Opinion
CV-22-08203-PCT-JAT (ESW)
01-26-2024
Steven Carroll DeMocker, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE EILEEN S. WILLETT, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
Pending before the Court is Steven Carroll DeMocker's (“Petitioner”) Petition for Writ of Habeas Corpus (the “Petition”) (Doc. 1) filed pursuant to 28 U.S.C. § 2254. Respondents have filed an Answer (Doc. 18), to which Petitioner has replied (Doc. 22). For the reasons explained herein, it is recommended that the Court deny habeas relief without holding an evidentiary hearing.
I. BACKGROUND
On October 4, 2013, a jury sitting in the Superior Court of Arizona in and for Yavapai County found Petitioner guilty of (i) one count of first-degree murder; (ii) one count of burglary in the first degree; (iii) two counts of fraudulent schemes and artifices; (iv) one count of conspiracy to commit a fraudulent scheme; (v) one count of tampering with physical evidence; and (vi) one count of contributing to the delinquency of a minor. (Doc. 18-5 at 45-46). On January 24, 2014, the trial court sentenced Petitioner to a combination of concurrent and consecutive terms of imprisonment, the longest of which was a term of natural life without the possibility of parole “or release from confinement on any basis.” (Id. at 90-96).
Petitioner filed a direct appeal. (Id. at 98-174). On October 11, 2016, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 1-1 at 8-21). The Arizona Supreme Court denied Petitioner's request for further review. (Doc. 18-5 at 184).
In August 2017, Petitioner initiated a post-conviction relief (“PCR”) proceeding. (Doc. 18-5 at 188-90). Following briefing and oral argument on Petitioner's PCR Petition, the trial court denied relief. (Doc. 1-1 at 22-81). Petitioner petitioned the Arizona Court of Appeals for further review, which denied relief. (Doc. 18-6 at 36-37). The Arizona Supreme Court denied Petitioner's Petition for Review on November 3, 2021. (Id. at 39).
On November 3, 2022, Petitioner timely initiated this habeas proceeding. (Doc. 1). The Court screened the Petition (Doc. 1) and required Respondents to file an Answer. (Doc. 6). Respondents filed their Answer (Doc. 18) on June 12, 2023. Petitioner filed a Reply (Doc. 22) on August 11, 2023.
The Petition contains eight grounds for relief, with Ground Five containing six subclaims asserting the ineffective assistance of trial counsel. Respondents do not raise any affirmative defenses with respect to Grounds One through Six. Respondents assert that Grounds Seven and Eight are procedurally defaulted without excuse. As discussed below, the undersigned finds that 28 U.S.C. § 2254(d) bars relief on Grounds One through Six because Petitioner has failed to show that the state courts' denial of those claims is (i) contrary to or an unreasonable application of Supreme Court precedent or (ii) based on an unreasonable determination of the facts. The undersigned concurs with Respondents that Grounds Seven and Eight are procedurally defaulted without excuse.
II. GROUNDS ONE THROUGH SIX: HABEAS RELIEF IS BARRED UNDER 28 U.S.C. § 2254(d)
A. Legal Standards Governing Habeas Review
In reviewing a habeas petitioner's claims, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“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)). “The ‘unreasonable application' clause of § 2254(d)(1) applies when the ‘state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.'” Hollandv. Jackson, 542 U.S. 649, 652 (2004) (quoting Williams, 529 U.S. at 413).
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 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and 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, § 2254(d)(2)[.]”).
B. Petitioner's Challenge to AEDPA's Constitutionality
Petitioner argues that the Court “should apply no deference to the Arizona state courts because doing so would violate [Petitioner's] constitutional rights.” (Doc. 1 at 9). Citing the Citizenship Clause of the Fourteenth Amendment, Petitioner contends that the effect of § 2254(d) of AEDPA “is to degrade and diminish what it means to be a citizen of the United States.” (Id.). Petitioner further asserts that “[a] citizen of the United States is entitled, under the Fourteenth Amendment itself, to the full application of the Constitution. Thus, to the extent AEDPA limits its application, it is unconstitutional, and this Court should grant the full relief the Constitution would require.” (Id. at 15).
Petitioner supports his constitutional challenge to AEDPA by discussing the United States Supreme Court's opinion in Saenz v. Roe, 526 U.S. 489 (1999). In Saenz, the Supreme Court held unconstitutional a California statute which limited welfare benefits to citizens who had arrived in California less than twelve months before applying.
As another district court has noted, “none of [the Supreme Court's] precedent suggests that every citizen has the absolute right to have his or her state criminal conviction reviewed de novo in a federal court[.]” Remillard v. Warden, Noble Corr. Inst., No. 2:20-CV-6103, 2021 WL 3700699, at *5-7 (S.D. Ohio Aug. 20, 2021). “The Constitution is not offended when lower federal courts are prevented from substituting for that of a state court their judgment as to reasonable application of Supreme Court precedent.” Evans v. Thompson, 518 F.3d 1, 8 (1st Cir. 2008). The Supreme Court has recognized that “judgments about the proper scope of the writ are ‘normally for Congress to make. '” Felker v. Turpin, 518 U.S. 651, 664 (1996) (quoting Lonchar v. Thomas, 517 U.S. 314, 323 (1996)). “Both history and Supreme Court precedent confirm Congress's authority to make such rules[.]” Crater v. Galaza, 491 F.3d 1119, 1127 (9th Cir. 2007). “As the writ has evolved . . . Congress, the [Habeas Corpus] Rule writers, and the courts have developed more complex procedural principles that regularize and thereby narrow the discretion that individual judges can freely exercise.” Lonchar, 517 U.S. at 322 (emphasis added). Courts “would have to cast history to the winds to say that [§ 2254(d)(1)], which respects fully-litigated judgments unless the state court has gone seriously wrong, transgresses constitutional limitations.” Cobb v. Thaler, 682 F.3d 364, 377 (5th Cir. 2012) (citations omitted).
The undersigned concludes that Petitioner's challenge to AEDPA's constitutionality is without merit.
C. Ground One: Alleged Violation of the Double Jeopardy Clause of the Fifth Amendment
There were two trials in this matter. Petitioner's first trial ended in a mistrial on November 12, 2010, following the Arizona Supreme Court's decision in a special action proceeding that permitted trial counsel to withdraw under Rule 1.16(b)(3) of the Arizona Rules of Professional Conduct.(Doc. 18-1 at 89-91; Doc. 18-6 at 60-61). On December 10, 2010, the State filed a superseding indictment against Petitioner. (Doc. 18-1 at 93-94). The second trial commenced on July 16, 2013, which resulted in the guilty verdicts at issue in this proceeding. (Doc. 18-4 at 63-64; Doc. 18-5 at 45-46).
Ethical Rule 1.16(b)(3) permits a lawyer to withdraw from representing a client “if the client has used the lawyer's services to perpetrate a crime or fraud.”
In Ground One, Petitioner alleges that he “was denied his right to due process and his right against double jeopardy when the state created a conflict of interest between him and his retained counsel, caused a mistrial, and prosecuted him a second time for the same charges of murder and burglary.” (Doc. 1 at 16).
1. Legal Standards Pertaining to Ground One
The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The Double Jeopardy Clause, which is enforceable against the States through the Fourteenth Amendment, consists of three separate constitutional protections that prohibit: (i) a second prosecution for the same offense after acquittal; (ii) a second prosecution for the same offense after conviction; and (iii) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). However, “[t]he protections afforded by the Clause are implicated only when the accused has actually been placed in jeopardy.” United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977) (citation omitted).
“Generally, when a defendant moves for and is granted a mistrial, the Double Jeopardy Clause of the Fifth Amendment is no bar to retrial.” United States v. Rodriguez, 229 Fed.Appx. 547, 548 (9th Cir. 2007) (citing Oregon v. Kennedy, 456 U.S. 667, 672-73 (1982)). In Kennedy, the Supreme Court identified a “narrow exception” to this rule: “Only where the governmental conduct in question is intended to ‘goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” 456 U.S. at 676. This narrow exception “prevents prosecutors from sinking a case they knew was doomed to end in an acquittal in the hope of having better luck before a second jury.” United States v. Lewis, 368 F.3d 1102, 1108 (9th Cir. 2004).
The Supreme Court in Kennedy rejected a broader exception, suggested by prior cases, that encompassed “‘bad faith conduct by [the] judge or prosecutor' [that] threatens the ‘[h]arassment of an accused by successive prosecutions [or] afford[s] the prosecution a more favorable opportunity to convict,'” 456 U.S. at 674 (quoting United States v. Dinitz, 424 U.S. 600, 611 (1976)), or other instances of “prosecutorial or judicial overreaching.” Id. at 678 (quoting United States v. Jorn, 400 U.S. 470, 485 (1971)). The Kennedy opinion states: “Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Kennedy, 456 U.S. at 675-76 (emphasis added). “In practice, the Kennedy standard is rarely met.” United States v. Lopez-Avila, 678 F.3d 955, 962 (9th Cir. 2012).
2. Background Pertaining to Ground One
The double jeopardy claim in Ground One is premised on the contention that “the state created a conflict of interest between [Petitioner] and his retained counsel[.]” (Doc. 1 at 16). Petitioner asserts that as the first “trial progressed, the state engaged in multiple conducts that forced trial counsel to withdraw.” (Id. at 17). Petitioner recounts that the State identified Petitioner's trial counsel as a potential witness in two investigations. (Id. at 17-18). The first investigation pertained to the disbursement of the victim's life insurance proceeds. The second investigation pertained to an exculpatory email that was sent anonymously to trial counsel and the prosecutor. Petitioner further recounts that as part of those investigations, the State filed bar complaints against Petitioner's trial counsel and filed new charges against Petitioner. The Arizona Court of Appeals' decision on direct appeal recounts the relevant factual background, which is set forth below:
This factual recitation is entitled to a presumption of correctness, which Petitioner has not rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
P14 After DeMocker was arrested, he asked his youngest daughter to visit him in jail and to bring a pen and paper. When she arrived, DeMocker told her that someone in jail had told him how the victim died, and DeMocker told his daughter to write down verbatim a story detailing that two men and a woman were sent to kill the victim and a man who lived in her guest house because of a prescription drug deal involving the man in the guest house. DeMocker told his daughter to anonymously email the story to his defense attorney and to the prosecutor because “it would be more credible coming from someone else,” and because he thought his attorney would not believe that somebody in the jail had told him the story.
P15 Investigators subsequently interviewed DeMocker about the email, and he told them he did not know about it. He claimed, however, to have heard a similar account of the murder through an air vent in his cell.
P16 In July 2010, during DeMocker's first trial on charges of premeditated murder and burglary, the Yavapai County Attorney's Office (“YCAO”) learned that the victim's life insurance proceeds had been used to pay DeMocker's
attorneys, even though the insurance company had distributed the policy proceeds to the victim's trust on the condition that DeMocker disclaim any interest in them, and in violation of the terms of the trust. YCAO also learned that DeMocker had manufactured the anonymous email blaming third parties for the murder and had persuaded his daughter to send it to YCAO and to DeMocker's attorney, who had successfully argued for its admission in evidence on the basis that it contained information that could only have come from someone familiar with the crime and was thus exculpatory. YCAO thereafter filed a bar complaint against defense counsel based on counsel's alleged involvement with the distribution of the life insurance proceeds, and subsequently filed fraud charges against DeMocker relating to his fabrication and use of the anonymous email, and his fabrication of the “voice in the vent” statement.
P17 Defense counsel filed motions seeking dismissal with prejudice and/or disqualification of YCAO for interfering with DeMocker's right to counsel, in part because of the YCAO bar complaint and the bar complaint filed by the Yavapai County Sheriff's Office against defense counsel. Addressing issues relating to the payment of counsel using insurance proceeds, the superior court held that the State would be permitted to introduce evidence “as to the ultimate disposition of the insurance proceeds,” but that the State would not be permitted to call DeMocker's counsel as witnesses or offer evidence or argument that the distribution from the trust to counsel was unlawful.
P18 Following the denial of DeMocker's motions to dismiss, defense counsel moved to withdraw and for a mistrial, arguing they could not continue to represent DeMocker because of the accusations against them relating to the insurance proceeds, and because of their involvement in seeking to admit the anonymously-sent email evidence. The court denied the motions to withdraw, but on review to the Arizona Supreme Court, the lawyers were permitted to withdraw because “the client ha[d] used the lawyer[s'] services to perpetrate a crime or fraud.” Newly appointed defense counsel then successfully moved for a mistrial on the basis that they could not be prepared in time to go forward with the trial in front of the
impaneled jury.
P19 The grand jury then indicted DeMocker on consolidated charges of first-degree murder, burglary, a scheme to defraud the victim's testamentary trust, fraud, and other charges relating to the fabricated anonymous email and fictitious report of a “voice in the vent.” The court dismissed the previously-filed murder and burglary case.(Doc. 1-1 at 10-11).
Petitioner asserts that this is an “unreasonable determination of facts” (Doc. 1 at 21). The undersigned finds Petitioner's assertion without merit. At the November 12, 2010 status conference, Petitioner's new counsel told the trial court: “I absolutely think there should be a mistrial because we're going to need time to prepare. In my opinion, it's going to be a long time to prepare.” (Doc. 18-6 at 159). New trial counsel requested a month to review the file and meet with Petitioner in person. (Id. at 160). Trial counsel explained that “then we can come into the court and say here's a realistic time that we think we need for a trial date. But that's going to be many, many months. And I think that a mistrial is absolutely necessary.” (Id.).
3. The Arizona Court of Appeals' Rejection of Ground One
It is first noted that on direct appeal, Petitioner asserted a double jeopardy violation under both the federal and State of Arizona constitutions. (Doc. 18-5 at 140). Establishing a double jeopardy claim under Article 2, Section 10 of the Arizona Constitutionis subject to a lower threshold than establishing a double jeopardy claim under the Fifth Amendment of the United States Constitution. The Arizona Supreme Court has held that jeopardy may attach under Arizona's double jeopardy clause where a prosecutor's conduct “amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal.” Pool v. Superior Court, 677 P.2d 261, 271-72 (Ariz. 1984) (emphasis added); Milke v. Mroz, 339 P.3d 659, 664 (Ariz.Ct.App. 2014) (explaining that Arizona's double jeopardy clause “affords even greater protection than the federal Constitution, barring retrial when there are instances of egregious prosecutorial misconduct that raise serious concerns regarding the integrity of [Arizona's] system ofjustice”). .
This provision provides: “No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense.”
A federal court may “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Accordingly, the District Court's review is limited to whether the Arizona Court of Appeals' analysis is contrary to, or an unreasonable application of, the more stringent federal standard set forth in Kennedy.
Petitioner does not present a challenge under § 2254(d)(1) by contending that the state court's rejection of Ground One is contrary to, or an unreasonable application, of Supreme Court precedent. Instead, Petitioner presents a challenge under § 2254(d)(2), asserting that the state courts' decision is based on an unreasonable determination of the facts. (Doc. 1 at 16-22; Doc. 22 at 5-10).
To reiterate, the Supreme Court in Kennedy adopted a “standard that examines the intent of the prosecutor,” which “merely calls for the court to make a finding of fact[.]” Kennedy, 456 U.S. at 675; Wassall v. Ryan, 705 F.2d 970, 971 (8th Cir. 1983) (“[T]he standard under Kennedy calls for the court to make a finding of fact regarding the intent of the prosecutor.”). The Kennedy opinion notes that “[i]nferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system.” 456 U.S. at 675. “Even when the government's actions remove[ ] any meaningful choice for defendants between pushing on with the trial or seeking mistrial,” defendants bear the burden of proving that the prosecutor “intended” the results. United States v. Lun, 944 F.2d 642, 646 (9th Cir. 1991).
In denying Petitioner's double jeopardy claim, the Arizona Court of Appeals stated:
The record does not support DeMocker's double jeopardy claim; it was DeMocker's conduct in fabricating the anonymous email, not any alleged misconduct by the prosecutor, that prompted the Arizona Supreme Court to allow counsel to withdraw. The subsequent mistrial was requested by new defense counsel, and was granted because of new counsel's inability to go forward with trial before the same jury.(Doc. 1-1 at 13) (footnote omitted). The Arizona Court of Appeals further stated that the “superior court was in the best position to ascertain whether the prosecutor acted in bad faith, and after summarily denying DeMocker's first motion to dismiss, the court denied the second motion, expressly finding that the prosecutor did not intentionally seek a mistrial.” (Doc. 1-1 at 14) (emphasis added). The Arizona Court of Appeals explained that the trial court's “view of the prosecutor's motives and credibility is entitled to deference” and concluded that the trial court “did not abuse its discretion by denying [Petitioner's] motions to dismiss.” (Id. at 14). Petitioner concedes that the trial court stated that dismissal with prejudice is appropriate “where the prosecution seeks a mistrial, tries to provoke a mistrial” and then expressly found: “That's not present” here. (Doc. 1 at 20).
The Arizona Court of Appeals observed that “the prosecutor repeatedly avowed that the State was not seeking to cause a mistrial by filing bar complaints, but rather was attempting to fulfill its ethical obligation to ensure that DeMocker had a fair trial with conflict-free counsel.” (Doc. 1-1 at 13-14). It is noted that at the November 2010 status conference, the State clarified that although it submitted a bench memorandum for the court's “consideration on the law concerning mistrial,” the memorandum is “not a motion in any way, shape or form for a mistrial.” (Doc. 18-6 at 160). The State told the trial court that it “continues to be ready to proceed with the trial in this case.” (Id.).
“The standard set out in § 2254(d) is exceedingly difficult to satisfy. ” Russum v. Jackson, No. 20-35774, 2021 WL 3743879, at *1 (9th Cir. Aug. 24, 2021). Pursuant to section 2254(d)(2), “[t]he question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citation omitted).
A state court's “factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). “[E]ven if reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's determination.” Id. (internal quotation marks, alterations, and citation omitted). A state court's credibility finding on a particular issue may be overturned by a habeas court only when “evidence on the issue[ ] raised . . . is too powerful to conclude anything but” that the trial court's finding was unreasonable. Miller- El v. Dretke, 545 U.S. 231, 265 (2005); see also Rice v. Collins, 546 U.S. 333, 342 (2006) (“The panel majority's attempt to use a set of debatable inferences to set aside the conclusion reached by the state court does not satisfy AEDPA's requirements for granting a writ of habeas corpus.”); Teti v. Bender, 507 F.3d 50, 59 (1st Cir. 2007) (“[T]he state trial judge's implicit credibility determinations, adopted by the MAC, are exactly the type of factual determinations to which we defer, as least short of any indication of serious error.”).
The record reasonably supports the Arizona Court of Appeals' deference to the trial court's finding that the prosecution did not intend to provoke Petitioner to request a mistrial. Where “the prosecutorial conduct culminating in the termination of the first trial in [a] case was not so intended by the prosecutor, that is the end of the matter for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.” Kennedy, 456 U.S. at 679.
After reviewing the parties' briefing and the submitted record, the undersigned finds that the Arizona Court of Appeals' decision denying Ground One is not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. Nor was the decision based on an unreasonable determination of the facts. The undersigned finds that 28 U.S.C. § 2254(d) bars relief as to Ground One. It is recommended that the Court deny Ground One.
D. Ground Two: Alleged Unconstitutional Preclusion of Expert Witness
One of Petitioner's convictions is for obtaining a benefit from the victim's testamentary trust by means of fraudulent pretenses, promises or material omissions in violation of Ariz. Rev. Stat. § 13-2310, a class 2 felony. (Doc. 18-1 at 96; Doc. 18-5 at 45). As recounted by the Arizona Court of Appeals, the Yavapai County Attorney's Office learned during Petitioner's first trial “that the victim's life insurance proceeds had been used to pay [Petitioner's] attorneys, even though the insurance company had distributed the policy proceeds to the victim's trust on the condition that [Petitioner] disclaim any interest in them, and in violation of the terms of the trust.” (Doc. 1-1 at 10, ¶ 16).
In Ground Two of the Petition, Petitioner alleges that he “was denied his right to a fair trial under the Sixth and Fourteenth Amendments to the U.S. Constitution when the trial court precluded the proffered testimony” of Tom Murphy, who Petitioner sought to call at trial as an expert witness on trusts and estates. (Doc. 1 at 22).
1. Legal Standards Pertaining to Ground Two
“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.'” LaJoie v. Thompson, 217 F.3d 663, 668 (9th Cir. 2000) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). “The defendant's right to present evidence, however, is not absolute.” Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir. 1983).
In Moses v. Payne, 555 F.3d 742 (9th Cir. 2009), the Ninth Circuit addressed whether a state trial court's exercise of discretion to exclude expert testimony warrants relief on federal habeas review for violation of the petitioner's right to present a complete defense. In concluding that it does not, the Ninth Circuit observed that Supreme Court precedent finding violations of a defendant's right to present a complete defense involved state evidentiary rules that, “by their terms, required the trial court to exclude crucial evidence that had a critical effect on the trial, with little or no rational justification.” Id. at 758.
The Moses court acknowledged that Ninth Circuit precedent had established “a balancing test to determine when a trial court's exercise of discretion to exclude evidence under an otherwise valid evidentiary rule might violate a defendant's rights.” Moses, 555 F.3d at 759 (citing Perry v. Rushen, 713 F.2d 1447 (9th Cir. 1983) and Miller v. Stagner, 757 F.2d 988 (9th Cir. 1985), amended on other grounds, 768 F.2d 1090 (9th Cir. 1985)). However, it concluded that because the Ninth Circuit's balancing test is “a creation of circuit law, rather than a Supreme Court holding,” it is not applicable on habeas review. Moses, 555 F.3d at 759.
The Ninth Circuit reaffirmed its holding in Moses in Brown v. Horell, 644 F.3d 969 (9th Cir. 2011). The petitioner in Brown argued that the trial court violated his right to present a complete defense by excluding expert testimony under State of California rules of evidence. Id. at 983. The Ninth Circuit noted that “the Supreme Court has not decided any case either ‘squarely address[ing]' the discretionary exclusion of evidence and the right to present a complete defense or ‘establishing] a controlling legal standard' for evaluating such exclusions,” and consequently the petitioner could not “show that the state appellate court's ruling was either contrary to or an unreasonable application of clearly established Supreme Court precedent.” Id. (quoting Moses, 555 F.3d at 758-59); see also Smith v. Small, 697 Fed. App'x 538, 539 (9th Cir. 2017) (state appellate court ruling that affirmed trial court's exclusion of three proposed defense witnesses was not contrary to clearly established federal law because the Supreme Court has not squarely addressed the constitutionality of the discretionary exclusion of evidence).
2. State Courts' Rejection of Ground Two
Excerpts from the victim's trust are as follows:
My trustee shall hold the trust estate as a single trust until my oldest child has attained the age of 25 years or sooner died.
While held as a single trust, trustee shall distribute, from time to time, so much of the net income and principal of the trust to or for the benefit of my children as trustees, in their discretion, shall determine is necessary or appropriate for the health, maintenance, support, and education, including college and other post-secondary school training and graduate school or professional school education of my children.(Doc. 18-7 at 261-62, 787-88). Petitioner sought to call Tom Murphy as a defense expert witness to testify at trial concerning the discretion of the trustee. (Doc. 18-7 at 741-42). Trial counsel told the trial court that Mr. Murphy “would be more as a factual witness” and as an offer of proof, explained that
we'd ask him questions about his background education, what he does, and then I will talk to him about Exhibit 1 and the portion of the trust that talks about the health, maintenance, support, and education, asking him factually where does that come from, basically the IRS code, why it's in there, what he advises his clients when he drafts trusts and puts that in there.(Id. at 752). Trial counsel further explained that “[w]e do not intend to ask him if he believes the fiduciary duty -- or the trustee abused discretion in this particular case.” (Id.). After the trial court commented that “[a]ll of what [Mr. Murphy] would say can be covered in an appropriate jury instruction,” trial counsel stated “we think it's important that jurors understand that this is standard language in a trust from somebody who drafts trusts and litigates trusts.” (Id. at 753). The trial court asked: “But so what? So it's standard language. How does that bear on the jury's decision making in determining whether the two distributions were for the health, whatever, it is, and benefit of the two beneficiaries?” (Id. at 753-54). Trial counsel responded that Mr. Murphy also will testify that he advises his clients when drafting trusts that it “is a very wide-open standard” that “allows great discretion to the trustee.” (Id. at 754). The trial court stated “Well, that's a legal conclusion that I wouldn't let him testify about.” (Id.). The trial court precluded Mr. Murphy's testimony after concluding that the testimony would “invade[] the province of the Court to determine what law to give to the jury.” (Id. at 757). The trial court explained that
in thinking about whether this was a pure question of law or question of fact for the jury to decide, I came down on a kind of a mixed side. In that I think I needed to tell them basic trust law, but then because whether the trustee abused her discretion in making the distributions, because that goes to the heart of the elements of the fraud schemes, count 3, I think the jury needs to decide that.(Id. at 756). In his direct appeal, Petitioner cited the Sixth Amendment and argued: “In this case the trial court's arbitrary and inaccurate application of Rules 702 and 704, Arizona Rules of Evidence, deprived Appellant of his right to present a complete defense to Count 3 which can only be remedied by a new trial.” (Doc. 18-5 at 164). The Arizona Court of Appeals was not persuaded, explaining:
P57 The court did not abuse its discretion by precluding the proposed testimony. As noted previously, an expert may testify in the form of an opinion or otherwise in pertinent part if the expert's “specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Ariz. R. Evid. 702(a). But an expert is not permitted to testify to legal conclusions. See Webb v. Omni Block, Inc., 216 Ariz. 349, 35455, ¶¶ 17- 20, 166 P.3d 140 (App. 2007) (holding that an expert's opinion apportioning percentages of fault to the parties and non-parties “constituted inadmissible legal conclusions under Rule 704 because he thereby told the jury how to decide the case.”). Here, the proposed testimony would have been a legal conclusion that the trust clause “allows great discretion to the trustee.” See Webb, 216 Ariz. at 354, ¶¶ 17-20 (App. 2007). Thus, the testimony would have been improper. Nor did the
court abuse its discretion by precluding the expert from testifying about what the clause “means,” which was a mixed question of fact and law on which the expert's opinion was superfluous.(Doc. 1 -1 at 18). Petitioner does not present a challenge under § 2254(d)(1) and contend that the state courts' rejection of Ground Two is contrary to, or an unreasonable application, of Supreme Court precedent. Instead, Petitioner presents a challenge under § 2254(d)(2), asserting that the state courts' rejection of Ground Two is based on an unreasonable determination of the facts. (Doc. 1 at 22-26).
3. Petitioner's § 2254(d)(2) Challenge to the State Courts' Determination of Facts in Resolving Ground Two
Petitioner asserts that the “trial judge's decision was based on the erroneous belief that Murphy's testimony concerned the ultimate issue of fact of the case, and so it must be precluded. Mr. Murphy was not testifying to the ultimate issue in the case.” (Doc. 1 at 25). Petitioner further states that the “ultimate issues on Count 3 were whether the trustee abused her discretion by disbursing the money for the payment of Mr. DeMocker's legal fees and whether Mr. DeMocker intended to defraud the trust by requesting the funds. The expert's proffered testimony concerned neither of these issues.” (Id.). Petitioner argues that the “trial court's preclusion of Mr. DeMocker's expert witness violated Mr. DeMocker's right to due process and a fair trial. The state appellate court's contrary finding is based on an unreasonable determination of the facts.” (Doc. 22 at 12).
Petitioner asserts that “the state courts' core failing” is “treating the issue at trial, to which the excluded testimony was addressed, as a purely legal question, when even the appeals court admitted that the meaning of the clause in the trust ‘was a mixed question of fact and law,' [ ] the factual issue being whether the trustee abused her discretion.” (Doc. 22 at 11). Petitioner contends that “[t]o exclude the testimony because the question was purely legal when the state court itself recognized the question was actually mixed is quintessentially unreasonable.” (Id.).
Petitioner's argument mischaracterizes the Arizona Court of Appeals' decision. As discussed, trial counsel told the trial court that Mr. Murphy will testify that he advises his clients that the standard language he includes when drafting trusts “allows great discretion to the trustee.” (Doc. 18-7 at 754) (emphasis added). The trial court and the Arizona Court of Appeals reasonably determined that such testimony is a legal conclusion. (Doc. 1-1 at 18) (stating that “the proposed testimony would have been a legal conclusion that the trust clause ‘allows great discretion to the trustee'”).
The trial court and Arizona Court of Appeals both found that testimony concerning the “meaning” of the standard language is a mixed question of fact and law on which Mr. Murphy's expert opinion was superfluous. (Doc. 1-1 at 18; Doc. 18-7 at 756). As the Arizona Court of Appeals noted, the trial court instructed the “jury with detailed instructions on the law governing trusts, as relevant to the fraudulent schemes charge.” (Doc. 1-1 at 18; Doc. 18-7 at 786-87).
Although Petitioner disagrees with the state courts' conclusion that Mr. Murphy's proffered testimony would be superfluous to the jury instructions, Petitioner has not persuasively argued that the state courts' conclusion is objectively unreasonable. To reiterate, a “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood, 558 U.S. at 301. To find that a factual determination is unreasonable under § 2254(d)(2), the Court must be “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), overruled on other grounds by Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014).
After reviewing the parties' briefing and the submitted record, the undersigned finds that the Arizona Court of Appeals reasonably found that the portion of Mr. Murphy's proffered testimony that was a mixed question of law and fact was superfluous to the jury instructions. The Arizona Court of Appeals' decision denying Ground Two is (i) not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court or (ii) based on an unreasonable determination of the facts. The undersigned finds that 28 U.S.C. § 2254(d) bars relief as to Ground Two. It is recommended that the Court deny Ground Two.
E. Ground Three: Alleged Due Process Violation Based on Trial Court's Denial of Petitioner's Motion to Sever Counts
In Ground Three, Petitioner asserts that his due process rights were violated when the trial court denied his motion to sever the counts charging murder and burglary from the remaining counts. (Doc. 1 at 26-28).
In support of Ground Three, Petitioner references Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998). (Doc. 1 at 28). In that case, the Ninth Circuit held that the joinder of two indictments deprived a habeas petitioner of a fair trial. It is noted that Bean was filed before AEDPA was enacted. Bean, 163 F.3d at 1077 (“Because Bean filed his habeas petition before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA'), the provisions of the AEDPA do not apply to this case.”). Thus, unlike Petitioner, the petitioner in Bean was not required to show that the state court's adjudication of the claim was contrary to or involved an unreasonable application of Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).
Moreover, the Supreme Court has “repeatedly pointed out [that] circuit precedent does not constitute clearly established Federal law, as determined by the Supreme Court. . . . Nor, of course, do state-court decisions, treatises, or law review articles.” Kernan v. Cuero, 138 S.Ct. 4, 9 (2017) (internal quotation marks and citation omitted). In addition, the Supreme Court has “emphasized, time and again, that [AEDPA] prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is ‘clearly established.'” Lopez v. Smith, 574 U.S. 1, 2 (2014). Further, circuit precedent “cannot ‘refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the] Court has not announced.'” Id. at 7 (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013); see also Glebe v. Frost, 574 U.S. 21, 24 (2014) (reversing Ninth Circuit's granting of habeas relief based on Ninth Circuit's reliance on its own decisions; noting that the Ninth Circuit “tried to get past [the rule that circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court'] by claiming that circuit precedent could ‘help . . . determine what law is ‘clearly established'” and explaining that the cases relied on did not arise under AEDPA, “so neither purports to reflect the law clearly established by [the Supreme] Court's holdings” and the “Ninth Circuit thus had no justification for relying on those decisions”).
In his Reply, Petitioner states that “Bean was simply an application of United States v. Lane, 474 U.S. 438 (1986), which is clearly established federal law as determined by the Supreme Court of the United States.” (Doc. 22 at 13).
In Lane, 474 U.S. at 446 n.8, the Supreme Court stated in a footnote that misjoinder of counts may rise to the level of a constitutional violation “if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial[.]” However, the Ninth Circuit has explained that this statement “is dicta and does not ‘establish a constitutional standard binding on the states.'” Walden v. Shinn, 990 F.3d 1183, 1196 (9th Cir. 2021) (quoting Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010)). Lane concerned only joinder under the Federal Rules of Criminal Procedure and did not present a constitutional issue. To reiterate, dicta in Supreme Court precedent does not constitute “clearly established” law under Section 2254(d)(1). Williams v. Taylor, 529 U.S. 362, 365 (2000) (explaining that “the phrase ‘clearly established Federal law, as determined by [the Supreme Court]' refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision”). Consequently, Lane did not set forth a governing legal principle, and thus, does not constitute clearly established federal law, regarding when, if ever, severance is constitutionally mandated. Collins, 603 F.3d at 1132; see also Runningeagle v. Ryan, 686 F.3d 758, 776-77 (9th Cir. 2012).
“[T]here is no clearly established federal law requiring severance of criminal trials in state court[.]” Runningeagle, 686 F.3d at 774; Grajeda v. Scribner, 541 Fed.Appx. 776, 778 (9th Cir. 2013) (“The Supreme Court has not held that a state or federal trial court's denial of a motion to sever can, in itself, violate the Constitution.”); Martinez v. Yates, 585 Fed.Appx. 460, 460 (9th Cir. 2014) (“There is no clearly established Supreme Court precedent dictating when a trial in state court must be severed.”); Hollie v. Hedgpeth, 456 Fed.Appx. 685, at *1 (9th Cir. 2011) (“The Supreme Court has never held that a trial court's failure to provide separate trials on different charges implicates a defendant's right to due process.”).
“If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law.” Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004); see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (holding “it is not ‘an unreasonable application of ‘clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court”).
“If, as here, the state court's decision was not contrary to or an unreasonable application of existing Supreme Court precedent, then [the Court] need not independently reach the question of whether the state court's decision was legally erroneous.” Brewer, 378 F.3d at 955. In the context of AEDPA review, a federal court's “own independent consideration of the constitutional issue is neither relevant, nor necessary to dispose of the question presented.” Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).
Because there is no Supreme Court precedent that creates clearly established federal law regarding the improper joinder claim presented in Ground Three, Petitioner's § 2254(d)(1) challenge to the Arizona Court of Appeals' decision fails. See Martinez v. Ryan, No. CV-12-00254-TUC-JGZ, 2014 WL 1713559, at *12 (D. Ariz. Apr. 30, 2014) (“The Supreme Court has never held that a trial court's failure to provide separate trials on different charges implicates a defendant's right to due process.”); Spells v. Allison, No. 2:20-CV-10248-AB-JDE, 2022 WL 17824521, at *10 (C.D. Cal. July 8, 2022) (“As the Ninth Circuit has recognized, there is no clearly established Supreme Court authority mandating severance of joined charges.”). Further, after reviewing the parties' briefing and the submitted record, the undersigned finds that Petitioner has not shown that the state courts' denial of Ground Three was based on an unreasonable determination of the facts.
For the foregoing reasons, the undersigned finds that 28 U.S.C. § 2254(d) bars relief as to Ground Three. It is recommended that the Court deny Ground Three.
F. Ground Four: Sufficiency-of-the-Evidence Claim as to Petitioner's Burglary and Murder Convictions
In Ground Four, Petitioner asserts that his murder and burglary convictions are based on insufficient evidence.(Doc. 1 at 28-31). The Arizona Court of Appeals rejected Petitioner's claim presented in Ground Four. (Doc. 1-1 at 20).
Petitioner is not challenging his remaining convictions based on the alleged insufficiency of the evidence.
1. Legal Standards Pertaining to Ground Four
Sufficiency-of-the-evidence claims on federal habeas review are evaluated under the standard set forth in 28 U.S.C. § 2254(d)(1). Polina v. Montgomery, 833 Fed.Appx. 51, 55 (9th Cir. 2020) (“[A] state court's resolution of an insufficiency of the evidence claim is evaluated under 28 U.S.C. § 2254(d)(1), not § 2254(d)(2)) (citing Emery v. Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011)). 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 United States 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. If the record supports conflicting inferences, a federal habeas court “must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326.
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 of judicial deference.”).
Again, 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.”).
2. Arizona Court of Appeals' Denial of Ground Four
The following are excerpts of the Arizona Court of Appeals' decision rejecting Petitioner's sufficiency-of-the-evidence claim in Ground Four:
P63 “A conviction may be sustained on circumstantial evidence alone,” State v. Green, 111 Ariz. 444, 446, 532 P.2d 506 (1975), and the substantial circumstantial evidence detailed above supported the convictions. In the month before the murder, DeMocker performed computer searches inquiring about staged suicides and collecting life insurance proceeds after a homicide. He spent considerably more money than he earned, and he repeatedly argued with the victim over money,
including the $6,000 in monthly spousal maintenance he had failed to pay the day before the murder. And he maintained a $750,000 life insurance policy on the victim, listing himself as the primary beneficiary.
P64 On the evening of the murder, DeMocker was on a solitary bike ride (and uncharacteristically not reachable by phone) for more than four hours. Bike-tire tracks and shoe prints made that evening linked him to the crime scene, and the cause of the victim's death was consistent with being struck by an item (golf club) DeMocker had purchased but that had disappeared. And there was evidence that after the crime, DeMocker made elaborate plans to flee. Accordingly, there was substantial evidence from which a jury could convict DeMocker of murder and burglary.(Doc. 1-1 at 20). The Arizona Court of Appeals correctly recounted the States's evidence presented at trial. Portions of the State's evidence presented at trial are discussed below. As detailed in Respondents' Answer (Doc. 18), the State presented other evidence in support of its case.
a. Search of Petitioner's Laptop
At trial, the State introduced testimony from a detective that an “Anonymizer” program was installed on Petitioner's laptop. (Doc. 18-6 at 288). An “Anonymizer” program (i) changes a computer's IP address to make it look like the searches were being performed in a different location; (ii) deletes temporary files, internet browsing history, and website cache and cookie; and (iii) permanently deletes selected files. (Id. at 288-91). The testifying detective explained that despite the “Anonymizer” program, portions of the internet search history were able to be recovered. On June 1, 2008, the following searches were performed on the laptop: (i) “Payment of Life Insurance Benefits in the Case of a Homicide”; (ii) “Tips From a Hitman on How to Kill Someone”; (iii) “How to Stage a Suicide”; (iv) “How to Kill and Make it Look Like Suicide”; and (v) “How to Make a Homicide Appear Suicide.” (Id. at 300). The detective explained that one of the search results for “How to Make a Homicide Appear Suicide” was performed at books.google.com and that one of the links clicked on was for a book titled “Practical Homicide Investigation.” (Id. at 300-01). The investigation revealed that the user previewed a page of from that book and downloaded an image from the book that depicted a staged crime scene. (Id. at 302).
b. Petitioner's Finances
The State called forensic accountant Peter Davis at trial. (Doc. 18-7 at 55-182). Mr. Davis testified that he examined “thousands of pages of financial records involving” Petitioner and was able to derive Petitioner's income and expenditures from approximately September 1, 2004 through July 2, 2008. (Id. at 61-62). Mr. Davis reported that Petitioner overspent approximately $600,000 to $700,000 during this time period. (Id. at 77). Mr. Davis stated that “[t]his level of spending is not sustainable.” (Id.). Mr. Davis explained that Petitioner was achieving the overspending by taking out of lines of credit on his homes, maxing out credit cards, borrowing money from his parents and daughters, taking loans from his 401(k) plan, liquidating an IRA, and “essentially [grabbing] money wherever he could.” (Id. at 78).
The trial court admitted into evidence a text message sent from Petitioner's phone to the victim's phone on November 19, 2007 that stated:
I'm overwhelmed by the 500,000 of debt I'm left with and the fact that I don't have a job that pays me enough to live on, much less pay off that debt. And you don't think it's reasonable to help me for even as many years as you were having affairs and lying to me about it. I need to stop trying to do this with you, it does harm to me and you.(Doc. 18-6 at 279-80). The trial court also admitted into evidence Petitioner's Affidavit of Financial Information from the divorce proceeding, which indicated that Petitioner's monthly expenses totaled $30,000 and his average net income was $12,860. (Doc. 18-7 at 105). Petitioner was obligated to pay the victim $6,000 a monthly in spousal maintenance beginning in June 2008. (Doc. 18-7 at 71, 87). Mr. Davis concluded that on the day of the victim's death (July 2, 2008), Petitioner had “liabilities exceeding his assets by $396,000[.]” (Id. at 89-90).
Mr. Davis recounted that Petitioner was the primary beneficiary of $750,000 in a life insurance policy on the victim. (Id. at 90). As a result of the victim's death, Petitioner was relieved of paying a total of $570,000 in spousal maintenance payments. (Id. at 91). Mr. Davis testified that “as a result of the death or murder of Ms. Kennedy,” the total improvement in Petitioner's financial position is $881,000. That is, Petitioner went from being “almost $400,000 in the hole” to having monetary assets totaling “almost $485,000.” (Id. at 90).
c. Petitioner's Purported Bike Ride the Night of the Murder
Jacob Janusek, the boyfriend of Petitioner's daughter, Charlotte, testified at trial. (Doc. 18-6 at 215-78). Jacob testified that on July 1, 2008, he moved into Petitioner's condominium, which is where Charlotte also resided. (Id. at 216). Jacob testified that on July 2, 2008, the day of the victim's death, Petitioner came home from work at approximately 4:30-5:00 p.m., stated that he was going to go on a long bike ride, then left the condominium between 5:00-5:30 p.m. (Id. at 218-19). Jacob stated that he did not see Petitioner again that day until approximately 11:00 p.m. (Id. at 219). Jacob explained that Charlotte called Petitioner at approximately 9:30-9:45 p.m. but was unable to reach him. (Id. at 222).
Jacob testified that he and Charlotte then left to go to Safeway and Jacob thought he saw Petitioner's vehicle, a silver four-door BMW, on the way. (Id. at 224-25). While at Safeway, Charlotte received a call from Petitioner who “told Charlotte that he was going to go do a quick workout at the fitness center and asked us what we were doing. And I believe when we told him that when we were getting stuff for dinner, that he was just going to come home and have dinner with us.” (Id. at 226). Jacob testified that Petitioner's BMW was in the garage when he and Charlotte returned from Safeway. (Id. at 230). Jacob noticed that the BMW's temporary lights were still on, which typically stay on approximately 30 seconds after the ignition is turned off. (Id. at 231-32).
Jacob explained that when he and Charlotte entered the condominium, they did not see Petitioner but heard the shower running in Petitioner's room. (Id. at 232). Petitioner later came into the kitchen where Charlotte was making dinner wearing a towel and it appeared that he just got out of the shower. (Id. at 235). Jacob saw fresh scratches on Petitioner's leg and arm and commented to Petitioner that “they looked pretty bad.” (Id. at 236). An investigator also testified that he observed scratches on Petitioner's left arm and left leg. (Doc. 18-7 at 462).
Testimony was introduced that Petitioner stated that he does not “usually mountain bike” and is “just getting back into it.” (Doc. 18-7 at 535).
In addition, multiple witnesses testified that it was unusual for Petitioner to be unreachable for long time periods. (Doc. 18-6 at 267; Doc. 18-7 at 317, 373, 381). For instance, one witness testified:
[Petitioner] never left his cell phone. His cell phone was always with him. It was always on. He took it everywhere with him. I don't recall a time ever in the years that I was with him, the many years, that the phone was ever left unattended or away from him. I remember once watching him take it into a shower.(Doc. 18-7 at 374). A detective testified at trial that Petitioner's cell phone records indicated that Petitioner's cell phone was powered off from 5:36 p.m. to 10:05 p.m. on July 2, 2008. (Id. at 188-89).
d. Discovery of Shoeprints and Bike Tracks
During trial, an investigator testified that it was understood that on the afternoon or evening of July 2, 2008 (the day of the murder), the victim had been running on a trail located in the area behind her house. (Doc. 18-6 at 520). Investigators found a set of shoeprints that originated from the victim's house and continued on the trail; the tread pattern had a similar tread pattern to the shoes the victim had been wearing when she died. (Id. at 547-48). Investigators also found a second set of shoeprints that were larger in size, which started from the trail and traveled towards and returned from the victim's house. (Id. at 540, 583, 597-99, 601).
A forensic examiner with the Federal Bureau of Investigation identified three shoe models that had the same tread pattern as the second set of shoeprints. (Id. at 629, 641). One of the identified shoe models (La Sportiva Pikes Peak) was purchased by Petitioner in April 2006, which were not found during the investigation. (Id. at 613, 644-45).
Investigators also found bike tracks that traveled parallel to the second set of shoeprints and ended in a “thick brush” located approximately 105 yards away from the trailhead. (Id. at 584, 603).
e. The Victim's Injuries and Petitioner's Missing Golf Club
The medical examiner who autopsied the victim's body, Dr. Philip Keen, testified that the cause of death was “multiple blunt-force craniocerebral injuries” and that the victim “had ten separate injuries that are the blunt force with laceration and contusions of the scalp and skull.” (Doc. 18-6 at 658, 662). The State asked Dr. Keen “When you noted these injuries did any possible weapon or instrument come to mind that could have caused these injuries?” (Id. at 675-76). Dr. Keen responded that when looking at an injury on the victim's arm, “the first object that came to my mind when looking at that was the head of a golf club.” (Id. at 676). When asked if he had any opinion “whether a golf club would have caused any of the injuries to the head that [he talked] about,” Dr. Keen replied:
Yes, they could. And the one that is most likely only a golf club could do it is this one because of the curvature of it. This is -- this is an area which subsequent investigation will show that actually if you apply a golf club head to the contour of the fracture it's a pretty good fit.(Id.). The State introduced testimony from two additional expert witnesses who opined that a golf club could have caused the victim's injuries. (Id. at 403-04, 794).
During a search of Petitioner's condominium, investigators observed a set of golf clubs in Petitioner's garage. (Id. at 763). All of the golf clubs had head covers on them. There was one empty golf club head cover. (Id. at 763, 849). It was stipulated at the trial that on July 5, 2008, former trial counsel “took possession of a Callaway golf club head cover” from Petitioner. (Id. at 578). Former trial counsel “inspected the cover and, finding no apparent biological evidence on it, placed it in a sealed envelope and kept it in his locked office for safekeeping until October 23rd, 2008, when [former counsel] turned the head cover over to law enforcement at their request.” (Id.).
An investigator testified that the seized golf club head cover belonged to a “Big Bertha Steelhead III, No. 7 Callaway” golf club. (Id. at 571). A witness testified that in September 2003, he facilitated the sale of a lefthanded “Callaway 7 wood” with a matching golf club head cover to Petitioner. (Id. at 833-37). Investigators never located the golf club. (Id. at 564).
A detective acquired a left-handed Callaway 7 wood golf club that matched the seized golf club head cover and gave it Dr. Keen for comparison to the injuries on the victim's skull. (Id. at 652-53, 720). Dr. Keen opined that “fracture patterns on the thick part of the [victim's] skull . . . could be matched up with the head of the club. Doesn't mean that the club did it. It just says it could be matched up with it.” (Id. at 722).
3. § 2254(d) Bars Relief as to Ground Four
Jackson “makes clear that it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011). No “particular form of evidence is required to support the Court of Appeal's reasoning or the jury's verdict.” Lucero v. Holland, 902 F.3d 979, 992 n.8 (9th Cir. 2018). “Circumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction.” Ngo v. Giurbino, 651 F.3d 1112, 1114 (9th Cir. 2011) (quoting Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995)).
A federal court's “job under AEDPA is to avoid a ‘type of fine-grained factual parsing' that does not accord deference to either jurors or state courts, and instead to survey any possible fact in the record that could support, directly or circumstantially, the jury's conviction.” Lucero, 902 F.3d at 992 n.8 (citation omitted; emphasis in original). “[A] federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable. '” Cavazos, 565 U.S. at 2. “Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.” Id.
After reviewing the parties' briefing and the submitted record, the undersigned finds that the Arizona Court of Appeals' decision was not contrary to or reflected an unreasonable application of Jackson to the facts of this case. The undersigned finds that § 2254(d) bars habeas relief. It is recommended that the Court deny Ground Four.
G. Ground Five: Alleged Ineffective Assistance of Trial Counsel
Ground Five presents six claims of ineffective assistance of counsel, which are enumerated below as Grounds 5(a)-(f). (Doc. 1 at 32-78).
The “clearly established federal law” for an ineffective assistance of counsel claim is the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner arguing an ineffective assistance of counsel claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the petitioner. Strickland, 466 U.S. at 687. This is a deferential standard, and “[s]urmounting Strickland's high bar is never an easy task.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
In assessing the performance factor of Strickland's two-part test, judicial review “must be highly deferential” and the court must try not “to second-guess counsel's assistance after conviction.” Clark, 769 F.3d at 725 (internal quotation marks and citation omitted). To be constitutionally deficient, counsel's representation must fall below an objective standard of reasonableness such that it was outside the range of competence demanded of attorneys in criminal cases. Id. A reviewing court considers “whether there is any reasonable argument” that counsel was effective. Rogovich v. Ryan, 694 F.3d 1094, 1105 (9th Cir. 2012).
To establish the prejudice factor of Strickland's two-part test, a petitioner must demonstrate a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In other words, it must be shown that the “likelihood of a different result [is] substantial, not just conceivable.” Richter, 562 U.S. at 112.
Although the performance factor is listed first in Strickland's two-part test, a court may consider the prejudice factor first. In addition, a court need not consider both factors if the court determines that a petitioner has failed to meet one factor. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the habeas petitioner cannot establish one or the other).
In the habeas context, the issue is whether there is a “reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the [ineffective assistance of counsel] claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 882 F.3d 778, 825 (9th Cir. 2018) (internal quotation marks and citation omitted). Hence, a review of Strickland claims under AEDPA is “doubly deferential.” Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (“We take a ‘highly deferential' look at counsel's performance [pursuant to Strickland, 466 U.S. at 689], through the ‘deferential lens of § 2254(d)'. . . .).
1. Ground 5(a): Alleged Ineffective Assistance of Counsel with Respect to the State's Presentation of Evidence that Petitioner's Blood was Found on the Tire Pump Attached to Petitioner's Bicycle that was Seized at Petitioner's Residence
Investigators seized Petitioner's bicycle that was found during a search of Petitioner's residence. Attached to the bicycle was an air tire pump. Petitioner's blood was subsequently identified on the tire pump. The State introduced that evidence at Petitioner's trial. In Ground 5(a), Petitioner asserts that his trial counsel was constitutionally ineffective for failing to seek exclusion of such evidence and for failing to “correct the record” so that the jury understood that none of Petitioner's blood was found at the crime scene. (Doc. 1 at 32). Petitioner fairly presented Ground 5(a) to the state courts in his PCR proceeding. (Doc. 18-5 at 196-201; Doc. 18-6 at 13-14).
a. Background Regarding Ground 5(a)
On August 13, 2013, the State called Bill Hobbs as a witness. (Doc. 18-6 at 842). Mr. Hobbs explained that he was a detective involved in the investigation of the victim's homicide, which included assisting in a search of Petitioner's residence on July 3, 2008. (Id. at 843, 844). Mr. Hobbs testified that one of the items seized from Petitioner's residence was a mountain bike. (Id. at 845). Mr. Hobbs testified that it was located “in the north side of the garage area” of Petitioner's residence and found “with a flat rear tire and the front tire off.” (Id.).
Another officer testified that he instructed a deputy with the Yavapai County Sheriff's Office to transport Petitioner's seized bicycle to the crime scene (the victim's residence). (Id. at 649).
Kortney Snider, who is employed by the Arizona Department of Public Safety in their Northern Regional Crime Lab in Flagstaff, testified that she was contacted on July 3, 2008 to assist in the investigation of a suspicious death occurring on July 2, 2008. (Id. at 817, 819). During direct examination, the State asked Ms. Snider “Now, you also examined a bicycle at the scene [later during the day]?” (Id. at 823). Ms. Snider responded that she “was getting ready to leave the scene for that day” and an evidence technician “had a bicycle and he talked to me about it.” (Id. at 824). Ms. Snider explained that she told the technician “well, rather than submitting the entire bicycle to the laboratory, while I'm here, let's pull it out and I can look at it.” (Id.). Ms. Snider continued:
So we pulled out the bicycle; I looked at the pedals and the handlebars, where somebody would touch to have to use the bicycle, for blood and did not see anything. However, there was an air tire pump attached to the bicycle frame that when I looked at it had a very, very small reddish-brown stain on it. It was so small that I did not want to collect it at the scene, because I felt that it could be an important piece of the case. And so I circled it, so it would be easier for me to find, and asked for it to be resubmitted to the laboratory, so I could have better photo documentation of that blood stain.(Id.).
In Ground 5(a) of the Petition, Petitioner asserts that the “testimony that Mr. DeMocker's blood and DNA was found on his own bike pump was misleading, inflammatory, and highly prejudicial in the way it was presented by the Prosecution.” (Doc. 1 at 32). Petitioner contends that the “prosecution misleadingly used the bike pump to suggest that Mr. DeMocker's DNA was found at the crime scene.” (Id. at 33). Ground 5(a) asserts that Petitioner's trial counsel “performed deficiently during Mr. DeMocker's trial by failing to move to exclude testimony that Mr. DeMocker's blood and DNA was found on his bike pump.” (Doc. 1 at 32). Petitioner further contends that competent counsel would have “clarified that the blood and bike pump were not originally collected from the crime scene” and “objected to the prosecution's misleading argument.” (Id.). Respondents do not dispute that Petitioner exhausted Ground 5(a) in his state court PCR proceeding. (Doc. 18-5 at 196-201; Doc. 18-6 at 13-14).
b. Analysis of the State Courts' Rejection of Ground 5(a)
In rejecting Petitioner's claim presented in Ground 5(a), the trial court stated:
This Court also disagrees with Petitioner's premise in that there was never any suggestion that the bicycle and pump were collected at the scene of the murder. It was quite clear to this Court and, presumably to the jury, that the bicycle, with the pump attached to it, was seized by the police at Petitioner's home and brought back to the victim's house where it was inspected by Ms. Snider. The State never challenged Petitioner's assertion that no forensic evidence attributable to Petitioner was found at the scene of the murder.
To support this claim, Petitioner has attached three pretrial interviews of Kortney Snider (see PCR Exs. 1, 2, 3) and a brief excerpt of Ms. Snider's trial testimony. See PCR, pp. 5 - 7. No portions of the pretrial interviews were read to the jury. The one trial excerpt certainly does not support the claim and is taken out of the context of Ms. Snider's entire trial testimony. Petitioner has not presented any portion of the trial transcript where Ms. Snider or anyone else claimed that the bicycle and pump were located at the victim's house when seized by the investigators.
At no time during the trial did this Court believe that there was a need for defense counsel to clarify where the bike and pump came from.(Doc. 1-1 at 50). The Arizona Court of Appeals affirmed the trial court's ruling.(Doc. 18-6 at 36-37).
“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Gill v. Ayers, 342 F.3d 911, 917 n. 5 (9th Cir. 2003) (federal courts “look through” unexplained rulings of higher state courts to the last reasoned decision).
Petitioner asserts that the trial court unreasonably determined the facts when it found that “[i]t was quite clear . . . that the bicycle, with the pump attached to it, was seized by the police at Petitioner's home and brought back to the victim's house where it was inspected by Ms. Snider.” (Doc. 1 at 39) (citing Doc. 1 at 50).
The undersigned agrees with Respondents that the state court record reasonably supports the trial court's factual findings when it rejected Ground 5(a). (Doc. 18 at 59). For instance, on cross-examination, trial counsel asked Ms. Snider to confirm that Petitioner's DNA was not found at the victim's residence (where the victim was killed):
Q. Okay. Okay. So I want to summarize. In your analysis, the only places that you found Mr. DeMocker's DNA was on his own fingernail. Right?
A. Yes.
Q. And on his own bike pump?
A. Yes.
Q. And nowhere in Carol Kennedy's house at all?
A. That's correct.
Q. And you didn't find any DNA of Carol Kennedy's on anything of Steve DeMocker's. Correct?
A. Correct. I did not.(Doc. 18-6 at 831). Further, in its opening statement, the prosecutor told the jury:
Back at the scene. All suspected blood that was collected at the scene is Carol's. The defendant's bike that he claimed to have been on a long bike ride on is also examined. There's one tiny bit of blood found on his tire pump. Matched the defendant at seven loci, which are locations, and you'll hear about this from the DNA analyst and inclusive at seven loci. No blood on the seat, no blood on the bag under the seat, no blood
on the handlebars or the pedals, and yet the defendant is bleeding from several cuts and scratches on his arms, on his leg, and on his side.(Doc. 18-6 at 192) (emphasis added). Implicit in the prosecutor's statement that “All suspected blood that was collected at the scene is Carol's” is that none of Petitioner's blood was found at the crime scene. The prosecutor's next statement, “The defendant's bike that he claimed to have been on a long bike ride on is also examined[,]” does not state or imply that the bicycle was recovered at the crime scene, even when read in context of the entire paragraph.
Unreasonable determinations of material facts can occur “where the state court[ ] plainly misapprehend[s] or misstate[s] the record in making [its] findings” or where the state court “has before it, yet apparently ignores, evidence that supports petitioner's claim.” Taylor, 366 F.3d at 1001. Petitioner has not shown that such a circumstance is present in this case.
As to Petitioner's contention that trial counsel should have moved to exclude the evidence of Petitioner's blood on the tire pump, Petitioner has not shown that the state courts' rejection of the claim was objectively unreasonable.The submitted record does not reveal a basis from which it may be reasonably concluded that the trial court would have granted such a motion to exclude. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (“To show prejudice under Strickland from failure to file a motion, [habeas petitioner] must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him.”) (citing Kimmelman v. Morrison, 477 U.S. 365, 373-74 (1986)); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (stating that “the failure to take a futile action can never be deficient performance”).
“Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. “This is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for § 2254(d) applies when a ‘claim,' not a component of one, has been adjudicated.” Id. “Under § 2254(d), a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court].” Id. at 101 (emphasis added).
After reviewing the parties' briefing and the submitted record, the undersigned finds that the state courts' denial of Ground 5(a) is not contrary to or an unreasonable application of Strickland. The undersigned further finds that Petitioner has failed to show that the state courts unreasonably determined the facts in denying the claim in Ground 5(a). The undersigned finds that 28 U.S.C. § 2254(d) bars relief as to Ground 5(a). It is recommended that the Court deny Ground 5(a).
2. Ground 5(b): Alleged Ineffective Assistance of Counsel Based on Trial Counsel's Failure to Move to Exclude all Testimony from Medical Examiner Dr. Phillip Keen
In Ground 5(b), Petitioner alleges that his trial counsel was ineffective for “failing to exclude all testimony from Medical Examiner, Dr. Phillip Keen because the evidence was highly unreliable and prejudicial.” (Doc. 1 at 40). Petitioner fairly presented Ground 5(b) in his PCR proceeding. (Doc. 18-5 at 226-31; Doc. 18-6 at 31-33).
a. Background Regarding Ground 5(b)
The State called Dr. Keen as a witness, who was the Yavapai County medical examiner at the time of the victim's death. (Doc. 18-6 at 659). Dr. Keen testified that he was (i) a chief medical examiner in Yavapai County for approximately twenty-nine years; (ii) an associate chief medical examiner in Maricopa County for six years; (iii) a chief medical examiner in Maricopa County for fourteen years; and (iv) the chief of hospital pathology at Yavapai Regional Medical Center for seventeen years. (Id. at 659). As mentioned, Dr. Keen performed an autopsy on the victim, as well as a skull reconstruction to test the theory that a golf club may have been the murder weapon. (Id. at 661, 720-22).
Petitioner asserts that the autopsy that Dr. Keen performed on the victim and accompanying skull reconstruction “departed from medical standard[s] in myriad ways” and resulted in “untrustworthy findings.” (Doc. 1 at 40). In Ground 5(b), Petitioner asserts that trial counsel should have moved to exclude Dr. Keen's testimony, and that “[h]ad they done so, the court would have excluded the testimony under the relevant evidence rules.” (Id. at 40-41).
b. State Courts' Rejection of Ground 5(b)
The trial court's ruling denying Ground 5(b) states as follows:
In this Court's opinion, a motion to exclude Dr. Philip Keen's testimony would not have been granted. Dr. Keen had the education and experience to testify as a forensic pathologist (medical examiner). His education and experience as of August 2010 are set out in PCR Exhibit 14 at pages 7 - 10 and in the transcript of his trial testimony at pages 8 - 10. [ ] Dr. Keen obtained his undergraduate degree in chemistry and his medical degree from the University of New Mexico. Dr. Keen then did a four-year residency in anatomic and clinical pathology at the University of New Mexico followed by a one-year fellowship in forensic pathology with the chief medical examiner for the State of Oklahoma. Dr. Keen is licensed to practice medicine in four states, New Mexico, Arizona, Oklahoma and Ohio. Dr. Keen has been board certified in anatomic, clinical and forensic pathology since 1975. He served as chief medical examiner in Yavapai County for twenty-nine years, chief medical examiner in Maricopa County for fourteen years, associate chief medical examiner in Maricopa County for six years and chief of pathology for Yavapai Regional Medical Center for seventeen years. Dr. Keen has testified numerous times as an expert witness in both state and federal courts.
While well-credentialed as a forensic pathologist, Petitioner asserts that Dr. Keen should have been precluded from offering expert testimony because he used an unreliable method to reach the opinion that the murder weapon could have been a golf club. But what was that method?
Dr. Keen conducted the autopsy on July 3, 2008 at 3:45 p.m., the day following the murder. See 8/8/2013 Trial Transcript, p. 10. He observed ten separate injuries to the victim's scalp and skull. Id., p. 12. He concluded that the cause of death was “multiple blunt-force craniocerebral injuries.” Id., pp. 11, 12. He found the manner of death to be a homicide. Id., p. 11. He described the nature of the ten injuries to the victim's head. Id., pp. 14 - 21. He found “rod- type injuries” to the victim's right arm and elbow area. Id., pp. 24 - 25. He thought those injuries were caused by a “rod-like or rounded-shaped
object.” Id. He also observed an “area of bruising of the back of the triceps just above the elbow.” Id., p. 26. Based on those observations, coupled with his education and extensive experience as a forensic pathologist, the “first object that came to [his] mind [as having caused the injuries] was the head of a golf club.” Id., p. 26.
So, Dr. Keen's method in forming his opinion that the murder weapon was a golf club was personal observation of the injuries and resulting damage to the victim's scalp, skull and arm which he then analyzed using his education and extensive experience as a forensic pathologist. The Court is at a loss why that method would be deemed so unreliable as to warrant Dr. Keen's disqualification as an expert witness. With that level of education and experience coupled with his personal observation of the victim's wounds, a motion to preclude Dr. Keen from testifying in the 2013 trial would have been denied. It was for the jury to decide what weight to give to his opinions. [ ]
....
After testifying that “you can't create a character like Dr. Keen” and describing the unusual things he did, including transporting the victim's body in the bed of his pickup truck from Prescott to the coroner in Phoenix, retrieving the body, then severing the head and returning it to the coroner in Phoenix, and failing to properly clean the autopsy table before performing the autopsy on the victim resulting in DNA from the body of the prior autopsy subject getting under the victim's fingernail thus giving rise to the whole Mr. 603 mystery, Mr. Williams said, “He was - like I said, I felt he was a gift. I had no intention of moving to preclude that guy because I thought it was more of an example of how the State hadn't done even a competent job of it.” See Williams depo., pp. 74 - 76.
Mr. Williams also felt he needed Dr. Keen to testify about his investigation into the death of Jim Knapp. In another bizarre twist in this case, Jim Knapp died as a result of a gunshot prior to trial. Dr. Keen opined that Mr. Knapp committed suicide, but staged the scene to make it appear he had been murdered. . . .
....
In addition, the defense had an expert to counter Dr. Keen's opinion that a golf club was the murder weapon. Terri Haddix, a forensic pathologist, testified that the murder weapon
was a collapsible baton or an asp.
In summary, the Court is of the opinion that a motion to preclude Dr. Keen would have failed; therefore, the Court finds that Mr. Williams' decision not to file such a motion had a reasonable basis. [ ] Also, the Court finds that it was reasonable for defense counsel to believe that Dr. Keen's testimony would buttress the defense argument that the investigation was sloppy as well as aid in the “James Knapp did it” defense. Therefore, the Court concludes that Petitioner's IAC claim # 6 is not colorable.(Doc. 1-1 at 69-73) (footnotes omitted; emphasis added). Petitioner asserts that the trial court's conclusion regarding the reliability of Dr. Keen's methodology is an unreasonable determination of the facts. (Doc. 1 at 47).
c. Analysis of the State Courts' Denial of Ground 5(b)
In their Answer, Respondents argue that Petitioner is “criticizing the PCR court for its application of the law, specifically Arizona Rule of Evidence 702.” (Doc. 18 at 65).
“[A]lthough the issue of ineffective assistance ... is one of constitutional dimension,” a court “must defer to the state's construction of its own law when the validity of the [ineffective-assistance] claim . . . turns on state law.” Pinkney v. Sec 'y, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017). Moreover, although the Supreme Court has held that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, “it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009); see also Walden v. Shinn, 990 F.3d 1183, 1204 (9th Cir. 2021) (habeas petitioner's argument challenging allegedly improper admission of numerous crime scene and autopsy photographs “is foreclosed by Holley v. Yarborough, in which we held that there was, at that time, no clearly established federal law providing that the ‘admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ'”) (citation omitted).
Here, the state courts' resolution of the ineffective assistance of counsel claim in Ground 5(b) is based on the premise that a motion to preclude Dr. Keen would be denied under Arizona evidentiary rules. The state courts' determination that a motion to preclude Dr. Keen would have been denied under Arizona law is binding on the District Court. See Horton v. Mayle, 408 F.3d 570, 576 (9th Cir. 2005) (“If a state law issue must be decided in order to decide a federal habeas claim, the state's construction of its own law is binding on the federal court.”) (citingMullaney v. Wilbur, 421 U.S. 684, 691 (1975)); see also Buot v. Shinn, No. CV-19-01723-PHX-DLR, 2020 WL 5913575, at *11 (D. Ariz. July 22, 2020) (“The Arizona Court of Appeals' interpretation of state law, with regard to the availability of a defense to a charge of second-degree murder, is binding on this Court.”); Herring v. Sec 'y. Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) (denying habeas petitioner's ineffective assistance of counsel claim where the state court “already has told us how the issues would have been resolved under Florida state law had [counsel] done what [petitioner] argues he should have done”).
In denying a habeas petitioner's claim based on a “state law error,” another court has noted that “one exception might lie where the state court's interpretation of state law is so strained that it is but an artifice to avoid the federal issue.” Gutierrez v. Barns, No. 2:12-CV-2421 GGH P, 2013 WL 2434836, at *5 (E.D. Cal. June 4, 2013) (citing Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989)). Here, the state courts' interpretation of state evidentiary rules is not strained to the point of artifice.
Accordingly, the state courts' conclusion that trial counsel was not ineffective for failing to bring a meritless motion to preclude Dr. Keen is not so lacking in justification that it was beyond possibility for fair-minded disagreement. Richter, 562 U.S. at 103 (obtaining habeas corpus relief requires “a state prisoner [to] show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement”). “Counsel's failure to make a futile motion does not constitute ineffective assistance of counsel.” James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994); see also Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (an omitted action must be shown to be meritorious to support an ineffective assistance of counsel claim); Rupe, 93 F.3d at 1445 (failure to take futile action can never be deficient performance).
After reviewing the parties' briefing and the submitted record, the undersigned finds that Petitioner has failed to show that the state courts' rejection of his ineffective assistance of counsel claim in Ground 5(b) is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. 28 U.S.C. § 2254 bars relief. It is thus recommended that the Court deny Ground 5(b).
3. Ground 5(c): Alleged Ineffective Assistance of Counsel Based on Trial Counsel's Failure to Move to Exclude all Testimony from the State's Financial Expert Witness, Peter Davis
Ground 5(c) asserts that Petitioner's trial counsel was constitutionally ineffective for failing to move to exclude the State's financial expert, Peter Davis. (Doc. 1 at 48). There is no dispute that Petitioner fairly presented the claim in his PCR proceeding. (Doc. 18-5 at 202-06; Doc. 18-6 at 14-19).
a. Analysis of the State Courts' Rejection of Ground 5(c)
The trial court's ruling denying Ground 5(c) states:
The Court is of the opinion that a motion to preclude Peter Davis would have been denied. Mr. Davis possessed the training and experience to testify as a forensic accountant. (Mr. Davis' education and experience are summarized in the State's response at page 18.) Mr. Williams felt that he did not have “a basis to move to preclude” Mr. Davis and, even if he did, what “he [Mr. Davis] had to say was so cockeyed, and I had such good evidence on the other side, that that's the strategy I used.” See Williams depo., p. 86. The jury was properly instructed that it could accept or reject, in whole or in part, Mr. Davis' opinions. The defense presented Gregg Curry and Petitioner's boss to counter Mr. Davis' opinions.
Petitioner claims that Mr. Davis departed from generally accepted accounting principles based on the opinion of Greg Curry, the defense's forensic accountant, that Mr. Davis had double counted certain of Petitioner's financial obligations. As noted in the Comment to Rule 702, “[t]he amendment is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise.” It was for the jury to decide whose financial analysis was correct. In other words, “it is the province of the jury to
determine the weight and credibility of the testimony.” See Comment to Rule 702. As also noted in the Comment to Rule 702, “[t]he trial court's gatekeeping function is not intended to replace the adversary system. Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
The Court concludes that the strategy as expressed and implemented by Mr. Williams was reasonable. Accordingly, the Court finds that Petitioner's IAC claim # 2 is not colorable.(Doc. 1-1 at 52-53) (emphasis added).
In Ground 5(c), Petitioner asserts that trial court's determination that a motion to preclude Mr. Davis would have been denied is “an unreasonable application of Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).” (Doc. 1 at 54).
“Daubert is an exegesis of Rule 702 of the Federal Rules of Evidence and governs the admission of expert evidence in federal trials only. Daubert does not bind the states, which are free to formulate their own rules of evidence subject only to the limits imposed by the Constitution.” Kinder v. Bowersox, 272 F.3d 532, 545 n.9 (8th Cir. 2001); see also Haywood v. Rackley, No. 2:14-CV-02178-JKS, 2016 WL 3448190, at *3 n.2 (E.D. Cal. June 23, 2016) (declining to consider “whether the evidence passed muster under Daubert' in a habeas action); Ruiz v. Lewis, No. SA CV 13-00347-ODW (AFM), 2017 WL 2273194, at *9 (C.D. Cal. May 1, 2017) (explaining that petitioner's claim that trial court failed to properly perform its gatekeeping function under Daubert is not cognizable on federal habeas review); Miftari v. Houser, No. 3:19-CV-00091-JKS, 2019 WL 4856001, at *7 (D. Alaska Oct. 1, 2019) (explaining that Daubert “provides no basis for federal habeas relief' because it “states a non-constitutional evidentiary rule that applies in the federal trial courts and is not binding on state courts”) (citing Dowling v. United States, 493 U.S. 342, 352-53 (1990) (noting that Federal Rules of Evidence constitute “nonconstitutional source[ ]”).
To reiterate from the preceding section, “although the issue of ineffective assistance . . . is one of constitutional dimension,” a court “must defer to the state's construction of its own law when the validity of the [ineffective-assistance] claim . . . turns on state law.” Pinkney, 876 F.3d at 1295.
The state courts' determination that a motion to preclude Mr. Davis would have been denied under Arizona law is binding on the District Court. See Horton, 408 F.3d at 576 Buot, 2020 WL 5913575, at *11; Herring, 397 F.3d at 1354-55.
As mentioned, although another court has noted that “one exception might lie where the state court's interpretation of state law is so strained that it is but an artifice to avoid the federal issue,” the state courts' interpretation of state evidentiary rules in this matter is not strained to the point of artifice. Gutierrez, 2013 WL 2434836, at *5.
The state courts' conclusion that trial counsel was not ineffective for failing to bring a meritless motion to preclude Mr. Davis is not so lacking in justification that it was beyond possibility for fair-minded disagreement. Richter, 562 U.S. at 103. Again, “[c]ounsel's failure to make a futile motion does not constitute ineffective assistance of counsel.” James, 24 F.3d at 27; see also Kimmelman, 477 U.S. at 375.
After reviewing the parties' briefing and the submitted record, the undersigned finds that Petitioner has failed to show that the state courts' rejection of his ineffective assistance of counsel claim in Ground 5(c) is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. 28 U.S.C. § 2254 bars relief. It is thus recommended that the Court deny Ground 5(c).
4. Ground 5(d): Alleged Ineffective Assistance of Counsel Based on Trial Counsel's Failure to Call a Cognitive Bias Expert at Trial
The ineffective assistance of counsel claim in Ground 5(d) concerns the failure of trial counsel to call a cognitive bias expert at Petitioner's trial. There is no dispute that Petitioner fairly presented the claim in his PCR proceeding. (Doc. 18-5 at 219-26; Doc. 186 at 25-31).
a. Background Regarding Ground 5(d)
During his closing argument, Petitioner's lead counsel, Craig Williams (“Attorney Williams”), asserted that investigators engaged in “conclusion-based” analysis. (Doc. 187 at 834). For instance, when discussing Mr. Priest's analysis, Attorney Williams stated that it “was nothing short of a game of Clue, which is a conclusion-based analysis. It's Mr. Plum in the study with a left-handed golf club and hit her seven times. That's exactly how deep his analysis went.” (Id. at 833). Attorney Williams told the jury that “experts need to be experts. They need to be scientific. They need to be detached. They need to not become emotional and they need to not start with a conclusion, which is what Mr. Priest did.” (Id. at 836). Attorney Williams asserted that investigators “had tunnel vision from the time this thing started.” (Id. at 917). When discussing other possible suspects that were not investigated, Attorney Williams posited to the jury: “You know why they didn't do it? Because they had [Petitioner] and they don't want to look any further. It was tunnel vision. It was the way it was from the beginning of the case and has been the way it has been ever since.” (Id. at 812).
b. State Courts' Denial of Ground 5(d)
In support of Petitioner's PCR Petition, Petitioner submitted to the trial court a report from Deborah Davis, Ph.D., who is a professor of psychology at the University of Nevada-Reno. (Doc. 1-6 at 140-50). Ms. Davis states that she was asked to provide a report “regarding the potential role of confirmation biases and procedural issues that may have promoted such biases” in Petitioner's case. (Id. at 140). The report explains that “the term confirmation bias refers to the manner in which judgments and decisions can be affected by expectations such that the person is led to perceive information as more consistent with expectations than warranted by an objective appraisal, and to act accordingly.” (Id. at 142). The report notes that “confirmation biases that can mislead criminal investigation” are “[c]ommonly referred to as ‘tunnel vision' . . . or ‘investigator bias.'” (Id.).
Petitioner also submitted to the trial court a transcript of PCR counsel's deposition of Attorney Williams. (Doc. 1-5 at 75-150; Doc. 1-6 at 1-29). At his deposition, Attorney Williams stated that he read Ms. Davis' report. (Doc. 1-6 at 18). In response to the question “would you have had any reason not to have presented an expert like [Ms. Davis]?”, Attorney Williams stated:
Well, I like what she has to say, but I said it. I don't know how much clearer it could have been, but I said over and over and
over again. Conclusion-based thinking is the way I couched it, but you start with a conclusion, you bend every fact around it. She clearly lays that out on her thesis about, you know, confirmation biased, investigator biased.(Id. at 18-19). Attorney Williams stated that he was “[absolutely” aware of the cognitive bias issue, was “sensitive” to it, and “addressed it with each and every witness I needed to.” (Id. at 20). Attorney Williams observed that he said “‘conclusion-based thinking' over and over again” in his closing argument. (Doc. 1-5 at 147). Attorney Williams elaborated: “So I didn't call it what they called it, but it's the same thing. And did I need an expert to say that, I don't think so.” (Id.).
In Ground 5(d), Petitioner argues that his attorneys “were ineffective in failing to investigate and present readily available evidence of cognitive bias that plagued this case from the commencement of the investigation into the death of Carol Kenney.” (Doc. 1 at 54).
The trial court ruling denying the PCR Petition states:
Petitioner is either a wrongfully convicted innocent man or, as the jury of twelve people unanimously found, a brutal murderer. Petitioner claims that his convictions were tainted by a skewed police investigation resulting from a psychological phenomenon now known as cognitive or confirmation bias. The State's position is that Petitioner's convictions were the result of a careful analysis by the jury during three days of deliberations of the massive amount of evidence that was presented at trial over a period of almost three months.(Doc. 1-1 at 61).
Assuming cognitive bias or confirmation bias opinion testimony had been admitted, what then would have been allowed for the State's rebuttal? Could the State call a professor of philosophy or psychology to educate the jury about Occam's razor, the theory that when there are two competing theories, the simpler one is to be preferred? Would the State have been allowed to have the professor opine that the simpler theory between Jim Knapp and Petitioner being the murderer was that Petitioner was the murderer? This Court is of the opinion that allowing cognitive bias evidence that focuses on a particular witness or body of evidence would have opened a can of worms
that most likely would have confused the jury rather than have assisted the jury with any issue. The jury was perfectly capable of weighing and sorting through the evidence and deciding whether the evidence proved beyond a reasonable doubt that Petitioner committed the murder without the aid of an expert's opinion about how the jury should evaluate the totality of the evidence.
In the event this decision is criticized on the basis of confirmation bias, this Court, unlike Dr. Davis, had the opportunity to observe the demeanor of all the trial witnesses, to consider the totality of the evidence and observe defense counsel over the many months of the Court's involvement in this case. At the conclusion of the case, and after careful consideration of all the evidence, this Court was firmly convinced both that Petitioner received a fair trial and of Petitioner's guilt.
The Court finds that it was reasonable for the defense team not to retain and call an expert witness on the subject of cognitive bias. Therefore, the Court concludes that Petitioner's IAC claim # 5 is not colorable.(Id. at 68-69).
c. Analysis of the State Courts' Denial of Ground 5(d)
In Ground 5(d), Petitioner asserts that the trial court's conclusion that it was not the standard of practice at the time of Petitioner's trial to call a cognitive bias expert is an unreasonable determination of the facts. (Doc. 1 at 62). Petitioner notes that “[t]he bulk of work within psychology and law (going back to the late 1800's) has focused on the role of confirmation biases in police investigations, interviews of suspects and witnesses, and on jury decisions.” (Id. at 62-63). Petitioner further notes that this “large body of scientific studies of confirmation biases has been available for decades and well before 2013 at the time of [Petitioner's] trial.” (Id. at 63).
The undersigned agrees with Respondents that Petitioner “mistakenly equates longstanding knowledge or study about the existence of a concept and its impact, with the implementation of that concept into a standard legal practice.” (Doc. 18 at 77) (emphasis in original). Respondents correctly observe that Ms. Davis' report does not opine as to whether it was standard practice within the legal community to call a cognitive/confirmation bias expert at trial. (Id. at 78).
“[S]trategic decisions - including whether to hire an expert - are entitled to a ‘strong presumption' of reasonableness.” Dunn v. Reeves, 141 S.Ct. 2405, 2410 (2021) (citing Richter, 562 U.S. at 104. “The test is not whether another lawyer, with the benefit of hindsight, would have acted differently, but whether ‘counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998) (quoting Strickland, 466 U.S. at 687, 689); Hinton v. Alabama, 571 U.S. 263, 274-75 (2014) (“The selection of an expert witness is a paradigmatic example of the type of ‘strategic choic[e]' that, when made ‘after thorough investigation of [the] law and facts,' is ‘virtually unchallengeable.'”) (quoting Strickland, 466 U.S. at 690).
After reviewing the parties' briefing and the submitted record, the undersigned finds that Petitioner has failed to show that the state courts' rejection of his ineffective assistance of counsel claim in Ground 5(d) is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. 28 U.S.C. § 2254 bars relief. It is thus recommended that the Court deny Ground 5(d).
5. Ground 5(e): Alleged Ineffective Assistance of Counsel for Trial Counsel's Failure to Move to Preclude Testimony from the State's Forensic Analyst, Jonathyn Priest, or to Present Evidence that Undermined Such Testimony
Ground 5(e) concerns Petitioner's claim that his trial counsel was constitutionally ineffective for failing to move to preclude testimony from the State's forensic analyst, Jonathyn Priest, and for failing to present evidence that undermined Mr. Priest's testimony. (Doc. 1 at 63-68). Petitioner fairly presented Ground 5(e) in his PCR proceedings. (Doc. 18-5 at 231-34; Doc. 18-6 at 33-34).
a. Background Regarding Ground 5(e)
The State called Mr. Priest to the stand on July 31, 2013. (Doc. 18-6 at 352). Mr. Priest explained that he was retained by the State to analyze the homicide of the victim and has over 25 years of experience with violent crime scenes. (Id. at 354, 412). Mr. Priest testified that after reviewing the “police investigation, statements, laboratory reports, photographs, crime scene drawings,” and a visit to the crime scene, he concluded that the possible cause of death of the victim was blunt force trauma. (Id. at 356-57). Mr. Priest testified that the victim had “a minimum of seven lacerating injuries to the head” and that six were created by a “similar object. The seventh of which, the one over the left eye, was created by a different mechanism.” (Id. at 397-98). Mr. Priest opined that the seventh injury “was created by the head striking the corner of the desk.” (Id. at 398). Mr. Priest further opined that a golf club caused the remaining injuries. (Id. at 403). He explained that the conclusion is based on
Past experience with cases involving a golf club. The linear edge of a golf club head. The rounded back or weighted area of the golf club creating the larger portion of that lacerated injury. The fact that each of the injuries to the scalp have a similar and consistent appearance with an object extending or expending its energy in a very uniform manner. Not only to the skin but to the underlying bone. All of those injuries have a similar appearance throughout.
So that, in my experience, and based on a previous case involving a golf club, the injuries just look like they were created by a golf club.(Id. at 404). The prosecutor commented that “[t]here's a large amount of blood within the scene” and asked Mr. Priest if he has “an opinion as to blood that would be on the attacker for these events?” (Id. at 407). Mr. Priest answered:
In my experience, investigating a number of blunt force injuries and blunt force incidents, the attacker rarely has blood on them and when they do have blood on them, it's minimal. Simply because the blood is going to follow the direction of the beating force, not actually coming back onto the individual.
Anytime you deliver force to an object, like a baseball, if you hit the ball, it doesn't come toward the person that's hitting it; it goes away from it. Same thing when you hit a fluid, is the majority of the fluid is going to go with the force, not against the force.(Id. at 407-408). Mr. Priest further testified that marks on the victim's body “are consistent with what I saw on the back of another victim, where the -- the known weapon that was used was a golf club” while Mr. Priest was employed with the Denver Police Department. (Id. at 361, 364). Mr. Priest explained why he concluded that a golf club caused the victim's injuries and why he concluded that the victim's injuries could not have been caused by a baseball bat, pipe, collapsible baton, or maul handle. (Id. at 409-411).
In Ground 5(e), Petitioner alleges that his Sixth Amendment rights were violated when his trial counsel “failed to present to the jury evidence demonstrating the inaccuracies of Mr. Priest's analysis and the unreliability of his testimony.” (Doc. 1 at 63). Petitioner contends that “[t]here was plenty of evidence showing that contrary to Mr. Priest's testimony, the injuries inflicted on Ms. Kennedy could have been made by a right-handed golf club, flatly contradicting the state's theory that it was Mr. DeMocker's left-handed club.” (Id. at 64) (emphasis in original).
b. State Courts' Denial of Ground 5(e)
In support of his PCR Petition, Petitioner submitted to the trial court a declaration by R. Robert Tressel. (Doc. 1-2 at 253-267). Mr. Tressel's declaration states that he has been the Chief Criminal Investigator of the Cobb County District Attorney's Office since 2011 and is retiring after “forty-six years in the field.” (Id. at 253, ¶ 1). Mr. Tressel states that after analyzing the trial record, including the admitted crime scene reconstruction and bloodstain pattern analysis evidence, it is his “professional opinion, the State's investigation of the case, particularly, the findings and testimony of Jonathyn Priest are misleading.” (Id. at 254, ¶ ¶ 2, 3). Mr. Tressel explains that while he agrees with (i) Mr. Priest's “analysis as to the types of bloodstains identified on the crime scene photos” and (ii) that the victim's body was moved creating three distinct areas of rest,” he departs from several of Mr. Priest's other conclusions. (Id. at 256-57, ¶ 15). Mr. Tressel disagrees with Mr. Priest's conclusion that injuries on the victim's right arm were “defensive wounds” because it is not possible to determine the sequence of blows and the wounds “could be from blows to the victim struck while the victim was on the floor.” (Id. at 257, ¶ 17). Mr. Tressel notes that the Denver golf club assault case discussed by Mr. Priest is “factually quite distinct” from the crime scene in this case, noting that in the “Denver case the known weapon was a golf club” and in this case there is no recovered murder weapon. (Id. at 257, ¶ 18). Mr. Tressel states: “I agree that the wounds may have been caused by a golf club, but I cannot agree that a golf club is the only potential weapon causing the wounds in this case.” (Id.).
In rejecting the claim in Ground 5(d), the trial court stated:
Contrary to Petitioner's assertion, the defense did challenge Mr. Priest's opinions. The defense presented its own expert, Keith Inman, who contradicted Mr. Priest's opinions, believed the murder scene was not staged and that there could have been more than one assailant. Mr. Williams believed that Mr. Inman was a good witness who “appropriately undermined Priest in his testimony and conclusions.” See Williams depo., p. 80.
The Court has reviewed the declaration of R. Robert Tressel. See PCR Ex. 7. While he criticizes Mr. Priest's opinions, he adds nothing to the analysis that this Court must undertake - whether the reasons for Mr. Williams' strategic decisions regarding Mr. Priest were objectively reasonable.
The Court finds that Mr. Williams' decision not to move to preclude Mr. Priest as a witness had a reasonable basis. Mr. Priest had extensive experience as a police officer and homicide investigator. Mr. Tressel's criticism about an expert's methods does not mean that the method was unreliable. As noted before, the adversarial process is designed to address “shaky but admissible evidence.” In addition, the defense did present its own expert who put into question the legitimacy of Mr. Priest's opinions. Therefore, the Court concludes that Petitioner's IAC claim # 7 is not colorable.(Doc. 1-1 at 74).
c. Analysis of the State Courts' Denial of Ground 5(e)
In Ground 5(e), Petitioner asserts that the trial court's statement that “defense presented its own expert, Keith Inman, who contradicted Mr. Priest's opinions” (Doc. 1-1 at 74) is an unreasonable determination of facts. (Doc. 1 at 68). However, the trial court's finding is reasonably supported by the record. For instance, Mr. Inman contradicted Mr. Priest's opinion that there would be no blood spatter in a blunt force trauma case by noting during direct examination that in the Denver case, there was a lot of spatter. (Doc. 18-7 at 642). Mr. Inman stated:
the person would have several opportunities to have blood on him or her. And the foundation for that is that the more blood that is present at the scene, coupled with the amount of movement or manipulation that would be done, the greater the likelihood that blood would be transferred onto the assailant, whether by blood spattering on or transferring on from dealing with the victim.(Id. at 643). Mr. Inman opined that “predominantly, most of the time, you would expect to see blood on that individual.” (Id. at 644). Mr. Inman further testified that there is “nothing in the evidence” that would indicate whether the attacker was left or right handed and explained that “typically whenever that's proffered, it's, in my estimation an overinterpretation.” (Id. at 658). As to the murder weapon, Mr. Inman explained that “it's some blunt object” and “not a gun,” but did not have an opinion as to the specific object used. (Id. at 656).
Additional evidence supports the trial court's finding that trial counsel “did challenge Mr. Priest's opinions.” (Doc. 1-1 at 74). For example, during cross-examination, trial counsel elicited testimony from Mr. Priest in which Mr. Priest stated that he could make marks similar to those on the victim's body “with a number of different tools,” such as a crowbar. (Doc. 18-6 at 444). Trial counsel also elicited testimony in which Mr. Priest clarified that he did not rule out rebar as a potential weapon and affirmed that rebar could produce a mark similar to the marks on the victim's arms. (Id. at 457). Mr. Priest stated that in addition to a crowbar and rebar, “we could add a lot of things” to the list of possible objects used to cause the victim's injuries. (Id.). Mr. Priest agreed that “it didn't necessarily have to be that golf club[.]” (Id. at 458). Defense counsel also elicited testimony in which Mr. Priest agreed that investigators “were not exacting measurements taken of where [the victim] was in relation to any wall” and that “more accurate measurements would have led to a little more accuracy in [Mr. Priest's] analysis.” (Id. at 434).
Mr. Priest agreed that a left-to-right swing does not mean that the attacker was lefthanded. (Id. at 460).
As mentioned, in support of his PCR Petition, Petitioner submitted to the trial court a transcript of PCR counsel's deposition of Attorney Williams, which the trial court's decision references. (Doc. 1-5 at 75-150; Doc. 1-6 at 1-29). During the deposition of Attorney Williams, Petitioner's PCR counsel asked: “Let's move on to Jonathan Priest. There's a claim that you were ineffective because you failed to present evidence that undermined Jonathan Priest or moved to preclude Priest. What do you say to that claim?” (Doc. 1-6 at 3). Attorney Williams responded that when interviewing Mr. Priest, he
felt about him like I did Dr. Keen; it was a gift, especially since he had a live recording of somebody beating somebody to death with a golf club, and then he had pictures of it. And so, it was so totally different than this case that, to me, your average reasonable person would look at it and go, “Yeah. No. It wasn't a golf club.”(Id.). PCR counsel then asked: “So you felt you don't want to preclude [Mr. Priest], he does more help to the Defense than he does for the State?” (Id. at 3-4). Attorney Williams stated:
Yes, and he was -- my memory of him he was weirdly argumentative on the stand, which is never a good thing for an expert to argue, just give your opinion and that's it, and then he couldn't swing the golf club without hitting the jury box, which you can't buy that kind of testimony.(Id. at 4). Attorney Williams' selection of Mr. Inman as a defense expert witness was also discussed at the deposition:
Q. You did have your own expert Keith Inman talk about the crime scene itself?
A. I did.
Q. Do you believe that you needed to retain a different expert or an additional expert than Inman to challenge Priest?
A. No. I thought Inman was really good.
Q. One of the points Inman effectively made is that there could have been more than one assailant?
A. Yes.
Q. Do you believe that Inman appropriately undermined Priest in his testimony and conclusions?
A. Well, without simple answer, yes.
Q. I think Inman also opined he didn't believe the scene was staged?
A. Yes.(Id. at 4-5).
As Respondents detail (Doc. 18 at 84), trial counsel also introduced testimony from Dr. Terri Haddix, who holds board certifications in anatomic pathology, forensic pathology, and neuropathology. (Doc. 18-7 at 691). Trial counsel asked Dr. Haddix if he could “say with any certainty what kind of weapon caused” the victim's injuries. (Id. at 714). Dr. Haddix answered: “Really about the only thing that I can say in terms of characterizing the nature of the weapon is that it's something that has more or less a line-like or linear, same term, type of appearance to it.” (Id.). Dr. Haddix testified that he did not “see what the basis would be” to support an opinion that “absolutely a golf club” caused the victim's injuries. (Id. at 715).
Trial counsel also introduced testimony from Terry Carmody, a private investigator with experience investigating assaults that involved golf clubs. Mr. Carmody stated that a “golf club is an awkward weapon . . . if your're swinging it in a close space. It wouldn't be my choice. I mean, I would be looking at a hammer, an iron bar, or a crow bar . . . .” (Id. at 762-63).
Petitioner asserts that “because Mr. Tressel's criticisms concerned Mr. Priest's departure from the standards of his profession, they went to the court's gatekeeping role” and that “[b]y failing to consider them,” the trial court's ruling is based on an unreasonable determination of the facts and an unreasonable application of clearly established federal law. (Doc. 1 at 68). Yet, the trial court's decision explicitly states that it “reviewed the declaration of R. Robert Tressel.” (Doc. 1-1 at 74). “Courts are not required to credit expert testimony.” Ybarra v. Gittere, 69 F.4th 1077, 1092 (9th Cir. 2023) (citations omitted). Moreover, “it is the state court's ‘ultimate decision' that is to be tested for unreasonableness, not every jot of its reasoning.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002).
The undersigned is not persuaded that the state courts' denial of Ground 5(e) is based on an unreasonable determination of the facts.
As to Petitioner's contention that trial counsel should have moved to exclude Mr. Priest's testimony, Petitioner has not shown that the state courts' rejection of the claim was objectively unreasonable.The submitted record does not reveal a basis from which it may be reasonably concluded that the trial court would have granted such a motion to exclude. See Wilson, 185 F.3d at 990; Rupe, 93 F.3d at 1445.
As mentioned in a prior footnote, “[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. “Under § 2254(d), a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairmindedjurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court].” Id. at 101 (emphasis added).
“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. “[S]trategic decisions-including whether to hire an expert- are entitled to a ‘strong presumption' of reasonableness.” Dunn, 141 S.Ct. at 2410. “The test is not whether another lawyer, with the benefit of hindsight, would have acted differently, but whether ‘counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Babbittv. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998) (quoting Strickland, 466 U.S. at 687, 689).
After reviewing the parties' briefing and the submitted record, the undersigned finds that the state courts' denial of Ground 5(e) is not contrary to or an unreasonable application of Strickland. The undersigned further finds that Petitioner has failed to show that the state courts unreasonably determined the facts in denying the claim in Ground 5(e). The undersigned finds that 28 U.S.C. § 2254(d) bars relief as to Ground 5(e). It is recommended that the Court deny Ground 5(e).
6. Ground 5(f): Alleged Ineffective Assistance of Counsel Based on Trial Counsel's Presentation of a Third-Party Culpability Defense
In Ground 5(f), Petitioner argues that he received constitutionally ineffective assistance when his trial counsel argued that a third-party, James Knapp (“Knapp”), committed the charged burglary and murder crimes. (Doc. 1 at 68). Petitioner raised the claim in Ground 5(f) in his PCR proceeding. (Doc. 18-5 at 206-14; Doc. 18-6 at 19-24). As recounted by the trial court:
Mr. Knapp lived in the victim's guesthouse, pointed the Sheriff at Petitioner the night of the murder and, as it turns out, was a bit of an odd duck. [Attorney Williams] located a witness in Montana, Julie Corwin, who “was doggone clear” when she testified at the trial that Knapp “was unstable.” See Williams depo., 57. Petitioner was aware that the defense would point to Mr. Knapp as the killer and did not object to the strategy. See Parzych depo., p. 23; Williams depo., pp. 49-50, 56, 60. Petitioner's “anonymous email” implicated Mr. Knapp. Plus there were the bizarre circumstances of Mr. Knapp's death. See Williams depo., p. 59.(Doc. 1-1 at 54).
a. State Courts' Denial of Ground 5(f)
In support of his PCR Petition, Petitioner submitted to the trial court a declaration from Richard R. Robertson, who worked as a private investigator on behalf of the defense. (Doc. 1-3 at 12-15). In his declaration, Mr. Robertson states that Attorney Williams “did a decent job as portraying Mr. Knapp as unstable, obsessed with [the victim], financially strapped, and prone to angry outbursts.” (Id. at 14, ¶ 14). Mr. Robertson states that he “agreed that Mr. Knapp should have been thoroughly investigated by the state and that failure could have been a focus of the defense[.]” (Doc. 1-3 at 13, ¶ 8). However, Mr. Robertson does not agree with “making a definitive accusation that Mr. Knapp, in fact, was the killer” and making that the “exclusive focus” of the defense. (Id.).
In concluding that Attorney Williams reasonably presented the theory that a third-party committed the murder, the trial court stated:
Petitioner claims that his attorneys were ineffective because they chose as one prong of the trial strategy to point the
finger at Jim Knapp as the potential murderer. This was the “James Knapp did it” defense. Petitioner argues that his defense counsel “forfeited their credibility with the jury” by pursuing the “James Knapp did it” defense as part of the overall defense strategy. Petitioner argues that defense counsel “should have adopted a more constrained approach” regarding Mr. Knapp. See Parzych depo., p. 12; Williams depo., p. 16. Mr. Parzych thought that evidence about Mr. Knapp “could be one of the links to show that the State couldn't prove beyond a reasonable doubt that Mr. DeMocker was the person who killed Carol Kennedy.” See Parzych depo., p. 13.(Doc. 1-1 at 53).
This Court is of the opinion that the strategy to pursue a third-party defense was objectively reasonable. Petitioner was unwavering in his claim of innocence. Mr. Williams believed his client and also believed there was sufficient evidence about Mr. Knapp to create reasonable doubt that Petitioner was the murderer.
It quickly became apparent to this Court from the evidence that Petitioner was a womanizing, manipulative narcissist with lavish spending habits and with little or no credibility. Even though the divorce and the downturn in the financial markets impacted Petitioner's income, he continued his expensive lifestyle, having to borrow thousands of dollars each month from his parents. A reasonable attorney could have easily concluded that Petitioner would have no credibility with the jury. Petitioner's perfidy and willingness to lie in order to manipulate others was on full display during the investigative interview he submitted to regarding the “anonymous email” and “voice in the vent” story.
Petitioner knew that he had written the email, yet he fabricated an elaborate story about the “voice in the vent” and the email in an effort to buttress his claim of innocence and to get the authorities to reopen the murder investigation. His charade even included crying at one time during the interview. Petitioner manipulated his teenage daughter into sending the “anonymous email” from an Internet cafe in Phoenix. Despite signing a document stating that he was relinquishing all interest and benefit in the insurance money, Petitioner manipulated his daughters into giving away the inheritance that their mother provided for them to Petitioner's first defense attorneys pursuant to a scheme concocted by a group of attorneys. It was
reasonable to assume that many of the jurors would conclude that nothing said by Petitioner could be believed, including his claim of innocence. Therefore, it was necessary for the defense to turn the focus away from Petitioner and his lies and shine the spotlight on someone else, that someone else being Jim Knapp. This strategy allowed the defense to deflect the jury's attention away from Petitioner and also continually to emphasize the implied bias of the investigators in immediately focusing on Petitioner as the prime suspect without, according to Petitioner, doing any investigation into Jim Knapp.[ ]
....
The Court is of the opinion that pursuing a third-party culpability defense was reasonable under the circumstances. Petitioner's arguments about “forfeited credibility” and a “more constrained approach” are derived from 20/20 hindsight and second-guessing defense counsel's strategic decision. This strategic decision reinforced Petitioner's claim of innocence, diverted attention from him and gave the jury an alternative theory about the murder to consider in the context of all of the evidence. Therefore, the Court concludes that Petitioner's IAC claim # 3 is not colorable.(Id. at 55-58) (footnote omitted).
b. Analysis of the State Courts' Denial of Ground 5(f)
In Ground 5(f), Petitioner references the following excerpt from the trial court's decision: “Petitioner was unwavering in his claim of innocence. Mr. Williams believed his client and also believed there was sufficient evidence about Mr. Knapp to create reasonable doubt that Petitioner was the murderer.” (Doc. 1-1 at 55). Petitioner asserts that the trial court's “conclusion is an unreasonable determination of the facts and an unreasonable application of clearly established federal law as Mr. DeMocker's belief in his innocence does not make counsel's pursuit of a third-party defense reasonable.” (Doc. 1 at 77).
Petitioner's construction of the trial court's decision is not well-taken. The “Supreme Court has repeatedly counseled that on review under AEDPA [federal courts] must construe reasonably what the state court decided. We cannot take language out of context to slap the hand of the state court.” Washington v. Roberts, 846 F.3d 1283, 1292 (10th Cir. 2017). As excerpted in the previous section, the trial court's decision details evidence from which a “reasonable attorney could have easily concluded that Petitioner would have no credibility with the jury.” (Doc. 1-1 at 55). The trial court reasonably concluded that trial counsel's defense strategy “diverted attention from [Petitioner] and gave the jury an alternative theory about the murder to consider in the context of all of the evidence.” (Doc. 1-1 at 57-58). Further, as discussed at the end of this section, the trial court reasonably concluded that the third-party culpability defense “was only one prong of the overall defense strategy[.]” (Id. at 57).
Petitioner further asserts that “the third-party defense was not based on a strategic decision because, contrary to the trial court's finding, the evidence supporting Knapp's alibi was so strong that a third-party theory was a ‘ludicrous' defense that could have only ‘profoundly annoyed' the jury.” (Doc. 1 at 78) (quoting Daniels v. Woodford, 428 F.3d 1181, 1210 (9th Cir. 2005)).
During trial, the State called Knapp's ex-wife Ann Saxerud as a witness. Knapp and Ms. Saxerud have two sons together. (Doc. 18-7 at 205-06). Ms. Saxerud testified that on July 2, 2008 (the day of the murder), Knapp came over to her house to watch their youngest son while she took the oldest son to hockey practice, which was from 7:00 p.m. to 8:00 p.m. (Id. at 212, 214). Ms. Saxerud further testified that Knapp left her home approximately between 8:30 p.m. and 9:00 p.m. (Id. at 214-15). Ms. Saxerud identified Knapp on a surveillance video walking into a Safeway store at 8:58 p.m. and leaving at 9:02 p.m. (Id. at 217).
Citing Attorney Williams' deposition, the trial court stated that Attorney Williams “believed that he did a sufficient job to counter Det. Ray's findings by presenting evidence that put in question the timeline regarding both Mr. Knapp's whereabouts on the evening of the murder and the time the murder took place.” (Doc. 1-1 at 54). During closing argument, Attorney Williams highlighted that Ms. Saxerud initially reported that Knapp left her house at 8:00 p.m. on July 2, 2008, then later reported 8:30 p.m., and then 8:45 p.m. (Doc. 18-7 at 863-64). Attorney Williams posited to the jury that:
Ann Saxerud had a perfect and logical reason because of her kids to keep pushing that time back every time they talked to her. Oh, it's not 8:00 o'clock anymore. It's got to be 8:30. Well, it's between 8:30 and 8:45. That's because she doesn't want the taint to be on her kids. It's a horrible thing to think that maybe Jim Knapp committed the murder. So you can understand Ann Saxerud saying 8:00. Well, no, not 8:00. 8:30. Yeah, well, 8:45.(Id. at 813). Attorney Williams asserted that “Knapp could as easily have gone back to his apartment, taken a quick shower, changed clothes, stuffed his bloody clothes into a Safeway bag, taken off, gone down to Safeway, and made it back in plenty of time. He had a lot of time.” (Id. at 866). Attorney Williams emphasized that investigators never searched Knapp or his residence, which was “a hundred feet from the [the victim's] main house. Nobody checked.” (Id.).
PCR counsel asked Attorney Williams at his deposition: “A key question regarding Knapp was whether a call tower hit by Knapp's phone at the same time it was believed Carol Kennedy was attacked, creating an alibi for Mr. Knapp. Do you agree with that?” (Doc. 1-5 at 131). Attorney Williams responded:
Well, here's my memory. We talked to [detective] Sy Ray, and Sy Ray had this weird amoeba, you know, of where the cell phone reception was. And so, I believe I got Sy Ray to come down to three miles, that he was within three miles of [the victim's residence] at the time that the phone call [with the victim's mother] happened.(Id. at 131-32). During his closing argument, Attorney Williams recounted trial testimony from Petitioner and the victim's daughters that the victim's dogs had an issue with urinating and vomiting in the house. (Doc. 18-7 at 793). Attorney Williams argued that when the victim said “oh, no” at 7:59 p.m. while on the phone with her mother, it “wasn't an oh, no that was screamed. It was an oh, no that was oh, no, not again. It wasn't screamed. It was a matter of fact oh, no, not again.” (Id.). Attorney Williams asserted to the jury:
So here's what happened. Well, she's following her dog down the hall. Oh, no, not again. And she inadvertently disconnects her call because she's going to take the pee bottle and clean up the pee.
Now, how do we know all this happened? Because when the All About Clean guys went out there, Mr. Obermeyer, they pulled up the rug, and in this spot right here, right in here, there is the pee stain. That's why we know the murder didn't happen at 7:59. That's why we know it was stretched out much further than that and we can't pinpoint the murder at 7:59 . . . .(Id.). Attorney Williams then recounted that at 7:58, Knapp makes a call to his voicemail that lasts until 8:00 p.m. (Id. at 800). Attorney Williams further recounted evidence indicating that there was a “window of opportunity between 7:59 and 8:54, almost a one-hour window of opportunity for whoever killed Carol Kennedy. Knapp's phone is out of touch between 8:00 and 9:37:26. That is one hour and 37 minutes.” (Id. at 801). Attorney Williams noted that Detective Sy Ray testified that Knapp was within three miles of the victim's residence when Knapp ended his voicemail call at 8:00 p.m. (Id.). Attorney Williams told the jury that “even going 50 miles an hour, if it took [Knapp] five minutes from that time that he made this call, he could have been at [the victim's residence] at 8:05.” (Id.).
Finally, the trial court correctly observed that trial counsel's defense was not based exclusively on a third-party culpability theory. The trial court's ruling regarding Ground 5(f) states:
With all due respect to Mr. Robertson, this Court is not sure that Mr. Robertson was paying attention to the trial. As previously noted, the “James Knapp did it” defense was only one prong of the overall defense strategy in this Court's opinion based on having presided over the trial. Three other themes of the defense were prominent during the trial: (1) the lack of forensic evidence (blood, DNA, hair or fingerprints) at the crime scene to tie Petitioner to the murder (2) the conclusion-based style of the investigation and (3) the slipshod manner in which evidence was gathered.
The Court is of the opinion that pursuing a third-party culpability defense was reasonable under the circumstances. Petitioner's arguments about “forfeited credibility” and a “more constrained approach” are derived from 20/20 hindsight and second-guessing defense counsel's strategic decision. This strategic decision reinforced Petitioner's claim of innocence,
diverted attention from him and gave the jury an alternative theory about the murder to consider in the context of all of the evidence. Therefore, the Court concludes that Petitioner's IAC claim # 3 is not colorable.(Doc. 1-1 at 57-58).
During closing argument, after detailing evidence regarding Knapp, Attorney Williams stated:
I do not want anybody to misinterpret that I am saying absolutely Jim Knapp killed Carol Kennedy, because I'm not going to tell you that. What I'm telling you is that he should have been investigated, that he was at least as good a suspect Steve DeMocker was, if not way better, but they did nothing.(Doc. 18-7 at 869). Attorney Williams argued “the investigation of this case was terrible from day one. The fact that they didn't look into Mr. Knapp more closely is awful.” (Id. at 917). He continued:
And so let me go over -- let me circle back where I started with you. If you remember I told you five years. Remember? There is no evidence. I mean, this is not a -- this is not a small thing. This is a big thing. There is no evidence. They cannot tie Steve to Carol's death.
They want you to think about money and their argument over the money. They had tunnel vision from the time this thing started.
So let's go over this real quick again. No DNA. That means no DNA of Steve at Carol's house and no DNA of Carol anywhere on Steve, in his car, at his house, at his office. No fingerprints, no blood, no hair, no fiber, no confession, no murder weapon, no motive, and the other suspects were not investigated.
I said five years. I -- I think you could give him 25 more years, and they would not be able to prove that Steve DeMocker killed Carol Kennedy. You know why? Because they can't put him in the house because he wasn't there. You know why? Because he did not kill her. You got to find him not guilty.(Doc. 18-7 at 917-18).
The Ninth Circuit has observed that “[c]losing arguments are a crucial part of trial.” Kelsey v. Garrett, 68 F.4th 1177, 1183 (9th Cir. 2023). The Supreme Court has emphasized that “no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.” Herring v. New York, 422 U.S. 853, 862 (1975). While “[c]losing arguments should ‘sharpen and clarify the issues for resolution by the trier of fact,' . . . which issues to sharpen and how best to clarify them are questions with many reasonable answers.” Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (per curiam) (quoting Herring, 422 U.S. at 862).
“[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, 562 U.S. at 109 (“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”).
“A petitioner challenging the substance of the state court's findings must show ‘that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.'” Prescott v. Santoro, 53 F.4th 470, 479 (9th Cir. 2022) (citation omitted). This “daunting standard” is “satisfied in relatively few cases” but “is not impossible to meet.” Taylor, 366 F.3d at 1000.
After reviewing the parties' briefing and the submitted record, the undersigned finds that sufficient evidence in the record supports the state courts' factual findings in denying the claim in Ground 5(f). “The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” Yarborough, 540 U.S. at 8. Viewing the matter without “the distorting effects of hindsight,” the undersigned finds that Petitioner has failed to show that the state courts' rejection of his ineffective assistance of counsel claim in Ground 5(f) is contrary to or an unreasonable application of Strickland or is based on an unreasonable determination of the facts. See Strickland, 466 U.S. at 689. Because 28 U.S.C. § 2254 bars relief, it is recommended that the Court deny Ground 5(f).
H. Ground Six: Alleged Violations of the Sixth and Fourteenth Amendments Based on Purported Interference with Former Trial Counsel's Defense by the Prosecution
In Ground Six, Petitioner contends that the “Prosecution interfered with defense counsel's investigation process and strategies in violation of [Petitioner's] right to counsel under the Sixth and Fourteenth Amendments to the U.S. Constitution.” (Doc. 1 at 78). In a special action proceeding filed in the Arizona Court of Appeals, Petitioner challenged the trial court's denial of Petitioner's motion to dismiss the case or disqualify the Yavapai County Attorney's Office based on the allegation that employees “illegally” viewed ex parte, sealed court filings. (Doc. 18-6 at 86-146). The Arizona Court of Appeals granted special action review but denied relief. In his direct appeal, Petitioner asserted that the Yavapai County Attorney's Office violated the Sixth and Fourteenth Amendments. (Doc. 18-5 at 169). Petitioner asserted that the Yavapai County Attorney's Office engaged in “further improper conduct” after Petitioner was convicted. (Id. at 170). Respondents do not assert that Ground Six is procedurally defaulted.
Special actions “fall outside of the normal review process and may not be used for federal habeas exhaustion purposes.” Kajander v. Schroeder, No. CV08-1172-PHX-GMS(GEE), 2009 WL 775395, at *2 (D. Ariz. Mar. 20, 2009); Burns v. McFadden, 34 Fed.Appx. 263, 265 (9th Cir. 2002) (holding that a habeas petitioner did not exhaust state remedies by presenting his claim in a petition for special action). However, because the Arizona Court of Appeals accepted special action jurisdiction and Petitioner again alleged the purported misconduct on direct appeal, this Report and Recommendation assumes without deciding that Ground Six has been exhausted.
a. State Courts' Denial of Ground Six
On May 2, 2011, between Petitioner's first and second trials, Petitioner moved to dismiss the case with prejudice or, in the alternative, to disqualify the Yavapai County Attorney's Office. (Doc. 18-3 at 2-37). Petitioner alleged that the State had “illegally viewed and printed” ex parte and sealed pleadings using the OnBase system, which “is only available to the Yavapai County Attorney, and Yavapai County Public Defender.” (Id. at 11-12). Petitioner asserted that “[t]his was not a one-time curious peek at forbidden fruit, it was systematic” and contended that the State “was obsessed with the subject matter and was conducting a full-bore, illegal investigation.” (Id. at 11) (emphasis in original). The Arizona Court of Appeals ordered the trial court to “conduct an evidentiary hearing to determine whether [Petitioner] suffered prejudice from the Yavapai County Attorney's Office's (“YCAO”) intrusion upon his right to counsel and, if so, to fashion a remedy.” (Doc. 1-1 at 3).
The trial court conducted an eleven-day evidentiary hearing on Petitioner's motion to dismiss. (Doc. 18-6 at 150). In a 57-page order containing over 200 findings, the trial court rejected Petitioner's “theory that the YCAO was on a quest to disqualify the defense team, remove the trial judge and negate ‘devastating' rulings by the trial judge by using information gleaned from viewing, printing and emailing of sealed and ex parte documents” as “both colorful and fanciful; there is no evidence to support the theory.” (Doc. 18-4 at 59, ¶ 200). The trial court found “beyond a reasonable doubt that there was simply no improper motive behind the conduct at issue.” (Id. at 53, ¶ 193). The trial court was “firmly convinced that no member of the YCAO directed any other member of the YCAO to intentionally gather confidential information about the defense.” (Id. at 56, ¶ 197).
The trial court summarized its findings as follows:
(1) The Court is firmly convinced that there was no ill or improper motive in viewing and printing the sealed and ex parte documents.
(2) The Court is firmly convinced that the prosecution made no use of the information in those documents.
(3) The Court is firmly convinced that the prosecution's interference with Defendant's right to counsel was not deliberate.
(4) The Court is firmly convinced that the State did not benefit in any way from viewing and printing the sealed and ex parte documents.
(5) The Court is firmly convinced that Defendant has not been directly or indirectly prejudiced.
(6) The Court is firmly convinced that Defendant can receive a fair trial with the YCAO as the State's representative.(Doc. 18-4 at 60, ¶ 202).
Petitioner challenged the trial court's findings by special action review in the Arizona Court of Appeals. (Doc. 18-6 at 86-146). The Arizona Court of Appeals accepted jurisdiction and denied relief, explaining that Petitioner “has not convinced us that any of the trial court's findings are clearly erroneous or unsupported by the record.” (Id. at 151). The decision states that the “fact that Petitioner disagrees with which testimony and evidence the court found credible and persuasive does not rend the court's determinations ‘arbitrary and capricious.'” (Id.). The decision concludes that “the court's ultimate conclusion that Petitioner was not prejudiced by the YCAO's actions is supported by the detailed factual findings of the court.” (Id.).
On direct appeal, Petitioner again challenged the denial of his motion to dismiss. The Arizona Court of Appeals' decision recounts:
P67 The superior court denied DeMocker's earlier motion to dismiss/disqualify based on the prosecution's viewing of ex parte, sealed documents, expressly finding that it was “obvious that the Clerk of the Court and the OnBase administrator's failures were the proximate cause” of the documents being made available for viewing by the prosecution team. The court found that the prosecution had exhibited “no ill or improper motive in viewing and printing the sealed and ex parte documents,” which generally related to DeMocker's requests for money to hire experts; “the prosecution made no use of the information in those documents”; “the prosecution's interference with Defendant's right to counsel was not deliberate”; “the State did not benefit in any way from viewing and printing the sealed and ex parte documents”; “Defendant has not been directly or indirectly prejudiced”; and “Defendant can receive a fair trial with YCAO as the State's representative.”(Doc. 1-1 at 21). The Arizona Court of Appeals noted that on special action review, it affirmed the trial court's denial and found that the “ultimate conclusion that Petitioner was not prejudiced by the YCAO's actions is supported by the detailed factual findings of the court.” (Id.). The Arizona Court of Appeals explained that the ruling “remains the law of the case” and denied relief as it has “already rejected [Petitioner's] argument[.]” (Id.).
b. Analysis of the State Courts' Denial of Ground Six
In the Petition, Petitioner contends that the Arizona Court of Appeals' denial of Ground Six “is an unreasonable application of clearly established federal law and an unreasonable determination of the facts. The state employees intentionally viewed and printed ex parte pleadings and transcripts using the court's OnBase system.” (Doc. 1 at 80).
“The starting point for cases subject to § 2254(d)(1) is to identify the ‘clearly established Federal law, as determined by the Supreme Court of the United States' that governs the habeas petitioner's claims.” Marshall v. Rodgers, 569 U.S. 58, 61 (2013). “If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law.” Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004).
Respondents correctly observe that Ground Six of the Petition “identifies no clearly established federal law that the appellate court supposedly applied in an unreasonable manner.” (Doc. 18 at 100). As discussed, “the phrase ‘clearly established Federal law, as determined by [the Supreme Court]' refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 365.
The Petition cites Ake v. Oklahoma, 470 U.S. 68 (1985) in support of Ground Six. In Ake, a capital case, the Supreme Court stated that when a defendant “is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.” 470 U.S. at 82-83. The Supreme Court held that when “a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist” for examination and preparation of the defense. Id. at 83. The undersigned does not find Ake's holding applicable to Ground Six, and therefore, the state courts' denial of Ground Six is not contrary to or an unreasonable application of Ake.
In his Reply, Petitioner asserts that the “state's violation of the ex parte protection” alleged in Ground Six is a “structural error.” (Doc. 22 at 38). However, Petitioner has not shown that it was clearly established by the holdings of Supreme Court precedent that such a violation constituted a structural error. “[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by th[e] [Supreme] Court.” Knowles, 556 U.S. at 122 (quotation omitted); see also Glebe v. Frost, 574 U.S. 21, 23 (2014) (reversing Ninth Circuit decision holding that Washington Supreme Court unreasonably applied clearly established federal law by failing to classify the trial court's restriction of closing argument as structural error, stating that “[a]ssuming for argument's sake that the trial court violated the Constitution, it was not clearly established that its mistake ranked as structural error”).
Regarding Petitioner's § 2254(d)(2) challenge, it bears repeating that a state court's “factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood, 558 U.S. at 301 (internal quotations and alterations omitted). “[E]ven if reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's determination.” Id. The Ninth Circuit has recognized that the federal courts “must be particularly deferential to our state-court colleagues” in conducting section 2254(d)(2) review. Taylor, 366 F.3d at 999-1000.
This case does not present a circumstance in which the evidence presented in the state courts “is too powerful to conclude anything but” that the state courts' factual findings in denying Ground Six are objectively unreasonable. Miller-El, 545 U.S. at 265; see also Rice, 546 U.S. at 342 (“The panel majority's attempt to use a set of debatable inferences to set aside the conclusion reached by the state court does not satisfy AEDPA's requirements for granting a writ of habeas corpus.”); Teti, 507 F.3d at 59 (“[T]he state trial judge's implicit credibility determinations, adopted by the MAC, are exactly the type of factual determinations to which we defer, as least short of any indication of serious error.”).
“As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings.” Richter, 562 U.S. at 102. After reviewing the parties' briefing and the submitted record, the undersigned finds that Petitioner has failed to show that the Arizona Court of Appeals' denial of Ground Six is (i) contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court or (ii) based on an unreasonable determination of the facts. 28 U.S.C. § 2254 bars relief. It is thus recommended that the Court deny Ground Six.
III. GROUNDS SEVEN AND EIGHT ARE PROCEDURALLY DEFAULTED
A. Legal Standards
1. Exhaustion-of-State-Remedies Doctrine
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).
Case law has clarified that in order to “exhaust” state court remedies, a petitioner's federal claims must have been “fully and fairly presented” in state court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To “fully and fairly present” a federal claim, a petitioner must present both (i) the operative facts and (ii) the federal legal theory on which his or her claim is based. This test turns on whether a petitioner “explicitly alerted” a state court that he or she was making a federal constitutional claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005). “It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be “explicit either by citing federal law or the decisions of federal courts, even if the federal basis is selfevident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds”).
2. Procedural Default Doctrine
If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even if a claim was not presented in state court, a claim may be procedurally defaulted in a federal habeas proceeding 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).
As alluded to above, a procedural default determination requires a finding that the relevant state procedural rule is an adequate and independent rule. See id. at 729-30. An adequate and independent state rule is clear, consistently applied, and well-established at the time of a petitioner's purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003).
B. Ground Seven: Alleged Ineffective Assistance of Trial Counsel for Failure to Request a Willits Instruction
In Ground Seven, Petitioner asserts that his Sixth Amendment rights were violated when his trial counsel failed to request a Willits instruction. (Doc. 1 at 82). Petitioner acknowledges that Ground Seven was not presented in state court and does not dispute Respondents' assertion that the claim is procedurally defaulted. (See Doc. 1 at 87-88; Doc. 18 at 103-04; Doc. 22 at 39-42). The undersigned finds that because Petitioner would be precluded from returning to state court to exhaust Ground Seven under adequate and independent procedural rules, Ground Seven is procedurally defaulted. See Ariz. R. Crim. P. 32.2(a)(3), 32.4(b)(3)(A). Petitioner relies on Martinez v. Ryan, 566 U.S. 1 (2012) in arguing that his procedural default should be excused.(Doc. 1 at 87-88; Doc. 22 at 3942).
Petitioner contends that because Respondents “argued only that the ineffectiveness could not constitute cause unless passed upon by a state court, which is flatly legally wrong, [Petitioner] has established cause and prejudice, and [Ground Seven] must be reviewed on the merits.” (Doc. 22 at 41). Petitioner's contention is not well-taken. It is Petitioner's burden to show cause and prejudice. See, e.g., Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir. 1993) (“When a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice.”) (emphasis added) (citing Coleman v. Thompson, 111 S.Ct. 2546, 2565 (1991)).
1. Martinez does not Establish Cause for the Procedural Default of Ground Seven
In Martinez, the Supreme Court held that “inadequate assistance of counsel at initialreview 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). The Ninth Circuit has explained that the “first requirement, that the prisoner show a ‘substantial' underlying trial-counsel IAC claim, may be seen as the Martinez equivalent of the ‘prejudice' requirement under the ordinary ‘cause' and ‘prejudice' rule from Wainwright.” Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013), overruled on other grounds by Shinn v. Ramirez, 142 S.Ct. 1718, 212 L.Ed.2d 713 (2022). “The second requirement, that there have been ‘no counsel' or only ‘ineffective' counsel, may be seen as the Martinez equivalent of the ‘cause' requirement of the rule from Wainwright.” Id. The following discussion explains the undersigned's conclusion that Petitioner does not satisfy Martinez's first two requirements.
a. The Defaulted Ineffective Assistance Claim is Insubstantial
A claim is “insubstantial” if it does not have any merit or is wholly without factual support. Martinez, 566 U.S. at 16. Determining whether an ineffective assistance of counsel claim is “substantial” requires a district court to examine the claim under the standards of Strickland. As explained below, the undersigned finds that the claim that trial counsel was constitutionally ineffective for failing to request a Willits instruction is without merit.
“A Willits instruction is appropriate when the state destroys or loses evidence potentially helpful to the defendant.” State v. Lopez, 786 P.2d 959, 964 (Ariz. 1990); State v. Willits, 393 P.2d 274, 277-79 (Ariz. 1964). Destruction or non-retention of evidence does not automatically entitle a defendant to a Willits instruction. “[A] defendant must show (1) that the state failed to preserve material and reasonably accessible evidence having a tendency to exonerate him, and (2) that this failure resulted in prejudice.” State v. Henry, 863 P.2d 861, 875 (Ariz. 1993). “To show that evidence had a ‘tendency to exonerate,' the defendant must do more than simply speculate about how the evidence might have been helpful.” State v. Glissendorf, 329 P.3d 1049, 1052 (Ariz. 2014). “[T]here must be a real likelihood that the evidence would have had evidentiary value.” Id.
Moreover, the State need only “preserve evidence that is obvious, material and reasonably within its grasp”; it has no affirmative duty “to seek out and gain possession of potentially exculpatory evidence.” State v. Walters, 748 P.2d 777, 780 (Ariz.Ct.App. 1987). Thus, a defendant is not entitled to a Willits instruction “merely because a more exhaustive investigation could have been made,” State v. Murray, 906 P.2d 542, 566 (Ariz. 1995), or because the State did not “pursue every lead or gather every conceivable bit of physical evidence,” State v. Willcoxson, 751 P.2d 1385, 1388 (Ariz.Ct.App. 1987)
In his direct appeal, Petitioner argued that the trial court erred by not sua sponte issuing a Willits instruction in part because the State failed “to adequately preserve the footprint and tire track evidence” behind the victim's house. (Doc. 18-5 at 164). The Arizona Court of Appeals reviewed the claim under the fundamental error standard of review. (Doc. 1-1 at 19, ¶ 60). The Arizona Court of Appeals held that the trial
court did not fundamentally err by failing to give a Willits instruction, in light of the evidence demonstrating that the biketire tracks and shoe-print evidence were adequately preserved for the State's experts to offer comparative analysis . . . .(Id., ¶ 61). The Arizona Court of Appeals' decision correctly recounts that although the trial court in the first trial “concluded that a Willits instruction was appropriate based on the State's failure to adequately preserve shoe-print evidence, and might be appropriate based on the bike-tire track evidence, [ ] the court reserved the right to reconsider the issue after the close of evidence and during settling of jury instructions.” (Id., ¶ 60) (emphasis added).
The Arizona Court of Appeals explained that a “defendant is not entitled to a Willits instruction in a case like this, ‘merely because a more exhaustive investigation could have been made.'” (Id., ¶ 61). The Arizona Court of Appeals also found that Petitioner failed to show “resulting prejudice as a result of any error in failing to give the Willits instruction at the second trial.” (Id.).
“[I]n almost every case prosecuted, the claim can be made that the investigation could have been better.” Willcoxson, 751 P.2d at 1388. After reviewing the parties' briefing and the submitted record, the undersigned finds that trial counsel could have reasonably concluded that a request for Willits instruction would be denied. See id. (rejecting Willits instruction claim where the police took black-and-white photos of “various abrasions and marks on the victim's body” and the defendant later asserted that the police should have taken color photos and the State's evidence “was not of the best quality”). The undersigned does not find that Petitioner's allegations in Ground Seven establish a substantial claim of ineffective assistance of trial counsel.
b. PCR Counsel was Not Constitutionally Ineffective for Failing to Raise Ground Seven in the PCR Petition
The Ninth Circuit has concluded that
for the narrow purpose of satisfying the second Martinez requirement to establish “cause,” [ ] a prisoner need show only that his PCR counsel performed in a deficient manner. A prisoner need not show actual prejudice resulting from his PCR counsel's deficient performance, over and above his required showing that the trial-counsel IAC claim be “substantial” under the first Martinez requirement.Detrich, 740 F.3d at 1245-46.
As previously noted, the inquiry under Strickland is highly deferential and “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. Under Strickland, “[t]he question is whether an attorney's representation amounted to incompetence under ‘prevailing professional norms,' not whether it deviated from best practices or most common custom.” Richter, 562 U.S. at 103. There is a “strong presumption” that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than “sheer neglect.” Id. at 109.
In support of his assertion that “initial PCR counsel's failure to raise [Ground Seven] could not be part of any reasonable strategy,” Petitioner cites the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (“ABA Guidelines”). (Doc. 22 at 41-42). Petitioner references Guideline 10.8, which provides that
Counsel at every stage of the case, exercising professional judgment in accordance with these Guidelines should:
1. consider all legal claims potentially available; and
2. thoroughly investigate the basis for each potential claim before reaching a conclusion as to whether it should be asserted; and
3. evaluate each potential claim in light of:
a. the unique characteristics of death penalty law and practice; and
b. the near certainty that all available avenues of post-conviction relief will be pursued in the event of conviction and imposition of a death sentence; and
c. the importance of protecting the client's rights against later contentions by the government that the claim has been waived, defaulted, not exhausted, or otherwise forfeited; and
d. any other professionally appropriate costs and benefits to the assertion of the claim.American Bar Association, American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913, 1028 (2003).
As noted in the Petition (Doc. 1 at 4), although the State initially sought the death penalty, the prosecution dismissed the death allegation on the eve of Petitioner's first trial. The second trial resulting in the convictions at issue in this matter was not tried as a capital case. Petitioner's citation to the ABA Guidelines for death penalty cases is not persuasive. Moreover, “Strickland stressed . . . that American Bar Association standards and the like are only guides to what reasonableness means, not its definition” and the Supreme Court has “since regarded them as such.” Bobby v. Van Hook, 558 U.S. 4, 8 (2009) (internal quotation marks and citation omitted). In other words, while ABA Guidelines may be “evidence of what reasonably diligent attorneys would do,” they do not define counsel's federal constitutional duty to “make objectively reasonable choices.” Van Hook, 558 U.S. at 8-9. Further, “the Supreme Court has cautioned against the inference of per se rules of reasonableness from professional standards ‘so detailed that they would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.'” Runningeagle, 825 F.3d at 989 (quoting Van Hook, 558 U.S. at 8 n.1).
The undersigned is not persuaded by Petitioner's argument that the ineffective assistance of counsel claim based on the failure to request a Willits instruction was strong. “[C]ounsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success.” Smith v. Robbins, 528 U.S. 259, 288 (2000). “Counsel is not necessarily ineffective for failing to raise even a nonfrivolous claim.” Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012); see also Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) (“Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.”). Even “admissions of inadequate performance by trial lawyers are not decisive in ineffective assistance claims. Ineffectiveness is a question for the courts, not counsel, to decide.” Walls v. Bowersox, 151 F.3d 827, 836 (8th Cir. 1998) (internal citation omitted); see also Robertson v. Pichon, 849 F.3d 1173, 1188 (9th Cir. 2017) (“Trial counsel's post-hoc explanation that his decision was based on a legal error is not dispositive, because Strickland ‘calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.'”) (quoting Richter, 562 U.S. at 110).
In Jones v. Barnes, 463 U.S. 745, 751-52 (1983), the Supreme Court noted that “[experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” It recounted the observation that “[l]egal contentions, like the currency, depreciate through over-issue. . . . Multiplicity hints at lack of confidence in any one” and “multiplying assignments of error will dilute and weaken a good case and will not save a bad one.” (Id. at 752) (citation omitted).
Here, as recounted by the trial court, PCR counsel raised the following seven ineffective assistance of counsel claims in his PCR proceeding:
1. Defense counsel failed to object or otherwise correct the record regarding testimony from Kortney Snider that Petitioner's DNA and blood on his bicycle pump were collected at the scene of the murder.
2. Defense counsel failed to move to exclude the State's financial expert, Peter Davis.
3. Defense counsel presented the “James Knapp did it” defense (third party culpability defense).
4. Defense counsel failed to present testimony of Laurie Spira about Petitioner's Internet searches.
5. Defense counsel failed to present expert testimony on the subject of cognitive bias.
6. Defense counsel failed to move to exclude Dr. Keen's testimony.
7. Defense counsel failed to move to exclude the testimony of Jonathyn Priest and/or failed to present evidence challenging Jonathyn Priest's testimony.(Doc. 1-1 at 45-46; Doc. 18-5 at 192-240). Petitioner also presented a claim that his sentence is unconstitutional. (Doc. 18-5 at 237). Notably, the Arizona Court of Appeals observed on direct appeal that there was “evidence demonstrating that the bike-tire tracks and shoe-print evidence were adequately preserved for the State's experts to offer comparative analysis.” (Doc. 1-1 at 19, ¶ 61). The Arizona Court of Appeals held in Petitioner's direct appeal that “[a] defendant is not entitled to a Willits instruction in a case like this, ‘merely because a more exhaustive investigation could have been made.'” (Id.). (emphasis added; citations omitted).
The undersigned finds that Petitioner has not overcome the “strong presumption” that PCR counsel's performance was within the “wide range of reasonable professional assistance” when counsel omitted Ground Seven from the PCR Petition. Strickland, 466 U.S. at 689; see also Richter, 562 U.S. at 103. As the undersigned does not find that PCR counsel's performance was objectively deficient, Petitioner has failed to establish cause under Martinez to excuse Petitioner's failure to exhaust his state remedies on Ground Seven.
2. The Procedural Default of Ground Seven is Not Excused
For the above reasons, Petitioner cannot establish cause for his procedural default by relying on Martinez. Petitioner asserts no other basis for excusing the procedural default as to Ground Seven.Accordingly, the undersigned recommends that the Court dismiss Ground Seven with prejudice.
Petitioner does not argue that his procedural defaults should be excused under the miscarriage of justice exception. To satisfy the fundamental miscarriage of justice exception, a habeas petitioner must show that “a constitutional violation has resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995). Indeed, such a claim would be without merit as Petitioner does not proffer any new reliable evidence to support actual innocence. Id. at 324 (“To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.”).
C. Ground Eight: Alleged Juror Misconduct
Petitioner's final claim for habeas relief asserts that his Sixth and Fourteenth Amendment rights to confront witnesses and to an impartial jury were violated “when a juror interjected her personal detailed knowledge of the terrain surrounding the crime scene into deliberations.” (Doc. 1 at 88) (emphasis omitted). Petitioner concedes that he did not present Ground Eight in any of his state court proceedings. (Doc. 22 at 43). Petitioner does not dispute Respondents' assertion in their Answer (Doc. 18 at 104) that Ground Eight is procedurally defaulted. The undersigned finds that because Petitioner would be precluded from returning to state court to exhaust Ground Eight under adequate and independent procedural rules, Ground Eight is procedurally defaulted. See Ariz. R. Crim. P. 32.2(a)(3), 32.1(e), 32.4(b)(3)(A). Petitioner argues that there is cause to excuse the procedural default based on (i) “the state funding authority's refusal to grant the funding required for the investigation necessary to establish this juror misconduct claim” and (ii) “state postconviction counsel's ineffectiveness in failing to raise the claim based on the available information.” (Doc. 22 at 43).
1. Purported Insufficient Investigative Funding Does Not Establish Cause
In support of Ground Eight, Petitioner references three declarations signed in 2022 that are not part of the state court record. Two of the declarations are by Jurors Huff and Pennington, who were previously interviewed by Petitioner's investigator in 2019. (Doc. 1-6 at 159-64). The final declaration is not by a juror, but rather by an individual who interviewed jurors. (Id. at 158). The declaration summarizes a June 19, 2022 interview with a juror named John Lenz. (Id.). Respondents “object to [Petitioner's] inclusion of these three exhibits and ask the Court to disregard them and their incorporation into Ground 8.” (Doc. 18 at 106 n. 39).
In addressing the procedural default of Ground Eight, Petitioner asserts that there is a “clear ‘cause' here: the state court denied the funding needed to uncover the factual basis of the claim.” (Doc. 22 at 45). In 2019, Petitioner's PCR counsel requested the Yavapai County Public Defender's Office to approve an additional 110 hours of funding to enable an investigator to interview jurors from Petitioner's trial. (Doc. 22-1 at 1-3). PCR counsel's request for funding states: “Undersigned counsel has already run locates for the jurors in this case.” (Id. at 2). The Yavapai County Public Defender's Office noted that the request is “more than 9 hours of time per juror.” (Doc. 22-2 at 1). The Public Defender's Office approved “3 hours per juror,” explaining that it “is frankly far more than is needed, for a total of 36 hours.” (Id.).
In an October 21, 2019 email to PCR counsel, Petitioner's criminal investigator stated that she “conducted in person interviews with jurors Salyers, McMaster, Pennington, Huff, and Porter.” (Doc. 22-3 at 1) (emphasis added). The email states that “When I complete written reports . . . I will be out of hours. Do you want to request additional hours for the remaining juror interviews?” (Id.). Petitioner has not indicated whether PCR counsel requested additional hours.
Further, Petitioner has not persuasively asserted that there was a basis to conclude that there may be a juror misconduct claim at the time of the 2019 funding request. Indeed, the 2019 request merely explains that the “investigation into potential juror misconduct and/or bias has never been undertaken” and “[j]uror investigation is a necessary component of post-conviction litigation.” (Doc. 22-1 at 2) (emphasis added). The Supreme Court has not “suggest[ed] [that] the State has an obligation to pay for investigation of as yet undeveloped claims[.]” Williams v. Taylor, 529 U.S. 420, 443 (2000). The undersigned is not persuaded by Petitioner's first argument asserting cause to excuse the procedural default of Ground Eight.
2. Alleged Ineffective Assistance of PCR Counsel Does Not Establish Cause
Petitioner argues that if the Court finds that “the denial of investigative funding does not excuse initial PCR counsel's failure to develop and present the claim in state court, then it must logically recognize that initial PCR counsel had a duty to raise the claim-something he unreasonably failed to do, constituting an additional cause pursuant to Martinez.” Yet the narrow exception announced in Martinez “treats ineffective assistance by [PCR counsel] as cause to overcome the default of a single claim-ineffective assistance of trial counsel- in a single context-where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal.” Davila v. Davis, 582 U.S. 521, 524-25 (2017). As Ground Eight does not allege the ineffective assistance of trial counsel, Martinez does not apply.
3. The Procedural Default of Ground Eight is Not Excused
The undersigned finds that Petitioner has failed to establish that the procedural default of Ground Eight is “due to an external objective factor that cannot fairly be attributed to him.” Smith v. Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007). Petitioner has therefore failed to show cause for his procedural default. Where a petitioner fails to establish cause, the Court need not consider whether the petitioner has shown actual prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). Accordingly, the undersigned finds that Petitioner has not satisfied the “cause and prejudice” exception to excuse the procedural default of Ground Eight.It is recommended that the Court dismiss Ground Eight with prejudice.
As discussed, Petitioner does not argue that his procedural defaults should be excused under the miscarriage ofjustice exception and such a claim would be without merit as Petitioner does not proffer any new reliable evidence to support actual innocence. Schlup, 513 U.S. at 324 (“To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.”).
IV. REQUEST FOR AN EVIDENTIARY HEARING
In the Prayer for Relief section of the Petition, Petitioner requests an evidentiary hearing. (Doc. 1 at 97). AEDPA imposes “an express limitation on the power of a federal court to grant an evidentiary hearing and [has] reduced considerably the degree of the district court's discretion.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999) (internal quotation marks and citation omitted). 28 U.S.C. § 2254(e)(2) provides that if a habeas petitioner “has failed to develop the factual basis of a claim in State court proceedings,” no evidentiary hearing on the claim will be held in federal court unless the petitioner shows that:
(A) the claim relies on:
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2). “Finally, even if all of these requirements are satisfied, a federal habeas court still is not required to hold a hearing or take any evidence.” Shinn v. Ramirez, 596 U.S. 366, 381-82 (2022). The Supreme Court has explained that “[l]ike the decision to grant habeas relief itself, the decision to permit new evidence must be informed by principles of comity and finality that govern every federal habeas case.” Id.
Case law has clarified that review under Section 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (holding that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits”); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013) (stating that Pinholster and the statutory text make clear that limitation on evidentiary hearings applies to Section 2254(d)(2) claims as well). In Gulbrandson, the Ninth Circuit Court of Appeals held that a U.S. District Court did not abuse its discretion in denying a habeas petitioner's request for an evidentiary hearing regarding the petitioner's ineffective assistance of counsel claims. The Court explained that “the state court's rejections of these claims were neither contrary to, nor involved unreasonable applications, of Strickland. Thus, Pinholster bars a habeas court from any further factual development on these claims.” Gulbrandson, 738 F.3d at 994; see also Stokley v. Ryan, 659 F.3d 802, 807 (9th Cir. 2011) (finding that a habeas petitioner was not entitled to an evidentiary hearing as the petitioner failed to present a colorable ineffective assistance of counsel claim). Further, “if the record refutes the [habeas] applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (a hearing is not required if the allegations would not entitle the petitioner to relief under Section 2254(d)); Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record.”) (emphasis in original).
The undersigned finds that the record is adequately developed. It is recommended that the Court deny Petitioner's request for an evidentiary hearing. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (finding “a district court is not obligated to hold evidentiary hearings to further develop the factual record” when the record is “amply developed” and explaining that “[d]istrict courts have limited resources (especially time), and to require them to conduct further evidentiary hearings when there is already sufficient evidence in the record to make the relevant determination is needlessly wasteful”).
V. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that Grounds One, Two, Three, Four, Five, and Six of the Petition (Doc. 1) be DENIED and Grounds Seven and Eight be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that the Court deny Petitioner's request for an evidentiary hearing.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of Grounds Seven and Eight of the Petition (Doc. 1) is justified by a plain procedural bar and Petitioner has not made a substantial showing of the denial of a constitutional right in his remaining claims for relief.
This Report and 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 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, 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. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 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 Fed.R.Civ.P. 72.