. 18), Exh. “K” at 5.
On January 15, 2015, the Rule 32 court addressed the two (2) arguments raised by
counsel, but ignored those urged by Petitioner alone. Answer (Doc. 18), Ariz. Superior

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Court, Pima County, Case No. CR056376, Ruling 1/15/2015 (Exh. “N”). The Rule 32
court held that it was “not prepared to give the Petitioner the benefit of the

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Apprendi/Blakely line of cases when he absconded for almost a decade and a half

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preventing the Court from sentencing him, at all.”3 Answer (Doc. 18), Exh. “N” at 2.

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Regarding Petitioner’s ineffective assistance of counsel claim, the Rule 32 court found
that counsel was not ineffective and neither was Petitioner prejudiced. Id., Exh. “N” at 2.
The Rule 32 court pointed out that the “victim statements were very clear and the crime

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was terrible[,] [and] [i]t stretches the imagination to think a jury would not find emotional

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harm to the victim, especially in light of the fact that the victim would state that the

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Petitioner continued to contact her and ‘gloat’ over the years he was on absconder

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status.” Id., Exh. “N” at 2. As such, the Rule 32 court denied relief and dismissed the
petition. Answer (Doc. 18), Exh. “N” at 2.
On February 2, 2015, Petitioner filed his pro se Petition for Review in the Arizona
Court of Appeals.

See Answer (Doc. 18), Pet. for Review 2/2/2015 (Exh. “O”).

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Petitioner asserted the following issues for review: (1) whether his sentence “is in
violation of the Constitutions of the United States and the State of Arizona and exceeded
the maximum authorized by law”; (2) ineffective of counsel at sentencing “because trial

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counsel failed to recognize that any aggravation must be proved to a jury beyond a

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reasonable doubt”; (3) whether his term of probation expired prior to revocation

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nullifying the revocation; (4) violation of the Double Jeopardy clause, because he was

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sentenced subsequent to the expiration of probation; (5) ineffective assistance of counsel
because his plea allegedly lacked a factual basis; and (6) ineffective assistance of counsel

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Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000);
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

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for a failure to challenge the indictment alleging sexual assault instead of sexual assault
of a spouse. Answer (Doc. 18), Exh. “O” at 3.

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Petitioner asserted that he never waived having a jury consider aggravating factors
for sentencing, and as such, his sentence “exceed[ed] the maximum sentenced [sic]
authorized by the jury verdict alone” in violation of his Sixth Amendment rights. Id.,

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Exh. “O” at 3–5. Petitioner further asserted that the trial court erred by not applying

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Apprendi in determining his sentence. Id., Exh. “O” at 5–10. Petitioner argued that this

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resulted in a sentence that “exceed[ed] the maximum authorized by law” and was

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therefore unconstitutional. Id., Exh. “O” at 10. Petitioner also asserted that his trial

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counsel was ineffective at sentencing, because “[c]ounsel must have been ignorant of the

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law when not detecting Petitioners [sic] right to a jury trial[.]” Id., Exh. “O” at 11.

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Petitioner also alleged a due process violation, arguing that the State of Arizona

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misapplied A.R.S. § 13-903, and should have relied on Arizona Criminal Procedure Rule
27.10. Answer (Doc. 18), Exh. “O” at 11–17. Petitioner asserted that “a term of
probation has to be revoked during the probationary period,” which he alleged that the

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State failed to do, thereby divesting the trial court of jurisdiction to revoke Petitioner’s

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probation.

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misconduct because “[t]he State went as far as to have a warrant issued for the original

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Id., Exh. “O” at 13.

Additionally, Petitioner asserted prosecutorial

burglary charge and not the probation violation[.]” Id., Exh. “O” at 15. Petitioner

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alleged that this was done to ensure his extradition from Mexico. Id., Exh. “O” at 15.

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Petitioner further alleged a due process violation because he believes that the trial courts

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imposition of “a subsequent prison sentence after the term of probation expired, . . .
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violated the Double Jeopardy Clause of the Fifth Amendment.” Id., Exh. “O” at 19
(citations omitted).

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Finally, Petitioner claimed ineffective assistance of counsel during plea
negotiations. Answer (Doc. 18), Exh. “O” at 19–20. Petitioner argued that counsel was
ineffective due to an alleged failure to dispute the charge of sexual assault, arguing that

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Petitioner should have been charged with sexual assault of a spouse. Id., Exh. “O” at 19–
20. Moreover, Petitioner believed that he cannot have committed burglary, because he
was a leaseholder on the property. Id., Exh. “O” at 19–20.
On June 10, 2015, Petitioner filed a Motion for Speedy Disposition in the court of

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appeals. Answer (Doc. 18), Court of Appeals, State of Ariz., Case No. 2 CA-CR 2015-

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0047-PR, Pet.’s Motion for Speedy Disposition (Exh. “P”).

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The Arizona Court of

Appeals granted Petitioner’s Motion for Speedy Disposition on June 17, 2015. Answer

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(Doc. 18), Court of Appeals, State of Ariz., Case No. 2 CA-CR 2015-0047-PR, Order
6/17/2015 (Exh. “Q”) & Order 6/29/2015 (Exh. “R”).
On July 14, 2015, the Arizona Court of Appeals granted review, but denied relief.

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Suppl. Answer (Doc. 29), Court of Appeals, State of Ariz., Case No. 2 CA-CR 2015-

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0047-PR, Mem. Decision 7/14/2015 (Exh. “S”).

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“[a]lthough we disagree with the [Rule 32] court’s reasoning, we nonetheless find that it

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The appellate court indicated that

reached the right result and also deny relief.” Id., Exh. “S” at 3 (citing State v. Oakley,

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180 Ariz. 34, 36, 881 P.2d 366, 368) (Ct. App. 1994)). The appellate court went on to

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limit its discussion “to the two arguments counsel presented to the trial court in the Rule

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32 petition below.” Id., Exh. “S” at 3–4. The appellate court “assume[d] without
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deciding that Blakely applie[d] to the sentence imposed upon Edgar’s probation
revocation in May 2014.” Id., Exh. “S” at 4 (citations omitted). The court observed,

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however, that “Edgar [had] failed to object based on Blakely at sentencing; . . . therefore
forfeit[ing] his right to relief absent fundamental, prejudicial error.” Id., Exh. “S” at 4
(citations omitted). The Arizona Court of Appeals then “conclude[d] that no rational jury

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could have failed to find beyond a reasonable doubt that the victim suffered substantial

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emotional harm resulting from Edgar’s actions during the 1997 burglary, and . . . thus

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conclude[d] Edgar ha[d] not demonstrated he was prejudiced by any error.” Suppl.

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Answer (Doc. 29), Exh. “S” at 6–7. Moreover, “because Edgar ha[d] not established

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fundamental, prejudicial error, [the appellate court] [could not] say the [Rule 32] court

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abused its discretion in denying relief on his related claim of ineffective assistance of

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counsel.” Id., Exh. “S” at 8. Petitioner did not seek review this decision by the Arizona

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Supreme Court. See Suppl. Answer (Doc. 29), Court of Appeals, State of Ariz., Case No.
2 CA-CR 2015-0047-PR, Mandate 9/4/2015 (Exh. “T”).
C. The Instant Habeas Proceeding

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On February 10, 2015, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a

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Writ of Habeas Corpus by a Person in State Custody (Doc. 1). Petitioner claims five (5)

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grounds for relief. First, Petitioner alleges that his “term of probation expired on October

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22, 2002[,] [but] [t]he State did not revoke probation until May 13, 2014[,] then

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sentenced Petitioner to a 7 (seven) year prison term on an . . . expired term of probation.”

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Petition (Doc. 1) at 4. Petitioner supports his contention by arguing that the monthly fees

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incurred match with the number of days his original probation term. Id. at 5. Petitioner
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also alleges that this delay in revocation violated his due process rights. Petition (Doc. 1)
at 12–13; see also Suppl. Reply (Doc. 32) at 11–14. Second, Petitioner alleges that his

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“sentence is in violation of the Constitutions of the United States and The [sic] State of
Arizona and exceeded the maximum authorized by law because the aggravating factors
used to determine his sentence were not proven to a jury beyond a reasonable doubt.”

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Petition (Doc. 1) at 6. Petitioner further asserts that his plea agreement does not contain a
waiver of his right to have a jury make findings regarding any aggravating factors, and
that absconding “is only a technical violation” of his probation.

Id. at 6, 15–16.

Petitioner argues that Apprendi and Blakely require that any fact that increases the

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defendant’s sentence beyond the statutory maximum must be proven to a jury and found

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beyond a reasonable doubt, which Petitioner further asserts did not occur during his

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revocation hearing. Suppl. Reply (Doc. 32) at 5–9. Third, Petitioner alleges ineffective

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assistance of counsel at sentencing, because “[c]ounsel . . . failed to recognize Petitioners
[sic] right that any aggravation must be proved to a jury beyond a reasonable doubt.”
Petition (Doc. 1) at 7, 17.

Petitioner also alleges that counsel was ineffective for

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“fail[ing] to detect . . . Petitioners [sic] probationary term expired in 2002[.]” Suppl.

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Reply (Doc. 32) at 10. Fourth, Petitioner alleges ineffective assistance of trial counsel

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“based on a lack of a factual bases [sic] for the crime Petitioner plead to.” Petition (Doc.

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1) at 8. Petitioner argues that he “was a leaseholder of the home to which was [sic]

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alleged to have been burglarized” and he was married to the victim. Id. Petitioner also

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faults counsel for “fail[ing] to offer evidence or file timely motion for a review of the

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indictment.” Id. Petitioner asserts that he should have been charged with sexual assault
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between spouses pursuant to A.R.S. §13-1406.01, rather than the sexual assault to which
he pleaded guilty. Id. at 17–18. Fifth, Petitioner asserts that counsel was ineffective

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during plea negotiations. Petition (Doc. 1) at 8–9. Petitioner reiterates his complaints
that counsel did not challenge the indictment regarding the sexual assault charge, nor did
counsel file any motions. Id. at 9.

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On July 20, 2015, Respondents filed their Limited Answer (Doc. 18), asserting

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that Petitioner had only advanced unexhausted claims in his federal habeas petition. On

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July 21, 2015, Petitioner filed a Reply (Doc. 21). On January 22, 2016, Respondents

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filed a Supplemental Answer (Doc. 29) in light of the Arizona Court of Appeals decision

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completing Petitioner’s PCR proceeding.

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On February 25, 2016, Plaintiff filed his

Supplemental Reply (Doc. 32).

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II.

STANDARD OF REVIEW
A. In General
The federal courts shall “entertain an application for a writ of habeas corpus in

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

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

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States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus

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by a person in state custody
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
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based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.

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28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398,

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

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habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116

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

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

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

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

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

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court decisions be given the benefit of the doubt.”

Pinholster, 131 S.Ct. at 1398

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(citations and internal quotation marks omitted).

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

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

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

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

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L.Ed.2d 348 (2013).

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Federal courts reviewing a petition for habeas corpus must

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

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presumption with ‘clear and convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465,

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473–74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)).

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Moreover, on habeas review, the federal courts must consider whether the state court’s

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determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473, 127 S.Ct. at

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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

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delineated by the Supreme Court, but when the court applies the principles to the facts
before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct.
770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146

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

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

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

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beyond any possibility for fairminded disagreement.’” Burt, 134 S.Ct. at 10 (quoting
Harrington, 562 U.S. at 103, 131 S.Ct. at 786–87) (alterations in original).
B. Exhaustion of State Remedies
Prior to application for a writ of habeas corpus, a person in state custody must

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exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This
“provides a simple and clear instruction to potential litigants: before you bring any claims
to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy,

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

As such, the

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

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

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1347, 1349, 158 L.Ed. 2d 64 (2004) (internal quotations omitted). Moreover, “[t]he

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exhaustion doctrine is principally designed to protect the state courts’ role in the

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enforcement of federal law and prevent disruption of state judicial proceedings.” Rose,

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455 U.S. at 518, 102 S.Ct. at 1203 (internal citations omitted). This upholds the doctrine
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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

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

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

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

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

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

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presentation requirement mandates that a state prisoner must alert the state court “to the

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presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting

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

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Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting
petitioner’s assertion that his claim had been “fairly presented” because his brief in the
state appeals court did not indicate that “he was complaining about a violation of federal

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

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

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

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petitioner presented claim in state court only on state grounds). Furthermore, in order to

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

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Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349.

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“Generally, a petitioner satisfies the

exhaustion requirement if he properly pursues a claim (1) throughout the entire direct
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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

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Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed.
1998)).
In Arizona, however, for non-capital cases “review need not be sought before the

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

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

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

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

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have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for

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the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346,

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

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C. Procedural Default
“A habeas petitioner who has defaulted his federal claims in state court meets the
technical requirements for exhaustion; there are no state remedies any longer ‘available’

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

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

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

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25

of the federal question and adequate to support the judgment.” Id., 501 U.S. at 728, 111

26

S.Ct. at 2254. This is true whether the state law basis is substantive or procedural. Id.

27

(citations omitted). Such claims are considered procedurally barred from review. See

28

Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
- 14 -

1
2

The Ninth Circuit Court of Appeals explained the difference between exhaustion
and procedural default as follows:

3

14

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)).

15

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

4
5
6
7
8
9
10
11
12
13

16
17

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

18

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

19

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

20

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

21
22

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

23

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

24

judgment and would therefore be advisory.” Id. Second, where a “petitioner failed to

25
26

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

27

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

28

procedurally barred.” Id. at 735 n.1, 111 S.Ct. at 2557 n.1 (citations omitted). Thus, the
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1
2

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

3
4
5
6

923, 931 (9th Cir. 1998)) (emphasis in original).
Where a habeas petitioner’s claims have been procedurally defaulted, the federal
courts are prohibited from subsequent review unless the petitioner can show cause and

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); see

11
12

also Smith v. Murray, 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986)

13

(recognizing “that a federal habeas court must evaluate appellate defaults under the same

14

standards that apply when a defendant fails to preserve a claim at trial.”).

15

“[T]he

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

16
17
18
19

can show that some objective factor external to the defense impeded counsel’s efforts to
comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106
S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d

20
21

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

22

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

23

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

24
25

must show actual prejudice, meaning that he “must show not merely that the errors . . .

26

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

27

disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray,

28

477 U.S. at 494, 106 S.Ct. at 2648 (emphasis in original) (internal quotations omitted).
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1
2

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.

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.’” Herrera 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.” Herrera, 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. §

In Arizona, a petitioner’s claim may be procedurally defaulted where he has

26

waived his right to present his claim to the state court “at trial, on appeal or in any

27

previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3). “If an asserted claim is of

28

sufficient constitutional magnitude, the state must show that the defendant ‘knowingly,
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1
2

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”

3
4
5
6

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

7
8

better suited to make these determinations.” Cassett, 406 F.3d at 622.

9
10

III.

11

STATUTE OF LIMITATIONS
As a threshold matter, the Court must consider whether Petitioner’s petition is

12
13

barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921–22 (9th Cir.

14

2002).

15

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. §

16
17
18
19
20
21
22

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

23
24
25
26
27

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

28

- 18 -

1
2

28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time
during which a properly filed application for State post-conviction or other collateral

3
4
5
6

review with respect to the pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.”

28 U.S.C. § 2244(d)(2).

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

The Court has

7
8
9

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

10
11
12

IV.

ANALYSIS

13

A.

14

Petitioner asserts that his “term of probation expired on October 22, 2002[,] [but]

15

Ground One: Due Process Entitlement to a Prompt Revocation Hearing

[t]he State did not revoke probation until May 13, 2014[,] then sentenced Petitioner to a 7

16
17
18
19

(seven) year prison term on an . . . expired term of probation.” Petition (Doc. 1) at 4.
Petitioner further alleges that this delay in revocation violated his due process rights. Id.
at 12–13; see also Suppl. Reply (Doc. 32) at 11–14. Respondents assert that Petitioner

20
21

“attempted to bootstrap to his appointed counsel’s claims in state court, [and] the state

22

court found them procedurally improper and precluded because they had been raised in

23

violation a [sic] state-law-based prohibition against hybrid representation.”

24
25

Suppl.

Answer (Doc. 29) at 6. As such, Respondents assert that “the claims are technically

26

exhausted and precluded under the independent and adequate state-court doctrine.” Id.

27

The Court agrees with Respondents.

28

In Petitioner’s PCR proceeding, his counsel certified that the Petition included
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1
2

every ground known to her that was appropriate for a PCR petition; however, indicated
that Petitioner wished to raise four (4) additional grounds pro se. Answer (Doc. 18),

3
4
5
6

Pet.’s Pet. for PCR (Exh. “K”) at 5. One of the additional grounds was that “Petitioner’s
term of probation expired prior to the revocation and the State failed to timely revoke his
probation.” Id. The Rule 32 court addressed the two (2) arguments raised by counsel,

7
8

but ignored those urged by Petitioner alone. Answer (Doc. 18), Ariz. Superior Court,

9

Pima County, Case No. CR056376, Ruling 1/15/2015 (Exh. “N”). Petitioner again raised

10

the issue to the Arizona Court of Appeals. Answer (Doc. 18), Pet. for Review 2/2/2015

11
12

(Exh. “O”) at 3.

He also alleged a due process violation in the revocation of his

13

probation. Id., Exh. “O” at 11–17. The Arizona Court of Appeals granted review, but

14

denied relief. Suppl. Answer (Doc. 29), Court of Appeals, State of Ariz., Case No. 2 CA-

15

CR 2015-0047-PR, Mem. Decision 7/14/2015 (Exh. “S”). The appellate court “limit[ed]

16
17
18
19
20
21
22
23
24

[its] discussion, however, to the two arguments counsel presented to the trial court in the
Rule 32 petition below[.]” Id., Exh. “S” at 3–4. The court further noted:
To the extent counsel suggested in the Rule 32 petition below that Edgar
“may have other issues he wishes to raise in a pro se Petition,” we note
that, not only is there no constitutional or other right to hybrid
representation, State v. Murray, 184 Ariz. 9, 27, 906 P.2d 542, 560 (1995),
but the trial court had informed Edgar more than once that it would not
accept hybrid representation, and in fact, had asked counsel to “remind
[Edgar] of the proper procedure.”
Id., Exh. “S” at 4 n.3. Accordingly, the appellate court explicitly upheld the Rule 32

25
26
27
28

court’s refusal to address Petitioner’s pro se claims, including any ostensible claim for a
due process violation arising from the revocation of an allegedly expired term.
Because Petitioner’s claim was precluded by the Arizona courts, it is procedurally
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1
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defaulted. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a), 32.4; see also Coleman v. Thompson,
501 U.S. 722, 729, 111 S.Ct. 2546, 2253–54, 115 L.Ed.2d 640 (1991) (federal courts will

3
4
5
6

not review a state court decision based upon independent and adequate state law grounds,
including procedural rules). Where a habeas petitioner’s claims have been procedurally
defaulted, the federal courts are prohibited from subsequent review unless the petitioner

7
8

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

9

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

10

appellate proceeding barred federal habeas review unless petitioner demonstrated cause

11
12

and prejudice).

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

13

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

14

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

15

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

16
17
18
19

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

20
21

[and as such,] there is no basis on which to address the merits of his claims.”). Neither

22

has Petitioner “establish[ed] by clear and convincing evidence that but for the

23

constitutional error, no reasonable factfinder would have found [him] guilty of the

24
25

underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, Petitioner has failed to meet

26

the cause and prejudice standard. See Coleman, 501 U.S. at 748, 111 S.Ct. at 2564

27

(citations and quotations omitted).

28

Accordingly, Petitioner’s claim for a due process violation arising from the
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1
2

revocation of an allegedly expired term of probation is without merit.
B.

Ground Two: Apprendi Violation

3
4
5
6

Petitioner alleges that his “sentence is in violation of the Constitutions of the
United States and The [sic] State of Arizona and exceeded the maximum authorized by
law because the aggravating factors used to determine his sentence were not proven to a

7
8

jury beyond a reasonable doubt.” Petition (Doc. 1) at 6. Petitioner argues that Apprendi

9

and Blakely require that any fact that increases a defendant’s sentence beyond the

10

statutory maximum must be proven to a jury and found beyond a reasonable doubt;

11
12

however, this did not occur during his revocation hearing. Suppl. Reply (Doc. 32) at 5–9.

13

Furthermore, Petitioner asserts that his plea agreement did not contain a waiver of his

14

right to have a jury make findings regarding any aggravating factors, and that absconding

15

“is only a technical violation” of his probation, thereby making his sentence

16
17
18
19

unconstitutional. Petition (Doc. 1) at 6, 15–16. Respondent asserts that “even assuming
Edgar had been entitled to a jury determination on the single, maximum-sentence-eligible
aggravating factor of emotional harm to the victim,[] any error was harmless[.] Suppl.

20
21
22
23
24
25

Answer (Doc. 29) at 10. The Court agrees with Respondent.
1. State court review.
Petitioner raised this claim in his PCR Petition. Answer (Doc. 18), Pet.’s Petition
for Post-Conviction Relief Pursuant to Rule 32, Ariz. R. Crim. P. (Exh. “K”) at 1, 3–4.

26

Petitioner argued that “[b]ased on the plea entered into by Petitioner, the maximum

27

sentence faced . . . was the presumptive sentence of 3.5 years, absent an admission or

28

waiver by the Petitioner to allow the Court to find aggravating factors[,] [but] [n]o such
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1
2

admission or waiver is contained in the record of Petitioner’s plea[,] [and] [n]o jury was
convened to consider the aggravating factors.” Id., Exh. “K” at 3. As such, Petitioner

3
4
5
6

asserts that his sentence was imposed in violation of his Fifth and Sixth Amendment
rights. Id., Exh. “K” at 3–4. The Rule 32 Court found that “[h]ad Petitioner not
absconded, he would have been sentenced prior to Apprendi, and in Arizona, at least at

7
8
9
10
11
12

present, neither Apprendi, nor Blakely, are retroactive. Answer (Doc. 18), Ariz. Superior
Ct., Pima County, Case No. CR056376, Ruling 1/15/2015 (Exh. “N”) at 2. Accordingly,
the Rule 32 court denied relief. Id., Exh. “N” at 2.
Petitioner reiterated his claim to the Arizona Court of Appeals in his Petition for

13

Review. See Answer (Doc. 18), Pet.’s Pet. for Review (Exh. “O”). The appellate court

14

“assume[d] without deciding that Blakely applies to the sentence imposed upon Edgar’s

15

probation revocation in May 2014.” Suppl. Answer (Doc. 29), Court of Appeals, State of

16
17
18
19

Ariz., Case No. 2 CA-CR 2015-0047-PR, Mem. Decision 7/14/2015 (Exh. “S”) at 4. The
court went on to determine that “[b]ecause the court considered the harm to the victim as
an aggravating circumstance in the absence of a jury finding to that effect, a finding that

20
21

was neither Blakely compliant nor exempt, it violated Blakely and fundamental error

22

occurred.” Id., Exh. “S” at 5 (citing State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369

23

(Ct. App. 2002)). In determining whether the Blakely error was prejudicial, the appellate

24
25

court considered “whether a reasonable jury, applying the appropriate standard of proof,

26

could have reached a different result [regarding the aggravators] than did the trial judge.”

27

Id., Exh. “S” at 5–6 (quoting State v. Henderson, 201 Ariz. 561, ¶ 27, 115 P.3d 601, 609

28

(2005)) (alterations in original). The appellate court reviewed the presentence report and
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1
2

its addendum, the victim’s statements to the presentence officer, as well as her own letter
to the court, all of which detailed the harm and trauma Petitioner caused the victim.

3
4
5
6

Suppl. Answer (Doc. 29), Exh. “S” at 6. In light of this evidence and Petitioner’s failure
to object at sentencing, the appellate court held that “[o]n the record before us, we
conclude that no rational jury could have failed to find beyond a reasonable doubt that the

7
8

victim suffered substantial emotional harm resulting from Edgar’s actions during the

9

1997 burglary, and we thus conclude Edgar has not demonstrated he was prejudiced by

10

any error.” Id., Exh. “S” at 6–7 (citations omitted). As such, the appellate court denied

11
12
13
14
15

relief. Id., Exh. “S” at 8.
2. Standard of review.
The Supreme Court of the United States has considered the appropriate standard of
review for Blakely errors, and held that “[f]ailure to submit a sentencing factor to the

16
17
18
19

jury, like failure to submit an element to the jury, is not structural error.” Washington v.
Recuenco, 548 U.S. 212, 222, 126 S.Ct. 2546, 2553, 165 L.Ed.2d 466 (2006).
Accordingly, the Court determined harmless-error analysis to be the appropriate standard

20
21

of review. See id., 548 U.S. at 220–22, 126 S.Ct. at 2552–53. The Court observed that it

22

has “repeatedly recognized that the commission of a constitutional error at trial alone

23

does not entitle a defendant to automatic reversal[,] [and] . . . ‘most constitutional errors

24
25

can be harmless.’” Id., 548 U.S. at 218, 126 S.Ct. at 2551 (quoting Neder v. United

26

States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Furthermore, “[i]f the

27

defendant had counsel and was tried by an impartial adjudicator, there is a strong

28

presumption that any other [constitutional] errors that may have occurred are subject to
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1
2

harmless-error analysis.” Id., 548 U.S. at 218, 126 S.Ct. at 2551 (quoting Neder, 527
U.S. at 8, 119 S.Ct. 1827) (alterations in original). The Court noted that “[o]nly in rare

3
4
5
6

cases has this Court held that an error is structural, and thus requires automatic reversal.”
Id., 548 U.S. at 218, 126 S.Ct. at 2551.
A petitioner’s sentencing error is not harmless if a reviewing court has “‘grave

7
8

doubt’ as to whether a jury would have found the relevant aggravating factors beyond a

9

reasonable doubt.” Butler v. Curry, 528 F.3d 624, 648 (9th Cir. 2008) (citing O’Neal v.

10

McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)). “Grave doubt

11
12

exists when, ‘in the judge’s mind, the matter is so evenly balanced that he feels himself in

13

virtual equipoise as to the harmlessness of the error.’” Id. 528 F.3d at 648 (quoting

14

O’Neal, 513 U.S. at 435, 115 S.Ct. 992)).

15

3. Petitioner’s sentence.

16
17
18
19

On habeas review, this Court shall not grant relief “with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of the
claim . . . resulted in a decision that was contrary to, or involved an unreasonable

20
21
22
23
24
25

application of, clearly established Federal law, as determined by the Supreme Court of
the United States[.]” 28 U.S.C. § 2254(d).
Here, the appellate court considered “whether a reasonable jury, applying the
appropriate standard of proof, could have reached a different result [regarding the

26

aggravators] than did the trial judge.” Suppl. Answer (Doc. 29), Court of Appeals, State

27

of Ariz., Case No. 2 CA-CR 2015-0047-PR, Mem. Decision 7/14/2015 (Exh. “S”) at 5–6

28

(quoting State v. Henderson, 201 Ariz. 561, ¶ 27, 115 P.3d 601, 609 (2005)) (alterations
- 25 -

1
2

in original). After consideration of all of the evidence available to the sentencing court,
the appellate court concluded “that no rational jury could have failed to find beyond a

3
4
5
6

reasonable doubt that the victim suffered substantial emotional harm resulting from
Edgar’s actions during the 1997 burglary[.]” Id., Exh. “S” at 6–7. As such, any error in
sentencing was harmless. This finding is consistent with clearly established Supreme

7
8
9
10
11
12

Court precedent. Accordingly, Petitioner’s claim must fail.
C.

Ground Three: Ineffective Assistance of Counsel
1. Legal Standards

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

13

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

14

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

15

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

16
17
18
19

show that counsel’s performance was deficient. Id. at 687, 104 S.Ct. at 2064. “This
requires showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, Petitioner

20
21

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

22

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

23

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

24
25

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

26

688, 104 S.Ct. at 2065; see also State v. Carver, 160 Ariz. 167, 771 P.2d 1382 (1989)

27

(adopting Strickland two-part test for ineffective assistance of counsel claims). The Sixth

28

Amendment’s guarantee of effective assistance is not meant to “improve the quality of
- 26 -

1
2

legal representation,” rather it is to ensure the fairness of trial. Strickland, 466 U.S. at
689, 104 S.Ct. at 2065. “Thus, ‘[t]he benchmark for judging any claim of ineffectiveness

3
4
5
6

must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.’”
Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011)

7
8

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

9

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

10

. . and when the two apply in tandem, review is ‘doubly’ so[.]” Harrington v. Richter,

11
12

562 U.S. 86, 105, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (citations omitted).

13

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

14

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

15

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

16
17
18
19

considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76
S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Without the requisite showing of either “deficient
performance” or “sufficient prejudice,” Petitioner cannot prevail on his ineffectiveness

20
21

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

22

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

23

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

24
25

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

26

(alterations in original). “The challenger’s burden is to show ‘that counsel made errors so

27

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

28

Sixth Amendment.’” Harrington, 562 U.S. at 104, 131 S.Ct. at 787 (quoting Strickland,
- 27 -

1
2

466 U.S. at 689, 104 S.Ct. 2052). Accordingly, “[w]e apply the doubly deferential
standard to review the state court’s ‘last reasoned decision.’” Vega v. Ryan, 757 F.3d

3
4
5
6

960, 966 (9th Cir. 2014) (citations omitted). “By its terms § 2254(d) bars relitigation of
any claim ‘adjudicated on the merits’ in state court, subject only to the exceptions in
2254(d)(1) and (d)(2).” Harrington, 131 U.S. at 98, 131 S.Ct. at 784. As such, Petitioner

7
8
9
10
11
12

also bears the burden of showing that the state court applied Strickland to the facts of his
case in an objectively unreasonable manner. See Bell v. Cone, 535 U.S. 685, 698–99, 122
S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002); see also 28 U.S.C. § 2254(d).
Additionally, “[a]s a general matter, each ‘unrelated alleged instance [ ] of

13

counsel’s ineffectiveness’ is a separate claim for purposes of exhaustion.” Gulbrandson

14

v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d

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

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

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

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

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

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(citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736,

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788 (D. Ariz. 2008) (“Petitioner’s assertion of a claim of ineffective assistance of counsel

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based on one set of facts, does not exhaust other claims of ineffective assistance based on

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different facts”).
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2. Sentencing
Petitioner claims that his counsel was ineffective at sentencing for allegedly

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“fail[ing] to recognize Petitioners [sic] right that any aggravation must be proved to a jury
beyond a reasonable doubt.” Petition (Doc. 1) at 7. Respondents assert that Petitioner
cannot show prejudice, and therefore counsel was not ineffective under Strickland.

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Suppl. Answer (Doc. 29) at 11.

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Petitioner raised this claim in his PCR petition. See Answer (Doc. 18), Pet.’s Pet.

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for PCR Pursuant to Rule 32 Ariz. R. Crim. P. (Exh. “K”) at 1, 4–5. Petitioner asserted

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that “[t]he rules established by Apprendi and Blakely have been well-established for over

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a decade now[,] . . . [and] a brief review of his original plea agreement would have shown

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that he did not waive the right to have a jury determine aggravating factors beyond a

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reasonable doubt.” Id., Exh. “K” at 5. The Rule 32 court found that counsel was not

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ineffective, nor was Petitioner prejudiced. Answer (Doc. 18), Ariz. Superior Ct., Pima
County, Case No. CR056376, Ruling 1/15/2015 (Exh. “N”) at 2. As such, the Rule 32
court denied relief. Id., Exh. “N” at 4. The Arizona Court of Appeals held that “because

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Edgar ha[d] not established fundamental, prejudicial error, we cannot say the court

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abused its discretion in denying relief on his related claim of ineffective assistance of

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counsel.” Suppl. Answer (Doc. 29), Court of Appeals, State of Ariz., Case No. 2 CA-CR

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2015-0047-PR, Mem. Decision 7/14/2015 (Exh. “S”) at 8.

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Here, Petitioner cannot demonstrate prejudice. As discussed in Section IV.B.,

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supra, any Blakely error was harmless. The appellate court’s conclusion “that no rational

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jury could have failed to find beyond a reasonable doubt that the victim suffered
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substantial emotional harm[,]” dictates that any alleged failures by counsel would not
have altered Petitioner’s sentence. Petitioner has failed to present any evidence to show

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that the Arizona courts’ decisions regarding his ineffective assistance claim are contrary
to or an unreasonable application of clearly established Supreme Court law or based on
an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); see also Bell v.

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Cone, 535 U.S. 685, 698–99, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002).

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

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

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

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738 F.3d at 991.

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sentencing is without merit.

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Petitioner’s ineffective assistance of counsel claim regarding his

3. Factual basis of plea.

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Petitioner alleges that he “was a leaseholder of the home to which was [sic]
alleged to have been burglarized . . . [and] Petitioner and Victim resided in the home with
our minor daughter[,] [and] Petitioner and the victim were lawfully married at the time,

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[but] Counsel failed to offer evidence or file timely motion for a review of the

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indictment.” Petition (Doc. 1) at 8. Respondents assert that Petitioner “attempted to

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bootstrap [this claim] to his appointed counsel’s claims in state court, [and] the state court

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found them procedurally improper and precluded because they had been raised in

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violation a [sic] state-law-based prohibition against hybrid representation.”

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Answer (Doc. 29) at 6. The Court agrees with Respondents.

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Suppl.

Petitioner raised this as a pro se claim in his PCR petition. See Answer (Doc. 18),
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Pet.’s Pet. for PCR (Exh. “K”) at 5. As discussed in Section IV.A., supra, the Rule 32
court addressed the two (2) arguments raised by counsel, but ignored those urged by

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Petitioner alone.

Answer (Doc. 18), Ariz. Superior Ct., Pima County, Case No.

CR056376, Ruling 1/15/2015 (Exh. “N”). The appellate court also refused to address
Petitioner’s pro se claims noting the lack of a constitutional or other right to hybrid

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representation. Suppl. Answer (Doc. 29), Court of Appeals, State of Ariz., 2 CA-CR
2015-0047-PR, Mem. Decision 7/14/2015 (Exh. “S”) at 4 n.3.
Because Petitioner’s claim was precluded by the Arizona courts, it is procedurally
defaulted. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a), 32.4; see also Coleman v. Thompson,

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501 U.S. 722, 729, 111 S.Ct. 2546, 2253–54, 115 L.Ed.2d 640 (1991) (federal courts will

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not review a state court decision based upon independent and adequate state law grounds,

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including procedural rules). Where a habeas petitioner’s claims have been procedurally

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

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appellate proceeding barred federal habeas review unless petitioner demonstrated cause

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and prejudice).

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

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

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

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

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

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quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir.
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1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . .
[and as such,] there is no basis on which to address the merits of his claims.”). Neither

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has Petitioner “establish[ed] by clear and convincing evidence that but for the
constitutional error, no reasonable factfinder would have found [him] guilty of the
underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, Petitioner has failed to meet

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the cause and prejudice standard, and his claim for ineffective assistance of counsel
arising from the alleged factual basis of his plea is without merit. See Coleman, 501 U.S.
at 748, 111 S.Ct. at 2564 (citations and quotations omitted).

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4. Plea negotiations

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Petitioner alleges that trial counsel was ineffective during plea negotiations, and
failed to challenge the indictment or file any motions.

Petition (Doc. 1) at 8–9.

Petitioner asserts that he should have charged with sexual assault between spouses

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pursuant to A.R.S. § 13-1406.01, rather than the sexual assault to which he pleaded
guilty.4 Id. at 17–18. Respondents again assert that Petitioner “attempted to bootstrap
[this claim] to his appointed counsel’s claims in state court, [and] the state court found

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them procedurally improper and precluded because they had been raised in violation a

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[sic] state-law-based prohibition against hybrid representation.” Suppl. Answer (Doc.

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29) at 6. The Court agrees with Respondents.

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Petitioner raised this as a pro se claim in his PCR petition. See Answer (Doc. 18),
Pet.’s Pet. for PCR (Exh. “K”) at 5. As discussed in Sections IV.A. and IV.C.3., supra,
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Petitioner makes this claim under Ground Four in the “Argument” section of his
Petition, as well as in enumerated Ground Five. For clarity, the Court addresses this claim only
once.

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the Rule 32 court addressed the two (2) arguments raised by counsel, but ignored those
urged by Petitioner alone. Answer (Doc. 18), Ariz. Superior Ct., Pima County, Case No.

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CR056376, Ruling 1/15/2015 (Exh. “N”). The appellate court also refused to address
Petitioner’s pro se claims noting the lack of a constitutional or other right to hybrid
representation. Suppl. Answer (Doc. 29), Court of Appeals, State of Ariz., 2 CA-CR

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2015-0047-PR, Mem. Decision 7/14/2015 (Exh. “S”) at 4 n.3.
The reasoning in Section IV.C.3., supra, applies here. Petitioner’s claim was

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precluded by the Arizona courts, and is procedurally defaulted.

Ariz. R. Crim. P.

32.1(d)–(h), 32.2(a), 32.4; see also Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct.

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2546, 2253–54, 115 L.Ed.2d 640 (1991) (federal courts will not review a state court

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decision based upon independent and adequate state law grounds, including procedural

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rules). Petitioner has failed to meet the cause and prejudice standard, and his claim for

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ineffective assistance of counsel arising from any alleged failures regarding plea
negotiations must fail. See Coleman, 501 U.S. at 748, 111 S.Ct. at 2564 (citations and
quotations omitted).

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D.

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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 recommends the Petition (Doc. 1) be denied.

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V.

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

District Judge enter an order DENYING Petitioner’s Petition Under 28 U.S.C. § 2254 for
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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
being served with a copy of this Report and Recommendation. A party may respond to
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
Court. If objections are filed, the parties should use the following case number: CV-150063-TUC-CKJ.
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

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

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Dated this 31st day of January, 2018.

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