Opinion
CV-20-02129-PHX-DJH (MHB)
08-30-2021
Diamorrio Reed, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT COURT:
REPORT AND RECOMMENDATION
HONORABLE MICHELLE H. BURNS UNITED STATES MAGISTRATE JUDGE
Petitioner Diamorrio Reed, who is confined in the Arizona State Prison Complex-Florence, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer, and Petitioner filed a reply. (Docs. 10, 11.) On June 24, 2021, pursuant to this Court's June 9, 2021 Order (Doc. 13), Respondents filed a supplemental brief addressing the merits of Petitioner's ineffective assistance of counsel claims. (Doc. 14.) Petitioner filed a response to the supplemental brief on July 12, 2021. (Doc. 15.)
Respondents filed a supplement to their exhibits that includes a file-stamped copy of Petitioner's motion for extension of time to file his petition for review of the Arizona Court of Appeals' denial of relief with the Arizona Supreme Court. The supplement, thus, confirms that said motion was received by the Arizona Supreme Court, and was subsequently granted thereby extending the time for Petitioner to file his petition for review. (Doc. 12, Exhs. HH, II.)
BACKGROUND
Petitioner was convicted by jury trial in Maricopa County Superior Court, case #CR2014-002039, of two counts of sexual conduct with a minor, one count of kidnapping, and one count of sexual abuse arising out of events occurring in 2002. (Doc. 7; Doc. 10, Exhs. J, K.) On December 19, 2014, Petitioner was sentenced to an 88-year term of imprisonment. (Exh. K.)
According to the record, on November 26, 2002, M.B. left her family's apartment to go to the computer lab located in her apartment complex. (Exh. NN at 8.) As she was walking, Petitioner grabbed her from behind, took her to the top floor of the apartment complex, pushed her to the floor, took her pants off, and raped her. (Exh. NN at 8-11.) M.B. was later examined by a nurse, where she reported that Petitioner put his penis into her vagina on two different occasions. (Exh. OO at 43-44.)
On June 25, 2014, a Maricopa County grand jury indicted Petitioner on two counts of sexual conduct with a minor, one count of kidnapping, and one count of sexual abuse. (Exh. F.) The two counts of sexual conduct with a minor alleged different incidents: the “first act of penile-vaginal intercourse,” and the “second act of penile-vaginal intercourse[.]” (Exh. F.) The State filed an amended indictment on June 30, 2014, which added a citation to Arizona Revised Statute (“A.R.S.”) § 13-705 to the charges. (Exh. G.) Petitioner was arraigned on the new charges on July 3, 2014, and the last day for trial was set for November 30, 2014. (Exh. H.)
As relevant to the claims alleged in the habeas petition, Petitioner was originally indicted on May 7, 2013, on two counts of kidnapping and two counts of sexual assault. (Exh. A.) Petitioner was subsequently arraigned on December 12, 2013, the case was designated as “complex,” and the last day to bring Petitioner to trial was set for September 1, 2014. (Exhs. B, C, D.) The State, however, dismissed the charges on July 1, 2014, because the State secured the instant June 25, 2014 indictment against Petitioner. (Exh. E.)
Petitioner's trial commenced on October 28, 2014. (Exh. I.) The jury convicted Petitioner on all counts. (Exh. J.)
After the state court granted Petitioner leave to file a delayed notice of appeal (Exhs. P, Q), he did so, on November 8, 2016. (Exh. R.) In his appeal, Petitioner argued that the trial court abused its discretion in denying his motion to strike the entire jury panel for cause due to a potential juror's emotional outburst that occurred during voir dire. See State v. Reed, 2017 WL 3428092 (Ariz.Ct.App. August 10, 2017). On August 10, 2017, the Court of Appeals affirmed Petitioner's convictions and sentences. See id.
Petitioner filed an untimely notice of appeal on January 27, 2015. (Exh. L.) On July 13, 2015, Petitioner's counsel filed an Anders brief, and Petitioner filed a pro se supplemental brief on September 14, 2015. (Exhs. M, N.) On November 13, 2015, the Court of Appeals dismissed the appeal because it was not timely filed. (Exh. O.)
Petitioner filed a timely notice of post-conviction relief (PCR) on September 6, 2017. (Exh. V.) In his pro se PCR petition, Petitioner alleged that illegally seized evidence was introduced at trial, that his right to a speedy trial was violated, and that he was subject to double jeopardy because his two convictions for sexual conduct with a minor were multiplicitous. (Exhs. W, X.) Petitioner also alleged several ineffective assistance of counsel claims. Among his claims, Petitioner alleged that trial counsel was deficient for failing to file a timely notice of appeal; trial counsel was deficient for failing to investigate and challenge DNA evidence; trial counsel was deficient for failing to raise a speedy trial claim; trial counsel was deficient for failing to consult with or call an expert on DNA evidence; appellate counsel was deficient for failing to raise Rule 8 and 14.2 violations; appellate counsel was deficient for failing to raise the unlawful search issue; appellate counsel was deficient for failing to challenge the trial court's denial of his motion for judgment of acquittal; PCR counsel was deficient for failing to raise the issue related to his delayed appeal; and PCR counsel was deficient for failing to raise the issues he raised in his pro se PCR petition. (Exhs. W, X.) On November 7, 2018, the state court denied his PCR petition. (Exh. Z.)
On December 3, 2018, Petitioner filed a timely petition for review with the Arizona Court of Appeals challenging the denial of his PCR petition. (Exh. AA.) On May 7, 2019, the appellate court granted review, but summarily denied relief, finding that the superior court did not abuse its discretion. (Exh. BB.) Pursuant to Petitioner's request for an extension of time, Petitioner filed a timely petition for review with the Arizona Supreme Court. (Exhs. HH, II, CC.) On November 14, 2019, the Arizona Supreme Court denied review. (Exh. DD.)
In his habeas petition, Petitioner raises four grounds for relief. In Ground One, Petitioner asserts that he was denied due process under the Fourteenth Amendment when evidence obtained pursuant to an unlawful search and seizure was introduced at trial. In Ground Two, Petitioner claims he was denied due process under the Fourteenth Amendment because he was denied his Sixth Amendment right to a speedy trial. In Ground Three, Petitioner contends that he was denied his Fifth Amendment right not to be placed twice in jeopardy for the same offense because Counts One and Four of the indictment were multiplicitous.
In Ground Four, Petitioner asserts he received ineffective assistance of trial, appellate, and post-conviction counsel. Petitioner alleges that trial counsel failed to: (a) protect his right to a speedy trial and comply with the time limits established under Rule 14.2; (b) conduct pretrial investigation into or challenge validity of DNA evidence, which includes counsel's failure to file a motion to suppress, failure to investigate the manner in which Detective Derek Samuel of the Mesa Police Department collected his DNA sample, and failure to consult with or call an expert witness to challenge the DNA evidence; and (c) preserve issues raised in Grounds One through Three of his habeas petition for appellate review and file a timely notice of appeal. Petitioner alleges that appellate counsel failed to: (d) raise issue regarding the untimely notice of appeal and raise issues he alleges in Grounds One through Three of his habeas petition. Lastly, Petitioner alleges that PCR counsel failed to: (e) challenge the validity of the search conducted by Detective Samuel and the validity of the DNA evidence because Detective Samuel re-opened the packaging; (f) allege the denial of his speedy trial rights; and (g) argue the ineffective assistance of appellate counsel for not raising these claims on appeal.
DISCUSSION
A. Standards of Review
1. Merits
Pursuant to the AEDPA, a federal court “shall not” grant habeas relief with respect to “any claim that was adjudicated on the merits in State court proceedings” unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). This standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011). It is also 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) (citation and internal quotation marks omitted). “When applying these standards, the federal court should review the ‘last reasoned decision' by a state court ... .” Robinson, 360 F.3d at 1055.
Antiterrorism and Effective Death Penalty Act of 1996.
A state court's decision is “contrary to” clearly established precedent if (1) “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” or (2) “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at 404-05. “A state court's decision can involve an ‘unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).
2. Exhaustion and Procedural Default
A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). 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 v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
Proper exhaustion requires a petitioner to have “fairly presented” to the state courts the exact federal claim he raises on habeas by describing the operative facts and federal legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 27578 (1971) (“[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.”). A claim is only “fairly presented” to the state courts when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.”).
A “general appeal to a constitutional guarantee,” such as due process, is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) (“Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.”). Similarly, a federal claim is not exhausted merely because its factual basis was presented to the state courts on state law grounds - a “mere similarity between a claim of state and federal error is insufficient to establish exhaustion.” Shumway, 223 F.3d at 988 (quotations omitted); see Picard, 404 U.S. at 275-77.
Even when a claim's federal basis is “self-evident,” or the claim would have been decided on the same considerations under state or federal law, a petitioner must still present the federal claim to the state courts explicitly, “either by citing federal law or the decisions of federal courts.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted), amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin v. Reese, 541 U.S. 27, 32 (2004) (claim not fairly presented when state court “must read beyond a petition or a brief ... that does not alert it to the presence of a federal claim” to discover implicit federal claim).
Additionally, a federal habeas court generally may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The United States Supreme Court has explained:
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-31. 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 fails to exhaust his state remedies. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.
Claims may be procedurally barred from federal habeas review based upon a variety of factual circumstances. If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court, and that state procedural bar is both “independent” and “adequate” - review of the merits of the claim by a federal habeas court is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).
A state procedural default rule is “independent” if it does not depend upon a federal constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002).
A state procedural default rule is “adequate” if it is “strictly or regularly followed.” Johnson v' Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-53 (1982)).
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 v. Reed, 489 U.S. 255, 264 n.10 (1989) (“[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).
A procedural bar may also be applied to unexhausted claims where state procedural rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts “would now find the claims procedurally barred”); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) (“[T]he procedural default rule barring consideration of a federal claim ‘applies only when a state court has been presented with the federal claim,' but declined to reach the issue for procedural reasons, or ‘if it is clear that the state court would hold the claim procedurally barred.'”) (quoting Harris, 489 U.S. at 263 n.9).
Specifically, in Arizona, claims not previously presented to the state courts via either direct appeal or collateral review 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 Ariz.R.Crim.P. 32.1, 32.2 (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4 (time bar), 32.16 (petition for review must be filed within thirty days of trial court's decision). See also Ariz.R.Crim.P. 33 (same rules as applicable to defendants who pleaded guilty). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction 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. 2001) (“We have held that Arizona's procedural default rule is regularly followed [“adequate”] in several cases.”) (citations omitted), reversed on other grounds, Stewart v. Smith, 536 U.S. 856 (2002); see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not “strictly or regularly followed” Rule 32 of the Arizona Rules of Criminal Procedure); 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).
Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. See Reed v. Ross, 468 U.S. 1, 9 (1984). The federal court will not consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result, or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the “cause and prejudice” test, a petitioner must point to some external cause that prevented him from following the procedural rules of the state court and fairly presenting his claim. “A showing of cause must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [the prisoner's] efforts to comply with the State's procedural rule. Thus, cause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal quotations omitted). Ignorance of the State's procedural rules or other forms of general inadvertence or lack of legal training and a petitioner's mental condition do not constitute legally cognizable “cause” for a petitioner's failure to fairly present his claim. Regarding the “miscarriage of justice,” the Supreme Court has made clear that a fundamental miscarriage of justice exists when a Constitutional violation has resulted in the conviction of one who is actually innocent. See Murray, 477 U.S. at 495-96. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as “plainly meritless”).
B. Grounds One, Two, and Three
In Ground One, Petitioner asserts that he was denied due process under the Fourteenth Amendment when evidence obtained pursuant to an unlawful search and seizure was introduced at trial. In Ground Two, Petitioner claims he was denied due process under the Fourteenth Amendment because he was denied his Sixth Amendment right to a speedy trial. In Ground Three, Petitioner contends that he was denied his Fifth Amendment right not to be placed twice in jeopardy for the same offense because Counts One and Four of the indictment were multiplicitous.
Liberally construed, Petitioner presented the above claims to the state court in his PCR petition. In denying relief, the state court found that the claims were precluded by Arizona Rule of Criminal Procedure 32.2(a)(3). Under Arizona Rule of Criminal Procedure 32.2(a)(3), a defendant is precluded from raising claims that could have been raised and adjudicated on direct appeal or in any previous collateral proceeding. See also State v. Curtis, 912 P.2d 1341, 1342 (Ariz.Ct.App. 1995) (“Defendants are precluded from seeking post-conviction relief on grounds that were adjudicated, or could have been raised and adjudicated, in a prior appeal or prior petition for post-conviction relief.”); State v. Berryman, 875 P.2d 850, 857 (Ariz.Ct.App. 1994) (defendant's claim that his sentence had been improperly enhanced by prior conviction was precluded by defendant's failure to raise issue on appeal).
Arizona Rule of Criminal Procedure 32.2(a)(3) constitutes an “adequate and independent” state ground for denying review. See Stewart, 536 U.S. at 860 (preclusion of issues for failure to present them at an earlier proceeding under Arizona Rule of Criminal Procedure 32.2(a)(3) “are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (“Arizona Rule of Criminal Procedure 32.2(a)(3) is independent of federal law and has been regularly and consistently applied, so it is adequate to bar federal review of a claim.”); Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014) (“[A] claim that has been ‘waived' under [Ariz. R. Crim. P. 32.2(a)(3)] is procedurally defaulted and therefore barred from federal court consideration, absent a showing of cause and prejudice or fundamental miscarriage of justice.”) (quoting Poland v. Stewart, 169 F.3d 573, 578 (9th Cir. 1998)). Accordingly, because the state court denied these claims by invoking an adequate and independent state rule, the claims alleged in Grounds One, Two, and Three are procedurally barred.
As cause for the procedural default of Grounds One, Two, and Three (and as one of his substantive ineffective assistance of counsel claims in Ground Four (d)), Petitioner solely argues that his appellate counsel was deficient for failing to raise these claims, which resulted in a procedural bar under state law.
An appellate counsel's failure to preserve an issue for appeal can establish cause to excuse a procedural default if the failure was “so ineffective as to violate the Federal Constitution.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000); see also Martinez v. Ryan, 566 U.S. 1, 11 (2012) (“[A]n attorney's errors during an appeal on direct review may provide cause to excuse procedural default; for if the attorney appointed by the State to pursue the direct appeal is ineffective, the prisoner has been denied fair process and the opportunity to comply with the State's procedures and obtain an adjudication on the merits of his claims.”).
Before an ineffective assistance of appellate counsel claim can be considered “cause” to excuse the procedural default of another constitutional claim, a petitioner must have fairly presented the ineffective assistance of appellate counsel claim in state court as an independent claim. See Edwards, 529 U.S. at 451-52 (“In other words, ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim. And we held in Carrier that the principles of comity and federalism that underlie our longstanding exhaustion doctrine ... require that constitutional claim, like others, to be first raised in state court.”) (emphasis in original); Dellinger v. Bowen, 301 F.3d 758, 766 (7th Cir. 2002) (“In other words, the claim of ineffective assistance must be raised in state court before it can suffice on federal habeas relief as ‘cause' to excuse the default of another claim (even if that other claim is also ineffective assistance of counsel). If the second claim of ineffective assistance is itself defaulted, the petitioner will be fully defaulted.”); Jensen v. Hernandez, 864 F.Supp.2d 869, 896 (E.D. Cal. 2012) (explaining that an ineffective assistance of appellate counsel claim “must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default”).
Claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a claim that appellate counsel was ineffective for failing to raise a particular argument on appeal, a petitioner must show that there is a reasonable probability that raising the issue would have led to the reversal of the petitioner's conviction. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). If the petitioner had only a remote chance of obtaining reversal based upon a specific issue, neither element of Strickland is satisfied. See id. at 1435. “[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Murray, 477 U.S. at 535. The process of “‘winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Id. at 536 (citing Jones v. Barnes, 463 U.S. 745, 751-52 (1983)).
Assuming arguendo that Petitioner has satisfied the exhaustion requirement regarding his ineffectiveness of appellate counsel claim for failing to raise the claims he alleges in Grounds One through Three of his habeas petition, Petitioner has failed to demonstrate that there is a reasonable probability that raising Grounds One through Three on direct appeal would have led to a reversal of his convictions. See Davila v. Davis, 137 S.Ct. 2058, 2067 (2017) (“Effective appellate counsel should not raise every nonfrivolous argument on appeal, but rather only those arguments most likely to succeed.”).
In Ground One, Petitioner alleges that evidence obtained pursuant to an unlawful search and seizure was introduced at trial. Specifically, he claims that Detective Samuel of the Mesa Police Department had no authority to execute a search warrant to obtain buccal swabs from Petitioner in the State of Tennessee because the warrant was directed to S.A. Brian Harbaugh, an officer in Wilson County Tennessee. As support for his claim, Petitioner cites Rule 41(e)(1) of the Tennessee Rules of Criminal Procedure, which states that a “search warrant may only be executed by the law enforcement officer, or one of them, to whom it is directed,” and that “[o]ther persons may aid such officer at the officer's request, but the officer must be present and participate in the execution.”
The warrant at issue, which was directed to S.A. Harbaugh (Exh. N) stated, in pertinent part: Proof having been made before me and reduced to writing and sworn to by Detective Derek Samuel of the Mesa Police Department, whose affidavit is attached hereto and its contents incorporated herein by reference, that there is probable cause to believe that Diamorrio Reed has upon his person buccal samples which are evidence in an ongoing criminal investigation, specifically, violations of Arizona Revised Statute §13-1406 (Sexual Assault). This Search Warrant now being issued in triplicate, whereby you are commanded in the name of the State of Tennessee to seize the body of the said Diamorrio Reed, and obtain a buccal swab from him or take him to a duly licensed medical facility, and to make immediate search of his person to draw blood for Blood Standard specimens. Should you find the same, you are to bring a return of the same before me upon the return of this writ within five (5) days of your actions in the premises.
Initially, the Court notes that Petitioner does not argue that probable cause did not support the issuance of the search warrant, or suggest that the warrant was issued based upon false statements or omissions. And, furthermore, nothing in the record establishes that Detective Samuel obtained the buccal swabs outside the presence of a Tennessee law enforcement officer. (Exh. MM at 72-90.) Indeed, beyond the allegations in his habeas petition and accompanying documents, Petitioner has failed to produce any evidence, including testimony or affidavit, supporting his claim. Thus, there is no basis to conclude that any part of the Tennessee Rules of Criminal Procedure was violated or that any evidence was obtained pursuant to an unlawful search and seizure. As such, it appearing that the issue alleged in Ground One is meritless, Petitioner cannot establish that appellate counsel's decision not to raise the issue on appeal was objectively unreasonable, or that there is a reasonable probability that raising the issue would have led to the reversal of Petitioner's conviction.
In Ground Two, Petitioner claims that he was denied his right to a speedy trial. Petitioner contends that State dismissed the original indictment and refiled charges against him in order to avoid the time limits contained in Rule 8 of the Arizona Rules of Criminal Procedure. Petitioner suggests that the dismissal and subsequent refiling of the charges was unnecessary and done in bad faith, as the State could have simply moved to amend the indictment.
The Sixth Amendment of the United States Constitution reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial....” State defendants have a right under the Sixth Amendment to a speedy trial. See Kloper v. North Carolina, 386 U.S. 213 (1967). But, the Sixth Amendment sets no explicit deadlines. “The speedy-trial right is ‘amorphous,' ‘slippery,' and ‘necessarily relative.' It is ‘consistent with delays and depend[ent] upon circumstances.'” Vermont v. Brillon, 556 U.S. 81, 89 (2009).
In reviewing a Sixth Amendment speedy trial clause violation, the court must consider four factors: (1) the length of the pretrial delay; (2) the reason for the delay; (3) whether the defendant asserted his speedy trial right; and (4) prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530 (1972). “None of these factors are either a necessary or sufficient condition to a finding of a deprivation of the right to a speedy trial.” United States v. Williams, 782 F.2d 1462, 1465 (9th Cir. 1985).
Arizona Speedy Trial Rights -- Arizona Constitution article 2, section 24 requires: “In criminal prosecutions, the accused shall have the right ... to have a speedy public trial....” Arizona has adopted its Rule 8, Arizona Rules of Criminal Procedure which grants even “stricter speedy trial rights than those provided by the United States Constitution.” State v. Spreitz, 945 P.2d 1260, 1267 (Ariz. 1997).
Under Arizona's Rule 8.2, a defendant in custody has a right to commence trial within 150 days of arraignment, or no later than 270 days after arraignment if the defendant is charged with any case the court determines to be complex. See Ariz.R.Crim.P. 8.2(a).
The Court fails to find any speedy trial or Rule 8 violation. As noted in the background section of this Recommendation, Petitioner was indicted on May 7, 2013, in CR2013-002164-001 on two counts of kidnapping and two counts of sexual assault, and he was arraigned on December 12, 2013. Thereafter, the court designated the case as complex pursuant to the State's motion, and the last day to bring Petitioner to trial was set for September 1, 2014. On July 1, 2014, however, two months before the Rule 8 deadline, the State dismissed the charges in the original indictment because on June 25, 2014, it had secured another indictment against Petitioner in CR2014-002039-001. Petitioner's trial commenced on October 28, 2014.
To the extent Petitioner complains that the changes to the new indictment were superficial or made in bad faith in order to avoid the Rule 8 time limits, Petitioner fails to present any evidence supporting his assertion, and the Court finds none. The new, 2014 indictment alleged new charges and violations of different statutes than the 2013 indictment. Given that the 2014 indictment involved substantive changes to the charges alleged in the 2013 indictment, there is no basis to conclude that the dismissal of the 2013 case was done in bad faith.
Petitioner, however, appears to take issue with the State's purported failure to arraign him within the time limits contained in Rule 14.2(a) of the Arizona Rules of Criminal Procedure as part of his speedy trial claim. The Court is not persuaded.
The purpose of an arraignment under Rule 14 is to formally advise the defendant of his legal rights and of the charges against him, and to begin the proceedings by assuring that counsel is provided and the date of trial set. See Ariz.R.Crim.P. 14.1. Rule 14, however, does not define the sanction to be imposed in the absence of a timely arraignment. See State v. Vassar, 533 P.2d 544, 546 (Ariz. 1975). “There is nothing in the rules which requires that the case be dismissed for failure to comply with [Rule 14.2]. Absent such a sanction, it is necessary that actual prejudice be shown.” Id. Prejudice exists if the failure to arraign a defendant deprives him or her of notice of the charges and thereby deprives the defendant of the opportunity to defend against those charges. See State v. Curry, 931 P.2d 1133, 1141 (Ariz.Ct.App. 1996); State v. Dungan, 718 P.2d 1010, 1015 (Ariz.Ct.App. 1985) (“[T]here is no prejudice if the defendant had full and fair notice of the crime charged, is not surprised, confused or prejudiced in his defense, and is afforded a full and fair opportunity to defend the charge against him.”).
Coupled with the fact that the 2013 indictment was ultimately dismissed, there is no dispute that Petitioner received notice of his original charges with sufficient time to prepare a defense. Thus, Petitioner was not prejudiced by any delay in his arraignment. And, Petitioner does not argue a Rule 14.2(a) violation with his second indictment.
Moreover, significantly, Rule 14.2(b) allows a court to “hold the arraignment as soon as possible after [the] time periods” in Rule 14.2(a) if the defendant cannot be arraigned because he “is in custody elsewhere[.]” Ariz. R. Crim. P. 14.2(b). The record appears to reflect that Petitioner was in custody on other charges in Tennessee when he was originally indicted. (Exh. EE.)
Therefore, the Court finding that the issue alleged in Ground Two is meritless, Petitioner cannot establish that appellate counsel's decision not to raise the issue on appeal was objectively unreasonable, or that there is a reasonable probability that raising the issue would have led to the reversal of Petitioner's conviction.
In Ground Three, Petitioner contends that he was denied his Fifth Amendment right not to be placed in jeopardy twice for the same offense because Counts One and Four of the indictment were multiplicitous.
“An indictment is multiplicitous when it charges multiple counts for a single offense, producing two penalties for one crime and thus raising double jeopardy questions.” United States v. Stewart, 420 F.3d 1007, 1012 (9th Cir. 2005). Multiple counts in an indictment are not multiplicitous if “each separately violated statutory provision requires proof of an additional fact which the other does not.” Id. (quoting United States v. Vargas-Castillo, 329 F.3d 715, 718-19 (9th Cir. 2003)).
The Court again finds Petitioner's claim meritless. Although Counts One and Four charged violations of the same statute, each count alleged different conduct. (Exh. F.) Specifically, Count One alleged the “first act of penile-vaginal intercourse” and Count Four alleged the second act. (Exh. F.)
Petitioner appears to claim, however, that the counts became multiplicitous after the trial court amended the indictment to strike the phrase “after [the] victim rolled over.” Petitioner's attempt to establish multiplicitous counts based on removal of said phrase is a non-starter. Even after striking the language at issue, the indictment still alleged, and the evidence still established, two separate acts of sexual conduct with a minor. (Exh. OO at 43-44.) Thus, the indictment was not multiplicitous.
The Court finding that the claim alleged in Ground Three is meritless, Petitioner cannot establish that appellate counsel's decision not to raise the issue on appeal was objectively unreasonable, or that there is a reasonable probability that raising the issue would have led to the reversal of Petitioner's conviction.
Accordingly, finding that Petitioner has failed to establish that appellate counsel was ineffective for failing to raise Grounds One, Two, and Three on appeal, Petitioner has not demonstrated cause for his procedural default of these claims for relief. The Court will recommend that these claims be denied.
As a substantive ground for relief in Ground Four (c), Petitioner asserts he received ineffective assistance of trial counsel for failure to preserve issues raised in Grounds One through Three of his habeas petition for appellate review and file a timely notice of appeal. Similarly, as a substantive ground for relief in Ground Four (d), Petitioner contends that appellate counsel was ineffective in failing to raise issue regarding the untimely notice of appeal and raise issues he alleges in Grounds One through Three of his habeas petition. Because the Court has found that Grounds One through Three are meritless, Petitioner cannot establish that trial counsel was ineffective for failing to preserve these issues for appellate review or that appellate counsel was ineffective for failing to raise these issues on appeal. Further, because Petitioner was ultimately able to file a delayed notice of appeal challenging his convictions, Petitioner cannot establish that his trial or appellate counsel was ineffective for failing to file a timely notice of appeal or raise issue regarding the untimely notice of appeal. Accordingly, the Court will recommend that Petitioner's claims as alleged in Ground Four (c) and (d), be denied.
C. Ground Four
In Ground Four, Petitioner asserts he received ineffective assistance of trial, appellate, and post-conviction counsel. Petitioner alleges that trial counsel failed to: (a) protect his right to a speedy trial and challenge the State's failure to comply with the time limits established under Rule 14.2; (b) conduct pretrial investigation into or challenge validity of DNA evidence, which includes counsel's failure to file a motion to suppress, failure to investigate the manner in which Detective Samuel collected his DNA sample, and failure to consult with or call an expert witness to challenge the DNA evidence; and (c) preserve issues raised in Grounds One through Three of his habeas petition for appellate review and file a timely notice of appeal. Petitioner alleges that appellate counsel failed to: (d) raise issue regarding the untimely notice of appeal and raise issues he alleges in Grounds One through Three of his habeas petition. Lastly, Petitioner alleges that PCR counsel failed to: (e) challenge the validity of the search conducted by Detective Samuel and the validity of the DNA evidence because Detective Samuel re-opened the packaging; (f) allege the denial of his speedy trial rights; and (g) argue the ineffective assistance of appellate counsel for not raising these claims on appeal.
1. Ground Four (a)
In Ground Four (a), Petitioner alleges that trial counsel failed to protect his right to a speedy trial and challenge the State's failure to comply with the time limits established under Rule 14.2. Petitioner presented these claims in his PCR petition and petition for review to the Arizona Court of Appeals. The state court found that Petitioner failed to establish a colorable claim of ineffective assistance, and the Court of Appeals affirmed this finding.
The Court has already found that Petitioner's claims that he was denied his right to a speedy trial and was not properly arraigned within the time limits contained in Rule 14.2 of the Arizona Rules of Criminal Procedure are meritless. Thus, Petitioner has failed to establish that his trial counsel's performance fell below an objective standard of reasonableness for counsel's alleged failure to protect his right to a speedy trial and challenge the State's failure to comply with the time limits established under Rule 14.2. See Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (“Failure to raise a meritless argument does not constitute ineffective assistance.”); Juan H. v. Allen, 408 F.3d 1262, 1273-74 (9th Cir. 2005) (finding that decision of a state appeals court was not objectively unreasonable in holding that the performance of counsel did not fall below an “objective standard of reasonableness” on account of not raising a meritless objection).
Accordingly, it was not contrary to, nor an unreasonable application of, Strickland for the state court to reject Petitioner's IAC claim contained in Ground Four (a).
2. Ground Four (b)
In Ground Four (b), Petitioner alleges that trial counsel failed to conduct pretrial investigation into or challenge validity of DNA evidence, which includes counsel's failure to file a motion to suppress, failure to investigate the manner in which Detective Samuel collected his DNA sample, and failure to consult with or call an expert witness to challenge the DNA evidence. Petitioner raised similar claims in his PCR petition and petition for review. The state court found that Petitioner failed to establish ineffective assistance related to counsel's decision not to challenge the DNA evidence, and the Court of Appeals affirmed.
As to Petitioner's first claim that trial counsel was deficient for failing to move to suppress the DNA evidence collected in this case, Petitioner contends that Detective Samuel had no authority to collect the DNA evidence because the warrant in this case was executed outside the presence of a sworn Tennessee law enforcement officer.
The Court has previously addressed the claim that evidence obtained pursuant to an unlawful search and seizure was introduced at trial, and that Detective Samuel had no authority to execute a search warrant to obtain buccal swabs from Petitioner, and found these claims meritless. Thus, Petitioner has failed to establish that his trial counsel's performance fell below an objective standard of reasonableness for counsel's failure to move to suppress the DNA evidence collected in this case on this basis. See Raines, 769 F.2d at 1344 (“Failure to raise a meritless argument does not constitute ineffective assistance.”); Juan H., 408 F.3d at 1273-74 (finding that decision of a state appeals court was not objectively unreasonable in holding that the performance of counsel did not fall below an “objective standard of reasonableness” on account of not raising a meritless objection).
Petitioner next claims that counsel was deficient for failing to investigate the manner in which Detective Samuel collected his DNA sample, and that had he done so, he would have discovered that the evidence was collected in violation of departmental policy.
At trial, Detective Samuel testified that he obtained buccal swabs from Petitioner to serve as the known DNA sample. (Exh. MM at 72-73.) He testified that after taking the buccal swabs, he took them to a separate room to let them dry before completely sealing the samples. (Exh. MM at 73-74, 91.) The swabs remained in plastic tubes while he let them dry. (Exh. MM at 94.) According to testimony, no one else touched the swabs from when he collected them to when he impounded them in evidence, and no one was within arm's reach of him while the swabs were drying. (Exh. MM at 95-96.)
Two DNA analysts testified at trial. (Exh. OO at 66-67; Exh. PP at 9-10.) Both testified that DNA contamination can be detected during the testing process. (Exh. OO at 78; Exh. PP at 22.) Testimony reflects that the analyst who examined the buccal swabs taken from Petitioner did not observe any contamination or degradation to the sample. (Exh. PP at 21-25.)
Petitioner's counsel, however, moved to preclude the analyst's testimony regarding the results of her analysis based on Detective Samuel's testimony regarding how he collected the sample. (Exh. PP at 4-6.) Counsel argued, in pertinent part:
We're asking and moving that this Court preclude testimony regarding the buccal swab and its findings based upon the evidence that was presented in court by Detective Samuel's mishandling of, during the collection, the drying and the transportation of the sample back when he collected it from Mr. Reed. I believe that the testimony shows that he collected the sample from Mr. Reed, closed it, reopened it outside of Mr. Reed's presence to dry it while there were others present. The testimony was contrary to other persons who have dealt and testified about buccal swabs in this case that the Court heard. And as such, we believe it was tainted and unreliable and should be precluded from being testified to about her findings by the witness for today.(Exh. PP at 4-6.)
The trial court denied the motion, finding there was “no direct evidence of any contamination of the buccal swab that was collected by Detective.. .Samuel. And that the issues that are raised by defense are issues that I think go to the weight that the jury should give to the evidence.” (Exh. PP at 6.)
Thus, although the exact nature of Petitioner's claim on this point is unclear, the record establishes that evidence of how Petitioner's DNA samples were collected was presented and discovered during the State's direct examination of Detective Samuel, and counsel thereafter moved to preclude testimony regarding “the buccal swab and its findings based upon the evidence that was presented in court by Detective Samuel's mishandling of, during the collection, the drying and the transportation of the sample back when he collected it from Mr. Reed.”
Accordingly, the Court finds that Petitioner has failed to establish ineffective assistance for failing to investigate and discover the manner in which Detective Samuel collected his DNA sample.
Lastly, Petitioner alleges that trial counsel failed to consult with or call an expert witness to challenge the DNA evidence. Petitioner contends that had his attorney consulted with or called an expert, “he could have ‘planted the seed' of reasonable doubt based upon Det. Samuel's violation of Departmental Policy when he reopened the sealed DNA/buccal swabs and placed it upon an uncleaned unsanitary tabletop in an open common area for nearly an hour[.]”
The record demonstrates, however, that evidence regarding the collection, handling, and transportation of the DNA sample, including testimony regarding the reopening of the sealed packaging to dry the sample, was disclosed to and presumably considered by the jury during trial. (Exh. MM at 73-74, 91, 94.) The record also reflects that counsel cross-examined both of the State's DNA analysts on the handling of the samples. (Exh. OO at 121-45; Exh. PP at 55-75.)
Although Petitioner complains about counsel's failure to retain an expert to opine on the handling of the samples, Petitioner fails to identify what additional information an expert could have been provided to the jury beyond what was already presented. The Court finds that Petitioner has failed to demonstrate ineffective assistance for not consulting or calling an expert witness to challenge the DNA evidence.
Accordingly, it was not contrary to, nor an unreasonable application of, Strickland for the state court to reject Petitioner's IAC claim contained in Ground Four (b).
3. Grounds Four (e), (f), (g)
In Ground Four (e), (f), and (g), Petitioner asserts he received ineffective assistance of PCR counsel for failure to: (e) challenge the validity of the search conducted by Detective Samuel and the validity of the DNA evidence because Detective Samuel reopened the packaging; (f) allege the denial of his speedy trial rights; and (g) argue the ineffective assistance of appellate counsel for not raising these claims on appeal.
The state prisoner habeas statute provides: “The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i); see Martinez, 566 U.S. at 17.
While the ineffective assistance of initial post-conviction counsel can, in certain narrow circumstances, constitute cause to excuse the procedural default of an underlying ineffective assistance of trial counsel claim, it cannot serve as an independent ground for habeas relief. See Martinez, 566 U.S. at 17.
Moreover, there is generally no constitutional right to counsel in state postconviction proceedings. See Coleman, 501 U.S. at 752 (citing Pennsylvania v. Finley, 481 U.S. 551 (1987)). But see Pacheco v. Ryan, 2016 WL 7423410 (D. Ariz. Sept. 23, 2016), report and recommendation adopted, 2016 WL 7407242 (D. Ariz. Dec. 22, 2016) (recognizing constitutional right to counsel in of-right PCR proceedings for pleading Arizona defendants). Where there is no right to counsel, there can be no deprivation of effective assistance of counsel. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); see also Moorman v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005), cert. denied, 548 U.S. 927 (2006) (“because there is no Sixth Amendment right to counsel in state post-conviction proceedings, there can be no independent constitutional violation as a result of post-conviction counsel's incompetence”); Martinez, 566 U.S. 1 (Supreme Court expressly declined to decide whether a freestanding right to counsel existed in state post-conviction proceedings offering a first chance to challenge ineffective assistance of trial counsel).
Consequently, Petitioner's claims of ineffective assistance of PCR counsel do not state cognizable claims for federal habeas relief. The Court will recommend that the claims alleged in Ground Four (e), (f), and (g) be denied.
CONCLUSION
Having determined that Petitioner's claims are either procedurally defaulted without an excuse or meritless, the Court will recommend that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right and because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 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); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.