Will v. Ryan et al

Filing 16

Duplicate document filed. All docket text associated with the entry has been removed on 4/19/2018 (BAC).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robin P. Will,
Petitioner,

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ORDER

v.

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No. CV-15-00203-TUC-JAS (BGM)

Charles Ryan, et al.,

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Respondents.

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Pending before the Court is Petitioner Robin P. Will’s pro se Petition Under 28

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U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death

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

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Corpus (“Answer”) (Doc. 13). Petitioner filed a reply (Doc. 14). The Petition is ripe for

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adjudication.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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A.

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The Arizona Court of Appeal stated the facts1 as follows:

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In March 2010, the victim, [Mr. Towne], was living with his girlfriend [Ms.
Sperle]. Following an argument with [Ms. Sperle], [Mr. Towne] left in [Ms.
Sperle]’s car. While [Mr. Towne] was away from the residence, [Ms.
Sperle] telephoned [Petitioner] and asked him to come over. [Mr. Towne]

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Trial

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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 (2007); Wainwright v. Witt, 469 U.S. 412,
426 (1985); cf. Rose v. Lundy, 455 U.S. 509, 519 (1982).

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returned home later that evening and attempted to enter. [Petitioner] opened
the door, put a knife to [Mr. Towne]’s throat and ordered him to “drop the
keys.” [Petitioner] kept the knife at [Mr. Towne]’s throat and, when [Mr.
Towne] sat down on the couch, [Petitioner] cut his throat. [Mr. Towne]
began to struggle with [Petitioner] and suffered additional cuts to his hand.
[Ms. Sperle], who witnessed the attack, dialed 9-1-1 and told [Petitioner] to
leave. [Mr. Towne] sought treatment for his injuries, which were not
life-threatening.

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Answer (Doc. 13), Ariz. Ct. of Appeals, Mem. Decision 05-10-2012 (Ex. “A”) at ¶ 2.

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On March 18, 2010, a Cochise County Grand Jury indicted Petitioner and charged

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him with Count I – Attempted First Degree Murder with premeditation, Count II –

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Aggravated Assault with a deadly weapon, Count III – Aggravated Assault causing

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serious physical injury, Count IV – Aggravated Assault causing serious physical injury,

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and Count V – Misconduct Involving Weapons by knowingly possessing a deadly or

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prohibited weapon by a prohibited possessor. Answer (Doc. 13), Appellant’s Opening

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Brief (Ex. “H”) at 7. Counts III and IV were later dismissed and Count V was

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renumbered as Count III; hereafter the Court shall refer to this as Count III or the

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“prohibited possessor” count. Answer (Doc. 13), Superior Ct. for the State of Ariz. for

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the County of Cochise, Tr. 08-23-2010 (Ex. “C”) at 3:13-19.

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On the first day of trial, Petitioner requested “an order to disclose state’s file or

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disclosure of file in reference to Jerry Towne, who was on trial last week and was

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convicted of a number of the counts in the Indictment, all but one.” Id. at 12:17-21. The

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court then put on the record “that the [S]tate is ordered to disclose the file on Mr.

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Towne.” Id. at 13:1-2. Mr. Towne had been convicted of several counts, including three

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felonies, the week prior. Id. at 12:19-21; Answer (Doc. 13), Pet. for Post-Conviction

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Relief (Ex. “N”) at 11.2

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On the second day of trial, Mr. Towne testified. Answer (Doc. 13), Superior Ct.

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for the State of Ariz. for the County of Cochise, Tr. 08-24-2010 AM (Ex. “D”) at 36.

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During his testimony, the State pointed out that Mr. Towne was “wearing jail clothes”

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Petitioner alleges that this information was either never disclosed to Petitioner’s
attorney or Petitioner’s attorney failed to utilize the information to impeach Mr. Towne.
Id.
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and asked “have you been convicted of a felony?” Id. at 36:11-15. Petitioner’s attorney

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did not ask Mr. Towne about his criminal record. See id. at 44-50.

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The State presented five witnesses in total: Detective Damian Barron, Jerry

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Towne, Megan Sperle, Deputy Weston Ress, and Detective Timothy Wachtel. Answer

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(Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise, Tr. 08-24-2010

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AM (Ex. “D”) at 2, 88:15-17. Additionally, the State admitted various pictures and

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Petitioner’s alleged knife. Id.

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After the close of evidence, Petitioner asked for several jury instructions,

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including justification of use of force in crime prevention and in defense of third parties.3

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Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise, Tr.

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08-24-2010 PM (Ex. “E”) at 48:7-12. The court agreed to instruct the jury on defense of

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third parties and refused to instruct the jury regarding justification of use of force for

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crime prevention. Id. at 55:7-16, 58:14-59:5.

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During deliberation the jury asked, “does the term, ‘prohibited possessor’ include

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a knife?” Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise,

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Tr. 08-25-2010 (Ex. “F”) at 21:4-5. The court directed the jury to review the instructions

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on the definition of a deadly weapon and misconduct involving weapons. Id. at

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21:24-22:1.

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The jury found Petitioner not guilty on Count I – Attempted murder, and guilty on

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Count II – Aggravated Assault by using a deadly weapon or dangerous instrument

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(“Aggravated Assault”) and Count III – Misconduct Involving Weapons by knowingly

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possessing a deadly or prohibited weapon by a prohibited possessor (“Prohibited

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Possessor”). Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of

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Cochise, Tr. 08-26-2010 (Ex. “G”) at 2:16-3:16.

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On November 15, 2010, the court sentenced Petitioner to concurrent, presumptive

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Petitioner did request additional instructions, but the Court omits the additional
requests in the interest of efficiency and clarity as they are not challenged within the
Petition. Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise,
Tr. 08-24-2010 PM (Ex. “E”) at 51:10-11, 55:7-16, 63:13.
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terms of incarceration of 7.5 years on Count II and 10 years on Count III. Answer (Doc.

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13), Superior Ct. for the State of Ariz. for the County of Cochise, Tr. 11-15-2010 (Ex.

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“J”) at 67:12-14.

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B.

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On November 21, 2011, Petitioner filed his Opening Brief with the Arizona Court

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of Appeals. Answer (Doc. 13), Appellant’s Opening Br. (Ex. “H”). Petitioner presented

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two issues on appeal. Id. at 6. Petitioner challenged “the trial court’s refusal to instruct

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the jury on justification – crime prevention,” and the sufficiency of the evidence for

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Petitioner’s conviction for weapons misconduct. Id.

Direct Appeal

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Relying on Arizona state law, Petitioner asserted that Petitioner “came within the

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privilege of A.R.S. § 13-411, as well as its presumption of reasonableness, under the facts

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of this case.” Id. at ¶ 45. Further, Petitioner asserted that “[t]he failure to give

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[Petitioner]’s requested instruction was not harmless error. The facts of this case

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permitted the inference that [Petitioner] acted under the reasonable apprehension that a

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crime was going to occur in Ms. Sperle’s home if Mr. Towne entered the home; that

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crime being an aggravated assault upon Ms. Sperle causing serious physical injury or

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perhaps even a homicide given Mr. Towne’s earlier threats and his violent nature, both of

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which were known to [Petitioner].” Id. at ¶ 47. Finally, “[i]t cannot therefore be said

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beyond a reasonable doubt that had the Jury been instructed on justification – crime

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prevention, it would have convicted [Petitioner] of Aggravated Assault. He is, therefore,

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entitled to a new trial on the Aggravated Assault offense.” Id. at ¶ 52.

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On May 10, 2012, the Arizona Court of Appeals affirmed Petitioner’s convictions.

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See Answer (Doc. 13), Ariz. Ct. of Appeals, Mem. Decision 05-10-2012 (Ex. “A”). The

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court rejected Petitioner’s argument by stating that “[n]o evidence indicated that

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[Petitioner], at the time he put the knife to [Mr. Towne]’s throat, had reason to believe

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force was immediately necessary to prevent [Mr. Towne]’s commission of aggravated

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assault or murder of [Ms. Sperle]. . . . Thus, we cannot say the trial court abused its

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discretion in finding there was insufficient evidence that [Petitioner] reasonably believed

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he was acting to prevent an aggravated assault or murder, and that an instruction pursuant

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to § 13-411 therefore was not warranted.” Id. at ¶ 6 (footnotes omitted). The court also

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stated that there “was sufficient evidence from which the jury could conclude the knife

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was designed for lethal use.” Id. at ¶ 9.

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Petitioner appealed to the Arizona Supreme Court, who denied review in a minute
order. See Answer (Doc. 13), Ariz. Supreme Ct., Min. Order 09-13-2012 (Ex. “L”).

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C.

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On December 3, 2012, Petitioner filed his Notice of Intent to File for

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Post-Conviction Relief (“PCR”). Answer (Doc. 13), Not. of Intent to File PCR (Ex.

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“M”). On August 9, 2013, Petitioner filed his Petition for PCR. Answer (Doc. 13), Pet.

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for PCR (Ex. “N”). Petitioner presented three arguments:

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State Post-Conviction Relief Proceedings

Argument I.
[Petitioner’s trial attorney] was ineffective in failing to
file a motion to sever the prohibited possessor count from the remaining
counts. [Petitioner] was prejudiced by trial counsel’s failure because in
order to prove the prohibited possessor count, the State had to introduce
evidence of at least one of [Petitioner]’s prior convictions.
Id. at 7.
Argument II.
At the time of trial Mr. Towne had five prior felony
convictions and numerous misdemeanor convictions which were not
disclosed prior to trial. The prosecutor committed misconduct in failing to
disclose Mr. Towne’s prior convictions and in eliciting misleading
testimony from Mr. Towne about his prior convictions. [Petitioner’s trial
attorney] was ineffective in failing to investigate Mr. Towne’s criminal
history, in failing object to Mr. Towne’s misleading testimony about his
prior convictions and in filing an untimely motion to vacate judgment
which the court was unable to rule on due to the untimeliness of the motion.
Id. at 11.
Argument III.
arguments.

Trial

counsel

was

ineffective

during

closing

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Id. at 17. Further, Petitioner argued prejudice and fundamental error resulting from the

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above errors. Id. at 20-24.

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Petitioner first argued that “[i]n order to present sufficient evidence to the jury to

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establish the elements of the Prohibited Possessor count, the State had to establish that

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[Petitioner] had a prior felony conviction . . . . Although the State alleged that [Petitioner]

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was a Prohibited Possessor, the fact that [Petitioner] did or did not possess a weapon

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illegally was not a fact necessary for the proof of the remaining counts.” Id. at 7-8.

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Further, “[t]here was no proper purpose for the admission of the evidence necessary to

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prove the Prohibited Possessor count at the trial on the remaining counts. Therefore,

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admission of such evidence violated [Petitioner]’s Due Process guarantees.” Id. at 10.

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Petitioner concluded his first argument by asserting that his trial counsel “was ineffective

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in failing to move to sever the Prohibited Possessor count from the remaining counts.” Id.

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Second, Petitioner argued that “[t]he Prosecutor committed misconduct by asking

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Mr. Towne a misleading question. The response to that question mislead the jury into

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believing that Mr. Towne only had one prior felony conviction.”4 Id. at 11. “The

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Prosecutor . . . asked Mr. Towne, ‘. . . have you been convicted of a felony?’ Mr. Towne

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responded, [‘][y]es, I have.’” Id. at 12 (second alteration in original). Additionally,

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Petitioner argued that “[t]he Prosecutor committed misconduct if he failed to disclose Mr.

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Towne’s criminal history.”5 Id. Petitioner argued that those acts of misconduct denied

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him his right to due process. Id. at 14. Next, Petitioner argued that his trial attorney was

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ineffective in failing to properly investigate Mr. Towne’s criminal record. Id. at 15. Then,

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Petitioner argued that his trial attorney was untimely in filing a motion to vacate

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judgment based on new evidence regarding Mr. Towne’s criminal history. Id. at 16. The

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trial court stated, “[t]he [c]ourt in considering arguments presented is disturbed with the

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non-disclosure of Mr. Towne’s previous criminal history.” Id. (first alteration in original)

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(quoting ROA, Doc. 79). The court then found that it lacked the authority to extend the

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time to file a motion to vacate. Id.

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Finally, Petitioner argued that his “[t]rial counsel was ineffective during closing

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arguments.” Id. at 17. Petitioner argued that his trial counsel failed to sufficiently

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Capitalization has been altered from capitalization of each word to sentence case
capitalization for ease and readability.
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Capitalization has been altered from capitalization of each word to sentence case
capitalization for ease and readability.
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distinguish the knife in his case from a weapon “designed for lethal use, such as a saber.”

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Id. Additionally, Petitioner argued that his attorney should have presented the potential

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absurd results from finding that any knife was a deadly weapon. Id.

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On May 20, 2014, the Rule 32 court denied, in part, and granted, in part,

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Petitioner’s PCR petition. Answer (Doc. 13), Superior Ct. for the State of Ariz. for the

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County of Cochise, Decision Re: Rule 32 Pet. 05-20-2014 (Ex. “S”). The Rule 32 court

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reversed and set aside Petitioner’s conviction on Count II – Aggravated Assault. Id. at 7.

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The Rule 32 court did not reverse Petitioner’s sole remaining conviction, the Prohibited

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Possessor count. See id.

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First, the Rule 32 court stated that trial counsel’s decision to not file a motion to

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sever did not fall below the “strong presumption” that the assistance was effective and

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that the decision did not prejudice Petitioner. Id. at 3 (quoting Strickland v. Washington,

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466 U.S. 611, 689 (1984)).

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Second, the Rule 32 court found that Petitioner “did not include in his appeal the

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issue of prosecutorial misconduct and has, therefore, waived such issue.” Id. at 4. The

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Rule 32 court considered the prejudice caused by counsel failing to timely investigate Mr.

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Thorne’s criminal history and failing to timely alert the court to the State’s failure to

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disclose. Id. at 5. The court stated:

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Overall, as to the aggravated assault count, if the State’s key witness
had been further impeached with his two additional out-of-state felonies or
if the [c]ourt had been timely requested to vacate the conviction for
aggravated assault, there is more than a “mere possibility” that the jury
would have more fully considered [Petitioner]’s justification defense and
acquitted him of the charge. The State has failed to establish that, beyond a
reasonable doubt, the above constitutional defect was “harmless”.
As to the prohibited possessor count, based on the [c]ourt’s
FINDING, in A above and the nature of the elements of such crime, the
lack of disclosure of Mr. Towne’s prior felonies or the inability to further
impeach Mr. Towne is of no consequence. The evidence submitted by the
State on this count did not depend on the credibility of Mr. Towne’s
testimony and stands separate from the evidence submitted on the
aggravated assault. It is not necessary or appropriate to grant a new trial as
to all counts when the State has failed to produce required Brady[6]
evidence. [Arizona] v. Jones, 170 Ariz. 556, 560, 587 P.2d 742, 746 (Ariz.

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Brady v. Maryland, 373 U.S. 83 (1963).
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1978). [Petitioner] failed to prove by a preponderance of the evidence, that
trial counsel’s performance as to the prohibited possessor count was
deficient.

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Id. at 6.

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Finally, the Rule 32 court considered trial counsel’s effectiveness during the
closing argument. The Rule 32 court found “that [Petitioner] has failed to prove that [trial
counsel]’s closing argument was deficient as measured by a reasonableness standard of
prevailing professional norms.” Id. Additionally, the court reasoned that the jury had the
knife in question and photographs of Mr. Thorne’s injuries caused by the knife. Id. at 6-7.

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On June 19, 2014, Petitioner’s counsel moved to withdraw because “he [saw] no
legitimate issue upon which to file a Petition for Review.” Answer (Doc. 13), Mot. To
Withdraw as Counsel for the Def. and for Addditional (sic) Time for Def. to File a Pro Se
Pet., Should He Desire to Do So (Ex. “T”).

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On July, 24, 2014, Petitioner filed an Amended Petition for Review under
AZRCRP 32.9(c). Answer (Doc. 13), Def.’s Am. Pet. for Review Under AZRCRP
32.9(c) (Ex. “U”). Petitioner presented three issues for review. Id. at 2.

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

Whether the trial court erred in concluding that [Petitioner] had
failed to prove that his trial counsel was ineffective in not moving
for a severance of his weapons misconduct (felon in possession)
count from the remaining counts (attempted first degree murder,
aggravated assault, and misconduct with weapon (prohibited
possessor) (sic).

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Whether the trial court erred in concluding that counsel’s failure to
properly investigate the victim’s criminal history was limited to the
count of aggravated assault only.

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Whether trial counsel’s failure to interview state’s witnesses
constituted ineffectiveness (sic) assistance. Although the decision
does not address trial counsel’s ineffectiveness in failing to interview
state’s witnesses, the court heard extensive expert witness testimony
on this issue.

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Id.
On November 17, 2014, the Arizona Court of Appeals for Division Two granted
review, but denied relief. Answer (Doc. 13), Ariz. Ct. of Appeals, Mem. Decision 11-172014 (Ex. “V”). The court of appeals found that
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[Petitioner] [ ] failed to show resulting prejudice, particularly in light of the
trial court’s grant of partial relief. [Petitioner]’s severance argument is
focused entirely on the admission of evidence of his previous conviction in
relation to his charge of aggravated assault. He does not argue that
severance would have benefitted him at trial on the charge of prohibited
possession of a weapon. And he does not address the court’s conclusions
that his weapons conduct conviction was based on evidence separate from
that required to convict him of aggravated assault and that the victim’s
credibility was not material to that conviction. Nor does he explain how
counsel’s failure to interview witnesses prejudiced him as to that charge.
Instead, he asserts without elaboration that the jury could have reached a
different result and that “[i]t is impossible to know to what extent counsel’s
ineffectiveness impacted the jury’s analysis of the case.” Unsupported
speculation that the jury might have reached a different result is insufficient
to show prejudice. See [Arizona] v. Rosario, 195 Ariz. 264, ¶ 23, 987 P.2d
226, 230 (App. 1999) (to establish claim of ineffective assistance, petitioner
must present more than “mere speculation” that prejudice resulted).
[Petitioner] has not demonstrated the court abused its discretion in limiting
his relief to his aggravated assault conviction.”
Id. at ¶ 7. The Arizona Supreme Court denied review of Petitioner’s PCR. Answer (Doc.
13), Letter from Ariz. Supreme Ct., 05-27-2015 (Ex. “W”).
D.

The Instant Habeas Proceeding

On May 18, 2015, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ
of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Petitioner
claims seven (7) grounds for relief. Those grounds can be broken into three groups,
prosecutorial misconduct, ineffective assistance of counsel, and error with trial court’s
jury instruction.
In ground one, Petitioner alleges “prosecutorial misconduct by failing and/or
refusing to disclose Brady material prior to Petitioner’s trial, in violation of the 6th and
14th Amendments of the United States Constitution.” Id. at 6. In ground two, Petitioner
alleges that “the prosecutor committed misconduct by misleading the jury to believe
[Mr.] Towne only had 1 prior felony conviction in violation of the 5th and 14th
Amendments of the United States Constitution.” Id. at 7. Petitioner alleges that “the
prosecutor asked Mr. Towne ‘. . . have you been convicted of a felony?’ This question
obviously deceived the trier of fact(s) to believe that [Mr.] Towne had only 1 prior felony
conviction, when the prosecutor was well aware of the fact that [Mr.] Towne had 5 prior
felony convictions before testifying at Petitioner’s trial.” Id.
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In ground three, Petitioner alleges trial counsel was ineffective due to “failure to

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investigate Mr. Towne’s criminal history for impeachment evidence in violation of

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Petitioner’s 6th Amendment right to effective assistance of counsel under the United

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States Constitution.” Id. at 8. In ground four, Petitioner alleges trial counsel was

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ineffective by “failing to file a motion to sever the prohibited possessor count from

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remaining counts in violation of Petitioner’s 6th and 14th Amendment rights to effective

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assistance of counsel and due process under the United States Constitution.” Id. at 9. In

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ground five, Petitioner alleges that trial counsel was ineffective during his closing

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arguments and for failing to “timely file the motion to vacate judgment in violation of

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Petitioner’s 6th and 14th Amendment rights to effective assistance of counsel due process

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and a fair trial under the United States Constitution.” Id. at 10.

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In ground six, Petitioner alleges that the trial court erred by refusing “to instruct

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the jury on justification – crime prevention in violation of Petitioner’s 5th and 14th

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Amendment rights under the United States Constitution.” Id. at 11. In ground seven,

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Petitioner alleges that the trial court erred by refusing “to instruct the jury on weapons

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misconduct as a prohibited possessor in violation of Petitioner’s 5th and 14th

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Amendment rights under the United States Constitution.” Id. at 12. This claim arose from

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a jury question in which the jury asked, “does the term, ‘prohibited possessor’ include a

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knife?” Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise,

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Tr. 08-25-2010 (Ex. “F”) at 21:4-5.

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On July 13, 2015, Respondents filed their Answer (Doc. 13), and on August 10,
2015, Petitioner filed his Traverse (Doc. 14).

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II.

STANDARD OF REVIEW

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A.

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

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

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

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

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a person in state custody

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In General

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.
28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011).
Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v.
McGuire, 502 U.S. 62, 67 (1991). Ultimately, “[t]he statute’s design is to ‘further the
principles of comity, finality, and federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945
(2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337 (2003)). Furthermore, this
standard is difficult to meet and highly deferential “for evaluating state-court rulings,
[and] which demands that state-court decisions be given the benefit of the doubt.”
Pinholster, 563 U.S. at 181 (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
“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims
have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013). Federal
courts reviewing a petition for habeas corpus must “presume the correctness of state
courts’ factual findings unless applicants rebut this presumption with ‘clear and
convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (quoting 28
U.S.C. § 2254(e)(1)). Moreover, on habeas review, the federal courts must consider
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whether the state court’s determination was unreasonable, not merely incorrect. Id. at

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473; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is

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unreasonable where a state court properly identifies the governing legal principles

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

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before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 101 (2011);

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Williams v. Taylor, 529 U.S. 362, 376-77 (2000); see also Casey v. Moore, 386 F.3d 896,

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905 (9th Cir. 2004). “AEDPA requires ‘a state prisoner [to] show that the state court’s

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ruling on the claim being presented in federal court was so lacking in justification that

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there was an error . . . beyond any possibility for fairminded disagreement.’” Burt, 134 S.

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Ct. at 10 (quoting Harrington, 562 U.S. at 103) (alterations in original).

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B.

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

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

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

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

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455 U.S. 509, 520 (1982). As such, the exhaustion doctrine gives the state courts “the

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opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.”

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Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal citation and quotation marks omitted).

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Moreover, “[t]he exhaustion doctrine is principally designed to protect the state courts’

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role in the enforcement of federal law and prevent disruption of state judicial

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proceedings.” Rose, 455 U.S. at 518 (internal citations omitted). This upholds the

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doctrine of comity which “teaches that one court should defer action on causes properly

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within its jurisdiction until the courts of another sovereignty with concurrent powers, and

24

already cognizant of the litigation, have had an opportunity to pass upon the matter.” Id.

25

(quoting Darr v. Burford, 339 U.S. 200, 204 (1950)).

Exhaustion of State Remedies

26

Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long

27

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

28

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

- 12 -

1

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

2

v. Connor, 404 U.S. 270, 275 (1971). The fair presentation requirement mandates that a

3

state prisoner must alert the state court “to the presence of a federal claim” in his petition,

4

simply labeling a claim “federal” or expecting the state court to read beyond the four

5

corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 33 (2004) (rejecting

6

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

7

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

8

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

9

federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.

10

1999) (holding that petitioner failed to exhaust federal due process issue in state court

11

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

12

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

13

court.” Baldwin, 541 U.S. at 29. “Generally, a petitioner satisfies the exhaustion

14

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

15

process of the state, or (2) throughout one entire judicial postconviction process available

16

in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting LIEBMAN &

17

HERTZ, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 23.3b (9th ed. 1998)).

18

In Arizona, however, for non-capital cases “review need not be sought before the

19

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

20

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

21

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

22

has further interpreted § 2254(c) to recognize that once the state courts have ruled upon a

23

claim, it is not necessary for an applicant to seek collateral relief for the same issues

24

already decided upon direct review. Castille v. Peoples, 489 U.S. 346, 350 (1989).

25
26
27
28

- 13 -

1

C.

2

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

3

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

4

to him.” Coleman v. Thompson, 501 U.S. 722, 732 (1991). Moreover, federal courts “will

5

not review a question of federal law decided by a state court if the decision of that court

6

rests on a state law ground that is independent of the federal question and adequate to

7

support the judgment.” Id. at 729. This is true whether the state law basis is substantive or

8

procedural. Id. (citations omitted). Such claims are considered procedurally barred from

9

review. See Wainwright v. Sykes, 433 U.S. 72, 83-84 (1977).

10
11
12
13
14
15
16
17
18
19
20
21
22
23

Procedural Default

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)).

24

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

25

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

26

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

27

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

28

courts are prohibited from review in such cases because they have “no power to review a

- 14 -

1

state law determination that is sufficient to support the judgment, resolution of any

2

independent federal ground for the decision could not affect the judgment and would

3

therefore be advisory.” Id. at 729. Second, where a “petitioner failed to exhaust state

4

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

5

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

6

barred.” Id. at 735 n.1 (citations omitted). Thus, the federal court “must consider whether

7

the claim could be pursued by any presently available state remedy.” Cassett, 406 F.3d at

8

621 n.6 (quoting Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998)).

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

actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that

12

failure to raise claims in state appellate proceeding barred federal habeas review unless

13

petitioner demonstrated cause and prejudice); see also Smith v. Murray, 477 U.S. 527,

14

533 (1986) (recognizing “that a federal habeas court must evaluate appellate defaults

15

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

16

“[T]he existence of cause for a procedural default must ordinarily turn on whether the

17

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

18

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

19

(1986); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996)

20

(petitioner failed to offer any cause “for procedurally defaulting his claims of ineffective

21

assistance of counsel, [as such] there is no basis on which to address the merits of his

22

claims.”). In addition to cause, a habeas petitioner must show actual prejudice, meaning

23

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

24

that they worked to his actual and substantial disadvantage, infecting his entire trial with

25

error of constitutional dimensions.” Murray, 477 U.S. at 494 (internal quotations

26

omitted). Without a showing of both cause and prejudice, a habeas petitioner cannot

27

overcome the procedural default and gain review by the federal courts. Id.

28

The Supreme Court has recognized, however, that “the cause and prejudice

- 15 -

1

standard will be met in those cases where review of a state prisoner’s claim is necessary

2

to correct ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722,

3

748 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)). “The fundamental

4

miscarriage of justice exception is available ‘only where the prisoner supplements his

5

constitutional claim with a colorable showing of factual innocence.’” Herrera v. Collins,

6

506 U.S. 390, 404 (1993) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). Thus,

7

“‘actual innocence’ is not itself a constitutional claim, but instead a gateway through

8

which a habeas petitioner must pass to have his otherwise barred constitutional claim

9

considered on the merits.” Id. Further, in order to demonstrate a fundamental miscarriage

10

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

11

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

12

underlying offense.” 28 U.S.C. § 2254(e)(2)(B).

13

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

14

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

15

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

16

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

17

voluntarily and intelligently’ waived the claim.” Id. 2002 cmt. Neither Rule 32.2 nor the

18

Arizona Supreme Court has defined claims of “sufficient constitutional magnitude”

19

requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 46 P.3d

20

1067 (2002). The Ninth Circuit Court of Appeals recognized that this assessment “often

21

involves a fact-intensive inquiry” and the “Arizona state courts are better suited to make

22

these determinations.” Cassett, 406 F.3d at 622.

23
24
25
26
27
28

- 16 -

1

III.

STATUTE OF LIMITATIONS

2

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

3

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

4

2002). The AEDPA mandates that a one-year statute of limitations applies to applications

5

for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Section

6

2244(d)(1) provides that the limitations period shall run from the latest of:

7
8
9
10

(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;

11
12
13

(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

14
15

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

16
17

28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time

18

during which a properly filed application for State post-conviction or other collateral

19

review with respect to the pertinent judgment or claim is pending shall not be counted

20

toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2).

21

Respondents do not dispute the timeliness of Petitioner’s petition. The Court has

22

independently reviewed the record and finds that the Petition (Doc. 1) is timely pursuant

23

to 28 U.S.C. § 2244(d)(1)(A).

24
25
26
27
28

- 17 -

1

IV.

ANALYSIS

2

A. Grounds One and Two: Prosecutorial Misconduct

3

In ground one, Petitioner asserts “prosecutorial misconduct by failing and/or

4

refusing to disclose Brady material prior to Petitioner’s trial, in violation of the 6th and

5

14th Amendments of the United States Constitution.” (Doc. 1 at 6.) In ground two,

6

Petitioner alleges that “the prosecutor committed misconduct by misleading the jury to

7

believe [Mr.] Towne only had 1 prior felony conviction in violation of the 5th and 14th

8

Amendments of the United States Constitution.” (Doc. 1 at 7.) Petitioner alleges that “the

9

prosecutor asked Mr. Towne ‘. . . have you been convicted of a felony?’ This question

10

obviously deceived the trier of fact(s) to believe that [Mr.] Towne had only 1 prior felony

11

conviction, when the prosecutor was well aware of the fact that [Mr.] Towne had 5 prior

12

felony convictions before testifying at Petitioner’s trial.” Id.

13

Petitioner brought both of those claims to the Superior Court for the State of

14

Arizona for the County of Cochise. See Answer (Doc. 13), Superior Ct. for the State of

15

Ariz. for the County of Cochise, Decision Re: Rule 32 Pet. 05-20-2014 (Ex. “S”). The

16

Rule 32 court denied relief on both claims and found that Petitioner “did not include in

17

his appeal the issue of prosecutorial misconduct and has, therefore, waived such issue.”

18

Id. at 4. Petitioner then did not include either claim in his appeal. See Answer (Doc. 13),

19

Def.’s Am. Pet. for Review Under AZRCRP 32.9(c) (Ex. “U”).

20

Petitioner did not exhaust these claims. See Swoopes v. Sublett, 196 F.3d 1008,

21

1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F. Supp. 2d 925 (D. Ariz. 2007);

22

Moreno v. Gonzalez, 962 P.2d 205 (Ariz. 1998). Additionally, because Petitioner’s

23

claims were precluded by the Arizona courts, they are procedurally defaulted. Ariz. R.

24

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

25

(1991) (federal courts will not review a state court decision based upon independent and

26

adequate state law grounds, including procedural rules). Where a habeas petitioner’s

27

claims have been procedurally defaulted, the federal courts are prohibited from

28

subsequent review unless the petitioner can show cause and actual prejudice as a result.

- 18 -

1

Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state

2

appellate proceeding barred federal habeas review unless petitioner demonstrated cause

3

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

4

Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the

5

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

6

substantial disadvantage, infecting his entire trial with error of constitutional

7

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

8

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

9

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

10

of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence

11

that but for the constitutional error, no reasonable factfinder would have found [him]

12

guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). To the extent that there is a

13

claim with Petitioner’s Traverse that the court of appeals prevented him from bringing

14

this claim, there is no proof of prejudice. The Rule 32 court did examine the prejudice

15

resulting from failure to admit Mr. Towne’s complete and accurate criminal history

16

during an ineffective assistance of counsel claims, which is the same standard applied for

17

Brady materiality. See Gentry v. Sinclair, 705 F.3d 884, 906 (9th Cir. 2013) (“Brady

18

materiality and Strickland prejudice are the same.”). As such, Petitioner has failed to

19

demonstrate a fundamental miscarriage of justice in order to meet the cause and prejudice

20

standard.7 See Coleman, 501 U.S. at 748 (citations and quotations omitted).

21

Therefore, Petitioner’s claims regarding prosecutorial misconduct cannot stand.

22
23
24
25
26
27
28

7

Broadly read, Petitioner’s Traverse asserts a claim for actual innocence claiming that
“[t]he arguments made in [Petitioner]’s appeal (pages 29, ¶ 56 through pg 36 ¶ 65 [of Petitioner’s
opening brief]) show that [Petitioner] did not possess a lethal weapon as written in the law.”
Traverse (Doc. 14 at 4.) The Court rejects Petitioner’s claim of actual innocence.

- 19 -

1
2

B. Grounds Three, Four, and Five: Ineffective Assistance
1. Legal Standard

3

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

4

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

5

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

6

Washington, 466 U.S. 668 (1984). First, Petitioner must show that counsel’s performance

7

was deficient. Id. at 687. “This requires showing that counsel made errors so serious that

8

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

9

Amendment.” Id. Second, Petitioner must show that this performance prejudiced his

10

defense. Id. Prejudice “requires showing that counsel’s errors were so serious as to

11

deprive the defendant of a fair trial, at trial whose result is reliable.” Id. Ultimately,

12

whether or not counsel’s performance was effective hinges on its reasonableness under

13

prevailing professional norms. Strickland, 466 U.S. at 688; see also State v. Carver, 771

14

P.2d 1382 (1989) (adopting Strickland two-part test for ineffective assistance of counsel

15

claims). The Sixth Amendment’s guarantee of effective assistance is not meant to

16

“improve the quality of legal representation,” rather it is to ensure the fairness of trial. Id.

17

at 689. “Thus, ‘[t]he benchmark for judging any claim of ineffectiveness must be whether

18

counsel’s conduct so undermined the proper functioning of the adversarial process that

19

the trial cannot be relied on as having produced a just result.’” Cullen v. Pinholster, 563

20

U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 686) (alteration in original).

21

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

22

. . and when the two apply in tandem, review is ‘doubly’ so.” Harrington v. Richter, 562

23

U.S. 86, 105 (2011) (citations omitted). Judging counsel’s performance must be made

24

without the influence of hindsight. See Strickland, 466 U.S. at 689. As such, “the

25

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

26

action ‘might be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350

27

U.S. 91, 101 (1955)). Without the requisite showing of either “deficient performance” or

28

“sufficient prejudice,” Petitioner cannot prevail on his ineffectiveness claim. Id. at 700.

- 20 -

1

“[T]he question is not whether counsel’s actions were reasonable. The question is

2

whether there is any reasonable argument that counsel satisfied Strickland’s deferential

3

standard.” Gentry v. Sinclair, 705 F.3d 884, 899 (9th Cir. 2013) (quoting Harrington, 562

4

U.S. at 105) (alteration in original). “The challenger’s burden is to show ‘that counsel

5

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

6

defendant by the Sixth Amendment.’” Harrington, 562 U.S. at 104 (quoting Strickland,

7

466 U.S. at 687). Accordingly, “[w]e apply the doubly deferential standard to review the

8

state court’s ‘last reasoned decision.’” Vega v. Ryan, 757 F.3d 960, 966 (9th Cir. 2014)

9

(citations omitted). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on

10

the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”

11

Harrington, 131 U.S. at 98. As such, Petitioner also bears the burden of showing that the

12

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

13

manner. See Bell v. Cone, 535 U.S. 685, 698-99 (2002); see also 28 U.S.C. § 2254(d).

14

Additionally, “[a]s a general matter, each ‘unrelated alleged instance [ ] of

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

Gulbrandson, 738 F.3d at 992 (citations and internal quotations omitted); see also Date v.

25

Schriro, 619 F. Supp. 2d 736, 788 (D. Ariz. 2008) (“Petitioner’s assertion of a claim of

26

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

27

of ineffective assistance based on different facts”).

28

- 21 -

1

2. Ground Three

2

In ground three, Petitioner alleges trial counsel was ineffective due to “failure to

3

investigate Mr. Towne’s criminal history for impeachment evidence in violation of

4

Petitioner’s 6th Amendment right to effective assistance of counsel under the United

5

States Constitution.” (Doc. 1 at 8.) Petitioner raised the claim underlying ground three to

6

the Superior Court for the State of Arizona for the County of Cochise in a Rule 32

7

Petition. See Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of

8

Cochise, Decision Re: Rule 32 Pet. 05-20-2014 (Ex. “S”). The Rule 32 court found that

9

Petitioner’s trial counsel did act below the professional standard by failing to properly

10

investigate Mr. Towne. Id. at 5-6. The Rule 32 court found that Petitioner’s trial counsel

11

did not prejudiced Petitioner as to the Prohibited Possessor conviction by failing to

12

properly investigate Mr. Towne. Id. Petitioner appealed to the Arizona Court of Appeals

13

regarding the prejudice of trial counsel’s failure to investigate Mr. Towne to Petitioner’s

14

Prohibited Possessor conviction. Answer (Doc. 13), Def.’s Am. Pet. for Review Under

15

AZRCRP 32.9(c) (Ex. “U”) at 2. Respondent acknowledges that ground three was

16

exhausted and is not procedurally defaulted. (Doc. 13 at 9 at 5-9.)

17

Petitioner argues that his trial counsel’s “ineffectiveness was so systemic that it

18

carried through from the very start up to and beyond the conclusion of trial.” (Doc. 14 at

19

4.) Petitioner argues that if his trial counsel had been aware of Mr. Towne’s actual

20

criminal history, Mr. Towne’s credibility would have been undermined to such an extent

21

that there is a “reasonable probability” that the jury would have returned a different

22

verdict as to the Prohibited Possessor conviction. (See Doc. 14 at 5.) The Rule 32 court

23

found that “[t]he evidence submitted by the State on [the Prohibited Possessor] count did

24

not depend on the credibility of Mr. Towne’s testimony and stands separate from the

25

evidence submitted on the aggravated assault.” Answer (Doc. 13), Superior Ct. for the

26

State of Ariz. for the County of Cochise, Decision Re: Rule 32 Pet. 05-20-2014 (Ex. “S”)

27

at 6. This finding was adopted by the Arizona Court of Appeals. Answer (Doc. 13), Ariz.

28

Ct. of Appeals, Mem. Decision 11-17-2014 (Ex. “V”) at ¶ 7. Petitioner has failed to

- 22 -

1

present any evidence to show that the Arizona courts’ decisions are contrary to or an

2

unreasonable application of clearly established Supreme Court law or based on an

3

unreasonable determination of the facts. See 28 U.S.C. § 2254(d); see also Bell v. Cone,

4

535 U.S. 685, 698–99 (2002).

5

In considering Petitioner’s ineffective assistance of counsel claim, the Rule 32

6

court properly stated and relied upon the Strickland standard. Accordingly, this Court

7

finds that the Arizona courts did not unreasonably apply clearly established federal law or

8

unreasonably determine the facts in light of the evidence presented, and Petitioner cannot

9

meet his burden to show prejudice. See Gulbrandson v. Ryan, 738 F.3d 976, 991 (9th Cir.

10

2013). As such, Petitioner’s claim in ground three for ineffective assistance of counsel

11

fails.

12

3. Ground Four

13

In ground four, Petitioner alleges trial counsel was ineffective by “failing to file a

14

motion to sever the prohibited possessor count from remaining counts in violation of

15

Petitioner’s 6th and 14th Amendment rights to effective assistance of counsel and due

16

process under the United States Constitution.” (Doc. 1 at 9.) Petitioner raised the claim

17

underlying ground four to the Superior Court for the State of Arizona for the County of

18

Cochise in a Rule 32 Petition. See Answer (Doc. 13), Superior Ct. for the State of Ariz.

19

for the County of Cochise, Decision Re: Rule 32 Pet. 05-20-2014 (Ex. “S”). Petitioner

20

originally argued that “[i]n order to present sufficient evidence to the jury to establish the

21

elements of the Prohibited possessor count, the State had to establish that [Petitioner] had

22

a prior felony conviction . . . . Although the State alleged that [Petitioner] was a

23

Prohibited Possessor, the fact that [Petitioner] did or did not possess a weapon illegally

24

was not a fact necessary for the proof of the remaining counts.” Answer (Doc. 13), Pet.

25

for PCR (Ex. “N”) at 7-8. The Rule 32 court found that Petitioner’s trial counsel did not

26

act below the professional standard by failing to move to sever. Id. at 3. The Rule 32

27

court found that Petitioner’s trial counsel did not prejudiced Petitioner by failing to move

28

to sever charges. Id. Petitioner appealed to the Arizona Court of Appeals regarding this

- 23 -

1

claim. Answer (Doc. 13), Def.’s Am. Pet. for Review Under AZRCRP 32.9(c) (Ex. “U”)

2

at 2. Respondent acknowledges that ground three was exhausted and is not procedurally

3

defaulted. (Doc. 13 at 9 at 5-9.)

4

Petitioner cannot show that trial counsel was ineffective or that Petitioner was

5

prejudiced by failing to move to sever. As such, Petitioner cannot “overcome the

6

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

7

sound trial strategy.’” Strickland v. Washington, 466 U.S. 668, 689 (1984) (quoting

8

Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Moreover, Petitioner has failed to present

9

any evidence to show that the Arizona courts’ decisions regarding his ineffective

10

assistance claim are contrary to or an unreasonable application of clearly established

11

Supreme Court law or based on an unreasonable determination of the facts. See 28 U.S.C.

12

§ 2254(d); see also Bell v. Cone, 535 U.S. 685, 698–99 (2002). Accordingly, this Court

13

finds that the Arizona courts did not unreasonably apply clearly established Federal law

14

or unreasonably determine the facts in light of the evidence presented, and Petitioner

15

cannot meet his burden to show prejudice. See Gulbrandson v. Ryan, 738 F.3d 976, 991

16

(9th Cir. 2013). “It is all too tempting for a defendant to second-guess counsel’s

17

assistance after conviction or adverse sentence[;] . . . [however,] [b]ecause of the

18

difficulties inherent in making the evaluation, a court must indulge a strong presumption

19

that counsel’s conduct falls within the wide range of reasonable professional

20

assistance[.]” Strickland, 466 U.S. at 689. Petitioner’s ineffective assistance of counsel

21

claim in ground four regarding failing to file a motion to sever is without merit.

22
23
24
25
26
27
28

- 24 -

1
2
3
4

4. Ground Five
Petitioner presents two claims of ineffective assistance of trial counsel within
ground five. (Doc. 1 at 10.)
a. Closing Argument

5

In ground five, Petitioner alleges that trial counsel was ineffective during his

6

closing arguments. Id. Petitioner raised this claim to the Superior Court for the State of

7

Arizona for the County of Cochise in a Rule 32 Petition. See Answer (Doc. 13), Superior

8

Ct. for the State of Ariz. for the County of Cochise, Decision Re: Rule 32 Pet. 05-20-

9

2014 (Ex. “S”). The Rule 32 court found that Petitioner’s trial counsel performance

10

during closing did not fall below the “reasonableness standard of prevailing professional

11

norms.” Id. at 6. Further, the Rule 32 court stated that the jury had the actual knife and

12

photographs of Mr. Towne’s injuries in evidence. Id. at 6-7. “While it may be true that

13

[the expert attorney] could have provided a more compelling closing argument had he

14

been [Petitioner]’s trial counsel, such is not the standard for ineffective assistance of

15

counsel.” Id. at 7. When Petitioner appealed from the Rule 32 court’s ruling, he did not

16

include the allegation that his trial counsel was ineffective during the closing argument.

17

See Answer (Doc. 13), Def.’s Am. Pet. for Review Under AZRCRP 32.9(c) (Ex. “U”) at

18

2. Respondent contends that this claim was not exhausted as it was not presented to the

19

Arizona Court of Appeals and there is now no available remedy within the state court

20

system. Id. at 9:24-28, 10:23-25.

21

Petitioner did not exhaust this claim. See Swoopes v. Sublett, 196 F.3d 1008, 1010

22

(9th Cir. 1999); see also Crowell v. Knowles, 483 F. Supp. 2d 925 (D. Ariz. 2007);

23

Moreno v. Gonzalez, 962 P.2d 205 (Ariz. 1998). Additionally, because Petitioner’s claim

24

would be precluded by the Arizona courts, it is procedurally defaulted. Ariz. R. Crim. P.

25

32.1(d)–(h), 32.2(a), 32.4; see also Coleman v. Thompson, 501 U.S. 722, 729 (1991)

26

(federal courts will not review a state court decision based upon independent and

27

adequate state law grounds, including procedural rules). Where a habeas petitioner’s

28

claims have been procedurally defaulted, the federal courts are prohibited from

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1

subsequent review unless the petitioner can show cause and actual prejudice as a result.

2

Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state

3

appellate proceeding barred federal habeas review unless petitioner demonstrated cause

4

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

5

Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the

6

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

7

substantial disadvantage, infecting his entire trial with error of constitutional

8

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

9

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

10

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

11

of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence

12

that but for the constitutional error, no reasonable factfinder would have found [him]

13

guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, Petitioner has

14

failed to demonstrate a fundamental miscarriage of justice in order to meet the cause and

15

prejudice standard. See Coleman, 501 U.S. at 748 (citations and quotations omitted).

16
17

Therefore, Petitioner’s claim regarding ineffective assistance of trial counsel
during closing cannot stand.

18

b. Failure to Timely File a Motion to Vacate Judgment

19

In ground five, Petitioner alleges that trial counsel was ineffective for failing to

20

“timely file the motion to vacate judgment in violation of Petitioner’s 6th and 14th

21

Amendment rights to effective assistance of counsel due process and a fair trial under the

22

United States Constitution.” (Doc. 1 at 10.) Petitioner raised this claim to the Superior

23

Court for the State of Arizona for the County of Cochise in a Rule 32 Petition. See

24

Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise, Decision

25

Re: Rule 32 Pet. 05-20-2014 (Ex. “S”). The Rule 32 court found that the trial counsel’s

26

performance fell below the professional standard by failing to timely move to vacate

27

Petitioner’s judgment regarding Petitioner’s conviction for aggravated assault. Id. at 5.

28

Further the Rule 32 court found that Petitioner was not prejudiced by trial counsel’s

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1

failure to move to vacate the prohibited possessor. Id. at 6. When Petitioner appealed

2

from the Rule 32 court’s ruling, he did not include the allegation that his trial counsel was

3

ineffective for failing to timely file a motion to vacate. See Answer (Doc. 13), Def.’s Am.

4

Pet. for Review Under AZRCRP 32.9(c) (Ex. “U”) at 2. Respondent contends that this

5

claim was not exhausted as it was not presented to the state court of appeals and there is

6

now no available remedy within the state court system. Id. at 9:24-28, 10:23-25.

7

Petitioner did not exhaust this claim. See Swoopes v. Sublett, 196 F.3d 1008, 1010

8

(9th Cir. 1999); see also Crowell v. Knowles, 483 F. Supp. 2d 925 (D. Ariz. 2007);

9

Moreno v. Gonzalez, 962 P.2d 205 (Ariz. 1998). Additionally, because Petitioner’s claim

10

would be precluded by the Arizona courts, it is procedurally defaulted. Ariz. R. Crim. P.

11

32.1(d)–(h), 32.2(a), 32.4; see also Coleman v. Thompson, 501 U.S. 722, 729 (1991)

12

(federal courts will not review a state court decision based upon independent and

13

adequate state law grounds, including procedural rules). Where a habeas petitioner’s

14

claims have been procedurally defaulted, the federal courts are prohibited from

15

subsequent review unless the petitioner can show cause and actual prejudice as a result.

16

Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state

17

appellate proceeding barred federal habeas review unless petitioner demonstrated cause

18

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

19

Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the

20

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

21

substantial disadvantage, infecting his entire trial with error of constitutional

22

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

23

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

24

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

25

of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence

26

that but for the constitutional error, no reasonable factfinder would have found [him]

27

guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, Petitioner has

28

failed to demonstrate a fundamental miscarriage of justice in order to meet the cause and

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1
2
3
4
5

prejudice standard. See Coleman, 501 U.S. at 748 (citations and quotations omitted).
Therefore, Petitioner’s claims regarding ineffective assistance of trial counsel for
failure to file a timely motion to vacate judgment cannot stand.
F. Grounds Six and Seven: Trial Court Refusing to Give Jury Instructions
1. Ground Six

6

Petitioner alleges that the trial court erred by refusing “to instruct the jury on

7

justification – crime prevention in violation of Petitioner’s 5th and 14th Amendment

8

rights under the United States Constitution.” (Doc. 1 at 11.) Respondent argues that this

9

claim was raised to the court of appeals, but was “decided solely under state substantive

10

law[] and that state-law-based claim is non-cognizable on federal review.” (Doc. 13 at

11

11:10-11.) Petitioner challenged the trial court’s failure to instruct the jury regarding

12

crime prevention and the effect on the Count II – Aggravated Assault, which was later

13

dismissed. Answer (Doc. 13), Appellant’s Opening Brief (Ex. “H”) at ¶ 52; Answer (Doc.

14

13), Superior Ct. for the State of Ariz. for the County of Cochise, Decision Re: Rule 32

15

Pet. 05-20-2014 (Ex. “S”) at 7.

16

As discussed in Section II.B., supra, the fair presentation requirement mandates

17

that a state prisoner must alert the state court “to the presence of a federal claim” in his

18

petition, simply labeling a claim “federal” or expecting the state court to read beyond the

19

four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 32 (2004). “If a

20

petitioner fails to alert the state court to the fact that he is raising a federal constitutional

21

claim, his federal claim is unexhausted regardless of its similarity to the issues raised in

22

state court.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). “A challenge to jury

23

instructions does not generally state a federal constitutional claim.” Jensen v. Hernandez,

24

864 F. Supp. 2d 869, 932 (E.D. Cal. 2012), clarified on denial of reconsideration, No.

25

2:09-CV-0512 DAD P, 2012 WL 2571272 (E.D. Cal. July 2, 2012), and aff'd, 572 F.

26

App’x 540 (9th Cir. 2014).

27

Accordingly, this claim is unexhausted and would now be precluded. Ariz. R.

28

Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; see also Baldwin, 541 U.S. at 29 (in order to

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1

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

2

Therefore, Petitioner’s claim is procedurally defaulted. Coleman v. Thompson, 501 U.S.

3

722, 735 n. 1 (1991) (“[P]etitioner failed to exhaust state remedies and the court to which

4

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

5

requirement would now find the claims procedurally barred”).

6

Where a habeas petitioner’s claims have been procedurally defaulted, the federal

7

courts are prohibited from subsequent review unless the petitioner can show cause and

8

actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that

9

failure to raise claims in state appellate proceeding barred federal habeas review unless

10

petitioner demonstrated cause and prejudice). To the extent Petitioner relies on this

11

allegation to show either cause or actual prejudice, it must fail. Murray v. Carrier, 477

12

U.S. 478, 494 (1986) (petitioner “must show not merely that the errors . . . created a

13

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

14

infecting his entire trial with error of constitutional dimensions”) (internal quotations

15

omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996)

16

(petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as

17

such], there is no basis on which to address the merits of his claims.”).

18

If this claim had been exhausted, and the Arizona Court of Appeals had been

19

alerted to an underlying federal claim, it would still lack merit. Petitioner would need to

20

provide evidence as to how, when considering this instruction in the context of the trial

21

record, it had the effect of “so infect[ing] the entire trial that the resulting conviction

22

violates due process.” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v.

23

Naughten, 414 U.S. 141, 147 (1973)). The Arizona Court of Appeals explained that

24

“[s]ection 13–411(A) provides, in relevant part, that a person is justified in using physical

25

and deadly force against another if and to the extent the person reasonably believes it is

26

immediately necessary to prevent the commission of, inter alia, an aggravated assault or a

27

murder.” Answer (Doc. 13), Ariz. Ct. of Appeals, Mem. Decision 05-10-2012 (Ex. “A”)

28

at ¶ 5. This jury instruction does not protect possession of a deadly weapon, which is the

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1

only remaining conviction. Arizona v. Haney, 219 P.3d 274, 276 (Ct. App. 2009), review

2

denied and ordered depublished, 231 P.3d 921 (2010) (“We hold that a person who is

3

prohibited by law from possessing deadly weapons is not entitled to the legal protection

4

of A.R.S. § 13–411 when he uses a firearm.”).

5
6
7

Therefore, Petitioner’s claim regarding jury instruction cannot stand and is without
merit.
2. Ground Seven

8

In ground seven, Petitioner alleges that the trial court erred by refusing “to instruct

9

the jury on weapons misconduct as a prohibited possessor in violation of Petitioner’s 5th

10

and 14th Amendment rights under the United States Constitution.” (Doc. 1 at 12.) This

11

claim arose from a jury question in which the jury asked, “does the term, ‘prohibited

12

possessor’ include a knife?” Answer (Doc. 13), Superior Ct. for the State of Ariz. for the

13

County of Cochise, Tr. 08-25-2010 (Ex. “F”) at 21:4-5. Petitioner did not raise this issue

14

to any level of the Arizona state court

15

Petitioner did not exhaust this claim. See Swoopes v. Sublett, 196 F.3d 1008, 1010

16

(9th Cir. 1999); see also Crowell v. Knowles, 483 F. Supp. 2d 925 (D. Ariz. 2007);

17

Moreno v. Gonzalez, 962 P.2d 205 (Ariz. 1998). Additionally, because Petitioner’s claim

18

would be precluded by the Arizona courts, they are procedurally defaulted. Ariz. R. Crim.

19

P. 32.1(d)–(h), 32.2(a), 32.4; see also Coleman v. Thompson, 501 U.S. 722, 729 (1991)

20

(federal courts will not review a state court decision based upon independent and

21

adequate state law grounds, including procedural rules). Where a habeas petitioner’s

22

claims have been procedurally defaulted, the federal courts are prohibited from

23

subsequent review unless the petitioner can show cause and actual prejudice as a result.

24

Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state

25

appellate proceeding barred federal habeas review unless petitioner demonstrated cause

26

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

27

Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the

28

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

- 30 -

1

substantial disadvantage, infecting his entire trial with error of constitutional

2

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

3

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

4

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

5

of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence

6

that but for the constitutional error, no reasonable factfinder would have found [him]

7

guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, Petitioner has

8

failed to demonstrate a fundamental miscarriage of justice in order to meet the cause and

9

prejudice standard. See Coleman, 501 U.S. at 748 (citations and quotations omitted).

10

Therefore, Petitioner’s claim regarding the trial court’s response to jury question

11

cannot stand.

12

V.

13
14

CONCLUSION
In light of the foregoing, the Court finds that Petitioner’s habeas claims are

without merit, and the Petition (Doc. 1) shall be denied.

15

Before Petitioner can appeal this Court’s judgment, a certificate of appealability

16

must issue. See 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of

17

Appellate Procedure 22(b) requires the district court that rendered a judgment denying

18

the petition made pursuant to 28 U.S.C. §2254 to “either issue a certificate of

19

appealability or state why a certificate should not issue.” Additionally, 28 U.S.C.

20

§ 2253(c)(2) provides that a certificate may issue “only if the applicant has made a

21

substantial showing of the denial of a constitutional right.” In the certificate, the court

22

must indicate which specific issues satisfy this showing. See 28 U.S.C. § 2253(c)(3). A

23

substantial showing is made when the resolution of an issue of appeal is debatable among

24

reasonable jurists, if courts could resolve the issues differently, or if the issue deserves

25

further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon review

26

of the record in light of the standards for granting a certificate of appealability, the Court

27

concludes that a certificate shall not issue as the resolution of the petition is not debatable

28

among reasonable jurists and does not deserve further proceedings.

- 31 -

1

Accordingly,

2

IT IS ORDERED that the Petition (Doc. 1) is denied and this matter is dismissed

3
4
5
6

with prejudice. The Clerk of the Court shall enter judgment and close this matter.
IT IS FURTHER ORDERED that a Certificate of Appealability is denied and shall
not be issued.
Dated this 17th day of April, 2018.

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