Opinion
CV 23-00382 PHX GMS (CDB)
01-04-2024
Angel Flores, Petitioner, v. Ryan Thornell, Director of the Arizona Department of Corrections, et al., Respondents.
HONORABLE G. MURRAY SNOW JUDGE.
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge.
Petitioner Angel Flores, who is represented by counsel, seeks relief from his state court conviction and sentence pursuant to 28 U.S.C. § 2254.
I. Background
The following is taken from the Arizona Court of Appeals' decision denying relief in Flores' direct appeal.
The victim, J.K., was an eighty-nine-year old woman at the time of the subject incident. She lived alone. One morning in April 2013, she was woken by someone ringing her doorbell “like an alarm.” She rushed to the door without turning on the lights. Once at the door, J.K. asked who was there. A man's voice responded claiming to be J.K.'s neighbor. She didn't recognize the voice, so she cracked open the door to hear better. The man pushed the door back with J.K. behind it, knocking her against the wall.
The man pushed his way into J.K. 's home and covered her mouth. He said if she was quiet, he would not hurt her. J.K. thought the man was there to rob her; she told him if he wanted money it was in her purse. The man told J.K. he did not want money. Instead, he said, “[I'm] going to fuck [you].” J.K. fought to get away, but he threw her into a nearby chair. He grabbed her
arms, put them above her head, and yanked off her pajama bottoms and panties. J.K. was “twisting and turning and begging him to leave [her] alone.” J.K. heard the man unzip his pants, but in the dark she never saw his penis. The man attempted to put his penis in J.K.'s vagina, but was unsuccessful.
The man lifted J.K. from the chair and pushed her to the ground. J.K. landed on her side and tried to crawl away. The man grabbed J.K.'s waist from behind and once again attempted to put his penis in her vagina. J.K. testified that she could feel his penis in her vaginal area, but he was unable to actually insert his penis into her vagina. He then shoved J.K.'s head into the ground, stood up, and walked out of the house.
Defendant was arrested in September 2014 after DNA analysis placed him at the crime scene. [footnote 1: Shortly after defendant's arrest, a court ordered defendant's girlfriend to provide her DNA to the police. The girlfriend's DNA matched the unknown female's DNA found on J.K.'s shirt and underwear.] The state charged defendant with burglary in the second degree, a class three felony (count one); kidnapping, a class two felony (count two); and two counts of sexual assault, both class two felonies (count three and four).
After a jury trial, defendant was convicted as charged. Prior to sentencing, the defendant “knowingly, intelligently, and voluntarily” admitted that he was on probation for a prior felony [facilitation to commit trafficking in stolen property (ECF No. 10-6 at 1126)] at the time of the offense.... The trial court sentenced defendant to presumptive terms of 6.5 years for count one, 9.25 years for count two, 10.5 years for count three, and 10.5 years for count four. The court ordered the sentences for counts one,
two, and three to run concurrently and credited each sentence with 534 days of presentence incarceration credit.....State v. Flores, 2017 WL 1365978, at *1-2 (Ariz.Ct.App. Apr. 13, 2017).
The victim failed to identify Flores as her assailant prior to or at trial. Additionally, in his post-conviction pleading Flores asserted:
[The victim] worked for about 2.5 hours with [a] police forensic artist [] to produce an artist's rendition of her estimated 35-year-old assailant. The image showcases the large stud earrings that were described by the victim who gave the resultant sketch an 8 of possible [10] for being an accurate drawing of the assailant. J.K. would later be unable to pick out Angel Flores from a line-up, from a single image [driver's license photo] showing, or at trial.
After the completion of the scene investigation and J.K. returning home, at approximately 5:45 p.m. she received a phone call from the assailant who told her “You are trying to get me arrested. I saw police cars everywhere. I am going to take care of it.” J.K. called police. The call was traced back to a number assigned to [] Romero who is also a member of the Emblem Club as is J.K. At the time of the call Romero was at a bar and the surveillance video shows she was not using her phone at the time the call[] was made. The explanation offered at trial was that Romero's number had been spoofed.(ECF No. 10-8 at 6-7 (italics in original). See also ECF No. 10-19 at 157-58). Flores testified at his trial, denying he had committed the crimes.
Flores filed a notice of appeal, and was appointed counsel. (ECF No. 10-6 at 1130, 1133). Flores' appellate counsel filed an Anders brief. (ECF No. 10-6 at 1133-41). Flores filed a pro per brief, asserting a violation of his right to a speedy trial and also arguing the evidence of sexual assault was insufficient to sustain his convictions on those charges. (ECF No. 10-7 at 2-9). The Arizona Court of Appeals denied relief, see Flores, 2017 WL 1365978, at *2-3, and the Arizona Supreme Court denied review.
Flores filed a petition for state post-conviction relief and was appointed counsel. (ECF No. 10-7 at 39-40, 48). Counsel notified the court they could find no meritorious claims to raise on Flores' behalf. (ECF No. 10-7 at 42-46). Flores was given leave to substitute counsel. (ECF No. 10-7 at 48-50, 52-53). Flores' retained post-conviction counsel filed a petition asserting: the existence of newly-discovered material facts which would change the verdict; ineffective assistance of trial counsel “because of a failure to retain and present competent experts and by failing to object to the jurors seeing defendant shackled;” and a violation of Flores' due process rights. (ECF No. 10-8 at 3-4; ECF No. 10-9; ECF No. 10-10). The state habeas trial court granted Flores' motion for postconviction discovery. (ECF No. 10-12). Flores then filed an amended petition. (ECF Nos. 10-14 to 10-18).
The state habeas trial court, which was not the convicting court, conducted an evidentiary hearing (ECF No. 10-19 at 39-115). The state habeas trial court summarized Flores' post-conviction claims as follows:
1. Newly discovered evidence;
a. Defense DNA expert's opinion that the defendant is excluded from the DNA results on the chair and new YSTR testing on the vaginal swabs that may exclude Defendant.
b. Post-conviction testing of every shoe claimed to have been worn by Defendant does not show “strong association” to the shoe prints left outside the victim's home.
2. Ineffective assistance of counsel
a. Trial counsel failed to show that Defendant was not a contributor to the stains.
b. Trial counsel failed to use expert testimony to inform jurors of unique nature of YSTR testing.
c. Trial counsel failed to present an explanation of Vanessa's DNA at the crime scene.
d. Trial counsel failed to offer a third-party defense.(ECF No. 10-19 at 13031).
The state habeas trial court summarized the testimony presented at the postconviction evidentiary hearing as follows:
As part of his Post-Conviction Relief investigation, defendant obtained samples for DNA testing; specifically, swabs from the chair, and the genital and vaginal swabs. These samples were provided to the defendant's DNA expert, George Shiro, for further DNA analysis. Mr. Shiro also reviewed the data from the Phoenix crime lab's testing.
Mr. Shiro did not dispute the Phoenix lab's testimony that the defendant was the YSTR contributor to the back collar of the J.K's pajama top. He also did not dispute the testimony by the police crime lab technicians that the defendant was the minor DNA contributor to J.K's front collar. He did not dispute that Vanessa's DNA was found on J.K's pajama top and underwear. Mr. Shiro also did not dispute the statistics that were associated with these DNA findings. Mr. Shiro agreed that the absence of DNA does not equate to a person not having contact with an item. ...
On 9/18/2020, at the evidentiary hearing, Mr. Shiro opined, without further testing, that in fact the Defendant could be excluded from the DNA results obtained from J.K.'s underwear waist band. After further testing, Mr. Shiro testified that the Defendant can be excluded from the chair. Mr. Shiro testified that the vaginal swabs produced a YSTR result. There are three possibilities from that result because of one location where there is either the presence of 2 men, artifact, or one person with a binary allele. If it is a binary allele the Defendant would be excluded. The Defendant is a match to the DNA found if it is artifact or if the sample includes 2 people.(ECF No. 10-19 at 130).
In an order entered November 16, 2020, the state habeas trial court denied postconviction relief, as explained more thoroughly infra. (ECF No. 10-19 at 128-38).
Flores filed a petition for review, asserting the state habeas trial court failed to adequately review the trial transcripts when determining “newly discovered DNA evidence” would probably not have changed the verdict, citing his post-conviction expert's testimony that they had enhanced the DNA found on the chair cushion and testing excluded Flores as the contributor of this DNA. (ECF No. 10-19 at 158-59). Flores further argued post-conviction testing of the vaginal stain DNA, which was not tested prior to his trial, indicated he was excluded as a DNA contributor to this evidence, noting this “exculpatory evidence” was not presented at trial. (ECF No. 10-19 at 160-61). Flores also alleged the state habeas trial court erred in dismissing his ineffective assistance of counsel claims. The appellate court granted review but summarily denied relief (ECF No. 10-20 at 18-19), and the state Supreme Court denied review (ECF No. 10-20 at 21).
II. Claims for § 2254 Relief
In his § 2254 petition Flores asserts:
1. His trial counsel's performance was unconstitutionally ineffective because counsel failed to retain and present competent experts to rebut the DNA evidence and show Flores was not a contributor to DNA found on the victim's chair, underwear, and pajama bottoms.
2. He was denied the effective assistance of counsel because counsel failed to use expert testimony to inform the jurors regarding the unique nature of Y STR DNA testing.
3. Counsel was ineffective because they failed to present evidence that every shoe known to have been owned or worn by Flores did not show a strong association to the shoeprints left in J.K.'s home.
4. Counsel was ineffective for failing to present an explanation for the rich source of Flores' girlfriend's DNA found at the crime scene.
5. He was denied the effective assistance of counsel because counsel failed to present evidence that another person committed the attack on J.K.
6. Flores' constitutional rights were violated when juror(s) saw him shackled and trial counsel failed to demand voir dire to determine the extent of the prejudice arising from the juror(s) seeing Flores shackled.(ECF No. 1).
Respondent contends some of Flores' claims are procedurally defaulted and the claims properly exhausted in the state courts should be denied on the merits because the denial of the claims was not an unreasonable application of federal law. (ECF No. 10).
III. Analysis
A. Governing Law
1. Exhaustion and procedural default
Absent specific circumstances the Court may only grant federal habeas relief on the merits of a claim which has been “properly” exhausted in the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a procedurally correct manner. See Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). In noncapital cases arising in Arizona, the “highest court” test of the exhaustion requirement is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008). A petitioner has not exhausted a federal habeas claim if he still has the right to raise a previously-unpresented claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). Because the exhaustion requirement refers only to remedies still available to the petitioner at the time they file their action for federal habeas relief, it is satisfied if the petitioner is procedurally barred from pursuing their claim in the state courts. See Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). If it is clear the habeas petitioner's claim is procedurally barred pursuant to state law, the claim is exhausted by virtue of the petitioner's “procedural default” of the claim. Id. at 92.
A claim is procedurally barred when the petitioner failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so. See, e.g., Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). A procedural default occurs when a petitioner has never presented a federal habeas claim in state court and he is now barred from doing so by the state's procedural rules, including rules regarding waiver and the preclusion of claims. See Castille, 489 U.S. at 351-52. In Arizona, claims not previously presented to the state courts in either a direct appeal or on collateral review are generally barred from federal habeas review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive Rule 32 action is permitted. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a) & (b). Because the Arizona Rules of Criminal Procedure regarding timeliness, waiver, and the preclusion of claims bar Flores from now returning to the state courts to exhaust any unexhausted federal habeas claims, he has exhausted, but procedurally defaulted, any claim not previously fairly presented to the Arizona Court of Appeals in his appeal or postconviction petition. See Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). See also Stewart v. Smith, 536 U.S. 856, 860 (2002).
If a petitioner procedurally defaulted his federal habeas claims in the state courts he is not entitled to a review of the merits of the claims by the federal habeas court absent a showing of cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). “Cause” is a legitimate excuse for the petitioner's procedural default of the claim, i.e., an objective factor outside of the defense's control, and “prejudice” is actual harm resulting from the alleged constitutional violation. E.g., Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). Under the “cause” prong of this test, Flores bears the burden of establishing that some objective factor external to the defense impeded his compliance with Arizona's procedural rules for the presentation of claims arising from his conviction. See Moorman v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005); Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). Examples of cause sufficient to excuse a procedural default include a showing that the factual or legal basis for a claim was not reasonably available, or that “some interference by officials” made compliance with the State's procedural rules impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. See Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998).
Petitioners who default federal habeas claims may also obtain review if they show that a failure to consider the claims would result in a fundamental miscarriage of justice. See, e.g., Bradford v. Davis, 923 F.3d 599, 610 (9th Cir. 2019). A petitioner meets the “fundamental miscarriage of justice” exception only by establishing that, under the probative evidence, he has a colorable claim of factual, rather than legal, innocence. Bousley v. United States, 523 U.S. 614, 623 (1998) (stating that “actual innocence means factual innocence, not mere legal insufficiency”); Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008). See also Valencia v. Ryan, 2012 WL 1681991, at *4 (D. Ariz. Jan. 9, 2012). Because the required showing is one of factual innocence, to surmount a procedural default the petitioner must present “‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eye-witness accounts, or critical physical evidence-that was not presented at trial.'” Cook, 538 F.3d at 1028, quoting Schlup v. Delo, 513 U.S. 298, 324 (1995). See also McQuiggin v. Perkins, 569 U.S. 383, 399 (2013); Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011). To pass through the actual innocence/Schlup gateway to a hearing on the merits of the defaulted claim, a petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399, quoting Schlup, 513 U.S. at 327. The miscarriage of justice exception to the procedural default rule “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original).
2. Standard of review of exhausted claims
A federal court cannot grant habeas corpus relief to a state prisoner on a claim rejected on the merits by the state courts unless the petitioner demonstrates the state court's decision denying the claim “was contrary to” or an “unreasonable application” of federal law, or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Harrington v. Richter, 562 U.S. 86, 97-98 (2011). See also 28 U.S.C. § 2254(d)(1). This standard is “difficult to meet.” Harrington, 562 U.S. at 102. It is a “highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation and internal quotation marks omitted).
A state court's decision is “contrary to” federal law if it applies a rule of law that contradicts the “controlling” law set forth in Supreme Court cases at the time of the state court's decision, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and arrives at a result different. E.g., Mitchell v. Esparza, 540 U.S. 12, 14 (2003). The state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012). An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree on the correctness of the state court's decision.'” Id., citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
On habeas review, the federal court looks through unexplained state court decisions to the last reasoned state court decision to address the claim at issue. See, e.g., Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
3. The Strickland standard
The “clearly established” federal law regarding an ineffective assistance of counsel claim is stated in the United States Supreme Court's opinion in Strickland v. Washington. To establish that he was denied the effective assistance of counsel, a habeas petitioner must show his attorney's performance was deficient and that the deficiency prejudiced the outcome of his criminal proceedings. See Strickland v. Washington, 466 U.S. 668, 687 (1984). It is the petitioner's burden to demonstrate both prongs of the Strickland test. E.g., Knowles v. Mirzayance, 556 U.S. 111, 122 (2009); Vega v. Ryan, 757 F.3d 960, 969 (9th Cir. 2014).
With regard to the performance prong of the Strickland test, the petitioner must overcome the strong presumption that counsel's conduct was within the range of reasonable professional assistance required of attorneys in that circumstance. See Strickland, 466 U.S. at 687. Counsel's performance will be held unconstitutionally deficient only if the habeas petitioner proves counsel's actions “fell below an objective standard of reasonableness,” as measured by “prevailing professional norms.” Id. at 688. See also Cheney v. Washington, 614 F.3d 987, 994-95 (9th Cir. 2010). Counsel's choice of a reasonable defense strategy, and any decisions made regarding the implementation of that strategy, are “virtually unchallengeable.” Strickland, 466 U.S. at 690. See also Ayala v. Chappell, 829 F.3d 1081, 1103 (9th Cir. 2016). It is well settled that “counsel's tactical decisions at trial ... are given great deference and must [] meet only objectively reasonable standards.” Elmore v. Sinclair, 799 F.3d 1238, 1250 (9th Cir. 2015). See also Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006).
To establish prejudice, the petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. See also Harrington, 562 U.S. at 788. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. This standard for assessing prejudice requires a substantial, not just “conceivable,” likelihood of a different result. Id. at 693. See also Sanchez v. Davis, 994 F.3d 1129, 1139 (9th Cir. 2021), cert. denied sub nom., Sanchez v. Broomfield, 143 S.Ct. 355 (Oct. 17, 2022). When considering whether a habeas petitioner was prejudiced by his counsel's alleged errors, “the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. When answering this question, the federal habeas court must necessarily consider the strength of the state's case against the petitioner. See Wainwright v. Sykes, 433 U.S. 72, 91 (1977); Djerf v. Ryan, 931 F.3d 870, 883 (9th Cir. 2019).
B. Analysis of Flores' claims for relief
1. Ineffective assistance of counsel - failure to present an expert at trial
Flores contends his trial counsel was ineffective for failing to retain and present a competent expert to rebut the DNA evidence and show Flores was not a contributor to DNA found on the victim's chair, underwear, and pajama bottoms. In his state postconviction action Flores alleged trial counsel was ineffective for failing to show that Flores was not a contributor of DNA to the stains found on the victim's underwear or pajama bottoms, and he further asserted he had “newly discovered evidence” establishing his innocence, i.e., an expert opinion that he was excluded as being a contributor of the DNA found on a chair where the victim was assaulted.
Flores' first federal habeas claim is presented in a somewhat different context than the presentation of the claim in state court. However, notwithstanding any procedural default of his claim with regard to the DNA found on the chair, the claim may be denied on the merits, see 28 U.S.C. §2254(b)(2), because Flores is unable to establish any prejudice arising from counsel's alleged failure to present expert testimony regarding this evidence. With regard to Flores' claim of newly discovered evidence, the state habeas trial court found and concluded:
Defendant's expert, Mr. Shiro, tested the remaining swab from the chair. Able to extract more male DNA from the sample, Mr. Shiro opined that the Defendant is excluded from the male DNA found in that stain. However, the results are still a partial profile. The State's expert at trial testified that she could make no conclusions as to the minor contributor in the stain because of the limited information.(ECF No. 10-19 at 132). In denying relief, the state habeas trial court found “[a]dditional testing of the chair stain resulted in [the] defense expert having a different opinion than that of the State's trial expert.” (Id.). The court noted an evidentiary hearing had been conducted and that during the hearing “the defense expert opined that one of three possible scenarios exist; and two inculpate the Defendant.” (Id.). The habeas trial court concluded the post-conviction defense expert's testimony that Flores could be excluded as a contributor to the DNA found on the chair “would not have probably changed the verdict if known at the time of trial,” given that Flores could not be excluded as a contributor to the DNA evidence found on the victim's pajama collar and his girlfriend being a “major” DNA contributor to the stains found on the victim's pajama collar and her underwear. (ECF No. 10-19 at 133). The court emphasized that Flores had not presented a reasonable explanation as to how his girlfriend's DNA got on the victim's clothing. (Id.).
Flores fails to establish that his counsel's performance was deficient with regard to the failure to present expert testimony regarding the DNA found on the chair, because the expert testimony presented at the post-conviction hearing did not conclusively establish that Flores was not present at the scene of the crime. Additionally, given the other evidence presented at trial and trial counsel's thorough exploration of the DNA evidence before the jury, Flores is unable to establish any prejudice arising from his trial counsel's failure to present expert witness testimony regarding the DNA found on the chair.
The state habeas trial court applied the standard stated in Strickland to Flores' ineffective assistance of counsel claim regarding the failure to present expert testimony on the DNA evidence found on the victim's underwear and pajama bottoms. The court noted “the United States Supreme Court has declined to articulate specific guidelines for the deficient performance prong, instead emphasizing that [t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” (ECF No. 10-19 at 134 (internal quotations omitted), citing Wiggins v. Smith, 539 U.S. 510, 521 (2003)). The court represented the prejudice prong of the Strickland test as follows:
... a defendant must affirmatively prove prejudice by “show[ing] that there is 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 . “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” (Id.).
***
In making its assessment of prejudice, “it is necessary [for the court] to consider all the relevant evidence that the jury would have had before it” if counsel pursued a different path. Wong v. Belmontes, 558 U.S 15, 20 (2009) []; see also [sic] Strickland, 466 U.S. at 695 ..(ECF No. 10-19 at 134-35).
Applying this standard, the state habeas trial court determined:
Contrary to defendant's assertion, evidence was presented at trial that the Defendant was excluded as contributing to the DNA found on the victim's PJ bottom. Testimony at trial regarding the underwear was that the three person mixture was the victim, defendant's girlfriend and no conclusions as to the third person. Defendant's post-conviction expert did not retest the underwear, he simply offered a different opinion.
Therefore, taken in light of all the other DNA evidence presented, as outlined above, [Flores] failed to establish actual prejudice or that the outcome at trial would have probably changed.(ECF No. 10-19 at 136).
The state court's denial of Flores' claim regarding counsel's failure to provide expert testimony regarding this evidence was not clearly contrary to nor an unreasonable application of clearly established federal law. The court, applying Strickland, reasonably concluded that in the light of the evidence presented at trial, Flores failed to establish his counsel's performance was deficient or that, had counsel presented a DNA expert, the jury would have reached a different verdict. See Murtishaw v. Woodford, 255 F.3d 926 (9th Cir. 2001) (“it is essential to compare the evidence that actually was presented to the jury with the evidence that might have been presented had counsel acted differently” (internal quotations omitted)). A thorough review of the record indicates a high probability that trial counsel made a sound strategic decision to challenge the inconclusive nature of the DNA evidence through examination of the State's witnesses, and counsel concluded presentation of an independent expert would likely have confused the issues and not had a persuasive impact on the jury. Trial counsel's tactical choices deserve deference when counsel makes an informed decision based on strategic trial considerations and the decision appears reasonable under the circumstances. See, e.g., Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). A trial attorney's strategic decisions do not constitute ineffective assistance simply because in retrospect different tactics might have been available. See Strickland, 466 U.S. at 689. See also Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (“Which witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and that is one that [a reviewing court] will seldom, if ever, second guess.”). The ultimate decision not to call witnesses at trial is well within counsel's “full authority to manage the conduct of the trial.” Taylor v. Illinois, 484 U.S. 400, 418 (1988) (“Putting to one side the exceptional cases in which counsel is ineffective, the client must accept the consequences of the lawyer's decision ... not to put certain witnesses on the stand....”).
Additionally, with regard to prejudice, DNA consistent with Flores' DNA was found at the scene and the DNA of his girlfriend was found at the scene, which the jury apparently found persuasive notwithstanding defense counsel highlighting and emphasizing to the jury that no DNA evidence was conclusively established as coming from Flores. Flores offers nothing but speculation that an expert witness's testimony would have swayed the jury, and this is insufficient to support a Strickland claim, particularly in light of Flores' trial counsel's thorough cross-examination of the State's DNA expert witnesses as part of a reasonable trial strategy regarding reasonable doubt. A petitioner bears the burden of demonstrating counsel's choices regarding the presentation of his defense constituted deficient performance and were prejudicial. See Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009); Rego v. Sherman, 704 Fed.Appx. 634, 638 (9th Cir. 2017); Lazo v. Clark, 387 Fed.Appx. 754, 755 (9th Cir. 2010). A petitioner's speculation that counsel failed to adequately investigate a potential line of defense or failed to present particular testimony rarely creates a “reasonable probability” that a different result would have occurred absent the purportedly deficient representation. Strickland, 466 U.S. at 694. Counsel's choice of a sound defense strategy, and any decisions made regarding the implementation of that strategy, are “virtually unchallengeable.” Id. at 690. See also Ayala, 829 F.3d at 1103. It is well settled that “counsel's tactical decisions at trial ... are given great deference and must similarly meet only objectively reasonable standards.” Elmore, 799 F.3d at 1250. See also Reynoso, 462 F.3d at 1112.
2. Ineffective assistance of counsel - expert testimony regarding Y STR DNA
Flores argues he was denied the effective assistance of counsel because counsel failed to use expert testimony to inform the jurors regarding the unique nature of Y STR DNA. Flores raised this claim in his state action for post-conviction relief. The state habeas trial court denied relief, concluding: “evidence as to the limitations of YSTR testing was clearly presented at trial. ... defendant's claim that calling another expert to further explain what was clearly presented failed to establish actual prejudice or that the outcome at trial would have probably changed.” (ECF No. 10-19 at 136).
The state court's denial of this claim was not clearly contrary to nor an unreasonable application of federal law. Defense counsel's questioning of the State's experts regarding Y STR DNA was extensive, and counsel thoroughly explored the inability of the state to establish Flores as a certain contributor of the DNA found at the scene of the crime. Counsel thoroughly questioned the prosecution's experts regarding full and partial STR DNA profiles, inter alia eliciting testimony that a partial profile increases the likelihood of someone else having that same DNA. (ECF No. 10-6 at 235-38, 271-733). Counsel also elicited testimony emphasizing the multiple unknown sources of DNA found at the scene, further emphasizing the weakness of the DNA evidence in the case. (ECF No. 10-6 at 414, 420-27, 470-78). Nor has Flores established counsel's failure to present an expert witness with regard to Y STR DNA was prejudicial; Flores' arguments again ignore the portions of the record that show DNA consistent with (i.e., could not be excluded as) Flores' DNA was found in two spots on the victim's shirt (ECF No. 10-6 at 562-66, 570, 601-03) and his girlfriend's DNA was found on the victim's shirt and underwear (ECF No. 10-6 at 56769, 578, 613).
3. Ineffective assistance of counsel - shoe evidence
Flores asserts counsel was ineffective because they failed to present evidence that every shoe known to have been owned or worn by Flores did not show a strong association to the shoeprints left outside J.K.'s home. This claim was not exhausted as an ineffective assistance of counsel claim; in his state habeas action Flores asserted, as part of his claim of newly-discovered evidence: “Post-conviction testing of every shoe claimed to have been worn by Defendant does not show ‘strong association' to the shoe prints left outside the victim's home.” (ECF No. 10-19 at 130). The state court denied relief, finding and concluding, inter alia, that testimony about shoes tested after conviction which did not “necessarily” match the tread found at the scene, “would not have probably changed the verdict if known at the time of trial.” (ECF No. 10-19 at 177).
Regardless of any failure to exhaust this claim in the state courts as one of ineffective assistance of counsel, Flores fails to establish that his counsel's performance was deficient in this regard, or that he suffered any prejudice arising from the alleged error. Counsel elicited a great deal of testimony, including from Flores, regarding the shoes he owned at the time of the crime and at the time of his arrest several months later. Counsel highlighted for the jury that the prosecution failed to conclusively establish any shoes owned by Flores taken from his residence matched the shoe prints at the crime scene. Flores is unable to establish his counsel's performance was deficient because any further evidence regarding the shoes would have had at best minimal impact, and and could have confused the jury; notably, Flores' home was not searched until several months after the crimes were committed, leaving him adequate time to dispose of any shoes he might have possessed at the time of the crime. Flores can only speculate that the shoes his post-conviction expert examined were all the shoes Flores wore or owned at the time of the crime. Notwithstanding any such testimony at trial, the State could have argued that Flores possessed and discarded any shoes matching the prints found at the crime scene in the months between the crime and the search of his home. Additionally, Flores cannot establish that any alleged deficiency regarding the shoes prejudiced him given the evidence presented at trial. This evidence included DNA consistent with Flores' being found on the victim's pajama front and back collar, and Flores' girlfriend's DNA being found on the victim's underwear. Even if trial counsel had presented additional evidence that shoe prints found at the scene did not match any shoes known to have been in Flores' possession, the jury could have convicted Flores given the evidence that his girlfriend's DNA was found at the scene of the crime.
4. Ineffective assistance of counsel - explanation for girlfriend's DNA
Flores contends his trial counsel was ineffective for failing to present a persuasive explanation for the fact that Flores' girlfriend's DNA was found at the crime scene. Flores raised this claim in his post-conviction action, and the state habeas trial court determined:
Defendant argues his counsel was ineffective for failure to present evidence that some third person either went through their trash or took scrap from Defendant's father's truck bed and could have brought in Vanessa's DNA to the crime scene.
THE COURT FINDS this explanation is not reasonable and does not establish actual prejudice or that the outcome at trial would have probably changed.(ECF No. 10-19 at 137).
Flores cannot establish deficient performance or prejudice because his claim is based on speculation and conjecture. The theory presented by defense counsel at trial, that any DNA arrived on the victim because Flores and his girlfriend came into contact with her outside her home (i.e., at a grocery store or bank), was more plausible than the explanation proffered by Flores, i.e., that someone found trash with the girlfriend's DNA on it and transferred it to the crime scene when they committed the crime.
5. Ineffective assistance of counsel - third-party defense
Flores contends he was denied the effective assistance of counsel because defense counsel failed to present evidence that another person committed the crimes. Flores argues trial counsel was ineffective for failure to argue a third-party defense based on an assertion that the same person who attacked J.K was the person who attacked another woman almost two years later. Flores raised this claim in his state post-conviction action. The state court denied relief, finding and concluding:
THE COURT FINDS that defendant's claim his trial counsel was ineffective for failure to present a third-party defense do not establish actual prejudice or that the outcome at trial would have probably changed.
THE COURT FURTHER FINDS that defendant's claim his trial counsel was ineffective for failure to present allegations that the same person who attacked J.K was the person who attacked another woman almost 2 years later does not present a colorable claim and is without merit.
In fact, the court notes, it is highly unlikely the trial court would have allowed this evidence to be admitted at trial.(ECF No. 10-19 at 137).
Flores has not established that counsel was deficient because counsel did argue that someone else was J.K.'s attacker, emphasizing the paucity of evidence, other than the presence of his girlfriend's DNA at the scene, establishing Flores perpetrated the crimes. At trial, counsel highlighted J.K.'s inability to identify Flores as her attacker (ECF No. 106 at 282-85, 288-94); pointed out the inconsistencies between J.K.'s description of her attacker and Flores,(ECF No. 10-6 at 289-94); and continuously and extensively attacked the links between the attacker, as described by the victim, and Flores (including that the attacker wore distinctive earrings which were not found at Flores' residence and the State produced no testimony or evidence that Flores ever wore such earrings, and that the victim described her attacker as being 35 years of age when Flores was 19 at the time) (ECF No. 10-6 at 282-94).
Nor has Flores presented any evidence identifying “the person who attacked another woman almost two years later,” or linking this person to the attack on J.K., nor does he present any evidence that counsel knew of the second crime and/or any similarities between the crime of conviction and the crime which occurred two years later. Again, Flores' speculative conclusions are insufficient to establish counsel's performance was deficient or that he was prejudiced by counsel's alleged shortcomings.
6. Shackling
Flores contends his constitutional rights were violated when juror(s) saw him shackled and also asserts his trial counsel was ineffective for failing to demand voir dire to determine the extent of the prejudice arising from a juror or jurors seeing Flores shackled. Flores did not properly exhaust this claim in the state courts by fairly presenting it to the appellate court. Flores raised this claim in his initial post-conviction petition, but abandoned the claim in the amended petition filed after post-conviction discovery. Regardless of any failure to properly exhaust these claims they may be denied on the merits.
Flores asserts:
During the trial, on Thursday, November 19, 2015, a member(s) of the jury reported seeing Flores handcuffed and informed the bailiff. The report was not brought to the attention of the court and counsel until Monday, November 23rd. The court's report of the situation is set forth below:
THE COURT: (Comment to the bailiff) Oh, you believe it was Thursday? Okay. That one of the jurors informed Yvonne that - and Yvonne was not here that afternoon - that after they were released from the courtroom, that they weren't sure what was going on, whether they could leave or not, that the juror came out of the courtroom - out of the jury room and around the corner, and that they saw Mr. Flores in custody; and then that another juror asked her whether Mr. Flores is in jail or in custody. Is that correct, Yvonne? (Bailiff)?
THE BAILIFF: Correct.
In the exchange which followed between trial counsel and the court, a decision was made not to conduct a voir dire of the juror(s), nor to request a mistrial. The reasoning appears to be that the jurors had heard jail calls between Flores and his family, and it would be a “.. .shock to the jury that he was still in custody.”(ECF No. 2 at 11-12).The transcript of the trial court's proceeding represented supra is as follows:
THE COURT: And so at this point, I don't know. I obviously haven't talked to any of the jurors. I don't know whether only those -- whether only that one juror saw him in custody. And I don't know whether or not that juror discussed it with the rest of the jurors at all.
So -- and counsel, what -- how do you want to approach this? Obviously, one thing we can do is bring the juror in here and ask him. To some extent they already know Mr. Flores was in custody because of the jail calls. They don't specifically know that he is still in custody.
MR. LORONA: I'm thinking.
THE COURT: Yeah, I understand.
MR. LORONA: Obviously, this was a question I contemplated asking Angel when he was on the stand. And I'm sure I wouldn't have been able to ask him that question, whether or not he was in -- whether or not he was still in custody; right? And so -- and I guess where I sit, I don't know at this juncture -- they do know he was arrested. Maybe I'm not appreciating the prejudice.
THE COURT: Well, and that was my reaction, especially given the fact that they've heard the phone calls. They know they were made from the jail, and that it wouldn't necessarily, given the nature of the offense, if he was in custody at that time, I don't think, be a shock to the jury that he was still in custody.
MR. LORONA: Right. My preference would be not to address it at all.
THE COURT: And that's fine.
MR. LORONA: Yeah. I think that if we were to bring the juror in, it's kind of -- sort of singling out a juror, or maybe two jurors, and I would just rather not do that.
THE COURT: Uh-huh.
MR. LORONA: And so I just don't -- one, I don't appreciate the prejudice.
I don't think there is any.
And two, I don't want to single out any jurors at this point.
THE COURT: Sure.
MR. LORONA: It's just too late in the process I think.(ECF No. 10-6 at 898-900).
That a juror had a brief or inadvertent glimpse of a defendant “in custody” does not violate the defendant's due process rights unless it is established that this had a injurious impact on the jury's verdict. See, e.g., Rhoden v. Rowland, 172 F.3d 633, 636 (9th Cir. 1999) (granting habeas relief where the petitioner's shackles were visible from the jury box, and contrasting that with “[a] jury's brief or inadvertent glimpse of a defendant in physical restraints outside of the courtroom [which] has not warranted habeas relief.”), cited in Bernal v. Woodford, 281 Fed.Appx. 706, 707 (9th Cir. 2008). Compare Deck v. Missouri, 544 U.S. 622 (2005), and Dyas v. Poole, 317 F.3d 934 (9th Cir. 2003). Furthermore, Flores' trial counsel made a reasonable, strategic decision to not voir dire the jury regarding Flores' being in custody, and therefore Flores fails to establish counsel's performance was unconstitutionally deficient.
A thorough review of the trial transcript indicates Flores' counsel was thoroughly familiar with the evidence, that counsel thoroughly cross-examined the prosecution's witnesses, and that counsel prepared a sound trial strategy, which was highlighting the paucity of evidence establishing Flores was the perpetrator of the crime. Notably, counsel emphasized that the victim did not identify Flores as being her attacker either from a lineup, being shown his driver's license photo, or at trial, emphasized the victim's description of her attacker did not match Flores' description; emphasized the state failed to connect Flores to the phone call made by the attacker to the victim the day after the crime, and emphasized the DNA evidence found at the scene of the crime was not conclusive with regard to Flores.
Counsel argued to the jury:
We also heard testimony about full DNA, STR DNA, and partial STR DNA. Now all the experts came in and they say: Oh, man, STR DNA is unique to an individual. Over and over we heard about that. Then one of you asked a question about the sole partial DNA issue, because it had to be made clear, which is partial STR DNA is not unique to an individual. It's not unique. Full STR DNA is. Partial STR DNA isn't. And that's what they have as it pertains to Angel. Period. End of story.(ECF No. 10-6 at 948).
IV. Conclusion
The federal habeas claims which were rejected on the merits by the state courts must be denied because the state courts' conclusion regarding the claims was not clearly contrary to nor an unreasonable application of federal law. Flores' other claims for relief must be denied as without merit.
IT IS THEREFORE RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Wooten seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.