James F. Metcalf United States Magistrate Judge

REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

James F. Metcalf United States Magistrate Judge

I. MATTER UNDER CONSIDERATION

Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND A. FACTUAL BACKGROUND

In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:

¶2 Detective Pamela Edgerton received information that an individual using the name "Brett Dodge" had uploaded images of child pornography to a Facebook account. Edgerton traced the IP address of the account to an apartment complex in Prescott and determined that Bassett was Brett Dodge.

¶3 Posing as a 13-year-old girl named "Brenna," Edgerton initiated contact by "friending" Bassett on Facebook. Bassett accepted and for the next several weeks they participated in online chats. Despite the fact that her Facebook page indicated Brenna was 13 years old and she told Bassett that was her age in their chats, Bassett initiated and engaged in sexually explicit conversations with Brenna. During their chats, Bassett also sent Brenna pornographic photographs and videos, some of which included children.

¶4 Pursuant to a search warrant, Edgerton seized three thumb drives found in a safe, one of which contained numerous images of child pornography. Some of the images on the thumb drive matched the pornographic images that had been uploaded by Brett Dodge on Facebook. Officers also seized Bassett's computer, and a search of his internet history revealed search terms that are commonly used when searching for child pornography.

B. PROCEEDINGS AT TRIAL

Petitioner was indicted in Yavapai County Superior Court on 41 counts. (Exh. A, Indict.) He proceeded to trial and was convicted on 11 counts of sexual exploitation of a minor, 2 counts of luring of a minor for sexual exploitation, and 27 counts of aggravated luring of a minor for sexual exploitation. The trial court sentenced Bassett to aggregate prison terms of 202 years. (Exh. N, Sentence; Exh. R, Mem. Dec. 3/4/14 at ¶ 5.)

C. PROCEEDINGS ON DIRECT APPEAL

Petitioner filed a direct appeal and filed through counsel an Opening Brief (Exh. O), raising arguments of insufficient evidence, prosecutorial misconduct in argument, the statutes were void for overbreadth, and error in admitting expert opinion on age. The Arizona Court of Appeals rejected the claims on the merits and affirmed the convictions and sentences. (Exh. R, Mem. Dec. 3/4/14.)

Petitioner sought review (Exh. S) from the Arizona Supreme Court, who summarily denied review. (Exh. T, Order 11/7/14.)

D. PROCEEDINGS ON POST-CONVICTION RELIEF

While his Petition for Review by the Arizona Supreme Court was pending, Petitioner commenced a post-conviction relief proceeding by filing a PCR Notice (Exh U). Counsel was appointed who filed a PCR Petition (Exh. V) presenting various claims of ineffective assistance. The PCR court denied the claims on the merits. (Exh. Y, Order 1/8/16.)

Petitioner then filed through counsel a Petition for Review (Exh. Z) again arguing the evidentiary objections underlying the ineffective assistance claims. The Arizona Court of Appeals granted review, finding the substantive claims barred because they “were or could have been raised on direct appeal.” (Exh. BB, Mem. Dec. 10/31/17 at ¶ 4.) The claims of ineffective assistance were rejected as argued “improperly in cursory fashion.” (Id.)

Petitioner sought review by the Arizona Supreme Court (Exh. CC), which denied review on April 12, 2018 (Exh. DD).

The Arizona Court of Appeals issued its Mandate (Exh. BB) on May 14, 2018.

E. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on May 13, 2019 (Doc. 1). Petitioner's Petition asserts the following five grounds for relief:

In Ground One, Petitioner alleges that his First Amendment rights were violated, and that the evidence is insufficient to sustain his convictions. In Ground Two, Petitioner alleges that his Fifth Amendment rights were violated when the trial court denied his request for a Frye hearing and in allowing certain expert testimony. In Ground Three, Petitioner alleges that his Sixth Amendment rights were violated when a witness was allowed to give prejudicial testimony and when a detective testified about uncharged images. In Ground Four, Petitioner alleges that his Fifth and Sixth Amendment rights were violated when references were made to uncharged images. In Ground Five, Petitioner alleges that his attorney provided ineffective assistance.

The undersigned designates the claims and subclaims as follows:

Ground 1 - Insufficient Evidence/First Amendment

Ground 2 - Denial of Frye Hearing/Admission of Opinion Testimony Ground 3A1 - Prior notice re Molestation Opinion

Ground 3A2 - Invasion of Province of Jury re Molestation Opinion Ground 3B - Prior Notice re Uncharged Images

Ground 4 - Evidence of Uncharged Images Ground 5A - Ineffectiveness re Trial Strategy

Ground 5B - Ineffectiveness re Witnesses and Detective's Presence

Ground 5C - Ineffectiveness re Frye Hearing/Opinions on Ages

Ground 5D - Ineffectiveness re Penis Image

Ground 5E - Ineffectiveness re “Molestation” Testimony

Ground 5F - Ineffectiveness re Uncharged Images

Ground 5G - Ineffectiveness re Admissions

Response - On September 23, 2019, Respondents filed their Limited Answer (Doc. 12). Respondents argue: (a) the Petition is untimely and barred by the statute of limitations; (2) Ground Three and Four were procedurally barred as waived in the PCR proceeding; and (3) Ground Five was procedurally barred as conclusorily presented in the PCR proceeding.

Reply - On March 16, 2020, Petitioner filed a Reply (Doc. 22). Petitioner argues: (1) he is entitled to equitable tolling because he relied on advice from counsel that his habeas statute of limitations began running after May 14, 2018, when the mandate was issued in his PCR proceeding; (2) Grounds 3 and 4 were not procedurally defaulted, but were presented and ruled on by the Arizona Court of Appeals in the PCR proceeding, and are meritorious, and any failure to fairly present them was the fault of trial, appellate, and PCR counsel; and (3) Ground 5 is meritorious, and any procedural default should be excused as the fault of appellate and PCR counsel.

Supplemental Response - Respondents were directed to supplement their answer to address preliminary determinations that the statute of limitations had been sufficiently tolled to make the Petition timely, various claims were not procedurally barred by the state courts, the merits of Grounds 1 and 2, the procedural default of Grounds 3A2, 5A, 5B, 5C, 5D and 5G and cause and prejudice to excuse them, the adequacy of the procedural bar applied to Grounds 5E & 5F, and the merits of such claims. (Order 4/9/21, Doc. 23.)

Respondents filed their Supplemental Answer (Doc. 26) on June 1, 2021. Respondents argue that the undersigned's preliminary analysis wrongly treats the mandate in the PCR proceedings as their termination, when the proper time is the Arizona Supreme Court's denial of review. Respondents argue: Ground 1 is without merit; Ground 2 is not cognizable on habeas and the state court properly resolved the claim; Ground 3A2 is procedurally defaulted; Petitioner cannot show cause and prejudice under Martinez to excuse the procedural default of Grounds 5A, 5B, 5C, 5D, and 5G; and Ground 5E and 5F are without merit.

Supplemental Reply - On August 24, 2021 Petitioner filed his Supplemental Reply (Doc. 29). Petitioner argues the timeliness of his filing, the merits of Grounds 3A1, 3A2, 3B, and 4, and the merits and applicability of Martinez to excuse the procedural defaults of Ground 5.

III. APPLICATION OF LAW TO FACTS

A. TIMELINESS

1. One Year Limitations Period

Respondents assert that Petitioner's Petition is untimely. As part of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one-year limitations period are barred and must be dismissed. Id.

2. Commencement of Limitations Period

The one-year statute of limitations on habeas petitions generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).

Here, Petitioner's direct appeal remained pending at least through November 7, 2014, when the Arizona Supreme Court denied his Petition for Review. (Exhibit T.)

For purposes of 28 U.S.C. § 2244, “direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The rules of the Supreme Court of the United States, requires that a petition for a writ of certiorari be filed “within 90 days after entry of the order denying discretionary review.” U.S. Sup. Ct. R. 13(1). Accordingly, because Petitioner did not file a petition for a writ of certiorari, his conviction became final on February 5, 2015, 90 days after the Arizona Supreme Court denied review.

For purposes of counting time for a federal statute of limitations, the standards in Federal Rule of Civil Procedure 6(a) apply. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Rule 6(a)(1)(A) directs that the “the day of the event that triggers the period” is excluded. See Patterson, 251 F.3d at 1246 (applying “anniversary method” under Rule 6(a) to find that one year grace period from adoption of AEDPA statute of limitations, on April 24, 1996, commenced on April 25, 1996 and expired one year later, on the anniversary of such adoption, April 24, 1997).

Based on the foregoing, Petitioner's conviction became final on February 5, 2015, upon expiration of his time to file a petition for writ of certiorari with the U.S. Supreme Court. Therefore, Petitioner's one year began running on February 6, 2015, and without any tolling expired on February 5, 2016.

3. Statutory Tolling

The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). This provision only applies to state proceedings, not to federal proceedings. Duncan v. Walker, 533 U.S. 167 (2001).

Here, Petitioner commenced his first PCR proceeding on January 7, 2015, before his conviction became final, by filing his timely Notice of Post-Conviction Relief (Exh. U). That PCR proceeding remained at least pending until April 12, 2018, when the Arizona Supreme Court denied review (Exh. DD). Respondents calculate such date as the end of Petitioner's tolling.

However, the Arizona Court of Appeals had granted review of the trial court's decision, although ultimately denying relief in a formal opinion (i.e. a Memorandum Decision). (Exh. BB, Mem. Dec. 10/31/17 at ¶ 4.) Because a formal opinion issued by the appellate court, Ariz. Rev. Stat. § 12-120.24 mandated the issuance of a mandate even though the state supreme court denied review.

A party against whom a decision has been rendered or against whom a motion for dismissal of the action has been granted in the court of appeals may file in such court a motion for rehearing…If the motion is denied, and the party against whom the decision or order has been rendered desires a further review by the supreme court, he shall serve upon the opposite party and file with the clerk of the division a statement that he desires such review…The supreme court shall either grant or deny the request for review…upon the receipt from the clerk of the supreme court of notification that the request for review has been denied, the clerk of the division shall, if the matter has been decided by formal opinion, issue the mandate of the court of appeals, if no written formal opinion has been rendered then by certified copy of the order of the court.

The Arizona courts have held that “in Arizona, 'an appellate decision becomes final when the mandate issues.' ” State v. Dalglish, 183 Ariz. 188, 189, 901 P.2d 1218, 1219 (App.1995) (determining finality of judgment for purposes of retroactive application…of new rules). See also Ramon v. Ryan, CV 09-560-TUC-CKJ, 2010 WL 3564819, at *6 (D.Ariz.2010) (detailing other holdings requiring mandate for finality of judgment).

Thus, in Arizona cases where a formal opinion (a decision) has issued and a mandate follows, the issuance of the mandate signals the final resolution of the proceeding for purposes of tolling under 28 U.S.C. § 2244(d)(2) (even if it is irrelevant for purposes of commencement of the limitations period under § 2244(d)(1)).

Respondents rely on Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir.2007) for the proposition that the issuance of a letter returning the record to the trial court was “not the equivalent to the issuance of [a] mandate, and in no way delayed the finality of the judgment.” Rather, “it only provides for a ministerial function in the state appellate court when the ‘matter is determined.'” (Supp. Resp., Doc. 26 at 4.)

Here, however, there was not merely a letter returning the record with the order denying review (as provided for by the final clause of Ariz. Rev. Stat. § 12-120.24 (“if no written formal opinion has been rendered then by certified copy of the order of the court”). Rather here, because the Arizona Court of Appeals had granted review and issued its opinion (Exh. BB at 2, Doc. 12-3 at 179 et seq.), it also issued its “Mandate” (Exh. BB at 1, Doc. 12-3 at 178).

It is true that the Court in Hemmerle observed that Ariz. R. Crim. P. 32.9(h) did not require a mandate. Rather, the rule required, inter alia, “when the matter is determined, the clerk of the appellate court shall return the record to the appropriate trial court for retention according to law.” 17 Ariz. Rev. Stat. Rules Crim. Proc., Rule 32.9(h), eff. 1/1/2007. The essence of that rule remained in 2018, when the mandate was issued in Petitioner's PCR proceeding. “After a petition for review is resolved, the appellate clerk must return the record to the trial court clerk for retention.” 16A Ariz. Rev. Stat. Rules Crim. Proc., Rule 32.9(h), eff. 1/1/2018. Thus, Hemmerle properly concluded that compliance with this rule (which “only provides for a ministerial function in the state appellate court, ” Hemmerle, 495 F.3d at 1077) did not constitute a mandate, and thus did not continue the pendency of the PCR proceeding. But Hemmerle did not hold that Arizona law never required a mandate in PCR proceedings, nor that where one was required the matter did not remain pending until it was issued.

In Hemmerle not only the state supreme court, but also the appellate court had simply denied review and thus had not issued a formal opinion. Hemmerle, 495 F.3d at 1072. Thus there was no formal opinion on the basis of which the appellate court could issue a mandate under Ariz. Rev. Stat. § 12-120.24. Accordingly, the appellate court simply “sent to the Clerk of Maricopa County Superior Court a certified copy of the order denying review along with transcripts and other records.” Id. In contrast, in Petitioner's case the Arizona Court of Appeals, having granted review and issued its decision, was required to issue a mandate, and did so.

This mandate was not some quirk of procedure in this case. Rather, mandates are provided for by rule and routinely issued by the Arizona Court of Appeals in PCR proceedings. See 16A Ariz. Rev. Stat. Rules Crim. Proc., Rule 32.1, eff. 1/1/2018 (“After the court's final order or mandate in a Rule 32 of-right proceeding, the defendant also may file an of-right notice challenging the effectiveness of Rule 32 counsel in the first of-right proceeding.”). See e.g. State v. Pruett, 185 Ariz. 128, 131, 912 P.2d 1357, 1360 (Ct. App. 1995) (“a second notice of post-conviction relief for a claim of ineffectiveness of previous Rule 32 counsel is timely if filed within 30 days of the order and mandate affirming the trial court's denial of the petitioner's first petition for post-conviction relief”); Wells v. Ryan, 2015 WL 9918159, at *9 (D. Ariz. Aug. 13, 2015), report and recommendation adopted, 2016 WL 319529 (D. Ariz. Jan. 27, 2016) (noting the “the Arizona Court of Appeals…regularly issues a mandate at the conclusion of post-conviction proceedings” and detailing cases).

Nor is the conclusion in this Report & Recommendation novel. Indeed, in the unpublished decision in Celaya v. Ryan, 497 Fed.Appx. 744, 745 (9th Cir. 2012), cert. denied, 133 S.Ct. 1824 (2013), the Ninth Circuit concluded that the petitioner's “post-conviction review (“PCR”) petition was ‘pending' until the Arizona Court of Appeals issued the mandate concluding its review of that petition on November 30, 2000.” In the lower court decision in Celaya v. Stewart, 691 F.Supp.2d 1046 (D. Ariz. 2010), Judge Bury adopted a recommendation by Magistrate Judge Velasco where the Arizona Court of Appeals granted review but denied relief, and the defendant did not seek review by the Arizona Supreme Court. Judge Bury distinguished Hemmerle on this basis, applied Arizona Rule of Criminal Procedure 31.23 (finding that it governed “appeals and other post-conviction relief”), and concluded that the PCR proceeding remained pending until issuance of the mandate.

Respondents argue that this Court should reject Celaya as wrongly decided on the basis that Rule 31.23 does not apply to PCR proceedings. But Respondents proffer no authority for that proposition. Even if that proposition were true, it does not address the applicability of Ariz. Rev. Stat. § 12-120.24 nor explain the repeated issuance of mandates in Arizona's PCR proceedings.

Moreover, the division between direct appeals and petitions for review in PCR proceedings is not bright under the Arizona Rules of Criminal Procedure. See e.g. Moreno v. Gonzalez, 192 Ariz. 131, 134, 962 P.2d 205, 208 (1998) (resolving that “a petition for review to the court of appeals from the decision of the trial court on a petition for post-conviction relief are not ‘appeals' within the meaning of Rule 32.1(f)” (which allows PCR petitions based on excusable failure to file a timely appeal)).

Respondents cite other cases in the District of Arizona as having reached an opposite conclusion. The first case cited is Martinez v. Ryan, CV-15-00566-TUC-BPV, 2018 WL 3110045 (D. Ariz. June 25, 2018), aff'd, 777 Fed.Appx. 233 (9th Cir. 2019), which attempted to distinguish Celaya on the basis that Celaya had failed to seek review by the Arizona Supreme Court, but Martinez had sought such review and been denied. Judge Velasco reasoned that “after the Arizona Supreme Court denied review, there was no further requirement for a mandate to issue; the petition was no longer pending.” Id. at *3, n. 3. But Martinez engaged in no analysis of Ariz. Rev. Stat. § 12-120.24, and asserted that the direction in Ariz. R. Crim. P. 31.19(h) for the supreme court's clerk to return the file to the appellate court with the order meant no mandate was required. That reasoning confused those clerical processes with a mandate much in the same way that the petitioner had in Hemmerle. The second and third cases cited, Baker v. Ryan, CV-19-02852-PHX-MTL, 2021 WL 717253, at *3 (D. Ariz. Feb. 24, 2021), and Puleo v. Shinn, CV-19-5402-PHX-SPL-CDB, 2020 WL 6083463, at *4, n. 4 (D. Ariz. Sept. 1, 2020), report and recommendation adopted, 2020 WL 6081499 (D. Ariz. Oct. 15, 2020) engaged in no analysis of the effect of a grant of review by the appellate court, and instead simply relied on Hemmerle and Martinez. The undersigned finds these cases unpersuasive.

Accordingly, the undersigned concludes that Petitioner's PCR proceeding remained pending, and Petitioner's habeas limitations period was tolled from its commencement, until May 14, 2018 when the Arizona Court of Appeals issued its mandate.

Thus, the one-year limitations period commenced running the day after Petitioner's conviction became final, or on May 15, 2018 (day one), and the last day was 364 days later, on May 14, 2019. See Patterson, 251 F.3d at 1246. Consequently, contrary to Respondents' arguments, Petitioner's habeas petition was filed the day before the limitations period expired, on May 13, 2019, and was timely.

B. REQUEST FOR EVIDENTIARY HEARING

Petitioner requests an evidentiary hearing. (Reply, Doc. 22 at 6.)

“We begin with the rule that no such hearing is required ‘[i]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief.'” Hibbler v. Benedetti, 693 F.3d 1140, 1148 (9th Cir. 2012). As discussed hereinafter, this matter may be resolved based on the record herein.

Moreover, Petitioner fails to proffer any evidence to be admitted at such a hearing that would alter the results of the determination of his claims. A bald request for an evidentiary hearing need not be granted. “In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Where a petitioner does not proffer any evidence to be adduced at an evidentiary hearing which would prove the allegations of the petition, the habeas court need not grant a hearing. Chandler v. McDonough, 471 F.3d 1360, 1363 (11th Cir. 2006) (“The failure to proffer any additional evidence defeats [petitioner's] argument that he was entitled to an additional evidentiary hearing in federal court.”); Williams v. Bagley, 380 F.3d 932, 977 (6th Cir. 2004) (“district court did not abuse its discretion in denying Williams's request, given his failure to specify ... what could be discovered through an evidentiary hearing”); Lincecum v. Collins, 958 F.2d 1271, 1279-80 (5th Cir.1992) (denying evidentiary hearing “[a]bsent any concrete indication of the substance of the mitigating evidence” the hearing supposedly would provide).

For his claims decided on the merits in the state courts, Petitioner fails to proffer anything to meet the requirements of 28 U.S.C. § 2254(d) and (e). The former requires a showing that the state court made an unreasonable determination of the facts. The latter requires a showing of clear and convincing evidence to overcome the presumption of correctness of the state court findings, and that Petitioner did not fail to develop the record in the state court. Petitioner proffers nothing to meet these standards.

Finally, even when a claim is reviewed de novo, the petitioner may not obtain an evidentiary hearing or otherwise introduce new evidence if he has “failed to develop” the record in the state courts, unless he meets certain stringent showings related to justification for the delay in developing the record, 28 U.S.C. § 2254(e)(2)(A), and that the new evidence will show a lack of evidence to convict, 28 U.S.C. § 2254(e)(2)(B). Petitioner fails to show he meets these requirements.

Accordingly, no evidentiary hearing is required to resolve the Petition, nor allowed to address the merits of the claims.

C. EXHAUSTION, PROCEDURAL DEFAULT AND PROCEDURAL BAR

1. Procedural Bar

Respondents argue that Grounds 3, 4, and 5 were procedurally barred on an independent and adequate state grounds, and thus are barred from federal habeas review.

Proper Exhaustion - Generally, a federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam). The exhaustion doctrine, first developed in case law, has been codified at 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).

Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented his federal claims to the state courts. “A petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005).

Although fair presentation is the normal mode of establishing exhaustion of state remedies, it is not the only method. Rather, a petitioner's state remedies are exhausted where the state courts have reached and passed on the merits of a federal claim, regardless whether the petitioner had fairly presented the claim to the state court. “It is reasonable to infer an exception [to the fair presentation requirement] where the State has actually passed upon the claim.” Castille v. Peoples, 489 U.S. 346, 351 (1989).

Procedural Default - Ordinarily, unexhausted claims are dismissed without prejudice. Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to properly exhaust his available administrative or judicial remedies, and those remedies are now no longer available because of some procedural bar, the petitioner has "procedurally defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice of a procedurally defaulted habeas claim is generally proper absent a showing of “cause and prejudice” or a “miscarriage of justice” which would excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).

Procedural Bar - Related to the concept of procedural default is the principle of barring claims actually disposed of by the state courts on state grounds. “[A]bsent showings of ‘cause' and ‘prejudice,' federal habeas relief will be unavailable when (1) ‘a state court [has] declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement,' and (2) ‘the state judgment rests on independent and adequate state procedural grounds.' ” Walker v. Martin, 562 U.S. 307, 316 (2011).

a. Ground 3 (Detective's Testimony)

In Ground 3, Petitioner argues that his Sixth Amendment rights were violated when Detective Edgerton was allowed to give prejudicial testimony that someone using child pornography had or would molest children, and when Edgerton testified about having one of the charged images and two other images reviewed by a physician, thereby making reference to uncharged images. Liberally construed, Petitioner argues both sets of challenged evidence resulted in the violation of his rights under the Sixth Amendment to prior notice of the charges, and as to the “molester” opinion as an invasion the province of the jury in violation of the Sixth Amendment right to a jury trial. See e.g. Moses v. Payne, 555 F.3d 742, 761 (9th Cir. 2009) (considering invasion of province of jury by opinion evidence); United States v. Swafford, 385 F.3d 1026, 1029 (6th Cir. 2004) (same). (Petition, Doc. 1 at 10-11.)

The undersigned addresses these claims as Grounds 3A1 (prior notice molestation opinion), 3A2 (invasion of province of jury re molestation opinion), and 3B (prior notice re uncharged images to physician).

Respondents assert that the claims in Ground 3 were fairly presented to the Arizona Court of Appeals in Petitioner's PCR proceeding, but that the state court applied Arizona's independent and adequate waiver bar under Arizona Rule of Criminal Procedure 32.2(a) to bar consideration of these claims because they could have been but were not raised on direct appeal.

(1). Ground 3A2 Not Fairly Presented or Procedurally Barred

Petitioner's PCR Petition for Review was not presented with great precision. It largely argued facts and prejudice, and made mostly passing legal arguments, or arguments prefaced by overarching references to factual patterns. However, Petitioner plainly argued the facts underlying Ground 3. He referenced Det. Edgerton's testimony on the uncharged images sent to the physician (id. at 5.), and Edgerton's testimony about being or becoming a child molester (id. at 2-3).

But, even if the facts have been fairly presented, failure to alert the state court to the constitutional nature of the claim will amount to failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 366 (1995). While the petitioner need not recite “book and verse on the federal constitution, ” Picard v. Connor, 404 U.S. 270, 277-78 (1971) (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary to support the federal claim were before the state courts or that a “somewhat similar state law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). “[T]he petitioner must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law, ” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9^th Cir. 2005), or by “a citation to a state case analyzing [the] federal constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003). But a drive-by-citation of a state case applying federal and state law is not sufficient.

For a federal issue to be presented by the citation of a state decision dealing with both state and federal issues relevant to the claim, the citation must be accompanied by some clear indication that the case involves federal issues. Where, as here, the citation to the state case has no signal in the text of the brief that the petitioner raises federal claims or relies on state law cases that resolve federal issues, the federal claim is not fairly presented.

In arguing the facts of these claims to the Arizona Court of Appeals, Petitioner referenced Sheppard v. Rees, 909 F.2d 1234, 1237 (9^th Cir. 1989) and Strickland v. Washington, 466 U.S. 668, 684-685 (1984), for the proposition that a fair trial required advance notice of the charges. (Exh. Z, Pet. Rev. at 8-9.) This fairly raised the Sixth Amendment prior notice claims in Grounds 3A1 (Edgerton-molestation), 3B (Edgerton-images), and 4 (thumb drive images).

However, Petitioner made no reference to the Sixth Amendment other than his assertions of ineffective assistance (Exh. Z, Pet. Rev. at 9-10) or a “Right to a fair trial” (id. at 7). He made no references to a right to trial by jury. At best, Petitioner asserted that in his “molester” testimony argument “Det. Edgerton commented on the ultimate issue of this case.” (Id. at 3.) That was not sufficient to raise a Federal jury right claim. And none of the federal or state cases cited by Petitioner addressed a violation of the Sixth Amendment right to jury trial by invading the province of the jury, and no signal in the brief suggested the state cases were cited to establish such a federal claim. Accordingly, Petitioner failed to fairly present his jury trial right claim in Ground 3A2 in his PCR proceeding.

Nor did the Arizona Court of Appeals address such a claim sua sponte. (See Exh. BB, Mem. Dec. 10/31/17.)

Similarly, Petitioner did not fairly present the claim in Ground 3A2 to the PCR court. At most, he argued the underlying facts, asserted the opinion was inadmissible, and asserted that counsel's failure to object amounted to ineffective assistance. (Exh. V, PCR Pet. at 5.) Furthermore, the PCR court issued no rulings applying a procedural bar. (See Exh. Y, Order 1/8/16.)

Thus, the claim in Ground 3A2 was not neither presented nor procedurally barred in the PCR proceeding.

(2). Grounds 3A1, 3B Procedurally Barred

As Respondents argue, the Arizona Court of Appeals found the fairly presented claims in Grounds 3A1 (notice re molestation), and 3B (notice re images to physician) were barred from review:

With some exceptions that do not apply here, a defendant may not obtain post-conviction relief on issues that were or could have been raised on direct appeal. Ariz. R. Crim. P. 32.2(a)-(b). The evidentiary issues that Basset raises fall within that rule. And

The analysis is complicated by the surface ambiguity of that ruling, which references two separate rules. Arizona's Rule 32.2(a)(2) prevents presentation of claims that were previously presented (“precluded” claims), and Rule 32.2(a)(3) prevents those that could have been previously presented but were not (“waived” claims). A finding that claims were raised on direct appeal would indicate that the state remedies on the claims had been properly exhausted on appeal.

Where a state court decision appears to rely on more than one state law grounds, but affords no basis for choosing between a state law ground that would bar federal review, and one that would not, that decision cannot bar federal review. Koerner v. Grigas, 328 F.3d 1039 (9th Cir. 2003); Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir.1996).

A claim cannot be both previously litigated and procedurally defaulted; either it was raised in a prior proceeding or it was not. These cases do not allow for the possibility that the state court relied on both grounds for dismissing the relevant claims; only one ground could apply to each claim. The question is not whether the state relied primarily on a particular ground, but on which mutually exclusive ground the state court relied. When either ground is a possibility, the choice between them is wholly arbitrary. It is not our role to make such a choice.

In a footnote, Respondents acknowledge the quandary, and that the appellate court did not “expressly differentiate” which rule was being applied. (Ans., Doc. 12 at 12-13, n. 3.) But Respondents properly argue that the habeas court can itself look back to the prior state proceeding to see if the claims had in fact been presented. For example, in Poland v. Stewart, 169 F.3d 573, 579 (9th Cir. 1999), the court resolved whether such an ambiguous ruling in a second PCR proceeding referred to the preclusion or the waiver provisions, by “look[ing] to the prior proceeding-the first PCR proceeding-and determine whether the state trial court's rejection…was based on a procedural default which bars federal review.” Here, a review of the appellate record reveals no arguable presentation of the claims in Grounds 3A1 or 3B. (See Exh. O, Opening Brief on Direct Appeal.) Accordingly, the undersigned finds that the Arizona Court of Appeals' decision was based on the waiver provision, not the previously-presented preclusion provision.

Therefore, these Grounds were procedurally barred under Arizona Rule of Criminal Procedure 32.2(a) as waived, rather than under Rule 32.2(b).

Petitioner fails to proffer anything to suggest that Rule 32.2(a) is not an independent and adequate state ground, sufficient to bar federal habeas review of claims a defendant could have but did not raise on direct appeal. The federal courts have routinely held that it is. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014).

Petitioner does complain that any waiver was made by counsel and was not made intentionally by Petitioner. (Reply, Doc. 22 at 12.) But with certain, inapplicable exceptions, e.g. entering a guilty plea, a waiver need not be made by a defendant personally nor even with his involvement. Rather, the attorney acts as the agent of the defendant, and (barring constitutionally ineffective of assistance, addressed hereinafter) the defendant is bound by the attorney's acts. Coleman v. Thompson, 501 U.S. 722, 753 (1991).

b. Ground 4 (Uncharged Photos)

In Ground 4, Petitioner argues 5^th and 6^th Amendment violations based on references to uncharged photos, including: references to 8 uncharged photos in Dr. Quinn's report; and references by Det. Edgerton to other photos from the thumb drive. He argues this presented evidence outside of the indictment and denied his right to a fair trial.

The undersigned liberally construes this Ground as asserting violations of Petitioner's rights: (A) under the Sixth Amendment to prior notice of the charges; and (B) to a denial of due process based on the admission of other-act evidence.

Respondents assert that the claims in Ground 4 were fairly presented to the Arizona Court of Appeals in Petitioner's PCR proceeding, but that the state court applied Arizona's independent and adequate waiver bar under Arizona Rule of Criminal Procedure 32.2(a) to bar consideration of these claims because they could have been but were not raised on direct appeal.

In his Petition for Review in the PCR proceeding, Petitioner argues that the disclosure of the additional photos in Dr. Quinn's report and testimony by Det. Edgerton about uncharged photos from the thumb drive “violated the Petitioner's Right to a fair trial, per the 6th Amendment of the U.S. Constitution” (Exh. Z, PCR PFR at 7), and “violate[d] the Due Process Clauses of the U.S. and Arizona Constitutions (5th Amendment, and Art. 2 §4 respectively), as well as the Right to a Fair Trial under the U.S. and Arizona Constitutions (5th Amendment, and Art. 2 §24 respectively)” (id. at 8). Thus, Petitioner fairly presented these claims to the Arizona Court of Appeals in his PCR proceeding.

As with Ground 3, these claims were procedurally barred under Arizona Rule of Criminal Procedure 32.2(a) as waived and are now procedurally barred.

c. Ground 5

In Ground 5, Petitioner asserts he received ineffective assistance of trial counsel. Respondents identify six specific instances of ineffective assistance (Ans. Doc. 12 at 14), and Petitioner does not object to that enumeration. The undersigned identifies the following claims of ineffective assistance, which are denominated herein as Grounds 5A to 5G:

(5A) failing to follow Petitioner's advice on trial strategy;

(5B) failing to object to witnesses and a detective being present at jury selection;

(5C) failing to object to testimony of the doctors;

(5D) failing to object to images of a penis;

(5E) failing to object to testimony on “molestation”;

(5F) failing to object to the admission of uncharged photos; and

(5G) convincing Bassett to make admissions during his testimony.

Petitioner proffers no facts within Ground 5 to support the claim in Ground 5C (doctors' testimony) and does not identify the referenced uncharged photos in Ground 5F. The liberal construction mandate requires the Court to not, as a matter of course, place reliance on the petitioner's division of his factual allegations among various claims or grounds for relief, but instead to ““look[] to the entire petition.” Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001), as amended (June 5, 2001). So doing, the undersigned concludes Ground 5C refers to the claims raised in Ground 2 regarding the doctors' opinion evidence on ages. (See Reply, Doc. 22 at 11.) The undersigned similarly concludes Ground 5F refers to the failure to object to: (1) the uncharged photos evidence from Det. Edgerton's testimony as argued in Ground 3B; (2) the evidence of uncharged photos from Dr. Quinn's report from Det. Edgerton's testimony about the thumb drive argued in Ground 4.

(1). Claims Not Fairly Presented or Procedurally Barred (5A, 5B, 5C, 5D, 5G)

Petitioner clearly raised claims of ineffective assistance of trial counsel in his PCR Petition for Review. But ineffective assistance is not a unitary claim. See Carriger v. Lewis, 971 F.2d 329, 333-34 (9th Cir. 1992) (rejecting argument that presentation of any claim of ineffectiveness results in fair presentation of all claims of ineffective assistance). Accordingly, the various assertions of defective performance are not fungible for purposes of exhaustion of state remedies. Rather, each must each be specifically argued. See Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982) (presentation of “additional facts of attorney incompetence” transformed claim into one not presented to state court);

Petitioner's claims of ineffective assistance in his PCR Petition for Review were limited to the failure to bring the substantive evidentiary challenges, i.e.: (1) the “molester” testimony claim in Ground 3A (Exh. Z, PCR Pet. Rev. at 2-3); (2) the uncharged photos evidence from Det. Edgerton in Ground 3B (id. at 3-6); (3) the uncharged photo evidence from Dr. Quinn's report in Ground 4 (id. at 6); and (4) the uncharged photos on the thumb drive in Ground 4 (id. at 6-7).These correspond to the claims in Ground 5E (“molestation”) and 5F (uncharged photos).

Petitioner made no arguments to the state appellate court related to Grounds 5A (Petitioner's advice), 5B (jury selection), 5C (Frye hearing/opinions on age), 5D (penis images), or 5G (admissions). Nor did the Arizona Court of Appeals identify such claims and hold them procedurally barred.

(2). Claims Waived as Inadequately Argued (5E & 5F)

Respondents properly argue that the ineffective assistance claims raised in the PCR proceeding were deemed waived on review in the PCR proceeding.

And to the extent that Bassett renews his contention that trial counsel was ineffective, he does so improperly in cursory fashion. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101 (2004) ("Merely mentioning an argument is not enough .... ").

Respondents argue this is an independent and adequate state ground. Petitioner proffers nothing to show the ground was not independent. As to its adequacy, Petitioner argues that his ineffective assistance claims were adequately raised and briefed. (Petition, Doc. 1 at 14.)

While it is unusual to reject a state court's use of a procedural bar on the ground that it was erroneously applied, “[t]he procedural default doctrine self-evidently is limited to cases in which a ‘default' actually occurred i.e., cases in which the prisoner actually violated the applicable state procedural rule.” 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 26.2[c] (6th ed. 2011). Here, the state court applied the state's procedural rule to Sivak's case in an erroneous and arbitrary manner. Thus, we follow the Supreme Court and our sister circuits in holding that an erroneously applied procedural rule does not bar federal habeas review.

While the PCR Petition for Review was hardly expansive in its argument, the undersigned finds that it fairly argued the substance of claims of ineffective assistance based on the failure to object to the enumerated evidentiary errors (i.e. those raised herein in Grounds 3A1, 3B and 4). Counsel argued: (1) the specific underlying evidentiary errors (Exh. Z at 1-9); (2) counsel's failure to object to them (id. at 9); and (3) that the failures amounted to a denial of the right to counsel under Strickland (id. at 9-10).

It is true that a petition for review in an Arizona PCR proceeding is not a request for de novo review. Rather, to obtain relief in such a proceeding, the petitioner must demonstrate that the PCR court has engaged in “an abuse of discretion.” (Exh. BB, Mem. Dec. 5/14/18 at ¶ 3 (citing State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012)).) Nonetheless, Petitioner's Petition for Review raised specific arguments about why the PCR court's decisions on each claim of ineffectiveness were an abuse of discretion and/or factually wrong. (See Exh. Z at 2, 4, 5, 6, 7, 10.)

In the Answer, Respondents assert no argument to show that the claims were not adequately argued, but simply reference in a footnote various state precedent on the “significant arguments” requirement, and Ninth Circuit authority finding it firmly established and regularly applied. (Supp. Ans., Doc. 12 at 14-15, n. 4.) In the Supplemental Answer, after having been alerted to the preliminary conclusion that the rule had been wrongly applied, Respondents proffer no argument that it was properly applied. Respondents point to no element of the claims not argued and supported by authority. Although the federal “fair presentation” standard and Arizona's “significant argument” standard are not necessarily synonymous, it is relevant that Respondents have not asserted that the claims were not fairly presented to the state courts, only procedurally barred.

Based on the foregoing, the undersigned concludes that the procedural bar applied to Petitioner's fairly presented claims of ineffective assistance is not adequate to bar habeas review because in this case it was erroneously applied.

d. Summary re Procedural Bar

Based on the foregoing, the undersigned concludes that Petitioner was procedurally barred on an independent and adequate ground on his claims in Grounds 3A1, 3B, and 4. Grounds 3A2, 5A, 5B, 5C, 5D, and 5G were not fairly presented to the state court and were not addressed by the state courts sua sponte, and thus cannot have been subjected to a procedural bar. Ground 5E and 5F were fairly presented and procedurally barred, but the bar was applied erroneously and was therefore inadequate to bar habeas review.

2. Procedural Default

As discussed hereinabove, Petitioner failed to fairly present to the Arizona Court of Appeals his claims in Grounds 3A2 (jury trial re Edgerton), 5A (IAC re trial strategy), 5B (IAC re jury selection), 5C (IAC re opinions), 5D (IAC re penis), and 5G (IAC re admissions).

Petitioner argues he fairly presented his ineffective assistance claims in an appendix to his Petition for Review to the Arizona Supreme Court. (Reply, Doc. 22 at 7.) Even assuming that were true, it would not render his state remedies properly exhausted. Raising “federal constitutional claims for the first and only time to the state's highest court on discretionary review” is not fair presentation. Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004).

Although not properly exhausted, under Arizona's waiver and timeliness bars, Petitioner can no longer seek review of these unexhausted claims.

Waiver Bar - Under the rules applicable to Arizona's post-conviction process, a claim may not ordinarily be brought in a petition for post-conviction relief that "has been waived at trial, on appeal, or in any previous collateral proceeding." Ariz. R. Crim. P. 32.2(a)(3). Under this rule, some claims may be deemed waived if the State simply shows "that the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding." Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) (quoting Ariz. R. Crim. P. 32.2, Comments). But see State v. Diaz, 236 Ariz. 361, 340 P.3d 1069 (2014) (failure of PCR counsel, without fault by petitioner, to file timely petition in prior PCR proceedings did not amount to waiver of claims of ineffective assistance of trial counsel).

For others of "sufficient constitutional magnitude," the State "must show that the defendant personally, ''knowingly, voluntarily and intelligently' [did] not raise' the ground or denial of a right." Id. That requirement is limited to those constitutional rights “that can only be waived by a defendant personally.” State v. Swoopes, 216 Ariz. 390, 399, 166 P.3d 945, 954 (App. Div. 2, 2007). Indeed, in coming to its prescription in Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver of the right to counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelve-person jury under the Arizona Constitution, as among those rights which require a personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Claims based upon ineffective assistance of counsel are determined by looking at “the nature of the right allegedly affected by counsel's ineffective performance. Id.

Here, Petitioner's claims are not of the sort requiring a personal waiver, and Petitioner's claims of ineffective assistance similarly have at their core the kinds of claims not within the types identified as requiring a personal waiver.

It is true that Ground 3A2 asserts an invasion of the province of the jury from the admission of the detective's molestation opinion. But the Stewart court did not hold that errors amount to an incursion on the jury right sufficed. Rather, the case cited, State v. Butrick, 113 Ariz. 563, 566, 558 P.2d 908, 911 (1976) dealt with a defendant entirely foregoing a jury and proceeding with a trial to the court or an admission of guilt. Petitioner does not assert such a claim in this proceeding, nor was such a waiver applied to Petitioner.

Timeliness Bar - Even if not barred by preclusion, Petitioner would now be barred from raising his claims by Arizona's time bars. Arizona Rule of Criminal Procedure 32.4 requires that petitions for post-conviction relief (other than those which are “of-right”) be filed “within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later.” See State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1995) (applying 32.4 to successive petition and noting that first petition of pleading defendant deemed direct appeal for purposes of the rule). That time has long since passed.

Exceptions - Rules 32.2 and 32.4(a) do not bar dilatory claims if they fall within the category of claims specified in Ariz. R. Crim. P. 32.1(d) through (h). See Ariz. R. Crim. P. 32.2(b) (exceptions to preclusion bar); Ariz. R. Crim. P. 32.4(a) (exceptions to timeliness bar). Petitioner has not asserted that any of these exceptions are applicable to his claims. Nor does it appear that such exceptions would apply. The rule defines the excepted claims as follows:

d. The person is being held in custody after the sentence imposed has expired;

e. Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence. Newly discovered material facts exist if:

(1) The newly discovered material facts were discovered after the trial.

(2) The defendant exercised due diligence in securing the newly discovered material facts.

(3) The newly discovered material facts are not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony which was of critical significance at trial such that the evidence probably would have changed the verdict or sentence.

f. The defendant's failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on the defendant's part; or

g. There has been a significant change in the law that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence; or

h. The defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt, or that the court would not have imposed the death penalty.

Paragraph 32.1 (d) (expired sentence) generally has no application to an Arizona prisoner who is simply attacking the validity of his conviction or sentence. Petitioner makes no claim of “newly discovered evidence” and paragraph (e) has no application. Here, Petitioner has long ago asserted the facts underlying his claims. Paragraph (f) has no application because Petitioner filed a timely notice of post-conviction relief. Paragraph (g) has no application because Petitioner has not asserted a change in the law since his last PCR proceeding. Finally, paragraph (h), concerning claims of actual innocence, has no application to the procedural claims Petitioner asserts in this proceeding.

Therefore, none of the exceptions apply, and Arizona's time and waiver bars would prevent Petitioner from returning to state court. Thus, Petitioner's claims that were not previously fairly presented to the state court and properly exhausted are all now procedurally defaulted, including Grounds 3A2, 5A, 5B, 5C, 5D, and 5G.

3. Cause and Prejudice

If the habeas petitioner has procedurally defaulted on a claim, or it has been procedurally barred on independent and adequate state grounds, he may not obtain federal habeas review of that claim absent a showing of “cause and prejudice” sufficient to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).

"Cause" is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119, 1123 (1991). "Because of the wide variety of contexts in which a procedural default can occur, the Supreme Court 'has not given the term "cause" precise content.'" Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (quoting Reed, 468 U.S. at 13). The Supreme Court has suggested, however, that cause should ordinarily turn on some objective factor external to petitioner, for instance:

... a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that "some interference by officials", made compliance impracticable, would constitute cause under this standard.

Petitioner argues that this Court should find cause to excuse his procedural defaults based on: (a) the failures of trial and appellate counsel to raise the claims (Reply, Doc. 22 at 4 (Ground 3A), 8-9 (Ground 5), 11 (Ground 3B, 4, 5C); and (b) PCR counsel's failure to bring the claims in Ground 5 (id. at 9-10).

a. Trial and Appellate Counsel Ineffectiveness

Ineffective assistance of constitutionally required counsel (i.e. trial and appellate counsel) may constitute cause for failing to properly exhaust claims in state courts and excuse a procedural default. Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998).

However, “[t]o constitute cause for procedural default of a federal habeas claim, the constitutional claim of ineffective assistance of counsel must first have been presented to the state courts as an independent claim.” Cockett v. Ray, 333 F.3d 938, 943 (9^th Cir. 2003). “[A]n ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted.” Edwards v. Carpenter, 529 U.S. 446, 453 (2000).

Here, Petitioner has not properly exhausted his state remedies on any claim of ineffective assistance of appellate counsel. Further, the only claims of ineffective assistance of trial counsel on which Petitioner has properly exhausted his state remedies are those in Ground 5E and 5F which the undersigned has concluded are not procedurally defaulted or procedurally barred.

Accordingly, any ineffective assistance of trial or appellate counsel cannot provide cause to excuse Petitioner's procedural defaults.

b. PCR Counsel Ineffectiveness (1). Affected Claims

Ineffectiveness of PCR Counsel Ordinarily Not Cause - Ordinarily, to meet the “cause” requirement, the ineffective assistance of counsel must amount to an independent constitutional violation. Ortiz, 149 F.3d at 932. Accordingly, where no constitutional right to an attorney exists, ineffective assistance will not amount to cause excusing the state procedural default. Id. “Because there is no right to an attorney in state post-conviction proceedings, there cannot be constitutionally ineffective assistance of counsel in such proceedings.” Patrick Poland v. Stewart, 169 F.3d 573, 588 (9th Cir. 1999) (quoting Coleman v. Thompson, 501 U.S. 722, 752 (1991)). “The fact that counsel is appointed by the state court does not change the result, because counsel is not constitutionally required." Smith v. State of Idaho, 392 F.3d 350, 357 (9th Cir. 2004) (citations omitted).

Exception for Claims re Ineffectiveness of Trial Counsel - In Martinez v. Ryan, 566 U.S. 1 (2012), the Court recognized that because courts increasingly reserve review of claims of ineffective assistance of trial counsel to post-conviction relief proceedings, the ineffectiveness of counsel in such PCR proceedings could effectively defeat any review of trial counsel's ineffectiveness. Accordingly, the Court recognized a narrow exception to the Court's ruling in Coleman, supra, that the ineffectiveness of PCR counsel cannot provide cause. Arizona, the state at issue in Martinez, is just such a state, and accordingly ineffective assistance of PCR counsel can establish cause to excuse a procedural default of a claim of ineffective assistance of trial counsel.

However, the Martinez court made clear that the limited exception it was creating for ineffectiveness of PCR counsel as “cause” did not extend outside the initial PCR proceeding.

The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts. It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons.

The Martinez exception only applies to PCR counsel's failure to raise claims of ineffective assistance of trial counsel. Here, Petitioner's procedurally defaulted claims in Grounds 3A2 (jury trial re Edgerton), and his procedurally barred claims in Grounds 3A1 (prior notice re molestation), 3B (prior notice re Edgerton photos), and 4 (uncharged photos) that do not concern the ineffective assistance of counsel, and thus are not governed by Martinez.

Further, in Davila v. Davis, 137 S.Ct. 2058 (2017), the Court held that Martinez v. Ryan did not extend to claims of ineffective assistance of PCR counsel in asserting claims of ineffective assistance of appellate counsel. Accordingly, Petitioner's complaint that PCR counsel was ineffective for failing to assert the ineffectiveness of appellate counsel cannot form cause to excuse a failure to properly exhaust state remedies.

In contrast, ineffective assistance of trial counsel is the subject of Petitioner's claims in Grounds 5A (IAC re trial strategy), 5B (IAC re jury selection), 5C (IAC re opinions), 5D (IAC re penis), and 5G (IAC re admissions).

(2). Procedural Default by PCR Counsel

Respondents suggest that it was Petitioner's failure to bring his claims in Ground 5 to the Arizona Court of Appeals which resulted in the default, and thus PCR counsel was not to blame. (Answer, Doc. 12 at 18.) However, not only were those claims not presented to the Arizona Court of Appeals in the PCR Petition for Review, they were not presented in the initial PCR proceeding. PCR counsel did not raise in the PCR Petition any facts or claims related to Grounds 5A, 5B, 5C, 5D or 5G. At most, with regard to Ground 5D (IAC re penis), PCR counsel referenced in the factual background: “Facebook notified the Center for Exploited Children about a Facebook account under the name of Brett Dodge, in which two pictures of Child Pornography were posted, as well as a picture of an adult penis.” (Exh. V, PCR Pet. at 112.) But no argument was made based on such facts.

Accordingly, Petitioner's procedural default occurred in the PCR court, not on review before the Arizona Court of Appeals. Indeed, if Petitioner (or his counsel) had attempted to raise these claims in his Petition for Review, they would presumably have been rejected as waived in the PCR court. In Arizona, review of a petition for post-conviction relief by the Arizona Court of Appeals is governed by Rule 32.9, Arizona Rules of Criminal Procedure, which clarifies that review is available for “issues which were decided by the trial court.” Ariz. R. Crim. P. 32.9(c)(1)(ii). See also State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (Ariz. App., 1980) (issues first presented in petition for review and not presented to trial court not subject to review).

(3). Application to Claims of Ineffective Assistance

For Petitioner to rely upon Martinez, Petitioner must “demonstrate[e] two things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of [Strickland],' and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.'” Cook v. Ryan, 688 F.3d 598, 607 (9^th Cir. 2012) (quoting Martinez, 132 S.Ct. at 1318). Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, Petitioner must show: (1) deficient performance -counsel's representation fell below the objective standard for reasonableness; and (2) prejudice - there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.

Thus, this Court must resolve whether, under Martinez, Petitioner's PCR counsel was ineffective so as to provide cause for Petitioner's failure to properly exhaust his claims concerning the ineffectiveness of trial counsel in Grounds 5A, 5B, 5C, 5D, and 5G.

Respondents argue in their Supplemental Answer that Petitioner's underlying claims of ineffectiveness of trial counsel are without merit, thus the claims are not “substantial” and PCR counsel was not ineffective in failing to raise them. (Supp. Ans., Doc. 26 at 23-30.)

(a). 5A - IAC re Trial Strategy

In Ground 5A, Petitioner argues that counsel did not respond to Petitioner's request to discuss trial strategy and preparation beyond laughing or saying he had never had a client like Petitioner and urging Petitioner to accept a plea agreement. (Petition, Doc. 1 at 13; Reply, Doc. 22 at 11; Supp. Reply, Doc. 29 at 10.)

Respondents argue that this is nothing more than a difference of opinion as to trial tactics and Petitioner fails to show any prejudice. (Supp. Ans., Doc. 26 at 23-24.)

It is true that, with a few exceptions, counsel has responsibility for making decisions about strategy and tactics, and is not bound by instructions from the client in such matters.

Trial management is the lawyer's province: Counsel provides his or her assistance by making decisions such as “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.”

However, a complete failure to discuss trial strategy with a client is deficient performance. “An attorney undoubtedly has a duty to consult with the client regarding ‘important decisions,' including questions of overarching defense strategy. That obligation, however, does not require counsel to obtain the defendant's consent to ‘every tactical decision.'” Florida v. Nixon, 543 U.S. 175, 187 (2004) (identifying exceptions as entry of guilty plea, waiving a jury, testifying, or whether to appeal) (citations omitted).

Here, however, Petitioner proffers nothing to show that had counsel discussed strategy and preparation with him the outcome of trial would have been different. To the extent that Petitioner might point to the substantive claims underlying his other claims of ineffective assistance, his failure to show prejudice regarding such claims would preclude a finding of related prejudice from the failure to consult. Accordingly, Petitioner fails to show that trial counsel was ineffective, and the claim in Ground 5A is not substantial.

For the same reason, Petitioner fails to show that PCR counsel was ineffective in failing to raise the claim of ineffectiveness of trial counsel. The failure to take futile action can never be deficient performance or prejudicial. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.1996); Sexton v. Cozner, 679 F.3d 1150, 1157 (9^th Cir. 2012). “The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.” Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982). Moreover, even if there were some merit to the claim, Petitioner fails to show that PCR counsel was deficient in selecting the claims raised in the PCR proceeding instead of this one. "In many instances, appellate counsel will fail to raise an issue because she foresees little or no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely recognized as one of the hall marks of effective appellate advocacy." Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).

Petitioner fails to show cause and prejudice under Martinez for Ground 5A.

(b). 5B - IAC re Jury Selection

In Ground 5B, Petitioner argues that trial counsel was ineffective for failing to object when the case agent was present during jury selection and helped choose jurors to strike. (Petition, Doc. 1 at 13; Reply, Doc. 22 at 11.)

Respondents argue that Petitioner fails to show a valid objection, that any veniremen new the detective, or a reasonable probability of a different outcome at trial had an objection been made. (Supp. Ans., Doc. 26 at 24-25.)

In his Supplemental Reply, Petitioner belatedly adds arguments that counsel should have objected when the detective was introduced as such, and the jury polled on whether they knew the detective or other members of the sheriff's department, and that a pro-law enforcement jury resulted, including a juror who did yard work for the detective. (Supp. Reply, Doc. 29 at 10-11.)

What Petitioner fails to do is to show a valid basis for counsel to object. The undersigned has identified no basis under Arizona law for an objection to the agent's presence or identification. Indeed, Arizona Rule of Evidence 615(b) which authorizes the exclusion of witnesses prevents the court from excluding “an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney.” Federal Rule of Evidence 615(b) makes the same provision, although it is not clear whether it would apply to jury voir dire. Compare United States v. West, 607 F.2d 300, 305-306 (9th Cir. 1979) (finding Rule 615 limited to evidentiary hearings, but concluding court had discretion to exclude witnesses from other proceedings) with United States v. Baca, 447 F.Supp.3d 1232, 1236 (D.N.M. 2020) (concluding Rule 615 applied to opening statements and detailing diverging cases). Although not binding on the state court or in this habeas proceeding, this Rule is indicative that the federal courts have found no constitutional objection to allowing case agents to be present which might have been asserted by counsel in the state proceeding.

Moreover, he fails to show prejudice. At most he belatedly suggests that there was a business relationship between a juror and the case agent. But he proffers nothing to show that the juror was actually biased as a result. This Court cannot imply bias on the basis of such a tenuous connection. See Tinsley v. Borg, 895 F.2d 520, 529 (9th Cir. 1990) (discussing limitation of implied bias to cases where the juror is an employee of the prosecuting agency, a close relative of one of the participants in the trial or the criminal transaction, or a witness or somehow involved in the criminal transaction). Nor does Petitioner proffer anything to show that the case agent's presence improperly resulted in the retention of that juror, or any other jury. As a surrogate party, the agent (like Petitioner in his own behalf) was entitled to consult with counsel about the jury venire.

Accordingly, Petitioner fails to show his claim of trial counsel's ineffectiveness was substantial, or that PCR counsel was ineffective in choosing to not raise the claim.

(c). 5C - IAC re Frye Hearing/Opinions on Ages

In Ground 5C, as liberally construed hereinabove, Petitioner argues trial counsel was ineffective for failing to raise the objections asserted in Ground 2 regarding the doctors' opinion evidence on ages. Petitioner argues the physicians asserted no training to support their expert status to identify ages from digital photographs, and the age identification was not a medical opinion. He asserts trial counsel's only concern was scheduling, and he raised no objection. (Petition, Doc. 1 at 13, 8; Reply, Doc. 22 at 11; Supp. Reply, Doc. 29 at 11-12.)

Respondents argue that the physicians' training, research and extensive experience in treating thousands of children gave them sufficient expertise to testify to the developmental age of the children. Respondents further argue that any challenge would have gone to the weight of the evidence, not its admissibility, and thus was a basis for cross-examination, not exclusion. Thus any failure to object to the admission of the testimony was futile and, even if not, counsel made a reasoned tactical decision to press the reliability of the opinions on cross-examination, which he did. Consequently, Petitioner has failed to make out a substantial claim of ineffectiveness of trial counsel and to show ineffectiveness of PCR counsel. (Supp. Ans., Doc. 26 at 26-28.)

In Ground 2, Petitioner refers to the absence of a “Frye hearing” to support the aging opinion testimony. This term stems from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), where the D.C. Circuit considered concluded that expert scientific opinions should not be allowed on a matter (in that case, polygraphs) on which there was not sufficient standing and scientific recognition among experts that it has achieved “general acceptance” sufficient to justify its admission. The Arizona courts adopted this standard and held that “Frye hearings are required before admission of expert testimony that relies on new scientific tests or techniques.” State ex rel. Romley v. Fields, 201 Ariz. 321, 325, 35 P.3d 82, 86 (Ct. App. 2001). Petitioner also argues that the expert opinions were not admissible and were prejudicial. He argues his federal due process rights were violated as a result.

But the Arizona Court of Appeals rejected the underlying state law claims. (See Exh. R, Mem. Dec. 3/4/14 at ¶¶ 15-23.) Petitioner proffers no reason to believe that asserting these claims would not have been futile.

Moreover, the Arizona Court of Appeals observed that trial counsel “filed a motion for a Frye hearing to determine the admissibility of the witnesses' expert testimony” (Exh. R, Mem. Dec. 3/4/14 at ¶ 15), “effectively cross-examined the doctors concerning their inability to determine whether the images had been manipulated by computer or in some other fashion” (id. at ¶ 20). Petitioner does not suggest what more counsel should have done.

Accordingly, Petitioner fails to show that his claim of trial counsel's ineffectiveness with regard to the claims in Ground 2 was substantial.

Moreover, given the lack of support for the claim, Petitioner fails to show that PCR counsel performed deficiently in not selecting this claim as one to raise in the PCR proceeding.

(d). 5D - IAC re Penis Images

In Ground 5D, Petitioner argues trial counsel was ineffective for not objecting to the admission of images of a penis with minor females in the courtroom. (Petition, Doc. 1 at 13.)

Respondents argue that Petitioner proffers no basis for an objection or to show prejudice. Respondents assert the photo formed the basis of Count 3 of the indictment, which evidence showed Petitioner had transmitted to the detective. Respondents argue the overwhelming evidence of guilt prevents a showing of prejudice. (Supp. Ans., Doc. 26 at 28-30.)

Petitioner replies with details about the admission of the photo.

The undersigned agrees that Petitioner fails to show any valid basis to object to this evidence. The undersigned discerns none. It was clearly relevant. Petitioner fails to explain the significance of the presence of minors. Accordingly, Petitioner fails to make out a substantial claim of ineffective assistance of trial counsel, or to show deficient performance by PCR counsel in failing to bring the claim.

(e). 5G - IAC re Admissions

In Ground 5G, Petitioner argues trial counsel was ineffective for urging him to make admissions during his testimony. (Petition, Doc. 1 at 13.)

Respondents argue the claim is conclusory, and that in the face of the overwhelming evidence counsel reasonably chose a strategy of arguing deception by the detective and ignorance about the age of the other victims. Respondents suggest that the testimony was of Petitioner's own volition rather than the result of counsel's direction, but argue that such direction was nonetheless not deficient performance. Respondents argue that, considering the overwhelming evidence, Petitioner cannot show prejudice. Thus they argue the claim against trial counsel is not substantial and the claim of ineffectiveness of PCR counsel is without merit. (Supp. Ans., Doc. 26 at 30-32.)

This claim is conclusory. Petitioner fails to identify the admissions, to argue why urging them was deficient, or to show how they prejudiced him. “[A] claim is ‘insubstantial' if ‘it does not have any merit or ... is wholly without factual support.'” Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013).

Moreover, the undersigned finds no basis to conclude that trial counsel performed deficiently by simply urging Petitioner to make admissions. For example, trial counsel can reasonably conclude that having the defendant admit harmless or unassailable facts gains favor with the jury and keeps them focused on the relevant facts about which reasonable doubt can be fairly argued. See State v. Meeker, 143 Ariz. 256, 264, 693 P.2d 911, 919 (1984) (counsel not ineffective for advising client to admit probation release status where status could not be reasonably disputed). And the undersigned finds no basis to conclude that any admitted facts would not have, in any event, been proven by the prosecution or found by the jury and thus no prejudice.

The claim of trial ineffectiveness is not substantial, and Petitioner fails to show PCR counsel was ineffective in failing to raise it.

(4). Summary re Cause and Prejudice

Based upon the foregoing, the undersigned concludes that Petitioner has failed to establish cause to excuse his procedural defaults.

Both "cause" and "prejudice" must be shown to excuse a procedural default, although a court need not examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir.1991). Petitioner has filed to establish cause for his procedural default. Accordingly, this Court need not examine the merits of Petitioner's claims or the purported "prejudice" to find an absence of cause and prejudice.

4. Actual Innocence

The standard for “cause and prejudice” is one of discretion intended to be flexible and yielding to exceptional circumstances, to avoid a “miscarriage of justice.” Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986). Accordingly, failure to establish cause may be excused “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added). Although not explicitly limited to actual innocence claims, the Supreme Court has not yet recognized a "miscarriage of justice" exception to exhaustion outside of actual innocence. See Hertz & Lieberman, Federal Habeas Corpus Pract. & Proc. §26.4 at 1229, n. 6 (4th ed. 2002 Cumm. Supp.). The Ninth Circuit has expressly limited it to claims of actual innocence. Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008).

A petitioner asserting his actual innocence of the underlying crime must show "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence" presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327 (1995). A showing that a reasonable doubt exists in the light of the new evidence is not sufficient. Rather, the petitioner must show that no reasonable juror would have found the defendant guilty. Id. at 329. Moreover, to pass through the actual innocence gateway, not just any evidence of innocence will do; the petitioner must present “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324.

Here, Petitioner offers no new, credible evidence of his innocence, and fails to make a showing that no reasonable juror would have found him guilty. Accordingly his procedurally defaulted and procedurally barred claims in Grounds 3A1, 3B, 4, 5A, 5B, 5C, 5D, and 5G must be dismissed with prejudice.

D. GROUND 1 - INSUFFICIENT EVIDENCE/FIRST AMENDMENT

1. Parties' Arguments

In Ground 1, Petitioner alleges that his First Amendment rights were violated, and that the evidence is insufficient to sustain his convictions. (Service Order 6/28/19, Doc. 6 at 1-2.)

Petitioner argues that there was insufficient evidence to convict him on the charges of luring or aggravated luring of a minor for the purpose of sexual exploitation. He argues that in the sting operation the detective initially represented herself as 18, then as 13, and that although he acknowledged liking younger girls he clarified that was 18 to 34, and that he admitted liking to role play about sex, and that “most of what I do online is fantasies.” He argues the detective urged him to meet and send her photos, that he sent photos believing she was 18, and he never attempted or intended to meet her, and rebuffed her with excuses. At most he talked about meeting in person and his desire for sexual contact but did not offer or ask to engage in sexual conduct. He argues there was no evidence of a real “offer” or “solicitation.” He argues that the state could not prove intent to engage in conduct, and intent was a requisite element to avoid penalizing mere speech. (Petition, Doc. 1 at 6-7.)

Respondents argue this claim was rejected on the merits by the Arizona Court of Appeals on direct appeal, and that its rejection was not contrary to or an unreasonable application of Supreme Court law, nor based on an unreasonable determination of the facts. Respondents argue the states' statutes regulate conduct not speech, and thus are not protected under the First Amendment. Respondents argue that an intent to engage in sexual conduct was not required under the state statutes, only “offering or soliciting sexual conduct” with the intent to obtain assent of the minor. Respondents further argue that encouraging a child to participate in criminal sexual conduct is not protected under the First Amendment. Respondents argue there was sufficient evidence to prove the requisite offering or soliciting even though no meeting occurred. (Supp. Ans., Doc. 26 at 9-14.)

Petitioner does not address the merits of this claim in his Reply (Doc. 22) or his Supplemental Reply (Doc. 29).

2. Applicable Standard

While the purpose of a federal habeas proceeding is to search for violations of federal law, in the context of a prisoner “in custody pursuant to the judgment a State court, ” 28 U.S.C. § 2254(d) and (e), not every error justifies relief.

Deferential Review of Merits Decisions - Where the state court has rejected a claim on the merits, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam). See Johnson v. Williams, 568 U.S. 289, 293 (2013) (adopting a rebuttable presumption that a federal claim rejected by a state court without being expressly addressed was adjudicated on the merits).

Rather, in such cases, 28 U.S.C. § 2254(d) provides restrictions on the habeas court's ability to grant habeas relief based on legal or factual error. This statute “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011).

Errors of Law - To justify habeas relief based on legal error, a state court's merits-based decision must be “contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” before relief may be granted. 28 U.S.C. §2254(d)(1).

The Supreme Court has instructed that a state court decision is “contrary to” clearly established federal law “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks omitted).

To show an unreasonable application, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

Errors of Fact - Similarly, the habeas courts may grant habeas relief based on factual error only if a state-court merits decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). "Or, to put it conversely, a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). “Moreover, implicit findings of fact are entitled to deference under § 2254(d) to the same extent as explicit findings of fact.” Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008). See also Watkins v. Rubenstein, 802 F.3d 637, 649 (4th Cir. 2015).

De Novo Review - Where there is no state-court merits-based decision, Johnson, 568 U.S. at 293, or the standards of § 2254(d) have been met, the habeas court reviews the state judgment de novo.

But even where the habeas court is reviewing a claim de novo, there is a well-established presumption of correctness of state court findings of fact. This presumption has been codified at 28 U.S.C. § 2254(e)(1), which states that "a determination of a factual issue made by a State court shall be presumed to be correct" and the petitioner has the burden of proof to rebut the presumption by "clear and convincing evidence." This presumption of correctness applies not only to the explicit factual findings by the state court, but to the implicit factual findings as well. See Tinsley v. Borg, 895 F.2d 520, 525 (9th Cir. 1990) (implicit factual findings are entitled to a presumption of correctness in appropriate circumstances); see also Taylor v. Horn, 504 F.3d 416, 433 (3d Cir. 2007) (“Implicit factual findings are presumed correct under § 2254(e)(1) to the same extent as express factual findings.”).

3. Sufficiency of the Evidence

Petitioner argues there was insufficient evidence on the issues of an offer or solicitation of sexual conduct, or of intent to engage in sexual conduct.

This sufficiency of the evidence claim was decided on the merits on direct appeal, as reflected hereinabove. In evaluating state court decisions, the federal habeas court looks through summary opinions to the last reasoned decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Here, the last reasoned decision on these issues was that of the Arizona Court of Appeals which rejected Petitioner's sufficiency of the evidence claim on direct appeal, reasoning and finding:

¶6 Bassett argues that the State did not provide sufficient evidence to support his convictions for "luring" and "aggravated

luring" of a minor for sexual exploitation. Specifically, Bassett asserts that the State did not prove that his intent was "to achieve the result of engaging in sexual conduct" with Brenna and therefore the evidence at trial was insufficient to sustain the convictions.

¶7 "The question of sufficiency of the evidence is one of law, subject to de novo review on appeal." State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). We review the sufficiency of the evidence at trial only to determine whether substantial evidence supports the convictions and view the facts in the light most favorable to sustaining the jury's verdicts. State v. Cox, 217 Ariz. 353, 357, ¶ 22, 174 P.3d 265, 269 (2007) (internal quotations and citations omitted). "Substantial evidence is evidence that 'reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt."' Id. (citation omitted). Substantial evidence may be direct or circumstantial, and it is well established that each has equal probative value. State v. Pettit, 194 Ariz. 192, 197, ¶ 23, 979 P.2d 5, 10 (App. 1998).

¶8 To convict Bassett of luring, the State was required to prove he lured "a minor for sexual exploitation by offering or soliciting sexual conduct with another person knowing or having reason to know that the other person is a minor or a person posing as a minor." Ariz. Rev. Stat. (" A.R.S.") § 13-3554. To convict Bassett of aggravated luring, the State was required to prove, in addition to the elements of luring, that with knowledge of the "character and content of the depiction," he used an electronic device to transmit material that is harmful to minors. A.R.S. § 13-3560(A)(1).

¶9 Bassett's argument appears to turn on the fact that, unlike other cases in which an undercover officer stages a meeting between the putative minor and the defendant, no such meeting occurred in this case. He maintains that because he "rebuffed" Edgerton and Edgerton "was never able to get him to meet her," the State failed to present any evidence that his "intent was to achieve the result of engaging in sexual conduct with Brenna." But the plain language of A.R.S. § 13-3554 does not require proof that a defendant has the intention to "follow through with" or "consummate" an offer or solicitation of sexual conduct with a minor. Rather, 13-3554 "expressly prohibits requesting sexual conduct with a minor." State v. Hollenback, 212 Ariz. 12, 14, ¶ 5, 126 P.3d. 159, 161 (App. 2005). As such, "[t]he criminal act occurs whether or not it leads to sexual exploitation." Id. at 14, ¶ 5, 126 P.3d. at 161. Stated differently, the criminal act is completed when a defendant "offers" or "solicits" sexual conduct with someone he knows or should have known is a minor. See Id. (noting that "[h]ad the legislature intended to restrict the offense to conduct violating § 13-3553, it could easily have included language to that effect"); see also State v. Yegan, 223 Ariz. 213, 217, ¶ 13, 221 P.3d 1027, 1031 (App. 2009) (recognizing, for jurisdictional purposes, that the crime of luring of a minor was completed when the defendant solicited the minor from his computer in California, prior to any meeting between the defendant and the minor).

¶ 10 Additionally, the mere fact that Bassett here did not actually meet with Brenna prior to his arrest does not indicate, as Bassett maintains, that there was no evidence of a "real" offer or solicitation

and that the State secured his convictions without having to demonstrate some degree of wrongful intent on his part. As we explained in Yegan, "the proper inquiry is whether substantial evidence exists for a jury to reasonably and fairly conclude that the defendant in fact solicited or offered to engage in sexual conduct with a minor." 223 Ariz. at 220, ¶ 28, 221 P.3d at 1034. "Jurors are well-suited, given their varied life experiences, to evaluate a conversation as a whole and decide whether the particular words and phrases spoken can reasonably be interpreted as [] offering or soliciting sexual conduct with a minor." See id.

¶ 11 In this case, the jury was presented with Bassett's conversations between him and Brenna, in which Bassett made explicit comments about engaging in sexual conduct. Bassett's communication of these words to Brenna via his computer, coupled with the images and videos he transmitted to her, was sufficient to allow a reasonable person to find beyond a reasonable doubt that Bassett offered or solicited sexual conduct with Brenna and therefore committed the crimes of luring and aggravated luring. See Id. at 220-21, ¶¶ 28-29, 221 P.3d at 1034-35 (finding that the words the defendant communicated by computer to an undercover officer were sufficiently explicit to support convictions for luring a minor).

Petitioner proffers nothing to show that the rejection of this claim was contrary to Supreme Court law. According to the Supreme Court, in evaluating a claim of insufficient evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Here, the Arizona Court of Appeals applied standards of “light most favorable to sustaining the jury's verdicts, ” a “reasonable” person, and a “beyond a reasonable doubt.” (Exh. R, Mem. Dec. 3/4/14 at ¶ 7.) This was the equivalent of the standard under Jackson.

Petitioner proffers nothing to show the Arizona court applied this standard unreasonably, nor that it was based on an unreasonable determination of the facts.

At most, Petitioner argues that the statute must have required a showing of intent to actually engage in the conduct. But the state court rejected that contention. That ruling was a determination of state law, and this federal habeas court is not free to revisit it. Bains v. Cambra, 204 F.3d 964, 971 (9th Cir. 2000) ("federal court is bound by the state court's interpretations of state law"). Petitioner argues that the First Amendment requires such an element. Even if that were true, the Arizona courts have identified the elements, and it is not for this federal court to rewrite the state statutes to make them pass constitutional muster.

Petitioner also now asserts that he believed he was dealing with an adult. This assertion was not made to the state court. But Petitioner offers nothing to show there was insufficient evidence for a reasonable juror to conclude to the contrary, i.e. that Petitioner actually believed “Breanna” was a minor. Indeed, there was ample circumstantial evidence (e.g. the continuing exchanges after being told “Breanna” was 13, the discussions about “younger” girls, the child pornography, etc.) that a reasonable juror could conclude beyond a reasonable doubt that Petitioner actually believed he was dealing with a minor.

Accordingly, Petitioner's insufficient evidence claim is without merit and must be denied.

4. First Amendment

Petitioner argues that not having an element of intent to engage in actual conduct with the minor causes the Arizona statute to punish protected speech and to amount to a violation of the First Amendment.

The Arizona Court of Appeals rejected this claim on the merits:

¶ 13 Bassett argues that if the State is not required to prove that he intended to "follow through" with actual sexual conduct, then the statutes are overbroad because they criminalize free speech in violation of the First Amendment of the United States Constitution.

He acknowledges he did not raise this issue before the trial court and therefore we are limited to a fundamental error review. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607.

¶ 14 Regardless whether §§ 13-3554 and -3560 implicate speech, they do not regulate or criminalize any level of "protected" speech because there is no First Amendment right to speech that encourages or solicits a minor child to engage in sexual conduct with an adult. See, e.g., United States v. Tykarsky, 446 F.3d 458, 473 (3rd Cir. 2006) ("There is no First Amendment right to persuade minors to engage in illegal sex acts."); United States v. Rowley, 899 F.2d 1275, 1278 (2d Cir. 1990) ("Speech is not protected by the First Amendment when it is the very vehicle of the crime itself."); United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) ("Speech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime."). Furthermore, the statutes do not criminalize hypothetically protected speech because they specifically limit criminal liability to those instances in which an adult engages in communication with someone he knows or has reason to know is a minor. Accordingly, the statutes at issue are not unconstitutionally overbroad.

Petitioner proffers nothing to show that this was an unreasonable determination of the facts, or contrary to or an unreasonable application of Supreme Court law. The undersigned find no basis to do so. Cf. United States v. Williams, 553 U.S. 285, 298 (2008) (“offers to give or receive what it is unlawful to possess have no social value and thus, like obscenity, enjoy no First Amendment protection”) (addressing offers to provide or obtain child pornography).

This claim is also without merit.

E. GROUND 2 - FRYE HEARING/OPINION TESTIMONY

In Ground 2, Petitioner argues that his Fifth Amendment Due process rights were violated when the trial court failed to hold a Frye hearing and admitted opinion testimony by the physicians on the ages of victims in digital photographs.

Respondents argue that this habeas court cannot review the underlying state evidentiary law objections, and Petitioner has failed to show that any such rulings deprived him of a “fundamentally fair trial.” (Supp. Ans., Doc. 26 at 14-15.)

Petitioner does not reply on the merits of this claim.

As argued by Respondents, this Court does not review for violations of state evidentiary law but can address related denials of due process.

“It is well settled that a state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process.” Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir. 1999); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (“[I]t is certainly possible to have a fair trial even when state standards are violated ...”)…In addition to error, a habeas petitioner must establish actual prejudice, meaning a substantial and injurious effect on the verdict.

Petitioner neither argued nor did the Arizona Court of Appeals decide whether the denial of the Frye hearing or admission of testimony amounted to a denial of federal due process. Accordingly, this Court reviews that claim de novo.

In light of the state court's ruling, Petitioner cannot show an underlying error under state law. But “failure to comply with the state's rules of evidence is neither a necessary nor a sufficient basis for granting habeas relief. While adherence to state evidentiary rules suggests that the trial was conducted in a procedurally fair manner, it is certainly possible to have a fair trial even when state standards are violated; conversely, state procedural and evidentiary rules may countenance processes that do not comport with fundamental fairness.” Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must be of such quality as necessarily prevents a fair trial. Id. at 920.

Petitioner proffers nothing to suggest that impermissible inferences could be drawn from the opinion testimony. For example, he does not contend that the testimony inserted inflammatory material, see McGuire v. Estelle, 902 F.2d 749 (9th Cir. 1990), violated his confrontation rights by unfairly introducing hearsay for the truth of the matter asserted, see Studebaker v. Uribe, 658 F.Supp.2d 1102, 1136 (C.D. Cal. 2009), or offered an opinion on the issue of guilt (as opposed to some other issue of ultimate fact), see Moses v. Payne, 555 F.3d 742, 761 (9th Cir. 2009).

Nor does he offer anything to show that the opinion testimony was so egregious that it prevented a fair trial, particularly in light of the jurors' instructions. The Arizona Court of Appeals observed:

¶20 Bassett suggests that the expert testimony unduly influenced the jury's own assessment of the ages because of its "aura of scientific respectability." However, the trial judge instructed the jurors that they were to treat the expert testimony the same "as any other testimony" and to give it as much credibility and weight as they thought it deserved in light of "all the other evidence in the case." Jurors are presumed to follow the court's instructions. State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996). Defense counsel effectively cross-examined the doctors concerning their inability to determine whether the images had been manipulated by computer or in some other fashion. Furthermore, the jurors here were able to view the images themselves and make their own determinations. We therefore reject Bassett's assertion of undue influence.

Ground 2 is without merit and must be denied.

F. GROUND 5E - IAC re “MOLESTATION TESTIMONY”

In Ground 5E, Petitioner argues that trial counsel was ineffective for failing to object to testimony by the detective that implied that partakers of child pornography engaged in child molestation. He asserts the detective had no foundation or qualifications to offer such an opinion, and it was intended to prejudice the jury. (Petition, Doc. 1 at 13.)

In their Supplemental Answer, Respondents argue that the state court's rejection of this claim on the merits survives review under 28 U.S.C. § 2254(d), and address the adequacy of counsel's performance and the lack of prejudice. (Supp. Ans., Doc. 26 at 32-36.)

This Court reviews the last reasoned decision on this claim, which was that of the Arizona Court of Appeals in the PCR proceedings. That decision was not on the merits, but on the basis that the claim had been waived by failing to adequately argue it. (Exh. BB, Mem. Dec. 10/31/17 at ¶ 4.) Accordingly, deferential review under § 2254(d) does not apply, and this Court reviews the claim de novo. See Cannedy v. Adams, 706 F.3d 1148, 1158 (9th Cir.), amended on denial of reh'g, 733 F.3d 794 (9th Cir. 2013) (discussing broad application of the “last reasoned decision” doctrine).

Even reviewed de novo, however, the claim is without merit.

In cross-examination, trial counsel repeatedly questioned the detective about her having set out to contact Petitioner, and why, after concluding that Petitioner was involved in child pornography, she persisted in investigating rather than arresting him, intimating that she was more concerned with securing a greater conviction (for luring) than in protecting children. (See Exh. J, R.T. 1/27/12 at 160-169.) Then the following transpired:

Q. Were you ever concerned that this Mr. Bassett, that you say you really didn't know very much about at the beginning of these, might be avidly [sic] engaging in the abuse of a girl at this time?

A. That's always my concern. Yes.

Q. Because some pictures have been uploaded through the Facebook?

A. Because in my experience and research, if someone is into child pornography, they're either actively or in the future going to be hands-on molesters.

Q. Goes back to the first question. Why didn't you execute a search right at the beginning of this case?

A. Because I didn't feel that I had a good enough case yet to make sure there was going to be a conviction. Not just for luring or child pornography. But if there were live victims, I wanted to find that out and not hope that he would tell me.

Q. You said a good case for conviction. Was that your primary concern, to have enough here to have a conviction?

A. Yes. I had an investigation. So I wanted to make sure I made a good enough case for a conviction.

As argued by Respondents, defense counsel could have made a tactical decision to allow the testimony to stand in furtherance of the defense's theory of an over-zealous officer who delayed prosecution to entrap Petitioner on a luring charge, despite her perceived risk of Petitioner engaging in molestation. Petitioner proffers no reason why this was not a reasonable strategy considering the evidence presented by the prosecution. The Sixth Circuit has aptly observed:

As a threshold matter, in a trial of any size, numerous potentially objectionable events occur. “[T]he Constitution does not insure that defense counsel will recognize and raise every conceivable constitutional claim.” Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Moreover, experienced trial counsel learn that objections to each potentially objectionable event could actually act to their party's detriment. Learned counsel therefore use objections in a tactical manner. In light of this, any single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial to a client that failure to object essentially defaults the case to the state.

Moreover, Petitioner proffers nothing to show prejudice from this response.

Thus, this claim is without merit and must be denied.

G. GROUND 5F - IAC re UNCHARGED PHOTOS

In Ground 5F, Petitioner argues that trial counsel was ineffective for failing to object to “uncharged photos.” (Petition, Doc. 1 at 13.) The undersigned has liberally construed this to refer to: (1) the uncharged photos evidence from Det. Edgerton's testimony as argued in Ground 3B; and (2) the evidence of uncharged photos from Dr. Quinn's report from Det. Edgerton's testimony about the thumb drive argued in Ground 4.

Respondents argue that the state court's rejection of this claim is unassailable under the deference of 28 U.S.C. § 2254(d). However, as with Ground 5E, the last reasoned decision on this claim was not on the merits, but on procedural grounds. Consequently, it must be reviewed de novo.

1. Ineffectiveness re Coffman Photos

In Ground 3B, Petitioner references testimony by the detective about taking “this along with two other photos, to Dr. Coffman for review.” (Petition, Doc. 1 at 11 (citing Transcript, Day 2 at 122).) Referencing Exhibit 87, the detective testified:

Q. Tell us the context of how you had seen that image previously?

A. That was one of the images that was sent in the Facebook report through the Arizona I -- task force to me, as something they had intercepted and believed was child pornography.

Q. Is that the image that also forms the basis of Count I, the sexual exploitation count?

A. Yes.

Q. And, Detective, this image that was sent to you on February 28th, would you find that that image was then sent to you again on another occasion?

A. Yes.

Q. And we'll get to that, but is that the basis of Count XI as well?

A. Yes.

Q. This image, Detective, did you, at some point, take this image to a medical doctor for review?

A. Yes, I did.

Q. Which doctor was that?

A. Actually, let me back up. I didn't personally. I had another detective take it. She was going to Phoenix, so I had her take this, along with two other photos, to Dr. Coffman for review.

Q. And we'll be calling Dr. Coffman. Turning to Count X, at some point, was a video sent to you on February 28th, which began with, !mn B002 bothhornyashell.wmv.

In his Petition for Review in his PCR proceeding Petitioner argued that the offending photos were not those addressed on Trial Day 2, but those addressed on Trial Day 3 when the Detective testified there were three photos that came to her from Facebook that were forwarded to Dr. Coffman. (Exh. Z, PCR Pet. Rev. at 3-4 (citing Transcript, Day 3, pg. 115).) In that line of questioning, the detective referenced receiving three images from Facebook, which were printed out and sent to Dr. Coffman. (Exh. J, R.T. 1/27/12 (Trial Day 3) at 113-116.) That discussion referenced a photo in Exhibit 88 and Exhibit 86 (“Secure Download”) that was found on a thumb drive and sent by Facebook to the National Center for Missing and Exploited Children, and was reviewed by Coffman), and Exhibit 85 (“Rockin' Van” that was sent from Facebook to NCMEC, and sent by Petitioner to “Brenna”).

Early on, the detective had referenced the photographs from Facebook, and taking them for evaluation:

Q. At some point, did you receive some information that a Facebook account in the name of Brett Dodge, the account holder had uploaded some suspect images? A.

A. Yes, I did.

Q. About when did you get that alert?

A. I believe I got that around the end of November, beginning or middle of December. Well, there were actually two reports, so they came in a couple of weeks apart.

Q. You said two reports. Was there a report for each image?

A. No. The first report I believe had two images in it, and then the second report had one.

Q. Okay. At some point, did you take those images to a doctor to have an opinion made as to whether in that doctor's opinion the child depicted was under 15?

A. Yes, I did.

Q. And based on that, did you select two images to proceed with?

A. Well, I took all three images to -- the first images that I received with the report, I took those to one doctor, and she chose two of them and said they were definitely under the age of 15, or it might have been younger than that.

The PCR court attempted to summarize:

The record does show that early in her testimony, Detective Edgerton testified about receiving two reports from Facebook about illegal photos being uploaded to an "IP" address associated with Defendant. This occurred at the end of November and the first part of December 2010. The first report included two images of child pornography and the second report contained one image of an adult penis. The child pornography images were eventually identified at trial as Exhibits 86 and 87 corresponding to Count 2 and Counts 1, 9 &11. These two images were described in Dr. Coffman's Report (Exhibit #31). The image of the penis was part of the documents received from Facebook (Exhibit #29). This same image was later sent to Detective Edgerton and forms the basis for Count 3. * * *

Detective Edgerton testified concerning a single image contained on Exhibit #874 entitled "rockin van.jpg". Exhibit #87 is a CD containing one image corresponding to Counts 1, 9 & 11. The Detective also referred to another image entitled "secured download.jpg" which is a single image contained on Exhibit #86 and forms the basis for Count 2. When asked about sending images to Dr. Coffman, the Detective testified she had another Detective" ... take this, along with two other photos, to Dr. Coffman/or review." Here, the Detective is referring to the single image of "rockin van.jpg" (a printout of which is Exhibit #85) and the single image of "secured download.jpg". The Detective is not making reference to any uncharged images.

Both of these images were reviewed by Dr. Coffman and are the basis for her opinions contained in her "Sexual Maturity Rating"

report, Exhibit #30. Defendant argues that his trial attorney should have objected to the admission of this exhibit because the second image (Title #2) refers to an uncharged image. Again, the record does not bear that out. Title # 1 refers to "rockin van.jpg" and corresponds to Counts 1, 9 & 11 and Title #2 refers to "secured download.jpg" and corresponds to Count 2

The difficulty with the PCR court's summary (and Respondents' adoption of it) is that the detective clearly testified that she sent Coffman three photos, and Coffman could identify ages for only two. (Exh. H, R.T. 1/26/12 at 44-45.) Respondents offer no explanation how this does not refer to uncharged conduct.

The more important question is whether counsel was ineffective for not objecting to this statement. Petitioner posits no basis for an objection to this testimony. Uncharged conduct is not wholly inadmissible. See Ariz. R. Evid. 404(c) (allowing evidence in sexual misconduct cases of uncharged “crimes, wrongs, or acts” “if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged”).

Given the confusion surrounding which photos had been sent to Coffman, counsel could have reasonably concluded that objecting wasn't worth: (a) the potential damage of pressing the issue and highlighting that there were additional photos; (b) losing the potential benefit of having the jury recognize that at least one of the photos could not be age dated by Coffman; or (c) both.

Moreover, Petitioner offers nothing to show prejudice from this isolated reference, considering the substantial evidence showing his possession of child pornography.

2. Ineffectiveness re Dr. Quinn Photos

In addition to the reference to uncharged photos provided to Dr. Coffman in Ground 3B, Petitioner argues in Ground 4: “Dr. Quinn[']s report described and gave age assessments for eight uncharged pornographic photos, and was also admitted into evidence, without an objection from trial counsel.” (Petition, Doc. 1 at 12.)

In their Supplemental Answer, Respondents rely upon the state PCR court's rejection of this claim on the merits and the deferential standards under 28 U.S.C. § 2254(d) and (e). (Doc. 26 at 40-41.) However, the last reasoned decision on this claim was that of the state appellate court, which did not address the merits of the claim.

Respondents additionally argue that Petitioner cannot show prejudice because the uncharged photographs:

were never offered as exhibits for the jury to examine, nor did the prosecutor solicit any testimony regarding the images. Instead, the prosecutor meticulously reviewed each admitted image with Dr. Quinn and referenced each admitted image/exhibit and referenced it with the corresponding Count as alleged in the indictment. ([Exh. H at 162-171]; Dkt. 12, Exhibit J, at 7-17; Additionally, during closing argument, the prosecutor emphasized that each of the 38 counts related to a specific image and that those images were contained on a specific exhibit. (SE-2, at 19-20.)

Given the graphic and disturbing content of the numerous images and conversations that were properly admitted at trial, it is speculative to presume that the presence of additional file descriptions contained within Dr. Quinn's report could have any discernible impact on the jury's verdicts. This is particularly so when considering that, although Dr. Quinn's report contained file names of additional images, the images that correlated with the descriptions were never offered as exhibits for the jury to examine, nor did the prosecutor solicit any testimony regarding the images. The record further reflects that the jurors were instructed that they were to base their verdicts exclusively from the testimony of witness and exhibits introduced into evidence, and that they were not to be influenced by sympathy or prejudice

Respondents further argue Petitioner cannot show the failure to object could not have been a reasonable tactical decision, “since he may have wanted to avoid further highlighting the image descriptions to the jury.” (Id. at 42.)

In his Supplemental Reply, Petitioner argues (in addressing the underling claim in Ground 4) that the photos were prejudicial because they were, through the report, effectively available to the jury, and the state courts could not, without an evidentiary hearing, determine if the jury relied on them. (Doc. 29 at 7-8.)

In presenting a claim of ineffective assistance, the burden is on Petitioner to establish prejudice, not on the Respondents to rebut it. Strickland, 466 U.S. at 697. While it is possible that the jury could have improperly relied on the uncharged photos, there are good reasons (as enumerated by Respondents) to conclude they did not, e.g. the jury instructions, the careful tying of charges to specific photos, and the limited impact given the other evidence of child pornography. Similarly, considering those factors and the other plainly admissible evidence against Petitioner, the undersigned agrees with Respondents that trial counsel could have made a reasonable tactical decision that an objection would do greater harm by highlighting the uncharged photos to the jury. Moreover, counsel could have reasonably concluded that an objection would not only highlight the additional photos, but suggest to the jury that the uncharged photographs were especially damaging to Petitioner.

Accordingly, this portion of Ground 5F is without merit, and must be denied.

H. SUMMARY

Petitioner's Petition was timely filed. However, Petitioner's claims in Grounds 3A1 (notice re molestation), 3B (notice re images to physician) and 4 (uncharged photos) were procedurally barred on independent and adequate state grounds. Petitioner's claims in Grounds 3A2 (jury trial re Edgerton), 5A (IAC re trial strategy), 5B (IAC re jury selection), 5C (IAC re opinions), 5D (IAC re penis), and 5G (IAC re admissions) were procedurally defaulted. Petitioner has not shown cause and prejudice or actual innocence to avoid the procedural bars or procedural defaults, and these claims must be dismissed with prejudice.

Petitioner's remaining claims in Grounds 1 (insufficient evidence), 2 (Frye hearing/opinion testimony), 5E (IAC re molestation testimony), and 5F (IAC re uncharged photos) are without merit and must be denied.

IV. CERTIFICATE OF APPEALABILITY Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the “district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Such certificates are required in cases concerning detention arising “out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).

Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.

Applicable Standards - The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2254 Cases, Rule 11(a).

Standard Not Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will be in part on procedural grounds, and in part on the merits. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling, and jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong.

Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.

V. RECOMMENDATION IT IS THEREFORE RECOMMENDED:

(A) Grounds 3A1, 3A2, 3B, 4, 5A, 5B, 5C, 5D and 5G of Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED WITH PREJUDICE.

(B) The remainder, including Grounds 1, 2, 5E and 5F, of Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DENIED.

(C) The Clerk of the Court be directed to enter judgment accordingly.

(D) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.

VI. EFFECT OF RECOMMENDATION

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.

However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9^th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).

In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”