Opinion
CV-22-08050-PCT-SPL (ESW)
08-11-2022
Buren Jarrett Burgess, Petitioner, v. David Shinn, et al., Respondents.
HONOROBLE EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Buren Jarrett Burgess' (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). Respondents have filed their Answer (Doc. 9), and Petitioner has filed a Reply (Doc. 13). For the reasons explained herein, it is recommended that the Petition (Doc. 1) be denied and dismissed with prejudice.
I. BACKGROUND
In 2016, a jury sitting in the Superior Court of Arizona in and for Yavapai County found Petitioner guilty of two counts of child prostitution under Ariz. Rev. Stat. § 13-3212(B)(2), class 2 felonies. (Doc. 9-4 at 15). The trial court determined that Petitioner's two prior felonies should be treated as one historical prior felony for sentencing purposes. (Id. at 48). The trial court imposed consecutive prison terms of 15.75 years. (Id. at 53).
On August 7, 2018, the Arizona Court of Appeals found that the trial court erroneously treated Petitioner's two prior historical felony convictions as one conviction at sentencing. State v. Burgess, 428 P.3d 192, 198 (Ariz. App. 2018). The Arizona Court of Appeals found that Petitioner did not need to be resentenced as it was undisputed that because Petitioner was on probation when he committed the child prostitution offenses, Arizona law provides that he must be sentenced to presumptive consecutive terms. Id. The Arizona Court of Appeals amended the sentencing minute entry to reflect that Petitioner is sentenced to presumptive consecutive terms of 28 years' imprisonment. Id. The Arizona Supreme Court denied Petitioner's request for further review. (Doc. 9-4 at 137).
Following direct appeal, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). The trial court appointed counsel, who filed a PCR Petition on Petitioner's behalf. (Doc. 9-4 at 139, 141-51). On March 30, 2021, after briefing was complete on Petitioner's PCR Petition, the trial court denied PCR relief. (Id. at 157). Petitioner did not seek further review by the Arizona Court of Appeals.
On March 30, 2022, Petitioner timely initiated this federal habeas proceeding. (Doc. 1). The Petition raises two grounds for relief. Ground One asserts that Petitioner's Fourteenth Amendment rights were violated when his convictions were not reversed for insufficiency of the evidence. (Id. at 6). Ground Two asserts that Petitioner's trial counsel provided ineffective assistance. (Id. at 7). The Court screened the Petition and required Respondents to file an answer. (Doc. 4). In their Answer (Doc. 9) filed on May 27, 2022, Respondents assert that Ground One is without merit and Ground Two is procedurally defaulted without excuse. Petitioner filed a Reply (Doc. 13) on July 27, 2022.
II. MERITS REVIEW OF GROUND ONE
A. Reviewing Habeas Claims on the Merits
In reviewing the merits of a habeas petitioner's claims, the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) requires federal courts to defer to the last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show that the state court's adjudication of his or her claims either:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 132 S.Ct. 2148, 2151 (2010); Harrington v. Richter, 562 U.S. 86, 99 (2011).
As to relief under 28 U.S.C. § 2254(d)(1), “clearly established federal law” refers to the holdings of the U.S. Supreme Court's decisions applicable at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court decision is “contrary to” such clearly established federal law if the state court (i) “applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases” or (ii) “confronts a set of facts that are materially indistinguishable from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
As to relief under 28 U.S.C. § 2254(d)(2), factual determinations by state courts are presumed correct unless the petitioner can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011). A state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (as amended) (internal quotation marks and citation omitted).
B. Analysis of Ground One
In Ground One, Petitioner contends that there is insufficient evidence to support his convictions for child prostitution. (Doc. 1 at 5-6). As explained by the Arizona Court of Appeals, the facts underlying the convictions are as follows:
¶ 3 . . . In November 2014, Burgess called and texted telephone numbers posted in online advertisements offering the services of two female escorts. The advertisements listed the escorts' ages as 18 and contained explicit sexual content. “Brittany” and “Jennifer” responded to Burgess's calls and texts and asked Burgess if he wanted the services of two girls; he answered that he did. Unbeknownst to Burgess, the two were undercover police officers posing as child prostitutes.
¶4 “Brittany” and “Jennifer” informed Burgess that they were 16 years old and that spending one-half hour with both would cost $160. Burgess confirmed with the “girls” that they were not police officers, but he hesitated and stated that he wanted an 18-year-old escort. Burgess ultimately agreed to meet the two “girls” at their hotel room to “hang out.” Jennifer told Burgess that she would reduce the price if he brought cigarettes because “we're pretty young and obviously we can't buy cigarettes[.]” Burgess did so.
¶5 After Burgess arrived at the hotel room, the “girls” asked what he “wanted,” and Burgess replied that he would like them to “do stuff to him.” He paid Jennifer $150, handed her the cigarettes, and agreed to wear a condom once they “began having sex.” As Burgess undressed, the “girls” went into the bathroom to change clothes. Police officers then stormed into the room and took Burgess into custody.Burgess, 428 P.3d at 194.
In his direct appeal, Petitioner presented a sufficiency-of-the-evidence claim that contended that the child prostitution convictions should be reversed because Petitioner “never agreed to engage in sexual activity until he saw the decoy prostitutes, who were 27 years old and looked it.” (Doc. 9-4 at 67). Petitioner argued that he
could only have been convicted-the elements would only then have been proven-if he arrived at the room and said he wanted to have sex with minors. But when [Petitioner] arrived he saw that the prostitutes were 26 or 27 year-old
women, and only then did [Petitioner] say he was willing to proceed: “[t]hen we discussed if he was now comfortable, now that he had made it up and seen us. He said that he was, and at that point we started discussing what he wanted to do.” RT 10-21 at 135 (emphasis added) (Officer Hugus). [Petitioner], at that point, was clearly guilty of adult prostitution, but innocent of child prostitution.(Id. at 68) (emphasis in original).
The Arizona Court of Appeals rejected Petitioner's claim presented in Ground One. Burgess, 428 P.3d at 195. As explained below, sufficiency-of-the-evidence claims on federal habeas review are evaluated under the standard set forth in 28 U.S.C. § 2254(d)(1). Petitioner must show that the Arizona Court of Appeals' decision is contrary to, or involved an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court. For sufficiency-of-the-evidence claims, the relevant U.S. Supreme Court case is Jackson v. Virginia, 443 U.S. 307 (1979).
In Jackson, the Court held that a sufficiency-of-the-evidence claim must be rejected unless, based on the evidence presented at trial, “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Id. at 324. All evidence must be considered in the light most favorable to the prosecution. Id. at 319; Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). While the standard under Jackson is deferential, AEDPA applies an additional layer of deference in federal habeas cases. See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). A federal court may overturn a state court decision rejecting a sufficiency-of-the-evidence challenge “only if the state court decision was ‘objectively unreasonable.'” See Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (per curiam); see also Juan H., 408 F.3d at 1275 n. 13. This “double dose of deference . . . can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011), cert. denied, 132 S.Ct. 2723 (2012); see also Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012) (per curiam) (“We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers ofjudicial deference.”).
Moreover, because “a court under Jackson makes no ‘determination of the facts' in the ordinary sense of resolving factual disputes,” a Jackson claim presented in a federal habeas petition is evaluated under 28 U.S.C. § 2254(d)(1) (unreasonable application of federal law), not 28 U.S.C. § 2254(d)(2) (unreasonable determination of the facts). Sarausad v. Porter, 479 F.3d 671, 677 (9th Cir. 2007) (“We have recently joined our sister circuits in using § 2254(d)(1) to evaluate a state court's sufficiency-of-the-evidence determination under Jackson.”), vacated in part on other grounds, 503 F.3d 822 (9th Cir. 2007), reversed on other grounds, 555 U.S. 179 (2009); see also Flores v. Beard, 533 Fed.Appx. 730, 731 n.1 (9th Cir. 2013) (“Because we ‘evaluate a state court's resolution of a Jackson sufficiency-of-the-evidence claim in all cases under § 2254(d)(1) rather than § 2254(d)(2),' we do not address [petitioner's § 2254(d)(2) argument.”); Emery v. Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011) (“When we undertake collateral review of a state court decision rejecting a claim of insufficiency of the evidence pursuant to 28 U.S.C. § 2254(d)(1), . . . we ask only whether the state court's decision was contrary to or reflected an unreasonable application of Jackson to the facts of a particular case.”).
The following are excerpts of the Arizona Court of Appeals' decision rejecting Petitioner's claim presented in Ground One:
¶9 Burgess argues that insufficient evidence supports his convictions because he “never agreed to engage in sexual activity until he saw the decoy prostitutes, who were 27 years old and looked it.” He contends that although he was guilty of adult prostitution, he was not guilty of child prostitution. We review claims of insufficient evidence de novo. State v. West, 226 Ariz. 559, 562 ¶ 15, 250 P.3d 1188 (2011). 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.” Id. at ¶ 16 (internal quotation marks omitted). “Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)).
¶10 A person 18 years old or older commits child prostitution by knowingly “[e]ngaging in prostitution with a minor who the person knows or should have known is fifteen, sixteen or seventeen years of age.” A.R.S. § 13-3212(B)(2). “‘Prostitution' means engaging in or agreeing or offering to engage in sexual conduct under a fee arrangement with any person for money or any other valuable consideration.” A.R.S. § 13-3211(5). “It is not a defense to a prosecution” under subsection (B)(2) “that the other person is a peace officer posing as a minor or a person assisting a peace officer posing as a minor.” A.R.S. § 13-3212(C).
¶11 Sufficient evidence supports Burgess's child prostitution convictions. Burgess responded to advertisements suggesting sexual experiences with girls who were “youngsters” and who subsequently informed him that they were 16 years old. And by agreeing to purchase cigarettes for the “girls,” Burgess demonstrably acted on his belief that they were under 18 years old and unable to purchase the cigarettes themselves. Further, although Burgess did not expressly discuss sexual activity with the “girls” on the telephone, the language contained within the advertisements, along with his agreement to pay them $160 for 30 minutes of their time, reasonably implies that his desire to “hang out” with the “girls” included engaging in sexual conduct. Burgess's asking if the “girls” were police officers bolsters this inference; such a question would be unnecessary if he truly intended his encounter with the putative underage “girls” to be nothing more than an innocent get-together. Accordingly, the jury could reasonably conclude that Burgess committed child prostitution by offering to engage in sexual conduct under a fee arrangement with “girls” that he believed were 16 years old. Because Burgess completed the offense when he agreed to pay for their services, he committed the offenses before he saw the “girls.” Thus, whether they appeared to be over 18 years old when he saw them in person does not affect the sufficiency of the evidence supporting his convictions.Id. at 195 (footnote omitted).
The Arizona Court of Appeals correctly recounted that the online advertisements to which Petitioner responded suggested sexual experiences with girls who were “youngsters.” (Doc. 9-3 at 105, 108, 111). The advertisement contains sexually suggestive pictures and language. (Id.). Although the advertisements state that the advertised girls are eighteen, “Brittany” subsequently texted Petitioner that both “girls” are sixteen years old after Petitioner asked “What do both girls look like and ages[?].” (Id. at 118). “Jennifer” also texted Petitioner that both “girls” are sixteen. (Id. at 120). Petitioner then asked “Jennifer”: “Do you have photos to prove you are not a cop[?]” (Id. at 121). After being informed that the “girls” were sixteen, Petitioner texted “Jennifer”: “Are you full service and do you do girl friend experience[?]” (Id. at 123). During trial, the undercover officer pretending to be “Jennifer” explained that “full service”
is a commonly-used term used on the sites, asking if a prostitute is going to do more than just what's referred to as a body rub or a massage; so that's going to mean all sexual acts. And girlfriend experience is going to be, again through my training and experience, something that is commonly used that is going to refer to a more intimate experience that someone is seeking. So that might include more intimate touching or kissing, reciprocated sex acts, or even sex acts without the use of a condom.
(Doc. 9-2 at 175). When Petitioner called “Jennifer” later than night to set up a meeting time, “Jennifer” asked Petitioner if he could do the girls a “favor” and buy them cigarettes. (Doc. 9-3 at 127). “Jennifer” stated: “we're pretty young and obviously we can't buy cigarettes so we just don't want to have an issue, we had a guy freak out a little earlier tonight, so.” (Id. at 128). Petitioner stated “Okay” in response to the request. Id. “Jennifer” then asked Petitioner “So are you okay with that? . . . I mean that we're not 18?” (Id. at 129). Petitioner replied: “Uh, I don't know. How do I know you're not doing something crazy?” (Id.). “Jennifer” then told Petitioner:
Well I mean we're not cops if that's what you're asking. I don't know how to prove it to you, but we just-we don't want any problems cause we ran away so we just don't want our faces to get out there and . . . Like I said this guy showed up and was pissed off that we were young and didn't tell him, you know, because we're both only 16, so.(Id.). Next, Petitioner asked to speak with the “other girl” on the phone. (Id.). “Jennifer” said to Petitioner “Okay. Hang on. Her name's uh, Brit.” (Id.). Petitioner asked “Brit”: “Hey. So, this is like what (?), there's not like a, like a sting or stuff like when I get there?” (Id. at 130). Petitioner later called “Jennifer” from the gas station where he purchased the requested cigarettes and “Jennifer” gave Petitioner directions to the hotel. (Id.). After “Jennifer” declined Petitioner's request to have one of the “girls” first meet him outside the hotel room, Petitioner stated: “[J]ust to be clear like, I'm just wanting to hang out with you guys, that's it.” (Id. at 132).
In support of Ground One, Petitioner emphasizes his statement made to “Jennifer” that he just wanted to “hang out.” (Doc. 13 at 2). Yet it is the province of the jury to “resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319; see Walters, 45 F.3d at 1358. As the Ninth Circuit has explained, “[t]he question is not whether we are personally convinced beyond a reasonable doubt. It is whether rational jurors could reach the conclusion that these jurors reached.” Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991) (citing Jackson, 443 U.S. at 326).
As the Arizona Court of Appeals concluded, a jury may reasonably infer that, despite stating to “Jennifer” that he just wanted to “hang out,” Petitioner actually intended to engage in sexual conduct with the “girls” based on (i) the sexually suggestive advertisements; (ii) Petitioner's agreement to pay the “girls” over a hundred dollars for thirty minutes of their time; and (iii) Petitioner's concern that the “girls” were part of a law enforcement sting operation. See State v. Yegan, 221 P.3d 1027, 1034 (Ariz. App. 2009) (explaining that “Jurors are well-suited, given their varied life experiences, to evaluate the conversation as a whole and decide whether particular words and phrases can reasonably be interpreted as offering or soliciting sexual conduct with a minor.”). Consequently, the Arizona Court of Appeals was not objectively unreasonable in determining that the evidence supports that Petitioner committed the child prostitution offenses before he saw the “girls” at the hotel room.
The undersigned concludes that Petitioner has failed to establish that the Arizona Court of Appeals unreasonably applied Jackson. Because the Arizona Court of Appeals did not unreasonably apply Jackson, the undersigned recommends that the Court deny Ground One.
III. GROUND TWO IS PROCEDURALLY DEFAULTED WITHOUT EXCUSE
A. Legal Standards
It is well-settled that a “state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. ”). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. Supreme Court's words, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 204 (1950); see also Reed v. Ross, 468 U.S. 1, 11 (1984) (“[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted).
The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) “exhausted” the available state court remedies; (ii) shown that there is an “absence of available State corrective process”; or (iii) shown that “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).
An unexhausted habeas claim may be procedurally defaulted if the claim would now be barred in state court under the state's procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). Similar to the rationale of the exhaustion doctrine, the procedural default doctrine is rooted in the general principle that federal courts will not disturb state court judgments based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his or her federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
A petitioner may overcome a procedural default by proving one of two exceptions. In the first exception, the petitioner must show cause for the default and actual prejudice as a result of the alleged violation of federal law. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). To demonstrate “cause,” a petitioner must show that some objective factor external to the petitioner impeded his or her efforts to comply with the state's procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To demonstrate “prejudice,” the petitioner must show that the alleged constitutional violation “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (“Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.”).
In the second exception, a petitioner must show that the failure to consider the federal claim will result in a fundamental miscarriage of justice. Hurles, 752 F.3d at 780. This exception is rare and only applied in extraordinary cases. Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). The exception occurs where a “constitutional violation has probably resulted in the conviction of one who is actually innocent of the offense that is the subject of the barred claim.” Wood, 693 F.3d at 1117 (quoting Schlup, 513 U.S. at 327).
B. Analysis of Ground Two
In Ground Two, Petitioner argues that his trial counsel was ineffective for failing to engage the services of a post-traumatic stress disorder (“PTSD”) expert. (Doc. 1-1 at 7). Petitioner concedes that Ground Two is unexhausted and procedurally defaulted. (Doc. 1-1 at 8; Doc. 13 at 4-5). The issue is whether Petitioner's procedurally defaulted claim may be excused pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).
In Martinez, the Supreme Court held that “inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” 566 U.S. at 9. Under Martinez, “cause” to excuse a petitioner's procedural default may be found where:
(1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral proceeding.”Trevino v. Thaler, 569 U.S. 413, 423 (2013). To establish a “substantial” claim, a petitioner must demonstrate that “reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (citation and internal quotations omitted). In other words, a claim is “insubstantial” if it does not have any merit or is wholly without factual support. Id.
Determining whether an ineffective assistance of counsel claim is “substantial” requires a district court to examine the claim under the standards of Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, “a defendant claiming ineffective assistance of counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.” Massaro v. United States, 538 U.S. 500, 505 (2003). Under the first prong, a defendant must show that a counsel's representation falls “below an objective standard of reasonableness” as measured by “prevailing professional norms.” Strickland, 466 U.S. at 687-88. There is a “strong presumption that counsel's performance falls within the wide range of professional assistance.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). “A reasonable tactical choice based on adequate inquiry is immune from attack under Strickland. ” Gerlaugh v. Stewart, 129 F.3d 1027, 1033 (9th Cir. 1997).
With respect to the second prong, “Strickland asks whether it is ‘reasonably likely' the result would have been different.” Harrington v. Richter, 562 U.S. 86, 111 (2011) (quoting Strickland, 466 U.S. at 696). “This does not require a showing that counsel's actions ‘more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.'” Id. (quoting Strickland, 466 U.S. at 693, 697). “The likelihood of a different result must be substantial, not just conceivable.” Id. (citing Strickland, 466 U.S. at 693).
Petitioner was convicted under Ariz. Rev. Stat. § 13-3212(B)(2), which provides that a person who is at least eighteen years of age commits child sex trafficking by “[e]ngaging in prostitution with a minor who the person knows or should have known is fifteen, sixteen or seventeen years of age.” As the trial court instructed the jury, Arizona law defines “prostitution” as “engaging in or agreeing or offering to engage in sexual conduct under a fee arrangement with any person for money or any other valuable consideration.” (Doc. 9-3 at 40); Ariz. Rev. Stat. § 13-3211.
At trial, defense counsel conceded that Petitioner was guilty of adult prostitution. (Doc. 9-3 at 58). Defense counsel began his opening statement by telling the jury:
Good morning.
Here's a shocker for you, something that you probably wouldn't expect to hear from a defense attorney; Burgess is guilty.
Let me say it again: Burgess is guilty.
But he's not guilty for what he's charge, and that's the problem with this case, and that's what we're going to be talking about. We're having this trial to correct a charging mistake. The charging mistake is that he's over-charged. The charging mistake is that he's charged for something that he didn't do, child prostitution, instead of being charged for
what he did do, which is adult prostitution. That's the issue before you. ....
The situation here is that the evidence is going to show you that Burgess only agreed to prostitution; only agreed to do that after concluded, upon seeing the two individuals in the hotel room, that they were not minors, that they were adults. That's what happened.
(Doc. 9-2 at 44). Defense counsel also stated:
So the conclusion here is simple. The evidence is going to show you this: Burgess never wanted anything other than adult prostitution.
The evidence will show-and it's not in dispute here-that he never agreed to any act of child prostitution. Didn't happen.
The evidence will show that, indeed, he repeatedly rejected that offer. No deal.
The evidence will show clearly, there's no dispute that he only went to the room to hang out. You'll hear it from his own words; that's what the evidence undisputedly will show.
Then we get to the dispute, the only dispute: When he walks into the room, he changes his position from wanting to go hang out and no deal with minors, and when he sees who he's dealing with, he's all in, forks over the money, and he's good to go. Well, that's unfortunate, but that's the evidence.(Id. at 51-52).
During closing argument, the State contended that Petitioner committed the offenses “[e]ven before he knock[ed] on the [hotel] door, even before he's entered that hotel room[.]” (Doc. 9-3 at 52). Defense counsel countered by emphasizing to the jury that Petitioner stated on the phone that he just wanted to “hang out.” During his closing argument, defense counsel stated:
The State would like to sell to you that there was a crime committed before he ever got to the room, and that that crime was child prostitution. That's directly inconsistent with what their own officer told you. Their own officer told you that no crime was committed before he even got to the room;
there was no probable cause, if you'll recall the exact words from the officer that there was not even sex talk up to the point they got to the room.
....
So the State wants to convey to you that there was a deal, an offer and acceptance, for sex and money, for prostitution, before they ever got to the room.
Well, remember that there were limitations, and that was, I just want to see you guys. I just want to hang out. Those clarifications were there. There was no discussion at all about sex. So the State is trying to convert their problem into a way to avoid their problem, and that is by saying a deal was reached before-prostitution was achieved before they ever got to the room.
You should reject that. It's inconsistent with the evidence, completely.
(Doc. 9-3 at 59-60).
In support of Ground Two, Petitioner states that during his military service, “he experienced severe traumatic events that have remained with him after his release from service. Combined with prolonged loneliness, his social isolation preyed upon him and he felt the need to unburden himself.” (Doc. 1-1 at 7). Petitioner argues that a “need to talk to someone, even if that person is a prostitute - or an officer posing as a prostitute constitutes an intent that does not automatically translate into actual prostitution.” (Id. at 8). Petitioner further argues that his trial counsel's failure to “engage an expert also has consequences that are retrospective in nature, in that such information and evidence would have had a significant role to play in plea negotiations.” (Id.).
“[T]rial counsel have great latitude to present a particular theory of defense and present it via summation.” Young v. Gipson, 163 F.Supp.3d 647, 708 (N.D. Cal. 2015) (citing Richter, 131 S.Ct. at 790 (“There is a ‘strong presumption' that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than ‘sheer neglect.'”)). “Mere criticism of a tactic or strategy is not in itself sufficient to support a charge of inadequate representation.” Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980); see also Bemore v. Chapell, 788 F.3d 1151, 1163 (9th Cir. 2015) (“a tactical decision may constitute constitutionally adequate representation even if, in hindsight, a different defense might have fared better”).
Based on the evidence as a whole, a reasonable jury may reject Petitioner's assertion that he merely had a “need to talk to someone” because of his PTSD. As discussed, after being informed that the “girls” were sixteen, Petitioner texted “Jennifer”: “Are you full service and do you do girl friend experience[?]” (Doc. 9-3 at 123). Further, Petitioner wanted assurances from both “Jennifer” and “Brittany” that they were not part of a law enforcement sting operation. (Doc. 9-3 at 121, 130). In addition, Petitioner's undisputed actions in the hotel room that constitute, at a minimum, adult prostitution further negates the credibility of his assertion that he just needed to talk to someone. The undersigned finds that Petitioner's trial counsel made a reasonable tactical decision not to retain a PTSD expert for plea negotiations or trial. The undersigned further finds that Petitioner has not shown a reasonable likelihood that the result would have been different had counsel retained a PTSD expert. Neither prong of the Strickland test is satisfied.
The undersigned does not find that Petitioner's allegations in Ground Two establish a substantial claim of ineffective assistance of counsel. As a result, Petitioner cannot establish cause for his procedural default by relying on Martinez. Petitioner asserts no other basis for excusing the procedural default. Accordingly, the undersigned recommends that the Court dismiss Ground Two with prejudice.
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court DENY Ground One of the Petition (Doc. 1) and DISMISS WITH PREJUDICE Ground Two.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of Ground Two is justified by a plain procedural bar and Petitioner has not made a substantial showing of the denial of a constitutional right as to Ground One.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 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); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely 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. Failure to file timely objections to any factual determinations of the Magistrate Judge may 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 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).