Opinion
CV-19-05194-PHX-DJH (MTM)
01-08-2021
Freddie Gene Cruz, Petitioner, v. Charles L. Ryan, et al., Respondents.
HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey United States Magistrate Judge
Freddie Gene Cruz has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).
I. Summary of Conclusion.
Petitioner Freddie Gene Cruz seeks habeas relief from his convictions and sentences for possession of dangerous drugs and drug paraphernalia. Petitioner asserts four grounds for relief, arguing that the state courts should have suppressed evidence obtained from Petitioner following his arrest, as police officers violated Petitioner's Fourth Amendment rights in stopping and searching him. Additionally, Petitioner asserts counsel was ineffective for failing to have evidence obtained from Petitioner suppressed. Because Petitioner received a full and fair opportunity to litigate his Fourth Amendment claims before proceeding to this Court, and because Petitioner does not show prejudice from counsel's performance, the Court recommends the Petition be denied.
II. Background.
The Court recounts the following facts as summarized by the Arizona Court of Appeals in Petitioner's direct appeal:
See 28 U.S.C § 2254(e)(1) (stating that “a determination of factual issues made by a State court shall be presumed to be correct.”); Runningeagle v. Ryan, 686 F.3d 758, 763 (9th Cir. 2012) (affording the Arizona Supreme Court's statement of facts “a presumption of correctness that may be rebutted only by clear and convincing evidence”) (citing 28 U.S.C. § 2254(e)(1) and Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009)).
Officer Baynes stopped [Petitioner] for riding his bicycle through an alley, using it as a thoroughfare in violation of the Phoenix City Code. Officer Baynes requested identification, which [Petitioner] provided. The officer asked whether Cruz was on probation or parole. [Petitioner] responded he was not, but stated he “had court the next day for a possession charge.” Officer Baynes inquired whether [Petitioner] had drugs in his possession, which [Petitioner] denied. The officer then asked whether [Petitioner] “had any pipes, needles, or weapons, ” which Cruz also denied. Officer Baynes asked [Petitioner] for permission to search him, and [Petitioner] consented.
The officer found a small piece of plastic in [Petitioner]'s pocket that “appeared to be used as a makeshift baggie.” Officer Baynes asked what was inside the baggie, and [Petitioner] replied it was “cocaine or meth dust.” At that point, [Petitioner] was arrested and read his Miranda rights. After the arrest, [Petitioner] told Officer Baynes that there was a syringe in a black bag on his bicycle's handlebars. The officer searched the bag and found “loose methamphetamine” and a used syringe.
[Petitioner] was charged with one count of possession or use of dangerous drugs and one count of possession of drug paraphernalia. Prior to trial, he moved to suppress all statements made to Officer Baynes before receiving Miranda warnings, as well as all evidence seized as a result of those statements. The superior court denied the motion without conducting an evidentiary hearing. Cf. State v. Peterson, 228 Ariz. 405, 408, ¶ 9, 267 P.3d 1197, 1200 (App.2011) (defendant must state prima facie case for suppression to be entitled to a hearing).
At trial, [Petitioner] was convicted on both counts and was sentenced to concurrent terms of 10 and 5 years in prison. He timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).State v. Cruz, No. 1 CA-CR 14-0272, 2015 WL 3536709 at *1 (Ariz.Ct.App. June 4, 2015) (“Cruz I”). Petitioner was convicted on November 19, 2013 (doc. 24-3, Ex. J at 59) and sentenced on April 3, 2014 (doc. 24-3, Ex. K at 64).
A. Direct Appeal.
On April 3, 2014, Petitioner appealed his convictions and sentence to the Arizona Court of Appeals (doc. 24-4, Ex. M at 2, doc. 24-4, Ex. N at 23). On direct appeal,
Petitioner raised one argument: Petitioner argued that the exclusionary rule should have prevented the state from introducing evidence obtained when Petitioner was in custody but had not received the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). (Doc. 24-4, Ex. M at 9). Petitioner argued that based on Officer Baynes' request to search Petitioner, the initial stop became a seizure. (Id., citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)). In Petitioner's view, having been seized by Officer Baynes but not given Miranda rights, statements made prior to his being Mirandized or evidence seized as a result of those statements, were inadmissible under the Fourth Amendment. (Doc. 24-4, Ex. M at 12-14).
On June 4, 2015, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. Cruz I, 2015 WL 3536709 at *1. The Arizona Court of Appeals noted that Miranda applies only to “custodial interrogation, ” and that “Officer Baynes did not take [Petitioner] into custody simply by seeking permission to search him or by conducting a consensual search.” Cruz I, 2015 WL 3536709 at *2. Further, the Court concluded Petitioner had not introduced evidence demonstrating that, by the nature of the interaction between Officer Baynes and Petitioner, Petitioner was in custody prior to being placed under arrest and Mirandized; accordingly, the trial court did not err in denying Petitioner's suppression motion. Id.
B. First Post-Conviction Relief Proceeding.
On August 6, 2015, Petitioner filed a Notice of Post-Conviction Relief (“PCR”) with the Maricopa County Superior Court. (Doc. 24-4, Ex. V at 67). PCR counsel filed a Notice of Completed Review (doc. 24-4, Ex. X at 79) on October 12, 2015, notifying the PCR court that counsel had not identified any issues to pursue but requesting that Petitioner receive time to file a pro per petition. (Id. at 80).
On April 15, 2016, Petitioner filed a PCR Petition. (Doc. 24-6, Ex. AA at 2).Petitioner argued that counsel was ineffective for failing to suppress the evidence obtained from Officer Baynes' search of Petitioner, and that Petitioner's counsel failed to preserve facts and arguments for appeal. (Id. at 8, 15). On May 31, 2016, the Maricopa County Superior Court dismissed the PCR Petition, reasoning that Petitioner failed to show that counsel's performance was deficient, as counsel did seek to have the evidence suppressed, and that even assuming counsel's performance was deficient, Petitioner failed to show that deficient performance affected the outcome of the proceeding. (Doc. 24-8, Ex. EE at 29-30).
Petitioner had filed a PCR Petition on March 1, 2016. (Doc. 24-5, Ex. Z at 2). However, that PCR Petition did not comply with Arizona procedural rules, and was supplanted by the PCR Petition filed on April 15, 2016.
Petitioner filed a Petition for Review in the Arizona Court of Appeals on June 16, 2016. (Doc. 24-8, Ex. FF at 32). On September 26, 2017, the Arizona Court of Appeals granted review, granted relief, and remanded to the Maricopa County Superior Court. State v. Cruz, No. 1 CA-CR 16-0405 PRPC, 2017 WL 4247610 (Ariz.Ct.App. Sept. 26, 2017) (“Cruz II”). The Arizona Court of Appeals divided Petitioner's ineffective assistance of counsel claims into (1) failure to obtain an evidentiary hearing on the suppression issue, failure to cite applicable case law, (2) failure to argue that Petitioner's stop was illegally prolonged, and (3) failure to argue that the scope of the officer's search exceeded what Terry v. Ohio, 392 U.S. 1 (1968) permitted. Cruz II, 2018 WL 4247610 at *1. The Court concluded that, although some of Petitioner's allegations of ineffective assistance amounted to “strategic choices” that are “virtually unchallengeable” on post-conviction review, other allegations warranted remand to the superior court. Id. at *1-2, citing Strickland v. Washington, 466 U.S. 668, 690 (1984).
Specifically, the Court concluded that under Arizona law, defendants are entitled to a hearing on suppression issues, and that neither Petitioner's counsel nor the state had alerted the trial court that an evidentiary hearing was necessary. Cruz II, 2017 WL 4247610 at *2, citing Rodriguez v. Arellano, 979 P.2d 539 (Ariz.Ct.App. 1999). As a result, the State had not been required to provide evidence sufficient to meet its burden of justifying a warrantless search, as Ariz. R. Crim. P. 16.2(b) demands. Cruz II, 2017 WL 4247610 at *2. The Court remanded to the Maricopa County Superior Court for a hearing on the PCR Petition. (Id.).
C. Remanded Post-Conviction Relief Proceeding.
On December 1, 2017, Petitioner was appointed counsel to conduct Petitioner's evidentiary hearing. (Doc. 24-8, Ex. KK at 127). On February 20, 2018, the PCR court conducted an evidentiary hearing. (Doc. 24-9, Ex. OO at 41).
1. Summary of Evidentiary Hearing Testimony.
a. Diane Allen.
Petitioner's trial counsel Diane Allen testified that she had filed a motion to suppress in Petitioner's case, but that there was no evidentiary hearing, and that she did not object to or seek reconsideration of the lack of evidentiary hearing after the suppression motion was denied. (Id. at 56-57). On cross-examination, counsel stated that she interviewed Officer Baynes prior to trial because she believed that Officer Baynes had a “relatively weak premise to escalate the stop” into a search. (Id. at 62).
Counsel testified that she did not include in her motion to suppress any contention that Petitioner had only consented to a search of his person for weapons under Terry and not a general search of his person. (Id. at 66). Counsel also acknowledged that she did not argue that the spontaneous statements by Petitioner regarding “cocaine or meth dust” and the existence of a syringe should also have been suppressed because the initial search was unlawful under Terry. (Id. at 66-67). Finally, counsel acknowledged that she was aware that Petitioner had a right to a hearing once the motion to suppress was filed, and that she did not notify the trial court of that fact once the trial court ruled summarily on the motion to suppress. (Id. at 72-73). Counsel acknowledged that, in retrospect, “I think that the appropriate thing for me to have done would have been to have filed a motion to reconsider the ruling.” (Id. at 80).
b. Officer Baynes.
Officer Baynes testified that he stopped Petitioner in an alleyway “known for narcotics and prostitution.” (Id. at 88-89). Officer Baynes stated that he stopped Petitioner because Petitioner's riding of a bike through the alleyway was a municipal code violation. (Id. at 89-90). Officer Baynes testified that, although he exited his patrol car and gestured to Petitioner asking him to come over, he did not draw his service weapon or flash his lights and siren. (Id. at 92-93).
Officer Baynes testified that after stopping Petitioner he asked for Petitioner's identification and then asked Petitioner if he was currently on probation or parole. (Id. at 93). He testified that Petitioner told him that he was not on probation or parole, but volunteered that he “had court in the morning.” (Id. at 94). After learning that Petitioner was due in court for “possession, ” Officer Baynes requested permission to search Petitioner. (Id. at 95). According to Officer Baynes, Petitioner said “yeah, go ahead.” (Id.).
Officer Baynes testified that he first searched Petitioner's right side “watch pocket, ” and that he found a small piece of brown plastic that, based on the officer's prior experience, was meant for transportation or distribution of narcotics. (Id. at 96). Officer Baynes testified that when he asked Petitioner what the bag was, Petitioner replied “cocaine, or meth dust.” (Id.). At that point, Officer Baynes placed Petitioner under arrest and provided Miranda warnings. (Id. at 97). Officer Baynes testified that after he Mirandized Petitioner, Petitioner voluntarily informed him that Petitioner had a syringe in a bag attached to his bicycle. Officer Baynes searched the bag and discovered a syringe and loose methamphetamine. (Id. at 98-99).
On cross-examination, Officer Baynes denied using the term “pat-down”-as would indicate a Terry search instead of a full search-when requesting Petitioner's consent to search. (Id. at 103). He acknowledged that in stopping Petitioner he did not believe that a crime had been committed or was about to be committed, even though he did believe Petitioner had committed a municipal code violation. (Id. at 104).
c. Petitioner.
Petitioner testified that he had argued with Officer Baynes about whether he was violating the city code. (Id. at 123-24). Petitioner testified Officer Baynes told him to keep his hands on the handlebars of his bike (id. at 124), and then requested his identification. (Id. at 125). Petitioner stated that he gave Officer Baynes his identification and told Officer Baynes that he was not on probation or parole and wanted to leave because he was “all wet” and had “sticky stuff” on him. (Id. at 126).
Petitioner testified that Officer Baynes requested to search him for weapons, saying “[l]et me search for weapons. If you ain't got weapons on you, let me search you.” (Id. at 127). Petitioner stated that he consented to the search so that the officer would complete the stop and give Petitioner a ticket for the code violation. (Id.). However, Petitioner testified that Officer Baynes never searched him for weapons; instead Officer Baynes reached into Petitioner's coin pocket. (Id. at 128). Petitioner acknowledged that Officer Baynes found drugs in his coin pocket. (Id. at 128-29). Petitioner denied telling Officer Baynes that there was a syringe or methamphetamine in the bag attached to the bicycle. (Id. at 132).
Petitioner testified that, although he had raised concerns about the manner of the search and the contents of Officer Baynes' police report, not all of Petitioner's concerns were incorporated into counsel's motion to suppress. (Id. at 141-42). Petitioner agreed that he now had been given an opportunity to tell “a complete version of this story.” (Id. at 147).
On cross-examination, Petitioner acknowledged that the drugs found by Officer Baynes were his, and that he had been using crystal meth “probably all day.” (Id. at 150-51). Petitioner also agreed that he has used meth “just prior” to encountering Officer Baynes. (Id. at 151). Petitioner also stated that, although he told Officer Baynes to search him only for weapons, he did not tell him not to search in any particular part of his person. (Id. at 154).
d. Officer Baynes' Further Testimony.
After Petitioner testified, Officer Baynes was recalled by Petitioner. Officer Baynes testified regarding his pre-trial interview with the Maricopa County Attorney's Office and defense counsel. (Id. at 155). Officer Baynes testified that during the interview, he stated he requested to search Petitioner because Petitioner told him he was due in court the next day on possession related charges. (Id. at 160-61). Officer Baynes denied that he requested to search Petitioner before he checked Petitioner's identification. (Id. at 161, 167).
B.PCR Court Ruling and Petition for Review.
On April 9, 2018, the PCR Court denied the PCR Petition. (Doc. 24-10, Ex. SS at 14). On the issue of ineffective assistance of counsel the Court concluded that, although pretrial counsel's performance fell below an objective standard of reasonableness under Strickland for failure to notify the trial court that an evidentiary hearing was required on the suppression motion, counsel's deficient performance did not prejudice Petitioner. (Id. at 15).
The Court found that the stop of Petitioner was lawful. The Court credited Officer Baynes' recollection of events, holding that Petitioner consented to a full search and not merely a Terry stop and search, and that Petitioner's statements regarding the syringe and loose methamphetamine occurred after Petitioner had received Miranda warnings. (Id.).
The Court declined to credit Petitioner's testimony, noting that Petitioner acknowledged that he had been using crystal meth the entire the day of the stop. Further, the Court noted that Petitioner admitted to consenting to a search, and did not deny that Officer Baynes had issued Miranda warnings, although Petitioner denied hearing them. (Id.).
On June 6, 2018, Petitioner filed a Petition for Review with the Arizona Court of Appeals. (Doc. 24-10, Ex. VV at 39). On September 20, 2018, the Court granted review but denied relief. State v. Cruz, No. 1 CA-CR 18-0296 PRPC, 2018 WL 4500820 (Ariz.Ct.App. Sept. 20, 2018) (“Cruz III”). The Court concluded that Petitioner had failed to establish that the PCR court abused its discretion by denying the PCR Petition after conducting the evidentiary hearing. (Id. at *1).
III. The Petition.
On September 16, 2019, Petitioner filed a timely Petition for Writ of Habeas Corpus in this Court. (Doc. 1). The Court summarized Petitioner's four grounds for relief as follows:
In Ground One, Petitioner asserts the exclusionary rule should have prevented the State from introducing evidence “obtained from [Petitioner] following [his] arrest.” Petitioner contends he was detained for a City Code violation and was asked an incriminating question “when the officer removed
a soft object from [Petitioner's] coin pocket[, ] not thought to be a weapon.” Petitioner claims the officer asked, “what's this[?], ” and Petitioner stated, “it[']s my drugs, ” without first being read his Miranda rights.
In Ground Two, Petitioner alleges the police officer violated his Fourth Amendment right to be free from unreasonable searches and seizures when Petitioner was “told to submit[] to a pat-down for weapons during a traffic stop that did not warrant his arrest.”
In Ground Three, Petitioner claims the police officer violated his Fourth Amendment right to be free from unreasonable searches and seizures when, during the pat-down search for weapons, the officer failed to pat down Petitioner's outer clothing and, instead, thrust his finger into Petitioner's small coin pocket and removed “a soft object not thought to be a weapon.”
In Ground Four, Petitioner alleges he received ineffective assistance of counsel, in violation of the Sixth Amendment, because his trial attorney failed to “obtain an evidentiary hearing on the motion to suppress.” Petitioner claims it was “incumbent upon trial counsel to ensure that the record was protected and that [Petitioner's] rights were protected.”(Doc. 10 at 2-3). Respondents filed a Response (doc. 24) on April 29, 2020. Petitioner filed a Reply (doc. 28) on July 9, 2020.
IV. Principles of Law.
A. Writ of Habeas Corpus.
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. The court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court proceedings unless the state court reached a decision which was contrary to or an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d); Davis v. Ayala, 576 U.S. 257, 269 (2015). An unreasonable application of law:
must be objectively unreasonable, not merely wrong; even clear error will not suffice. Rather, as a condition for obtaining habeas corpus from a federal court, 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 fair minded disagreement.White v. Woodall, 572 U.S. 415, 419-20 (2014) (internal citations omitted). Further, the petitioner must show the error was not harmless: “[f]or reasons of finality, comity, and federalism, habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.'” Ayala, 576 U.S. at 267 (internal quotations omitted).
B. Fourth Amendment.
The Fourth Amendment provides: “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV. The “exclusionary rule” prohibits admission of evidence obtained through an illegal search or seizure of a defendant. Stone v. Powell, 429 U.S. 465, 481-87 (1976). In the context of a federal habeas corpus petition, however, the “contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force.” Id. at 494-95. Thus, “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 494.
“The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided.” Newman v. Wengler, 790 F.3d 876, 880 (9th Cir. 2015) (quoting Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996)). “All Stone v. Powell requires is the initial opportunity for a fair hearing. Such an opportunity for a fair hearing forecloses this court's inquiry, upon habeas corpus petition, into the trial court's subsequent course of action, including whether or not the trial court has made express findings of fact.” Newman, 790 F.3d at 881 (quoting Caldwell v. Cupp, 781 F.2d 714, 714 (9th Cir.1986)).
C. Ineffective Assistance of Counsel.
To succeed in a claim of ineffective assistance of counsel, Petitioner must satisfy the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668 (1984). First, he must demonstrate that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. Second, Petitioner must demonstrate that “there is a reasonable probability that, but for counsel's error the result would have been different.” Id. at 687-96. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. at 688. Petitioner has the burden of proof and must overcome a “strong presumption that the representation was professionally reasonable.” Id. at 689.
Petitioner must also demonstrate that the reviewing court's application of the Strickland standard was objectively unreasonable. Cullen v. Pinholster, 563 U.S. 170, 190 (2011). The Supreme Court has described this burden as “doubly deferential” to the state proceedings, requiring both a finding that trial counsel was deficient and that the deficiency prejudiced the Petitioner, and a finding that the reviewing court's decision to the contrary was itself objectively unreasonable. Id.
V. Analysis.
A. Ground One.
The key inquiry for applying Stone to the instant case is not whether Petitioner had a full and fair opportunity to litigate the Fourth Amendment issue before trial; it is whether Petitioner had a full and fair opportunity to litigate the Fourth Amendment issue before seeking federal habeas relief. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (“A Fourth Amendment claim is not cognizable in federal habeas proceedings if a petitioner has had a full and fair opportunity to litigate the claim in state court.”) (emphasis added). Even assuming that Petitioner's trial counsel did not fully and fairly litigate Petitioner's Fourth Amendment claims before Petitioner's jury trial, Petitioner nevertheless received a full and fair opportunity to litigate his Fourth Amendment claims when the PCR court conducted the evidentiary hearing upon remand from the Arizona Court of Appeals. Accordingly, Stone forecloses federal habeas review of Petitioner's Fourth Amendment claims. Stone, 428 U.S. at 494.
Petitioner's Reply alleges that trial counsel's alleged ineffectiveness deprived Petitioner of a full and fair opportunity to litigate his Fourth Amendment claims. (Doc. 28 at 10-11). However, this argument does not account for the evidentiary hearing that Petitioner received on remand of his case. In the PCR Petition that resulted in the evidentiary hearing, Petitioner specifically argued that the PCR court should vacate his conviction or order a new trial if the PCR court agreed that Petitioner's Fourth Amendment rights had been violated. (Doc. 24-6, Ex. AA at 22-23). On this record it is clear that Petitioner, prior to seeking federal habeas relief, did in fact have a full and fair opportunity to litigate his Fourth Amendment claims, and is now precluded from habeas relief.
B. Ground Two.
For the reasons explained in Section V(A), supra, the Court concludes that Petitioner had a full and fair opportunity to litigate his Fourth Amendment claim that the scope of Officer Baynes' pat-down exceeded what was permitted under the Fourth Amendment. Stone v. Powell does not require that Petitioner have litigated a specific claim, or that the state court's adjudication of Petitioner's claim was correct. Newman, 790 F.3d at 880. Therefore, under Stone, Ground Two is not cognizable on habeas review.
C. Ground Three.
For the reasons explained in Section V(A), supra, the Court concludes that Petitioner had a full and fair opportunity to litigate his Fourth Amendment claim that Officer Baynes violated the Fourth Amendment by searching a coin pocket that could not have possibly contained a weapon on remand from the Arizona Court of Appeals. Stone v. Powell does not require that Petitioner have litigated a specific claim, or that the state court's adjudication of Petitioner's claim was legally correct. Newman, 790 F.3d at 880. Therefore, under Stone, Ground Three is not cognizable on habeas review.
D. Ground Four.
Even assuming Petitioner's trial counsel rendered deficient performance, Petitioner has not demonstrated that counsel's performance prejudiced Petitioner. See Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”); Gallegos v. Ryan, 820 F.3d 1013, 1027 (9th Cir. 2016). To establish prejudice, Petitioner must show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Von Tobel v. Benedetti, 975 F.3d 849, 857 (9th Cir. 2020), citing Strickland, 477 U.S. at 694. Petitioner's claim in Ground Four is that trial counsel was ineffective for failing to obtain an evidentiary hearing on Petitioner's Fourth Amendment claims. (Doc. 1 at 18). Therefore, to satisfy the second prong of Strickland, Petitioner must demonstrate that, had trial counsel obtained an evidentiary hearing, the result of the proceeding would have been different.
The record undercuts Petitioner's assertions. The PCR court conducted a suppression hearing that, as Petitioner acknowledged, “told a complete version” of the stop that led to Petitioner's arrest. (Doc. 24-9, Ex. OO at 147). Petitioner was able to examine trial counsel and Officer Baynes, and testified in his own behalf. After considering all the testimony and evidence that would have been presented at a pretrial suppression hearing, the PCR Court concluded that no Fourth Amendment violation occurred (doc. 24-10, Ex. SS at 14), and the Arizona Court of Appeals affirmed that determination. Cruz III, 2018 WL 4500820 at *1.
Petitioner's Reply in essence seeks to relitigate the post-remand Fourth Amendment hearing. (Doc. 28 at 26-31). However, the correctness of the PCR Court's ruling is not the proper focus of the Strickland inquiry. Rather, because Strickland requires Petitioner to show a reasonable probability that the result of the proceeding would have been different but for counsel's deficient performance, Von Tobel, 975 F.3d at 857, Petitioner must demonstrate that, if trial counsel had secured an evidentiary hearing, there is a reasonable probability the evidence obtained from the stop would have been suppressed at trial.
Petitioner does not make that showing. The PCR Court's post trial finding, after an extensive evidentiary hearing, that Petitioner's Fourth Amendment rights had not been violated (Doc. 24-10, Ex. SS at 14-16), and the affirmance by the Court of Appeals of the PCR Court, see Cruz III, 2018 WL 4500820 at *1, demonstrates that Petitioner's Fourth Amendment claims would not have succeeded in a pre-trial context if his counsel had secured an evidence hearing. Accordingly, Petitioner does not demonstrate prejudice under Strickland, and he is not entitled to relief on Ground Four.
VI. Conclusion.
The record is sufficiently developed and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Based on the above analysis, the Court finds that Petitioner's claims are not cognizable on habeas review and are otherwise non-meritorious.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be 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 made a substantial showing of a 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 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely 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 to timely 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 of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.