Cardenas v. Shinn

• Court: District Court, D. Arizona
• Decided: March 26, 2024
• Docket: 4:21-cv-00431
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ronco Cardenas, No. CV-21-00431-TUC-RM

10 Petitioner, ORDER

11 v.

12 David Shinn, et al.,

13 Respondents. 14 15 Magistrate Judge Maria Aguilera issued a Report and Recommendation (“R&R”) 16 (Doc. 15), recommending that this Court dismiss Petitioner’s Petition for Writ of Habeas 17 Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Petitioner filed a timely Objection (Doc. 18 18), and Respondents filed a Response to the Objection (Doc. 20). Later, Petitioner filed 19 a Motion for Extension of Time to File Reply (Doc. 21) and a Reply to Respondents’ 20 Response (Doc. 22), and Respondents filed a Motion to Strike Petitioner’s Reply (Doc. 21 23). For the following reasons, the Court will grant the Motion for Extension of Time, 22 deny the Motion to Strike, overrule Petitioner’s Objection, accept the R&R, and deny the 23 § 2254 Petition. 24 I. Background 25 A grand jury charged Petitioner with burglary, attempted burglary, trafficking in 26 stolen property, and theft.1 (Doc. 10-1 at 3-4.) Petitioner proceeded to trial, and the jury 27

28 1 Petitioner was also charged with two drug offenses (Doc. 10-1 at 3), which were later dropped (Doc. 1-4 at 6). 1 found him guilty of the charges. (Id. at 18–19.) The state trial court sentenced Petitioner 2 to concurrent and consecutive terms of imprisonment totaling 27 years. (Id. at 23–25.) 3 On direct appeal, the Arizona Court of Appeals affirmed Petitioner’s convictions and 4 sentences. (Id. at 55-57.) Petitioner then sought post-conviction relief (“PCR”) on the 5 ground that he had been denied effective assistance of counsel.2 (Doc. 1-4 at 2–32.) The 6 trial court denied relief. (Id. at 34–44.) After granting review, the Arizona Court of 7 Appeals denied relief. (Id. at 70–74.) The Arizona Supreme Court denied review 8 without comment. (Doc. 1-5 at 18.) This action followed. 9 In his Petition for Writ of Habeas Corpus, Petitioner asserted five claims of 10 ineffective assistance of trial counsel in violation of his Fifth, Sixth, and Fourteenth 11 Amendment rights (Grounds (1) through (5)), and a claim of ineffective assistance of 12 appellate counsel (Ground (7)). (Doc. 1 at 8, 15, 21, 22, 24, 26.) Petitioner asserted due 13 process violations connected to his ineffective assistance of counsel claims in Grounds 14 (1) through (5). (Id. at 8, 15, 21, 22, 24.) Petitioner also asserted that the state trial 15 court’s imposition of consecutive sentences violates his Eighth Amendment rights and his 16 Fifth Amendment Double Jeopardy rights (Ground (6)). (Id. at 25.) 17 In their Answer to the Petition, Respondents asserted that the § 2254 Petition was 18 untimely under the one-year statute of limitation provided by the Antiterrorism and 19 Effective Death Penalty Act (“AEDPA”). (Doc. 10 at 5–7.) Respondents further asserted 20 that several of Petitioner’s claims were either partially or completely procedurally 21 defaulted and that the remaining, properly exhausted claims lacked merit. (Id. at 11–15, 22 21-26.) 23 The R&R disagreed with Respondents’ untimeliness argument and found that the 24 § 2254 Petition was timely with the benefit of statutory tolling. (Doc. 15 at 3-4.) The 25 R&R found that Petitioner’s due-process-related-ineffective assistance of counsel claims 26 in Grounds (1) through (5), his Ground (6) Eighth and Fifth Amendment claims, and his 27 Ground (7) ineffective assistance of appellate counsel claim were procedurally defaulted

28 2 The details of Petitioner’s state trial and PCR proceedings are set forth in the R&R (Doc. 15) and adopted herein. 1 without excuse. (Id. at 6–8.) The R&R then individually addressed the remaining, 2 properly exhausted ineffective assistance of counsel claims within Grounds (1) through 3 (5) and found that Petitioner failed to show that the state courts had unreasonably applied 4 federal law to the facts. (Id. at 8–13.) Based on these findings, the R&R recommended 5 that the § 2254 Petition be denied and dismissed with prejudice. (Id. at 13.) 6 II. Standard of Review 7 A district judge “may accept, reject, or modify, in whole or in part, the findings or 8 recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district 9 judge must “make a de novo determination of those portions” of the magistrate judge’s 10 “report or specified proposed findings or recommendations to which objection is made.” 11 Id. “When no timely objection is filed, the court need only satisfy itself that there is no 12 clear error on the face of the record in order to accept the recommendation” of a 13 magistrate judge. Fed. R. Civ. P. 72(b), advisory committee’s note to 1983 addition. See 14 also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or 15 only partial objection is made, the district court judge reviews those unobjected portions 16 for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. 17 Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and 18 Recommendation). 19 III. Discussion 20 A. Timeliness 21 The § 2254 Petition appears to be untimely under the Ninth Circuit’s decision in 22 Melville v. Shinn, 68 F.4th 1154, 1160–61 (9th Cir. 2023).3 23 i. Legal Standard 24 As applicable here, AEDPA requires that a state prisoner file for federal habeas 25 relief within one year of “the date on which the judgment became final by the conclusion 26 of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 27 3 Although issued after the R&R, Melville “cannot be classified as a ‘new rule’” because 28 it “merely interprets the meaning of ‘pending’ under 28 U.S.C. § 2244(d)(2).” Nolte v. Shinn, No. CV-22-01072-PHX-MTL, 2023 WL 8002847, at *4 (D. Ariz. Nov. 17, 2023). 1 2244(d)(1)(A). The limitation period is statutorily tolled during the time in “which a 2 properly filed application for State post-conviction or other collateral review with respect 3 to the pertinent judgment or claim is pending.” Id. § 2244(d)(2). As the Ninth Circuit 4 clarified in Melville, a state PCR application is no longer “pending” when “no other state 5 avenues for relief remain open.” 68 F.4th at 1160–61 (quoting Lawrence v. Florida, 549 6 U.S. 327, 332 (2007)). 7 ii. Analysis 8 Here, the Arizona Court of Appeals denied relief of Petitioner’s direct appeal on 9 May 7, 2018. (Doc. 10-1 at 55.) Under Rule 31.21(b)(2)(A) of the Arizona Rules of 10 Criminal Procedure, Petitioner had 30 days—until June 6, 2018—to file a petition for 11 review in the Arizona Supreme Court. Because Petitioner did not do so, his convictions 12 became final on June 7, 2018. The statute of limitations began to run the following day, 13 on June 8, 2018. See Melville, 68 F.4th at 1159. 14 Statutory tolling began on July 5, 2018, the date Petitioner filed his PCR notice. 15 (Doc. 10-1 at 65-66.) At that point, the statute of limitations had run for 27 days. On 16 October 23, 2020, the Arizona Supreme Court denied Petitioner’s request for review. 17 (Doc. 1-5 at 18.) The statute of limitations resumed the next day, on October 24, 2020, 18 and ran until its expiration 338 days later, on September 27, 2021.4 19 The § 2254 Petition is untimely because Petitioner did not present it to prison 20 officials for mailing until October 20, 2021, after the statute of limitations had expired. 21 (Doc. 1 at 48.) The R&R found that “[t]olling stopped on March 8, 2021, when the 22 Arizona Court of Appeals issued its mandate.” (Doc. 15 at 4.) Consequently, the R&R 23 found that Petitioner had until February 7, 2022, to file his federal petition. (Id. at 4.) 24 However, this finding is contrary to Melville. Tolling stopped on October 23, 2020, when 25 the Arizona Supreme Court denied review of the petition. See Melville, 68 F.4th at 1156

26 4 It is unclear how Respondents determined that the Arizona Court of Appeals issued its memorandum decision on May 5, 2018 (Doc. 10 at 6), instead of May 7, 2018 (Doc. 10-1 27 at 55), and that Petitioner presented his petition for mailing on October 10, 2021 (Doc. 10 at 6), instead of October 20, 2021 (Doc. 1 at 48). With the exception of these seemingly 28 erroneous determinations, this Court agrees with Respondents’ statutory tolling analysis in their Answer to Petition for Writ of Habeas Corpus. (Doc. 10 at 5-6.) 1 (specifying that the petitioner’s PCR application “ceased to be pending when the time for 2 him to seek further relief in the state courts expired, which was not precisely when the 3 Arizona Court of Appeals issued its mandate”). Accordingly, the Court rejects the 4 R&R’s finding that the § 2254 was timely. 5 The Court must then consider whether Petitioner is entitled to equitable tolling. In 6 limited circumstances, AEDPA’s statute of limitations may be equitably tolled. Holland 7 v. Florida, 560 U.S. 631, 645 (2010); Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006). 8 To be entitled to equitable tolling, Petitioner must show that (1) “he has been pursuing is 9 rights diligently” and (2) that “some extraordinary circumstance stood in his way and 10 prevented timely filing.” Holland, 560 U.S. at 649 (internal quotation marks omitted). 11 Petitioner’s excuse for delay—that he obtained legal counsel who required time to 12 become familiar with the case—does not appear to be an extraordinary circumstance 13 warranting equitable tolling. (Doc. 13 at 4-6); see Frye v. Hickman, 273 F.3d 1144, 1146 14 (9th Cir. 2001) (counsel’s miscalculation of limitations period and general negligence in 15 failing to timely file petition “do not constitute extraordinary circumstances sufficient to 16 warrant equitable tolling”). However, the Court need not decide whether the § 2254 17 Petition may be saved by equitable tolling because the Court agrees with the R&R’s 18 findings that Petitioner’s claims are either procedurally barred or lack merit. 19 B. Procedural Default 20 Petitioner objects to the R&R’s finding that several of his claims are procedurally 21 defaulted. (Doc. 18 at 3-5.) The Court disagrees with Petitioner and accepts the R&R’s 22 finding. 23 i. Legal Standard 24 A § 2254 petition subject to AEDPA cannot be granted unless it appears that (1) 25 the petitioner has exhausted all available state-court remedies, (2) there is an absence of 26 available state corrective process, or (3) state corrective process is ineffective to protect 27 the rights of the petitioner. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 28 U.S. 722, 731 (1991). In cases not carrying a life sentence or the death penalty, “claims 1 of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona 2 Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 3 1999) (per curiam). To properly exhaust state-court remedies, the petitioner must “fairly 4 present” his claims to the state courts in a procedurally appropriate manner. O’Sullivan v. 5 Boerckel, 526 U.S. 838, 848 (1999). 6 A claim is considered procedurally defaulted and thus precluded from federal 7 review if the claim was not presented in state court and no state remedies are currently 8 available because the court to which the petitioner would be required to present the claim 9 in order to meet the exhaustion requirement would find the claims procedurally barred 10 under state law. See Coleman, 501 U.S. at 729-32, 735 n.1. Because the doctrine of 11 procedural default is based on comity rather than jurisdiction, federal courts retain the 12 power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 13 9 (1984). However, courts will do so only if the petitioner demonstrates cause and 14 prejudice, or a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. To 15 demonstrate cause, a petitioner must show that “some objective factor external to the 16 defense impeded [his] efforts to comply with the State’s procedural rule.” Murray v. 17 Carrier, 477 U.S. 478, 488 (1986). 18 ii. Analysis 19 The R&R found that Grounds (1) through (5) “are unexhausted to the extent they 20 allege a violation of due process” because Petitioner’s state-court briefing “did not 21 mention due process or the Fifth or Fourteenth Amendments”; rather, it referenced the 22 Sixth Amendment and raised claims of denial of counsel and ineffective assistance of 23 counsel. (Doc. 15 at 6-7.) Similarly, the R&R found that Ground (6) is “unexhausted 24 because Petitioner’s state-court briefing does not mention the Fifth Amendment’s Double 25 Jeopardy Clause or the Eighth Amendment’s prohibition of cruel and unusual 26 punishment.” (Id. at 7.) Finally, the R&R determined Ground (7) is procedurally 27 defaulted, and that the exception Petitioner urged under Martinez v. Ryan, 566 U.S. 1 28 (2012) does not apply to claims of ineffective assistance of appellate counsel to excuse 1 the default. (Id. at 7-8 (citing Davila v. Davis, 582 U.S. 521, 525 (2017).).) The R&R 2 concludes that federal habeas review of these claims is barred because each claim is 3 procedurally defaulted without excuse.5 (Id. at 6-8.) 4 Petitioner challenges the R&R’s procedural default findings. (Doc. 18 at 3-5.) 5 Petitioner argues that his due process claims in Grounds (1) through (5) and his Ground 6 (6) claims are exhausted because they are “part and parcel” of his ineffective assistance 7 claims “despite variations in the legal theory if the ultimate question for disposition is the 8 same.” (Id. at 3.) As to Ground (7), Petitioner appears to argue, contrary to the 9 admission in his habeas Petition, that the claim is exhausted because he raised it in his 10 state post-conviction relief (“PCR”) proceeding. (Id. at 5.) 11 In their Response to Petitioner’s Objection, Respondents counter that an 12 ineffective assistance of counsel claim is “inadequate to exhaust the underlying 13 substantive issue,” which they state, “must contain its own operational facts and federal 14 legal theory.” (Doc. 20 at 3 (citing Rose v. Palmateer, 395 F.3d 1108, 1111–12 (9th Cir. 15 2005).).) Concerning Ground (7), Respondents assert that Petitioner failed to raise this 16 ineffective assistance of appellate counsel claim in his PCR petition or in his petition for 17 review to the Arizona Court of Appeals. (Doc. 20 at 4.) Therefore, Respondents argue 18 that the R&R’s recommendations regarding procedural default should not be disturbed. 19 (Id. at 3.) 20 “In addition to requiring specificity in pleading the federal nature of a claim,” the 21 Ninth Circuit requires “a petitioner to articulate the substance of an alleged violation with 22 some particularity.” Rose 395 F.3d at 1111. In Rose, the petitioner asserted that his 23 confession and videotaped reenactment of the crime were induced in violation of the 24 Fifth Amendment. Id. at 1110. He contended that although he did not assert the 25 substantive Fifth Amendment claim in his direct appeal or state PCR petition, “he 26 5 The R&R explains that state rules bar Petitioner from raising these claims in a new post- 27 conviction petition because he could have raised them in his first petition, and the deadline for bringing his claims has passed. (Doc. 15 at 7 (citing Ariz. R. Crim. P. 28 32.2(a)(3), 32.4(b)(3)(A).).) Consequently, the R&R finds these claims are procedurally defaulted because Petitioner cannot return to state court to exhaust them. (Doc. 15 at 7.) 1 ‘indirectly’ exhausted this claim” by alleging ineffective assistance of counsel for failure 2 to properly litigate the inadmissibility of his confession and re-enactment. Id. at 1110– 3 11. The Ninth Circuit rejected the argument, finding that “although Rose’s Fifth 4 Amendment claim is related to his claim of ineffective assistance, he did not fairly 5 present the Fifth Amendment claim to the state courts when he merely discussed it as one 6 of several issues which were handled ineffectively by his trial and appellate counsel.” Id. 7 The Court reasoned that “[w]hile admittedly related, they are distinct claims with 8 separate elements of proof, and each claim should have been separately and specifically 9 presented to the state courts.” Id. at 1112; see also Kimmelman v. Morrison, 477 U.S. 10 365, 374 & n.1 (1986) (concluding that Petitioner’s Fourth Amendment suppression 11 claim and Sixth Amendment ineffective assistance claim based on the failure to 12 competently litigate the Fourth Amendment issue “are nonetheless distinct, both in nature 13 and in the requisite elements of proof”). 14 Similarly, here, Petitioner did not fairly present to the state court Grounds (1) 15 through (5), to the extent they allege a due process violation, or Ground (6), which 16 alleges violations of the Fifth Amendment’s Double Jeopardy Clause and the Eighth 17 Amendment’s prohibition of cruel and unusual punishment. “While admittedly related,” 18 Petitioner’s ineffective assistance of counsel claims and the newly presented claims in 19 Grounds (1) through (6) “are distinct claims with separate elements of proof, and each 20 claim should have been separately and specifically presented to the state courts.” Rose 21 395 F.3d at 1112. Because Petitioner did not do so, and state procedural rules would bar 22 him from raising the claims now, these claims are procedurally defaulted. 23 The Court further finds that Ground (7) is procedurally defaulted. Petitioner 24 acknowledged that he was raising this claim of ineffective assistance of appellate counsel 25 “for the first time in this court.” (Doc. 1 at 26.) Upon reviewing the record, the Court 26 concurs that Petitioner did not previously raise this claim. (See Doc. 1-4 at 2-32, 46-68.) 27 Petitioner argued that default should be excused under the exception enunciated in 28 Martinez v. Ryan, 566 U.S. 1, 14 (2012). However, as the R&R found, the Supreme 1 Court has limited the Martinez exception to claims of ineffective assistance of trial 2 counsel. Davila, 582 U.S. at 525. 3 Accordingly, the Court accepts the R&R’s findings that Petitioner’s due-process- 4 related-ineffective assistance of counsel claims in Grounds (1) through (5), his Ground 5 (6) Eighth and Fifth Amendment claims, and his Ground (7) ineffective assistance of 6 appellate counsel claims are procedurally defaulted without excuse. Petitioner’s 7 objections are overruled. 8 C. Merits of Petitioner’s Claims 9 Petitioner objects to the R&R’s finding that his remaining denial of counsel and 10 ineffective assistance of counsel claims are without merit. (Doc. 18 at 5-11.) The Court 11 disagrees with Petitioner and accepts the R&R’s conclusions. 12 i. Legal Standard 13 a. Denial of Counsel 14 “The Sixth Amendment secures to a defendant who faces incarceration the right to 15 counsel at all ‘critical stages’ of the criminal process.” Iowa v. Tovar, 541 U.S. 77, 87 16 (2004) (citations omitted). This right is violated, and prejudice is presumed, when (1) 17 there is a “complete denial of counsel,” (2) “counsel entirely fails to subject the 18 prosecution’s case to meaningful adversarial testing,” or (3) “counsel is called upon to 19 render assistance under circumstances where competent counsel very likely could not.” 20 Bell v. Cone, 535 U.S. 685, 695–96 (2002) (quoting United States v. Cronic, 466 U.S. 21 648, 659–62 (1984)). 22 b. Ineffective Assistance of Counsel 23 To establish a claim of ineffective assistance of counsel, Petitioner must show 24 both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 25 (1984). To show deficient performance, Petitioner must show that “counsel’s 26 representation fell below an objective standard of reasonableness.” Id. at 688. To 27 establish prejudice, Petitioner “must show that there is a reasonable probability that, but 28 for counsel’s unprofessional errors, the result of the proceeding would have been 1 different. A reasonable probability is a probability sufficient to undermine confidence in 2 the outcome.” Id. at 694. 3 Moreover, to obtain relief under AEDPA on ineffective assistance of counsel 4 claims, a petitioner must show either that the Arizona Court of Appeals’ decision 5 rejecting the claims “was contrary to, or involved an unreasonable application” of the 6 Strickland standard, or that the decision “was based on an unreasonable determination of 7 the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 8 2254(d). “The standards created by Strickland and § 2254(d) are both ‘highly 9 deferential,’ . . . and when the two apply in tandem, review is ‘doubly’ so[.]” Harrington 10 v. Richter, 562 U.S. 86 (2011). 11 ii. Analysis 12 Grounds (1)(a) and (b): In Ground (1)(a), Petitioner alleges that he was denied 13 counsel during a critical stage of his prosecution—a Donald hearing6—because the trial 14 court granted his attorney’s motion to withdraw at the beginning of the hearing but 15 allowed her to represent him during the hearing. (Doc. 1 at 8–15, 37–41.) In Ground 16 (1)(b), Petitioner claims counsel was ineffective leading up to and at the Donald hearing. 17 (Id.) 18 The R&R found the denial of counsel claim was without merit because it did not 19 fit within any of the recognized denial-of-counsel scenarios outlined in the law. (Doc. 15 20 at 8.) The R&R then analyzed each way Petitioner alleged counsel performed deficiently 21 during and leading up to the hearing. (Id. at 10-11.) It found that the state court could 22 reasonably find that Petitioner had not overcome the presumption that counsel’s conduct 23 was reasonable. (Doc. 15 at 10–11.) In his Objection, Petitioner concedes that the law 24 concerning denial of counsel does not squarely fit the unique circumstances here. (Doc. 25 18 at 6-7.) Petitioner contends his denial-of-counsel claim “is also very severely 26 impacted by ineffective assistance of counsel.” (Id. at 6.) Petitioner claims that counsel

27 6 The purpose of a Donald hearing is to ensure, on the record, that the defendant understands the outstanding plea offer and is knowingly and voluntarily rejecting it. 28 State v. Mendoza, 455 P.3d 705, 715 (Ariz. Ct. App. 2019) (quoting Missouri v. Frye, 566 U.S. 134, 146 (2012)). 1 “clearly should have deferred” participating in the hearing until new counsel was present, 2 and he lodges other criticisms about the deadline for the State’s second plea offer. (Id.) 3 The Court concurs with the R&R’s finding that Petitioner’s denial of counsel 4 claim does not fit within the scenarios outlined in the law because Petitioner’s counsel 5 was present during the hearing. Furthermore, as the Arizona Court of Appeals found, 6 “the record shows [Petitioner] understood the plea offer and the risks of going to trial” 7 and that he “was informed no other plea offer was available, and he avowed to the court 8 he had read the plea, understood it, and that counsel had answered his questions about it.” 9 (Doc. 1-4 at 72-73.) Finally, the timing of the state’s plea offer was not controlled by 10 defense counsel or the state trial court. Petitioner’s objections regarding Grounds (1)(a) 11 and (b) are overruled. 12 Ground (2): Petitioner contends that trial counsel was ineffective in failing to 13 object to the introduction of recorded phone calls Petitioner made to his co-defendant 14 from jail. (Doc. 1 at 15.) The state PCR court concluded the calls constituted relevant 15 evidence and found “good reason” to believe that it would have overruled counsel’s 16 objections to the recordings, in part because the calls “arguably show Petitioner was 17 trying to manipulate [his co-defendant] into taking the fall for him.” (Doc. 1-4 at 42.) 18 The Arizona Court of Appeals concluded that Petitioner failed to overcome the 19 presumption that counsel acted reasonably. (Doc. 1-4 at 73-74.) The R&R finds that the 20 state court could reasonably conclude that Petitioner failed to demonstrate deficient 21 performance. (Doc. 15 at 11.) 22 In his Objection, Petitioner does not dispute that his attempts to influence his co- 23 defendant were both relevant and admissible. (Doc. 18 at 9.) Instead, he argues that by 24 failing to object to other portions of the calls, counsel allowed “irrelevant, highly 25 prejudicial material” to be introduced at trial. (Doc. 18 at 9.) This argument is not 26 persuasive for two reasons. First, as the PCR court found, “the portions of the recordings 27 that Petitioner claims were ‘unfairly prejudicial’ were relatively innocuous.” (Doc. 1-4 at 28 42.) Additionally, Petitioner has not shown that there is a reasonable probability that the 1 jury would have reached a different verdict if those portions of the calls had been 2 excluded. (See id.) 3 Ground (3): Petitioner claims that trial counsel was ineffective for failing to 4 challenge the victim’s testimony that he owned a ring that in fact belonged to Petitioner. 5 (Doc. 1 at 21-22.) The Arizona Court of Appeals concluded Petitioner had not overcome 6 the presumption that counsel acted reasonably. (Doc. 1-4 at 73-74.) The R&R finds that 7 counsel could have chosen not to challenge ownership of the ring for several reasons, 8 including that counsel may have believed that disputing a single item would not help 9 Petitioner’s case considering that the victim asserted ownership over numerous items 10 found in Petitioner’s possession. (Doc. 15 at 11-12.) Petitioner’s Objection merely 11 restates that that there was evidence the ring belonged Petitioner. (Doc. 18 at 10.) This 12 argument, however, does not overcome the presumption that counsel’s decision not to 13 challenge ownership of the ring had a reasonable tactical basis. 14 Ground (4): Petitioner asserts that trial counsel was ineffective for failing to move 15 to suppress the victim’s identification of him at a “one-person show-up.” (Doc. 1 at 22- 16 23.) The Arizona Court of Appeals rejected this claim in part because Petitioner did not 17 “contest the trial court’s conclusion that his identity was not an issue at trial.” (Doc. 1-4 18 at 73-74.) As the R&R found, Petitioner still does not allege in his § 2254 Petition that 19 his identity was an issue at trial. (Doc. 15 at 12.) Nor does he do so in his Objection to 20 the R&R. (Doc. 18 at 10.) Petitioner’s argument that “a challenge may have proven the 21 deceitful victim to have further issues with his testimony” is unavailing. (Id.) 22 Ground (5): Petitioner argues that the new sentencing counsel he requested was 23 ineffective in failing to submit a sentencing memorandum to present alleged mitigating 24 information and failing to meet with him privately before the sentencing hearing. (Doc. 1 25 at 24.) The Arizona Court of Appeals concluded that Petitioner had not overcome the 26 presumption that counsel acted reasonably. (Doc. 1-4 at 73-74.) The R&R found this 27 conclusion reasonable. (Doc. 15 at 13.) The R&R specifically noted that counsel 28 advocated for Petitioner at sentencing by emphasizing the nonviolent nature of 1 Petitioner’s criminal history, Petitioner’s previously untreated mental health conditions 2 and struggles with drug addiction, the disparity in sentencing between Petitioner and his 3 co-defendant, and by objecting to the 35-year recommendation and the court’s imposition 4 of consecutive sentences. (Id.) Petitioner’s generalized objection asserting that the R&R 5 overlooked counsel’s clear failures (Doc. 18 at 10) does not show how counsel acted 6 unreasonably. 7 iii. Conclusion 8 Petitioner has not met the Strickland standard, much less shown that the Arizona 9 Court of Appeals’ rejection of his denial of counsel and ineffective assistance of counsel 10 claims was unreasonable under 28 U.S.C. § 2254(d). The Court will overrule Petitioner’s 11 objections to the R&R’s finding that these claims fail on the merits. 12 D. Motion for Extension of Time and Motion to Strike 13 Judge Aguilera’s R&R specifies that “[t]he parties may not file replies” to R&R 14 objections “absent permission from the district court.” (Doc. 15 at 14.) The Court will 15 construe Petitioner’s Motion for Extension of Time to File Reply (Doc. 21) as a request 16 for permission from the district court to file a reply. Accordingly, the Court will grant 17 Petitioner’s Motion for Extension (Doc. 21) and deny Respondents’ Motion to Strike 18 (Doc. 23). See Davis v. Silva, 511 F.3d 1005, 1009 n.4 (9th Cir. 2008) (pro se pleadings 19 are generally to be held “to a less stringent standard than briefs by counsel” and to be 20 read “generously, however in artfully pleaded”) (internal quotation marks omitted). 21 E. Certificate of Appealability 22 Petitioner asks this Court to issue a certificate of appealability. (Doc. 19.) A 23 certificate of appealability must issue before Petitioner can appeal this Court’s judgment. 24 See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1). A certificate may issue “only if the 25 applicant has made a substantial showing of the denial of a constitutional right.” 28 26 U.S.C. §2253(c)(2). A substantial showing is made if “reasonable jurists could debate 27 whether . . . the petition should have been resolved in a different manner,” or that “the 28 issues presented were adequate to deserve encouragement to proceed further.” See Slack 1] v. McDaniel, 529 U.S. 473, 484-85 (2000) (internal quotation marks omitted). Upon || review of the record in light of the standards for granting a certificate of appealability, the || Court concludes that a certificate shall not issue as the resolution of the § 2254 Petition is not debatable among reasonable jurists and the issues presented are not adequate to 5 || deserve encouragement to proceed further. 6 IT IS ORDERED: 7 (1) Petitioner’s Motion for Extension to File Reply (Doc. 21) is granted. 8 (2) Respondents’ Motion to Strike Reply (Doc. 23) is denied. 9 (3) Petitioner’s Objection (Doc. 18) is overruled. 10 (4) The Report and Recommendation (Doc. 15) is accepted as set forth above. 11 (5) The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is 12 denied. The Clerk of Court is directed to enter judgment accordingly and close 13 this case. 14 (6) Petitioner’s Motion for Certificate of Appealability (Doc. 19) is denied. Pursuant 15 to Rule 11 of the Rules Governing Section 2254 Cases, the Court declines to issue 16 a certificate of appealability, because reasonable jurists would not find the Court’s 17 ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 478, 484 (2000). 18 Dated this 25th day of March, 2024. 19 20 21 — 4h’ □ Honorable Rostehary Mafquez 23 United States District □□□□□ 24 25 26 27 28

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