Opinion
CV-21-01299-PHX-DLR (DMF)
07-01-2022
Arnold Terrell Hawkins, Petitioner, v. David Shinn, et al., Respondents.
THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 5 at 4)
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-21-01299-PHX-DLR (DMF).
Petitioner Arnold Terrell Hawkins (“Petitioner”), who is confined in the Arizona State Prison Complex in Florence, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”) on July 23, 2021. (Doc. 1) On August 6, 2021, the Court ordered Respondents to answer 1 the Petition. (Doc. 5)
The Petition was docketed by the Clerk of Court on July 26, 2021. (Doc. 1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on July 23, 2021. (Doc. 1 at 11) Further, attached to the Petition is a photocopy of the envelope in which the Petition was mailed with a postage date stamp of July 23, 2021. (Doc. 1-1 at 1) Pursuant to the prison mailbox rule, this Report and Recommendation uses July 23, 2021, as the filing date. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”).
Respondents filed their Limited Answer to the Petition on July 2, 2021. (Doc. 7) Petitioner filed his Reply to the Limited Answer on September 23, 2021. (Doc. 8) The Court ordered Respondents to file a supplemental answer addressing the merits of Grounds 2, 5, 6, 8, and 14 of the Petition, as well as the transcripts listed on page three of the Limited Answer (Doc. 7 at 3) for November 4, 5, and 6, 2015, and for February 2, 2016. (Doc. 9) Respondents filed the aforementioned transcripts (Doc. 10) and a Supplemental Answer on March 21, 2022 (Doc. 11). Petitioner filed a Reply to the Supplemental Answer on April 19, 2022. (Doc. 12)
For the reasons set forth below, it is recommended that the Petition be denied and dismissed with prejudice and that a certificate of appealability be denied.
I. BACKGROUND
A. Charged Events
In its memorandum decision on Petitioner's direct appeal of his conviction and sentence, the Arizona Court of Appeals summarized the events leading to the charges, convictions, and sentences in Pinal County Superior Court, case number CR201502452, on which Petitioner's habeas claims are based:
Between May 2012 and September 2013, [Petitioner] engaged in ongoing sexual abuse of his live-in girlfriend's daughter, who turned fifteen in May 2014. He digitally penetrated her, had intercourse with her on at least two occasions, performed oral sex on her, placed his mouth on her breasts, and caused her to touch his penis.(Doc. 7-1 at 2)
The appellate court's stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“In habeas proceedings in federal court, the factual findings of state courts are presumed to be correct.”); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness).
Petitioner's first jury trial resulted in a juror impasse, leading the presiding judge to declare a mistrial. (Doc. 7-1 at 212) At Petitioner's second trial in November 2015 2 following a new indictment, the victim's mother testified that she became concerned when she found the victim's bra in the couch and the victim's shorts on the bed that the victim's mother shared with Petitioner. (Doc. 10 at 4, 214-15) After confronting the victim, the victim's mother spoke with a detective in the Casa Grande Police Department, who scheduled the victim for forensic interviews and a medical examination. (Id. at 241-47) In the initial forensic interview the victim claimed that Petitioner had caught her masturbating and had given her a dildo (id. at 191-96), but in a follow-up interview, the victim stated that Petitioner had sex with her (id. at 197-98). At trial, the victim testified that Petitioner had called her after she reported the sexual conduct to her mother, and Petitioner had urged the victim to report that he had caught her masturbating. (Id. at 195) The victim testified that Petitioner had performed various sexual acts with her beginning when she was thirteen years old, including that he massaged the victim's leg and inserted his fingers into her vagina (id. at 179-80), wrapped his penis in plastic wrap before performing sexual intercourse on the victim, hurting the victim (id. at 182-83), asked the victim to place her mouth on his penis, which the victim refused to do (id. at 184), performed oral sex on the victim (id. at 185), asked the victim to touch his penis (id. at 185-86), and had sexual intercourse with the victim on the bed that Petitioner shared with the victim's mother (id. at 186-88). Nurse Jacqueline Hess, who examined the victim, testified that the victim was missing a quarter of her hymen, likely due to blunt force trauma. (Id. at 159)
Petitioner testified in his defense at his first trial, which resulted in a hung jury (Doc. 7-1 at 165, 212), but Petitioner did not testify at his second trial. (Doc. 10 at 386) Petitioner was represented by the same appointed counsel at both trials. (Doc. 7-1 at 174; Doc. 7-2 at 6)
B. Petitioner's Convictions and Sentences
The Arizona Court of Appeals explained that:
[a]fter a jury trial, [Petitioner] was convicted of four counts of sexual conduct with a minor, one count of sexual abuse, and one count of child molestation, all dangerous crimes against children. The trial court sentenced him to concurrent and consecutive prison terms totaling ninety-seven years.3 (Doc. 7-1 at 2; see also Doc. 10) Petitioner's sentencing hearing was conducted in the Pinal County Superior Court on February 2, 2016. (Id. at 7-15; Doc. 10 at 463-74)
C. Direct Appeal and Post-Conviction Relief (“PCR”) Action
1. Petitioner's direct appeal
On February 4, 2016, Petitioner's appointed trial counsel filed a timely notice of appeal of Petitioner's judgment and sentence. (Doc. 7-1 at 17-18) On appeal, Petitioner was represented by different counsel than his trial counsel. (Doc. 7-1 at 20) Appellate counsel for Petitioner filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), advising the court of appeals that counsel was unable to identify any non-frivolous question of law to assert on Petitioner's behalf on appeal. (Id. at 20-28) Appellate counsel wrote that he “advised [Petitioner] about the nature of an Anders brief and the various issues available on direct appeal. [Petitioner did] not intend to file a supplemental brief on his own behalf.” (Id. at 28) Consistent with the representation of his appellate counsel, Petitioner did not file a supplemental brief. (Id. at 4)
Petitioner incorrectly asserts in his Petition that a direct appeal was not filed. (Doc. 1 at. 2)
In a memorandum decision issued February 13, 2017, the Arizona Court of Appeals reviewed the record for fundamental error and determined that sufficient evidence supported Petitioner's convictions. (Id. at 4-5) The court of appeals modified Petitioner's sentence for sexual abuse, finding that “the trial court incorrectly stated that sentence would be ‘flat time,' but pursuant to § 13-705(F), [Petitioner] is eligible for earned release credits for that count.” (Id.) The court of appeals also corrected Petitioner's sentence insofar as it erroneously stated that Petitioner's consecutive sentences each began at the date of the pronouncement of sentence. (Id. at 5) The court of appeals otherwise affirmed Petitioner's convictions and sentences as modified. (Id.)
Petitioner did not file a petition for review with the Arizona Supreme Court. (Id. at 30)
2. Petitioner's post-conviction relief (“PCR ”) action
Through his appellate counsel, Petitioner timely filed a PCR notice in the superior 4 court on March 22, 2017. (Doc. 7-1 at 34-35) Through different counsel, Petitioner filed his PCR petition on July 13, 2018. (Id. at 37-73)
In his PCR petition, Petitioner argued several claims of ineffective assistance of his trial counsel, including that trial counsel should have questioned the victim's mother about: the victim being messy; the victim's mother's infidelity; inconsistencies in the victim's statements; whether the victim's mother had forced the victim to report Petitioner; and whether the victim's mother believed the victim. (Id. at 40-41) As for trial counsel's cross-examination of the victim, Petitioner argued that counsel should have questioned the victim about: a rash she had on her legs; past lies; her delayed disclosure of allegations; her decision to recant allegations; and her school performance as well as social interactions. (Id. at 42-43) Petitioner also argued that trial counsel should have cross-examined Detective Knauber in more detail, should have cross-examined “cold expert” Dr. Wendy Dutton, and should have introduced evidence of a kidney disorder that made Petitioner impotent or caused erectile dysfunction. (Id. at 43-45)
After the state filed a response (id. at 75-90) and Petitioner filed a reply (id. at 9295), the superior court found “a colorable claim as to at least one issue” and ordered an evidentiary hearing. (Id. at 97) At the hearing, Petitioner's trial counsel, Petitioner's appellate counsel, and Petitioner's sister testified. (Id. at 99-100, 102-90) Petitioner's appellate counsel critiqued Petitioner's trial counsel's cross-examination of the witnesses, including that of Dr. Dutton; testified that he would have requested additional medical records for Petitioner; and testified that trial counsel's opening and closing arguments were insufficient. (Id. at 112-20, 122-32, 135-38, 140-44) Petitioner's sister testified that she told trial counsel about Petitioner's erectile dysfunction and about a conversation in which the victim's mother told Petitioner's sister that she had reported Petitioner to the police detective due to relationship issues. (Id. at 153-54, 157-58) Petitioner's trial counsel testified that her approach to the case was that the victim was lying (id. at 164); that the medical records only indicated kidney disease, not erectile dysfunction (id. at 165); that the 5 first jury hung because Petitioner testified that he had not called the victim (id. At 164-66); that it was best to let witness Dr. Dutton talk and lose the jury (id. at 167); that trial counsel kept her opening statement brief because she could not interview the victim or the victim's mother (id. at 168-69); that trial counsel did not recall Petitioner's sister relaying a conversation with the victim's mother about relationship issues (id. at 169-70); and that on cross-examination of the victim, trial counsel was trying not to make the victim cry (id. at 170).
The superior court did not clarify which issue(s) it found colorable.
In written closing arguments in the PCR proceedings, the state argued that appellate counsel inaccurately portrayed trial counsel's arguments; that trial counsel's cross-examination methods were tactical; that appellate counsel did not show that further cross-examining Detective Knauber or Dr. Dutton would have changed any juror's mind; that portraying Detective Knauber as inexperienced would have produced negligible results; and that no evidence in the record demonstrated Petitioner's alleged erectile dysfunction. (Id. at 194, 196-200)
In a written “Under Advisement Ruling,” the superior court denied Petitioner's PCR petition. (Id. at 212-15) The superior court findings included that:
[t]rial strategies differ significantly from attorney to attorney and from trial to trial. While [trial counsel] did not defend the case in the manner in which [appellate counsel] may have, there is not sufficient evidence for this Court to make a finding that [trial counsel's] conduct failed to meet that objective standard of reasonableness the courts in Strickland and its progeny have found to be at the center of an ineffective assistance of counsel claim. Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 2055 (1984), Hinton v. Alabama, 517 U.S.263, 134 S.Ct. 1081, 1088.(Id. at 214-15)
Through his PCR counsel, Petitioner filed a petition for review in the Arizona Court of Appeals, arguing that his trial counsel “was ineffective in failing to 1) adequately cross-examine the victim and her mother, and establish the mother's motivation to encourage a false claim against him; 2) cross-examine the state's blind expert witness, thereby demonstrating [trial counsel's] lack of education on how to effectively cross-examine a blind expert and her lack of knowledge about current concepts relevant to cases involving 6 child sex offenses; 3) investigate and present evidence showing [Petitioner] had a medical condition that rendered him impotent and; 4) meaningfully cross-examine Detective Stephen Knauber, or file any pretrial motions to prevent Knauber from testifying about topics such as victimology, disclosure and recantation, areas in which Knauber purportedly lacked experience.” (Doc. 7-2 at 7-12, 98) Petitioner further argued that the superior court applied an incorrect Strickland standard, requiring Petitioner to establish that different counsel “would” have caused a different result, as opposed to a “reasonable probability.” (Id. at 13-14, 99)
On July 2, 2020, the Arizona Court of Appeals issued a memorandum decision granting review and denying relief on Petitioner's PCR petition. (Id. at 96-100) The court of appeals determined that trial counsel's performance was not deficient and thus declined to address Petitioner's argument that the superior court applied the incorrect Strickland standard:
To prevail on a claim of ineffective assistance of counsel, a defendant must establish both “that counsel's performance fell below reasonable standards and that the deficient performance prejudiced him.” Roseberry, 237 Ariz. 5O7, ¶ 10 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim.” State v. Bennett, 213 Ariz. 562, ¶ 21 (2006). Under the first prong of the Strickland test, “we must presume ‘counsel's conduct falls within the wide range of reasonable professional assistance' that ‘might be considered sound trial strategy.'” State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013) (quoting Strickland, 466 U.S. at 689). “Therefore, ‘disagreements about trial strategy will not support an ineffective assistance claim if the challenged conduct has some reasoned basis, even if the tactics counsel adopts are unsuccessful.'” State v. Varela, 245 Ariz. 91, ¶ 8 (App. 2018) (quoting Denz, 232 Ariz. 441, ¶ 7). To show prejudice under the second prong, a defendant must establish there is 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. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
On review, [Petitioner] reasserts his claims of ineffective assistance of counsel, maintaining that [trial counsel] “essentially abandoned her role as a defense attorney.” Specifically, he argues [trial counsel] was ineffective in failing to 1) adequately cross-examine the victim and her mother, and establish the mother's motivation to encourage a false claim against him; 2) cross-examine the state's blind expert witness, thereby demonstrating [trial counsel's] lack of education on how to effectively cross-examine a blind expert and her lack of knowledge about current concepts relevant to cases involving child sex offenses; 3) investigate and present evidence showing [Petitioner] had a medical condition that rendered him impotent and; 4)7
meaningfully cross-examine Detective Stephen Knauber, or file any pretrial motions to prevent Knauber from testifying about topics such as victimology, disclosure and recantation, areas in which Knauber purportedly lacked experience.
While [Petitioner] may disagree with [trial counsel's] advocacy at trial, we do not find his claims of ineffective assistance persuasive. [Trial counsel] ultimately identified the weaknesses in the state's case and drew the jury's attention to [Petitioner's] best arguments for acquittal in her opening and closing remarks. For example, [trial counsel] emphasized to the jury that the victim's representations during the two forensic interviews were inconsistent; the victim acknowledged she had lied; and her mother, who had repeatedly asked her if she was having sex with [Petitioner], had characterized her daughter as a “good liar.” Explaining that the gifts [Petitioner] had purchased for the victim were “nothing outrageous,” [trial counsel] maintained that he had been “a father figure” to the victim, and that his expressed concern that “he might be going to jail” when confronted with the victim's allegations were a normal reaction under the circumstances. [Trial counsel] also pointed out that the relationship between the victim's mother and [Petitioner] was “not the smoothest” when the allegations were made.
The record establishes that [trial counsel] took the necessary steps to put [Petitioner's] theory of the case into evidence. She adequately drew the jury's attention to why it should question the victim's credibility, permitting it to assess her testimony first hand. Because the record supports the trial court's conclusion that [trial counsel's] performance was not deficient, we decline [Petitioner's] invitation to address every feature of counsel's performance, including his multiple claims of how she could have presented his case more effectively.
Finally, [Petitioner] argues the trial court applied the incorrect standard for a claim of ineffective assistance of counsel. He maintains the court improperly prevented Long, the attorney who represented him on appeal and who testified about his experience with sex-offense cases at the evidentiary hearing, from legally concluding [trial counsel] was incompetent. However, the court permitted Long to testify extensively about his experience as an attorney handling sex-offense cases, his view of how a competent attorney should have handled this trial, and all of the ways in which he faulted [trial counsel's] performance. In its written ruling, the court observed that “both attorneys [Long and [trial counsel]] have extremely different - almost opposite - demeanors,” and noted that although “[trial counsel] did not defend the case in the manner in which Mr. Long may have,” there was insufficient evidence to find her performance deficient under Strickland. Because the record supports a finding that [trial counsel] took all of the steps necessary to provide [Petitioner] with a fair trial, and in light of the court's correct finding that [trial counsel's] performance was not deficient, we do not address this argument.8 (Doc. 7-2 at 98-99)
In view of our conclusion that the trial court properly found Cook's performance professionally adequate, we likewise decline [Petitioner's] invitation to address whether the court misstated the standard for prejudice in an ineffective assistance claim. See Bennett, 213 Ariz. 562, ¶ 21 (“Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim.”).
Petitioner did not file a petition for review in the Arizona Supreme Court. (Id. at 102) On December 16, 2020, the Arizona Court of Appeals issued the mandate. (Id.)
II. PETITIONER'S HABEAS CLAIMS
Petitioner asserts fourteen grounds for relief in his July 23, 2021, Petition. (Doc. 1) In Ground 1, Petitioner alleges his trial counsel was ineffective for failing to introduce evidence of his kidney disease and impotence. (Id. at 12) In Ground 2, Petitioner alleges that trial counsel was ineffective for failing to effectively cross-examine the victim, including failing to object to hearsay and failing to investigate mitigation evidence. (Id. at 12-13) Petitioner's Ground 3 claim is that trial counsel was ineffective for failing to move to dismiss the case after the first trial resulted in a hung jury; failing to object to “enhanced charges”; and failing to “pre-motion” Dr. Dutton's testimony. (Id. at 13) In Ground 4, Petitioner argues that trial counsel was ineffective in failing to investigate a statement from the victim's mother that a physician had said he or she could not tell if the victim had been sexually abused. (Id. at 14) Petitioner's Ground 5 claim is that trial counsel was ineffective in poorly cross-examining the victim. (Id. at 15) In Ground 6, Petitioner alleges that trial counsel was ineffective for failing to cross-examine and object to the testimony of “blind witness” Dr. Dutton. (Id. at 16-17) In Ground 7, Petitioner argues that his sentence constitutes cruel and unusual punishment, and he argues that trial counsel should have objected to the charges and introduced Petitioner's background. (Id. at 17-19) Petitioner's Ground 8 claim is that trial counsel was ineffective in poorly cross-examining Detective Knauber. (Id. at 19-21) In Ground 9, Petitioner alleges that trial counsel was ineffective for failure to cross-examine the forensic examiner who interviewed the victim. (Id. at 21-22) In Ground 10, Petitioner argues that trial counsel was ineffective in failing to cross-examine the forensic nurse who examined the victim. (Id. at 22) Petitioner's Ground 11 claim is that the judge presiding over Petitioner's trials had a conflict of interest, having been accused of sexual misconduct, and improperly permitted Dr. Dutton's testimony. (Id. at 22-23) 9 In Ground 12, Petitioner alleges that trial counsel was ineffective for failing to appeal Petitioner's guilty verdict. (Id. at 23-24) In Ground 13, Petitioner alleges that trial counsel was ineffective for failing to present testimony from Petitioner's sister. (Id. at 24) Finally, in Ground 14, Petitioner argues that trial counsel was ineffective in failing to deliver an effective closing statement. (Id. at 25-27)
See footnote 2, supra.
In their Limited Answer to the Petition, Respondents contend that the Petition is untimely and not entitled to equitable tolling under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (Doc. 7 at 10-13) In addressing specific grounds of the Petition, Respondents contend that Petitioner's Ground 11 claim is non-cognizable, as it does not allege that Petitioner is in custody in violation of the Constitution or the laws or treaties of the United States. (Id. at 13) Respondents further argue that Petitioner's Grounds 1, 10, and 13 claims are procedurally defaulted for failure to be raised in the Arizona Court of Appeals; that Petitioner's Grounds 3, 4, 7, 9, 11, and 12 claims are procedurally defaulted for failure to be raised in any state court; and that Petitioner has not shown excuse for his procedural defaults. (Id. at 17-18) As for Petitioner's Grounds 2, 5, 6, 8, and 14 claims, Respondents concede that Petitioner raised these claims in the superior court and the Arizona Court of Appeals and has thus exhausted them. (Id. at 17)
In reply to the Limited Answer, Petitioner argues that his Petition is timely (Doc. 8 at 2); that his Ground 11 claim is cognizable as a violation of the Arizona Constitution (id. at 2-3); that Grounds 2, 5, 6, 8, and 14 require an evidentiary hearing (id. at 4); that he was prejudiced by trial counsel's ineffective assistance of counsel (id. at 5-6); and that Petitioner's defaults should be excused for actual innocence (id. at 6-8).
After initial review of the briefing, the Court ordered Respondents to file a supplemental answer addressing the merits of Petitioner's Grounds 2, 5, 6, 8, and 14 claims. (Doc. 9) In their supplemental answer, Respondents address the merits of Petitioner's overlapping Grounds 2 and 5 claims together. (Doc. 11 at 8-10) Respondents contend that Petitioner's hearsay sub-claim of Ground 2 is procedurally defaulted and that Petitioner did not meet his burden to show that the state courts applied Strickland in an objectively 10 unreasonable manner. (Id.) As to Ground 6, Respondents argue that the state court made objectively reasonable findings that trial counsel made a tactical decision not to cross-examine Dr. Dutton; that Petitioner did not show a reasonable probability that crossexamining Dr. Dutton would have caused a different outcome; and that Petitioner's argument that trial counsel should have moved to exclude Dr. Dutton's testimony was not raised in state court and therefore is procedurally defaulted. (Id. at 10-12) As to Ground 8, Respondents again argue that Petitioner did not show that the state court applied Strickland in an objectively unreasonable manner, insofar as the state court found that trial counsel's cross-examination of Detective Knauber was tactical. (Id. at 12) As to Ground 14, Respondents argue that the state court did not make an objectively unreasonable finding that trial counsel's closing argument was tactical. (Id. at 13)
In reply to Respondents' Supplemental Answer, Petitioner maintains that trial counsel's performance was deficient, that trial counsel's performance caused him prejudice, and that the outcome of his trial would have been different if counsel had more thoroughly cross-examined witnesses or introduced additional evidence. (Doc. 12)
III. TIMELINESS
Respondents assert the Petition was untimely filed. (Doc. 7 at 10-13)
AEDPA provides a one-year statute of limitations for state prisoners to file a petition for writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). As applicable to the circumstances of the Petition in this matter, the limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Under 28 U.S.C. § 2244(d)(2), the limitations period is statutorily tolled while a “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).
A. Respondents Argue that AEDPA's Limitations Period Ended on June 30, 2021
Respondents assert that AEDPA's one-year limitations period began to run on 11 March 21, 2017, the day after Petitioner's convictions became final on Monday, March 20, 2017. (Doc. 7 at 10) Respondents calculated this date using the Arizona Court of Appeals' filing of its memorandum decision on Petitioner's direct appeal on February 13, 2017, then added 30 days for the period during which Petitioner could have filed a petition for review to the Arizona Supreme Court pursuant to Arizona Rule of Criminal Procedure 31.21(b)(2)(A), and also added 5 more days for mailing pursuant to Arizona Rule of Criminal Procedure 1.3(a)(5). (Id.) Respondents assert that the AEDPA limitations period ran for 2 days between March 20, 2017, and March 22, 2017, the date Petitioner filed his PCR notice in the superior court. (Id.) Respondents contend that statutory tolling commenced the day following March 22, 2017, and continued until July 2, 2020, the date of the Arizona Court of Appeals memorandum decision denying relief in the PCR action. (Id.) Because AEDPA's limitations period had run for two days in 2017, Respondents calculate that the limitations period expired on Wednesday, June 30, 2021, 363 days after July 2, 2020. (Id. at 11) Respondents argue that the July 23, 2021, Petition was untimely filed by 23 days. (Id.)
B. Petitioner Argues that AEDPA's Limitations Period Was Tolled Until December 16, 2020
Petitioner contends that the Petition was timely filed because AEDPA's limitations period was statutorily tolled between March 23, 2017, the day after he filed his PCR notice in the superior court, until December 16, 2020, the date the Arizona Court of Appeals filed its mandate in Petitioner's PCR action. (Doc. 8 at 2) Accounting for the two days the limitations period ran in 2017, the AEDPA's one-year statute of limitations would have expired on December 14, 2021, which was nearly five months after the Petition was filed on July 23, 2021.
C. The Petition is Timely
The pivotal question is the date upon which the PCR proceeding in Petitioner's case was no longer “pending” as provided in § 2244(d)(2). Respondents contend that the PCR action was no longer pending as of July 2, 2020, the date the Arizona Court of Appeals 12 denied relief. (Doc. 7 at 10) Petitioner asserts that his PCR proceeding was no longer pending on December 16, 2020, the date the Arizona Court of Appeals issued its mandate. (Doc. 8 at 2)
In support of their position, Respondents cite to Hemmerle v. Schriro, 495 F.3d 1069, 1074-76 (9th Cir. 2007), and Welch v. Carey, 350 F.3d 1079, 1080-83 (9th Cir. 2003). In Hemmerle, the Ninth Circuit considered when the petitioner-appellant's PCR proceedings became final for purposes of § 2244(d)(2). Hemmerle, 495 F.3d at 1076-77. In the PCR proceeding at issue in Hemmerle, the petitioner had filed a petition for review of the Arizona Court of Appeals' denial of review, and the Arizona Supreme Court also denied review. Id. at 1072. The Ninth Circuit found that a state post-conviction proceeding was no longer pending for purposes of § 2244(d)(2) on the date the Arizona Supreme Court denied review “because there was nothing left for the court to do....” Hemmerle, 495 F.3d at 1077. The Ninth Circuit rejected the petitioner's argument that the post-conviction proceeding was pending until the clerk of the court of appeals issued a letter pursuant to former Arizona Rule of Criminal Procedure Rule 32.9(h) providing for return of the record to the trial court. Id. (citing Ariz. R. Crim. P. 32.9(h)). The court explained that Rule 32.9(h) provides for a “[ministerial] function ... [that] is not equivalent to the issuance of a mandate.” Id.
In Hemmerle, the Arizona Court of Appeals had denied review of the superior court's denial of the PCR petition. This contrasts with what occurred in Petitioner's case, where he filed a petition for review of the superior court's denial of his PCR petition and the Arizona Court of Appeals granted review but denied relief.
The holding in Hemmerle, however, is distinguishable on the facts at issue in Petitioner's case. Unlike the circumstances presented in Hemmerle, where the petitioner sought relief in the Arizona Supreme Court, Petitioner did not file a petition for review by the Arizona Supreme Court. Accordingly, for reasons discussed infra, the holding of Hemmerle does not resolve the issue presented here.
Respondents also cite Welch v. Carey for the proposition that a state habeas proceeding is not pending for purposes of statutory tolling when a petitioner has made “no attempt to seek relief in a higher court.” (Doc. 7 at 10-11 (citing 350 F.3d at 1080-83)) In 13 Welch, after a California superior court denied a petitioner's PCR proceeding, the petitioner waited more than four years before filing a second PCR proceeding, asserting different claims, in the California Supreme Court. 350 F.3d at 1080-81. Under these facts, the Ninth Circuit held that the petitioner was not entitled to statutory tolling pursuant to § 2244(d)(2) after the petitioner abandoned his first PCR action and years later “embarked on a new and different [round of PCR review].” Id. at 1082. It is plain that the circumstances addressed by the Ninth Circuit in Welch are not at issue here. Petitioner did not abandon his PCR action, but rather timely filed a petition for review in the Arizona Court of Appeals. He argues for statutory tolling only until the court of appeals issued its mandate on his first and only PCR proceeding in state court. Any reliance on Welch by Respondents for the argument that statutory tolling under § 2244(d)(2) is not available to Petitioner in this case is misplaced. Magistrate Judge Bade in Wells v. Ryan rejected this same argument in comparable circumstances to those presented here and concluded that the “circumstances addressed in Welch have no bearing on the issue before this Court.” Wells v. Ryan, No. CV-14-02048-PHX-JJT (BSB), 2015 WL 9918159, at *7 (D. Ariz. Aug. 13, 2015), report and recommendation adopted, 2016 WL 319529 (D. Ariz. Jan. 27, 2016).
Judge Bade has since become a Ninth Circuit Court of Appeals judge.
Respondents concede that the District of Arizona's decision in Celaya v. Stewart, 691 F.Supp.2d 1046 (D. Ariz. 2010), aff'd 497 Fed.Appx. 744 (9th Cir. 2012), supports Petitioner's position that his PCR proceeding was pending pursuant to § 2244(d)(2) until the Arizona Court of Appeals filed its mandate. (Doc. 7 at 11) However, Respondents contend that Celaya was wrongly decided. Id.
In Celaya, District Judge Bury distinguished the holding in Hemmerle that where a petitioner had filed a petition for review of the Arizona Court of Appeals' denial of PCR review, and after the Arizona Supreme Court also denied review, there was nothing pending for the state courts to do and that the PCR proceeding became final on the date the state supreme court denied review. Celaya, 691 F.Supp.2d at 1053-54 (citing Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir. 2007)). Celaya addressed the same procedural 14 circumstances at issue here but not present in Hemmerle: the Arizona Court of Appeals granted review and denied the PCR petition and the petitioner did not seek review in the Arizona Supreme Court. Id. at 1053. Judge Bury explained that “[u]nder such circumstances, the Arizona Rules of Criminal Procedure governing appeals and other postconviction relief, Rule 31.23, provides: ‘if there has been no motion for reconsideration and no petition for review filed, the clerk of the Court of Appeals shall issue the mandate at the expiration of the time for the filing of such motion or petition.'” Id. (citing Ariz. R. Crim. P. 31.23) (emphasis supplied by the Court). Judge Bury stated that “[h]ere, the appellate court granted review and issued a decision, which became final when it issued the mandate as required by Rule 31.23. Here, once the appellate court issued its decision, it still needed to issue the mandate.” Id. at 1054.
Respondents criticize Celaya because the District Judge relied on former Arizona Rule of Criminal Procedure 31.23's provision addressing mandates and argue that “Rule 31 concerns direct appeals, not post-conviction proceedings, and the language regarding mandates in the former Rule 31.23 (currently Rule 31.22) is not incorporated in Rule 32.” (Doc. 7 at 11) Respondents further contend that “[n]o rule requires the appellate court to issue a mandate after the conclusion of post-conviction proceedings[,]” and urge that “this Court should not follow Celaya[.]” (Id. at 12)
Magistrate Judge Bade addressed these same arguments in Wells v. Ryan. 2015 WL 9918159, at **8-9. Judge Bade rejected the contention that because Rule 31 concerns direct appeals while Rule 32 addresses PCR proceedings, Celaya's reliance on former Rule 31.23 concerning appellate court mandates was mistaken. Id. Consistent with Judge Bade's analysis in Wells, Rule 32.16 (formerly Rule 32.9(g)) provides that “[t]he provisions in Rules 31.20 and 31.21 relating to motions for reconsideration and petitions for review in criminal appeals govern motions for reconsideration and petitions for review of an appellate court decision [on a Rule 32 PCR petition or cross-petition].” Ariz. R. Crim. P. 32.16(1), (k). Rule 31.22 sets forth the procedures for issuing a mandate after time has 15 expired to file a motion for reconsideration or a petition for review. Ariz. R. Crim. P. 31.22. While Rules 31.20, 31.21, and 31.22 are not expressly incorporated into Rule 32.16, such procedures “are part of the procedures that apply to motions for reconsideration and petitions for review and, thus, [Rule 31.22] applies to post-conviction proceedings.” 2015 WL 9918159, at *8. Further, as Judge Bade observed, Respondents' argument that Rule 31.22 is not applicable to PCR proceedings ignores that the Arizona Court of Appeals normally issues a mandate upon the conclusion of PCR proceedings. Id. at *9 (collecting cases).
See footnote 8, supra.
District of Arizona orders have repeatedly cited with approval the holdings in Celaya and Wells v. Ryan that a PCR petition remains pending until the Arizona Court of Appeals issues its mandate in circumstances in which the Arizona Court of Appeals grants review but denies relief and the PCR petitioner does not seek further review. See Leary v. Shinn, No. CV-18-012633-PHX-PHX-JGZ (EJM), 2021 WL 4503458, at *3 n.4 (D. Ariz. Sept. 30, 2021); Burns v. Ryan, No. CV-19-00262-TUC-SHR (EJM), 2021 WL 1530071, at *5 n.7 (D. Ariz. Apr. 19, 2021), report and recommendation adopted by 2021 WL 1910561 (D. Ariz. May 12, 2021); Tracy v. Shinn, No. CV 19-08074-PHX-JAT (MHB), 2020 WL 6106149, at *4 (D. Ariz. May 19, 2020) (“Petitioner's PCR proceedings were no longer pending when the Arizona Court of Appeals issued its mandate on March 12, 2018.”), report and recommendation adopted by 2020 WL 5793412 (D. Ariz. Sept. 29, 2020); Dixon v. Ryan, No. CV-15-00510-TUC-DCB (BPV) 2018 WL 3215655, at **2-3 (D. Ariz. Apr. 2, 2018), report and recommendation adopted by 2018 WL 3209417 (D. Ariz. June 29, 2018); Sartin v. Ryan, No. CV 14-2276-TUC-RCC (JR), 2017 WL 1323698, at *5 (D. Ariz. Jan. 24, 2017), report and recommendation adopted by 2017 WL 1319745 (D. Ariz. Apr. 5, 2017); see also Bassett v. Ryan, CV-19-8142-PCT-DLR (JFM), 2021 WL 6427668, at *6 (D. Ariz. Dec. 1, 2021) (concluding that A.R.S. § 12-120.24 requires that “where a formal opinion (a decision) has issued and a mandate follows, the issuance of the mandate signals the final resolution of the proceeding for purposes of tolling under 28 U.S.C. § 2244(d)(2)[.]”), report and recommendation adopted by 2022 WL 112195 (D. Ariz. Jan. 12, 2022). 16
Respondents' arguments that Celaya was wrongly decided are not persuasive and run contrary to decisions of the District of Arizona holding that where the Arizona Court of Appeals has granted review of the superior court's decision on a PCR petition and has denied relief, and where the petitioner does not seek further review, the PCR action is pending for purposes of statutory tolling pursuant to § 2244(d)(2) until the court of appeals issues its mandate. Here, the Arizona Court of Appeals issued its mandate on Petitioner's PCR proceeding on December 16, 2020. (Doc. 7-2 at 102) As discussed, the one-year limitations period ended on December 14, 2021, well after the Petition was filed.
Because Petitioner's habeas petition was timely filed, Respondent's other arguments against relief on the Petition are addressed below.
IV. LEGAL FRAMEWORK OF PROCEDURAL DEFAULT
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O 'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“The mere similarity between a claim of state and federal error is insufficient to establish exhaustion.”).
In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes, 196 F.3d at 1010; Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005). Fair presentment of claims to the Arizona Court of Appeals requires a description 17 of “both the operative facts and the federal legal theory on which [a] claim is based so that the state courts [could] have a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon [the] constitutional claim.” McFadden, 399 F.3d at 999 (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)).
It is not fair presentment, for example, 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) (per curiam) (internal citation omitted). It is also not enough to rely on a “general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.” Netherland, 518 U.S. at 163; see also McFadden, 399 F.3d at 1002-03 (finding habeas petitioner did not give the state appellate court a fair opportunity to rule on a federal due process claim because “[e]xhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory,” and the petitioner's claim in state court was a “conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory”).
Fair presentment is not achieved by raising the claim for “the first and only time in a procedural context in which its merits will not be considered,” unless there are special circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989). As example, raising a claim for the first time in a discretionary petition for review to the Arizona Supreme Court or in a special action petition is not sufficient to achieve fair presentment. See Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004) (“Because we conclude that Casey raised his federal constitutional claims for the first and only time to the state's highest court on discretionary review, he did not fairly present them.”) (footnote omitted).
A corollary to the exhaustion requirement is the “procedural default doctrine.” The procedural default doctrine limits a petitioner from proceeding in federal court where his claim is procedurally barred in state court and “has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). If a petitioner 18 fails to fairly present his claim to the state courts in a procedurally appropriate manner, the claim is procedurally defaulted and generally barred from federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991). There are two categories of procedural default.
First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. This is called an express procedural bar. An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar “that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state strictly or regularly follows its procedural rule).
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris, 489 U.S. at 264 n.10 (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).
Second, the claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1; Boerckel, 526 U.S. at 848 (when time 19 for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for postconviction relief barred petitioner from returning to state court to exhaust his claims). This is called an implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).
In Arizona, claims not properly presented to the state courts are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See former rules Ariz. R. Crim. P. 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.1(d)-(h), 32.9(c) (petition for review must be filed within thirty days of trial court's decision); see also current rules Ariz. R. Crim. P. 32.4(b)(3) (time bar); Ariz. R. Crim. P. 32.1(b) through (h) and 32.2(b) (permitting successive PCR proceedings on certain grounds and specified circumstances); 32.16(a)(1) (petition for review must be filed within thirty days of trial court's decision). 20
Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33). See id.; Pet. to Amend (Jan. 10, 2019), at 4-5. New Rule 32 thus encompasses the rules applicable to a defendant's right to seek post-conviction relief when the defendant is convicted by trial. New Rule 32 and new Rule 33 apply to “all actions filed on or after January 1, 2020,” and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies.” Arizona Supreme Court Order No. R-19-0012.
Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not properly raised on direct appeal or in prior Rule 32 postconviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2000) (“We have held that Arizona's procedural default rule is regularly followed [or “adequate”] in several cases.”) (citations omitted), rev'd on other grounds, Stewart, 536 U.S. 856; State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings). A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who completely fails to attempt to exhaust his state remedies. In Arizona, “ineffective assistance of counsel claims should be raised in postconviction relief proceedings pursuant to rule 32, Arizona Rules of Criminal Procedure.” Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001) (quoting State v. Atwood, 171 Ariz. 576 (1992)) (finding that failure to raise IAC claims on direct appeal did not bar federal habeas review).
The Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). “Cause” is something that “cannot be fairly attributable” to a petitioner, and a petitioner must show that this “objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a “habeas petitioner must show ‘not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). “Such a showing of pervasive actual 21 prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.” Id.
The miscarriage of justice exception to procedural default “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). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). Significantly, “[t]o be credible, [a claim of actual innocence] 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.” Schlup, 513 U.S. at 324. See also Leev. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (explaining the significance of an “[u]nexplained delay in presenting new evidence”). 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)). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v.Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).
V. PROCEDURAL DEFAULT ANALYSIS
A. Exhaustion
In their Limited and Supplemental Answers, Respondents argue that Petitioner has not exhausted and therefore has procedurally defaulted Grounds 1, 2(a) 3, 4, 6(b), 7, 9, 10, 11, 12, and 13. (Doc. 7 at 17; Doc. 11 at 8, 12)
1. Ground 1 is exhausted
In Ground 1 of his habeas Petition, Petitioner alleges that trial counsel was ineffective in “failing to present medical records and testimony that established petitioner 22 [sic] inability to perform sexually.” (Doc. 1 at 12) Petitioner raised his Ground 1 claim in his PCR petition in superior court. (Doc. 7-1 at 45-46) Despite Respondents' assertion that Petitioner failed to raise this claim in his petition for review in the Arizona Court of Appeals, the record reflects that Petitioner did raise Ground 1 in that court. (Doc. 7-2 at 7). Accordingly, Petitioner exhausted his Ground 1 claim, which is considered on the merits in Section VII(C)(1), infra.
2. Ground 2(a) is unexhausted and Ground 2(b)is exhausted
In Ground 2, Petitioner asserts that trial counsel was ineffective in conducting a poor cross-examination of the victim. (Doc. 1 at 12-13) As part of this claim, Petitioner contends that trial counsel (a) should have objected to hearsay statements from the victim and (b) should “have provided the jury with both the accuser's and her mother's motives,” including admissions from the victim's mother that she pressured the victim to admit sexual abuse. (Id.) As for Petitioner's Ground 2(a) hearsay sub-claim, Petitioner did not raise this specific argument in either his PCR petition or his petition for review in the Arizona Court of Appeals and has therefore not exhausted it. See Swoopes, 196 F.3d at 1010. Petitioner did, however, exhaust his Ground 2(b) sub-claim in his PCR petition (Doc. 7-1 at 40-43) and in his petition for review in the Arizona Court of Appeals. (Doc. 7-2 at 7-8, 10-11) Accordingly, Petitioner's Ground 2(b) sub-claim is considered on the merits in Section VII(C)(2) below.
Respondents do not argue otherwise. (Doc. 11 at 8-10)
3. Ground 3 is unexhausted
In Ground 3, Petitioner asserts that trial counsel was ineffective for failing to move to dismiss after the initial hung jury; failing to move to dismiss before the second trial; failing to object to multiple charges resulting from a single act; and failing to “pre-motion” the testimony of expert witness Dr. Dutton. (Doc. 1 at 13-14) Petitioner did not raise this claim in his PCR petition in the superior court or in his petition for review in the Arizona Court of Appeals. Because Petitioner did not present his Ground 3 claim to the superior court or the Arizona Court of Appeals, the claim was not exhausted as required for purposes 23 of federal habeas corpus review. See Swoopes, 196 F.3d at 1010.
4. Ground 4 is unexhausted
Petitioner argues in Ground 4 that his trial counsel was ineffective for failing to investigate or subpoena an examining physician who allegedly told the victim's mother that it was unclear if the victim had been sexually abused. (Doc. 1 at 14-15) Because Petitioner neither raised this claim in his PCR petition in the superior court nor in his petition for review in the Arizona Court of Appeals, Petitioner has not exhausted his Ground 4 claim. See Swoopes, 196 F.3d at 1010.
5. Ground 6(a) is exhausted and 6(b) is unexhausted
In Ground 6, Petitioner argues that trial counsel was ineffective for failing to (a) cross-examine and (b) object to the testimony of forensic expert Dr. Dutton, whom Petitioner describes as “the blind witness” in such claims. (Doc. 1 at 16-17) Petitioner asserts that Dr. Dutton testified about characteristics of initial and delayed disclosure, secrecy, and recantation, yet Dr. Dutton also testified that general characteristics could not determine if a child had been abused but could explain why a child did not act in a rational way. (Id.) Accordingly, Petitioner contends that Dr. Dutton's testimony was misleading under Rule 403 and that trial counsel should have moved to prevent Dr. Dutton's testimony under Rule 702. (Id.) Petitioner also contends that counsel was unfamiliar with the legal concepts in his case, therefore allowing Dr. Dutton to misuse the terms “disclosure” and “recantation,” and that counsel should have shown the jury that Dr. Dutton's “five characteristics of victimization” did not apply to Petitioner's case. (Id.) Petitioner did not raise trial counsel's failure to move to exclude Dr. Dutton's testimony in his PCR petition in the superior court or in his petition for review in the Arizona Court of Appeals and therefore has not exhausted sub-claim (b). Swoopes, 196 F.3d at 1010. Petitioner did, however, exhaust his Ground 6(a) claim in his PCR petition in the superior court (Doc. 71 at 43-45) and in his petition for review in the Arizona Court of Appeals. (Doc. 7-2 at 810) Accordingly, Petitioner's Ground 6(a) sub-claim is considered on the merits in 24 Section VII(C)(3) below.
Respondents do not argue otherwise. (Doc. 11 at 10-11)
6. Ground 7 is unexhausted
In Ground 7, Petitioner argues that he received an excessive sentence, constituting cruel and unusual punishment. (Doc. 1 at 17-19) Although Petitioner titles Ground 7 as “Excessive Sentencing/Cruel and Unusual Punishment,” Petitioner also asserts that trial counsel should have called character witnesses, offered information regarding Petitioner's history, and challenged the “outrageous number of charges or a specific charge that did not apply to the accusations brought against the petitioner.” (Id.) Petitioner did not raise his Ground 7 claim in his direct appeal of his convictions and sentences. (Doc. 7-1 at 20-28) In Arizona, claims asserting trial error that were not raised on direct appeal are precluded in post-conviction proceedings. Ariz. R. Crim. P. 32.2(a)(3) (defendants are generally precluded from post-conviction relief on any ground “waived at trial or on appeal”). Insofar as Petitioner's Ground 7 claim alleges excessive sentencing, Petitioner did not exhaust this claim by failing to raise it on direct appeal. Insofar as Petitioner's Ground 7 is also an ineffective assistance of counsel claim, as Respondents characterize it, Petitioner did not raise this claim in his PCR petition in the superior court or his petition for review in the Arizona Court of Appeals where he was required to raise such. See Swoopes, 196 F.3d at 1010. Accordingly, Petitioner has not exhausted his Ground 7 claim.
7. Ground 9 is unexhausted
Petitioner asserts in Ground 9 that trial counsel was ineffective in failing to cross-examine or object to the testimony of the forensic examiner who interviewed the victim twice. (Doc. 1 at 21-22) Although Petitioner referenced the inconsistencies in the victim's interviews with the forensic examiner in his PCR proceedings, he did not raise a particular claim for failure to cross-examine or object to the forensic examiner's testimony in his PCR petition in the superior court or his subsequent petition for review in the Arizona Court of Appeals as required for federal habeas corpus review. As such, Petitioner did not exhaust his Ground 9 claim. See Swoopes, 196 F.3d at 1010. 25
8. Ground 10 is unexhausted
In Ground 10, Petitioner argues that trial counsel was ineffective in failing to cross-examine or object to the testimony of Nurse Jacqueline Hess, who performed a physical examination of the victim. (Doc. 1 at 22) Because Petitioner did not assert his Ground 10 claim in his PCR petition in the superior court or his petition for review in the Arizona Court of Appeals as required, Petitioner did not exhaust his Ground 10 claim. See Swoopes, 196 F.3d at 1010.
9. Ground 11 is unexhausted
In Ground 11, Petitioner argues that the judge presiding over his trials had a conflict of interest because the trial judge was accused of and investigated for sexual misconduct. (Doc. 1 at 22-23) Petitioner asserts that his appellate counsel represented the woman who accused the trial judge of misconduct, and the trial judge was removed from Petitioner's case due to a conflict of interest. (Id.) Further, Petitioner argues that the trial judge should not have allowed the testimony of expert witness Dr. Dutton, as there was no evidence of the victim's irrational behavior on which Dr. Dutton was expected to testify. (Id.) Petitioner did not raise his Ground 11 claim on direct appeal, where he was required to raise such, nor did he raise his Ground 11 claim in PCR proceedings. See Swoopes, 196 F.3d at 1010. Petitioner therefore has not exhausted his Ground 11 claim.
Respondents also contend that Petitioner's Ground 11 claim is non-cognizable. (Doc. 7 at 13) This argument is addressed in Section VI, below.
10. Ground 12 is unexhausted and does not raise a colorable claim
Petitioner's Ground 12 claim asserts that trial counsel was ineffective for failing to appeal Petitioner's guilty verdict. (Doc. 1 at 23-24) Petitioner did not raise his Ground 12 claim in his PCR petition or his petition for review in the Arizona Court of Appeals, so the claim was not exhausted. Further, Petitioner incorrectly states that trial counsel did not appeal his convictions. (Id.) The record clearly demonstrates that trial counsel filed a notice of appeal on February 4, 2016. (Doc. 7-1 at 17-18) Further, appellate counsel subsequently filed an Anders brief. (Id. at 20-28) Accordingly, Petitioner's Ground 12 claim also lacks merit as failing to raise even a colorable claim. See 28 U.S.C. § 2254(b)(2) (“An application 26 for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005) (holding that under § 2254(b)(2), “a federal court may deny an unexhausted petition on the merits only when it is perfectly clear that the applicant does not raise even a colorable federal claim”).
11. Ground 13 is unexhausted
In Ground 13, Petitioner argues that trial counsel was ineffective for failing to present witness testimony of Petitioner's sister, Tawana Hawkins. (Doc. 1 at 24) Petitioner contends that Ms. Hawkins told trial counsel about a conversation with the victim's mother after Petitioner's arrest, in which the victim's mother stated that “she wanted out of the relationship [with Petitioner] but didn't know how else to go about it.” (Id.) Although Petitioner raised his Ground 13 claim in his PCR petition (Doc. 7-1 at 41-42), Petitioner did not raise this claim in his petition for review in the Arizona Court of Appeals, thus failing to exhaust this claim. See McFadden, 399 F.3d at 1000 (“To exhaust his claim, Castillo must have presented his federal, constitutional issue before the Arizona Court of Appeals within the four corners of his appellate briefing.”).
B. Grounds 2(a), 3, 4, 6(b), 7, 9, 10, 11, 12, and 13 are implicitly procedurally defaulted
Petitioner's Grounds 2(a), 3, 4, 6(b), 7, 9, 10, 11, 12, and 13 claims are unexhausted, as discussed above. These grounds are also implicitly procedurally defaulted because it is too late under Arizona procedure for Petitioner to return to state court to assert such claims. See Ariz. R. Crim. P. 32.2(a)(3) (a defendant is precluded from relief pursuant to Rule 32.1(a) that was waived in a previous PCR petition); 27 Ariz. R. Crim. P. 32.4(b)(3)(A) (claims filed pursuant to Rule 32.1(a) must be filed within 30 days after the mandate is issued in a direct appeal); Ariz. R. Crim. P. 32.1(b)-(h), 32.2(b)(1), 32.4(b)(3)(B) (allowing a defendant to assert claims identified in Rule 32.1(b) through (h) “within a reasonable time after discovering the basis for the claim.”) Arizona Rule of Criminal Procedure 32.1(b) through (h) identifies grounds for PCR relief where: (b) the court lacked “subject matter jurisdiction to render a judgment or to impose a sentence on the defendant”; (c) the sentence was not “authorized by law”; (d) the defendant is or will be in custody after his sentence has expired; (e) “newly-discovered material facts probably exist” and such facts “probably would have changed the judgment or sentence”; (f) the failure to file a timely notice of PCR was not the defendant's fault; (g) “there has been a significant change in the law that, if applicable to the defendant's case, would probably overturn the defendant's judgment or sentence”; and (h) “the defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty of the offense beyond a reasonable doubt[.]” Ariz. R. Crim. P. 32.1(b)-(h). Petitioner does not argue he is able to return to state court to present these unexhausted claims, and the record does not support such an argument.
Arizona Rule of Criminal Procedure 32.2(a)(3) provides that PCR relief is precluded on any claim “waived at trial or on appeal, or in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” (emphasis supplied). The italicized language was added to the rule in January 2020, but even under the prior rule, Arizona courts limited an exception to preclusion only in circumstances where “an asserted claim is of sufficient constitutional magnitude.” Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002). The Arizona Supreme Court has instructed that examples encompassed by this phrase include the right to counsel, the right to a jury trial, and the right to a twelve-person jury. See id. Petitioner has not shown that any of his procedurally defaulted claims at issue in this matter allege a violation of a constitutional right that can only be waived knowingly, voluntarily, andpersonally by a defendant.
C. Petitioner fails to establish cause and prejudice or miscarriage of justice/actual innocence to excuse the procedural default of Grounds 2(a), 3, 4, 6(b), 7, 9, 10, 11, 12, and 13
To excuse the procedural default of Grounds 2(a), 3, 4, 6(b), 7, 9, 10, 11, 12, and 13, Petitioner bears the burden of establishing either: (1) both cause and actual prejudice; or (2) a miscarriage of justice/actual innocence. Coleman 501 U.S. at 750. Petitioner does not argue in his Petition that procedural default of any of his claims should be excused for cause and prejudice, nor does the record before the Court support such findings.
In arguing actual innocence in his Reply to the Limited Answer, Petitioner only reasserts the various grounds of his Petition. (Doc. 8 at 6-8) To meet the actual innocence 28 exception to procedural default, Petitioner must “support his allegations of constitutional error with new reliable evidence[,]” Schlup, 513 U.S. at 324, and “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).
In support of his Reply to the Limited Answer, Petitioner attached the memorandum decision of the appeals court affirming his conviction and sentences (Doc. 8 at 14), a fax of medical records from Petitioner's sister to trial counsel (id. at 24-43), excerpted trial transcripts (Doc. 8 at 15-22, 45-54; Doc. 8-1 at 1-10), an undated purported news report of Detective Knauber's reprimands (Doc. 8-1 at 12-13), protocol regarding child sex abuse cases from the Pinal County Multi-Disciplinary Protocols For the Joint Investigation of Child Abuse dated August 2018 (id. at 14-15), an undated purported news report regarding sexual abuse allegations against Petitioner's trial judge (id. at 17-18), excerpted information about the prevalence of erectile dysfunction in male patients with kidney disease from a 2014 article (id. at 20-23), and medical records regarding Petitioner's treatment for kidney disease and related illnesses (id. at 24-52; Doc. 8-2 at 1-6). The excerpted trial transcripts, state court decisions, 2014 article, fax from Petitioner's sister, and virtually all of medical records do not constitute new evidence, as they existed at the time of Petitioner's November 2015 trial or were previously introduced in state court. (See, e.g., Doc. 7-1 at 53-73) Further, Petitioner has not shown, in light of the exhibits attached to his Reply to the Limited Answer, including the more recent medical records, that, “it is more likely than not that no reasonable juror would have convicted him[.]” McQuiggin, 569 U.S. at 399. Thus, Petitioner has not met his burden to establish actual innocence that would excuse his procedural default of Grounds 2(a), 3, 4, 6(b), 7, 9, 10, 11, 12, and 13.
Accordingly, for the reasons discussed above, Petitioner's Grounds 2(a), 3, 4, 6(b), 7, 9, 10, 11, 12, and 13 are procedurally defaulted without excuse and should be dismissed.
VI. GROUND 11 IS NON-COGNIZABLE IN THESE HABEAS PROCEEDINGS
In Ground 11, Petitioner argues that the judge presiding over his trials had a conflict of interest, as the trial judge was accused of and investigated for sexual misconduct. (Doc. 1 at 22-23) 29 Petitioner asserts that his appellate counsel represented the woman who accused the trial judge of misconduct, and that the trial judge was removed from Petitioner's case due to a conflict of interest. (Id.) Further, Petitioner argues that the trial judge should not have allowed the testimony of expert witness Dr. Dutton, because there was no evidence of the victim's irrational behavior on which Dr. Dutton was expected to testify. (Id.)
In addition to arguing that Petitioner's Ground 11 claim is unexhausted and procedurally defaulted without excuse, addressed in Section V(A)(9) supra, Respondents contend that Petitioner's Ground 11 claim is non-cognizable, as it does not allege that Petitioner “‘is in custody in violation of the Constitution or laws or treaties of the United States,' as required by 28 U.S.C. § 2254(a)[.]” (Doc. 7 at 13)
A federal court has “no supervisory authority over criminal proceedings in state courts.” Duckett v. Godinez, 67 F.3d 734, 741 (9th Cir. 1995). Because a federal court can only impose standard on the states that are “dictated by the Constitution,” on habeas review, a court “must ask whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution.” Id. at 740-41. Petitioner has not alleged that the trial judge's conduct violated his rights under the Due Process Clause, nor does his Ground 11 claim establish a due process violation. Because of Petitioner's failure to allege a due process or other constitutional violation, Petitioner's Ground 11 claim is not cognizable in these proceedings and therefore should be denied.
VII. MERITS
For the reasons set forth below, the remaining claims in Grounds 1, 2(b), 5, 6(a), 8, 12, and 14 lack merit pursuant to 28 U.S.C. § 2254(d).
A. 28 U.S.C. § 2254 - Legal Standard of Review
On habeas review of claims adjudicated on the merits in a state court proceeding, this Court can only grant relief if the petitioner demonstrates prejudice because the adjudication of the claim either “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the 30 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). This 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) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). A federal court “looks to the last reasoned state court decision” to make a determination on a claim pursuant to § 2254(d). White v. Ryan, 895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v. Sellers, __ U.S., 138 S.Ct. 1188, 1192 (2018)).
Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). For a federal court to find a state court's application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409.
To make a determination pursuant to § 2254(d)(1), the Court first identifies the “clearly established Federal law,” if any, that governs the sufficiency of the claims on habeas review. “Clearly established” federal law consists of the holdings of the United States Supreme Court which existed at the time the petitioner's state court conviction became final. Id. at 412. The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410 (emphasis in original). Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), “[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.” Richter, 562 U.S. at 101. Accordingly, to obtain habeas relief from this 31 Court, Petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
Regarding § 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 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 v.Allen, 558 U.S. 290, 301 (2010). As the Ninth Circuit has explained, 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), abrogated on other grounds by Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). “This is a daunting standard-one that will be satisfied in relatively few cases.” Id.
The petitioner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” § 2254(e)(1). The Supreme Court has not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), but has clarified “that a statecourt factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” See Burt v. Titlow, 571 U.S. 12, 18 (2013), citing Wood, 558 U.S. at 293, 301.
B. Ineffective Assistance of Counsel (“IAC”)
Under clearly established federal law on IAC, a petitioner must show that his counsel's performance was both (a) objectively deficient and (b) caused him prejudice. Stricklandv. Washington, 466 U.S. 668, 687 (1984). In federal habeas corpus review, this results in a “doubly deferential” review of counsel's performance. Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (explaining that in a 28 U.S.C. § 2254 case, deference is due both 32 to defense counsel's performance and to the state court's ruling). A habeas court reviewing a claim of ineffective assistance of counsel must determine “whether there is a reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the IAC 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, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted). Moreover, “[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 669. When review of the Strickland test is under § 2254(d), “the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011). The Court has discretion to determine which Strickland prong to apply first, and the failure to satisfy either prong of the Strickland test obviates the need to consider the other prong. Strickland, 466 U.S. at 697.
C. Grounds 1, 2(b), 5, 6(a), 8, 12, and 14 Lack Merit
1. Ground 1
In Ground 1, Petitioner alleges that his trial counsel was ineffective for failing to introduce evidence that he suffered from kidney disease and consequent impotence due to kidney medication. (Doc. 1 at 12) Petitioner argues that trial counsel should have investigated his medical condition, requested records, and called Petitioner's treating physicians as witnesses. (Id.) In his Reply, Petitioner argues that trial counsel's decision to ignore and failure to investigate his medical evidence showed trial counsel's prejudice and violated his “6th [sic] Amendment right of due process.” (Doc. 8 at 5)
As discussed supra, Petitioner exhausted this claim. The Arizona Court of Appeals recognized Petitioner's Ground 1 claim and stated that “the record supports a finding that [trial counsel] took all of the steps necessary to provide [Petitioner] with a fair trial[.]” (Doc. 7-2 at 99) Because the court of appeals determined that “the record supports the trial court's conclusion that [trial counsel's] performance was not deficient,” the court of 33 appeals “decline[d Petitioner's] invitation to address every feature of counsel's performance, including [Petitioner's] multiple claims of how [trial counsel] could have presented [Petitioner's] case more effectively.” (Id. at 98-99) Because the superior court provided the last detailed rationale relevant to Petitioner's Ground 1 claim, this Court may “look through” the appeals court's decision, which adopts the superior court's conclusions, and may rely on the superior court's reasoning for AEDPA purposes. Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005) (where “last reasoned decision adopted or substantially incorporated the reasoning from a previous decision[,]” the reviewing court may look at both decisions); see also Wilson, 138 S.Ct. at 1192 (A “federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning.”)
In providing the last reasoned decision on this issue during the PCR proceedings, the superior court stated that:
[Petitioner's] sister, Tawanna Hawkins, testified at the hearing on this petition as to her understanding of her brother's condition. Ms. Hawkins testified that she believed [Petitioner] had kidney disease and that [Petitioner] had been hospitalized for it in the past. [...]
Ms. Hawkins also testified that [Petitioner] had told her that he was having “man” issues as a result and that it was causing tension in his relationship with [the victim's mother]. [...] However, Petitioner has never presented any documentation or diagnosis to support this claim. [Trial counsel] testified at the hearing that she had obtained the medical records that indicated [ Petitioner] was suffering from kidney disease, but that nothing in those records reflected that [Petitioner] was experiencing erectile dysfunction as a result. [...]
Without documentary evidence to support this claim, the Court fails to see how [trial counsel] should be expected to have advanced this argument at trial. [...]
While [trial counsel] did not defend the case in the manner in which [appellate counsel] may have, there is not sufficient evidence for this Court to make a finding that [trial counsel's] conduct failed to meet that objective standard of reasonableness the courts in Strickland and its progeny have found to be at the center of an ineffective assistance of counsel claim. Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 2055 (1984), Hinton v. Alabama, 517 U.S.263, 134 S.Ct. 1081, 1088.(Doc. 7-1 at 214) 34
At Petitioner's trial, no evidence or testimony was presented relating to Petitioner's kidney disease, his medication for this condition, or his alleged impotence as a result of his medication. (See Doc. 10) During the evidentiary hearing on the PCR petition in superior court, Petitioner's trial counsel testified that she had read Petitioner's medical records and found only evidence of kidney disease, not erectile dysfunction. (Doc. 7-1 at 165) Although trial counsel testified that Petitioner told her that he had “some difficulty,” trial counsel “figured that's kind of typical.” (Id.) Trial counsel did not recall when Petitioner was treated for his kidney condition. (Id. at 165-66)
As stated in Section VII(B) above, the clearly established federal law on IAC is set forth in Strickland. To prevail on his Ground 1 claim, Petitioner must establish that the state court's decision rejecting his claim of IAC by trial counsel for failing to investigate and introduce evidence of Petitioner's kidney disease and impotence was an unreasonable application of Strickland or based on an unreasonable application of the facts presented in his state court proceeding. 28 U.S.C. § 2254(d). Under Strickland, Petitioner must show that his counsel's performance was both objectively deficient (the performance prong), and that the deficient performance caused him prejudice (the prejudice prong). Strickland, 466 U.S. at 687. Federal habeas review provides a “doubly deferential” review of counsel's performance, Pinholster, 563 U.S. at 190, and relief may be obtained “only if no reasonable jurist could disagree that the state court erred.” Murray, 746 F.3d at 465-66.
The Supreme Court has instructed that ‘“counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary[.]'” Pinholster, 563 U.S. at 195 (quoting Strickland, 466 U.S. at 691 (emphasis added in Pinholster)). The Supreme Court has further recognized that “reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005). Additionally, the Supreme Court has concluded that “[w]hen counsel focuses on some issues to the exclusion of others, there is a strong presumption that [counsel] did so for tactical reasons rather than through sheer neglect.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003). 35
Given the lack of evidence demonstrating Petitioner's impotence due to kidney medication, trial counsel could make the “reasonable decision” under Strickland to determine that evidence of Petitioner's kidney disease would not be beneficial to the presentation of his case and that further investigation would not be warranted. Additionally, any evidence of Petitioner's impotence would have little bearing on the charges against Petitioner that did not involve penetrative sexual intercourse. Applying the “strong presumption” that trial counsel acted within the acceptable range of reasonable professional assistance, Petitioner fails to demonstrate that trial counsel's representation on this issue was objectively unreasonable. Yarborough, 540 U.S. at 8; Strickland, 466 U.S. at 689. Further, Petitioner has not established prejudice by showing “a reasonable probability” that with introduction of evidence of impotence, “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
Petitioner has not established that the state court's decision on this issue was either contrary to or involved an unreasonable application of Strickland or was an unreasonable application of the facts. Accordingly, Petitioner's Ground 1 claim fails on the merits.
2. Grounds 2(b) and 5
In Ground 2(b), Petitioner asserts that trial counsel was ineffective in conducting cross-examination of the victim. (Doc. 1 at 12-13) Petitioner contends that trial counsel should “have provided the jury with both the accuser's and her mother's motives,” including admissions from the victim's mother that she pressured the victim to admit sexual abuse. (Id.) In Ground 5, Petitioner asserts that trial counsel poorly cross-examined the victim and should have investigated (a) the victim's motive, (b) the victim's character, and (c) whether the victim fabricated her allegations. (Id. at 15-16) Petitioner exhausted his Grounds 2(b) and 5 claims in his PCR petition in the superior court (Doc. 7-1 at 40-43) and in his petition for review in the Arizona Court of Appeals. (Doc. 7-2 at 7-8, 10-11)
The Arizona Court of Appeals provided the last reasoned decision on Petitioner's Grounds 2(b) and 5 claims, writing: 36
While [Petitioner] may disagree with [trial counsel's] advocacy at trial, we do not find his claims of ineffective assistance persuasive. [Trial counsel] ultimately identified the weaknesses in the state's case and drew the jury's attention to [Petitioner's] best arguments for acquittal in her opening and closing remarks. For example, [trial counsel] emphasized to the jury that the victim's representations during the two forensic interviews were inconsistent; the victim acknowledged she had lied; and her mother, who had repeatedly asked her if she was having sex with [Petitioner], had characterized her daughter as a ‘good liar.' Explaining that the gifts [Petitioner] had purchased for the victim were ‘nothing outrageous,' [trial counsel] maintained that he had been ‘a father figure' to the victim, and that his expressed concern that ‘he might be going to jail' when confronted with the victim's allegations were a normal reaction under the circumstances. [Trial counsel] also pointed out that the relationship between the victim's mother and [Petitioner] was ‘not the smoothest' when the allegations were made.
The record establishes that [trial counsel] took the necessary steps to put [Petitioner's] theory of the case into evidence. She adequately drew the jury's attention to why it should question the victim's credibility, permitting it to assess her testimony first hand. Because the record supports the trial court's conclusion that [trial counsel's] performance was not deficient, we decline [Petitioner's] invitation to address every feature of counsel's performance, including his multiple claims of how she could have presented his case more effectively.(Doc. 7-2 at 99)
At Petitioner's trial, the prosecutor questioned the victim about her relationship with Petitioner (Doc. 10 at 175-78); how the victim's relationship with Petitioner became physical (id. at 178-88); how the victim's mother confronted her about shorts on her mother's bed and a bra in the couch (id. at 188-89); how her mother asked whether the victim and Petitioner were having sex (id.); how the victim initially lied because she did not want Petitioner to get in trouble (id. at 189-91); how Petitioner called the victim after she reported the sexual conduct and urged her to report that he had only caught her masturbating (id. at 191-93); how the victim told the fabricated story in the first forensic interview because she did not want anything to happen to Petitioner (id. at 194-96); how the victim told the truth in the second forensic interview (id. at 197-98); and how the victim did not feel that her mother had pressured her to make accusations against Petitioner. (Id.) On redirect, the victim continued to testify that she had lied about being caught masturbating and watching pornography in her first forensic interview because she loved Petitioner, wanted to protect him, and did not want him to go to jail. (Doc. 10 at 201-04) 37
On cross-examination of the victim, Petitioner's trial counsel asked the victim about forensic interview guidelines, which instructed the victim to tell the truth. (Doc. 10 at 200) Although the victim had agreed to abide by these guidelines, trial counsel reminded the victim that during the first of two forensic interviews, the victim stated that she had not had sex with anyone; was embarrassed at being caught masturbating; and told her mother several times that she did not have sex with Petitioner. (Id.) On further cross examination, Petitioner's trial counsel raised with the victim that in the same interview, the victim stated that the victim's bra was found in the couch because the victim took her bra off after school. (Id. at 201) Petitioner's trial counsel asked the victim about how during the first forensic interview, the victim claimed she watched pornography on YouTube, yet during the second interview the victim denied the same. (Id.) Trial counsel pointed out this inconsistency, despite the victim agreeing to tell the truth during both forensic interviews. (Id.)
On direct examination of the victim's mother, the prosecutor asked about Petitioner's relationship with the victim and with the victim's mother (id. at 206-08); how Petitioner and the victim's mother did not have a sexual relationship for the final two years of their relationship (id. at 208); how the victim and Petitioner grew closer (id. at 209-10); how the victim's mother wanted to end her relationship with Petitioner and moved into a new apartment while Petitioner was on vacation (id. at 211); how Petitioner moved back in after the victim became upset that he was gone (id. at 212); and how the victim's mother found condoms in Petitioner's drawers, despite not having used condoms in their relationship for several years (id. at 213). The victim's mother testified that she found the victim's bra in the couch, asked the victim how it got there, and asked the victim if she was having sex with Petitioner, which the victim initially denied. (Id. at 214-15) After finding the victim's shorts on her bed, the victim's mother testified that she again confronted the victim, and the victim said that she was having sex with Petitioner. (Id. at 215-16) The victim's mother testified that she sent the victim to school (id. at 217), spoke to an abuse counselor and to Detective Knauber (id.), ignored calls from Petitioner (id.), and brought the victim to a medical examination (id. at 218). The victim's mother stated that the victim 38 was talking on the phone after school and subsequently told a different story, namely that Petitioner had caught her masturbating and gave her gel and a dildo. (Id. at 218, 220) The victim's mother later testified that the victim said she was on the phone with Petitioner after school. (Id. at 226) When shown phone records at trial, the victim's mother recognized Petitioner's phone number. (Id. at 228)
When she spoke to Petitioner later, the victim's mother testified that she relayed the allegations and that Petitioner kept repeating that he was going to jail. (Id. at 218-19) The victim's mother stated that Petitioner never told her about finding the victim masturbating or giving the victim a dildo. (Id. at 221) The victim's mother testified that she spoke to Detective Knauber again, since she was worried that she would put an innocent man in jail, and that the detective urged her to bring the victim to a forensic interview and a physical examination, during which the victim's mother was not present. (Id. at 222-24) The victim's mother testified that before the interview, the victim was home alone with Petitioner, but after the interview, the victim's mother asked Petitioner to move out so that child protective services would not take the victim, not because of discord between Petitioner and the victim's mother. (Id. at 224-25) The victim's mother testified that the victim eventually reported that the sex with Petitioner happened almost every night (id. at 225) and that the victim later attended a second forensic interview (id. at 226). On redirect, the prosecutor asked the victim's mother about how the victim changed her story between the two forensic interviews (id. at 231); whether the victim's mother forced the victim to make up the story, and whether the victim's mother had a vendetta against Petitioner, to which the victim's mother replied that she did not (id. at 231-32).
Upon cross-examination of the victim's mother, Petitioner's trial counsel asked about the mother's decision to move to a new apartment without Petitioner's knowledge while Petitioner was on vacation. (Id. at 228) The victim's mother later testified that she invited Petitioner to live with her again. (Id. at 229) The victim's mother testified that she asked the victim several times if the victim was having sex with Petitioner, which the victim denied, and the victim eventually admitted that she was embarrassed at being caught 39 masturbating. (Id.) When Petitioner's trial counsel asked about the interactions between Petitioner and the victim, the victim's mother testified that generally, nothing struck her as odd except for one incident where Petitioner and the victim were sitting “very close together” and then “moved apart really, really fast.” (Id. at 229-30) The victim's mother testified on cross examination that she didn't ask about this incident afterward, because the victim and Petitioner went many places together and the victim's mother trusted them together. (Id. at 230) On further cross examination, the victim's mother testified that the time the victim and Petitioner spent together was “very odd,” but because the victim's father had passed away, the victim's mother assumed the victim needed a close father figure, a role which Petitioner filled. (Id.) Trial counsel asked the victim's mother if she remembered stating to an officer that the victim was “a really good liar.” (Id.) The victim's mother testified that she remembered and qualified her comment by stating that the victim had not told or shown her mother about the events for more than a year. (Id.)
During the evidentiary hearing in the superior court PCR proceedings, trial counsel testified that her strategy in the case was to focus on the fact that the victim was inconsistent and had lied. (Doc. 7-1 at 164) Trial counsel initially did not remember whether she tried to impeach the victim, but she stated that her strategy for cross-examining child molestation victims was to “[t]ry not to make them cry.” (Id. at 164, 170) Before trial, Petitioner's counsel was unable to interview the victim or the victim's mother. (Id. at 164-65, 170) During trial, Petitioner's trial counsel had the impression that some of the jury was skeptical of the victim's testimony. (Id. at 171) Petitioner's trial counsel testified that she did not ask the victim about an allegation that Petitioner had used Saran wrap in place of a condom; whether the victim had masturbated or used a dildo; why the victim had changed her story; about a conversation between the victim and her mother after Petitioner moved out; whether the victim's mother had a new boyfriend; whether the victim had lied to her mother or an interviewer; or whether the victim's mother had a motivation to force the victim to make up her story. (Id. at 179-80) Petitioner's trial counsel testified that she did not reach out to the prosecutor to inform him of allegations that the victim's mother had 40 made up the victim's story to get Petitioner out of her house. (Id. at 183)
Petitioner's claims in Grounds 2(b) and 5 present a difference of opinion regarding defense counsel's trial strategy, which ‘“is not in itself sufficient to support a charge of inadequate representation.'” Clark v. Chappell, 936 F.3d 944, 979 (9th Cir. 2019) (quoting Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980)). Decisions by defense counsel regarding the manner and scope of cross-examination are left to counsel's professional judgment as trial strategy. See, e.g., United States v. Gamba, 541 F.3d 895, 900 (9th Cir. 2008) (“[C]ounsel may waive the accused's Sixth Amendment right to cross-examination and confrontation as a matter of trial tactics or strategy.”); Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) (“[C]ounsel's tactical decisions at trial, such as refraining from cross-examining a particular witness or from asking a particular line of questions, are given great deference and must ... meet only objectively reasonable standards.”), cert. denied, 531 U.S. 908 (2000).
As the Arizona Court of Appeals recognized, Petitioner's trial counsel acknowledged the victim's inconsistent statements, that the victim admitted lying, and that the victim's mother called her daughter “a good liar.” (Doc. 7-2 at 98-99) Although Petitioner contends that trial counsel should have questioned the victim and the victim's mother in more depth, the prosecutor had already elicited relevant answers on direct and redirect examination that were beneficial to the prosecution. For example, the victim testified that she gave inconsistent interview answers to protect Petitioner, and she stated that her mother did not pressure her to fabricate allegations against Petitioner. (Doc. 10 at 194-98) Relevant to Petitioner's claims that the victim's mother had an ulterior motive for wanting Petitioner out of her apartment, the victim's mother denied having any ill intent toward Petitioner. (Id. at 224-25, 231-32) Further, trial counsel's cross-examination aligns with her stated theory of the case-that the victim had lied-as well as with her tactic to try not to make the victim cry, as she testified at the PCR evidentiary hearing. (Doc. 7-1 at 164, 170) Trial counsel's tactics and decisions regarding which questions to ask on cross-examination are afforded “great deference” and must only be “objectively reasonable[.]” 41 Dows, 211 F.3d at 487. Petitioner's argument that trial counsel should have conducted additional cross-examination does not establish that trial counsel did not meet this standard.
Given this record, it cannot be concluded that there is no “reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington, 562 U.S. at 105. Petitioner has not established that the Arizona Court of Appeals' decision rejecting his Grounds 2(b) and 5 claims was either contrary to or involved an unreasonable application of Strickland, or was based on an unreasonable application of the facts. Accordingly, Petitioner's Grounds 2(b) and 5 claims fail on the merits.
3. Ground 6(a)
In Ground 6(a), Petitioner argues that trial counsel was ineffective for failing to cross-examine forensic expert Dr. Dutton. (Doc. 1 at 16-17) Petitioner asserts that Dr. Dutton testified about characteristics of initial and delayed disclosure, secrecy, and recantation, yet Dr. Dutton later testified that general characteristics could not determine if a child had been abused but could explain why a child did not act in a rational way. (Id.) Petitioner also contends that counsel was unfamiliar with the legal concepts in his case, therefore allowing Dr. Dutton to misuse the terms “disclosure” and “recantation,” and that counsel should have shown the jury that Dr. Dutton's “five characteristics of victimization” did not apply to Petitioner's case. (Id.) As discussed in Section V(A)(5) supra, Petitioner exhausted his Ground 6(a) claim in his PCR petition in the superior court (Doc. 7-1 at 43-45) and in his petition for review in the Arizona Court of Appeals. (Doc. 7-2 at 8-10)
As with Petitioner's Ground 1 claim, the Arizona Court of Appeals declined to address this specific characteristic of trial counsel's performance because the appeals court found that “the record supports a finding that [trial counsel] took all of the steps necessary to provide [Petitioner] with a fair trial[.]” (Doc. 7-2 at 99) The superior court, in providing the last reasoned decision on this issue, found that trial counsel:
testified] that while she was familiar with Wendy Dutton's testimony, her trial tactic was not to spend too much time cross-examining her as the testimony could become rather dense. [Trial counsel] characterized Ms. Dutton as tending to ‘blather on.' The State argues that [trial counsel] made a tactical decision not to highlight possibly damning testimony by the state's expert. The Court is not unfamiliar with situations where trial attorneys have42
opted to minimize the value of the opposing side's expert so as not to signal to the jury that the expert may have hurt their case. []
While [trial counsel] did not defend the case in the manner in which [appellate counsel] may have, there is not sufficient evidence for this Court to make a finding that [trial counsel's] conduct failed to meet that objective standard of reasonableness the courts in Strickland and its progeny have found to be at the center of an ineffective assistance of counsel claim. Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 2055 (1984), Hinton v. Alabama, 517 U.S.263, 134 S.Ct. 1081, 1088.(Doc. 7-1 at 213)
Dr. Dutton provided the only witness testimony on the third and final day of Petitioner's jury trial. (Doc. 10 at 335-82) Dr. Dutton explained that she was a forensic interviewer at Phoenix Children's Hospital and described her protocol for conducting forensic interviews with children. (Id. at 338, 341-43) Without knowing the facts of the case, Dr. Dutton testified about the research in her field, including the five main characteristics of child sexual abuse victims (id. at 348-51); how the characteristics do not determine whether a child has been abused but instead can explain a child's behavior (id. at 351-52); why children may delay disclosure (id. at 352-57; 362-63); how children may react (id. at 357-59); what factors escalate trauma symptoms (id. at 360-62); the characteristics of grooming (id. at 363-66); how victims typically disclose and share more details over time (id. at 366-72); that victims may still care for the perpetrator and either delay disclosure or recant accusations (id. at 372-76); which circumstances may lead to either erroneous or malicious allegations of sexual abuse (id. at 376-80); how malicious allegations are rare but may occur with teenage girls (id. at 378-79); whether an abuser's access to a victim after accusations can lead to recantation (id. at 381); and how it is not uncommon to find discrepancies between subsequent forensic interviews. (Id. at 381-82) Dr. Dutton stated that if she had performed forensic interviews where a child made inconsistent statements, she would invite the child to explain the inconsistencies, but it was not her job to determine the truth of the child's statements. (Id.)
Trial counsel had no questions for Dr. Dutton on cross-examination. (Doc. 10 at 382) At the evidentiary hearing on the PCR petition in superior court, Petitioner's trial 43 counsel testified that she did not cross-examine Dr. Dutton because she “blathers on and on, and the jury loses their attention.” (Doc. 7-1 at 167) Petitioner's trial counsel further testified that aside from some transcripts on how to impeach Dr. Dutton with her history, she was not aware of most of the available resources with instructions for cross-examining Dr. Dutton (id. at 173-74), about which Petitioner's appellate counsel testified at the PCR evidentiary hearing (id. at 121-22). Trial counsel did not read the treatises in Dr. Dutton's curriculum vitae or interview Dr. Dutton before trial. (Id. at 174, 184) Further, trial counsel testified that she had not won a similar case on jury trial, had cross-examined Dr. Dutton in other cases, and had been told a couple of times by prior juries that they were lost by Dr. Dutton's testimony. (Id. at 181-82) Trial counsel also testified that at trial, she had not noticed that the prosecutor suggested in closing argument that Dr. Dutton's testimony corroborated the victim's allegations. (Id. at 182)
As discussed above, defense counsel's decision regarding the manner and scope of cross-examination is left to counsel's professional judgment as trial strategy. Gamba, 541 F.3d at 900. At the PCR evidentiary hearing, Petitioner's trial counsel testified about her reasons for declining to cross-examine Dr. Dutton based on trial counsel's previous trial experience where Dr. Dutton had testified. (Doc. 7-1 at 167, 181-82) Further, although Petitioner contends that his trial counsel should have shown that the general characteristics of victims did not apply, on direct examination, Dr. Dutton had already testified that these general characteristics could not actually determine whether a child had been abused. (Doc. 10 at 351-52) Despite trial counsel's lack of awareness of materials available for impeaching Dr. Dutton and trial counsel's pre-trial lack of engagement with Dr. Dutton and her treatises, “[u]nder Strickland, counsel's representation must be only objectively reasonable, not flawless or to the highest degree of skill.” Dows, 211 F.3d at 487 (quoting Strickland, 466 U.S. at 688-89).
Applying the “great deference” afforded to trial counsel's decisions, including whether to cross-examine a witness, Petitioner has not established that the superior court's finding on his Ground 6 claim-namely, that trial counsel's decision not to cross-examine 44 Dr. Dutton did not fall below objectively reasonable standards-was either contrary to the standard in Strickland or an unreasonable determination of the facts. Id. Accordingly, Petitioner's Ground 6 claim fails on the merits.
4. Ground 8
In Ground 8, Petitioner argues that trial counsel was ineffective in failing to effectively cross-examine Detective Stephen Knauber. (Doc. 1 at 19-21) Petitioner contends that trial counsel should have questioned Detective Knauber about (a) his failure to collect a bra and shorts that led the victim's mother to believe that Petitioner was sexually abusing the victim, (b) his failure to interview the victim or investigate the victim's inconsistent statements, (c) his history of not following protocol, and (d) that he had only one year of experience as a detective prior to Petitioner's case. (Id.) Due to Detective Knauber's lack of experience, Petitioner argues that trial counsel should have prevented Detective Knauber from testifying about victimization, disclosure, and recantation, as Detective Knauber did not possess expertise on these subjects. (Id. at 20) Petitioner exhausted his Ground 8 sub-claims (b) and (d) by raising them in his PCR petition in the superior court (Doc. 7-1 at 43) and in his petition for review in the Arizona Court of Appeals. (Doc. 7-2 at 10) In his PCR petition, Petitioner did not raise sub-claim (a) that the detective failed to collect the victim's bra and shorts, nor did he raise sub-claim (c) that trial counsel should have questioned the detective about his past failure to follow protocol. (Doc. 7-1 at 43) As such, Petitioner did not exhaust these sub-claims. Swoopes, 196 F.3d at 1010.
Nevertheless, Respondents address the entirety of Petitioner's Ground 8 claim on the merits. (Doc. 7 at 17; Doc. 11 at 12-13) Pursuant to 28 U.S.C § 2254(b)(3), a “State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.” Respondents do not argue that Petitioner's Ground 8 claim is unexhausted and instead address this claim on the merits. The Court will therefore address the entirety of Petitioner's Ground 8 claim on the merits. See 28 U.S.C. § 2254(b)(2) (“An application 45 for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); see also Schubert v. Quinn, 448 Fed.Appx. 760, 761 (9th Cir. 2011) (state expressly conceded that petitioner satisfied exhaustion requirement by stating that all of petitioner's federal claims were exhausted); Menendez v. Terhune, 422 F.3d 1012, 1026 n.5 (9th Cir. 2005) (“Though we continue to question whether this claim was indeed exhausted, because the State has not argued that the claim is unexhausted, we proceed to the claim on the merits.”); c.f. Libby v. Neven, 580 Fed.Appx. 560, 564 (9th Cir. 2014) (state's failure to decline to affirmatively assert that claims were unexhausted was not express waiver); and Harden v. Shinn, 2021 WL 3081371, at *7 (D. Ariz. June 11, 2021) (finding no express waiver where state addressed claim on the merits and didn't argue claim was properly exhausted, but nevertheless addressing on the merits because claim was meritless).
In providing the last reasoned decision on this issue, the superior court found that:
[Trial counsel] also did not attack the State's case agent, Detective Knauber to the extent [appellate counsel] thought appropriate. Watching both [appellate counsel] and [trial counsel] during the [evidentiary] hearing, it was apparent to the Court that bother attorneys have extremely different - almost opposite - demeanors. An aggressive posture towards a law enforcement witness is not always effective in trial, especially if the attorney does not naturally employ an aggressive trial style. []
Trial strategies differ significantly from attorney to attorney and from trial to trial. While [trial counsel] did not defend the case in the manner in which [appellate counsel] may have, there is not sufficient evidence for this Court to make a finding that [trial counsel's] conduct failed to meet that objective standard of reasonableness the courts in Strickland and its progeny have found to be at the center of an ineffective assistance of counsel claim.(Doc. 7-1 at 213-14)
At Petitioner's trial, Detective Knauber explained that he was a detective with the Casa Grande Police Department and had eight years of experience at the time of trial, including five initial years as a patrol officer. (Doc. 10 at 236-37) Detective Knauber summarized his experience and training, including a sixteen-week police academy, detective training, and specialized training in sex crimes and child sex crimes. (Id. at 236-39) Upon being assigned Petitioner's case, Detective Knauber interviewed the victim's 46 mother and set up a forensic interview and physical examination of the victim. (Id. at 241-47) The detective testified briefly about delayed disclosures and recantation. (Id. at 248, 250)
Detective Knauber testified that the victim's mother seemed conflicted about her disclosure but went forward with the victim's interview and examination. (Id. at 251-52) Detective Knauber watched the forensic interviews from another room and was not present for the medical examination, and he testified at trial about the results of the medical examination and two forensic interviews. (Id. at 252-59) Detective Knauber did not conduct the interviews himself because department policy directed him to use forensic interviewers for children. (Id. at 249) As for inconsistencies in the victim's statements, the detective testified that the protocol with children is not to ask about inconsistencies because such questioning can shut down the child. (Id. at 259-60) Regarding forensic interviewers, specifically, Detective Knauber testified that such interviewers are taught to be neutral and let the victim speak. (Id. at 260-61) Detective Knauber testified that he went to the apartment of the victim but did not swab for DNA because it would not have revealed anything pertinent. (Id. at 262-63) Further, Detective Knauber testified that he obtained call records for Petitioner's phone number that showed calls to the victim and the victim's mother on the day that the victim disclosed the allegations. (Id. at 264-73)
On cross-examination, trial counsel asked Detective Knauber about phone records showing that Petitioner called the victim and the victim's mother multiple times on the day that the victim disclosed Petitioner's conduct to her mother. (Doc. 10 at 273) Phone records reflected that Petitioner placed several calls to the victim's phone number, of durations including 34 seconds, 50 seconds, 23 seconds, four seconds, and 53 seconds. (Id. at 27374) Detective Knauber testified that the phone records did not indicate whether any calls were answered. (Id. at 274) Detective Knauber also testified that he was trained to do forensic interviews and had conducted two interviews himself in cases regarding non-sexually based crimes. (Id. at 274-75) The detective stated that he was trained “to ask questions in the correct manner” and was the investigator in Petitioner's case, yet he did 47 not investigate the inconsistencies in the victim's statements. (Id. at 275) Despite the victim's previous statement that she had watched pornography, Detective Knauber testified that when he went to the victim's apartment, he did not collect the victim's tablets or computer to see if they contained pornography because such an investigation would be unrelated to the allegations that Petitioner had sex with the victim. (Id.)
At the PCR evidentiary hearing, Petitioner's trial counsel testified that she knew what Detective Knauber would say because trial counsel had transcripts of his testimony from Petitioner's first trial that ended in a hung jury. (Doc. 7-1 at 174-75) Trial counsel also testified that she did not remember whether the detective testified like an expert on victimization and disclosure, nor could she remember whether she objected to the detective's testimony. (Id.)
Contrary to Petitioner's allegations, trial counsel did question Detective Knauber about his failures to question the victim's inconsistent statements.
Q: So even though there were inconsistencies in the statements that [the victim] made, you didn't investigate those inconsistencies?
A: No.(Doc. 10 at 275)
Further, Detective Knauber's failure to collect the victim's bra and shorts was inconsequential because the clothing's placement when discovered by the victim's mother, rather than the clothing's mere existence, caused the victim's mother concern. To the extent that the victim's clothing may have had traces of DNA, Detective Knauber had also testified as to why he did not swab the victim's apartment for DNA. (Doc. 10 at 262-63) Collection of the victim's clothing would have presented the same challenges as swabbing the victim's apartment, as Petitioner's DNA was already pervasive in the apartment. As for Detective Knauber's testimony regarding disclosure and recantation, Detective Knauber described his experience and specialized training before testifying briefly about these subjects. (Id. at 236-39, 248, 250) In addition, Petitioner's trial counsel also questioned Detective Knauber about whether he was trained to conduct forensic interviews, to which 48 the detective testified that he was. (Id. at 274) As with trial counsel's cross-examination of the other prosecution witnesses, Petitioner's trial counsel's cross-examination of Detective Knauber is afforded “great deference” so long as it was “objectively reasonable.” Dows, 211 F.3d at 487.
On the record before the Court, Petitioner has not established that the superior court's finding that trial counsel's examination of Detective Knauber was objectively reasonable was either contrary to the standard in Strickland or an unreasonable determination of the facts. Accordingly, Petitioner's Ground 8 claim fails on the merits.
5. Ground 12
As discussed in section V(A)(10), supra, Petitioner's Ground 12 claim is not only unexhausted, but fails on the merits based on the clear record in this matter that trial counsel filed a notice of appeal which initiated a direct appeal of Petitioner's convictions and sentences.
6. Ground 14
In Ground 14, Petitioner argues that trial counsel was ineffective in failing to deliver a sufficient closing argument. (Doc. 1 at 25-27) Underlying this claim, Petitioner contends that counsel should have presented a longer, more detailed argument; should have pointed out the ulterior motive of the victim's mother and her consequent pressure on the victim to admit sexual abuse; should have pointed out the victim's inconsistent statements; should have told the jury that the forensic interviewer did not question the aforementioned inconsistencies, even though Dr. Dutton testified that she would have questioned the inconsistencies; should have noted that Dr. Dutton's profile testimony was not proof of guilt; should have pointed out that Detective Knauber was inexperienced and did not follow protocol; should have told the jury that the nurse who examined the victim did not find any serological evidence and could not tell if the victim had been penetrated; and should have introduced Petitioner's character and history. (Id.) While Petitioner did not expressly raise any argument regarding trial counsel's closing statement in his PCR petition in superior 49 court and only stated in his petition for review in the court of appeals that trial counsel should have mentioned Dr. Dutton's testimony in closing argument (Doc. 7-2 at 8, 10), Respondents address Petitioner's Ground 14 claim as though it has been exhausted. (Doc. 7 at 17; Doc. 11 at 13) Further, Respondents accurately observe that the Arizona Court of Appeals, in its memorandum decision on Petitioner's petition for review, addressed trial counsel's closing remarks as part of its discussion about trial counsel's effectiveness. (Doc. 7-2 at 98-99)
The forensic interviewer, Stephanie Stewart, also testified at Petitioner's trial. (Doc. 10 at 280-309)
The Arizona Court of Appeals determined that trial counsel:
ultimately identified the weaknesses in the state's case and drew the jury's attention to [Petitioner's] best arguments for acquittal in her opening and closing remarks. For example, [trial counsel] emphasized to the jury that the victim's representations during the two forensic interviews were inconsistent; the victim acknowledged she had lied; and her mother, who had repeatedly asked her if she was having sex with [Petitioner], had characterized her daughter as a “good liar.” Explaining that the gifts [Petitioner] had purchased for the victim were “nothing outrageous,” [trial counsel] maintained that he had been “a father figure” to the victim, and that his expressed concern that “he might be going to jail” when confronted with the victim's allegations were a normal reaction under the circumstances. [Trial counsel] also pointed out that the relationship between the victim's mother and [Petitioner] was “not the smoothest” when the allegations were made.
The record establishes that [trial counsel] took the necessary steps to put [Petitioner's] theory of the case into evidence. She adequately drew the jury's attention to why it should question the victim's credibility, permitting it to assess her testimony first hand. Because the record supports the trial court's conclusion that [trial counsel's] performance was not deficient, we decline [Petitioner's] invitation to address every feature of counsel's performance, including his multiple claims of how she could have presented his case more effectively.(Doc. 7-2 at 98-99)
In closing argument at trial, Petitioner's trial counsel pointed out the inconsistencies in the victim's two forensic interviews and asked the jury to consider why no one questioned the inconsistencies. (Doc. 10 at 444) Trial counsel also pointed out that the victim's mother used leading questions to confront the victim, suggesting a certain answer, yet the victim's mother never noticed anything unusual between the victim and Petitioner. (Id. at 444-45, 447) Trial counsel brought attention to testimony that the relationship between Petitioner and the victim's mother “wasn't going smoothly[,]” leading the victim's 50 mother to move, and noted that because Petitioner was no longer in the victim's apartment at that time, he could not have influenced the victim. (Id. at 445-46) Instead, the victim wanted Petitioner to return and fill the role of father figure, including picking her up from school and taking her shopping. (Id. at 446) Trial counsel argued that Petitioner never purchased anything “outrageous” for the victim. (Id.) Trial counsel rebutted the State's argument that Petitioner coached the victim on what to say, either in the apartment while the victim's mother was at work or on the phone, and argued that Petitioner's reaction that he could be going to jail was not unusual for anyone “accused of horrific conduct[.]” (Id. at 446-47) Further, Petitioner's trial counsel pointed out that Dr. Dutton testified that teenage girls often make false allegations; that recantation was not likely in this case because the victim's mother believed the victim and did not try to convince the victim that the events never occurred; that the victim said that she lied; and that the victim's mother stated that the victim was a good liar. (Id. at 447-48) Trial counsel asked the jury to find that the victim's prior lies were reasonable doubt. (Id. at 448)
The United States Supreme Court has found that “counsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage.” Yarborough, 540 U.S. at 5-6. “When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect.” Id. at 5 (citing Strickland, 466 U.S. at 690). Contrary to Petitioner's assertions, trial counsel did point out that the victim's mother had a rocky relationship with Petitioner; that the victim's mother used leading questions to confront the victim; that the victim made inconsistent statements, which no one questioned; and that the victim lied. Although Petitioner asserts that trial counsel should have included additional details in her closing argument, trial counsel had wide tactical discretion to select which arguments to present in closing. As the Arizona Court of Appeals acknowledged (Doc. 7-2 at 99), trial counsel's chosen arguments bolstered her theory of the case: that the victim lied. 51
Applying the strong presumption that counsel chose her arguments strategically, Yarborough, 540 U.S. at 5, Petitioner has not shown that the Arizona Court of Appeals' finding that trial counsel's closing argument was not deficient was either an unreasonable application of Strickland or based on an unreasonable application of the facts. Accordingly, Petitioner's Ground 14 claim fails on the merits.
VIII. EVIDENTIARY HEARING
In his Reply to the Limited Answer, Petitioner requests that the Court conduct an evidentiary hearing to discuss issues related to the testimony of Dr. Dutton, Detective Knauber, and the victim (Doc. 8 at 4), as well as to investigate trial counsel's “prejudice [sic] performance” as to the procedurally defaulted grounds of the Petition. (Id. at 5)
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). Insofar as Petitioner requests an evidentiary hearing on claims that were adjudicated on the merits in state court, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181; see also Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013) (noting that the holding of Pinholster is also applicable to § 2254(d)(2) claims). Because review under Section 2254(d)(1) “requires an examination of the state-court decision at the time it was made[, . . .] the record under review is limited to the record in existence at that same time i.e., the record before the state court.” Id. at 182. Such a limitation “ensures that the ‘state trial on the merits' is the ‘main event, so to speak, rather than a tryout on the road for what will later be the determinative federal habeas hearing.'” Shoop v. Twyford, 396 U.S.,, 142 S.Ct. 2037, __ (2022) (slip op., at 6) (quoting Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (internal quotation marks omitted)).
Petitioner's claims regarding the testimony of Dr. Dutton, Detective Knauber, and the victim were adjudicated on the merits in the Pinal County Superior Court and the Arizona Court of Appeals. Therefore, on these claims, this Court is limited to the record 52 before the state court, and an evidentiary hearing is not appropriate.
With respect to Petitioner's procedurally defaulted claims-that is, Petitioner's claims that were not adjudicated on the merits in state court-Title 28, section 2254(e)(2) of the United States Code “restricts the discretion of federal habeas courts to consider new evidence when deciding claims that were not adjudicated on the merits in state court.” Pinholster, 563 U.S. at 186 (citing Williams, 529 U.S. at 427-29). Section 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 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); see also Shinn v. Martinez Ramirez, 596 U.S., 142 S.Ct. 1718, 1738 (2022) (“[W]hen a federal habeas court convenes an evidentiary hearing for any purpose, or otherwise admits or reviews new evidence for any purpose, it may not consider that evidence on the merits of a negligent prisoner's defaulted claim unless the exceptions in § 2254(e)(2) are satisfied.”).
Petitioner has not demonstrated that his procedurally defaulted claims meet the requirements of § 2254(e)(2), as he does not allege a “new rule of constitutional law” or present facts “that could not have been previously discovered through the exercise of due diligence[.]” 28 U.S.C. § 2254(e)(2)(A)(i)-(ii). Instead, Petitioner argues that trial counsel should have raised evidence in existence at the time of trial or should have challenged 53 testimony presented at trial, none of which “could not have been previously discovered through the exercise of due diligence[.]” 28 U.S.C. § 2254(e)(2)(A)(ii). Further, Petitioner has not established by clear and convincing evidence that no reasonable fact-finder would find him guilty of the charges against him. See 28 U.S.C. § 2254(e)(2)(B). Petitioner's arguments that the outcome of his case would have been different had trial counsel conducted the second trial defense differently does not suffice. (Doc. 8 at 5-6) Accordingly, an evidentiary hearing on Petitioner's procedurally defaulted claims is not appropriate.
IX. CONCLUSION
For the reasons set forth above, Petitioner procedurally defaulted Grounds 2(a), 3, 4, 6(b), 7, 9, 10, 11, 12, and 13 without excuse, and Petitioner has failed to establish that habeas relief is warranted on the merits of Grounds 1, 2(b), 5, 6(a), 8, 11, 12, and 14. It is therefore recommended that Grounds 2(a), 3, 4, 6(b), 7, 9, 10, 11, 12, and 13 be dismissed with prejudice and that Grounds 1, 2(b), 5, 6(a), 8, 11, 12, and 14 be denied.
Assuming the recommendations herein are followed in the District Judge's judgment, a certificate of appealability should be denied because: (1) reasonable jurists would not find it debatable whether the District Judge was correct in the procedural ruling on the claims asserted in Grounds 2(a), 3, 4, 6(b), 7, 9, 10, 11, 12, and 13; and (2) Petitioner has not “made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and jurists of reason would not find the Court's rejection on constitutional grounds of Petitioner's Grounds 1, 2(b), 5, 6(a), 8, 11, 12, and 14 to be “debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, IT IS THEREFORE RECOMMENDED that Arnold Terrell Hawkins' Petition Under 28 U.S.C. § 2254 For a Writ of Habeas Corpus by a Person in State Custody (NonDeath Penalty) (Doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that Petitioner's request for an evidentiary hearing be denied.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be 54 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) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any 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 determination 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. 55