Richter v. Shinn

Full title: Fernando Hernandez Richter, Petitioner, v. David Shinn, et al. Respondents.

Court: United States District Court, District of Arizona

Date published: Feb 29, 2024

CV-20-00205-TUC-CKJ (EJM) (D. Ariz. Feb. 29, 2024)

Opinion

CV-20-00205-TUC-CKJ (EJM)

02-29-2024

Fernando Hernandez Richter, Petitioner, v. David Shinn, et al. Respondents.

Eric J. Markovichi United States Magistrate Judge

REPORT AND RECOMMENDATION

Eric J. Markovichi United States Magistrate Judge

Currently pending before the Court is Petitioner Fernando Hernandez Richter's Third Amended Petition for a Writ of Habeas Corpus (“Third Amended Petition”) (Doc. 50). Respondents have filed an Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 55), and Petitioner has replied (Doc. 81). The Third Amended Petition (Doc. 50) is ripe for adjudication.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,¹ this matter was referred to Magistrate Judge Markovich for Report and Recommendation. The Magistrate Judge recommends that the District Judge deny the Third Amended Petition (Doc. 50).

1 Rules of Practice of the United States District Court for the District of Arizona.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Initial Charge, Trial, and Sentencing

The Arizona Court of Appeals stated the facts² as follows:

2 As these state court findings are entitled to a presumption of correctness and Petitioner has failed to show by clear and convincing evidence that the findings are erroneous, the Court hereby adopts these factual findings. 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007); Wainwright v. Witt, 469 U.S. 412, 426 (1985); Cf. Rose v. Lundy, 455 U.S. 509, 519 (1982).

[F]or a period of years, including three months in the home where they were ultimately found, Richter forced his three step-children to stay in their rooms, only occasionally allowing them out, watching and primarily communicating with them through the use of cameras. They did not attend school, and Richter limited their water consumption, bathroom use, and contact with each other; rarely allowed them to bathe; denied them hygiene products; and struck them with a stick, “belt and a metal spoon” or wire if they disobeyed him. On the night they were discovered, two of the children had fled the house after Richter broke the door of their room while attempting to enter and holding a knife.

State v. Richter, No. 2 CA-CR 2016-0112, 2017 WL 491137, at *1 (Ariz.Ct.App. 2017).

On December 6, 2013, Petitioner was indicted on three (3) counts of kidnapping, domestic violence; two (2) counts of aggravated assault with a deadly weapon/dangerous instrument, domestic violence; one (1) count of aggravated assault on a peace officer; and three (3) counts of child abuse, a person under eighteen years, non-death or serious physical injury not likely, domestic violence. Answer (Doc. 55), Amended Indictment, State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Dec. 6, 2013) (Exh. “A”). On August 24, 2013, the trial court severed Count Six, aggravated assault on a peace officer. Answer (Doc. 55), State v. Richter, No. CR 20135144, Minute Entry at 57 (Pima Cnty. Super. Ct. Aug. 24, 2015) (Exh. “N”).³ Following a jury trial on the eight (8) remaining counts, Petitioner “was convicted of three counts of kidnapping, domestic violence offenses and dangerous crimes against children; two counts of aggravated assault, domestic violence offenses and dangerous crimes against children; and three counts of child abuse, domestic violence offenses.” Richter, 2017 WL 491137, at *1; see also Answer (Doc. 55), State v. Richter, No. CR20135144, Minute Entry (Pima Cnty. Super. Ct. Dec. 4, 2015) (Exh. “KK”). Petitioner was sentenced to “slightly mitigated,” consecutive sentences with imprisonment in the Arizona Department of Corrections of thirteen (13) years for the first two (2) kidnapping, domestic violence convictions (Counts One and Two); a minimum, consecutive, four (4) year term of imprisonment for the third kidnapping, domestic violence conviction (Count Three); “slightly mitigated,” thirteen (13) year terms of imprisonment on the aggravated assault, deadly weapon/dangerous instrument, domestic violence convictions (Count Four and Count Five) to run consecutively with one another and following the term imposed on Count Three; and “slightly mitigated,” two (2) year terms of imprisonment on the child abuse, a person under eighteen years, non-death or serious physical injury not likely, domestic violence convictions, to be run concurrently with one another, but following the term imposed on Count Five. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Minute Entry, (Pima Cnty. Super. Ct. Mar. 10, 2016) (Exh. “VV”). Accordingly, Petitioner's sentence of imprisonment totaled fifty-eight (58) years.

3 Page citations refer to the CM/ECF page numbers, unless otherwise noted.

B. Direct Appeal

On March 11, 2016, Petitioner filed his Notice of Appeal. Answer (Doc. 55), Not. of Appeal, State v. Richter, No. CR2013-5144-001 (Pima Cnty. Super. Ct. Mar. 11, 2016) (Exh. “YY”). On September 19, 2015, counsel for Petitioner filed an Anders ⁴ brief with the Arizona Court of Appeals.⁵ See Third Amended Pet. (Doc. 50), Appellant's Opening Br. (Anders), State v. Richter, No. 2 CA-CR 2016-0112 (Ariz.Ct.App. Sept. 19, 2015) (Doc. 50-4). Counsel averred that he “ha[d] searched the record on appeal and [wa]s unable to find any arguable question of law that is not frivolous.” Id. at 38. Petitioner did not file a supplemental brief. State v. Richter, No. 2 CA-CR 2016-0112, 2017 WL 491137, at *1 (Ariz.Ct.App. Jan. 24, 2017).

4 Anders v. California, 386 U.S. 738 (1967).

5 The Arizona Court of Appeals has described the procedure of filing an Anders brief as follows:

Under our procedure, when appointed counsel determines that a defendant's case discloses no arguable issues for appeal, counsel files an Anders brief. The brief contains a detailed factual and procedural history of the case, with citations to the record. See Scott, 187 Ariz. at 478 n.4, 930 P.2d at 555 n.4. Counsel submits the brief to the court and the defendant. The defendant is then given the opportunity to file a brief pro per. After receiving all briefing, the court reviews the entire record for reversible error. If any arguable issue presents itself, the court directs appointed counsel to brief the issue. Only after the court has ascertained that counsel has conscientiously performed his or her duty to review the record, and has itself reviewed the record for reversible error and found none, will the court allow counsel to withdraw. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). We conclude that this procedure permits counsel to perform ethically, while simultaneously ensuring that an indigent defendant's constitutional rights to due process, equal protection, and effective assistance of counsel are protected.

State v. Clark, 2 P.3d 89, 96 (Ariz.Ct.App. 1999).

On January 24, 2017, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. See id. The appellate court “searched the record for fundamental, reversible error and . . . found none.” Id. at *1. The appellate court determined that “the evidence was sufficient to support the jury's finding of guilt” and “conclude[d] the sentence imposed [wa]s within the statutory limit.” Id. Petitioner did not file a Motion for Reconsideration or a Petition for Review with the Arizona Supreme Court. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2016-0112, Mandate (Ariz.Ct.App. Apr. 12, 2017) (Exh. “BBB”) (Doc. 55-1). As such, on April 12, 2017, the Arizona Court of Appeals issued its Mandate. Id.

C. Post-Conviction Relief Proceeding

1 PCR Petition

On May 8, 2017, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 55), Petr.'s Not. of PCR, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. May 8, 2017) (Exh. “CCC”) (Doc. 55-1). On February 27, 2018, Petitioner filed his Petition for Post-Conviction Relief, alleging three (3) grounds for relief. See Answer (Doc. 55), Petr.'s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). First, Petitioner asserted that he was denied his Sixth Amendment right to counsel, because trial counsel was ineffective when he allegedly abandoned the presentation of a Guilty Except Insane (“GEI”) defense. Id., Exh. “EEE” at 20-21. Petitioner claimed that defense counsel failed to “consult[] with someone qualified to do a neuropsychological examination,” or “seek a further examination[,] to advocate for or advance a Guilty Except Insane defense[,] . . . [or] challenge[] Judge Bernini's order forbidding a Guilty Except Insane defense[.]” Id., Exh. “EEE” at 16-17. Next, Petitioner asserted that he was deprived of his right to effective assistance of appellate counsel. Id., Exh. “EEE” at 21-22. Petitioner urged that appellate counsel did not adequately review the record prior to filing an Anders brief, depriving Petitioner of an adequate appeal. Id., Exh. “EEE” at 17-19, 21-22. Finally, Petitioner asserted that the trial court denied him his Sixth Amendment right to counsel when it denied his request for new counsel, did not allow time for counsel to confer privately with him, and conducted an inadequate Torres ⁶ hearing. Answer (Doc. 55), Petr.'s Pet. for PCR at 8-13, 22, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2).

6 State v. Torres, 93 P.3d 1056 (Ariz. 2004) (en banc).

2. Rule 32 Court Order

On July 31, 2018, the Rule 32 court issued its order denying Petitioner's Petition for Post-Conviction relief. See Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling-In Chambers Ruling Re: Denial of PCR (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The Rule 32 court first considered its denial of Defendant's request for new counsel and the adequacy of the Torres hearing. Id., Exh. “14” at 42-44. The court observed that “‘[t]he Sixth Amendment guarantees criminal defendants the right to representation by counsel[;]' . . . [h]owever, an indigent defendant is not ‘entitled to counsel of choice or to a meaningful relationship with his or her attorney.'” Id., Exh. “14” at 42 (citing State v. Torres, 93 P.3d 1056, 1058 (Ariz. 2004) (en banc); then citing State v. Moody, 968 P.2d 578, 580 (Ariz. 1998)). The Rule 32 court went on to outline the factors to be considered when addressing a request to change counsel, including 1) the existence of an irreconcilable conflict; 2) whether new counsel would be confronted by the same conflict; 3) timing of the motion; 4) inconvenience to witnesses; 5) amount of time elapsed since the alleged offense; 6) defendant's proclivity to change counsel; and 7) quality of counsel. Id., Exh. “14” at 42-43 (quoting Moody, 968 P.2d at 580 (citations omitted)). The court further observed that “in most cases, the ‘quality of counsel' factor will not be a consideration when a defendant seeks a substitution of counsel.” Id., Exh. “14” at 43 (citing Torres, 93 P.3d at 1060). The Rule 32 court noted that upon receipt of two ex parte letters requesting a change of counsel, it held a Torres hearing at the earliest opportunity, which was eight (8) weeks before trial and twenty-one (21) months after indictment. Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling-In Chambers Ruling Re: Denial of PCR at 43 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The court reviewed the Torres hearing record, including Defendant's and counsel's respective positions. Id. The court also reviewed Defendant's claims to Bradley Johnson, M.D. regarding the number of meetings with counsel, found those statements to be inaccurate, and observed that prior to Defendant's letters to the court, “trial counsel visited with Defendant a minimum of 12 times, most for ‘unknown duration(s).'” Id., Exh.”14” at 44. The Rule 32 court concluded that Defendant had failed to meet his burden to show either a complete breakdown in communication or an irreconcilable conflict. Id., Exh. “14” at 43-44.

Next, the Rule 32 court considered Defendant's ineffective assistance of counsel claims. Id., Exh. “14” at 45-48. The court outlined the Strickland ⁷ test which requires Defendant to prove counsel's performance was deficient and caused prejudice. Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling-In Chambers Ruling Re: Denial of PCR at 45 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The Rule 32 court went on to evaluate Defendant's allegation of trial counsel's ineffectiveness “based on ‘counsel's abandonment of presenting a Guilty Except Insane (‘GEI') defense.'” Id. The court delineated the following timeline of counsel's work regarding Defendant's competency:

7 Strickland v. Washington, 466 U.S. 668 (1984).

> February 28, 2014 - Motion for Mental Condition Evaluation and Stay of Proceedings.

• April 15, 2014 - Rule 11 Evaluation Report - Michael P. Christiansen, Ph.D. - Ex 18A, p. 9

❖ “Competent”

• May 12, 2014 - Rule 11 Evaluation Report - Bradley R. Johnson, M.D. - Ex 19, p. 7

❖ “Not Currently Competent, likely able to be able to [sic] brought to competence within a short period of time.”

> September 8, 2014 - Requested a GEI Evaluation. See Minute Entry dated September 8, 2014.

• October 28, 2014 - GEI Evaluation Report - Michael P.

Christiansen, Ph. D. - Ex 18B, p. 9

❖ “Not afflicted with mental disease or defect of such severity that he did not know the criminal act was wrong at the time of the offense.”

> September 25, 2014 - Retained Paul Simpson to Conduct Psychological Evaluation. See Appendix B, Exhibit 21, Psychological Evaluation.

• July 8, 2015 - Psychological Evaluation - Paul Simpson, Ed.D. - Ex 21, p. 144

❖ “[B]ased on information obtained from available records and self-reporting regarding Defendant's mental health history and considered to have been possible present in a mild to moderate degree at or around the time of the offenses as described below.

• 295.90 Schizophrenia, with Delusion, multiple episodes, currently in partial remission;

• 317.0 Intellectual Developmental Disorder, Mild;

• 309.81 Posttraumatic Stress Disorder, by history and self report;

• Rule in / out 331.83 Major or Mild Neurocognitive Disorder Due to Traumatic Brain Injury.”

Id., Exh. “14” at 46-47 (alterations in original) (punctuation in original). The Rule 32 court observed that following defense counsel's request for a mental competency examination, the proceedings were stayed; two (2) evaluations occurred, with Dr. Christiansen finding Defendant competent and suggesting possible malingering, and Dr. Johnson opining that Defendant was not currently competent but likely restorable; and Defendant was subsequently restored. Id., Exh. “14” at 45-47. The Rule 32 court further noted that defense counsel sought a GEI evaluation, which was also performed by Dr. Christiansen. Id. The Rule 32 court also noted that “Dr. Christiansen concluded, ‘In [his] professional opinion, data indicates at the time of the commission of the criminal act, the defendant was not afflicted with a mental disease or defect of such severity that he did not know the criminal act was wrong.'” Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling-In Chambers Ruling Re: Denial of PCR at 46 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The Rule 32 court indicated that “[t]he trial judge accepted these findings and ruled Defendant ineligible for the GEI defense.” Id. (citations omitted). The Rule 32 court found defense counsel's decisions not to seek reconsideration of the trial court's decision or otherwise pursue a second GEI evaluation were not unreasonable. Id., Exh. “14” at 46. The Rule 32 court concluded that Defendant had failed to meet his burden to show defense counsel fell below prevailing norms or had been otherwise ineffective. Id., Exh. “14” at 47.

Finally, regarding appellate counsel's alleged ineffectiveness, the Rule 32 court reiterated the Strickland standard. Id. The court also stated the requirements of appellate counsel as required by Anders, including filing “a brief referring to anything in the record that might arguably support the appeal.” Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling-In Chambers Ruling Re: Denial of PCR at 48 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4) (citing Anders v. California, 386 U.S. 738, 744 (1967)). The Rule 32 court observed that appellate counsel's Anders brief included an eighteen (18) page “Statement of Relevant Facts” with specific citations to Defendant's fifteen (15) day trial transcript. Id. Additionally, the court noted that defense counsel sought leave for “Defendant to submit a supplemental brief in propria persona[,] [which] Defendant then failed to do[.]” Id. The Rule 32 court found “Defendant's conclusory claims [to be] inadequate as he fail[ed] to cite to any specific error(s) in either fact[] or law[,] . . . [and] fail[ed] to support [his] claims by affidavit or otherwise.” Id. The Rule 32 court also found that “Defendant fail[ed] to show prejudice[.]” Id. The Rule 32 court concluded that appellate counsel “did not fall below an objective standard of reasonableness as defined by prevailing professional standards[.]” Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling-In Chambers Ruling Re: Denial of PCR at 48 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4).

As such, the Rule 32 court denied Defendant's Petition for PCR. Id., Exh. “14” at 49.

3. PCR Appeal

Petitioner sought review of the Rule 32 court's order. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2). On April 8, 2019, the Arizona Court of Appeals issued its memorandum decision granting review, but denying relief. See id. The appellate court stated the standard of review, indicating that it would “not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion[,]” and found “Richter ha[d] not sustained his burden of establishing such abuse[.]” Id., Exh. “GGG” at 33. The appellate court observed that “[t]he trial court summarily denied relief in a through, well-reasoned minute entry.” Id. The court noted that “[o]n review, Richter essentially repeat[ed] his claims and argue[d] the trial court abused its discretion in denying his petition for post-conviction relief.” Id. The appellate court found that “[t]he [Rule 32] court clearly identified the claims raised and resolved them correctly in its minute entry, which we adopt.” Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision at 33 (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2) (citing State v. Whipple, 866 P.2d 1358, 1360 (Ariz.Ct.App. 1993)). The appellate court also “reject[ed] Richter's assertion on review that the court abused its discretion by denying his claim of ineffective assistance of trial counsel ‘[w]ithout factual analysis.'” Id. at 34 (second alteration in original). The appellate court held that “the [Rule 32] court properly determined [Richter] had not established prejudice.” Id. The appellate court further held that “[a]lthough Richter contends he was prejudiced by counsel's failure to seek a neuropsychological evaluation after the court rejected a guilty-except-insane defense the first time, he has not presented any evidence that such an exam would have resulted in evidence different from that before the court in the first instance.” Id. Finally, the appellate court “note[d] that Richter's claim that his right to counsel was violated by the trial court's denial of his request for new counsel was precluded by his failure to raise it on appeal.” Id. (citing Ariz. R. Crim. P. 32.1, 32.2(a)(3)). The appellate court went on to adopt the Rule 32 court's “ruling insofar as it pertains to Richter's claim that appellate counsel was ineffective in failing to raise the claim on appeal, which [it] properly rejected.” Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision at 34 (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2).

4. PCR Petition for Review

On August 30, 2018, Petitioner sought review by the Arizona Supreme Court of his PCR petition. See Answer (Doc. 55), Petr.'s Pet. for Review from Denial of Rule 32 Pet. for PCR, State v. Richter, No. 2 CA CR 2018-0252-PR (Ariz. Sept. 30, 2018) (Exh. “HHH”) (Doc. 55-2). Petitioner's sole issue for review was “whether the trial court erred in summarily denying Petitioner's Petition for Post-Conviction Relief without granting an evidentiary hearing.” Id., Exh. “HHH” at 39. In arguing that the trial court's summary denial was improper, Petitioner realleged that 1) trial counsel was ineffective for allegedly “abandoning” a Guilty Except Insane defense and failing to object to the Torres hearing, thereby prejudicing Petitioner; 2) appellate counsel was ineffective for allegedly failing to argue that Petitioner had been denied his Sixth Amendment right to counsel due to the allegedly inadequate Torres hearing; and 3) the Torres hearing was inadequate. Id., Exh. “HHH” at 46-55. On September 23, 2019, the Arizona State Supreme Court denied Petitioner's Petition for Review. Answer (Doc. 55), State v. Richter, No. CR-19-0157-PR, Memorandum (Ariz. Sept. 23, 2019) (Exh. “III”) (Doc. 55-2).

Accordingly, on December 2, 2019, the Arizona Court of Appeals issued its Mandate. See State v. Richter, No. 2 CA-CR 2018-0252-PR, Mandate (Ariz.Ct.App. Dec. 2, 2019) (Exh. “JJJ”) (Doc. 55-2).

D. The Instant Habeas Proceeding

On May 13, 2020, Petitioner filed his Petition for a Writ of Habeas Corpus and Application for Appointment of Counsel (Doc. 1). On May 21, 2020, the Honorable Cindy K. Jorgenson granted Petitioner in forma pauperis status and appointed counsel. Order 5/21/2020 (Doc. 7). On June 15, 2020, she directed service of the Petition. Order 6/15/2020 (Doc. 10). Petitioner filed an unauthorized Amended Petition for Writ of Habeas Corpus (Doc. 16), and subsequently showed adequate cause to support the filing. See Order 7/20/2020 (Doc. 19). On August 26, 2020, Petitioner a Second Amended Petition for Writ of Habeas Corpus (Doc. 22).⁸ On September 28, 2021, undersigned held a status conference and directed Petitioner to file his Third Amended Petition on or before December 15, 2021. Order 10/1/2021 (Doc. 45). Ultimately, Petitioner filed his Third Amended Petition for Writ of Habeas Corpus (Doc. 50) that is now pending before the Court.

8 This document is only titled “Amended Petition for Writ of Habeas Corpus”; however, review of the docket in CM/ECF indicates that it was Petitioner's Second Amended Petition.

Petitioner raises nine (9) claims for relief, some with subparts. See Third Amended Petition (Doc. 50). First, Petitioner asserts that he was denied his Sixth Amendment right to the effective assistance of counsel.⁹ See id. at 26-55. In Ground A1, Petitioner alleges that trial counsel “fail[ed] to adequately investigate and pursue a GEI defense after the trial court disallowed it based solely on the evaluation of its own expert, Dr. Christiansen.” Id. at 29. In Ground A2, Petitioner alleges that “[t]rial counsel fell below the standard of care by failing to raise Mr. Richter's incompetence to stand trial.” Id. at 39. Petitioner notes that “[t]rial counsel was aware that Mr. Richter is severely mentally ill and, appropriately, raised his incompetence to stand trial at the onset of proceedings.” Id. Petitioner acknowledges that after an initial finding of incompetence, he was subsequently restored, but urges that he subsequently began to decompensate and trial counsel should have intervened. Third Amended Petition (Doc. 50) at 39; see also Reply (Doc. 81) at 36. In Ground A3, Petitioner asserts that trial counsel provided ineffective assistance when he allegedly “failed to request non-conflicted counsel to represent Mr. Richter at [the] hearing” conducted by the trial court to address Petitioner's request for new counsel, or otherwise failed to move to withdraw. Third Amended Petition (Doc. 50) at 46. In Ground A4, Petitioner alleges that “[t]rial counsel . . . failed to object to an unqualified expert opining about prejudicial evidence which was beyond his area of expertise[,] . . . [thereby] violat[ing] Mr. Richter's rights to the due process and effective assistance of counsel.” Id. at 52 (citations omitted).

9 This is referred to as Ground or Claim “A,” with a subpart designation where appropriate.

Next, Petitioner asserts ineffective assistance of counsel at sentencing.¹⁰ Id. at 5665. In Ground B1, Petitioner alleges that counsel's performance was deficient because he called one witness, and his “presentation on behalf of Mr. Richter-both the testimony of Bob Richter and Skitzki's recommendation argument-lasted a mere ten transcript pages.” Id. at 49-50 (citations omitted). In Ground B2, Petitioner alleges that “[t]rial counsel should have known that Mr. Richter was intellectually disabled.” Id. at 63. Petitioner acknowledges that counsel's “one sentencing witness, Bob Richter, testified briefly regarding Mr. Richter's low IQ, difficulty in school, how he can barely read or write with any understanding, and that he was on ‘mental disability' during the time period of the offense and the co-defendant was in charge of the government funds to support Mr. Richter”; however, Petitioner asserts that because counsel “inaccurately stated that Mr. Richter was ‘borderline IQ,' minimizing his client's impairments” and “conducted no investigation into Mr. Richter's adaptive deficits or intellectual disability prior to sentencing and presented no live intellectual disability expert witness to the trial court[,]” his assistance was ineffective. Third Amended Petition (Doc. 50) at 64.

10 This is referred to as Ground or Claim “B,” with a subpart designation where appropriate.

Third, Petitioner asserts that he was denied effective assistance of appellate counsel.¹¹ Id. at 65-81. In Ground C1, Petitioner argues that “[t]he Anders brief filed by Hopkins was profoundly deficient[,] [and] [i]t failed to raise any claim for relief, despite the existence of at least a half dozen non-frivolous claims.” Id. at 67 (emphasis in original). Petitioner opines that appellate counsel should have raised claims related to 1) “the trial court's preclusion of the GEI defense”; 2) Petitioner's request for and the trial court's denial of a change of counsel prior to trial; 3) the trial court's denial of defense counsel's motion for a directed verdict and sufficiency of the evidence; 4) the trial court's denial of defense counsel's motion to sever trial; 5) the trial court's denial of defense counsel's motion for a mistrial based on the State's expert witness psychiatrist's vouching regarding the victim's credibility; and 6) the admission of the State's expert witness psychiatrist's testimony during which he reviewed photographs of the victims and identified scars and opined about their relative age and the type of implement that may have caused them. See id. at 68-77. In Ground C2, Petitioner asserts that “the Anders brief filed by Hopkins contained numerous errors and omissions and failed to present the strongest arguments in favor of Mr. Richter.” Id. at 77-78 (quotations and citations omitted). Petitioner further asserts that in light of the “myriad errors [sic] and omissions, the state court['s] conclu[sion] that appellate counsel fulfilled his obligations to the Defendant under Anders[,] . . . [wa]s contrary to what the Supreme Court has clearly established are appellate counsel's duties under Strickland, Evitts, and Anders[,] . . . [and] constitute[d] an unreasonable determination of the facts.” Third Amended Petition (Doc. 50) at 79-80 (quotations and citations omitted).

11 This is referred to as Ground or Claim “C,” with a subpart designation where appropriate.

Fourth, Petitioner asserts that he “was prohibited from raising an affirmative GEI defense.” Id. at 81 (citations omitted). In Ground D, Petitioner further asserts that “the trial court's refusal to permit Mr. Richter to plead GEI implicated both his due process and confrontation rights.” Id. at 84. Petitioner argues that “[h]is jury was never able to hear the overwhelming evidence of his serious mental illnesses[,] . . . [and] [he] was unable to effectively cross-examine his wife/co-defendant[.]” Id. (citations omitted).

In Ground E, Petitioner alleges that his due process rights were violated because he “was deprived of his right to be competent at his trial.” Id. at 86. Next, in Ground F, Petitioner alleges that he was deprived of his right to counsel when the trial court denied his motion for new counsel prior to trial. Third Amended Petition (Doc. 50) at 86-89. Petitioner urges that the state courts' determinations that he had not met his burden to prove an irreconcilable difference with trial counsel, and was therefore not entitled to new counsel, were contrary to and an unreasonable application of Supreme Court precedent and “based on an unreasonable determination of the facts.” Id. at 88-89.

In Ground G, Petitioner alleges that “[t]he trial court violated [his] federal due process and fair trial rights when it repeatedly denied Mr. Richter's requests to sever his trial from Sophia's[.]” Id. at 89. Petitioner opines that his “conviction and sentence are unconstitutional in light of the denial of his request for severance.” Id. at 90. In Ground H, Petitioner asserts that “[t]he trial court violated [his] federal due process rights when it permitted the prosecution to introduce victim mental health evidence that did not prove an element of the offence, vouch for the credibility of their key witnesses, and introduce unqualified expert testimony, relieving the prosecution of its burden of proof beyond a reasonable doubt.” Id. at 91 (citations omitted). In Ground H1, Petitioner asserts that the State's expert witness psychiatrist “testified that the victims' suffered from PTSD¹² and other mental health issues due to Mr. Richter's acts.” Third Amended Petition (Doc. 50) at 92. Petitioner opines that this testimony was improper because it “was not required to prove any element of the charges, but used to capitalize on the jury's sympathy for the already sympathetic victims.” Id. In Ground H2, Petitioner asserts that the State's psychiatrist “improperly vouched for the truthfulness of the victims[.]” Id. In Ground H3, Petitioner urges a due process violation because the State's psychiatrist was allegedly “allowed . . . to testify beyond the scope of his expertise.” Id.

12 Post-traumatic stress disorder.

Finally, Petitioner asserts that after a 2017 prison assault he is “unable to form a rational understanding of what he was convicted of and why he is in prison.”¹³ Id. at 93. Petitioner further asserts that his continued incarceration under these circumstance violates the Eighth Amendment. Third Amended Petition (Doc. 50) at 93-116. Petitioner bases Ground I on two (2) primary arguments: 1) “incarcerating a defendant who is unable to form a rational understanding of why he is being punished constitutes cruel and unusual punishment”; and 2) “because of his profound cognitive impairments, continuing to incarcerate Mr. Richter serves no legitimate penological purpose, rendering that punishment disproportionate under the Eighth Amendment.” Id. at 106-107.

13 This is referred to as Ground or Claim “I.”

On July 5, 2022, Respondents filed their Answer to Petition for Writ of Habeas Corpus (Doc. 55) and Petitioner replied (Doc. 81).

II. STATUTE OF LIMITATIONS

As a threshold matter, the Court must consider whether Petitioner's petition is barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The AEDPA mandates that a one-year statute of limitations applies to applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides that the limitations period shall run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by the State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Respondents do not dispute the timeliness of Richter's original petition, and the Court has independently reviewed the records and finds that his original petition (Doc. 1) is timely pursuant to 28 U.S.C. § 2244(d)(1)(A). Respondents do dispute the timeliness of Ground I in Richter's Third Amended Petition (Doc. 50), because it fails to relate back to the original petition. Answer (Doc. 55) at 113-18. The Court finds that Richter's Third Amended Petition (Doc. 50) is timely to the extent that it relates back to the original petition, but will address the timeliness of Ground I in Section IV.C., infra.

III. STANDARD OF REVIEW

A. In General

The federal courts shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991). Ultimately, “[t]he statute's design is to ‘further the principles of comity, finality, and federalism.'” Panetti v. Quarterman, 551 U.S. 930, 945 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337 (2003)). Furthermore, this standard is difficult to meet and highly deferential “for evaluating state-court rulings, [and] . . . demands that state-court decisions be given the benefit of the doubt.” Pinholster, 563 U.S. at 181 (citations and internal quotation marks omitted).

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). Federal courts reviewing a petition for habeas corpus must “presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'” Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the state court's determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is unreasonable where a state court properly identifies the governing legal principles delineated by the Supreme Court, but when the court applies the principles to the facts before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, (2011); Williams v. Taylor, 529 U.S. 362 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). “AEDPA requires ‘a state prisoner [to] show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement.'” Burt, 134 S.Ct. at 10 (quoting Harrington, 562 U.S. at 103) (alterations in original).

B. Exhaustion of State Remedies

Prior to application for a writ of habeas corpus, a person in state custody must exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This “provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, 455 U.S. 509, 520 (1982). As such, the exhaustion doctrine gives the State “the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotations omitted). Moreover, “[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose, 455 U.S. at 518 (internal citations omitted). This upholds the doctrine of comity which “teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. (quoting Darr v. Burford, 339 U.S. 200, 204 (1950)).

Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long as the applicant “has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard v. Connor, 404 U.S. 270, 275 (1971). The fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting the state court to read beyond the four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 31-33 (2004) (rejecting petitioner's assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and finding the justices' opportunity to read a lower court decision addressing the federal claims insufficient to support fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds). Furthermore, in order to “fairly present” one's claims, the prisoner must do so “in each appropriate state court.” Baldwin, 541 U.S. at 29. “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 1998)).

In Arizona, however, for non-capital cases “review need not be sought before the Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007); Moreno v. Gonzalez, 962 P.2d 205 (Ariz. 1998). Additionally, the Supreme Court has further interpreted § 2254(c) to recognize that once the state courts have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346, 350 (1989).

C. Procedural Default

1. In General

“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available' to him.” Coleman v. Thompson, 501 U.S. 722, 732 (1991). The Ninth Circuit Court of Appeals explained the difference between exhaustion and procedural default as follows:

The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner's claims and that opportunity may still be available to the petitioner under state law. In contrast, the 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. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and citations omitted). Thus, in some circumstances, a petitioner's failure to exhaust a federal claim in state court may cause a procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner

failed to exhaust state remedies 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.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).

Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005). “Together, exhaustion and procedural default promote federal-state comity.” Shinn v. Ramirez, 142 S.Ct. 1718, 1732 (2022).

Thus, a prisoner's habeas petition may be precluded from federal review due to procedural default in two ways. First, where a “petitioner failed to exhaust state remedies 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 (citations omitted). In this circumstance, the federal court “must consider whether the claim could be pursued by any presently available state remedy.” Cassett, 406 F.3d at 621 n.6 (quotations and citations omitted) (emphasis in original). Second, where the petitioner presented his claims to the state court, which denied relief based “on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman, 501 U.S. at 728. Federal courts are prohibited from review in such cases because they have “no power to review a state law determination that is sufficient to support the judgment, [because] resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory.” Id. This is true whether the state law basis is substantive or procedural. Id. (citations omitted).

In Arizona, a petitioner's claim may be procedurally defaulted where he has waived his right to present his claim to the state court “at trial or on appeal or in any previous collateral proceeding[.]” Ariz. R. Crim. P. 32.2(a)(3) (2022). If an asserted claim “raises a violation of a constitutional right that can only be waived knowingly, voluntarily and personally by the defendant[,]” such claim is not automatically precluded. Id. Neither Rule 32.2. nor the Arizona Supreme Court has defined claims of “sufficient constitutional magnitude” requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 46 P.3d 1067 (Ariz. 2002). The Ninth Circuit Court of Appeals recognized that this assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are better suited to make these determinations.” Cassett, 406 F.3d at 622.

2. Overcoming a Procedural Bar

Where a habeas petitioner's claims have been procedurally defaulted, a petitioner must show cause and actual prejudice to overcome the bar on federal review. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice); see also Smith v. Murray, 477 U.S. 527, 534 (1986) (recognizing “that a federal habeas court must evaluate appellate defaults under the same standards that apply when a defendant fails to preserve a claim at trial.”). “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on which to address the merits of his claims.”). Actual prejudice requires a habeas petitioner to “show not merely that the errors . . . 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 (emphasis in original) (internal quotations omitted). Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the procedural default and gain review by the federal courts. Id. at 49496.

The Supreme Court has recognized, however, that “the cause and prejudice standard will be met in those cases where review of a state prisoner's claim is necessary to correct ‘a fundamental miscarriage of justice.'” Coleman v. Thompson, 501 U.S. 722 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)). “The fundamental miscarriage of justice exception is available ‘only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.'” Herrera v. Collins, 506 U.S. 390, 404 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). Thus, “‘actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrera, 506 U.S. at 404. Further, to demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B).

D. Evidentiary Development

“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Similarly, § 2254(d)(2) contemplates whether the state court decision “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)(2). “[W]hen the state-court record ‘precludes habeas relief' under the limitations of § 2254(d), a district court is ‘not required to hold an evidentiary hearing.'” Pinholster, 563 U.S. at 183 (quoting Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citing with approval the Ninth Circuit's recognition that “an evidentiary hearing is not required on issues that can be resolved by reference to the state court record” (internal quotation marks omitted)).

Section 2254(e)(2) provides the standard for evidentiary hearings to develop the factual record in the federal court. It provides:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant 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 factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2) (emphasis added). “[U]nder § 2254(e)(2), a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the statecourt record based on ineffective assistance of postconviction counsel.” Shinn v. Ramirez, 596 U.S. 366 (2022). Moreover, in any circumstance, “even if all of these requirements are satisfied, a federal habeas court still is not required to hold a hearing or take any evidence.” Ramirez, 596 U.S. at 382 (emphasis in original).

IV. ANALYSIS

Petitioner's claims fall into one of three (3) categories: 1) procedurally defaulted; 2) reviewable on the merits; and 3) untimely or otherwise non-cognizable. The Court will address each category of claims in turn.

A. Procedurally Defaulted Claims

Petitioner makes much of “the State [having] affirmatively waived preclusion as to Mr. Richter's claims that counsel was ineffective for failing to adequately pursue the GEI defense (Claim A(1)), that Mr. Richter received ineffective assistance of counsel at sentencing (Claim B), and that he received ineffective assistance of counsel on appeal (Claim C)” in response to Petitioner's recently filed Petition for Post-Conviction Relief in the Arizona courts. Petr.'s Reply (Doc. 81) at 15. Petitioner again asserts that “[g]iven the State's waiver, Respondent's argument that Claim B and part of Claim C are procedurally defaulted is moot.” Id. at 15-16. As the District Judge has already explained, “[T]he Court rejects the Petitioner's assertion that [because] the State agrees to waive preclusion under Rule 32.2 as to the GEI related claims, . . . this Court should also waive it. This is not the relevant analysis in this Court.” Order 9/12/2023 (Doc. 75) at 7. The District Judge reiterated the irrelevance of the State's position in the current Arizona court proceeding by stating:

Resolution of the independent proceedings in the state court does not bear upon this case, which will be decided pursuant to federal habeas law that requires application of state procedural rules, including Rule 32.2. It does not matter whether the State agrees to waive the preclusive effect of Rule 32.2. This Court's resolution on the merits of the Petition is unaffected by any relief granted in the state courts, except to the extent Petitioner's release may moot this proceeding.

Order 9/12/2023 (Doc. 75) at 9 (emphasis added).

“Together, exhaustion and procedural default promote federal-state comity.” Shinn v. Ramirez, 596 U.S. 366, 378 (2022). “Exhaustion affords States an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights, . . . and procedural default protects against the significant harm to the States that results from the failure of federal courts to respect state procedural rules.” Id. at 378-379 (quotations and citations omitted). “[T]o allow a state prisoner simply to ignore state procedure on the way to federal court would defeat the evident goal of the exhaustion rule.” Id. at 378 (citing Coleman v. Thompson, 501 U.S. 722, 732 (1991)). “Thus, federal courts must apply an important ‘corollary' to the exhaustion requirement: the doctrine of procedural default.” Id. (emphasis added) (quotations and citations omitted).

The Court finds Grounds A2, A3, A4, B1, B2, C1, D, E, G, H1, H2, and H3 of Petitioner's Third Amended Petition (Doc. 50) procedurally defaulted without excuse. These claims, which include allegations of ineffective assistance of trial counsel (including during sentencing); ineffective assistance of appellate counsel; due process violations arising from the trial court's denial of a GEI defense, an alleged deprivation of his right to be competent at trial, the trial court's denial of Petitioner's requests to sever his trial from that of his co-defendant, and alleged issues regarding the State's expert witness psychiatrist, were not raised. See Third Amended Petition (Doc. 50). “[P]etitioner failed to exhaust state remedies [for each claim listed above,] 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 (citations omitted). The Court will address each claim, in turn.

1. Ineffective Assistance of Counsel

Grounds A2, A3, A4, B1, and B2 relate to allegations regarding counsel's ineffectiveness at trial and during sentencing. Ground C1 relates to appellate counsel's alleged ineffectiveness.

a. Legal Standards

The Supreme Court has elucidated a two-part test for determining whether a defendant could prevail on a claim of ineffective assistance of counsel sufficient to overturn his conviction. See Strickland v. Washington, 466 U.S. 668 (1984). First, Petitioner must show that counsel's performance was deficient. Id. at 687. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. Second, Petitioner must show that this performance prejudiced his defense. Id. Prejudice “requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable.” Id. Ultimately, whether or not counsel's performance was effective hinges on its reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688; see also State v. Carver, 771 P.2d 1382 (Ariz. 1989) (adopting Strickland two-part test for ineffective assistance of counsel claims). The Sixth Amendment's guarantee of effective assistance is not meant to “improve the quality of legal representation,” rather it is to ensure the fairness of trial. Strickland, 466 U.S. at 689. “Thus, ‘[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'” Cullen v. Pinholster, 563 U.S. 170 (2011) (quoting Strickland, 466 U.S. at 686) (emphasis and alteration in original).

“The standards created by Strickland and § 2254(d) are both ‘highly deferential,' . . . and when the two apply in tandem, review is ‘doubly' so[.]” Harrington v. Richter, 562 U.S. 86 (2011) (citations omitted). Judging counsel's performance must be made without the influence of hindsight. See Strickland, 466 U.S. at 689. As such, “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Without the requisite showing of either “deficient performance” or “sufficient prejudice,” Petitioner cannot prevail on his ineffectiveness claim. Strickland, 466 U.S. at 700. “[T]he 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.” Gentry v. Sinclair, 705 F.3d 884, 899 (9th Cir. 2013) (quoting Harrington, 562 U.S. at 105) (alterations in original).

“The challenger's burden is to show ‘that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689). Accordingly, “[w]e apply the doubly deferential standard to review the state court's ‘last reasoned decision.'” Vega v. Ryan, 757 F.3d 960, 966 (9th Cir. 2014) (citations omitted). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits' in state court, subject only to the exceptions in 2254(d)(1) and (d)(2).” Harrington, 131 U.S. at 98, 131 S.Ct. at 784. As such, Petitioner also bears the burden of showing that the state court applied Strickland to the facts of his case in an objectively unreasonable manner. See Bell v. Cone, 535 U.S. 685, 698-99 (2002); see also 28 U.S.C. § 2254(d).

b. Ground A2: Failure to raise Petitioner's right to be competent

Petitioner alleges that trial counsel was ineffective for an alleged “fail[ure] to raise Mr. Richter's incompetence to stand trial.” Third Amended Petition (Doc. 50) at 39. Petitioner notes that “[t]rial counsel was aware that Mr. Richter is severely mentally ill and, appropriately, raised his incompetence to stand trial at the onset of proceedings.” Id. Petitioner acknowledges that after an initial finding of incompetence, he was subsequently restored, but urges that he subsequently began to decompensate and trial counsel should have intervened. Third Amended Petition (Doc. 50) at 39; see also Reply (Doc. 81) at 36.

i. Fair Presentation

As noted in Section III.B., supra, the fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 31-33 (2004). “[A] petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 1998)). In other words, “a petitioner must properly raise [a claim] on every level of direct review.” Id. (citing Ortberg v. Moody, 961 F.2d 135, 137 (9th Cir. 1992)); see also Baldwin, 541 U.S. at 29 (fair presentation requires a prisoner to raise his claims “in each appropriate state court”).

Petitioner did not raise his ineffective assistance of trial counsel for an alleged failure to raise Mr. Richter's incompetence to stand trial based on alleged decompensation in his PCR petition to the Rule 32 court. See Answer (Doc. 55), Petr.'s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Furthermore, Petitioner did not raise this claim to the Arizona Court of Appeals on review of his PCR petition. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 552). As such, Petitioner did not fairly present his claim to the state court. “As a general matter, each ‘unrelated alleged instance [ ] of counsel's ineffectiveness' is a separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)) (alterations in original). This means “all operative facts to an ineffective assistance claim must be presented to the state courts in order for a petitioner to exhaust his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). This is “[b]ecause ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Id. As such, “a petitioner who presented any ineffective assistance of counsel claim below can[not] later add unrelated instances of counsel's ineffectiveness to that claim.” Id. (citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner's assertion of a claim of ineffective assistance of counsel based on one set of facts, does not exhaust other claims of ineffective assistance based on different facts”).

Furthermore, “when a defendant raises an IAC claim in a successive petition and has already raised a different IAC claim in an earlier petition, preclusion is required and courts need not determine whether the claim alleges a violation requiring personal waiver.” State v. Traverso, 537 P.3d 345 (Ariz.Ct.App. 2023) (citing Stewart v. Smith, 46 P.3d 1067 (Ariz. 2002) (en banc)); see also Ariz. R. Crim. P. 32.2(a)(3). Therefore, Petitioner's claim is procedurally defaulted and unavailable for review unless he can show cause and prejudice for the default.

ii. No Cause and Prejudice to Excuse Default

Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner relies on Martinez v. Ryan ¹⁴ to excuse any procedural default of this claim.

14 566 U.S. 1 (2012).

“In Martinez . . . and Trevino v. Thaler, 569 U.S. 413, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), [the Supreme] Court announced a narrow exception to Coleman's¹⁵general rule.” Davila v. Davis, - U.S. -, 137 S.Ct. 2058, 2062 (2017). “That exception treats ineffective assistance by a prisoner's state postconviction counsel as cause to overcome the default of a single claim-ineffective assistance of trial counsel-in a single context-where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal.” Id. at 2062-63. The Supreme Court observed that “[t]hese rules [under which a prisoner may establish cause to excuse a procedural default] reflect an equitable judgment that only where a prisoner is impeded or obstructed in complying with the State's established procedures will a federal habeas court excuse the prisoner from the usual sanction of default.” Martinez, 566 U.S. at 13, 132 S.Ct. at 1318 (citations omitted). “In applying this standard, Martinez made clear that a reviewing court must determine whether the petitioner's attorney in the first collateral proceeding was ineffective under Strickland, whether the petitioner's claim of ineffective assistance of trial counsel is substantial, and whether there is prejudice.” Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (citing Martinez, 132 S.Ct. at 1321). Additionally, this Court's “review of counsel's performance is highly deferential.” Campbell v. Wood, 18 F.3d 662, 673 (9th Cir. 1994) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)). The Court “will neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight.” Id.

15 Coleman v. Thompson, 501 U.S. 722 (1991).

Petitioner acknowledges that trial counsel initially raised Mr. Richter's incompetence early in the case, the trial court found Mr. Richter to be incompetent and ordered him restored, which then occurred. Third Amended Petition (Doc. 50) at 39. Without citation to the record, Petitioner asserts that “[r]ecord evidence suggests that Mr. Richter's mental health continued to decline, even on medication, and he was once again incompetent to understand the proceedings against him or assist in his defense.” Id. Petitioner asserts that during the hearing on his request for new counsel, trial counsel failed to “recogniz[e] Mr. Richter's inability to understand the proceedings against him as a function of his deteriorating mental health and competence.” Id. at 40. Petitioner further asserts that “[t]hree months later, on the third day of trial, Mr. Richter's medications were so impairing his motor functioning that he indicated he was ‘having trouble speaking through [his] medication[.]”¹⁶ Id. (citations omitted).

16 As an initial matter, this exchange took place on the fourth day of trial. Petitioner cited to “RT 12/11/15 at 3-5.” On habeas, the Court does not receive a full copy of the state court record, which renders such citations unhelpful, particularly when, as here, the date is incorrect and Petitioner fails to attach a copy to his pleading. The correct transcript, Trial Tr. 11/13/2015 (Trial - Day 4), can be found at Exhibit “SSS” (Doc. 55-2) of Respondent's Answer (Doc. 55).

On September 21, 2015, the trial court addressed Mr. Richter's letters seeking new counsel. See Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr'g Tr. (Pima Cnty. Super. Ct. Sept. 21, 2015) (Exh. “OOO”) (Doc. 55-2). The trial court asked Mr. Richter to “identify some issues that are out there as to why [he] think[s] that [he] should have a new lawyer?” Id., Exh. “OOO” at 5:8-10.¹⁷ Mr. Richter referred the trial court to the information contained in his letters. Id., Exh. “OOO” at 5:11-19. Trial counsel acknowledged that the letters indicated Petitioner's dissatisfaction, but could not represent whether the dissatisfaction “r[o]se to some sort of conflict that would make [trial counsel] unable to represent [Petitioner.]” Id., Exh. “OOO” at 6:2-10, 14-16. At the trial court's behest, trial counsel addressed various points raised in the letters. Id., Exh. “OOO” at 6:1725, 8:11-16, 9:21-10:19. The trial court also questioned Mr. Richter regarding the letters, whether he received assistance writing them, what type of assistance was received, and if there was anything else he wanted the court to know. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr'g Tr. at 4:20-5:19, 7:1-8:9, 10:20-24 (Pima Cnty. Super. Ct. Sept. 21, 2015) (Exh. “OOO”) (Doc. 55-2). Nothing in either trial counsel or the trial court's interactions with Petitioner appeared to raise any concerns regarding his competence. See Williams v. Woodford, 384 F.3d 567, 604 (9th Cir. 2004) (“Although no particular facts signal a defendant's incompetence, suggestive evidence includes the defendant's demeanor before the trial judge, irrational behavior of the defendant, and available medical evaluations of the defendant's competence to stand trial.”).

17 The Court cites page and line designations within a transcript to the original page number, rather than the CM/ECF page number.

On November 13, 2015, the fourth day of trial, trial counsel raised the issue of Petitioner's new medications. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr'g Tr. (Trial - Day 4) at 3:3-14. (Pima Cnty. Super. Ct. Nov. 13, 2015) (Exh. “SSS”) (Doc. 55-2). The following exchange took place between the trial court and defense counsel:

THE COURT: Good morning. Show we're back on the record. Show the presence of counsel and the parties previously indicated.

All right. A couple of items I understand we need to make a record of?

MR. SKITZKI: Yes, Your Honor. It's my understanding that my client has been placed on some new mental health medication that's had some effect, negative effect on him, on his motor skills.

I believe that mentally and for purposes of his acuity, I don't believe that there's been any change negatively.

THE COURT: In other words, it's not an impairment on his ability to assist you in terms of this trial.

MR. SKITZKI: That is correct, Your Honor.

THE COURT: And can I get a consent on that from your client to make sure of that?

MR. SKITZKI: You certainly may ask him, Judge.

Id., Exh. “SSS” at 3:3-22. The trial court went on to discuss the medication change with Mr. Richter. See id., Exh. “SSS” at 3:23-5:21. Regarding the medication's impact on Petitioner, the following exchange occurred:

THE COURT: So, Mr. Richter, I understand that your meds were changed down at the Pima County Adult Detention Center; is that correct?

THE DEFENDANT: Yes.

THE COURT: Can you just, for the record, share with us in what respect that your meds were changed?

THE DEFENDANT: I'm not sure.

THE COURT: Well, how do you know they were changed then?

THE DEFENDANT: Oh, no, they were. I'm having trouble speaking through my medication right now.

THE COURT: Okay. But what meds - so - if you can't recall the meds that - what meds were you taking previously, I suppose? Do you remember?

MR. RICHTER: Yeah, on Theraquil.

THE COURT: And?

MR. RICHTER: And Buspar.

THE COURT: And -

MR. RICHTER: And - the new medication is Buspar.

THE COURT: Oh, okay. And is it a prescribed medication by the health care professionals at the Adult Detention Center.

THE DEFENDANT: Yeah.

THE COURT: And what's - since I'm not familiar with that medication, can you share with me what it's supposed to do or designed to do?

THE DEFENDANT: I don't know.

THE COURT: Well, obviously the doctor must have thought it was necessary. Does it help you sleep or something or what?

THE DEFENDANT: Yeah.

THE COURT: Okay. All right. But at this juncture, are you okay in terms of your ability to sit through the trial?

THE DEFENDANT: Yeah.

THE COURT: And you can help your lawyer and assist him in terms of defending yourself?

THE DEFENDANT: Yes.

Id., Exh. “SSS” at 3:23-5:14. Nothing in this exchange appeared to raise any concerns regarding his competence. See Williams v. Woodford, 384 F.3d 567, 604 (9th Cir. 2004) (“Although no particular facts signal a defendant's incompetence, suggestive evidence includes the defendant's demeanor before the trial judge, irrational behavior of the defendant, and available medical evaluations of the defendant's competence to stand trial.”). Furthermore, “a defendant's counsel is in the best position to evaluate a client's comprehension of the proceedings.” Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991) (citations omitted). Here, counsel reported that his client was still able to assist with trial. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr'g Tr. (Trial - Day 4) at 3:314. (Pima Cnty. Super. Ct. Nov. 13, 2015) (Exh. “SSS”) (Doc. 55-2). “[T]he fact that the trial judge, government counsel, and [Petitioner's] own attorney did not perceive a reasonable cause to believe [Petitioner] was incompetent” cuts against Petitioner's claims on habeas. Hernandez, 930 F.2d at 718. “The trial transcript does not indicate that [Petitioner] lacked understanding of the proceedings or was unable to assist in his defense.” Williams, 384 F.3d at 607.

“In order to show ineffectiveness of PCR counsel, [Petitioner] must show that PCR counsel's failure to raise the claim that trial counsel was ineffective was an error ‘so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment,' and caused [Petitioner] prejudice.” Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (citing Strickland, 466 U.S. at 687). In arguing that PCR counsel was ineffective, Petitioner observes “much of the evidence of Mr. Richter's deteriorating mental health at trial overlapped with the evidence initial PCR counsel used to raise the IAC/GEI claim . . . and right to counsel claim[.]” Petr.'s Reply (Doc. 81) at 51 (citations omitted). This fact undermines Petitioner's argument. PCR counsel reviewed the entirety of the record and made a choice not to include what appears to be a meritless claim. See Murray v. Schriro, 745 F.3d 984, 1011 (9th Cir. 2014) (“[T]he relevant inquiry . . . is not what defense counsel could have pursued, but rather whether the choices made by defense counsel were reasonable.”).

Petitioner has failed “to show ‘that [either trial or PCR] counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). As such, Martinez will not excuse his procedural default. See Sexton, 679 F.3d at 1159-61. Review of the record confirms that Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Accordingly, Petitioner's claim is procedurally defaulted and precluded from habeas review.

c. Ground A3: Failure to move for non-conflicted counsel or withdraw

Petitioner asserts that trial counsel provided ineffective assistance when he allegedly “failed to request non-conflicted counsel to represent Mr. Richter at [the] hearing” conducted by the trial court to address Petitioner's request for new counsel, or otherwise failed to move to withdraw. Third Amended Petition (Doc. 50) at 46.

L Fair Presentation

As discussed in Sections III.B. and IV.A.1.b.i., supra, the fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 31-33 (2004). Petitioner did not raise his ineffective assistance of trial counsel for an alleged failure to request nonconflicted counsel, or otherwise move to withdraw in his PCR petition to the Rule 32 court. See Answer (Doc. 55), Petr.'s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Neither did Petitioner raise this claim to the Arizona Court of Appeals on review of his PCR petition. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2). As such, Petitioner did not fairly present his claim to the state court. As noted in Section IV.A.1.b.i., supra, “ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). As such, “a petitioner who presented any ineffective assistance of counsel claim below can[not] later add unrelated instances of counsel's ineffectiveness to that claim.” Id. (citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner's assertion of a claim of ineffective assistance of counsel based on one set of facts, does not exhaust other claims of ineffective assistance based on different facts”). Furthermore, “when a defendant raises an IAC claim in a successive petition and has already raised a different IAC claim in an earlier petition, preclusion is required and courts need not determine whether the claim alleges a violation requiring personal waiver.” State v. Traverso, 537 P.3d 345 (Ariz.Ct.App. 2023) (emphasis added) (citing Stewart v. Smith, 46 P.3d 1067 (Ariz. 2002) (en banc)); see also Ariz. R. Crim. P. 32.2(a)(3). Therefore, Petitioner's claim is procedurally defaulted and unavailable for review unless he can show cause and prejudice for the default.

ii. No Cause and Prejudice to Excuse Default

Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner relies on Martinez v. Ryan ¹⁸ to excuse any procedural default of this claim.

18 566 U.S. 1 (2012).

As discussed in Section IV.A.1.b.ii., supra, Petitioner's letters requesting new counsel were addressed by the trial court. Upon request by the trial court, defense counsel responded to various issues raised in Petitioner's letters. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr'g Tr. at 6:17-25, 8:11-16, 9:21-10:19 (Pima Cnty. Super. Ct. Sept. 21, 2015) (Exh. “OOO”) (Doc. 55-2). The trial court also questioned Mr. Richter regarding the same. Id., Exh. “OOO” at 4:20-5:19, 7:1-8:9, 10:20-24. Furthermore, Petitioner's presumption that the trial court would have granted defense counsel's motion to withdraw is unsupported. See State v. Gomez, 293 P.3d 495, 500-501 (Ariz. 2012) (en banc) (upholding trial court's denial of counsel's motion to withdraw and defendant's motion for change of counsel based on an insufficient showing “that a change of counsel [wa]s necessary, especially considering the age of the case and the timing of the motion[.]”) The Court finds that trial counsel's actions were reasonable, as was PCR counsel's decision not to raise this issue in the Rule 32 proceeding.

Petitioner has failed “to show ‘that [either trial or PCR] counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). As such, Martinez will not excuse his procedural default. See Sexton v. Cozner, 679 F.3d 1150, 1159-61 (9th Cir. 2012). Review of the record confirms that Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Accordingly, Petitioner's claim is procedurally defaulted and precluded from habeas review.

d. Ground A4: Failure to object to State's expert witness

Petitioner asserts that trial counsel provided ineffective assistance when he allegedly “failed to object to an unqualified expert opining about prejudicial evidence which was beyond his area of expertise[,] . . . [thereby] violat[ing] Mr. Richter's rights to the due process and effective assistance of counsel.” Third Amended Petition (Doc. 50) at 52 (citations omitted).

i. Fair Presentation

As discussed in Sections III.B. and IV.A.1.b.i., supra, the fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 31-33 (2004). Petitioner did not raise his ineffective assistance of trial counsel for an alleged failure to object to an allegedly unqualified expert's testimony in his PCR petition to the Rule 32 court. See Answer (Doc. 55), Petr.'s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Furthermore, Petitioner did not raise this claim to the Arizona Court of Appeals on review of his PCR petition. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2). As such, Petitioner did not fairly present his claim to the state court. As noted in Section IV.A.1.b.i., supra, “ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). As such, “a petitioner who presented any ineffective assistance of counsel claim below can[not] later add unrelated instances of counsel's ineffectiveness to that claim.” Id. (citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner's assertion of a claim of ineffective assistance of counsel based on one set of facts, does not exhaust other claims of ineffective assistance based on different facts”). Furthermore, “when a defendant raises an IAC claim in a successive petition and has already raised a different IAC claim in an earlier petition, preclusion is required and courts need not determine whether the claim alleges a violation requiring personal waiver.” State v. Traverso, 537 P.3d 345 (Ariz.Ct.App. 2023) (emphasis added) (citing Stewart v. Smith, 46 P.3d 1067 (Ariz. 2002) (en banc)); see also Ariz. R. Crim. P. 32.2(a)(3). Therefore, Petitioner's claim is procedurally defaulted and unavailable for review unless he can show cause and prejudice for the default.

ii. No Cause and Prejudice to Excuse Default

Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner relies on Martinez v. Ryan ¹⁹ to excuse any procedural default of this claim.

19 566 U.S. 1 (2012).

This claim is devoid of merit. Prior to trial, defense counsel filed a motion in limine seeking to preclude “[a]ny testimony from Dr. John Leipsic wherein he opines about the future prognosis for any of the three alleged victims[,] [and] [i]n addition, any testimony wherein he opines about any of the following: child abuse; posttraumatic stress disorder; entrapment; captor binding; [and] trauma.” See Answer (Doc. 50), Def.'s Mot. in Limine, State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Nov. 4, 2015). Counsel also opposed the State's Motion in Limine re: Dr. Leipsic's testimony. See Answer (Doc. 50), State v. Richter, No. CR20135144-001, Minute Entry at 102 (Pima Cnty. Super. Ct. Nov. 13, 2015). Following argument, the trial court granted the State's motion and denied Petitioner's. Id. The breadth of testimony defense counsel sought to preclude pre-trial encompasses that which Petitioner now argues counsel should have objected to during trial. The Court finds that trial counsel's actions were reasonable, as was PCR counsel's decision not to raise this issue in the Rule 32 proceeding.

Petitioner has failed “to show ‘that [either trial or PCR] counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). As such, Martinez will not excuse his procedural default. See Sexton v. Cozner, 679 F.3d 1150, 1159-61 (9th Cir. 2012). Review of the record confirms that Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Accordingly, Petitioner's claim is procedurally defaulted and precluded from habeas review.

e. Ground B1: Presentation of mitigation evidence at sentencing

Petitioner alleges that counsel's performance was deficient because he called one witness, and his “presentation on behalf of Mr. Richter-both the testimony of Bob Richter and Skitzki's recommendation argument-lasted a mere ten transcript pages.” Third Amended Petition (Doc. 50) at 49-50 (citations omitted). Petitioner expands on this claim to note that trial counsel's presentation at sentencing omitted evidence regarding “Mr. Richter's incredibly traumatic life history, severe mental illness, history of head injuries, and intellectual disability.” Petr.'s Reply (Doc. 81) at 62.

i. Fair Presentation

As discussed in Sections III.B. and IV.A.1.b.i., supra, the fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 31-33 (2004). Petitioner did not raise his ineffective assistance of sentencing counsel for an alleged failure to call more than one witness or any claim regarding an alleged failure to investigate Petitioner's history in his PCR petition to the Rule 32 court. See Answer (Doc. 55), Petr.'s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Furthermore, Petitioner did not raise this claim to the Arizona Court of Appeals on review of his PCR petition. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 552). As such, Petitioner did not fairly present his claim to the state court. As noted in Section IV.A.1.b.i., supra, “ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). As such, “a petitioner who presented any ineffective assistance of counsel claim below can[not] later add unrelated instances of counsel's ineffectiveness to that claim.” Id. (citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner's assertion of a claim of ineffective assistance of counsel based on one set of facts, does not exhaust other claims of ineffective assistance based on different facts”). Furthermore, “[a]s a general rule, when ineffective assistance of counsel claims are raised, or could have been raised in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.” State v. Bennett, 146 P.3d 63, 67 (Ariz. 2006) (emphasis in original) (quotations and citations omitted); see also Ariz. R. Crim. P. 32.2(a)(3). Therefore, Petitioner's claim is procedurally defaulted and unavailable for review unless he can show cause and prejudice for the default.

ii. No Cause and Prejudice to Excuse Default

Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner relies on Martinez v. Ryan ²⁰ to excuse any procedural default of this claim.

20 566 U.S. 1 (2012).

Petitioner's contention that sentencing counsel failed to perform any investigation regarding “Mr. Richter's incredibly traumatic life history, severe mental illness, history of head injuries, and intellectual disability” is unsupported by the record. Sentencing counsel obtained a mitigation specialist whose report was submitted to the trial court prior to sentencing. See Answer (Doc. 55), Mitigation Rpt. for Fernando Richter, State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Feb. 23, 2016) (Exh. “PP”) (Doc. 55-1). The mitigation specialist provided the court with information regarding Petitioner's birth; his mother's status as a single parent and subsequent marriage to Petitioner's step-father; Petitioner's immigration to the United States as a child; his difficult childhood; the loss of one of his siblings to suicide; Petitioner being run over by a car at the age of nine and a half; the resulting head injuries; Petitioner's “high order cognitive deficits”; his mental health issues; Petitioner's frontal lobe damage; his education and attendant difficulties, including an Individualized Education Program (“IEP”) for emotional instability; Petitioner's employment history; and his restoration report. See id., Exh. “PP.”

Defense counsel also submitted a sentencing memorandum. See Answer (Doc. 55), Sentencing Memo., State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Mar. 3, 2016) (Exh. “QQ”) (Doc. 55-1). Counsel discussed Petitioner's “traumatic upbringing,” including not knowing his biological father, how his biological father abused physically his mother, even while she was pregnant; Petitioner's cognitive difficulties, including special education in school and his tenuous reading ability which persists to the present; and Petitioner being run over by a car at the age of nine (9), resulting in severe head injuries. Id., Exh. “QQ” at 172-73. Counsel also noted Petitioner's inability to maintain employment and eventual receipt of social security disability benefits. Id., Exh. “QQ” at 173. Counsel reviewed Petitioner's mental illnesses which exists “[i]n addition to his cognitive impairment[.]” Id., Exh. “QQ” at 173-74. Counsel described the worsening of Petitioner's schizophrenia and the negative impacts of the disease which “eventually resulted in the circumstances and situation which led to his conviction.” Id. Counsel indicated that “[t]he specifics of Fernando's conditions and his history have been more specifically set forth in the prior submissions to this Court.” Answer (Doc. 55), Sentencing Memo. at 174, State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Mar. 3, 2016) (Exh. “QQ”) (Doc. 55-1). Counsel emphasized Petitioner was not an “evil monster” but rather a victim of his disease, “which ultimately led to the offenses for which he now stands to be punished.” Id.

On February 17, 2016, defense counsel filed sentencing mitigation documents, including the Rule 11 Evaluation by Michael Christiansen, Ph.D., the Restoration to Competency Program Report by Serena Gorgueiro, Psy.D., the Rule 11 Evaluation by Bradley Johnson, M.D., and the Psychological Evaluation by Paul Simpson, Ed.D. See Answer (Doc. 55), Not. of Filing of Def.'s Sentencing Mitigation Docs., State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Feb. 17, 2016) (Exh. “RR”) (Doc. 55-1). On February 10, 2016, defense counsel filed sentencing mitigation documents consisting of letters from family members, including Jean Richter (sister), Grace Soto (sister), Raphael Richter (brother), Robert Richter (step-father), and Maria Cruz Alvarez Richter (mother). See Answer (Doc. 55), Not. of Filing Def.'s Sentencing Mitigation Docs., State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Feb. 10, 2016) (Exh. “SS”) (Doc. 55-1). Petitioner's mother's letter reflected the terrible abuse she suffered from his father, her travel from Mexico, the fear Petitioner exhibited as a child, his difficulties in school, and mental health issues. Id., Exh. “SS” at 184-85. On February 26, 2016, defense counsel filed a joint letter from Robert and Maria Richter as mitigation evidence. See Answer (Doc. 55), Not. of Filing Def.'s Sentencing Mitigation Docs., State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Feb. 26, 2016) (Exh. “TT”) (Doc. 55-1). This letter reflected Petitioner's difficulty with comprehension, his mental illness, the accident when he was run over by a car at the age of nine (9), and the effect of immigrating to the United States from Mexico as a child. Id., Exh. “TT” at 188. This letter with “a couple moderate additions” was read into the record by Robert Richter during Petitioner's sentencing hearing. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr'g Tr. (Sentencing) at 6:21-24 (Pima Cnty. Super. Ct. Mar. 10, 2016) (Exh. “DDDD”) (Doc. 55-2). Additionally, the trial court also received Petitioner's Presentence Report (“PSR”). See Answer (Doc. 55), Richter PSR, State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Feb. 29, 2016) (Exh. “OO”) (Doc. 55-1). The PSR reflected Petitioner's loss of a sibling to suicide, the incident where he was run over by a car, his education and employment histories, and substance use. Id., Exh. “OO” at 162.

On February 29, 2016, the initial sentencing hearing was held, and defense counsel raised concerns regarding Petitioner's competence and moved for another Rule 11 evaluation. See Answer (Doc. 55), State v. Richter, No. CR20135144-001, Minute Entry at 151 (Pima Cnty. Super. Ct. Feb. 29, 2016) (Exh. “LL”) (Doc. 55-1). The trial court questioned Petitioner and ultimately ordered an additional assessment. Id., Exh. “LL” at 151-52. The sentencing hearing was therefore continued. Id., Exh. “LL” at 152-53. Prior to sentencing, Serena Gorgueiro, Psy.D. provided an Addenda to the Final Competency Report to the trial court. See Answer (Doc. 55), Gorgueiro Addenda to the Final Competency Rpt., State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Mar. 3, 2016) (Exh. “UU”) (Doc. 55-1).

On March 10, 2016, the trial court held a sentencing hearing for both Petitioner and his co-defendant. See Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr'g Tr. (Sentencing) (Pima Cnty. Super. Ct. Mar. 10, 2016) (Exh. “DDDD”) (Doc. 55-2). At the outset of presenting mitigation witnesses, trial counsel stated, “Judge, we had previously discussed this before. I was going to call Bob Richter. He was just planning on reading something rather than having me examine him[.]” Id., Exh. “DDDD” at 4:24-5:2. Robert Richter testified on behalf of Petitioner and read “a letter presented to Judge Tang, and there's a couple moderate additions, but this is on behalf of his mother and myself as well.” Id., Exh. “DDDD” at 6:22-24. Mr. Robert Richter testified regarding Petitioner's inability to read and write properly; his difficulties with understanding and communication; the help that he required in writing letters to the court; his lack of comprehension regarding “everything in the trial”; that he is easily manipulated; that he has a low IQ and had difficulty in school; his history of mental illness; his inability to think independently, normally, and logically; the abuse suffered by his mother at the hands of Petitioner's biological father; Petitioner's receipt of social security disability which was managed by his wife; and ultimately requested the court to incarcerate him nearby so that his mother could visit him. Id., Exh. “DDDD” at 6:21-10:11. Defense counsel presented argument in which he directed the trial court to Petitioner's long mental health history, referred to the voluminous evidence that had been provided to the trial court, attempted to characterize Petitioner as someone who was not “inherently evil” but rather a victim of his mental illness, highlighted his cognitive difficulties, noted that his graduation from high school was “more [] social promotion than any type of academic achievement[,]” indicated that he had been picked on and bullied throughout his life, and was readily manipulated. Id., Exh. “DDDD” at 64:17-69:6. Accordingly, defense counsel sought a mitigated sentence. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr'g Tr. at 68:25-69:6 (Sentencing) (Pima Cnty. Super. Ct. Mar. 10, 2016) (Exh. “DDDD”) (Doc. 55-2).

The evidence presented to the trial court encompasses the areas that Petitioner now complains sentencing counsel failed to investigate. Petitioner urges that “even if Skitzki had chosen to offer written submissions in lieu of testimony, that decision would not have been sound, as live testimony at sentencing is always preferable.” Petr.'s Reply (Doc. 81) at 67. Petitioner states that “Arizona courts have long recognized that live testimony has a quality and import that written submissions cannot duplicate.” Id. (citing State v. Talmadge, 999 P.2d 192, 195 (Ariz. 2000)). Petitioner mischaracterizes Talmadge and State v. Brady, 594 P.2d 94, 96 (Ariz. 1979), the case upon which Talmadge relies, as requiring a preference for live testimony at sentencing. Both of those cases dealt with the presentation of witnesses during the guilt phase, where a jury was hearing testimony from a material witness. Here, the evidence was being presented solely to the trial judge.²¹Furthermore, a review of the record indicates that Petitioner's co-defendant only presented one live witness in mitigation. See Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr'g Tr. (Sentencing) (Pima Cnty. Super. Ct. Mar. 10, 2016) (Exh. “DDDD”) (Doc. 55-2). Based upon trial counsel's statement at the outset of the hearing, supra, this Court surmises that there was an agreement that each Defendant would present one mitigation witness.

21 In Arizona, judges are governed by the Arizona Code of Judicial Conduct which mandates that they “shall perform all duties of judicial office fairly and impartially.” Ariz. Code of Jud. Conduct Rule 2.2. This requirement undercuts Petitioner's argument that a live witness is necessary.

Given the totality of the evidence presented in support of mitigation, the Court finds that trial counsel did not “abandon[ ] their investigation of [the] petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources.” Cullen v. Pinholster, 563 U.S. 170, 195 (2011) (alterations in original) (citations omitted). “Strickland specifically commands that a court ‘must indulge [the] strong presumption' that counsel ‘made all significant decisions in the exercise of reasonable professional judgment.'” Id. at 196 (alterations in original) (quoting Strickland, 466 U.S. at 689-90). The Court finds that sentencing counsel was not ineffective, and therefore PCR counsel was not unreasonable in declining to raise this claim on collateral review.

Petitioner has failed “to show ‘that [either trial or PCR] counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). As such, Martinez will not excuse his procedural default. See Sexton v. Cozner, 679 F.3d 1150, 1159-61 (9th Cir. 2012). Review of the record confirms that Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Accordingly, Petitioner's claim is procedurally defaulted and precluded from habeas review.

f. Ground B2: Intellectual disability evidence at sentencing

Petitioner asserts that because counsel “inaccurately stated that Mr. Richter was ‘borderline IQ,' minimizing his client's impairments” and “conducted no investigation into Mr. Richter's adaptive deficits or intellectual disability prior to sentencing and presented no live intellectual disability expert witness to the trial court[,]” his assistance was ineffective. Third Amended Petition (Doc. 50) at 64.

i. Fair Presentation

As discussed in Sections III.B. and IV.A.1.e.i, supra, the fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 31-33 (2004). Petitioner did not raise his ineffective assistance of sentencing counsel for an alleged failure to investigate his adaptive deficits or intellectual disability in his PCR petition to the Rule 32 court. See Answer (Doc. 55), Petr.'s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Furthermore, Petitioner did not raise this claim to the Arizona Court of Appeals on review of his PCR petition. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2). As such, Petitioner did not fairly present his claim to the state court. As noted in Section IV.A.1.b.i., supra, “ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). As such, “a petitioner who presented any ineffective assistance of counsel claim below can[not] later add unrelated instances of counsel's ineffectiveness to that claim.” Id. (citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner's assertion of a claim of ineffective assistance of counsel based on one set of facts, does not exhaust other claims of ineffective assistance based on different facts”). Furthermore, “[a]s a general rule, when ineffective assistance of counsel claims are raised, or could have been raised in a Rule 32 postconviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.” State v. Bennett, 146 P.3d 63, 67 (Ariz. 2006) (emphasis in original) (quotations and citations omitted); see also Ariz. R. Crim. P. 32.2(a)(3). Therefore, Petitioner's claim is procedurally defaulted and unavailable for review unless he can show cause and prejudice for the default. ...

ii. No Cause and Prejudice to Excuse Default

Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner relies on Martinez v. Ryan ²² to excuse any procedural default of this claim.

22 566 U.S. 1 (2012).

Petitioner's contention that counsel's alleged mischaracterization of Petitioner's IQ, alleged failure to investigate Mr. Richter's adaptive deficits or intellectual disability, and lack of live intellectual disability expert witness during sentencing rendered his assistance was ineffective is unsupported. As discussed in Section IV.A.1.e.ii., supra, defense counsel submitted significant documentation to the trial court as mitigation evidence, including a report from a mitigation specialist and the evaluations of various medical professionals. Petitioner's mitigation specialist documented, inter alia, his “high order cognitive deficits” and frontal lobe damage, as well as their effects. Answer (Doc. 55), Mitigation Rpt. for Fernando Richter, State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Feb. 23, 2016) (Exh. “PP”) (Doc. 55-1). Paul Simpson, Ed.D.'s Psychological Evaluation documented Petitioner's WAIS-IV, full scale IQ at 63. Third Amended Petition (Doc. 50), Simpson Psych. Eval. (Exh. “3”) (Doc. 50-2) at 8. Dr. Simpson described “Fernando's general cognitive ability [a]s within the extremely low range of intellectual functioning, as measured by FSIQ.” Id. Michael Christiansen, Ph.D.'s Rule 11 Evaluation reviewed Petitioner's developmental, educational, and family history, and reported that “[a] Psychoeducational Evaluation (7/05/2000) notes the defendant had borderline defective range verbal IQ of 73 while performance IQ scores reached the average range.” Third Amended Petition (Doc. 50), Christiansen Rule 11 Eval. (Exh. “8”) (Doc. 50-3) at 14. Dr. Christiansen described his scores as “consistent with learning disability, with deficits in verbal and language abilities.” Id. Additionally, Mr. Robert Richter provided testimony regarding Petitioner's intellectual deficits and their effect on his life. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr'g Tr. (Sentencing) at 6:21-10:11 (Pima Cnty. Super. Ct. Mar. 10, 2016) (Exh. “DDDD”) (Doc. 55-2). Contrary to Petitioner's assertion, information regarding Petitioner's intellectual disabilities and adaptive deficits were provided to the trial court from a variety of sources. Moreover, although counsel's description of Petitioner's IQ as “borderline” was not as low as that reported by Dr. Simpson, it was consistent with the report relied on by Dr. Christiansen. The Court finds that sentencing counsel was not ineffective, and therefore PCR counsel was not unreasonable in declining to raise this claim on collateral review.

Petitioner has failed “to show ‘that [either trial or PCR] counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). As such, Martinez will not excuse his procedural default. See Sexton v. Cozner, 679 F.3d 1150, 1159-61 (9th Cir. 2012). Review of the record confirms that Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Accordingly, Petitioner's claim is procedurally defaulted and precluded from habeas review.

g. Ground C1: Failure to raise claims on appeal

Petitioner asserts that appellate counsel should have raised claims related to 1) “the trial court's preclusion of the GEI defense”; 2) Petitioner's request for and the trial court's denial of a change of counsel prior to trial; 3) the trial court's denial of defense counsel's motion for a directed verdict and sufficiency of the evidence; 4) the trial court's denial of defense counsel's motion to sever trial; 5) the trial court's denial of defense counsel's motion for a mistrial based on the State's expert witness psychiatrist's vouching regarding the victim's credibility; and 6) the admission of the State's expert witness psychiatrist's testimony during which he reviewed photographs of the victims and identified scars and opined about their relative age and the type of implement that may have caused them. Third Amended Petition (Doc. 50) at 68-77.

i. Fair Presentation

As discussed in Sections III.B. and IV.A.1.b.i, supra, the fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 31-33 (2004). Petitioner did not raise his ineffective assistance of appellate counsel regarding failures to raise specific claims in his PCR petition to the Rule 32 court. See Answer (Doc. 55), Petr.'s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Furthermore, Petitioner did not raise these claims to the Arizona Court of Appeals on review of his PCR petition. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2). As such, Petitioner did not fairly present his claims to the state court. As noted in Section IV.A.1.b.i., supra, “ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). As such, “a petitioner who presented any ineffective assistance of counsel claim below can[not] later add unrelated instances of counsel's ineffectiveness to that claim.” Id. (citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner's assertion of a claim of ineffective assistance of counsel based on one set of facts, does not exhaust other claims of ineffective assistance based on different facts”). Furthermore, “[a]s a general rule, when ineffective assistance of counsel claims are raised, or could have been raised in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.” State v. Bennett, 146 P.3d 63, 67 (Ariz. 2006) (emphasis in original) (quotations and citations omitted); see also Ariz. R. Crim. P. 32.2(a)(3). Therefore, Petitioner's claim is procedurally defaulted and unavailable for review unless he can show cause and prejudice for the default.

ii. No Cause and Prejudice to Excuse Default

Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner asserts that “[t]he salient question in analyzing a claim of ineffective assistance of appellate counsel is whether the unraised issue, if raised, would have ‘led to a reasonable probability of reversal.'” Petr.'s Reply (Doc. 81) at 74 (citing Hurles v. Ryan, 188 F.Supp.3d 907, 922 (D. Ariz. 2016)). This is not the appropriate standard. Hurles was a death penalty case, which the Ninth Circuit had remanded to the district court for consideration, “pursuant to Martinez, Hurles' claim that his counsel performed ineffectively by failing to raise a claim[.]” Hurles, 188 F.Supp.3d at 918. When Hurles was decided, “[t]he Ninth Circuit ha[d] expanded Martinez to include procedurally defaulted claims of ineffective assistance of appellate counsel.” Id. at 921 (citations omitted). The following year, however, the Supreme Court of the United States foreclosed that rule. See Davila v. Davis, 582 U.S. 521 (2017). The Supreme Court unequivocally declined to extend Martinez “to allow federal courts to consider a different kind of defaulted claim-ineffective assistance of appellate counsel.” Id. at 525. As such, Petitioner must demonstrate cause and prejudice to excuse his procedural default.

Petitioner has failed to meet this burden. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Accordingly, Petitioner's claim is procedurally defaulted and precluded from habeas review.

2. Due Process and Confrontation Rights

Grounds D, E, G, H1, H2, and H3 relate to allegations regarding alleged due process violations by the trial court.

In Ground D, Petitioner asserts that “the trial court's refusal to permit Mr. Richter to plead GEI implicated both his due process and confrontation rights.” Third Amended Petition (Doc. 50) at 84. Petitioner argues that “[h]is jury was never able to hear the overwhelming evidence of his serious mental illnesses[,] . . . [and] [he] was unable to effectively cross-examine his wife/co-defendant[.]” Id. (citations omitted).

In Ground E, Petitioner alleges that his due process rights were violated because he “was deprived of his right to be competent at his trial.” Id. at 86.

In Ground G, Petitioner alleges that “[t]he trial court violated [his] federal due process and fair trial rights when it repeatedly denied Mr. Richter's requests to sever his trial from Sophia's[.]” Id. at 89.

Grounds H1-H3 assert that “[t]he trial court violated Mr. Richter's federal due process rights when it permitted the prosecution to introduce victim mental health evidence that did not prove an element of the offence, vouch for the credibility of their key witnesses, and introduce unqualified expert testimony, relieving the prosecution of its burden of proof beyond a reasonable doubt.” Id. at 91 (citations omitted). More specifically, in Ground H1, Petitioner asserts that the State's expert witness psychiatrist “testified that the victims' suffered from PTSD and other mental health issues due to Mr. Richter's acts.” Third Amended Petition (Doc. 50) at 92. Petitioner opines that this testimony was improper because it “was not required to prove any element of the charges, but used to capitalize on the jury's sympathy for the already sympathetic victims.” Id. In Ground H2, Petitioner asserts that the State's psychiatrist “improperly vouched for the truthfulness of the victims[.]” Id. In Ground H3, Petitioner urges a due process violation because the State's psychiatrist was allegedly “allowed . . . to testify beyond the scope of his expertise.” Id.

a. Fair Presentation

As discussed in Sections III.B., supra, the fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 31-33 (2004). Petitioner did not raise any of these due process claims or his confrontation clause claim on direct appeal or in his PCR petition to the Rule 32 court. See Third Amended Pet. (Doc. 50), Appellant's Opening Br. (Anders), State v. Richter, No. 2 CA-CR 2016-0112 (Ariz.Ct.App. Sept. 19, 2015) (Doc. 50-4); State v. Richter, No. 2 CA-CR 2016-0112, 2017 WL 491137, at *1 (Ariz.Ct.App. Jan. 24, 2017); Answer (Doc. 55), Petr.'s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Furthermore, Petitioner did not raise these claims to the Arizona Court of Appeals on review of his PCR petition. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2). As such, Petitioner did not fairly present his claims to the state court. “[P]etitioner failed to exhaust state remedies 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 (citations omitted); Ariz. R. Crim. P. 32.2(a)(3) (2023). Accordingly, the Court finds all of Petitioner's due process claims and his confrontation claim are procedurally defaulted and unavailable for review unless he can show cause and prejudice for the default.

b. No Cause and Prejudice to Excuse Default

Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner asserts that “an affirmative GEI determination constitutes a finding of innocence, so precluding the GEI defense constitutes a miscarriage of justice excusing any default.” Petr.'s Reply (Doc. 81) at 97. Petitioner further asserts that “[a]lternatively, default of [these] claim[s] is excusable under Martinez.” See id. at 97-111. Petitioner's contention are without merit.

As an initial matter, Martinez is inapplicable to the procedurally default of due process claims regarding the trial court's actions. See Section IV.A.1.b., supra. Moreover, Petitioner has not met his burden to demonstrate a fundamental miscarriage of justice to excuse default. “The fundamental miscarriage of justice exception is available ‘only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.'” Herrera v. Collins, 506 U.S. 390, 404 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). Thus, “‘actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. at 404. “The gateway should open only when a petitioner presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)).

On February 28, 2014, defense counsel filed a Motion for Mental Condition Examination and Stay of Proceedings.²³ See Answer (Doc. 55), Def.'s Mot. for Mental Condition Exam and Stay of Proceedings, State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Feb. 28, 2014) (Exh. “B”) (Doc. 55-1). On March 10, 2014, the trial court granted Defendant's motion for a Rule 11 examination and appointed two (2) doctors to examine Defendant. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Minute Entry (Pima Cnty. Super. Ct. Mar. 10, 2014) (Exh. “C”) (Doc. 55-1). On March 21, 2014, the trial court issued its order appointing the Rule 11 examiners. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Minute Entry (Pima Cnty. Super. Ct. Mar. 21, 2014) (Exh. “D”) (Doc. 55-1). On June 9, 2014, the trial court found Petitioner incompetent but restorable, and ordered the necessary treatment for his restoration. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Minute Entry (Pima Cnty. Super. Ct. June 8, 2014) (Exh. “F”) (Doc. 55-1). On September 8, 2014, the trial court found Petitioner restored and competent to stand trial. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Minute Entry (Pima Cnty. Super. Ct. Sept. 8, 2014) (Exh. “G”) (Doc. 55-1).

23 The Court supplies information regarding the Rule 11 restoration proceedings to provide a complete timeline of events.

At the same hearing, defense counsel moved for a GEI evaluation to be completed, which the trial court granted. Id., Exh. “G.” On September 12, 2014, the trial court appointed Michael Christiansen, Ph.D. to evaluate Petitioner regarding his state of mind at the time of the offense. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Order (Pima Cnty. Super. Ct. Sept. 12, 2014) (Exh. “H”) (Doc. 55-1). On December 8, 2014, based upon Dr. Christiansen's report, the trial court found Petitioner “did not suffer from a mental disease or defect that would impair his ability to appreciate the wrongfulness of his conduct at the time of the alleged offense(s)[,]” and was therefore not entitled to present a GEI defense or plea at that time. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Minute Entry (Pima Cnty. Super. Ct. Dec. 8, 2014) (Exh. “I”) (Doc. 55-1); Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr'g Tr. at 5:4-14 (Pima Cnty. Super. Ct. Dec. 8, 2014) (Exh. “NNN”) (Doc. 55-1). The trial court acknowledged that Petitioner was free to obtain an independent evaluation if he so chose. Id. Defense counsel retained Paul Simpson, Ed.D. to evaluate Petitioner, but his report did not conclusively address Petitioner's mental state at the time of the offenses. See Third Amended Petition (Doc. 50), Simpson Psych. Eval. (Exh. “3”) (Doc. 50-2).

In Arizona, “[a] person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong.” A.R.S. § 13-502(A). “A mental disease or defect constituting legal insanity is an affirmative defense[,]” and the defendant bears the burden to prove “legal insanity by clear and convincing evidence.” A.R.S. § 13-502(A), (C). Here, the trial court granted defense counsel's motion for evaluation, stayed the proceedings, appointed a qualified evaluator, and had Petitioner evaluated for a GEI defense. Upon receipt and review of Dr. Christiansen's report, the trial court made its determination that the GEI defense was unavailable at that juncture. The Arizona statutory scheme for a GEI defense has been found to comport with due process. See Clark v. Arizona, 548 U.S. 735, 756, 779 (2006).

Petitioner has not provided any evidence to support his contention that the trial court was required to consider more than one expert evaluation. Moreover, even if the trial court had been presented with more than one expert report, it “could credit one expert over another.” Apelt v. Ryan, 878 F.3d 800, 837 (9th Cir. 2017) (acknowledging the state court's ability to weigh expert opinion evidence in determining whether defendant suffered major deficits in his adaptive behavior). Furthermore, three (3) of the offenses for which Petitioner was indicted took place over several months. See Answer (Doc. 55), Amended Indictment, State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Dec. 6, 2013) (Exh. “A”). As such, the Court finds Petitioner's claim that greater weight should be given to Dr. Gorgueiro's GEI finding for Petitioner's “offense in the jail he committed a week after the principal crimes” is unavailing.²⁴ Third Amended Petition (Doc. 50) at 82. The Court further finds that Petitioner has failed to “show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327 (1995). As such, he has failed to demonstrate a fundamental miscarriage of justice entitling him to excuse of his procedural default.

24 Dr. Gorgueiro's report was prepared for Pima County Superior Court Case No. CR20135288-001. It is unclear from the record that is was ever submitted to the trial court in Petitioner's case from which this habeas arises (Case No. CR20135144-001). The record reflects that the two cases were consolidated for Rule 11 purposes only. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Minute Entry at 12 (Pima Cnty. Super. Ct. Mar. 10, 2014) (Exh. “C”) (Doc. 55-1). Petitioner was arrested on November 26, 2013. Third Amended Petition (Doc. 50) at 14. Review of Dr. Gorgueiro's report demonstrates that Petitioner's mental health decompensated during the first days of incarceration. Third Amended Petition (Doc. 50), Gorgueiro's Rpt. (Exh. “2”) at 12-13 (“In November [2013] . . . noted as emotionally unstable . . . [and] assessed as depressed but denied hallucinations and/or delusions”; “On December 1, 2013 he was described as being cooperative but with severe anxiety, pressured speech and a tangential thought process”; “On December 3, 2013 the defendant . . . reported[ly] made statements to the corrections officer to ‘Get me a gun and I'll shoot myself”; “On December 4, 2014, the defendant . . . appeared paranoid”; “On December 9, 2014, the day of the alleged offense, the defendant . . . made suicidal statements[,]” “believed his wife was shot in the head[,]” and thought he would only be safe if he remained with the nurse.”). As such, Dr. Gorgueiro's findings do not support an inference that Petitioner did not know right from wrong at the time of the offenses relevant to this case.

Petitioner has failed to otherwise demonstrate cause and prejudice to excuse his procedural defaults. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Accordingly, Petitioner's due process claims and confrontation claim are procedurally defaulted and precluded from habeas review.

B. Merits Analysis of Properly Exhausted Claims

The Court finds that Petitioner has exhausted Grounds A1 and C2 of his Third Amended Petition (Doc. 50) and will address the merits of each claim. The Court finds that Ground F was procedurally defaulted, but will additionally address the merits.

1. Ground A1: IAC Regarding GEI Defense

Petitioner alleges that trial counsel “fail[ed] to adequately investigate and pursue a GEI defense after the trial court disallowed it based solely on the evaluation of its own expert, Dr. Christiansen.” Third Amended Petition (Doc. 50) at 29. Petitioner raised this claim in his PCR petition. See Answer (Doc. 55), Petr.'s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Petitioner also presented this claim to the Arizona Court of Appeals. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2). The Court has delineated the legal standards for assessing ineffective assistance of counsel claims in Section IV.A.1.a., supra.

In his PCR petition, Petitioner asserted that he was denied his Sixth Amendment right to counsel, because trial counsel was ineffective when he allegedly abandoned the presentation of a GEI defense. Answer (Doc. 55), Petr.'s Pet. for PCR at 20-21, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). On July 31, 2018, the Rule 32 court issued its order denying Petitioner's Petition for Post-Conviction relief. See Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling-In Chambers Ruling Re: Denial of PCR (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The court outlined the Strickland ²⁵ test which requires Defendant to prove counsel's performance was deficient and caused prejudice. Id. The Rule 32 court went on to evaluate Defendant's allegation of trial counsel's ineffectiveness “based on ‘counsel's abandonment of presenting a Guilty Except Insane (‘GEI') defense.'” Id. The court delineated the following timeline of counsel's work regarding Defendant's competency:

25 Strickland v. Washington, 466 U.S. 668 (1984).

> February 28, 2014 - Motion for Mental Condition Evaluation and Stay of Proceedings.

• April 15, 2014 - Rule 11 Evaluation Report - Michael P. Christiansen, Ph.D. - Ex 18A, p. 9 ❖ “Competent”

• May 12, 2014 - Rule 11 Evaluation Report - Bradley R. Johnson, M.D. - Ex 19, p. 7

❖ “Not Currently Competent, likely able to be able to [sic] brought to competence within a short period of time.”

> September 8, 2014 - Requested a GEI Evaluation. See Minute Entry dated September 8, 2014.

• October 28, 2014 - GEI Evaluation Report - Michael P. Christiansen, Ph. D. - Ex 18B, p. 9

❖ “Not afflicted with mental disease or defect of such severity that he did not know the criminal act was wrong at the time of the offense.”

> September 25, 2014 - Retained Paul Simpson to Conduct

Psychological Evaluation. See Appendix B, Exhibit 21, Psychological Evaluation.

• July 8, 2015 - Psychological Evaluation - Paul Simpson, Ed.D. -

Ex 21, p. 144

❖ “[B]ased on information obtained from available records and self-reporting regarding Defendant's mental health history and considered to have been possible present in a mild to moderate degree at or around the time of the offenses as described below.

• 295.90 Schizophrenia, with Delusion, multiple episodes, currently in partial remission;

• 317.0 Intellectual Developmental Disorder, Mild;

• 309.81 Posttraumatic Stress Disorder, by history and self report;

• Rule in / out 331.83 Major or Mild Neurocognitive Disorder Due to Traumatic Brain Injury.”

Id., Exh. “14” at 46-47 (alterations in original) (punctuation in original). The Rule 32 court observed that following defense counsel's request for a mental competency examination, the proceedings were stayed; two (2) evaluations occurred with Dr. Christiansen finding Defendant competent and suggesting possible malingering, and Dr. Johnson opining that Defendant was not currently competent but likely restorable; and Defendant was restored. Id., Exh. “14” at 45-47. The Rule 32 court further noted that defense counsel sought a GEI evaluation, which was also performed by Dr. Christiansen. Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling-In Chambers Ruling Re: Denial of PCR at 45-47 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The Rule 32 court also noted that “Dr. Christiansen concluded, ‘In [his] professional opinion, data indicates at the time of the commission of the criminal act, the defendant was not afflicted with a mental disease or defect of such severity that he did not know the criminal act was wrong.'” Id., Exh. “14” at 46. The Rule 32 court indicated that “[t]he trial judge accepted these findings and ruled Defendant ineligible for the GEI defense.” Id. (citations omitted). The Rule 32 court found defense counsel's decisions not to seek reconsideration of the trial court's decision or otherwise pursue a second GEI evaluation were not unreasonable. Id. The Rule 32 court concluded that Defendant had failed to meet his burden to show defense counsel fell below prevailing norms or had been otherwise ineffective. Id., Exh. “14” at 47.

The appellate court noted that “[t]he [Rule 32] court clearly identified the claims raised and resolved them correctly in its minute entry, which [the appellate court] adopt[ed].” Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision at 33 (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2) (citing State v. Whipple, 866 P.2d 1358, 1360 (Ariz.Ct.App. 1993)). The appellate court “reject[ed] Richter's assertion on review that the [Rule 32] court abused its discretion by denying his claim of ineffective assistance of trial counsel ‘[w]ithout factual analysis.'” Id., Exh. “GGG” at 34 (second alteration in original). The appellate court further observed that “[a]lthough Richter contends he was prejudiced by counsel's failure to seek a neuropsychological evaluation after the court rejected a guilty-except-insane defense the first time, he has not presented any evidence that such an exam would have resulted in evidence different from that before the court in the first instance.” Id. The appellate court concluded that the Rule 32 court “properly determined [Petitioner] had not established prejudice.” Id.

On habeas review, Petitioner asserts that trial counsel “deficiently failed to pursue the GEI defense after it was disallowed based on Dr. Christiansen's report.” Third Amended Petition (Doc. 50) at 29. Petitioner asserts that Dr. Christiansen's finding that there was evidence of Petitioner's “malingering” “was unsupportable and absurd.” Petr.'s Reply (Doc. 81) at 20. Dr. Christiansen reviewed Petitioner's medical and psychiatric treatment history. Third Amended Petition (Doc. 50), Christiansen Eval. 10/2/2014 (Exh. “10”) (Doc. 50-4) at 4-6. Dr. Christiansen observed that Petitioner's COPE psychiatrist described him “as ‘mentally stable' on 11/27/2012, 12/31/2012 and 3/8/2013.” Id., Exh. “10” at 5 (emphasis in original). On September 13, 2013, COPE staff described Petitioner “as having perseverative thought process and ‘paranoid thought patterns' were listed but not specified.” Id. (emphasis in original). Dr. Christiansen reported that “[t]he Title 36 evaluation by Dr. Keller 12/30/2013 note[d] the defendant was noted the day after his intake to the jail “to be anxious and detoxing off of opiates and benzodiazepines.” Id., Exh. “10” at 6 (emphasis in original). Dr. Christiansen further noted that “[a] Conmed mental health clinician noted an impression of psychosis N[ot ]O[therwise ] S[pecified] versus malingering on 12/13/2013.” Id. Dr. Christiansen further noted that “[t]hroughout December 2013 the defendant presented inconsistently in terms of reported delusional though content[,] [and] [h]e was not described in a manner that is clearly compelling of genuine ongoing delusions.” Third Amended Petition (Doc. 50), Exh. “10” at 6. As an example, Dr. Christiansen noted that “[o]n 1/03/2014 he reported ‘he no longer thinks that COs are trying to kill him,' despite being noncompliant with psychotropic medications.” Id. (emphasis in original). Regarding Petitioner's medications, Dr. Christiansen reported that:

[Petitioner] affirmed that he was taking medications “since my car accident” and that prior to the crime he was taking them, “sometimes a little more than I needed to.” Specifically taking “2 Zyprexa; just to help me out with my voices and stuff.” He also endorsed taking “Valiums” to help him sleep. He then reported taking Trazodone, affirming he took more than prescribed by COPE to help him sleep. Despite his reported vague recall for other information he reported specific information regarding medications, that he was supposed to take “Zyprexa only once a day” but the day prior to his arrest he took “2 Zyprexa's and the Valiums, 6 to 8 pills, plus all kind of others” prescribed to him. He recalled being prescribed “one Zyprexa and Valium, limit four per day.” He recalled taking “oxycodone and

ibuprofen . . . For hand pain.”

Id., Exh. “10” at 7 (emphasis and alterations in original). Dr. Christiansen found incongruity with Petitioner's “reporting details regarding his medications and some of his activities, [but] he also claimed ‘I don't remember nothing[,] I just remember people being everywhere” at the time of his arrest including a ‘big black person.'” Id., Exh. “10” at 8. Dr. Christiansen also noted that “[t]he defendant intimated having symptoms of severe psychosis upon arrival to the jail, ‘hearing voices all the time . . . Talking about raping Sofia; killing me and Sofia . . . I heard Sofia screaming in the background.'” Id. Dr. Christiansen also reviewed law enforcement records and noted that “[a] TPD incident report dated 11/30/2013 describes behavior from the defendant that seems to reflect malingering, being unresponsive but then showing normal vital signs and ‘after hearing he would not be transported' to the hospital the defendant ‘woke up and sat up on his own[;] [h]e then placed himself in the back seat of the patrol vehicle.” Third Amended Petition (Doc. 50), Exh. “10” at 9 (emphasis in original). Dr. Christiansen administered the SIRS-2 as a symptom validity test. Id. “The defendant was asked to report on symptoms he experienced in the period of time from about one week prior, up to the time of his arrest.” Id. Dr. Christiansen observed that “[w]hile [Petitioner] reported poor recall on direct questioning for this time, on this instrument the defendant made several comments suggesting intact recall such as having difficulty making every day [sic] decisions “yeah because my voices always kicked in . . . Tell me to do something different.” Id. (emphasis in original). Dr. Christiansen reported that Petitioner “scored in the definite range of malingering on 2 of 8 primary scales, and scored in the probable range on 4 other scales[,] . . . leading to a classification decision of feigning.” Id. (emphasis in original). Based upon the testing, his examination, and other evidence, Dr. Christiansen concluded that Petitioner was not afflicted with a mental disease of defect of such severity that he did not know the criminal act was wrong. Third Amended Petition (Doc. 50), Exh. “10” at 10.

Petitioner submits an evaluation of Petitioner by Bhushan S. Agharkar, M.D., D.F.A.P.A. to assert, inter alia, that Dr. Christiansen's use of the SIRS-2 effort test inappropriate due to Petitioner's “low intellectual functioning, head trauma, and/or active psychosis.” Third Amended Petition (Doc. 50), Agharkar Eval. (Exh. “17”) (Doc. 50-5) at 201. As discussed in Section III.D., supra, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). As such, the Court will not consider Dr. Agharkar's evaluation.²⁶ Also, as discussed in Section IV.A.2.b., supra, the Court finds Dr. Gorgueiro's GEI finding in the subsequent case not relevant to assessing Dr. Christiansen's findings in this case. Furthermore, to the extent that Dr. Gorgueiro's evaluation was not before the state court in the underlying case relevant to this habeas, it is precluded from review.

26 Aside from the proscription on considering information beyond the State court record, the Court notes that there are several deficiencies which make Dr. Agharkar's evaluation unhelpful. First, Dr. Agharkar's evaluation took place on September 19, 2021, well after the 2017 incident which Petitioner now asserts has so compromised his mental acuity that his continued incarceration violates the Eighth Amendment. See Third Amended Petition (Doc. 50) at 93-116 & Agharkar Eval. (Exh. “17”). Dr. Agharkar acknowledges the limitations this places on any current evaluation. See Third Amended Petition (Doc. 50), Exh. “17” at 202-204. Dr. Agharkar also acknowledges the limited value of retrospective examinations. Id., Exh. “17” at 200. Finally, one of Dr. Agharkar criticisms of Dr. Christiansen's findings was because he “only spent ninety minutes evaluating Mr. Richter”; however, this fails to account for the additional time Dr. Christiansen had previously spent examining Petitioner under Rule 11. See id., Exh. “17” at 201.

Petitioner also asserts that “Respondent inexplicably argues that despite a merits ruling on this claim by the Court of Appeals, the ‘last reasoned decision' was made by the PCR court.” Petr.'s Reply (Doc. 81) at 23 (citations omitted). Petitioner opines that “the Court of Appeals decision denying relief was the last reasoned decision on this claim.” Id. (citations omitted). “Although [the] AEDPA generally requires federal courts to review one state decision, if the last reasoned decision adopts or substantially incorporates the reasoning from a previous state court decision, we may consider both decisions to fully ascertain the reasoning of the last decision.” Edwards v. Lemarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (quotations and citations omitted). Because the Arizona Court of Appeals unequivocally adopts the Rule 32 court's decision, this Court will consider both decisions. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision at 33 (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2) (citing State v. Whipple, 866 P.2d 1358, 1360 (Ariz.Ct.App. 1993)).

“In general, an attorney is entitled to rely on the opinions of mental health experts in deciding whether to pursue an insanity or diminished capacity defense.” Williams v. Woodford, 384 F.3d 567, 611 (9th Cir. 2004) (citations omitted). The Ninth Circuit has “previously held that defense counsel reasonably declined to pursue a mental-state defense when two experts opined that the defendant was neither insane nor diminished in mental capacity, and a third could not reach a conclusion.” Id. (citations omitted). Furthermore, “the passage of time and the difficulties inherent in evaluating the defendant's competence from a written record reduce the likelihood of an accurate retrospective determination.” Id. at 610 (citing Pate v. Robinson, 383 U.S. 375, 387 (1966)).

Here, the PCR court properly delineated the Strickland test for assessing counsel's performance. Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling-In Chambers Ruling Re: Denial of PCR at 45 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The PCR court then provided a timeline of counsel's work regarding Defendant's competency. Id., Exh. “14” at 46-47. The Rule 32 court noted that upon Petitioner's restoration, defense counsel sought a GEI evaluation. Id., Exh. “14” at 45-47. The Rule 32 court reiterated Dr. Christiansen's professional opinion that “at the time of the commission of the criminal act, the defendant was not afflicted with a mental disease or defect of such severity that he did not know the criminal act was wrong.” Id., Exh. “14” at 46. This finding was accepted by the trial judge and Defendant was ruled ineligible for the GEI defense. Id. (citations omitted). The Rule 32 court concluded that Defendant had failed to meet his burden to show defense counsel fell below prevailing norms or had been otherwise ineffective. Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling-In Chambers Ruling Re: Denial of PCR at 47 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The appellate court agreed and further noted that “[a]lthough Richter contends he was prejudiced by counsel's failure to seek a neuropsychological evaluation after the court rejected a guilty-except-insane defense the first time, he has not presented any evidence that such an exam would have resulted in evidence different from that before the court in the first instance.” Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision at 34 (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2).

Despite Petitioner's exhortations, Dr. Christiansen did not conclude that Petitioner was not schizophrenic, or have other mental illnesses, rather Dr. Christiansen found that those illnesses did not keep Petitioner from appreciating the wrongfulness of his conduct. See Clark v. Arizona, 548 U.S. 735, 746 (2006) (alterations in original) (defendant's paranoid schizophrenia “did not . . . distort his perception of reality so severely that he did not know his actions were wrong.”) Furthermore, trial counsel retained Dr. Simpson to evaluate Petitioner, although this evaluation did not conclude that Petitioner did not know his actions were wrong. Petitioner assumes that this is a failing attributable to trial counsel. On habeas review, “[c]ounsel's competence, however, is presumed[.]” Kimmelman v. Morrison, 477 U.S. 365, 385 (1986) (citing Strickland, 466 U.S. at 689). “Under § 2254(d), a state prisoner ‘must show that the state court's ruling on the claim being presented in the 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.'” Walden v. Shinn, 990 F.3d 1183, 1195 (9th Cir. 2021) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). Petitioner has failed to make such a showing nor has he shown “‘that counsel made errors so serious that [he] was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). Accordingly, the Court finds that Petitioner has failed to meet his burden to show that the appellate court's findings were contrary to, or an unreasonable application of, clearly established Supreme Court precedent or resulted in a decision based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). As such, Petitioner's claim regarding ineffective assistance of trial counsel for an alleged failure to pursue a GEI defense is denied. ...

2. Ground C2: IAC Regarding Anders Brief

Petitioner alleges that “the Anders brief filed by [appellate counsel] contained numerous errors and omissions and failed to present the strongest arguments in favor of Mr. Richter.” Third Amended Petition (Doc. 50) at 77-78. Petitioner raised this claim in his PCR petition. See Answer (Doc. 55), Petr.'s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Petitioner also presented this claim to the Arizona Court of Appeals. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2). The Court has delineated the legal standards for assessing ineffective assistance of counsel claims in Section IV.A.1.a., supra. As discussed in Section IV.A.1.g., supra, the individual claims that Petitioner argues appellate counsel should have brought are procedurally defaulted and will not be reviewed on habeas. Arguably, the addition of those claims fundamentally altered Petitioner's claim of ineffective assistance of appellate counsel. See Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (“conclud[ing] that the new allegations and evidence Dickens presented to the federal court fundamentally altered Dickens's previously exhausted IAC claim.”); see also Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988) (citations omitted) (“In habeas proceedings, the federal courts are not free to entertain new evidence that places the claim in a significantly different posture, when that evidence was never presented to the state courts.”) As such, the entirety of Ground C would be procedurally exhausted. Because Petitioner exhausted this portion of the claim, however, the Court will consider it.

In his PCR petition, Petitioner asserted that appellate counsel did not adequately review the record prior to filing an Anders brief, depriving Petitioner of an adequate appeal. Answer (Doc. 55), Petr.'s Pet. for PCR at 17-19, 21-22, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). On July 31, 2018, the Rule 32 court issued its order denying Petitioner's Petition for PostConviction relief. See Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling-In Chambers Ruling Re: Denial of PCR (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The Rule 32 court properly outlined the Strickland standard. Id., Exh. “14” at 47. The court also stated the Anders requirements of appellate counsel, including filing “a brief referring to anything in the record that might arguably support the appeal.” Id., Exh. “14” at 48. The Rule 32 court observed that “appellate counsel's ‘Statement of the Relevant Facts' in his Anders brief spans 18 pages with specific citations to the transcripts of Defendant's 15-day trial.” Id. The Rule 32 court further observed that “appellate counsel found no arguable issues for appeal or questions of law[;] . . . asked the Court of Appeals to review the record for error, filing a motion for leave to allow Defendant to submit a supplemental brief in propria persona[;] Defendant then failed to do so[;] [and] [t]he Court of Appeals searched the record for fundamental, reversible error and found none, ultimately affirming Defendant's convictions.” Id. The Rule 32 court found “Defendant's conclusory claims [ ] inadequate as he fail[ed] to cite to any specific error(s) in either facts or law[,] . . . [and] [he] fail[ed] to show prejudice as the facts and law against Defendant were overwhelming[.]” Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling-In Chambers Ruling Re: Denial of PCR at 48 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The Rule 32 court concluded that “appellate counsel fulfilled his obligations to the Defendant under Anders.” Id. The Arizona Court of Appeals adopted the Rule 32 court's summary denial. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz.Ct.App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2).

Petitioner's claim that appellate counsel filed a deficient Anders brief is without merit. The record indicates that appellate counsel complied with the Arizona procedures delineated in State v. Clark, 2 P.3d 89, 96 (Ariz.Ct.App. 1999). See Section I.B. at n.5, supra (outlining Arizona's procedure for filing an Anders brief). “It is not enough ‘to show that [counsel's] errors had some conceivable effect on the outcome of the proceeding.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 693). Furthermore, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

Here, Petitioner has failed to show “‘that [appellate] counsel made errors so serious that [he] was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Id. at 104 (quoting Strickland, 466 U.S. at 689). Accordingly, the Court finds that Petitioner has failed to meet his burden to show that the appellate court's findings were contrary to, or an unreasonable application of, clearly established Supreme Court precedent or resulted in a decision based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). As such, Petitioner's claim regarding ineffective assistance of appellate counsel for an allegedly deficient Anders brief is denied.

3. Ground F: Denial of New Counsel

Petitioner alleges that he was deprived of his right to counsel when the trial court denied his motion for new counsel. Third Amended Petition (Doc. 50) at 86-89. Petitioner further urges that because he had an irreconcilable conflict with trial counsel, the state courts' determinations that he was not entitled to new counsel were an unreasonable application of Supreme Court precedent and “based on an unreasonable determination of the facts.” Id. at 88-89; see also Petr.'s Reply (Doc. 81) at 100-103.

a. Procedural default

This claim is procedurally defaulted. In his PCR Petition, Petitioner claims that his “right to counsel” was violated because “[d]espite two letters from Defendant[,] . . . the [c]ourt with no notice to Defendant, and no time for Mr. Skitzki to confer privately with Defendant, conducted an inadequate Torres mini-hearing.” See Answer (Doc. 55), Petr.'s Pet. for PCR at 22, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Petitioner further referenced “a complete breakdown in communications or an irreconcilable conflict[.]” Id. Petitioner does not reference the Sixth Amendment to the United States Constitution until his Reply. See Answer (Doc. 55), Def.'s Reply to Pet. for PCR at 28, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “FFF”) (Doc. 55-2). As such, this claim was not “fairly presented” to the State courts and is now procedurally defaulted. State v. Lopez, 221 P.3d 1052, 1054 (Ariz.Ct.App. 2009) (in a Rule 32 proceeding, issues raised for the first time in reply may be deemed waived); Baldwin v. Reese, 541 U.S. 27, 31-33 (2004) (state prisoner must alert the state court “to the presence of a federal claim” in his petition); Ariz. R. Crim. P. 32.2(a).

Petitioner has failed to otherwise demonstrate cause and prejudice to excuse the procedural default. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Accordingly, Petitioner's claim is procedurally defaulted and precluded from habeas review.

Additionally, the Rule 32 court's order regarding the trial court's denial of Defendant's motion for new counsel focuses on Arizona state law, and correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991). However, “federal courts on habeas corpus review of state prisoner claims, . . . will presume that there is no independent and adequate state ground for a state court decision when the decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” Coleman v. Thompson, 501 U.S. 722, 734-35 (emphasis added) (quotations and citation omitted). Furthermore, “when a state court issues an order that summarily rejects without discussion all the claims raised by a defendant, including a federal claim that the defendant subsequently presses in a federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289, 293 (2013). Because the Rule 32 court's order obliquely references the Sixth Amendment right to counsel, the Court will address the merits of this claim.

b. Merits analysis

“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const., amend. VI. “[A]n indigent defendant[, however,] does not have an unqualified right to the appointment of counsel of his own choosing.” Morris v. Slappy, 461 U.S. 1, 10 (1983) (quotations and citations omitted). “In evaluating a trial court's denial of a motion for new counsel, [a federal court] consider[s] a number of factors, including the timeliness of the motion, the adequacy of the court's inquiry into the defendant's complaint, and whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense.” Hudson v. Rushen, 686 F.2d 826, 829 (1982) (citations omitted). Relying on state law, the Rule 32 court outlined the factors for consideration when addressing a request to change counsel, to include 1) the existence of an irreconcilable conflict; 2) whether new counsel would be confronted by the same conflict; 3) timing of the motion; 4) inconvenience to witnesses; 5) amount of time elapsed since the alleged offense; 6) defendant's proclivity to change counsel; and 7) quality of counsel. Id., Exh. “14” at 42-43 (quoting State v. Moody, 968 P.2d 578, 580 (Ariz. 1998) (citations omitted)). The court further observed that “in most cases, the ‘quality of counsel' factor will not be a consideration when a defendant seeks a substitution of counsel.” Id., Exh. “14” at 43 (citing State v. Torres, 93 P.3d1056, 1060 (Ariz. 2004)). Because Arizona's Moody list of factors encompasses the non-exhaustive list in Hudson, the Court finds that the Rule 32 court delineated the proper standard.

The Rule 32 court noted that upon receipt of two ex parte letters requesting change of counsel, it held a Torres hearing at the earliest opportunity, which was eight (8) weeks before trial and twenty-one (21) months after indictment. Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling-In Chambers Ruling Re: Denial of PCR at 43 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The court reviewed the Torres hearing record, including Defendant's and counsel's respective positions. Id.; see also Section IV.A.1.b.ii., supra. The Rule 32 court also reviewed Defendant's claims to Bradley Johnson, M.D. regarding the number of meetings with counsel, found those statements to be inaccurate, and observed that prior to Defendant's letters to the court, “trial counsel visited with Defendant a minimum of 12 times, most for ‘unknown duration(s).'” Id., Exh.”14” at 44. The Rule 32 court concluded that Defendant had failed to meet his burden to show either a complete breakdown in communication or an irreconcilable conflict. Id., Exh. “14” at 43-44.

“Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the statecourt proceeding, § 2254(d)(2).” Miller-El v. Cockrell, 537 U.S. 322, 324 (2003). Review of the state court record confirms that “based on the record and on [Petitioner's] testimony during the motion, there is no evidence of a total lack of communication between [Petitioner] and his attorney resulting in a complete inability to present a defense.” Haines v. Roe, 90 Fed.Appx. 525, 528 (9th Cir. 2004). The Court finds that Petitioner has failed to meet his burden to show that the appellate court's findings were contrary to, or an unreasonable application of, clearly established Supreme Court precedent or resulted in a decision based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). As such, Petitioner's claim is denied.

C. Untimely Claims

The Court finds that Petitioner's Ground I is untimely and therefore unreviewable on habeas. In Ground I, Petitioner asserts that after a 2017 prison assault he is “unable to form a rational understanding of what he was convicted of and why he is in prison.” Third Amended Petition (Doc. 50) at 93. Petitioner further asserts that his continued incarceration under these circumstance violates the Eighth Amendment. Id. at 93-116.

“Federal Rules of Civil Procedure 15(c)(1)(B) and 10(c) apply in habeas proceedings. Ross v. Williams, 950 F.3d 1160, 1166 (9th Cir. 2020). Rule 15 provides, in relevant part: “An amendment to a pleading relates back to the date of the original pleading when[] . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading[.]” Fed.R.Civ.P. 15(c)(1)(B). Furthermore, as discussed in Section II., supra, the AEDPA mandates a one-year statute of limitations. 28 U.S.C. § 2244(d)(1).

Petitioner's habeas petition was required to be filed within one year 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); see also McQuiggin v. Perkins, 569 U.S. 383 (2013). On January 24, 2017, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences on direct review. See State v. Richter, No. 2 CA-CR 2016-0112, 2017 WL 491137 (Ariz.Ct.App. Jan. 24, 2017). Petitioner did not seek review the Arizona Supreme Court. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2016-0112, Mandate (Ariz.Ct.App. Apr. 12, 2017) (Exh. “BBB”) (Doc. 55-1). As such, Petitioner's judgment became final on became final on February 23, 2017, thirty (30) days after the appellate court entered its decision. See Ariz. R. Crim. P. 31.21(b)(2). Therefore, limitations period for AEDPA purposes began to run on February 24, 2017. On May 8, 2017, Petitioner filed his Notice of Post-Conviction Relief, thereby tolling the limitations period. See Answer (Doc. 55), Petr.'s Not. of PCR, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. May 8, 2017) (Exh. “CCC”) (Doc. 55-1). At this point seventy-three (73) days had elapsed. Petitioner's post-conviction proceedings continued until September 23, 2019, when the Arizona State Supreme Court denied review. Answer (Doc. 55), State v. Richter, No. CR-19-0157-PR, Memorandum (Ariz. Sept. 23, 2019) (Exh. “III”) (Doc. 55-2). Accordingly, the limitations period began to run on September 24, 2019. The one-year statute of limitations ended on July 14, 2020.

Petitioner's original habeas petition was timely filed on May 13, 2020. See Petition (Doc. 1). Petitioner's Third Amended Petition (Doc. 50) was filed on December 21, 2021. “[A]n amendment made after the statute of limitations has run ‘relates back to the date of the original pleading,' thereby avoiding AEDPA's time bar, when ‘the amendment asserts a claim . . . that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading.” Walden v. Shinn, 990 F.3d 1183, 1202 (9th Cir. 2021) (quoting Fed.R.Civ.P. 15(c)(1)(B)). “[R]elation back requires a single course or pattern of conduct-not factually and temporally unrelated conduct arising out of the same underlying proceeding.” Ross v. Williams, 950 F.3d 1160, 1171 (9th Cir. 2020) (en banc).

Here, Petitioner's Ground I relates to alleged cognitive and mental health decline following a 2017 prison assault. Third Amended Petition (Doc. 50) at 93-116. This claim is wholly unrelated to the alleged errors arising from the 2013 offenses, criminal trial, appeal, and post-conviction proceedings. “[T]he actors [are] different, the alleged error [is] different, and the time [the] claim[s] arose [is] different[.]” Walden, 990 F.3d at 1203 (citations omitted). “Thus, the ‘barrier to relation back' here ‘is the difference between [the claims'] respective factual predicates.'” Id. (alterations in original) (quoting Alfaro v. Johnson, 862 F.3d 1176, 1184 (9th Cir. 2017)).

The Supreme Court of the United States has held “that § 2244(d) is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). The Ninth Circuit Court of Appeals “will permit equitable tolling of AEDPA's limitations period only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (quotations and citations omitted). Moreover, Petitioner “bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Holland, 130 S.Ct. at 2562 (quoting Pace).

Counsel was appointed in this matter on May 21, 2020 and were co-counsel on the 2019 civil rights suit arising from the 2017 incident. See Richter v. Romero, et al., No. CV-19-05513-DGC (JZB), Docket (D. Ariz.). As such, counsel have been aware from the beginning about the underpinnings of this claim. Counsel asserts that Petitioner can prove entitlement to equitable tolling due to mental incapacity. Petr.'s Response (Doc. 81) at 115. Petitioner, however, has been represented by counsel and “the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error.” Coleman, 501 U.S. at 753 (internal quotations omitted). The record does not support a finding that Petitioner has been pursuing his rights diligently here. Furthermore, Petitioner has failed to meet the “very high threshold” of establishing that extraordinary circumstances beyond his control made it impossible for him to timely file a habeas petition and that those extraordinary circumstances were the cause of his untimeliness. United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004). As such, Petitioner is not entitled to equitable tolling and his habeas petition as to Ground I is untimely. The Court recommends that Ground I be denied because it is untimely.²⁷

27 Additionally, this claim was not “fairly presented” to the State courts and is now procedurally defaulted. Rose v. Lundy, 455 U.S. 509, 520 (1982) (exhaustion requirements “provide[] a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.”); Coleman, 501 U.S. 722, 735 n.1 (1991) (citations omitted) (“petitioner failed to exhaust state remedies 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.”); Ariz. R. Crim. P. 32.2(a). Petitioner has failed to otherwise demonstrate cause and prejudice to excuse his procedural defaults. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As an aside, it remains unclear that habeas review is the proper forum for the relief Petitioner seeks, rather it may be a proper issue for clemency proceedings.

D. Evidentiary Hearing

As outlined in Section III.D., supra, the grounds for an evidentiary hearing are narrow. “Either a claim must rely on (1) a ‘new' and ‘previously unavailable' ‘rule of constitution law' made retroactively applicable by th[e] [Supreme] Court, or (2) ‘a factual predicate that could not have been previously discovered through the exercise of due diligence.'” Shinn v. Ramirez, 596 U.S. 366, 382 (2022) (citing 28 U.S.C. §§ 2254(e)(2)(A)(i), (ii)). A review of the record and claims in this case demonstrates that Petitioner has not met his burden to show that he can satisfy either of these exceptions. Furthermore, even if he could show diligence, he has not provided “‘clear and convincing evidence,' that ‘no reasonable factfinder' would have convicted him of the crime charged.” Id. (citing 28 U.S.C. § 2254(e)(2)(B)). Accordingly, Petitioner's requests for an evidentiary hearing will be denied.

V. CONCLUSION

Based upon the foregoing, the Court finds that Petitioner Fernando Hernandez Richter's habeas claims are either procedurally defaulted, without merit, or untimely and recommends that his Third Amended Petition (Doc. 50) be denied. The Court additionally finds that an evidentiary hearing is unwarranted in this case.

VI. RECOMMENDATION

For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DENYING Petitioner's Third Amended Petition for a Writ of Habeas Corpus (Doc. 50).

Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-20-0205-TUC-CKJ. ...

Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.