Holden v. Ryan et al, No. 4:2009cv00435 - Document 18 (D. Ariz. 2012)

Court Description: ORDER ADOPTING REPORT AND RECOMMENDATIONS 10 in its entirety. The Objections (Doc. 13 ) raised by the Petitioner are OVERRULED. It is ORDERED that the Court has determined, without need for additional argument, to DENY the Certificate of Appealabi lity. It is further ORDERED that the Petition for Writ of Habeas Corpus (Doc. 1 ) is DENIED and this action is DISMISSED. A Final Judgment shall enter separately. This case is closed. Signed by Judge David C Bury on 9/21/12. (See attached PDF for complete information.) (KAH)
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Holden v. Ryan et al Doc. 18 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 7 8 9 10 11 Benjamin Patrick Holden, ) ) Petitioner, ) ) v. ) ) Charles L. Ryan, et al., ) ) Respondents. ) ______________________________________ ) CV-09-435-TUC-DCB ORDER 12 13 Petitioner, Benjamin Patrick Holden, filed a Petition for Writ of 14 Habeas Corpus pursuant to 28 U.S.C. §2254. (Doc. 1.) This matter was 15 referred to the United States Magistrate Judge pursuant to 16 §636(b) and the local rules of practice of this Court for a Report and 17 Recommendation (R&R) on the habeas petition. 18 Judge recommends to the Court that the petition should be denied and the 19 action should be dismissed. Before the Court are the Magistrate Judge’s 20 R&R and Petitioner’s Objections.1 Having conducted a de novo review, this 21 Court will adopt the Report and Recommendation in its entirety, deny the 22 habeas petition and dismiss this action. 23 28 U.S.C. In the R&R, the Magistrate FACTUAL BACKGROUND 24 The Arizona Court of Appeals articulated the facts, as follows: 25 On July 29, 2002, the victim, T., arrived uninvited at the home of L., an acquaintance. A group of people, including 26 27 1 28 Upon request of the Court, the state trial record was also filed. (Docs. 14-17.) Dockets.Justia.com 1 Holden, were gathered at L.’s home. T., who was both intoxicated and confrontational, entered L.’s bedroom, where L. was in bed with an injured leg. L. and his girlfriend, K., repeatedly asked T. to leave L.’s home, but T. refused. As the argument between L. and T. escalated, L. and K. summoned Holden to the bedroom to “get [T.] out of here.” Holden asked T. to leave the home but T. refused and advanced upon him, holding a ceramic cow’s head and large conch shells. 2 3 4 5 6 Holden brandished a handgun and ordered T. several times to leave the home, threatening to shoot him if he did not comply. 7 8 T. refused and Holden shot him in the head, killing him. Holden was arrested approximately one week later, and a grand jury indicted him for first-degree murder. The jury rejected Holden’s alternative theories of self-defense and accident and found him guilty as charged. The trial court sentenced Holden to life in prison. 9 10 11 (Doc. 9-1 at 3-4.) 12 PROCEDURAL BACKGROUND 13 On July 21, 2003, a jury in the Pima County Superior Court returned 14 a guilty verdict for first degree murder of Daniel Tilley. 15 was sentenced to life in prison. 16 the verdict and sentence on the direct appeal and the Arizona Supreme 17 Court denied review. 18 relief was denied without a hearing, the Arizona Court of Appeals 19 corrected the sentence imposed to 25 to life imprisonment and remanded 20 for 21 established his counsel was ineffective for depriving him of his right 22 to testify. 23 without a hearing. an evidentiary Petitioner The Arizona Court of Appeals affirmed Although his first petition for post-conviction hearing to determine whether Petitioner had The state trial court denied the claim on December 30, 2008 Petitioner did not appeal that ruling. 24 On August 7, 2009, Petitioner timely filed the herein federal 25 petition for habeas corpus, making the following claims: (1) “Holden’s 26 conviction and sentence violated the Sixth Amendment because of the 27 ineffective assistance of trial counsel through failure to consult and 28 2 1 present necessary experts”; (2) “The erroneous denial of Holden’s request 2 for a crime prevention jury instruction denied Holden due process under 3 the Fourteenth Amendment”; (3) “The State’s submission of an unredacted 4 tape 5 constituted prosecutorial misconduct and a violation of Holden’s right 6 to effective counsel”; and (4) “The improper comments made by the 7 prosecutor violated the defendant’s right to due process.” 8 filed an Answer on December 9, 2009. 9 issued on June 28, 2012. to the jury and counsel’s failure to investigate [the] tape Respondents The Report and Recommendation 10 The R&R recommends that Ground 2, failure to instruct jury on crime 11 prevention, was fairly exhausted and may be resolved on the merits; 12 Grounds 3 and 4, regarding prosecutorial misconduct were not properly 13 exhausted and procedurally defaulted, such that they are not subject to 14 review on the merits. 15 trial counsel, the R&R resolved the claims on the merits, finding no 16 violation of the 6th Amendment with reference to lack of expert testimony, 17 failure to instruct the jury on crime prevention, and the mistakenly 18 unredacted audio tape of Petitioner’s statement to the police. 19 As the remainder go to ineffective assistance of STANDARD OF REVIEW 20 When objection is made to the findings and recommendation of a 21 magistrate judge, the district court must conduct a de novo review. 22 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 23 PETITIONER’S OBJECTIONS 24 Petitioner objects to the analysis and conclusions contained in the 25 R&R, as follows: “Claim 1 sought relief because of a violation of the 26 Sixth Amendment’s right to effective assistance of counsel based on a 27 failure to consult and present necessary experts. Claim 2 presented a due 28 3 1 process claim under the Fourteenth Amendment based on a denial of 2 Petitioner’s 3 (Objection at 1.) 4 of ineffective assistance of trial and appellate counsel, as articulated 5 in 6 request for a crime prevention jury instruction.” Both claims are essentially based in the allegation Strickland v. Washington, 466 U.S. 668 (1984) Under Strickland's first prong, a defendant must prove that 7 counsel's performance was “deficient.” 8 111 (2009). Counsel's performance will be held constitutionally deficient 9 only if the defendant proves that it “fell below an objective standard 10 of reasonableness,” as measured by “prevailing professional norms.” 11 Strickland, 466 U.S. at 688. In reviewing counsel's performance for 12 deficiency, courts “must be highly deferential” and avoid the temptation 13 to 14 unreasonable” simply because in hindsight the defense has proven to be 15 unsuccessful. Id. at 689. Courts are required to “indulge a strong 16 presumption that counsel's conduct falls within the wide range of 17 reasonable professional assistance.” Id. The defendant bears the burden 18 of overcoming the strong presumption that counsel performed adequately. 19 Id. 20 “conclude Even if that the a particular defendant Knowles v. Mirzayance, 556 U.S. act succeeds or in omission of showing counsel that was counsel's 21 performance was deficient, the second prong of the Strickland test 22 requires 23 prejudicial to the defense. Id. at 692. To establish prejudice, the 24 defendant “must show that there is a reasonable probability that, but for 25 counsel's unprofessional errors, the result of the proceeding would have 26 been different.” Id. at 694. “A reasonable probability is a probability 27 sufficient to undermine confidence in the outcome.” Id. “It is not enough 28 4 the defendant to prove that counsel's deficiencies were 1 for the defendant to show that the errors had some conceivable effect on 2 the 3 Strickland places the burden of proving prejudice on the defendant, not 4 the government. Wong v. Belmontes, 558 U.S. 15 (2009). outcome of the proceeding.” Id. at 693. As with deficiency, 5 The Supreme Court has provided two reasons why the federal court 6 must apply a “doubly deferential” judicial review to a state court's 7 application of the Strickland standard under the AEDPA. Yarborough v. 8 Gentry, 540 U.S. 1, 5–6 (2003). First, as noted above, Strickland 9 instructs courts to review a defense counsel's effectiveness with great 10 deference, Strickland, 466 U.S. at 689, and AEDPA requires federal courts 11 to defer to the state court's decision unless its application of Supreme 12 Court precedent was objectively unreasonable, Renico v. Lett, ––– U.S. 13 ––––, 130 S.Ct. 1855, 1862 (2010). When a federal court reviews a state 14 court's Strickland determination under AEDPA, both AEDPA and Strickland's 15 deferential standards apply; hence, the Supreme Court's description of 16 the standard as “doubly deferential.” Yarborough, 540 U.S. at 6. 17 Second, our review is “doubly deferential” because Strickland 18 provides courts with a general standard, rather than a specific legal 19 rule. Knowles, 556 U.S. at 123; see also Bobby v. Van Hook, 558 U.S. 4 20 (2009)(holding that Strickland necessarily established a general standard 21 because “[n]o particular set of detailed rules for counsel's conduct can 22 satisfactorily take account of the variety of circumstances faced by 23 defense counsel or the range of legitimate decisions regarding how best 24 to represent a criminal defendant” (internal quotation marks omitted)). 25 Because 26 substantial element of judgment,” the more general the rule provided by 27 the Supreme Court, the more latitude the state courts have in reaching 28 5 judicial application of a general standard “can demand a 1 reasonable outcomes in case-by-case determinations. Yarborough, 541 U.S. 2 at 664. In turn, the state courts' greater leeway in reasonably applying 3 a general rule translates to a narrower range of decisions that are 4 objectively unreasonable under AEDPA. See id. Accordingly, we review a 5 state court's decision applying Strickland's general principles with 6 increased, or double, deference. See Knowles, 556 U.S. at 123. When 7 applying this heightened deferential standard, we review the “last 8 reasoned decision” by the state court addressing the petitioner's claim. 9 Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.2004). 10 Here, the last reasoned decision addressing Petitioner’s 11 ineffective assistance of counsel claim is that of the Arizona Court of 12 Appeals on state post-conviction review. 13 A. Claim 1:Failure to Present Expert Testimony 14 In a nutshell, Petitioner claims that trial counsel was ineffective 15 in that no counter expert testimony was offered during the jury trial. 16 Petitioner argues that the analysis taken in the R&R followed the same 17 missteps taken by the Arizona Court of Appeals; the decision of the state 18 court was based on an unreasonable determination of the facts in light 19 of 20 Strickland’s prejudice prong. Petitioner claims that the R&R and the 21 state court failed to embrace the facts pointed to by Petitioner. With 22 respect to the potential impact of Dr. Enoka’s expert testimony, the R&R 23 took aim at Petitioner’s inability to offer evidence “…to undermine the 24 appellate court’s finding that ‘none of the three eyewitnesses to the 25 shooting corroborated that Danny aggressively lunged at Holden.’” R&R at 26 14:15-18. Petitioner claims that the R&R, like the Court of Appeals, 27 miscasts the facts upon which Enoka relied, commenting that “neither 28 6 the evidence presented and was an unreasonable application of 1 witness whose testimony he (Enoka) was provided was able to see what 2 happened at the time the weapon was discharged.” (Doc. 10 at 18-20.) 3 Petitioner maintains that the failure to present an expert such as Enoka 4 prejudiced his case before the jury, because there was at least a 5 reasonable probability that opinions such as Enoka's and Bevel's would 6 have favorably impacted the jury. For example, jurors would have learned 7 that the blood patterns in the bedroom supported Petitioner’s explanation 8 and that his assertion of no intent to pull the trigger was an acceptable 9 explanation under the facts. The expert opinions would have countered the 10 prosecutor’s insistence that Petitioner’s alleged threats, issued in his 11 effort to make victim leave, conclusively established intent to kill. 12 During the state post-conviction relief proceeding, Petitioner 13 submitted two affidavits containing the opinions of two experts: one, 14 Enoka, to support his theory that the gun had discharged involuntarily 15 and two, Bevel, to corroborate his theory of how the incident had 16 happened through the analysis of bloodstain patterns. 17 After a review of the record and the two affidavits, the appellate court 18 found that Petitioner did not establish prejudice and that there was no 19 reasonable probability that the result of the trial would be different 20 but for the inclusion of the expert testimony. 21 A state court’s factual findings “are presumed (Doc. 1-1 at 5.) correct unless 22 rebutted by clear and convincing evidence.” See Gonzalez v. Pliler, 341 23 F.3d 897, 903 (9th Cir. 2003); Williams v. Taylor, 529 U.S. 362, 400 24 (2000). “When a federal claim has been presented to a state court and the 25 state court has denied relief, it may be presumed that the state court 26 adjudicated the claim on the merits in the absence of any indication or 27 state-law procedural principles to the contrary.” Harrington v. Richter,- 28 7 1 -- U.S.--- , 131 S. Ct. 770, 784 (2011). “Clearly established Federal 2 law” means federal law clearly defined by the holdings of the Supreme 3 Court at the time of the state court decision. Cullen v. Pinholster,--- 4 U.S.--- , 131 S. Ct. 1495 (2011) “A state court’s determination that a 5 claim lacks merit precludes federal habeas relief so long as ‘fairminded 6 jurists 7 decision.” Harrington v. Richter, 131 S. Ct. at 786 (citation omitted). 8 When the claim is ineffective assistance of counsel, Strickland provides 9 the clearly established federal law here. 466 U.S. at 690. 10 could disagree’ on the correctness of the The Arizona Court of Appeals addressed this claim. state court’s (Answer, Ex. 11 H at 4-10.) 12 whether trial attorney decisions were unreasonable resulting in such 13 prejudice to the Petitioner that his due process fundamental right to a 14 fair trial was violated. 15 to due process is, in essence, the right to a fair opportunity to defend 16 against the State's accusations. The right[ ] ... to call witnesses in 17 one's own behalf ha[s] long been recognized as essential to due process.” 18 Chambers v. Mississippi, 410 U.S. 284, 294 (1973); see also Crane v. 19 Kentucky, 476 U.S. 683, 690 (1986) (holding that “an essential component 20 of procedural fairness is an opportunity to be heard”); Washington v. 21 Texas, 388 U.S. 14, 19 (1967) (“The right to offer the testimony of 22 witnesses ... is in plain terms the right to present a defense, the right 23 to present the defendant's version of the facts.... [The accused] has the 24 right to present his own witnesses to establish a defense. This right is 25 a fundamental element of due process of law.”). At this juncture, as a federal court, the issue becomes “The right of an accused in a criminal trial 26 That the Constitution affords Petitioner the right to present 27 witnesses in his defense does not mean that this right is absolute. “Even 28 8 1 relevant and reliable evidence can be excluded when the state interest 2 is strong.” Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir.1983). While 3 “[t]he right to present a defense is fundamental,” id., “the state's 4 legitimate interest in reliable and efficient trials is also compelling.” 5 Id. at 1451. 6 such 7 Petitioner’s 8 testimony of witnesses against Petitioner. 9 10 11 12 13 an Here the focus is on whether or not the failure to present expert case witness before amounted the jury, to constitutional ie, experts to prejudice contradict The appellate court dealt with this issue, as follows: Holden argues his trial counsel was ineffective for failing to consult with experts or present expert testimony to support his defense. As part of his post-conviction petition, Holden submitted affidavits containing the opinions of two experts: one to support his theory that the gun had discharged involuntarily and one to corroborate his theory of how the incident had happened through the analysis of bloodstain patterns. 14 27 Holden cites cases from Arizona as well as other jurisdictions in which courts have found counsel ineffective for failing to consult with an expert or secure scientific testimony in defending a case. See, e.g., State v. Edwards, 139 Ariz. 217, 221, 677 P.2d 1325, 1329 (App.1983) (counsel ineffective in context of insanity defense when he failed to interview defendant's psychiatrist until day of trial); see also Dugas v. Coplan, 428 F.3d 317, 331-32 (1st Cir.2005) (finding counsel ineffective because “hopelessly unprepared” to challenge state's “many expert witnesses” on arson); Holsomback v. White, 133 F.3d 1382, 1387-88 (11th Cir.1998) (finding counsel ineffective for not calling or consulting expert witness in sexual abuse case with no medical evidence of abuse and only evidence of guilt testimony of alleged victim); Foster v. Lockhart, 9 F.3d 722, 726-27 (8th Cir.1993) (finding counsel ineffective for failing to investigate or present defense of impotency in rape case when “uncontradicted medical evidence” showed defendant was “physically incapable of committing the rape in the manner the victim and the State alleged at trial”); Sims v. Livesay, 970 F.2d 1575, 1580-81 (6th Cir.1992) (trial counsel's failure to investigate role of quilt in shooting was ineffective when evidence would have “presented the defense with a theory of the case that squared fully with [defendant]'s version of events”). But our evaluation of ineffective assistance of counsel claims is case 28 9 15 16 17 18 19 20 21 22 23 24 25 26 to the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 specific, and Holden is only entitled to relief on this basis if counsel's failure to secure scientific testimony constituted both deficient performance of counsel and could have affected the outcome of the case. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Because Holden has not shown he was prejudiced as a result, we need not decide whether his counsel's performance was deficient. See State v. Fulminante, 161 Ariz. 237, 260, 778 P.2d 602, 625 (1988) (applying prejudice prong first to ineffective assistance of counsel claim); see also State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945 (1985) (failure of one prong of the Strickland test results in failure of claim). Holden contends an expert was needed to refute Pima County Sheriff's Detective Marcus Amado's testimony about the location of Danny's body and the lack of blood in the area Holden claimed Danny had lunged.FN1 In support of this argument, he submitted the opinion of Tom Bevel, a forensic consultant. Holden also claims Bevel's expert bloodstain analysis supports his claim Danny “had moved to within an arm's length of Holden, who was standing near the doorway.” But Bevel's opinion was that Danny had been “standing in the bedroom near the foot of the bed at the time he was shot.” This opinion does not conflict with the state's theory, and therefore, we fail to see how it would have changed the outcome of the case had Bevel's opinion been introduced at trial. See Bennett, 213 Ariz. 562, ¶ 25, 146 P.3d at 69 (defendant only suffers prejudice from counsel's alleged errors if reasonable probability result of trial would have been different but for errors). 17 27 Holden also emphasizes that Bevel stated Danny could have remained upright for a few moments after he had been shot. He argues this evidence “supports the inference that [Danny] could have moved after being shot.” But he does not specify how such an inference would have helped his defense when he was claiming Danny had moved toward him before he was shot. Similarly, Holden emphasizes that, in Bevel's opinion, Danny's arm probably was in a raised position when he had been shot. But Bevel never stated that such evidence supports Holden's contention that Danny had been reaching for the gun. Rather, Bevel opines that the bloodstains are consistent with Danny's hand having been up by his head or face, rather than Danny reaching out in front of him. Because Bevel's opinion would not have changed the result at trial, Holden has not established he suffered prejudice as a result of counsel's failure to present that testimony. Holden also argues his trial counsel was ineffective for failing to use crime scene photographs to impeach Amado's testimony that no blood was found near the doorway where Holden said he was standing when he shot Danny. The 28 10 18 19 20 21 22 23 24 25 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 photograph at issue, which was not admitted at trial, shows a tiny bloodstain on the ceiling. At trial, the prosecutor asked Amado, “Did y[ou] find any bloodstains in the area described by Mr. Holden as the area where the incident occurred?” And the detective responded, “No, I did not. Assuming for the sake of argument Amado's answer was erroneous because of the photograph in question, Holden has not demonstrated he suffered prejudice as a result. Holden's own expert, Bevel, concluded that the photograph “further substantiates that [Danny] was standing in the bedroom near the foot of the bed at the time he was shot, as his head would be near the ceiling and the backspatter would be capable of reaching this area of the ceiling.” Thus, Holden's own proffered expert testimony does not support the inferences Holden would have us draw from the location of the ceiling bloodstain. Holden has not demonstrated that the admission of the photograph would have changed the outcome of the case. Holden has not shown he suffered prejudice by counsel's failure to call a witness on the topic. Enoka would not conclude with certainty the evidence showed the discharge had been accidental but simply concluded the circumstances surrounding the shooting “could have caused Mr. Holden to hold the gun more firmly and thereby unintentionally pull[ ] the trigger.” And many of the circumstances on which he based that conclusion were taken from Holden's version of events-a version that was discredited on many points by the testimony of other witnesses. In addition, had the jury believed Holden's version of the events, the jury could have drawn many of the same inferences as Enoka without the benefit of his expert testimony. See Gorney v. Meaney, 214 Ariz. 226, ¶ 15, 150 P.3d 799, 804 (App.2007) (expert testimony inappropriate when jury can determine issue without it). 19 20 21 22 23 24 25 Thus, although Enoka's testimony would have provided a scientific explanation for Holden's theory that he had accidentally pulled the trigger, it would not have been enough to change the outcome of this case, given evidence that strongly contradicted Holden's assertion that the gun had discharged accidentally. Holden discharged the gun within three inches of Danny's head, he did so after repeatedly threatening to kill Danny, and none of the three eyewitnesses to the shooting corroborated that Danny aggressively lunged at Holden. Therefore, although the testimony most likely would have been relevant and admissible, Holden did not suffer prejudice by its absence and the trial court did not err by dismissing the claim. 26 State v. Holden, 2008 WL 4559872 (Ariz.App. January 8, 2008.) 27 28 11 1 Having carefully reviewed the trial testimony and having compared 2 it 3 inconsistent with and add no new evidence to the evidence that was 4 already before the jury. (Docs. 14 - 17.) It cannot be said that the 5 failure to elicit this particular testimony rendered the result of the 6 trial unreliable or the proceeding fundamentally unfair. See Lockhart v. 7 Fretwell, 506 U.S. 364, 369(1993). 8 reveals that, had the jury believed Petitioner’s version of events, the 9 jury could have drawn many of the same inferences without the benefit of to the post-trial affidavits of Bevel and Enoka, all are not A review of the trial transcript 10 expert testimony. 11 (expert testimony inappropriate when jury can determine issue without 12 it.). 13 claim fails on the merits. 14 Cir. 1998). 15 B. See Gorney v. Meaney, 214 Ariz. 226 (Ariz.App. 2007) Consequently, the Court can find no resultant prejudice and this Ainsworth v. Calderon, 138 F.3d 787, 791 (9th Claim 2:Failure to Address Jury Instruction on Direct Appeal 16 Petitioner claims that his appellate counsel was ineffective for 17 not raising the issue on direct appeal of the trial court decision not 18 to give the jury a crime prevention instruction. 19 requested the jury be instructed on the crime prevention justification 20 set forth in A.R.S. § 13-411. The trial court refused the instruction, 21 after a lengthy discussion with counsel. Although not specifically raised 22 by appellate counsel in the direct appeal, the Arizona Court of Appeals 23 addressed the substantive question of whether the trial court should have 24 included the crime prevention instruction at trial in the post-conviction 25 and appeal from the post-conviction relief proceeding. (Answer, Ex. H.) 26 The R&R recommends denial of this claim because Petitioner fails to 27 demonstrate that the state appellate court’s factual findings were 28 12 At trial, Petitioner 1 unreasonable. Petitioner objects that the appellate court bent the facts 2 to sustain the denial of the instruction. 3 Two questions are raised: first whether there was ineffective 4 assistance of appellate counsel and second whether or not the state 5 appellate court properly resolved the issue of the jury instruction. 6 Because the appellate court directly addressed this issue, there is no 7 Strickland prejudice with reference to the ineffective assistance of 8 appellate counsel claim. 9 The other question is whether or not the failure to give the jury 10 instruction can be raised to a 11 violation as interpreted and applied by the state trial and appellate 12 courts. See Estelle v. McGuire, 502 U.S. 62, 71-72 (recognizing that 13 erroneous jury instruction under state law could only be cognizable in 14 federal habeas if it so infected trial it violated due process); Souch 15 v. Schaivo, 16 state 17 proceedings), cert. denied, 537 U.S. 859 (2002). The state court and the 18 appellate court engaged in factfinding to resolve this issue. 19 requires federal courts to accord more deference to state court decisions 20 underlying a §2254 petition with regards to both law and facts. See 21 Harrington, 131 S. Ct. at 785; see also Robinson v. Schriro, 595 F.3d 22 1086, 1099 (9th Cir. 2010), cert. denied, 131 S. Ct. 566 (2010). Under 23 the AEDPA, “state court findings of fact are presumed correct unless 24 rebutted by clear and convincing evidence.” Gonzalez v. Pliler, 341 F.3d 25 897, 903 (9th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1)). “Even in the 26 context of federal habeas, … [d]eference does not by definition preclude 27 relief. A federal court can disagree with a state court’s credibility 28 13 law federal constitutional due process 289 F.3d 616, 623 (9th Cir.) (recognizing that generally errors are not cognizable in federal habeas corpus The AEDPA 1 determination and, when guided by the AEDPA, conclude the decision was 2 unreasonable or that the factual premise was incorrect by clear and 3 convincing evidence.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); 4 see also Hall v. Dir. of Corrs., 343 F.3d 976, 984 n.8 (9th Cir. 2003) 5 (“AEDPA, although emphasizing proper and due deference to the state 6 court?s findings, did not eliminate federal habeas review. Where there are 7 real, credible doubts about the veracity of essential evidence and the 8 person who created it, AEDPA does not require us to turn a blind eye.”) 9 “The state court unreasonably applies clearly established federal law if 10 it “either 1) correctly identifies the governing rule but then applies 11 it to a new set of facts in a way that is objectively unreasonable, or 12 2) extends or fails to extend a clearly established legal principle to 13 a new context in a way that is objectively unreasonable.” 14 Runnels, 556 F.3d 995, 997 (9th Cir. 2009) (quoting Hernandez v. Small, 15 282 F.3d 1132, 1142 (9th Cir. 2002)). This court “must defer to the state 16 court?s factual findings unless a defect in the process is so apparent 17 that “any appellate court . . . would be unreasonable in holding that the 18 state court?s factfinding process was adequate.” DeWeaver, 556 F.3d at 997 19 (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)). This is 20 a “highly deferential standard for evaluating state-court rulings,” Lindh 21 v. Murphy, 521 U.S. 320, 333 (1997). The Supreme Court has held that the 22 petitioner has the burden of showing that the state court decision is 23 objectively unreasonable. See Harrington, 131 S.Ct. at 784. 24 Petitioner’s trial attorney argued for the use of DeWeaver v. the crime 25 prevention jury instruction to the trial judge. 26 persuasive, the court ruled against him, and he lodged his objection. 27 (Doc. 16-2 at 109 - 122.) “[I]t is not reversible error to reject a 28 14 His argument was not 1 defendant’s proposed instruction on his theory of the case if other 2 instructions, in their entirety, adequately cover that defense theory.” 3 Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir. 1995)(quotation marks 4 omitted). The issue was addressed by the appellate court, as follows: 5 6 7 8 9 10 11 12 13 14 15 16 17 At trial, Holden requested the jury be instructed on the crime prevention justification set forth in A.R.S. § 13-411. The trial court refused the instruction. Holden now contends his appellate counsel was ineffective in failing to challenge that ruling on appeal. Section 13-411(A) provides a defense to the use of physical force or deadly physical force against another person “if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other's commission of [one of the enumerated crimes].” The statute further provides there is no duty to retreat before using deadly or nondeadly physical force and that a person “is presumed to be acting reasonably” when acting pursuant to the statute. § 13-411(B), (C). Holden contends he was entitled to this instruction because, in attempting to remove Danny from the residence, he was preventing Danny from committing aggravated assault. See § 13-411(A) (aggravated assault committed under § 13-1204(A)(1) or (2) one of enumerated crimes under crime prevention statute). The trial court refused the requested instruction after the state argued that the defense was not supported by the evidence. 27 A defendant is entitled to any justification instruction “supported by ‘the slightest evidence.’ “ State v. Hussain, 189 Ariz. 336, 337, 942 P.2d 1168, 1169 (App.1997), quoting State v. Dumaine, 162 Ariz. 392, 404, 783 P.2d 1184, 1196 (1989). Holden emphasizes the crime prevention defense is broader than the other justification defenses. Its only limitation upon the use of deadly force is “the reasonableness of the response,” State v. Korzep, 165 Ariz. 490, 492, 799 P.2d 831, 833 (1990), while “the other justification defenses require an immediate threat to personal safety before deadly force may be used.” Id. Therefore, the self-defense instruction was not necessarily adequate because a jury could find one without the other. See id. (emphasizing differences between § 13-411 and other justification defenses); State v. Garfield, 208 Ariz. 275, ¶ 15, 92 P.3d 905, 909 (App.2004) (because crime prevention justification “presents a unique defense,” not harmless error when jury merely instructed on self-defense); Hussain, 189 Ariz. at 339, 942 P.2d at 1171 (self-defense instruction did not adequately cover the requested instruction based on § 13-411); see also State v. Taylor, 169 Ariz. 121, 123, 817 P.2d 488, 490 (1991) 28 15 18 19 20 21 22 23 24 25 26 1 (reversible error to fail to instruct jury when slightest evidence supported crime prevention justification). 2 3 4 5 6 7 8 9 10 Holden contends that, had appellate counsel raised the issue to this court, the outcome of his appeal might have been different. [footnote omitted] See Bennett, 213 Ariz. 562, ¶ 25, 146 P.3d at 69. He relies on Garfield, issued while his appeal was pending in this court, in which we reversed a conviction for the trial court's refusal to instruct the jury on the crime prevention defense. See 208 Ariz. 275, ¶ 15, 92 P.3d at 909. Holden complains that his counsel failed to seek leave to file a supplemental brief pursuant to Garfield and, in the alternative, that his appellate counsel could have made the same argument the defendant made in Garfield in his opening brief-that the crime prevention instruction applies to an invited guest-based on Arizona law at that time. See Korzep, 165 Ariz. at 493-94, 799 P.2d at 834-35 (holding crime prevention defense applicable to resident of house protecting against crime by another resident and suggesting defense applicable to even broader classes of persons). 11 12 13 14 15 16 In Garfield, the trial court had refused to provide an instruction on the crime prevention defense because the defendant was only a guest in the home he was arguably trying to protect. 208 Ariz. 275, ¶ 10, 92 P.3d at 908. Anchoring our analysis in the legislative intent behind the statute-protecting Arizona homes from crime-we rejected that distinction and found that such an instruction was reasonably supported by the evidence. Id. ¶¶ 14-15, 92 P.3d 905. We reversed the defendant's conviction, finding he had suffered prejudice, in part because the self-defense instruction had not been an adequate substitute. Id. ¶ 15, 92 P.3d 905. 17 27 We agree with Holden that Garfield might have changed the outcome of his case if the evidence supported such an instruction. But unlike in Garfield, where we held the defendant was entitled to the crime prevention instruction based on evidence the victim had drawn a gun before the defendant shot him, id. ¶ 12, 92 P.3d 905, there was no evidence Danny was threatening anyone with a deadly weapon or dangerous instrument at the time Holden entered the bedroom in an effort to make Danny leave. And even assuming the cow's head or conch shells could be considered dangerous instruments, the record is clear Holden continued to point the gun at Danny well after Danny had put any such items down. Although Holden emphasizes the breadth of the crime prevention defense in comparison to self-defense, the former defense is not available to a defendant who uses greater force than necessary to prevent the crime. See State v. Martinez, 202 Ariz. 507, ¶ 12, 47 P.3d 1145, 1147-48 (App.2002) (defendant must have reasonable belief that force need be used and amount of force is necessary to justify actions under crime prevention defense). Holden presented no evidence that, at the 28 16 18 19 20 21 22 23 24 25 26 1 2 3 4 5 6 7 time he first threatened and then used deadly physical force against Danny, Holden could have “reasonably believe[d]” that such force was “immediately necessary” to prevent Danny from assaulting anyone with a deadly weapon or dangerous instrument. § 13-411(A). Therefore, Holden could not have suffered prejudice when the trial court refused the instruction and when appellate counsel failed to raise the issue on appeal. We find no abuse of discretion in the trial court's dismissal of this claim. State v. Holden, 2008 WL 4559872 (Ariz.App. January 8, 2008.) Having reviewed the trial transcript, this Court does not find that 8 the appellate court’s decision was objectively reasonable. 9 claim of ineffective assistance of appellate counsel lacks a showing of 10 prejudice such that no further review is warranted. 11 12 13 14 Further, the CONCLUSION Accordingly, after conducting a de novo review of the record, which included reading the entire record and the transcript of the trial, IT IS ORDERED that the Court ADOPTS the Report and Recommendation 15 (Doc. 10) in its entirety. 16 Petitioner are OVERRULED. 17 The Objections (Doc. 13) raised by the IT IS FURTHER ORDERED that the Court has determined, without need 18 for additional argument, to DENY the Certificate of Appealability. 19 11, Rules Governing Section 2254 Cases. 20 specific issues that serve to satisfy the showing required by 28 U.S.C. 21 §2253(c)(2), and finds none present in this case. 22 The Court has considered IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 23 (Doc. 1) is DENIED and this action is DISMISSED. 24 enter separately. 25 A Final Judgment shall This case is closed. DATED this 21th day of September, 2012. 26 27 28 Rule 17