Rimer v. Ryan et al, No. 4:2014cv01930 - Document 21 (D. Ariz. 2017)

Court Description: REPORT AND RECOMMENDATION: the Magistrate Judge recommends that the District Judge enter an order denying 1 Petition for Writ of Habeas Corpus (State/2254) filed by Ignacio Esteban Rimer. Any party may serve and file written objections within 1 4 days after being served with a copy of this Report and Recommendation. A party may respond to another partys objections within 14 days after being served with a copy. If objections are filed, the parties should use the following case number: CV-14-01930-TUC-RCC. Signed by Magistrate Judge Bruce G Macdonald on 2/3/2017. (BAR) Modified on 2/3/2017 to add WO (BAR).
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Rimer v. Ryan et al 1 Doc. 21 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ignacio Esteban Rimer, 10 Petitioner, REPORT AND RECOMMENDATION 11 12 13 No. CV-14-01930-TUC-RCC (BGM) v. Charles L. Ryan, et al., 14 Respondents. 15 16 17 Currently pending before the Court is Petitioner Ignacio Esteban Rimer’s pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State 18 19 Custody (Non-Death Penalty) (Doc. 1). Respondents have filed an Answer to Petition for 20 Writ of Habeas Corpus (“Answer”) (Doc. 16). Petitioner did not file a Reply. The 21 Petition is ripe for adjudication. 22 23 Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,1 this matter 24 was referred to Magistrate Judge Macdonald for Report and Recommendation. The 25 Magistrate Judge recommends that the District Court deny the Petition (Doc. 1). 26 27 28 1 Rules of Practice of the United States District Court for the District of Arizona. Dockets.Justia.com 1 I. 2 FACTUAL AND PROCEDURAL BACKGROUND The Arizona Court of Appeal stated the facts2 as follows: 3 At trial, the state presented evidence that Rimer and his half-brother, codefendant Howard McMonigal, conducted an on-going methamphetamine and stolen-property business out of McMonigal’s residence. The two utilized a number of women to assist in conducting the business, and when they did not perform as ordered, the women were punished in various ways, including rape. After their arrest, Rimer and McMonigal were charged with illegally conducting an enterprise as well as various counts of kidnapping, sexual assault, and aggravated assault. 4 5 6 7 8 9 Answer (Doc. 16), Ariz. Ct. of Appeals, Memorandum Decision 1/7/2011 (Exh. “A”) at 10 11 12 13 14 15 16 17 18 1–2. The Arizona Court of Appeal further noted: After a jury trial, appellant Ignacio Rimer was convicted of one count of illegally conducting an enterprise, one count of kidnapping, one count of sexual assault, and one count of aggravated assault. The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling 23.75 years. Id. at 1–2. A. Direct Appeal 19 20 21 22 On April 1, 2010, Petitioner filed his Opening Brief with the Arizona Court of Appeals. Answer (Doc. 16), Appellant’s Opening Br. 4/1/2010 (Exh. “B”). Petitioner presented the issues on appeal as follows: 23 24 (1) Whether the court committed reversible error in denying Appellant’s Motion to Sever/Motion to Disqualify. 25 2 26 27 28 As these state court findings are entitled to a presumption of correctness and Petitioner has failed to show by clear and convincing evidence that the findings are erroneous, the Court hereby adopts these factual findings. 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473–74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007); Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985); Cf. Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). -2- 1 (2) Whether the evidence was insufficient to sustain a guilty verdict as to Count One. 2 (3) Whether the court committed reversible error in denying Appellant’s Motion for New Trial. 3 4 5 Id., Exh. “B” at 39. 6 1. Motion to Sever/Motion to Disqualify 7 Relying on the Arizona Rules of Criminal Procedure and Arizona state law, 8 9 Petitioner argued that because “an allegation that [M.K. and W.H.] were co-conspirators 10 on some counts and that [M.K.] was a victim in other counts [made the relationship 11 between the alleged victim and the prosecutor] so severe as to deprive Appellant of 12 13 fundamental fairness in a manner shocking to the universal sense of justice.” Answer 14 (Doc. 16), Appellant’s Opening Br. 4/1/2010 (Exh. “B”) at 44. In light of this, Petitioner 15 further asserted that disqualification of the Pima County Attorney’s Office was required. 16 Id. 17 18 Petitioner also argued that “telephone calls from [Petitioner’s co-defendant] 19 McMonigal in which he made incriminating statements about Appellant and otherwise 20 linked Appellant to McMonigal’s alleged efforts to tamper with witnesses . . . deprived 21 22 Appellant of his right to confront and cross-examine.” Id., Exh. “B” at 45. Petitioner 23 asserted that “[e]vidence for the charges in which McMonigal was charged alone clearly 24 spilled over onto the charges involving [M.K.] because the types of criminal activity and 25 26 modus operandi was repeated over and over by each of the female witnesses . . . ma[king] 27 it more believable that the offenses occurred as [M.K.] described them when the jury had 28 already heard testimony of [J.F.], [W.H.], and [L.K.].” Id. Petitioner further asserted that -3- 1 2 “[n]one of these witnesses would have testified against Appellant had he been on trial alone for the offenses involving [M.K.]”. Petitioner also alleged that “counsel for the co- 3 4 5 6 defendant raised certain matters which resulted in the admission of evidence that would not otherwise have been admitted.” Id., Exh. “B” at 46. Finally, Petitioner asserted that witness L.K. and his co-defendant McMonigal winked and exchanged smiles during 7 8 9 10 11 12 L.K.’s testimony which occurred to his detriment. Answer (Doc. 16), Exh. “B” at 46–47. 2. Insufficient Evidence as to Count One Petitioner also alleged that although “[t]he evidence of guilt as to all chargers was overwhelming with respect to Howard McMonigal[,] . . . there was very little evidence to 13 establish Appellant’s guilt as to any of the charges related to him.” Answer (Doc. 16), 14 Exh. “B” at 48. Petitioner argued that “for the vast majority of the time that Howard 15 McMonigal was conducting his illegal enterprise, Appellant wasn’t there.” Id., Exh. “B” 16 17 18 19 at 49. Petitioner asserted that DNA on the handle of a gun found in one of the stolen vehicles on McMonigal’s property was linked to Petitioner, but not conclusively. Id., Exh. “B” at 50. Petitioner argued that “[t]his paltry bit of evidence [was] entirely 20 21 insufficient to connect Appellant with the criminal enterprise conducted by his half- 22 brother Howard McMonigal[,] . . . [and] the rub-off effect of McMonigal’s extensive 23 criminal activity and the fact that Appellant was related to him by blood no doubt 24 25 26 27 28 resulted in the jury’s conviction.” Id. Petitioner’s claims were based on Arizona state law. Id., Exh. “B” at 47–50. 3. Denial of Motion for New Trial Petitioner asserted that “the prosecutor argued facts not in evidence as it related to -4- 1 2 the barred window.” Answer (Doc. 16), Exh. “B” at 55. Petitioner argued that the prosecutor “waited until his rebuttal closing argument to present his expert opinion that 3 4 5 6 the photographs showed tampering.” Id., Exh. “B” at 56 (emphasis in original). Petitioner further argued that the prosecutor’s “conclusions about the bars went far beyond a ‘reasonable inference.’” Id., Exh. “B” at 56–57. As such, Petitioner asserted 7 8 that “[b]ecause Appellant was denied his constitutional right to a fair trial by virtue of 9 prosecutorial misconduct[,]” he was entitled to a new trial. Id., Exh. “B” at 58. Although 10 Petitioner made passing reference to his right to due process and a fair trial, he relied 11 12 13 14 15 solely on state law in his argument. See id., Exh. “B” at 54–58. 4. Court of Appeals Decision and Subsequent Review On January 7, 2011, the Arizona Court of Appeals affirmed Petitioner’s convictions and sentences. Answer (Doc. 16), Ariz. Ct. App. Memorandum Decision 16 17 18 19 1/7/2011 (Exh. “A”). The court of appeals held that Petitioner “ha[d] failed to offer any apposite or persuasive authority demonstrating the trial court abused its discretion in denying his motion to disqualify the county attorney’s office from prosecuting his case 20 21 based on W.H.’s and M.K.’s status as both victims and co-conspirators.” Id., Exh. “A” at 22 3. The court further noted that “[n]either the statutes granting rights to victims nor the 23 cases upon which Rimer relies support his position and, to the extent they are applicable 24 25 here, they instead inform a contrary conclusion.” Id. The court also recognized that “the 26 trial court instructed the jury to consider the evidence as to the charges against each 27 defendant separately.” Id., Exh. “A” at 7. As such, the court further held that “Because 28 the jury was so instructed, it ‘is presumed to have considered the evidence against each -5- 1 2 defendant separately in finding both guilty[,]’ . . . and Rimer has failed to demonstrate the court abused its discretion in denying his motion to sever his trial from McMonigal’s.” 3 4 5 6 Id., Exh. “A” at 7 (citing State v. Murray, 184 Ariz. 9, 25, 906 P.2d 542, 558 (1995)). The appellate court also noted that Petitioner waived his argument regarding severance of Count One by failing to renew his motion to sever during trial. Answer (Doc. 16), Ariz. 7 8 Ct. App. Memorandum Decision 1/7/2011 (Exh. “A”) at 5 n.2. The appellate further 9 found Petitioner waived his argument regarding the introduction of telephone calls made 10 by McMonigal depriving Petitioner of his right to confront and cross-examine because he 11 12 failed to cite the record supporting such an argument or develop it adequately on appeal. 13 Id., Exh. “A” at 6 n.3. Regarding sufficiency of the evidence, the court of appeals held 14 that “[t]he record reflects that substantial evidence was presented at trial to support 15 Rimer’s conviction.” Id., Exh. “A” at 8. This holding applied to all of the counts for 16 17 18 19 which Petitioner was found guilty, including illegally conducting an enterprise. Id., Exh. “A” at 8–10. Finally, the court of appeals found that “by failing to object at trial and instead of raising th[e] issue [of the prosecutor arguing facts not in evidence] . . . for the 20 21 first time in a motion for a new trial, Rimer ha[d] waived this issue for all but 22 fundamental error.” Id., Exh. “A” at 10. As such, the court held that “because Rimer 23 ha[d] failed to argue that the alleged error here was fundamental, and because we find no 24 25 error that can be so characterized, the argument is waived.” Answer (Doc. 16), Ariz. Ct. 26 App. Memorandum Decision 1/7/2011 (Exh. “A”) at 11. The appellate court relied only 27 on state court law and procedural rules throughout its decision. See Answer (Doc. 16), 28 Exh. “A.” -6- 1 2 Petitioner did not seek review with the Arizona Supreme Court. B. First Post-Conviction Relief Proceeding 3 4 5 6 On January 21, 2011, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 16), Not. of PCR 1/21/2011 (Exh. “E”). On June 8, 2011, counsel for Petitioner filed a Rule 32 Montgomery Notice; Motion for Extension of Time 7 8 to File pro se Brief; Motion to Withdraw. See Answer (Doc. 16), Rule 32 Montgomery 9 Notice (Exh. “F”). Pursuant to Montgomery v. Sheldon (I),3 counsel stated that there 10 were no issues to appropriate for Rule 32 relief.4 Id., Exh. “F” at 1. On November 14, 11 12 2011, Petitioner filed his pro se Petition for Post-Conviction Relief. See Answer (Doc. 13 16), Pet.’s pro se Pet. for PCR (Exh. “G”). By checking the boxes, Petitioner broadly 14 asserted the following grounds for relief: 1) “[t]he denial of the constitutional right to 15 representation by a competent lawyer at ever critical stage of the proceeding”; 2) “[t]he 16 17 18 19 unconstitutional use by the state of perjured testimony”; 3) “[t]he abridgement of any other right guaranteed by the constitution or the laws of this state, or the constitution of the United States, including a right that was not recognized as existing at the time of the 20 21 trial if retrospective application of that right is required”; and 4) “[t]he lack of jurisdiction 22 23 3 24 4 25 26 27 28 Montgomery v. Sheldon (I), 181 Ariz. 256, 889 P.2d 614 (1995). The Arizona Supreme Court has held that in Rule 32 proceedings, where counsel concludes that the proceeding has no merit, “a pleading defendant has a right under Ariz. Const. art. 2 § 24 to file a pro se PCR petition.” Montgomery (I), 181 Ariz. at 260, 889 P.2d at 618. Subsequently, the Arizona Supreme Court affirmed this rule and reiterated: If, after conscientiously searching the record for error, appointed counsel in a PCR proceeding finds no tenable issue and cannot proceed, the defendant is entitled to file a pro se PCR. State v. Smith, 184 Ariz. 456, 459, 910 P.2d 1, 4 (1996). -7- 1 2 of the court which entered the conviction or sentence.” Id., Exh. “G” at 2. Petitioner first alleged that his constitutional rights were abridged, because he was 3 4 5 6 not informed of the nature of the charges against him. Id., Exh. “G” at 7.5 Petitioner asserted that “the State argued, and presented, alleged evidence of conspiracy as defined in A.R.S. § 13-1003, and not the elements of racketeering pursuant to § 13-2312, and thus 7 8 violated Mr. Rimer’s right to be notified of the nature and cause of the accusations.” Id., 9 Exh. “G” at 10–12 (citing State v. Neese, 126 Ariz. 499, 504, 616 P.2d 959, 964 (Ct. App. 10 1980)). Petitioner states that he was “charged, along with Howard Ned McMonigal, III 11 12 with the Arizona RICO statute in violation of A.R.S. §13-2312 in Count One.” Id., Exh. 13 “G” at 8. Petitioner goes on to assert that through the jury instruction regarding this 14 count, “the judge took away the basic elements that must be proven to sustain the 15 conviction under A.R.S. §13-2312(B).” Id., Exh. “G” at 9. Petitioner also argued that 16 17 18 19 “[t]he state [sic] cannot circumvent the basic rules of law that requires [sic] the state to prove every element of every alleged offense ‘beyond a reasonable doubt.’” Answer (Doc. 16), Exh. “G” at 10 (citing State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995). 20 21 Petitioner asserted that “[a]bsent these essential elements a conviction cannot stand and 22 due process has been violated[,] [a]s it is required that a predicate felony conviction of 23 racketeering be proven as to each defendant, the record is absent any prior racketeering 24 25 conviction as to each named individual within Count One.” Id., Exh. “G” at 10. 26 27 28 5 Because Exhibit “G” was inconsistently hand numbered when Petitioner originally drafted it, the Court relies on the CM/ECF docket page numbers for its pinpoint citations within this exhibit. -8- 1 2 Petitioner noted that his trial counsel “joined in the argument of Mr. Rimer’s codefendant Mr. McMonigal’s defense attorney . . . that all of the other counts within the 3 4 5 6 charging indictment are insufficient to prove any predicate felony convictions of racketeering.” Id., Exh. “G” at 7. Petitioner further argued that “[t]he state [sic] did not prove the existance [sic] of an enterprise nor able to provide any evidence of a decision- 7 8 9 10 11 12 making structure, and organized structure designed to maintain the purported enterprise[;] [t]he state [sic] presented conclusory allegations that a RICO enterprise existed.” Id., Exh. “G” at 15. Petitioner also alleged that M.K. “committed unsworn falsification in the pretrial 13 context, and perjury during her trial testimony.” Id., Exh. “G” at 18. After a review of 14 M.K.’s statements, Petitioner asserted that “[w]ithin this case at bar, [M.K.] committed 15 perjury and unsworn falsification by stating that the alleged crimes committed against her 16 17 18 19 by Ignacio Rimer actually took place.” Id., Exh. “G” at 21. Petitioner further asserted that “[t]hese perjurious statements prejudiced Mr. Rimer and violated the 6th Amendment U.S. Const., Ariz. Const. Art. 2 § 24, respectively, and the constitutional safeguards to 20 21 22 23 24 25 the right of due process.” Answer (Doc. 16), Exh. “G” at 22. Petitioner also alleged that “trial counsel . . . was so ineffective that it prejudiced Mr. Rimer.” Id., Exh. “G” at 24. Petitioner alleged that trial counsel “failed to adequately research the Arizona RICO statute (A.R.S. § 13-2312) for the basic 26 understanding in dealing with this alleged offense to provide a meaningful defense.” Id., 27 Exh. “G” at 25. Petitioner speculated that “[i]f proper representation had been provided 28 to Mr. Rimer . . . then a conviction would not have been rendered.” Id., Exh. “G” at 25. -9- 1 2 Petitioner asserted that “[d]ue to this incompetence and lack of skill worth total disregard to Mr. Rimer’s constitutional rights, [trial counsel] created such prejudice to Mr. Rimer 3 4 5 6 that a conviction was a formality[,] [i]f proper care had been given the proceedings would have been different.” Id., Exh. “G” at 26. Additionally, Petitioner argued that trial counsel “allowed the prosecution to preclude the medically diagnosed health problem [of 7 8 erectile dysfunction] that Mr. Rimer suffers.” Answer (Doc. 16), Exh. “G” at 26. 9 Petitioner urged that “[t]he failure of [trial counsel] to adequately admit, and present this 10 alibi defense, violated due process and the 6th & 14th Amendments of the constitution; 11 12 Ariz. Const. Art. 2 § 24.” Id. 13 Petitioner alleged that appellate counsel was ineffective for failing “to adequately 14 review the voluminous appeal file, and present a cogent legal brief.” Id., Exh. “G” at 27. 15 Petitioner further alleged that appellate counsel “failed to raise any material issue that 16 17 18 19 may have been raised within the direct appeal process.” Id. Similarly, Petitioner asserted that his Rule 32 counsel “fail[ed] to adequately review the voluminous amount of appeals file, [and] . . . failed to diligently provide competent legal representation to Mr. Rimer 20 21 within the[] Rule 32 proceedings.” Id. 22 On November 17, 2011, the Rule 32 court issued its Ruling. See Answer (Doc. 23 16), Ariz. Superior Ct., Pima County, Ruling—In Chambers Ruling Re: Motion for 24 25 Reconsideration Re: Request for Extension of Time and Rule 32 Petition for Post- 26 Conviction Relief Filed November 14, 2011 11/17/2011 (Exh. “H”). The Rule 32 court 27 stated that it had twice granted Petitioner’s requests for additional time to file his PCR 28 petition, but denied his third request. Answer (Doc. 16), Exh. “H” at 1. The Rule 32 - 10 - 1 2 court denied Petitioner’s request for reconsideration of its denial. Id., Exh. “H” at 1–2. The Rule 32 court further noted that “[d]espite having filed the motion for 3 4 5 6 reconsideration, Petitioner filed a petition for post-conviction relief on November 14, 2011.” Id., Exh. “H” at 2. The Rule 32 court stated that it “ha[d] reviewed the petition and f[ound] no colorable claim for relief.” Id. As such, the petition was summarily 7 8 9 10 11 12 dismissed. Id. On December 8, 2011, Petitioner filed his Petition for Review in the Arizona Court of Appeals. See Answer (Doc. 16), Pet. for Review 12/8/2011 (Exh. “I”). Petitioner asserted six (6) grounds for relief: 1) “[d]oes the ruling rendered within Baines 13 v. Superior Court County of Pima, 142 Ariz. 145, 688 P.2d 1037 (1984), apply within the 14 petitioner’s immediate case”; 2) “[d]id the state prove every element of the RICO charge 15 that constitutes a valid conviction of Mr. Rimer, pursuant to the mandate given within In 16 17 18 19 re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970)”; 3) “[d]id the final jury instructions that pertained to the Arizona RICO statute properly state the law”; 4) “[d] the state give adequate notice to the defendant when it charged Mr. Rimer with the Arizona RICO 20 21 statute”; 5) “[w]as trial counsel ineffective”; and 6) “[d]id the prosecutrix give perjured 22 material testimony at trial[.]” Id., Exh. “I” at 2–11. On March 12, 2012, the Arizona 23 Court of Appeals granted review, but denied relief. Answer (Doc. 16), Ariz. Ct. App. 24 25 Mem. Decision 3/12/2012 (Exh. “J”). The court of appeals noted “[o]n review, Rimer 26 repeats his arguments that the state failed to prove beyond a reasonable doubt all the 27 required elements of the charge of illegally conducting an enterprise and that his 28 convictions were based on perjured testimony.” Id., Exh. “J” at 3. The appellate court - 11 - 1 2 determined that “[t]hese claims could have been raised in Rimer’s direct appeal.” Id., Exh. “J” at 3. As such, the appellate court held that “he is precluded from raising them in 3 4 5 6 a petition for post-conviction relief and the trial court did not err in summarily dismissing them.” Id., Exh. “J” at 3 (citing Ariz. R. Crim. P. 32.2.(a)(3)). The appellate court acknowledged Petitioner’s claim “that trial counsel had been 7 8 ineffective by agreeing to a jury instruction that, he asserts, misstated the elements of 9 illegally conducting an enterprise and in failing to adequately investigate and raise the 10 issue of perjured testimony.” Id., Exh. “J” at 3. The court went on to analyze Petitioner’s 11 12 claim regarding the jury instruction, and determined that “[t]he jury instructions 13 regarding illegally conducting an enterprise, read as a whole, are consistent with Baines 14 and are legally correct.” Id., Exh. “J” at 4 (citing A.R.S. §§ 13-2301(D)(4); 13-2312(B); 15 State v. Prince, 226 Ariz. 516, ¶ 77, 250 P.3d 1145, 1165 (2011)). As such, the appellate 16 17 18 19 court held that “Rimer ha[d] identified no reasonable basis for his trial counsel to have objected to the jury instructions and his claim of ineffective assistance of counsel on this basis necessarily fail[ed].” Answer (Doc. 16), Exh. “J” at 4. The appellate court further 20 21 held that “Rimer’s claim of ineffective assistance of counsel grounded in alleged perjury 22 also fails.” Id. The appellate court found Petitioner’s “unsupported assertion” regarding 23 trial counsel’s alleged failure to “adequately ‘expose this perjurious testimony’” was 24 25 “insufficient to establish a colorable claim of ineffective assistance of counsel.” Id., Exh. 26 “J” at 5 (citing State v. Meeker, 143 Ariz. 256, 264, 693 P.2d 911, 919 (1984); Ariz. R. 27 Crim. P. 32.9(c)(1); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995)). The 28 appellate court held that “the trial court did not abuse its discretion in summarily - 12 - 1 2 dismissing Rimer’s petition for post-conviction relief.” Id., Exh. “J” at 5. On August 1, 2012, the Arizona Supreme Court denied review without comment. 3 4 5 6 Answer (Doc. 16), Ariz. Supreme Ct. ME 8/1/2012 (Exh. “K”); see also Answer (Doc. 16), Ariz. Ct. App. Mandate 10/30/2012 (Exh. “L”). C. Second Post-Conviction Relief Proceeding 7 8 On September 7, 2012, Petitioner filed his second Notice of Post-Conviction 9 Relief (“PCR”). Answer (Doc. 16), Not. of PCR 9/7/2012 (Exh. “M”). Included with 10 this second notice were arguments for PCR. See id. Petitioner alleged “[i]neffective 11 12 assistance of appellate counsel, re judicial bias, whereby, appellate counsel provide[d] 13 ineffective assistance by failing to investigate and raise due process, equal protection, and 14 fair trial issues[.]” Id., Exh. “M” at 5. Petitioner took issue with the trial court’s 15 evidentiary rulings, as well as the final jury instructions. Id., Exh. “M” at 6–10. 16 17 18 19 Petitioner further alleged that testimony of witnesses describing him in handcuffs tainted the jury. Id., Exh. “M” at 10. The Rule 32 court found that “Petitioner’s claims [were] all precluded under Rule 32.2., Ariz. R. Crim. P.” Answer (Doc. 16), Ariz. Superior Ct., 20 21 Pima County, Ruling—In Chambers Ruling Re: Not. of Post-Conviction Relief 22 9/19/2012 (Exh. “N”) at 2. Accordingly, the Rule 32 court held that “Petitioner having 23 failed to raise a colorable claim, his notice of post-conviction relief is hereby dismissed.” 24 25 Id., Exh. “N” at 3. 26 On October 4, 2012, Petitioner filed a Successive Petitioner for Post-Conviction 27 Relief. Answer (Doc. 16), Pet.’s Successive Pet. for PCR (Exh. “O”). Consistent with 28 his Notice, Petitioner raised an ineffective assistance of appellate counsel claim regarding - 13 - 1 2 her alleged failure to investigate: 1) judicial bias; and 2) the revealing of felony and custody status to the jury. Id., Exh. “O” at 5. On October 5, 2012, the Rule 32 Court 3 4 5 6 found that Petitioner’s claims of “ineffective assistance of appellate counsel, erroneous evidentiary rulings made at trial, error in giving a standard jury instruction, and that the trial court was based against him . . . were raised in Petitioner’s Notice of Post- 7 8 Conviction Relief[.]” Answer (Doc. 16), Ariz. Superior Ct., Pima County, Ruling—In 9 Chambers Ruling Re: Petitioner [sic] for Post-Conviction Relief 10/5/2012 (Exh. “P”) at 10 1. The Rule 32 court held that “Petitioner’s claims are precluded under Ariz. R. Crim. P. 11 12 32.2(a)[,] and [he] shall not receive and evidentiary hearing.” Id. 13 On October 23, 2012, Petitioner filed a Petition for Review with the Arizona Court 14 of Appeals. Answer (Doc. 16), Pet.’s Pet. for Review 10/23/2012 (Exh. “Q”). Petitioner 15 alleged ineffective assistance of appellate counsel in light of her failure to investigate 1) 16 17 18 19 judicial bias; and 2) the revealing of his felony and custody status to the jury. Id., Exh. “Q” at 5. Petitioner took issue with jury instructions issued by the trial court, as well as its evidentiary rulings. Id., Exh. “Q” at 5–8. Petitioner asserted that these alleged errors 20 21 resulted in “judicial bias.” Id., Exh. “Q” at 8–9. Petitioner further asserted that his due 22 process rights were violated because of a witness referenced that he had been in jail. Id., 23 Exh. “Q” at 10–13. 24 25 On February 20, 2013, the Arizona Court of Appeals granted review of 26 Petitioner’s second PCR petition, but denied relief. See Answer (Doc. 16), Ariz. Ct. 27 App., Mem. Decision 2/20/2013 (Exh. “R”). The appellate court held that “the trial court 28 correctly concluded, Rimer’s claims are precluded pursuant to Rule 32.2(a).” Id., Exh. - 14 - 1 2 “R” at 3. The appellate court further stated that “although Rimer checked the box on the notice of post-conviction relief form indicating his claim was based on newly discovered 3 4 5 6 evidence, an exception to preclusion under Rule 32.2(b), he did not present his claims as such, nor has he provided any reason why his claims should not be precluded.” Id., Exh. “R” at 3. 7 8 9 10 On June 12, 2013, the Arizona Supreme Court denied review without comment. Answer (Doc. 16), Ariz. Supreme Ct. ME 6/12/2013 (Exh. “S”); see also Answer (Doc. 16), Ariz. Ct. App. Mandate 2/20/2013 (Exh. “T”). 11 12 D. The Instant Habeas Proceeding 13 On March 4, 2014, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ 14 of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Petitioner 15 claims four (4) grounds for relief. First, Petitioner alleges ineffective assistance of trial 16 17 18 19 counsel for counsel’s alleged failure to 1) “raise the issue to sever [Petitioner’s] case which should of [sic] never been under the clot [sic] of the RICO Act”; 2) “research the law”; 3) “fully investigate the facts of the case”; 4) “raise a possible defense to make a 20 21 suppression motion”; 5) object to a clearly improper opening statement from the 22 Prosecution”; and 6) “object to evidence that was Clearly [sic] Inadmissible [sic][.]” 23 Petition (Doc. 1) at 6. Second, Petitioner alleges prosecutorial misconduct in violation of 24 25 the Sixth and Fourteenth Amendments. Id. at 7. Petitioner alleges that he “was place 26 [sic] under Vindictive [sic] Prosecution [sic] due to the fact that I had exercised my 27 consitutional [sic] rights.” Id. Petitioner further alleges that his “two femal [sic] [co- 28 ]defendants were given allocution from prosecution if they would now become victims - 15 - 1 2 which in turn lead to a [sic] that keep [sic] me from defending myself[.]” Id. Petitioner asserts that his female co-defendants “made inconsistent statements when they became 3 4 5 6 so-called victims.” Id. Third, Petitioner claims that his Fifth and Fourteenth Amendment rights were violated because “on March 12, 2009 . . . [he] was given a Polygraph [sic] test . . . [which] revealed physiological responses indicative of truthful answers proving 7 8 my inosence [sic].” Petition (Doc. 1) at 8. Petitioner further alleged that “[t]he State 9 Attorney would neither accept or review the results.” Id. Fourth, Petitioner asserts a 10 violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights based upon 11 12 alleged “willful blindness.” Id. at 9. Petitioner alleges that he did not have “process for 13 obtaining witnesses in [his] favor no did [he] have proper assistance of counsel.” Id. 14 Petitioner further alleges that this has resulted in “unusual and cruel time to serve as 15 inflicted punishment.” Id. On October 2, 2014, Respondents filed their Answer (Doc. 16 17 16). Petitioner did not file a reply. 18 19 II. STANDARD OF REVIEW 20 21 A. In General 22 The federal courts shall “entertain an application for a writ of habeas corpus in 23 behalf of a person in custody pursuant to the judgment of a State court only on the ground 24 25 that he is in custody in violation of the Constitution or laws of treaties of the United 26 States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus 27 by a person in state custody: 28 - 16 - 1 5 shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 6 28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398, 2 3 4 7 179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal 8 9 habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 10 L.Ed.2d 385 (1991). Ultimately, “[t]he statute’s design is to ‘further the principles of 11 comity, finality, and federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 12 13 2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 14 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet 15 and highly deferential “for evaluating state-court rulings, [and] which demands that state- 16 17 18 19 20 court decisions be given the benefit of the doubt.” Pinholster, 131 S.Ct. at 1398 (citations and internal quotation marks omitted). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The 21 22 “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims 23 have been adjudicated in state court.” Burt v. Titlow, — U.S. —, 134 S.Ct. 10, 16, 187 24 L.Ed.2d 348 (2013). Federal courts reviewing a petition for habeas corpus must 25 26 “presume the correctness of state courts’ factual findings unless applicants rebut this 27 presumption with ‘clear and convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465, 28 473–74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)). - 17 - 1 2 Moreover, on habeas review, the federal courts must consider whether the state court’s determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473, 127 S.Ct. at 3 4 5 6 1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is unreasonable where a state court properly identifies the governing legal principles delineated by the Supreme Court, but when the court applies the principles to the facts 7 8 before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 9 770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 10 L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). 11 12 “AEDPA requires ‘a state prisoner [to] show that the state court’s ruling on the claim 13 being presented in federal court was so lacking in justification that there was an error . . . 14 beyond any possibility for fairminded disagreement.’” Burt, 134 S.Ct. at 10 (quoting 15 Harrington, 562 U.S. at 103, 131 S.Ct. at 786–87) (alterations in original). 16 17 18 19 B. Exhaustion of State Remedies Prior to application for a writ of habeas corpus, a person in state custody must exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This 20 21 “provides a simple and clear instruction to potential litigants: before you bring any claims 22 to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, 23 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). 24 25 As such, the exhaustion doctrine gives the State “the opportunity to pass upon and correct alleged 26 violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 27 1347, 1349, 158 L.Ed. 2d 64 (2004) (internal quotations omitted). Moreover, “[t]he 28 exhaustion doctrine is principally designed to protect the state courts’ role in the - 18 - 1 2 enforcement of federal law and prevent disruption of state judicial proceedings.” Rose, 455 U.S. at 518, 102 S.Ct. at 1203 (internal citations omitted). This upholds the doctrine 3 4 5 6 of comity which “teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. (quoting 7 8 Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)). 9 Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long 10 as the applicant “has the right under the law of the State to raise, by any available 11 12 procedure the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has 13 been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard 14 v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair 15 presentation requirement mandates that a state prisoner must alert the state court “to the 16 17 18 19 presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting the state court to read beyond the four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting 20 21 petitioner’s assertion that his claim had been “fairly presented” because his brief in the 22 state appeals court did not indicate that “he was complaining about a violation of federal 23 law” and the justices having the opportunity to read a lower court decision addressing the 24 25 federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) 26 (holding that petitioner failed to exhaust federal due process issue in state court because 27 petitioner presented claim in state court only on state grounds). Furthermore, in order to 28 “fairly present” one’s claims, the prisoner must do so “in each appropriate state court.” - 19 - 1 2 Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349. “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct 3 4 5 6 appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 7 8 1998)). 9 In Arizona, however, for non-capital cases “review need not be sought before the 10 Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 11 12 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 13 2007); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the 14 Supreme Court has further interpreted § 2254(c) to recognize that once the state courts 15 have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for 16 17 18 19 the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989). C. Procedural Default 20 21 “A habeas petitioner who has defaulted his federal claims in state court meets the 22 technical requirements for exhaustion; there are no state remedies any longer ‘available’ 23 to him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 24 25 650 (1991). Moreover, federal courts “will not review a question of federal law decided 26 by a state court if the decision of that court rests on a state law ground that is independent 27 of the federal question and adequate to support the judgment.” Id., 501 U.S. at 728, 111 28 S.Ct. at 2254. This is true whether the state law basis is substantive or procedural. Id. - 20 - 1 2 (citations omitted). Such claims are considered procedurally barred from review. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 The Ninth Circuit Court of Appeals explained the difference between exhaustion and procedural default as follows: The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner’s claims and that opportunity may still be available to the petitioner under state law. In contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but declined to reach the issue for procedural reasons, or if it is clear that the state court would hold the claim procedurally barred. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and citations omitted). Thus, in some circumstances, a petitioner’s failure to exhaust a federal claim in state court may cause a procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.’”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). 18 Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005). Thus, a prisoner’s habeas 19 petition may be precluded from federal review due to procedural default in two ways. 20 First, where the petitioner presented his claims to the state court, which denied relief 21 22 based on independent and adequate state grounds. Coleman, 501 U.S. at 728, 111 S.Ct. 23 at 2254. Federal courts are prohibited from review in such cases because they have “no 24 power to review a state law determination that is sufficient to support the judgment, 25 26 resolution of any independent federal ground for the decision could not affect the 27 judgment and would therefore be advisory.” Id. Second, where a “petitioner failed to 28 exhaust state remedies and the court to which the petitioner would be required to present - 21 - 1 2 his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Id. at 735 n.1, 111 S.Ct. at 2557 n.1 (citations omitted). Thus, the 3 4 5 6 federal court “must consider whether the claim could be pursued by any presently available state remedy.” Cassett, 406 F.3d at 621 n.6 (quoting Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998)) (emphasis in original). 7 8 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 9 courts are prohibited from subsequent review unless the petitioner can show cause and 10 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 11 12 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding 13 barred federal habeas review unless petitioner demonstrated cause and prejudice); see 14 also Smith v. Murray, 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986) 15 (recognizing “that a federal habeas court must evaluate appellate defaults under the same 16 17 18 19 standards that apply when a defendant fails to preserve a claim at trial.”). “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to 20 21 comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 22 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d 23 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally 24 25 defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on 26 which to address the merits of his claims.”). In addition to cause, a habeas petitioner 27 must show actual prejudice, meaning that he “must show not merely that the errors . . . 28 created a possibility of prejudice, but that they worked to his actual and substantial - 22 - 1 2 disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray, 477 U.S. at 494, 106 S.Ct. at 2648 (emphasis in original) (internal quotations omitted). 3 4 5 6 Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the procedural default and gain review by the federal courts. Id., 106 S.Ct. at 2649. The Supreme Court has recognized, however, that “the cause and prejudice 7 8 standard will be met in those cases where review of a state prisoner’s claim is necessary 9 to correct ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722, 10 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 11 12 S.Ct. 1558, 1572–73, 71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice 13 exception is available ‘only where the prisoner supplements his constitutional claim with 14 a colorable showing of factual innocence.’” Herrara v. Collins, 506 U.S. 390, 404, 113 15 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v. 16 17 18 19 Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)). Thus, “‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered 20 21 on the merits.” Herrara, 506 U.S. at 404, 113 S.Ct. at 862. Further, in order to 22 demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by 23 clear and convincing evidence that but for the constitutional error, no reasonable 24 25 26 27 28 factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). In Arizona, a petitioner’s claim may be procedurally defaulted where he has waived his right to present his claim to the state court “at trial, on appeal or in any - 23 - 1 2 previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3). “If an asserted claim is of sufficient constitutional magnitude, the state must show that the defendant ‘knowingly, 3 4 5 6 voluntarily and intelligently’ waived the claim.” Id., 2002 cmt. Neither Rule 32.2 nor the Arizona Supreme Court has defined claims of “sufficient constitutional magnitude” requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 202 Ariz. 7 8 9 10 446, 46 P.3d 1067 (2002). The Ninth Circuit Court of Appeals recognized that this assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are better suited to make these determinations.” Cassett, 406 F.3d at 622. 11 12 13 III. 14 15 STATUTE OF LIMITATIONS As a threshold matter, the Court must consider whether Petitioner’s petition is barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921–22 (9th Cir. 16 17 18 19 2002). The AEDPA mandates that a one-year statute of limitations applies to applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides that the limitations period shall run from the 20 21 22 23 24 25 26 27 28 latest of: (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by the State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or - 24 - 1 2 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 3 28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time 4 during which a properly filed application for State post-conviction or other collateral 5 6 review with respect to the pertinent judgment or claim is pending shall not be counted 7 toward any period of limitation under this subsection.” 8 Respondents do not dispute the timeliness of Rimer’s petition. 9 28 U.S.C. § 2244(d)(2). The Court has independently reviewed the record and finds that the Petition (Doc. 1) is timely pursuant 10 11 to 28 U.S.C. § 2244(d)(1)(A). 12 13 IV. ANALYSIS 14 15 16 17 18 A. Ground One: Ineffective Assistance of Counsel 1. Legal Standards For cases which have been fairly presented to the State court, the Supreme Court elucidated a two part test for determining whether a defendant could prevail on a claim of 19 20 21 22 ineffective assistance of counsel sufficient to overturn his conviction. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Petitioner must show that counsel’s performance was deficient. Id. at 687, 104 S.Ct. at 2064. “This 23 24 requires showing that counsel made errors so serious that counsel was not functioning as 25 the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, Petitioner 26 must show that this performance prejudiced his defense. Id. Prejudice “requires showing 27 28 that counsel’s errors were so serious as to deprive the defendant of a fair trial whose - 25 - 1 2 result is reliable.” Id. Ultimately, whether or not counsel’s performance was effective hinges on its reasonableness under prevailing professional norms. Strickland, 466 U.S. at 3 4 5 6 688, 104 S.Ct. at 2065; see also State v. Carver, 160 Ariz. 167, 771 P.2d 1382 (1989) (adopting Strickland two-part test for ineffective assistance of counsel claims). The Sixth Amendment’s guarantee of effective assistance is not meant to “improve the quality of 7 8 legal representation,” rather it is to ensure the fairness of trial. Strickland, 466 U.S. at 9 689, 104 S.Ct. at 2065. “Thus, ‘[t]he benchmark for judging any claim of ineffectiveness 10 must be whether counsel’s conduct so undermined the proper functioning of the 11 12 adversarial process that the trial cannot be relied on as having produced a just result.’” 13 Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) 14 (quoting Strickland, 466 at 686) (emphasis and alteration in original). 15 “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ . 16 17 18 19 . . and when the two apply in tandem, review is ‘doubly’ so[.]” Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (citations omitted). Judging counsel’s performance must be made without the influence of hindsight. See 20 21 Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. As such, “the defendant must overcome 22 the presumption that, under the circumstances, the challenged action ‘might be 23 considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 24 25 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Without the requisite showing of either “deficient 26 performance” or “sufficient prejudice,” Petitioner cannot prevail on his ineffectiveness 27 claim. Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. “[T]he question is not whether 28 counsel’s actions were reasonable. The question is whether there is any reasonable - 26 - 1 2 argument that counsel satisfied Strickland’s deferential standard.” Gentry v. Sinclair, 705 F.3d 884, 899 (9th Cir. 2013) (quoting Harrington, 562 U.S. at 105, 131 S.Ct. at 788) 3 4 5 6 (alterations in original). “The challenger’s burden is to show ‘that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.’” Harrington, 562 U.S. at 104, 131 S.Ct. at 787 (quoting Strickland, 7 8 466 U.S. at 689, 104 S.Ct. 2052). Accordingly, “[w]e apply the doubly deferential 9 standard to review the state court’s ‘last reasoned decision.’” Vega v. Ryan, 757 F.3d 10 960, 966 (9th Cir. 2014) (citations omitted). “By its terms § 2254(d) bars relitigation of 11 12 any claim ‘adjudicated on the merits’ in state court, subject only to the exceptions in 13 2254(d)(1) and (d)(2).” Harrington, 131 U.S. at 98, 131 S.Ct. at 784. As such, Petitioner 14 also bears the burden of showing that the state court applied Strickland to the facts of his 15 case in an objectively unreasonable manner. See Bell v. Cone, 535 U.S. 685, 698–99, 122 16 17 18 19 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002); see also 28 U.S.C. § 2254(d). Additionally, “[a]s a general matter, each ‘unrelated alleged instance [ ] of counsel’s ineffectiveness’ is a separate claim for purposes of exhaustion.” Gulbrandson 20 21 v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d 22 1044, 1056 (9th Cir. 2005)) (alterations in original). This means “all operative facts to an 23 ineffective assistance claim must be presented to the state courts in order for a petitioner 24 25 to exhaust his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). 26 This is “[b]ecause ineffective assistance claims are not fungible, but are instead highly 27 fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Id. As 28 such, “a petitioner who presented any ineffective assistance of counsel claim below - 27 - 1 2 can[not] later add unrelated instances of counsel’s ineffectiveness to that claim.” Id. (citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 3 4 5 6 788 (D. Ariz. 2008) (“Petitioner’s assertion of a claim of ineffective assistance of counsel based on one set of facts, does not exhaust other claims of ineffective assistance based on different facts”). 7 8 2. Failure to Raise Severance 9 Petitioner claims that his trial counsel was ineffective for failing to raise the issue 10 of having his case severed. Petition (Doc. 1) at 6. Respondents assert that Petitioner 11 12 13 14 15 failed to exhaust this claim, because he did not present it to the Arizona Court of Appeals. Answer (Doc. 16) at 9. The Court agrees with Respondent. Petitioner failed to raise this claim in either of his pro se PCR petitions. Answer (Doc. 16), Pet.’s Pro Se Pet. for PCR (Exh. “G”) & Pet.’s Successive Pet. for PCR (Exh. 16 17 18 19 “O”). Neither did Petitioner raise it to the Arizona Court of Appeals. See Answer (Doc. 16), Pet. for Review 12/8/2011 (Exh. “I”) & Pet. for Review 10/23/2012 (Exh. “Q”). “As a general matter, each ‘unrelated alleged instance [ ] of counsel’s ineffectiveness’ is a 20 21 separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992 22 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)) 23 (alterations in original). This means “all operative facts to an ineffective assistance claim 24 25 26 27 28 must be presented to the state courts in order for a petitioner to exhaust his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). Accordingly, this claim is unexhausted and would now be precluded. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; see also Baldwin v. Reese, 541 U.S. 27, 29, 124 - 28 - 1 2 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is 3 4 5 6 procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the 7 8 exhaustion requirement would now find the claims procedurally barred”). 9 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 10 courts are prohibited from subsequent review unless the petitioner can show cause and 11 12 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 13 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding 14 barred federal habeas review unless petitioner demonstrated cause and prejudice). 15 Petitioner has not met his burden to show either cause or actual prejudice. Murray v. 16 17 18 19 Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of 20 21 constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also 22 Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer 23 any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on 24 25 which to address the merits of his claims.”). In fact, Plaintiff’s counsel filed a pre-trial 26 Motion to Sever Count One and Any Other Related Counts; Motion to Disqualify Pima 27 County Attorney’s Office. See Answer (Doc. 16), Exh. “U.” 28 As such, Petitioner’s claim for ineffective assistance of counsel based on an - 29 - 1 2 alleged failure to raise the issue of severance cannot stand. 3. Failure to Research the Law 3 4 5 6 Petitioner claims that his trial counsel was ineffective for an alleged failure “to research the law[.]” Petition (Doc. 1) at 6. Respondents assert that Petitioner failed to exhaust this claim, because he did not present it to the Arizona Court of Appeals. 7 8 Answer (Doc. 16) at 9. The Court agrees that this claim is unexhausted. 9 Petitioner arguably raised this claim in his initial pro se PCR petition. See Answer 10 (Doc. 16), Pet.’s Pro Se Pet. for PCR (Exh. “G”) at 25. Petitioner alleged that trial 11 12 counsel “failed to adequately research the Arizona RICO statute (A.R.S. § 13-2312) for 13 the basic understanding in dealing with this alleged offense to provide a meaningful 14 defense.” Id., Exh. “G” at 25. Petitioner did not, however, raise this claim to the Arizona 15 Court of Appeals. See Answer (Doc. 16), Pet. for Review 12/8/2011 (Exh. “I”). 16 17 18 19 Accordingly, this claim is unexhausted and would now be precluded. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the 20 21 prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is 22 procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 23 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the 24 25 26 27 28 court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred”). Where a habeas petitioner’s claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and - 30 - 1 2 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding 3 4 5 6 barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner 7 8 “must show not merely that the errors . . . created a possibility of prejudice, but that they 9 worked to his actual and substantial disadvantage, infecting his entire trial with error of 10 constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also 11 12 Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer 13 any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on 14 which to address the merits of his claims.”). 15 As such, Petitioner’s claim for ineffective assistance of counsel based on an 16 17 18 19 alleged failure to research the law cannot stand. 4. Failure to Fully Investigate the Facts Petitioner claims that his trial counsel was ineffective for allegedly failing “to fully 20 21 investigate the facts of the case[.]” Petition (Doc. 1) at 6. Respondent asserts that 22 Petitioner properly exhausted this claim. Answer (Doc. 23) at 10. The Court agrees and 23 finds this claim exhausted. 24 25 Liberally construed, Petitioner arguably raised this claim in his initial pro se PCR 26 petition. See Answer (Doc. 16), Pet.’s Pro Se Pet. for PCR (Exh. “G”) at 17–22, 26. 27 Petitioner then reiterated that his trial counsel “failed to properly investigate and expose 28 adequately the perjurious trial testimony of [M.K.]” Answer (Doc. 16), Pet. for Review - 31 - 1 2 12/8/2011 (Exh. “I”) at 9. The Arizona Court of Appeals stated that “[w]ithout explanation or citation to the record, [Petitioner] argues his trial counsel failed to 3 4 5 6 adequately ‘expose[] this perjurious testimony.’” Answer (Doc. 16), Ariz. Ct. App. Mem. Decision 3/12/2012 (Exh. “J”) at 5 (alterations in original). The court of appeals went on to hold that “[t]his unsupported assertion is insufficient to establish a colorable 7 8 9 10 claim of ineffective assistance of counsel.” Id., Exh. “J” at 5 (citing State v. Meeker, 143 Ariz. 256, 264, 693 P.2d 911, 919 (1984); Ariz. R. Crim. P. 32.9(c)(1); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995)). 11 Petitioner has failed to present any evidence to show that the Arizona court’s 12 13 decision regarding his ineffective assistance claim is contrary to or an unreasonable 14 application of clearly established Supreme Court law or based on an unreasonable 15 determination of the facts. As such, this Court finds that the Arizona courts did not 16 17 18 19 unreasonably apply clearly established Federal law or unreasonably determine the facts in light of the evidence presented, and Petitioner cannot meet his burden to show prejudice. See Gulbrandson, 738 F.3d at 991. “It is all too tempting for a defendant to second-guess 20 21 counsel’s assistance after conviction or adverse sentence[;] . . . [however,] [b]ecause of 22 the difficulties inherent in making the evaluation, a court must indulge a strong 23 presumption that counsel’s conduct falls within the wide range of reasonable professional 24 25 assistance[.]” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 26 L.Ed.2d 674 (1984). Accordingly, Petitioner’s ineffective assistance of counsel claim 27 regarding an alleged failure to investigate the facts of the case is without merit. 28 ... - 32 - 1 2 5. Suppression Motion Petitioner claims that his trial counsel was ineffective for allegedly failing “to raise 3 4 5 6 a possible defense to make a suppression motion[.]” Petition (Doc. 1) at 6. Respondents assert that Petitioner failed to exhaust this claim, because he did not present it to the Arizona Court of Appeals. Answer (Doc. 16) at 9. The Court agrees with Respondent. 7 8 Petitioner failed to raise this claim in either of his pro se PCR petitions. See 9 Answer (Doc. 16), Pet.’s Pro Se Pet. for PCR (Exh. “G”) & Pet.’s Successive Pet. for 10 PCR (Exh. “O”). Neither did Petitioner raise it to the Arizona Court of Appeals. See 11 12 Answer (Doc. 16), Pet. for Review 12/8/2011 (Exh. “I”) & Pet. for Review 10/23/2012 13 (Exh. “Q”). “[A]ll operative facts to an ineffective assistance claim must be presented to 14 the state courts in order for a petitioner to exhaust his remedies.” Hemmerle v. Schriro, 15 495 F.3d 1069, 1075 (9th Cir. 2007). 16 17 18 19 Accordingly, this claim is unexhausted and would now be precluded. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the 20 21 prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is 22 procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 23 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the 24 25 26 27 28 court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred”). Where a habeas petitioner’s claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and - 33 - 1 2 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding 3 4 5 6 barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner 7 8 “must show not merely that the errors . . . created a possibility of prejudice, but that they 9 worked to his actual and substantial disadvantage, infecting his entire trial with error of 10 constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also 11 12 Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer 13 any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on 14 which to address the merits of his claims.”). 15 As such, Petitioner’s claim for ineffective assistance of counsel based on an 16 17 18 19 alleged failure to file a suppression motion cannot stand. 6. No Objection to Opening Statement Petitioner claims that his trial counsel was ineffective for allegedly failing “to 20 21 object to a clearly improper opening statement from the Prosecution.” Petition (Doc. 1) 22 at 6. Respondents assert that Petitioner “did not ‘fairly present’ [this claim] to the 23 Arizona Court of Appeals” and it is therefore unexhausted. See Answer (Doc. 23). The 24 25 Court agrees, and finds this claim to be unexhausted. 26 Petitioner failed to raise this claim in either of his pro se PCR petitions. See 27 Answer (Doc. 16), Pet.’s Pro Se Pet. for PCR (Exh. “G”) & Pet.’s Successive Pet. for 28 PCR (Exh. “O”). Neither did Petitioner raise it to the Arizona Court of Appeals. See - 34 - 1 2 Answer (Doc. 16), Pet. for Review 12/8/2011 (Exh. “I”) & Pet. for Review 10/23/2012 (Exh. “Q”). “[A]ll operative facts to an ineffective assistance claim must be presented to 3 4 5 6 the state courts in order for a petitioner to exhaust his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). Accordingly, this claim is unexhausted and would now be precluded. Ariz. R. 7 8 Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; see also Baldwin v. Reese, 541 U.S. 27, 29, 124 9 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the 10 prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is 11 12 procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 13 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the 14 court to which the petitioner would be required to present his claims in order to meet the 15 exhaustion requirement would now find the claims procedurally barred”). 16 17 18 19 Where a habeas petitioner’s claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 20 21 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding 22 barred federal habeas review unless petitioner demonstrated cause and prejudice). 23 Petitioner has not met his burden to show either cause or actual prejudice. Murray v. 24 25 Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner 26 “must show not merely that the errors . . . created a possibility of prejudice, but that they 27 worked to his actual and substantial disadvantage, infecting his entire trial with error of 28 constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also - 35 - 1 2 Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on 3 4 5 6 which to address the merits of his claims.”). As such, Petitioner’s claim for ineffective assistance of counsel based on an alleged failure to object to the prosecution’s Opening Statement is without merit. 7 8 7. Inadmissible Evidence 9 Petitioner claims that his trial counsel was ineffective for allegedly failing “to 10 object to evidence that was clearly inadmissible[.]” Petition (Doc. 1) at 6. Respondents 11 12 13 14 15 assert that Petitioner failed to exhaust this claim. Answer (Doc. 16) at 9. The Court agrees that this claim is unexhausted. Petitioner failed to raise this claim in either of his pro se PCR petitions. See Answer (Doc. 16), Pet.’s Pro Se Pet. for PCR (Exh. “G”) & Pet.’s Successive Pet. for 16 17 18 19 PCR (Exh. “O”). Neither did Petitioner raise it to the Arizona Court of Appeals. See Answer (Doc. 16), Pet. for Review 12/8/2011 (Exh. “I”) & Pet. for Review 10/23/2012 (Exh. “Q”). “[A]ll operative facts to an ineffective assistance claim must be presented to 20 21 22 23 24 25 the state courts in order for a petitioner to exhaust his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). Accordingly, this claim is unexhausted and would now be precluded. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; see also Baldwin v. Reese, 541 U.S. 27, 29, 124 26 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the 27 prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is 28 procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, - 36 - 1 2 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the 3 4 5 6 exhaustion requirement would now find the claims procedurally barred”). Where a habeas petitioner’s claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and 7 8 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 9 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding 10 barred federal habeas review unless petitioner demonstrated cause and prejudice). 11 12 Petitioner has not met his burden to show either cause or actual prejudice. Murray v. 13 Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner 14 “must show not merely that the errors . . . created a possibility of prejudice, but that they 15 worked to his actual and substantial disadvantage, infecting his entire trial with error of 16 17 18 19 constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on 20 21 22 23 which to address the merits of his claims.”). As such, Petitioner’s claim for ineffective assistance of counsel based on an alleged failure to object to certain evidence cannot stand. 24 25 B. Ground Two: Prosecutorial Misconduct 26 Petitioner asserts that he suffered “vindictive prosecution due to the fact that [he] 27 had exercised [his] constitutional rights.” Petition (Doc. 1) at 7. Petitioner further 28 alleged that the prosecution acted improperly by allowing the two female co-defendants - 37 - 1 2 to “become victims” thereby preventing Petitioner “from defending [him]self” and resulting in “a perverse verdict.” Id. Petitioner also takes issue with his female co- 3 4 5 6 defendants allegedly inconsistent statements as a result of becoming victims. Id. Respondents assert that Petitioner failed to raise these claims to the state court, thereby only technically exhausting these claims. Answer (Doc. 16) at 9. The Court disagrees 7 8 9 10 11 12 and finds these claims exhausted; however, as discussed, infra, the claims are procedurally defaulted. Broadly construed, Petitioner raised these claims in his direct appeal. See Answer (Doc. 16), Appellant’s Opening Br. 4/1/2010 (Exh. “B”) at 41–44. Petitioner asserted 13 that the Pima County Attorney’s office should have been disqualified because W.H. and 14 M.K. were “co-conspirators on some counts and that [M.K.] was a victim in other 15 counts[,]” thereby violating “fundamental fairness in a manner shocking to the universal 16 17 18 19 sense of justice.” Id. at 44. The court of appeals found that “Rimer has failed to offer any apposite or persuasive authority demonstrating the trial court abused its discretion in denying his motion to disqualify the county attorney’s office from prosecuting his case 20 21 based on W.H.’s and M.K.’s status as both victims and co-conspirators.” Answer (Doc. 22 16), Ariz. Ct. of Appeals, Memorandum Decision 1/7/2011 (Exh. “A”) at 3. 23 appellate court held that “[n]either the statutes granting rights to victims nor the cases 24 25 The upon which Rimer relies support his position and, to the extent they are applicable here, 26 they instead inform a contrary conclusion.” Id. (citing A.R.S. §§ 13-4401 through 13- 27 4440; State ex rel. Romley v. Superior Court, 181 Ariz. 378, 381–83, 891 P.2d 246, 249– 28 51 (Ct. App. 1995); Villalpando v. Reagan, 211 Ariz. 305, 308 1221 P.3d 172, 175 (Ct. - 38 - 1 2 App. 2005); Bicas v. Superior Court, 116 Ariz. 69, 74, 567 P.2d 1198, 1203 (Ct. App. 1977)). The court of appeals concluded that the trial court “did not abuse its discretion in 3 4 5 6 denying Rimer’s motion to disqualify the Pima County Attorney’s Office.” Id., Exh. “A” at 4. Petitioner’s claims regarding prosecutorial misconduct as it relates to his female 7 8 co-defendants/victims have been procedurally defaulted. Petitioner presented his claims 9 to the state court, which denied relief based on independent and adequate state grounds. 10 See Coleman v. Thompson, 501 U.S. 722, 728, 111 S.Ct. 2546, 2254, 115 L.Ed.2d 640 11 12 (1991). Accordingly, this Court has “no power to review a state law determination that is 13 sufficient to support the judgment, [and] resolution of any independent federal ground for 14 the decision could not affect the judgment and would therefore be advisory.” Id. 15 Therefore, Petitioner’s claims regarding allegedly vindictive prosecution or his 16 17 18 19 female co-defendants as victims cannot stand. C. Ground Three: Polygraph Test Petitioner asserts that he “was given a polygraph test . . . [which] revealed 20 21 physiological responses indicative to truthful answers proving my inosence [sic] to the 22 charge brough [sic] forth.” Petition (Doc. 1) at 8. Petitioner acknowledged that “[t]he 23 State of Arizona does not reconkize [sic] the use of polygraphs but the federal courts do.” 24 25 26 27 28 Id. Respondents assert that Petitioner raised this claim in state court, and as such, it is precluded from review. Answer (Doc. 16) at 10. Petitioner failed to raise this claim on direct appeal or in either of his pro se PCR petitions. See Answer (Doc. 16), Appellant’s Opening Br. (Exh. “B”) & Pet.’s Pro Se - 39 - 1 2 Pet. for PCR (Exh. “G”) & Pet.’s Successive Pet. for PCR (Exh. “O”). Neither did Petitioner raise it to the Arizona Court of Appeals. See Answer (Doc. 16), Pet. for 3 4 5 6 Review 12/8/2011 (Exh. “I”) & Pet. for Review 10/23/2012 (Exh. “Q”). Accordingly, this claim is unexhausted and would now be precluded. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; see also Baldwin v. Reese, 541 U.S. 27, 29, 124 7 8 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the 9 prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is 10 procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 11 12 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the 13 court to which the petitioner would be required to present his claims in order to meet the 14 exhaustion requirement would now find the claims procedurally barred”). 15 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 16 17 18 19 courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding 20 21 barred federal habeas review unless petitioner demonstrated cause and prejudice). 22 Petitioner has not met his burden to show either cause or actual prejudice. Murray v. 23 Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner 24 25 “must show not merely that the errors . . . created a possibility of prejudice, but that they 26 worked to his actual and substantial disadvantage, infecting his entire trial with error of 27 constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also 28 Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer - 40 - 1 2 any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). 3 4 5 6 The Supreme Court has recognized, however, that “the cause and prejudice standard will be met in those cases where review of a state prisoner’s claim is necessary to correct ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722, 7 8 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 9 S.Ct. 1558, 1572–73, 71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice 10 exception is available ‘only where the prisoner supplements his constitutional claim with 11 12 a colorable showing of factual innocence.’” Herrara v. Collins, 506 U.S. 390, 404, 113 13 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v. 14 Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)). Thus, “‘actual 15 innocence’ is not itself a constitutional claim, but instead a gateway through which a 16 17 18 19 habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrara, 506 U.S. at 404, 113 S.Ct. at 862. Further, in order to demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by 20 21 clear and convincing evidence that but for the constitutional error, no reasonable 22 factfinder would have found [him] guilty of the underlying offense.” 23 2254(e)(2)(B). 24 25 28 U.S.C. § It is well established law that “all references to polygraph tests, absent stipulation, 26 are inadmissible for any purpose in Arizona. State v. Hoskins, 199 Ariz. 127, 144, 14 27 P.3d 997, 1014 (2000). Petitioner concedes that this is the law. Petition (Doc. 1) at 8. 28 The Supreme Court of the United States has held that a per se rule excluding all - 41 - 1 2 polygraph evidence does not abridge a defendant’s constitutional rights. United States v. Scheffer, 523 U.S. 303, 309–17, 118 S.Ct. 1261, 1264–69, 140 L.Ed.2d 413 (1998). 3 4 5 6 Furthermore, Petitioner failed to submit any evidence, beyond a bald assertion, that his polygraph test was favorable to him. See id. Finally, Petitioner seeks habeas review of this issue as a standalone claim; however, “‘actual innocence’ is not itself a constitutional 7 8 9 10 11 12 claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrara, 506 U.S. at 404, 113 S.Ct. at 862. As such, Petitioner’s claim regarding an alleged favorable polygraph test cannot stand. 13 D. 14 Petitioner asserts that “[b]ecause of the charges that have been brough [sic] against 15 Ground Four: Willful Blindness me I have been deprived of life, liberty without proper due process of the law[.]” Petition 16 17 18 19 (Doc. 1) at 9. Petitioner further complains of the process “for obtaining witnesses in [his] favor” and the lack of “proper assistance of counsel for [his] defense.” Id. Finally, Petitioner asserts that he has “unusual and cruel time to serve as inflicted punishment.” 20 21 22 23 24 25 Id. Respondents assert that this is the first time Petitioner has raised this claim. Answer (Doc. 16) at 10. A review of the record indicates that Petitioner did not raise this claim to the state courts. See Answer (Doc. 16), Appellant’s Opening Br. (Exh. “B”) & Pet.’s Pro Se Pet. 26 for PCR (Exh. “G”) & Pet.’s Successive Pet. for PCR (Exh. “O”). As discussed in 27 Section II., supra, prior to bringing a claim to federal court, a habeas petitioner must 28 present all claims first to the state court. Because Petitioner did not fairly present this - 42 - 1 2 claim to the state courts, it is unexhausted and procedurally defaulted. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; Coleman, 501 U.S. at 735 n.1, 111 S.Ct. at 2557 n.1 3 4 5 6 (citations omitted). Where a habeas petitioner’s claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and 7 8 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 9 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding 10 barred federal habeas review unless petitioner demonstrated cause and prejudice). 11 12 Petitioner has not met his burden to show either cause or actual prejudice. Murray v. 13 Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner 14 “must show not merely that the errors . . . created a possibility of prejudice, but that they 15 worked to his actual and substantial disadvantage, infecting his entire trial with error of 16 17 18 19 constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on 20 21 which to address the merits of his claims.”). Furthermore, “[c]onclusory allegations 22 which are not supported by a statement of specific facts do no warrant habeas relief.” 23 James v. Borg, 24 F.2d 20, 26 (9th Cir. 1994) (citations omitted). As such, Petitioner’s 24 25 claims as alleged in Ground Four cannot stand. 26 E. 27 In light of the foregoing, the Court finds that Petitioner’s habeas claims are 28 Conclusion without merit, and the Petition (Doc. 1) shall be denied. - 43 - 1 2 V. RECOMMENDATION For the reasons delineated above, the Magistrate Judge recommends that the 3 4 5 6 District Judge enter an order DENYING Petitioner’s Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1); Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil 7 8 Procedure, any party may serve and file written objections within fourteen (14) days after 9 being served with a copy of this Report and Recommendation. A party may respond to 10 another party’s objections within fourteen (14) days after being served with a copy. Fed. 11 12 R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from the District 13 Court. If objections are filed, the parties should use the following case number: CV-14- 14 01930-TUC-RCC. 15 Failure to file timely objections to any factual or legal determination of the 16 17 18 19 Magistrate Judge may result in waiver of the right of review. The Clerk of the Court shall send a copy of this Report and Recommendation to all parties. Dated this 3rd day of February, 2017. 20 21 22 23 Honorable Bruce G. Macdonald United States Magistrate Judge 24 25 26 27 28 - 44 -