Opinion
CV-21-08234-PCT-DLR (MHB)
09-29-2022
Chad D. Begay, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE MICHELLE H. BUNIS UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT COURT JUDGE:
On October 22, 2021, Petitioner Chad D. Begay, who is confined in the Arizona State Prison, Cheyenne Unit, San Luis, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (hereinafter “habeas petition”). (Doc. 1.) On January 31, 2022, Respondents filed a Limited Answer (doc. 10), and on September 19, 2022, Petitioner filed a Reply (doc. 21).
PROCEDURAL BACKGROUND
On May 18, 2018, Petitioner was charged by Indictment with five felony counts: (1) armed robbery, (2) aggravated assault, (3) aggravated assault, (4) misconduct involving weapons, and (5) aggravated shoplifting. (Docs. 1 at 41-42; 10-1 at 63-64.) It was alleged that Petitioner committed an armed robbery of a Circle K store with a knife and then brandished the knife at a Winslow police officer while leaving the store. (Doc. 10, Exhs. A, D at 2-3.) Petitioner subsequently pleaded guilty pursuant to a plea agreement to count one, armed robbery, count two, aggravated assault, and count three as modified to attempted aggravated assault. (Doc. 10, Exh. J.) In his plea agreement, Petitioner admitted a historical prior felony conviction and agreed to be sentenced to 12 years in prison on counts one and three, and 9 years in prison on count two, with all sentences to run concurrently. (Id.) The sentences were greater than the presumptive sentences and thus, aggravated. (Id.) The state agreed not to allege Petitioner's remaining prior convictions and that the offenses were dangerous offences, and to dismiss all remaining counts. (Id.)
On December 12, 2018, Petitioner appeared for sentencing and was sentenced in accordance with the terms of his plea agreement to serve aggravated and repetitive sentences of 9 and 12 years, to run concurrently. (Doc. 10, Exh. E; Doc. 1-2 at 9-16.) On March 4, 2019, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Doc. 10, Exh. C.) Appointed counsel subsequently filed a “Rule 32.4[d][2] Notice Re: No Colorable Claims,” informing the court that he “identified no colorable claims in [Petitioner's case.” (Id., Exh. A.) On February 11, 2020, Petitioner filed a pro se PCR petition. (Id., Exh. D.) In his petition he raised the following claims: (1) the sentences imposed “are illegal and patently unconstitutional as a manifest injustice to which violate Defendants Due Process clauses of the Fifth and Fourteenth Amendments to the United States Constitution,” and (2) ineffective assistance of counsel “when counsel failed to object to the States use of the prior conviction to enhance the [Petitioner]'s sentence.” (Id., Exh. D.)
The trial court, in its ruling found that Petitioner's first claim was not a colorable claim, reasoning as follows:
In State v. Bonfiglio, the court of appeals explained that a “trial court may use the same convictions to enhance or increase the sentencing range and to aggravate a defendant's sentence within the enhanced range.” 228 Ariz. 349, 354 ¶ 21 (App. 2011) citing State v. LeMaster, 137 Ariz. 159, 166 (App. 1983).
Therefore, this Court's use of Defendant's conviction in Yavapai County Superior Court case number CR2013-01038 to both enhance and aggravate his sentence was appropriate under well-settled Arizona case law.
The trial court also found Petitioner's second claim not colorable:
“The Sixth Amendment, applicable to the States by the terms of the Fourteenth Amendment, provides that the accused shall have the assistance of counsel in all criminal prosecutions. The right to counsel is the right to effective assistance of counsel.” Missouri v. Frye, 566 U.S. 134, 138 (2012) (citation omitted); State ex rel. Thomas v. Rayes, 214 Ariz. 411, 413 ¶ 10 (2007); see also, U.S. Const. amend. VI and XIV; Ariz. Const. art. II 24.
* * *
Here, Defendant claims that trial counsel was ineffective for failing to object to the State's use of a single prior conviction to both enhance and aggravate his sentence. This claim fails.
Bonfiglio establishes that the same conviction can be used to both enhance and aggravate a sentence. 228 Ariz. at 354 ¶ 21. Accordingly, trial counsel had nothing to object to and Defendant was not prejudiced.
(Doc. 10, Exh. F. at 3-4.) The trial court denied Petitioner's request for relief and dismissed his PCR petition. (Id. at 5.)
On April 16, 2020, Petitioner filed a Petition for Review in the Arizona Court of Appeals, presenting the same claims raised in his PCR petition, and arguing that the state court erred in denying his petition. (Doc. 10, Exh. G.) The Court granted review, but denied relief, stating:
On review, Begay again argues his sentence was illegal and his counsel was ineffective. He contends that he should have been sentenced to the presumptive term because the court used the same conviction to both enhance and aggravate his sentence. This court, however, has previously rejected that argument. State v. Bonfiglio, 228 Ariz. 349, 354, ¶ 21 (App. 2011) (the same prior conviction may be used to enhance and to aggravate the defendant's sentence).
Moreover, the record supports that Begay entered the plea agreement knowingly, voluntarily and intelligently. The court questioned Begay and he answered accordingly. Begay further admitted to the prior felony conviction used to enhance and aggravate his sentence. See State v. Ring, 204 Ariz. 534, 563, ¶ 93 (2003) (“In cases in which a defendant stipulates, confesses or admits to facts sufficient to establish an aggravating circumstance, [the court] will regard that factor as established.”).
A challenge to the voluntariness of a plea agreement is meritless
when, on the record, the superior court questions a defendant in accordance with Boykin v. Alabama, 395 U.S. 238 (1969), and the defendant's responses to those questions indicate the defendant entered the plea knowingly, voluntarily and intelligently. State v. Hamilton, 142 Ariz. 91, 93 (1984). On this record, this standard was met.
(Doc. 10, Exh. B.)
Petitioner filed a Motion for Reconsideration in the court of appeals, and on April 26, 2021, the appellate court denied the motion. (Doc. 10, Exhs. H, I.) The court issued its mandate on June 1, 2021. (Id., Exh. I.)
Petitioner filed his habeas petition on October 22, 2021, and in it, raises the following three grounds for relief: (1) “the sentences imposed [] are illegal and patently unconstitutional as a manifest injustice to which violate Defendants Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution and Art. 2 4 of the Arizona Constitution,” and subparts: (a) the trial court failed to “follow the procedure prescribed by Rule 17, an incorrect factual determination made under Rule 17.3,” (b) the sentence violated “what was agreed upon,” (c) using the same prior conviction to both enhance and aggravate a sentence violates Petitioner's right to equal protection under the law, and (d) the judge failed to articulate the aggravating factors, (2) “Defendant was denied effective assistance of counsel by failing to object to state's use of prior conviction to enhance sentence,” and (3) “the Court of Appeals decision that Defendant was not denied effective assistance of counsel and entered the plea agreement knowingly, voluntarily and intelligently was based on a misstatement of facts and law.” (Doc. 1. at 6, 12.) Respondents claim that all of Petitioner's Claim One Subparts, and Petitioner's Claim Three are procedurally defaulted, and that Petitioner's remaining claims were waived by his plea agreement or lack merit and should be dismissed. (Doc. 10.)
Petitioner makes reference to the subpart issues in the text of his argument.
DISCUSSION
A. Exhaustion and Procedural Default.
A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (a petitioner must invoke “one complete round of the State's established appellate review process); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
Habeas relief lies only on “ground[s] that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”). Proper exhaustion requires a petitioner to have “fairly presented” to the state courts the exact federal claim he raises on habeas by describing the operative facts and federal legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78 (1971) (“[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.”). A claim is only “fairly presented” to the state courts when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.”).
Additionally, a federal habeas court generally may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The United States Supreme Court has explained:
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-31. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.
If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court, and that state procedural bar is both “independent” and “adequate” - review of the merits of the claim by a federal habeas court is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).
A state procedural default rule is “independent” if it does not depend upon a federal constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002).
A state procedural default rule is “adequate” if it is “strictly or regularly followed.” Johnson v' Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-53 (1982)).
A procedural bar may also be applied to unexhausted claims where state procedural rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts “would now find the claims procedurally barred”); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) (“[T]he procedural default rule barring consideration of a federal claim ‘applies only when a state court has been presented with the federal claim,' but declined to reach the issue for procedural reasons, or ‘if it is clear that the state court would hold the claim procedurally barred.'”) (quoting Harris v. Reed, 489 U.S. 255, 263 n.9 (1989)).
Specifically, in Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a)(b) (time bar), 32.16(a)(1) (petition for review must be filed within thirty days of trial court's decision). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. 856, 860 (2002) (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001) (“We have held that Arizona's procedural default rule is regularly followed [“adequate”] in several cases.”) (citations omitted), reversed on other grounds, Stewart v. Smith, 536 U.S. 856; see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not “strictly or regularly followed” Rule 32 of the Arizona Rules of Criminal Procedure); State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).
Formerly, Ariz. R. Crim. P. 32.9, eff. Jan. 5, 2021.
(1) Claim One subparts.
Under his broader-titled due process claim, Petitioner claims in the text of his argument that (1) the trial court failed to “follow the procedure prescribed by Rule 17, an incorrect factual determination made under Rule 17.3,” (2) the sentence violated “what was agreed upon,” (3) using the same prior conviction to both enhance and aggravate a sentence violates Petitioner's right to equal protection under the law, and (4) the judge failed to articulate the aggravating factors. (Doc. 1 at 6-10.)
Respondents assert that Petitioner did not exhaust his claim that the government argued for a'guideline offense level of 38 when it had agreed to recommend an offense level of 34. (Doc. 10 at 14.) It is clear in Petitioner's habeas petition that the reference to these sentencing guidelines was from a federal case Petitioner cited in support of his argument and not a separate claim. (Doc. 1 at 10.) There is no indication in the record that such sentencing guideline levels would have been applicable to Petitioner's state sentencing.
Petitioner did not raise in PCR proceedings the claim that the trial court failed to follow the procedure prescribed by “Rule 17.” And, although Petitioner did raise in PCR proceedings claims that the sentence was not “what was agreed upon,” that the sentence violated his right to equal protection, and that the judge failed to articulate aggravating factors, he did not do so in his Petition for Review to the Arizona Court of Appeals. Thus, Petitioner failed to exhaust these claims. See O'Sullivan, 526 U.S. at 845.
(2) Claim Three.
Petitioner did not raise in PCR proceedings a claim that his counsel was ineffective by not providing adequate advice about the consequences of pleading guilty, specifically that his prior conviction would be used to aggravate the sentence. Thus, this claim was also not fairly presented to the state court. In any event, the claim lacks merit. In his plea agreement, Petitioner agreed to enhanced and aggravated sentences, admitted his prior conviction, and waived any right to a jury determination of aggravating factors. (Doc. 10, Exh. J.) The consequences of his guilty plea and plea agreement were clear. The merits of a claim may be reached “despite an asserted procedural bar,” when the claim is “clearly not meritorious.” Franklin v. Johnson, 290 F.3d 1223 (9th Cir. 2002).
Petitioner's Claim One Subparts and Claim Three were not fairly presented in the state court as set forth above, and are also procedurally defaulted, as Petitioner is now precluded from returning to state court to properly exhaust his claims. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on appeal or in prior petitions for postconviction relief), 32.4(a)(b) and 32.16(a)(1) (time bar). In fact, Petitioner concedes the absence of any remaining state “corrective process.” (Doc. 12 at 4.)
In Petitioner's Reply, he asserts that “no part of his claim is procedurally defaulted.” (Doc. 21 at 16.) He claims that he raised the issues in a motion he filed for reconsideration of the Arizona Court of Appeals' decision denying relief. In his motion for reconsideration before the Arizona Court of Appeals Petitioner raised for the first time his arguments that the sentencing court violated Rule 17.6 and failed to find a factual basis for his prior conviction. (Doc. 10, Exh. H.) Although Petitioner raised these issues in his motion for reconsideration, he nonetheless failed to present these issues in the first instance in the trial court or in his petition for review, and thus they were not fairly presented at each level of state review. “[S]tate prisoners must give the state courts one full opportunity to resolve constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan, 526 U.S. at 845.
Furthermore, claims raised for the first time in motions for reconsideration does not constitute fair presentation.” Eden v. Ryan, CV-15-8020-PCT-DGC (JFM) *15; 2016 WL 1010698 (Jan. 12, 2016) (citing Greene v. Lambert, 288 F.3d 1081 (9th Cir. 2002)); Castille v. Peoples, 489 U.S. 346, 351-52 (1989) (issues raised for first time in discretionary motions not exhausted for federal habeas purposes); State v. Cannon, 148 Ariz. 72, 79 (Ariz. 1985), 713 P.2d 273, 280 (1985) (issue raised for first time in reply brief may be disregarded). Additionally, the Arizona Court of Appeals declined to reconsider its decision, thus there was no review of any new claims on the merits.
In relevant part, Ariz. R. Crim. P. 31.20 provides that “(a) [al party may file a motion for reconsideration, requesting an appellate court to reconsider whether its decision contained erroneous determination of fact or law,” and “(b) [a] motion for reconsideration must state with particularity the points of law or fact that the party believes the appellate court has erroneously determined.”
B. Miscarriage of Justice/Cause and Prejudice.
The federal court will not consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the “cause and prejudice” test, a petitioner must point to some external cause that prevented him from following the procedural rules of the state court and fairly presenting his claim. “A showing of cause must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [the prisoner's] efforts to comply with the State's procedural rule. Thus, cause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal quotations omitted). The petitioner must also show actual prejudice, not just t53he possibility of prejudice. U.S. v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007). Regarding the “miscarriage of justice,” the Supreme Court has made clear that a fundamental miscarriage of justice exists when a Constitutional violation has resulted in the conviction of one who is actually innocent. See Murray, 477 U.S. at 495-96.
Petitioner does not argue that he is innocent, or that there is cause and prejudice for his failure to properly present his claims. Thus, his claims are procedurally defaulted without excuse.
C. Plea Waiver.
Respondents argue that Petitioner's remaining claims are waived by his guilty plea. (Doc. 10 at 17.) Respondents did not raise this defense in state court in PCR proceedings. Respondents only argued that Petitioner failed to present colorable claims. (Id., Exh. E at 59.) Thus, Respondents have waived their right to assert this defense in federal habeas proceedings. See, United States v. Doe, 53 F.3d 1081, 1083 (9th Cir. 1995) (failure to argue waiver in briefs or at oral argument resulted in waiver of argument); Garza v. Idaho, 139 S.Ct. 738, 744-45 (2019) (even a waived claim may be decided on its merits if prosecution forfeits or waives the waiver).
D. Merits Review.
Pursuant to the AEDPA, a federal court “shall not” grant habeas relief with respect to “any claim that was adjudicated on the merits in State court proceedings” unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). This standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011). It is also a “highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted). “When applying these standards, the federal court should review the ‘last reasoned decision' by a state court ... .” Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
A state court's decision is “contrary to” clearly established precedent if (1) “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” or (2) “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.” Williams, 529 U.S. at 404-05. “A state court's decision can involve an ‘unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).
(1) Claim One.
Petitioner asserts that his due process rights were violated by the state court's use of his prior conviction to both enhance and aggravate his sentence. The state court addressed this claim on the merits. A criminal defendant is entitled to due process at sentencing. Gardner v. Florida, 430 U.S. 349, 358 (1977). “Generally, a federal appellate court may not review a state sentence that is within the statutory limits,” however a federal court may vacate a sentenced enhanced based upon materially false or unreliable information, or a sentence on a conviction that is infected by constitutional error. Walker v. Endell, 850 F.2d 470, 476-77 (9th Cir. 1987). An allegation of error or misapplication of state sentencing law generally does not present any ground for habeas relief. Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“federal habeas corpus relief does not lie for errors of state law”); Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993) (per curiam) (“We must defer to the state court's interpretation of state law.”).
The sentence Petitioner received was correctly determined by the state court to be lawful, as Arizona law provided that a prior conviction could be used to enhance and aggravate a sentence. See A.R.S. §§ 13-701, -703. Additionally, the Arizona Supreme Court upheld the Arizona sentencing scheme. Bonfiglio, 228 Ariz. at 354, ¶21. Not surprisingly, Petitioner cites no federal case authority finding such a sentencing scheme unconstitutional. A state-law issue may not be transformed into a federal one “merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
On the contrary, see Williams v. Walker, 461 Fed.Appx. 550, 554 (9th Cir. 2011) (“California law has specifically upheld the propriety of such a sentencing scheme.” Thus, appellant “fails to cite a basis for federal habeas relief.”).
Additionally, Petitioner's plea agreement provided that Petitioner's sentence would be enhanced by his admitted prior conviction, as is made clear by the reference to his prior conviction and the enhanced sentencing ranges. (Doc. 10, Exh. J.) It was also clear in Petitioner's plea agreement that he had agreed to a sentence that was in excess of the presumptive sentence for both a class 2 and a class 3 felony. (Id.) Petitioner initialed all of the paragraphs of the plea agreement and signed it, indicating that his guilty plea was voluntary and that he understood and agreed to all of its provisions. (Id.) The plea agreement also substantially benefited Petitioner as it included provisions that the state would not allege Petitioner's other prior felony convictions, and would dismiss allegations of dangerousness and the remaining charges. (Id.) Any claim that Petitioner had not agreed to an enhanced and aggravated sentence is belied by his plea agreement.
The Arizona Court of Appeals rejection of Petitioner's claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or based on an unreasonable determination of the facts and therefore should be dismissed.
(2) Claim Two.
Petitioner claims that his counsel was ineffective by not objecting to the use of his prior conviction to both enhance and aggravate his sentence. To establish a claim of ineffective assistance of counsel a petitioner must demonstrate that counsel's performance was deficient under prevailing professional standards, and that he suffered prejudice as a result of that deficient performance. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To establish deficient performance, a petitioner must show “that counsel's representation fell below an objective standard of reasonableness.” Id. at 699. A petitioner's allegations and supporting evidence must withstand the court's “highly deferential” scrutiny of counsel's performance, and overcome the “strong presumption” that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 689-90. A petitioner bears the burden of showing that counsel's assistance was “neither reasonable nor the result of sound trial strategy,” Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001), and actions by counsel that “‘might be considered sound trial strategy'” do not constitute ineffective assistance. Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
To establish prejudice, a petitioner must show a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, at 694. A “reasonable probability” is one “sufficient to undermine confidence in the outcome.” Id. Courts should not presume prejudice. See Jackson v. Calderon, 211 F.3d 1148, 1155 (9th Cir. 2000). Rather, a petitioner must affirmatively prove actual prejudice, and the possibility that a petitioner suffered prejudice is insufficient to establish Strickland's prejudice prong. See Cooper v. Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001) (“[A petitioner] must ‘affirmatively prove prejudice.' ... This requires showing more than the possibility that he was prejudiced by counsel's errors; he must demonstrate that the errors actually prejudiced him.”) (quoting Strickland, 466 U.S. at 693). However, the court need not determine whether counsel's performance was deficient if the court can reject the claim of ineffectiveness based on the lack of prejudice. See Jackson, 211 F.3d at 1155 n.3 (the court may proceed directly to the prejudice prong).
The trial court held that Petitioner failed to establish either deficient performance or prejudice, as it was settled state law that the same conviction could be used to both enhance and aggravate a sentence, and therefore “trial counsel had nothing to object to and [Petitioner] was not prejudiced.” The Arizona Court of Appeals affirmed the trial court's decision. This decision was not contrary to, or an unreasonable application of Strickland or based on an unreasonable determination of the facts, and therefore Petitioner's claim lacks merit and should be dismissed.
CONCLUSION
Having determined that Petitioner's claims in his habeas petition are procedurally defaulted without excuse, or are meritless, the Court will recommend the petition be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable and because Petitioner has not demonstrated a substantial showing of the denial of a constitutional right.
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. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.