Cordova v. Shinn

• Court: District Court, D. Arizona
• Decided: June 16, 2021
• Docket: 4:20-cv-00163
• Status: Unknown

Opinion

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Matthew Alejano Cordova, No. CV-20-00163-TUC-SHR (DTF) 10 Petitioner, REPORT AND RECOMMENDATION 11 v. 12 David Shinn, et al., 13 Respondents. 14 15 Petitioner Matthew Alejano Cordova (Cordova or Petitioner) presently incarcerated 16 in Arizona State Prison Complex-Eyman Unit in Florence, Arizona, filed an Amended

17 Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. (Doc. 6.) Before the 18 Court are the Amended Petition, Respondents’ Answer to Petitioner for Writ of Habeas

19 Corpus, and Petitioner’s Reply to State’s Response for Petition for Writ of Habeas Corpus.

20 (Docs. 6, 23, 24.) This matter was referred to the undersigned United States Magistrate 21 Judge for a Report and Recommendation. (Doc. 11 at 6.) 22 As more fully set forth below, this Court recommends that the Amended Petition be

23 denied and dismissed.

24 BACKGROUND

25 State Trial Court Proceedings

26 Petitioner was charged with armed robbery, aggravated robbery, and kidnapping.1 27 1 Petitioner was also charged with possession of a deadly weapon by a prohibited possessor. 28 (Doc. 23-1 at 4.) This charge was later severed from the other charges and then dismissed without prejudice. State v. Cordova, No. CA-CR 2014-0231, 2015 WL 1394696, at n.2 Case 4:20-cv-00163-SHR Document 29 Filed 06/16/21 Page 2 of 36

1 (Doc. 23-1 at 3.) After a jury trial, Petitioner was convicted as charged and thereafter 2 sentenced to concurrent sentences, the longest of which is 15.75 years’ imprisonment. Id. 3 at 9, 15-16. The Arizona Court of Appeals described the facts underlying Petitioner’s 4 convictions as follows: 5 At around 8:00 on an evening in November 2013, J.A. was selling alarm systems door-to-door in a residential area near 6 First Avenue and Fort Lowell Road, in Tucson. Vanessa Rodriguez, Cordova’s girlfriend and codefendant, waved to 7 J.A. and asked him to help her nephew who had been hurt. J.A. followed Rodriguez around a corner, heard sounds that he 8 described as “[a] bullet chambered into a firearm,” turned around, and saw two men, each pointing a gun at him. Both 9 men yelled at him, demanding that he give them his wallet and phone. One of the men dragged J.A. by the shoulders to a dark 10 area, “threw [him] down,” and started “patting [him] down.” The other man said “cap him” while J.A. was on the ground, 11 which J.A. understood to mean “kill him.” J.A. removed a gun from his waistband and fired three or four shots towards the 12 man who was on top of him. J.A. then stood up and fired two more shots toward the second man before running away. 13 Cordova arrived at University Medical Center (UMC) with 14 Rodriguez approximately fifteen minutes after the first 9-1-1 call came in reporting shots had been fired near where J.A. had 15 been robbed. Cordova, who had been shot in the back, had with him a black hooded sweatshirt containing “a hole with some 16 blood around it.” His other clothing was “very highly saturated with blood.” 17 18 State v. Cordova, No. CA-CR 2014-0231, 2015 WL 1394696, at ¶¶ 2-3 (Ariz. App. Mar. 19 26, 2015) (footnote omitted). The facts as recited by the court of appeals are entitled to a 20 presumption of correctness. See § 2254(e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 21 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in Arizona Supreme Court 22 opinion should not be afforded presumption of correctness).2 23 24 25 26 (Ariz. App. Mar. 26, 2015). 27 2 Petitioner disagrees with some of the facts recited by the Arizona Court of Appeals. (Doc. 24 at 8.) To reject the state court’s recitation of facts, Petitioner must show the facts are 28 unreasonable. See Wood v. Allen, 558 U.S. 290, 301 (2010). Petitioner has not done so; thus, this Court accepts the state court’s recitation and affords it the appropriate deference.

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1 Proceedings in the Arizona Court of Appeals 2 On June 20, 2014, Petitioner filed a notice of appeal. (Doc. 23-1 at 20.) Petitioner 3 represented himself after the trial court found he was competent to do so. Id. at 33, 35. 4 Petitioner’s opening brief raised six issues: 5 (1) Whether the trial court abused its discretion in denying Cordova’s motion to dismiss 6 based on lack of probable cause to arrest Cordova; 7 (2) Whether the trial court abused its discretion in denying Cordova’s motion to dismiss 8 based on illegal search and seizure of the Ford Crown Victoria found near the scene 9 of the robbery; 10 (3) Whether the trial court abused its discretion in denying Cordova’s motion to dismiss 11 based on perjured testimony presented to the grand jury and failing to require the 12 grand jury to make a new probable-cause determination; 13 (4) Whether the trial court abused its discretion by admitting Rodriguez’s statements; 14 (5) Whether the trial court abused its discretion in denying Cordova’s motions to sever 15 his trial from Rodriguez’s trial; and 16 (6) Whether the trial court erred by denying Cordova’s motion for judgment of acquittal 17 because there was insufficient evidence sustaining the verdict. 18 (Doc. 6 at 14.) The Arizona Court of Appeals affirmed Petitioner’s convictions and 19 sentences. Cordova, 2015 WL 1394696, at ¶ 43. 20 Proceedings in the Arizona Supreme Court 21 Petitioner filed a petition for review before the Arizona Supreme Court. (Doc. 6-1 22 at 6, 8.) On December 1, 2015, the Arizona Supreme Court denied the petition without 23 explanation. Id. at 6. 24 State Court Post-Conviction Relief Proceedings 25 Petitioner timely filed a notice for post-conviction relief (PCR). (Doc. 23-1 at 38.) 26 The post-conviction court appointed counsel. Id. Petitioner’s attorney filed a notice that he 27 found no colorable claims to raise. Id. at 41-42. The court permitted Petitioner to file a pro 28 se PCR petition. Id. at 45. Petitioner alleged ineffective assistant of trial counsel because

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1 she: 2 (1) Failed to present evidence of third-party culpability; 3 (2) Failed to call an expert witness to testify that Cordova could not have been shot by 4 the victim’s gun; 5 (3) Failed to object to the in-court identification of Rodriguez or moving for a mistrial 6 after the identification; and 7 (4) Failed to advise Cordova of his right to testify or advising him to not testify. 8 (Doc. 6-1 at 33-34.) Petitioner also asserted that he was charged because of malicious and 9 selective prosecution. Id. at 34. On June 5, 2018, the post-conviction court denied 10 Petitioner’s PCR petition, determining Petitioner had failed to state a colorable claim for 11 relief. Id. at 72. 12 Petitioner filed a pro se petition for review in the Arizona Court of Appeals, 13 renewing his claims of ineffective assistance of counsel. Id. at 73. On October 3, 2018, the 14 Arizona Court of Appeals granted relief but denied review. State v. Cordova, No. 2 CA-CR 15 2018-0178-PR, 2018 WL 4781486, at ¶ 7 (Ariz. App. Oct. 3, 2018). Petitioner sought 16 review in the Arizona Supreme Court, which denied relief on April 22, 2019. (Doc. 23-1 17 at 60.) On July 23, 2019, the Arizona Court of Appeals issued its mandate. Id. at 62. 18 Federal Habeas Corpus Proceeding 19 On April 15, 2020, Petitioner filed a Petition for Writ of Habeas Corpus Pursuant to 20 28 U.S.C. § 2254. (Doc. 1.) The district court dismissed the petition with leave to file an 21 amended petition within 30 days. (Doc. 5 at 2-3.) On May 20, 2020, Petitioner filed the 22 amended petition for writ of habeas corpus. (Doc. 6.) 23 The grounds for relief alleged in the Amended Petition are as follows: 24 “Ground One: Petitioner’s Fourteenth Amendment right to due process is currently 25 being violated by a conviction that lacks sufficient evidence to sustain it.” (Doc. 6-1 at 26 105.) Petitioner explains he did not match the victim’s description of the assailants and the 27 lack of blood evidence at the scene of the crime was inconsistent with his clothes being 28 saturated with blood. Id. at 105-106. He also highlights testimony about another gunshot

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1 victim and report, arguing that this indicated there were two separate shootings on the night 2 in question. Id. at 107. He also contends there was no evidence to connect him or his 3 codefendant with the Ford Crown Victoria, the victim’s missing phone, and the recovered 4 firearm. Id. at 108. 5 “Ground Two: Petitioner’s Fourteenth Amendment right to due process is being 6 violated by having to stand trial after an illegal arrest and the admission of illegally seized 7 evidence resulting in a fundamental defect and a miscarriage of justice.” Id. at 110. 8 Petitioner argues that he was arrested at the hospital “at the end of the night” when a guard 9 was placed on him. Id. He asserts that at the time of arrest, officers lacked probable cause 10 to connect him with the robbery. Id. at 111-12. Further, Petitioner maintains that police 11 illegally seized the Ford Crown Victoria after a judge refused to sign a warrant for its search 12 and seizure. Id. at 112-13. 13 “Ground Three: Petitioner’s Fourteenth Amendment right to due process has been 14 violated by a conviction at trial after an indictment that was based on perjury.” Id. at 119. 15 Petitioner claims that Detective Barber provided the grand jury with “false testimony, 16 misleading evidence[,] and crucial omissions to obtain an indictment.” Id. 17 “Ground Four: Petitioner’s Fourteenth Amendment right to due process was 18 violated by the trial court’s failure to sever, resulting in a trial that was fundamentally 19 unfair.” Id. at 121. Petitioner asserts that “Had [he] had a separate trial, the State would 20 have had literally nothing to present to the jury. All the State did was compile a bunch of 21 misleading evidence onto [his] wife’s plate, made [him] go to trial with her, then tell the 22 jury that [they] were in a romantic relationship as an offer of [his] guilt.” Id. 23 “Ground Five: Sixth Amendment right to effective counsel was violated by 24 Counsel[’]s failure to present exculpatory evidence of third[-]party culpability.” Id. at 122. 25 Petitioner claims the following: 26 Prior to trial, under my supervision, I had my attorney interview several members of the STU. Specifically, my 27 attorney had obtained a statement from Det. Barber that he was familiar with two other robberies in the exact same location, 28 with the same suspects, victims who were robbed in the same modus operandi for the same items as the victim in this case.

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1 These three robberies were only days apart, and both victims stated they were lured into an alley by a female suspect just 2 like the victim in this case. However, despite having this presumably ex[]onerating evidence on hand prior to trial, my 3 attorney for whatever reason chose not to interview these other victims, call them to testify, or present a third[-]party defense. 4 5 Id. 6 “Ground Six: Sixth Amendment right to effective counsel was violated by Counsel 7 failing to call expert and/or medical witness to explain to the jury the physical impossibility 8 of [Petitioner] being shot by the victim[’]s gun.” Id. at 123. Petitioner further asserts: 9 Prior to trial my attorney had spoken with my doctor, as well as obtained my medical records from that night. My doctor 10 informed my attorney that I was shot with a large caliber bullet a .40 or .45, but it was not a hollow-point. At trial, Mr. Arias 11 testified that he exclusively uses hollow-point ammunition for home protection purposes, [and] that those bullets tend to get 12 stuck in walls as to not hit a person in another room. 13 I was shot in the middle of the back, to which the bullet exited through my collarbone, which means that the person who 14 actually shot me was significantly lower than me. 15 Had my attorney called an expert medical/ballistics expert to testify at trial, they could have told the jury that my wounds 16 were inconsistent with hollow-point ammunition, and it would be impossible for a 5-10” man such as Mr. Arias standing on 17 his feet to shoot me and obtain the same trajectory angle as my wound. 18 I was obviously present when I was shot and know with 100% 19 certainty that it was not by robbing Mr. Arias. This evidence too is presumably ex[]onerating. In dealing with scientific 20 evidence, it either matches you, or it doesn’t, and if it doesn’t you should be a[c]quitted, and this is evidence that is not too 21 late to be discovered. I will forever have these scars on my body to prove my innocence. 22 23 Id. 24 “Ground Seven: Sixth Amendment right to effective Counsel was violated by 25 Counsel failing to object to in-court identification of co-defendant and/or moving for a 26 mistrial.” Id. at 124. 27 On the night of the robbery, Det. Barber showed Mr. Arias one single picture of my wife and asked if he recognized her. Mr. 28 Arias specifically stated, “No. I have never seen her before in my life.” Shortly after that, Mr. Arias was taken to the police

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1 station and was shown a six[-]pack photo line-up that included my wife’s photo, again. Mr. Arias did [not] identify her prior 2 to trial, while sitting in the county jail with zero evidence, I requested that Mr. Arias be brought in for a pre-trial 3 identification process, to which the prosecutor stated, “We’re not bringing him in, we already know he can’t ID anybody, he 4 invoked his rights and wants nothing to do with this trial.[”] 5 Six months later, the State calls Mr. Arias to testify. While Mr. Arias was approaching the witness stand, Det. Barber jumps 6 up, grabs Mr. Arias by the arm, whispers into his ear causing Mr. Arias to turn and look over his shoulder directly at my 7 wife. Mr. Arias looks back at Barber, nods his head then proceeds to the stand. After Mr. Arias testifies as to how he 8 was robbed the State asked him if he recognizes the female who lured him into an alley, and Mr. Arias identified my wife 9 as that female. 10 Had my attorney objected to that identification, and/or requested a mistrial, we could have held a Dess[u]reau[lt] 11 hearing to have the judge determine the reliability of the ID. We were roadblocked by the State from having the 12 opp[o]rtunity to challenge the ID before trial. 13 That ID was paramount to both my wife’s and my conviction, and it was a dirty move by the State. In this case, 14 cross-examination was rendered moot as a challenge, as we provided the jury with more than enough evidence that the ID 15 was fabricated. We literally all but called him a liar. 16 I have been trying for years to obtain a copy of the CCTV footage at my trial that clearly shows Det. Barber grabbing Mr. 17 Arias by the arm, whispering to him, causing him to look at my wife, but have been impeded every step of the way. Two 18 motions to compel have gone unanswered, and letters to the prosecutor’s office have gone unanswered. 19 Without that identification, there is no conviction. 20 21 Id. at 124-25. 22 “Ground Eight: Sixth Amendment right to effective counsel was violated by 23 counsel failing to inform [Petitioner] of [his] right to testify and by refusing to let [him] 24 testify.” Id. at 126. Petitioner writes that he informed his counsel of his desire to testify 25 about the “complete history” with the officers involved. Id. He continues that, after the 26 victim identified his codefendant, he reiterated his wish to testify and to explain to the jury 27 that the prosecution was vindictive. Id. at 127. He asserts that his counsel never informed 28 him of his constitutional right to testify and instead insisted he could not testify. Id.

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1 TIMELINESS 2 Whether a petition is time-barred by the statute of limitations is a threshold issue 3 that must be resolved before considering other procedural issues or the merits of the 4 individual’s claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The 5 Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) one-year statute of limitations 6 applies here. See 28 U.S.C. § 2244(d)(1); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 7 1999). The limitations period begins to run on the date when “the judgment became final 8 by the conclusion of direct review or the expiration of the time for seeking such review.” 9 § 2244(d)(1)(A). “The time during which a properly filed application for State 10 post-conviction or other collateral review with respect to the pertinent judgment or claim 11 is pending shall not be counted toward any period of limitation.” § 2244(d)(2). 12 Petitioner timely appealed his convictions and sentences. (Doc. 23-1 at 20.) 13 Petitioner’s convictions and sentences were final ninety days after December 1, 2015. See 14 § 2244(d)(1)(A); U.S. Sup. Ct. R. 13(1); Hemmerle v. Schriro, 495 F.3d 1069, 1074 (9th 15 Cir. 2007). Petitioner timely filed his notice for PCR before January 29, 2016. (Doc. 23-1 16 at 38.) On July 23, 2019, the Arizona Court of Appeals issued its mandate on Petitioner’s 17 PCR petition. Id. at 62; see Menendez v. Ryan, No. CV-14-2436-PHX, 2015 WL 8923410, 18 at *9-10 (D. Ariz. Oct. 20, 2015), R. & R. accepted by 2015 WL 8758007, at *5 (D. Ariz. 19 Dec. 15, 2015). The one-year limitations period under the AEDPA was statutorily tolled to 20 July 23, 2019. See § 2244(d)(2). Petitioner’s initial petition for writ of habeas corpus was 21 filed on April 15, 2020, (see Doc. 1) well within the AEDPA’s one-year limitations period. 22 Hence, the Amended Petition is timely. 23 EXHAUSTION/PROCEDURAL DEFAULT 24 Respondents urge that all but one part of Petitioner’s due-process claims are 25 procedurally defaulted without excuse or are not cognizable in a federal habeas proceeding. 26 (Doc. 23 at 9-13.) Additionally, Respondents contend that Petitioner’s claim that his 27 counsel was ineffective in preventing him from testifying is also procedurally defaulted. 28 Id. at 10, 13-14. As set forth below, this Court agrees except it finds that Ground One was

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1 exhausted without procedural default. 2 Legal Principles 3 A district court may consider a petitioner’s application for a writ of habeas corpus 4 only if they have “exhausted the remedies available in the courts of the State.” 5 § 2254(b)(1)(A). The exhaustion requirement prevents unnecessary federal court 6 adjudication and affords states the opportunity to correct a constitutional violation. Rose v. 7 Lundy, 455 U.S. 509, 518 (1982). 8 To exhaust a claim, the petitioner must “fairly present” it in each appropriate state 9 court, alerting the courts to its federal nature. Baldwin v. Reese, 541 U.S. 27, 29 (2004). In 10 Arizona, a claim not involving a life sentence or death penalty is exhausted if it is presented 11 to the Arizona Court of Appeals; it need not be appealed to the Arizona Supreme Court. 12 Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). For a claim to be fairly presented, 13 the petitioner must have clearly stated its federal basis and nature, along with relevant facts, 14 and the claim must be the “substantial equivalent” to the one presented to the state. Picard 15 v. Connor, 404 U.S. 270, 278 (1971); Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). 16 If evidence puts the claim in significantly different legal or evidentiary posture, the state 17 must have an opportunity to examine it. Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 18 2014). It is insufficient to merely present a state law claim that is “largely coextensive” 19 with the federal claim. Fields v. Washington, 401 F.3d 1018, 1022-23 (9th Cir. 2005). If a 20 state law claim is identical with the federal claim, then raising only the state law claim may 21 be sufficient to exhaust the federal clam. Sanders v. Ryder, 342 F.3d 991, 1000 (9th Cir. 22 2003). 23 A petitioner who fails to follow a state’s procedural requirements for presenting a 24 claim deprives the state court of an opportunity to address the claim in much the same 25 manner as a petitioner who fails to exhaust his state remedies. Thus, to prevent a petitioner 26 from subverting the exhaustion requirement by failing to follow state procedures, a claim 27 not presented to the state courts in a procedurally correct manner is deemed procedurally 28 defaulted and is generally barred from habeas relief. See Coleman v. Thompson, 501 U.S.

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1 722, 731-32 (1991). 2 Claims may be procedurally barred from federal habeas review based upon either 3 an express or implied bar. See Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). 4 If a state court expressly applied a procedural bar when a petitioner attempted to raise a 5 claim in state court, and the procedural bar is both independent and adequate, review of the 6 merits of the claim by a federal habeas court is generally barred. See Ylst v. Nunnemaker, 7 501 U.S. 797, 801 (1991) (“When a state-law default prevents the state court from reaching 8 the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”). 9 An implied procedural bar may be applied to unexhausted claims where state procedural 10 rules make a return to state court futile. Coleman, 501 U.S. at 735 n.1 (claims are barred 11 from habeas review when not first raised before state courts and those courts “would now 12 find the claims procedurally barred”); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th 13 Cir. 2002) (“[T]he procedural default rule barring consideration of a federal claim ‘applies 14 . . . if it is clear that the state court would hold the claim procedurally barred.’” (quoting 15 Harris v. Reed, 489 U.S. 255, 263 n.9 (1989))). 16 In Arizona, claims not previously presented to state courts on either direct appeal or 17 collateral review are generally barred from federal review because an attempt to present 18 them to the state court would be futile unless they fit in a narrow category of claims for 19 which a successive or untimely petition is permitted. See Ariz. R. Crim. P. 32.2(a) 20 (precluding claims not raised on appeal or in prior petitions for post-conviction relief, 21 except for narrow exceptions), 33.2(a) (same), 32.4(b)(3) (time bar) 33.4(b)(3) (same). 22 Because Arizona’s preclusion rules are both independent and adequate, their application to 23 a claim by an Arizona court or their operation precluding a return to state courts to exhaust 24 a claim will procedurally bar subsequent review of the merits of that claim by a federal 25 habeas court. See Stewart v. Smith, 536 U.S. 856, 860 (2002) (determinations made under 26 Arizona’s procedural default rule are independent of federal law); see also Carriger v. 27 Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (rejecting assertion that Arizona courts’ 28 application of procedural default rules were “unpredictable and irregular”); State v. Mata,

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1 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules are strictly applied in 2 post-conviction proceedings). Arizona’s time bar under Rules 32.4 and 33.4 are an 3 additional bar that would make a return to state court fruitless. See, e.g., Beaty v. Stewart, 4 303 F.3d 975, 987 (9th Cir. 2002) (holding that if Arizona habeas petitioner “has any 5 unexhausted claims” they are “procedurally defaulted . . . because he is now time-barred 6 under Arizona law from going back to state court”); Moreno v. Gonzalez, 116 F.3d 409, 7 410 (9th Cir. 1997) (observing timeliness under Rule 32.4(a) as grounds for dismissal of 8 PCR petition, distinct from preclusion under Rule 32.2(a)). 9 Procedural Status of Petitioner’s Claims 10 Ground One: Petitioner claims his due process rights were violated because there 11 was insufficient evidence presented at his trial to sustain his convictions. (Doc. 6-1 at 105.) 12 In Petitioner’s opening brief to the Arizona Court of Appeals, he alleged the trial 13 court erred by denying his motion for judgment of acquittal because there was insufficient 14 evidence to sustain the convictions. (Doc. 6 at 79-82.) The Court of Appeals decided this 15 claim on its merits. Cordova, 2015 WL 1394696, at ¶ 42. Petitioner argues that the state 16 law claim that the State did not present sufficient evidence is identical to the federal due 17 process claim asserted here. (Doc. 24 at 5.) This Court agrees. See State ex rel. Romley v. 18 Superior Court, 836 P.2d 445, 449 (Ariz. App. 1992); State v. Tison, 633 P.2d 355, 361-62 19 (Ariz. 1981) (applying standard from Jackson v. Virginia, 443 U.S. 307 (1979), to consider 20 whether evidence was insufficient to support conviction). Since the federal claim is 21 identical to the claim raised before the state courts, the Court consider it exhausted. See 22 Sanders, 342 F.3d at 1000. 23 Thus, this Court will treat the claim in Ground One as properly exhausted and not 24 procedurally barred. Its merits are discussed below. 25 Ground Two: In the first part of Ground Two, Petitioner claims his due process 26 rights were violated because officers illegally arrested him. (Doc. 6-1 at 110.) In the second 27 part, Petitioner claims his due process rights were violated because the State admitted 28 illegally seized evidence at his trial. Id.

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1 Petitioner did not present his claims as Fourteenth Amendment claims to the state 2 court; instead, he presented them as Fourth Amendment claims. (Doc. 6 at 35-44, 45-59.) 3 Fourth Amendment claims, however, can only be reviewed in a § 2254 proceedings “if the 4 state court proceeding denied the applicant an ‘opportunity for full and fair litigation of a 5 Fourth Amendment claim.’” Ewell v. Scribner, 490 Fed. App’x 891, 892-93 (9th Cir. 2012) 6 (quoting Stone v. Powell, 428 U.S. 465, 482 (1976)). There is no indication that the state 7 did not provide a full and fair litigation of the Fourth Amendment claims. Thus, they would 8 not be cognizable here. 9 This Court determines that Petitioner did not present the claims alleged in Ground 10 two to the Arizona Court of Appeals because he did not assert them as due process 11 violations, only Fourth Amendment violations. Petitioner cannot return to the state court 12 to exhaust this claim because Arizona’s procedural rules would bar him. As such, this Court 13 concludes that these claims are technically exhausted but procedurally defaulted. To the 14 extent he may wish to present Fourth Amendment claims here, they are not cognizable. See 15 Ewell, 490 Fed. App’x at 892-93. 16 As explained below, this Court determines there are no grounds upon which the 17 district court can excuse the procedural default of the claims alleged in Ground Two. 18 Ground Three: Petitioner claims his due process rights were violated because the 19 state presented perjured testimony and omitted exculpatory evidence from the grand jury. 20 (Doc. 6-1 at 119.) 21 In Petitioner’s opening brief to the Arizona Court of Appeals, he alleged his due 22 process rights were violated because he stood trial on an indictment obtained by omitting 23 exculpatory evidence and presenting perjured testimony. (Doc. 6 at 59-68.) 24 The Arizona Court of Appeals denied Petitioner’s claims reasoning: 25 Cordova reasserts his argument that the state failed to present clearly exculpatory evidence. This claim cannot be raised on 26 direct appeal; therefore, we do not address it. 27 ... 28 Detective Barber never stated or insinuated to the grand jury that Rodriguez had made a confession. Nor did he state that the

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1 black cloth and red bandana had been used by J.A.’s assailants as masks. There is no evidence to suggest that Barber’s 2 testimony was false or that he knew it was false. And because Cordova has been found guilty beyond a reasonable doubt, “we 3 will not now review the finding of probable cause made by the grand jury.” 4 5 Cordova, 2015 WL 1394696, at ¶¶ 25, 38 (citations omitted). 6 Petitioner’s claim that exculpatory evidence was omitted from the grand jury 7 presentation was procedurally barred from review and Petitioner would be unable to return 8 to the state court. As explained below, this Court determines there are no grounds upon 9 which the district court can excuse the procedural default this claim. 10 This Court finds that Petitioner presented his claim that perjury evidence was 11 submitted to the grand jury as alleged in Ground Three to the state courts. This Court will 12 treat this claim as properly exhausted. Its merits are discussed below. 13 Ground Four: Petitioner claims that, because the State “would have had literally 14 nothing to present to the jury” at a trial against only him, the trial court violated his due 15 process rights by failing to sever him from his codefendant for trial. (Doc. 6-1 at 121.) 16 In Petitioner’s opening brief to the Arizona Court of Appeals, Petitioner alleged the 17 trial court abused its discretion by denying his motion to sever the defendants. (Doc. 6 at 18 72-79.) He argued that he could not receive a fair trial because he was prejudiced by his 19 codefendant’s statements, his relationship with the codefendant, and the “rub-off” from 20 evidence against his codefendant. Id. Petitioner mentioned federal due process when listing 21 constitutional guarantees, such as the right to confront accusers, present a complete 22 defense, and the right to subpoena witnesses, id. at 75-76; however, his argument seemed 23 to rely on the Confrontation Clause. Id. at 77. 24 The Arizona Court of Appeals denied Petitioner’s claim reasoning: 25 The trial court’s limiting instructions also protected against any potential for prejudice resulting from J.A.’s identification of 26 Rodriguez. And, as discussed above, Rodriguez’s statements, as presented through the testimony of Officer Brady, did not 27 facially incriminate Cordova. Finally, the video of Cordova and Rodriguez arriving at UMC was not testimonial in nature. 28 Therefore, admission of the video did not present a Confrontation Clause problem requiring severance of the trials.

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1 The court did not err in denying Cordova’s renewed motions to sever during trial. 2 3 Cordova, 2015 WL 1394696, at ¶ 32 (citations omitted). 4 This Court determines that Petitioner did not present his claim alleged in Ground 5 Four to the Arizona Court of Appeals because he did not sufficiently alert them to the 6 federal due process claim and does not appear to be arguing the Confrontation Clause claim 7 here.3 See Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Shumway v. Payne, 223 F.3d 8 982, 988 (9th Cir. 2000). Further, Petitioner does not contend that the federal due process 9 rights are identical to either the Confrontation Clause rights or the right to severance under 10 the Arizona Rules of Criminal Procedure, such that this would be saved under Sanders, 11 342 F.3d at 1000. (Doc. 24 at 31-34.) Petitioner cannot return to the state court to exhaust 12 this claim because it is barred by Arizona’s procedural rules. As such, this Court concludes 13 that this claim is technically exhausted but procedurally defaulted. 14 As explained below, this Court determines there are no grounds upon which the 15 district court can excuse the procedural default of the claims alleged in Ground Four. 16 Ground Five: Petitioner claims ineffective assistance of trial counsel for failing to 17 present third-party culpability evidence. (Doc. 6-1 at 122.) 18 In Petitioner’s PCR petition, he claimed ineffective assistance of counsel for failing 19 to present exculpatory evidence of a culpable third party. Id. at 34-36. The post-conviction 20 court dismissed Petitioner’s claim on the merits. Id. at 66-67. 21 In his petition for review before the Arizona Court of Appeals, Petitioner alleged 22 ineffective assistance of trial counsel based on failure to present third-party culpability 23 evidence. Id. at 74-75. The court of appeals adopted the post-conviction court’s ruling. 24 Cordova, 2018 WL 4781486, at ¶ 4. 25 This Court determines that Petitioner presented his claim alleged in Ground Five to 26 3 Petitioner does seem to raise a Confrontation Clause issue in his reply. (Doc. 24 at 32.) 27 The Court will not consider this argument because it was raised for the first time in Petitioner’s reply. Elliot v. Ryan, No. CV 10-2326-PHX, 2011 WL 4829409, at *3 n.4 (D. 28 Ariz. Aug. 30, 2011) (citing Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994); Lewis v Witek, 927 F. Supp. 1288, 1291 n.2 (C.D. Cal. 1994)).

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1 the state courts. The Court will treat Ground Five as properly exhausted. Its merits are 2 discussed below. 3 Ground Six: Petitioner claims ineffective assistance of trial counsel for failing to 4 call an expert or medical witness to demonstrate that the victim did not shoot Petitioner. 5 (Doc. 6-1 at 123.) 6 In Petitioner’s PCR petition, he claimed ineffective assistance of counsel for counsel 7 not calling an expert or medical witness to show the victim’s gun could not have shot 8 Petitioner. Id. at 37-38. The post-conviction court concluded that Petitioner had failed to 9 state a colorable claim. Id. at 69. The appellate court adopted the post-conviction court’s 10 ruling on this claim. Cordova, 2018 WL 4781486, at ¶ 4. 11 This Court determines that Petitioner presented the claim alleged in Ground Six to 12 the state courts. The Court will treat Ground Six as properly exhausted. Thus, its merits are 13 discussed below. 14 Ground Seven: Petitioner claims ineffective assistance of trial counsel because she 15 neither objected to the in-court identification of his codefendant nor moved for a mistrial 16 after said identification. (Doc. 6-1 at 124.) 17 In Petitioner’s PCR petition, he claimed ineffective assistance of counsel for failing 18 to object to the in-court identification of his codefendant or move for a mistrial after the 19 identification. Id. at 38-41. The post-conviction court dismissed Petitioner’s claim, 20 concluding his counsel had acted reasonably under prevailing professional norms. Id. at 21 70-71. In his petition for review before the Arizona Court of Appeals, Petitioner raised the 22 same allegations. Id. at 78-79. The court of appeals adopted the post-conviction court’s 23 ruling. Cordova, 2018 WL 4781486, at ¶ 4. 24 This Court determines that Petitioner presented his claim alleged in Ground Seven 25 to the state courts. The Court will treat Ground Seven as properly exhausted. Its merits are 26 discussed below. 27 Ground Eight: Petitioner claims ineffective assistance of trial counsel because his 28 counsel failed to inform him of his right to testify and refused to let him testify. (Doc. 6-1

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1 at 126.) 2 In Petitioner’s state PCR petition, he claimed ineffective assistance of counsel for 3 failing to inform him he had a right to testify, refusing to let him testify, and advising him 4 to not testify. Id. at 41. The post-conviction court dismissed Petitioner’s claim, reasoning: 5 Cordova claims in his petition that he wanted to testify at Court and Ms. Bond wouldn’t let him. Before the trial, Ms. Bond 6 arranged for to [sic] prepare Cordova for testifying. During trial, he says she told him she did not see a need to put him on 7 the stand. Although “disagreements in trial strategy will not support a claim of ineffective assistance of counsel, . . . certain 8 basic decisions transcend the label ‘trial strategy’ and are exclusively the province of the accused: namely, the ultimate 9 decisions on whether to plead guilty, whether to waive a jury trial, and whether to testify.” State v. Nirschel, 155 Ariz. 206, 10 208, 745 P.2d 953, 955 (1987), quoting State v. Lee, 142 Ariz. 210, 215, 689 P.2d 153, 158 (1984). 11 However, mere regrets about the decision not to testify are 12 insufficient to raise a colorable claim of ineffective assistance. State v. Schurz, 176 Ariz. 46, 58, 850 P.2d 156, 168 (1993). 13 “[W]hen the defendant and his counsel come to the conclusion for any reason that it would be better for the defendant not to 14 testify, the defendant cannot later claim with the benefit of hindsight that the decision to keep him off the stand constituted 15 reversible error.” State v. Martin, 102 Ariz. 142, 147, 426 P.2d 639, 644 (1967). 16 Unlike the requirements in some states, in Arizona, a trial 17 judge is not required to affirmatively determine that a defendant is aware of and wishes to relinquish the right to 18 testify by way of an on-the-record waiver. State v. Gulbrandson, 184 Ariz. 46, 64, 906 P.2d 579, 597 (1995). 19 However, the court has stated that “defendant must make his desire to testify known at trial and cannot allege this desire as 20 an afterthought.” Id., citing Martin, supra. See also State v. Allie, 147 Ariz. 320, 328 (1985). Therefore, under Arizona 21 case law, because Cordova did not voice his wish to testify during the trial, he may not raise it as a complaint now. 22 Cordova further alleges his counsel was ineffective for 23 advising him not to testify. If Cordova had testified at trial, he would have been subject to cross-examination regarding a 24 previous felony conviction. This is a reasoned basis for counsel to recommend that a defendant forgo testifying. 25 26 Id. at 71-72 (alterations in original). 27 In his petition for review before the Arizona Court of Appeals, Petitioner alleged 28 ineffective assistance of trial counsel based on the same grounds. Id. at 74, 79. The

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1 appellate court adopted the post-conviction court’s ruling and stated: 2 We write further, however, with regard to Cordova’s claim that counsel “refused to let [him] testify.” As the trial court 3 correctly noted, our supreme court has held that “a defendant must make his desire to testify known at trial and cannot allege 4 this desire as an afterthought,” and a court is not required “to have a defendant make an on-the-record waiver” of that right. 5 State v. Gulbrandson, 184 Ariz. 46, 65 (1995); see also State v. Allie, 147 Ariz. 320, 328 (1985). And, even where (as 6 Cordova alleges occurred here), counsel simply refused to allow a defendant to testify, a defendant is nonetheless required 7 to “make his objection known at trial.” State v. Martin, 102 Ariz. 142, 147 (1967). 8 Although Cordova urges us to “overrule” Gulbrandson, Allie, 9 and Martin, we have no authority to do so. State v. Newnom, 208 Ariz. 507, ¶ 8 (App. 2004). Additionally, Cordova has 10 cited nothing suggesting he was unaware of his right to testify, and the trial court was not required to accept his conclusory 11 assertion that counsel “didn’t let” him testify. See State v. Schurz, 176 Ariz. 46, 58 (1993) (to raise colorable claim of 12 ineffective assistance, defendant must show unawareness of right to testify or counsel’s deprivation of right); State v. 13 Donald, 198 Ariz. 406, ¶ 21 (App. 2000) (to warrant evidentiary hearing, Rule 32 claim “must consist of more than 14 conclusory assertions”). 15 Cordova, 2018 WL 4781486, at ¶¶ 4-6. 16 This Court determines that Petitioner presented his claims alleged in Ground Eight 17 to both the post-conviction and appellate courts. The Court will treat the claims in Ground 18 Eight as properly exhausted. However, the claims that the attorney prevented him from 19 testifying and that the attorney failed to inform him of his right to testify are procedurally 20 defaulted because the state court relied on “independent and adequate state procedural 21 grounds”—waiver. See Coleman, 501 U.S. at 730. Respondents only assert that the claim 22 that trial counsel refused to permit testimony was procedurally defaulted. (Doc. 23 at 23 13-14.) Because Respondents have not presented procedural default as to the claim that 24 trial counsel failed to inform Petitioner of his right to testify, this Court will consider it 25 waived and reach its merits below. See Morrison v. Mahoney, 399 F.3d 1042, 1046 (9th 26 Cir. 2005). 27 As explained below, this Court determines there are no grounds upon which the 28 district court can excuse the procedural default in Ground Eight.

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1 The Procedural Default Cannot be Excused 2 Federal habeas review of a procedurally defaulted claim is barred unless the default 3 is excused. A procedural default may be excused if a habeas petitioner establishes either 4 (1) “cause” and “prejudice,” or (2) that a fundamental miscarriage of justice has occurred. 5 Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992). “Cause” that is sufficient to excuse a 6 procedural default is “some objective factor external to the defense” which precludes a 7 petitioner’s ability to pursue the claim in state court. Murray v. Carrier, 477 U.S. 478, 488 8 (1986). “Prejudice” in the habeas context means actual, objective harm resulting from the 9 alleged error. United States v. Frady, 456 U.S. 152, 170 (1982) (habeas petitioners 10 “shoulder the burden of showing, not merely that the errors . . . created a possibility of 11 prejudice, but that they worked to his actual and substantial disadvantage” and infected 12 state proceedings with errors of constitutional dimension). A fundamental miscarriage of 13 justice may occur where a constitutional violation has probably resulted in the conviction 14 of an innocent petitioner. Murray, 477 U.S. at 496 (merits of defaulted claim could be 15 reached “in an extraordinary case, where a constitutional violation has probably resulted in 16 the conviction of one who is actually innocent”). “[A] petitioner does not meet the 17 threshold requirement [of establishing actual innocence] unless he persuades the district 18 court that, in light of the new evidence, no juror, acting reasonably, would have voted to 19 find him guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 329 (1995). The 20 actual innocence gateway requires that a petitioner present new evidence that is not merely 21 cumulative or speculative. Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013). 22 Petitioner argues that he was precluded from pursuing claims in the state court. 23 (Doc. 24 at 13.) He claims that the state paralegal told him the appellate standard of review 24 would be abuse of discretion because he was “appealing to the courts to reverse the rulings 25 of the trial courts for mishandling your constitutional, or state law violations.” Id. This is 26 not cause because it did not prevent him from pursuing claims in the state court. See 27 Murray, 477 U.S. at 488. 28 Petitioner claims that he is actually innocent of the charges, pointing to the lack of

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1 incriminating evidence. (Doc. 24 at 13.) He urges the district court to consider the 2 discrepancies in descriptions and lack of physical evidence connecting him to the crime 3 scene. Id. at 12-13. Petitioner does not argue there is any new evidence and only points to 4 information that was presented to the jury, either through witnesses or argument. (Doc. 5 23-2 at 60, 73, 75, 120, 128; Doc. 23-3 at 13, 15, 136; Doc. 23-4 at 36, 60, 67.) Petitioner 6 has failed to persuade the Court that no juror would have voted to find him guilty beyond 7 a reasonable doubt in light of new evidence because he does not present any new evidence. 8 See Schlup, 513 U.S. at 329; Larsen, 742 F.3d at 1096. Accordingly, Petitioner has not 9 presented any grounds upon which this Court may excuse his failure to exhaust or 10 procedural default. Thus, the Court recommends dismissing the claims alleged in grounds 11 Two, and Four, and parts of grounds Three and Eight, as explained above. 12 MERITS 13 This Court determines that Petitioner’s claims in grounds One, Five, Six, and Seven, 14 and part of grounds Three and Eight are exhausted and not procedurally defaulted. As 15 explained below, this Court concludes the remaining claims are without merit and should 16 be dismissed. 17 Merits Review Under AEDPA 18 Congress intended the AEDPA to foster federal-state comity and further society’s 19 interest in the finality of criminal convictions. Panetti v. Quarterman, 551 U.S. 930, 945 20 (2007) (“[AEPDA’s] design is to ‘further the principles of comity, finality, and 21 federalism.’”) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337 (2003)). Congress’s very 22 purpose in enacting the AEPDA was “to restrict the availability of habeas corpus relief.” 23 Greenawalt v. Stewart, 105 F.3d 1268, 1275 (9th Cir. 1997), abrogated on other grounds 24 as recognized by Jackson v. Roe, 425 F.3d 654, 658-61 (9th Cir. 2005). 25 In the AEDPA, Congress set forth “a difficult to meet and highly deferential 26 standard for evaluating state-court rulings, which demands that state-court decisions must 27 be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (cleaned 28 up). The district court may grant a writ of habeas corpus, “only on the basis of some

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1 transgression of federal law binding on the state courts.” Middleton v. Cupp, 768 F.2d 1083, 2 1085 (9th Cir. 1985). 3 The AEDPA limits the availability of habeas relief for a claim adjudicated on the 4 merits to circumstances where the state court’s disposition either: 5 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 6 determined by the Supreme Court of the United States; or 7 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in 8 the State court proceeding. 9 § 2254(d). Petitioner bears the burden of proving that his claims fit one of these criteria. 10 Pinholster, 563 U.S. at 181; Lambright v. Blodgett, 393 F.3d 943, 969 n. 16 (9th Cir. 2004). 11 A state-court decision is “contrary to” clearly established federal law when the court 12 applied a rule of law that contradicts the governing law set forth in Supreme Court 13 precedent, or encountered a set of facts that are “materially indistinguishable” from a 14 Supreme Court decision and yet reached a different result than the Supreme Court. Early 15 v. Packer, 537 U.S. 3, 8 (2002). Under § 2254’s “unreasonable application” clause, “a 16 federal habeas court may not issue the writ simply because that court concludes in its 17 independent judgment that the relevant state-court decision applied clearly established 18 federal law erroneously or incorrectly.” Williams v. Taylor, 529 U.S. 362, 411 (2000). 19 “Rather, that application must also be unreasonable.” Id. “[E]ven a strong case for relief 20 does not mean the state court’s contrary conclusion was unreasonable.” Harrington v. 21 Richter, 562 U.S. 86, 102 (2011). Richter explained: 22 As a condition for obtaining habeas corpus from a federal 23 court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in 24 justification that there was an error well understood and comprehended in existing law beyond any possibility for 25 fair[-]minded disagreement. 26 Id. at 103. “If this standard is difficult to meet, that is because it was meant to be.” Id. at 27 102. Section 2254(d)(2) sets “a daunting standard—one that will be satisfied in relatively 28 few cases.” Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir. 2016) (Hernandez v. Holland,

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1 750 F.3d 843, 857 (9th Cir. 2014)). 2 In determining whether the state court’s resolution of a claim was contrary to, or an 3 unreasonable application of, clearly established federal law, this Court must review the last 4 reasoned state court judgment addressing the claim. Cook v. Schriro, 538 F.3d 1000, 1015 5 (9th Cir. 2008) (citing Ylst, 501 U.S. at 803). The reviewing federal court is to be 6 “particularly deferential to [its] state court colleagues.” Loher, 825 F.3d at 1112 7 (Hernandez, 750 F.3d at 857). The federal habeas court presumes the state court’s factual 8 determinations are correct, and the petitioner bears the burden of rebutting this presumption 9 by clear and convincing evidence. See § 2254(e)(1) (“[A] determination of a factual issue 10 made by a State court shall be presumed to be correct. The applicant shall have the burden 11 of rebutting the presumption of correctness by clear and convincing evidence.”); see also, 12 Miller-El, 545 U.S. at 240 (describing standard as deferential and “demanding,” although 13 not impossible). 14 Ground One: Petitioner asserts that the evidence admitted was insufficient to show 15 he had committed the offenses and thus his convictions violated due process. (Doc. 6-1 at 16 105-109.) The Arizona Court of Appeals denied Petitioner’s claims, reasoning: 17 Rule 20(a), Ariz. R. Crim. P., provides that the court “shall enter a judgment of acquittal . . . if there is no substantial 18 evidence to warrant a conviction.” “Substantial evidence is more than a mere scintilla and is such proof that ‘reasonable 19 persons could accept as adequate and sufficient to support a conclusion of defendant’s guilt beyond a reasonable doubt.’” 20 State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 21 (1980). We must decide “‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier 22 of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id. at 66, 796 P.2d at 868, quoting 23 Jackson v. Virginia, 443 U.S. 307, 319 (1979). We will reverse “only if there is ‘a complete absence of probative facts to 24 support a conviction.’” State v. Paris-Sheldon, 214 Ariz. 500, ¶ 32, 154 P.3d 1046, 1056 (App. 2007), quoting State v. 25 Alvarez, 210 Ariz. 24, ¶ 10, 107 P.3d 350, 353 (App. 2005). “When reasonable minds may differ on inferences drawn from 26 the facts, the case must be submitted to the jury, and the trial judge has no discretion to enter a judgment of acquittal.” State 27 v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997). 28 Although the evidence against Cordova was circumstantial, “[b]oth direct and circumstantial evidence may be sufficient to

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1 meet the [substantial evidence] test. There is no distinction as to the weight to be assigned to each.” State v. Thornton, 108 2 Ariz. 119, 120, 493 P.2d 902, 903 (1972). We conclude there was substantial evidence to support Cordova’s convictions, 3 and the trial court did not err by denying his motion for a judgment of acquittal. 4 5 Cordova, 2015 WL 1394696, at ¶¶ 41-42 (alterations in Cordova). 6 “[E]vidence is sufficient to support a conviction whenever, ‘after viewing the 7 evidence in the light most favorable to the prosecution, any rational trier of fact could have 8 found the essential elements of the crime beyond a reasonable doubt.’” Parker v. Matthews, 9 567 U.S. 37, 43 (2012) (quoting Jackson, 443 U.S. at 319). In habeas, the standards of 10 Jackson are applied “with an additional layer of deference,” so that it may only be 11 overturned if “objectively unreasonable.” Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 12 2005); see Parker, 567 U.S. at 43. Thus, “Jackson claims face a high bar in federal habeas 13 proceedings because they are subject to two layers of judicial deference.” Coleman v. 14 Johnson, 566 U.S. 650, 651 (2012). 15 Here, Petitioner alleges that the state court unreasonably applied the law because 16 the state did “not offer the jury a single legitimate piece of evidence connecting [him] to 17 the crime scene, let alone an actual culpable role in the robbery.” (Doc. 6-1 at 109.) 18 Petitioner acknowledges there was sufficient evidence to show the victim was robbed at 19 gun point by at least two individuals, instead arguing the evidence never connected 20 Petitioner to the incident. Id. 21 After viewing the evidence admitted at trial in the light most favorable to the 22 prosecution, it showed the following. In November 2013, the victim was selling alarm 23 systems door-to door in Tucson, Arizona. (Doc. 23-2 at 34-35.) A woman, he later 24 identified as Petitioner’s codefendant,4 waved him down, and he followed her around a 25 corner. Id. at 38, 57. The victim heard “chh-chh” and saw two men pointing guns at him. 26 Id. at 38. He could only see “their eyes and the gun barrels.” Id. They were wearing 27 4 The victim had been unable to identify the woman prior to trial, despite two opportunities 28 to do so. (Doc. 23-2 at 62, 71.) However, a reasonable juror could credit the in-court identification, believing that in-person identifications differ from photographic ones.

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1 bandanas over their faces and hoodies over their heads, and their clothing was dark. Id. at 2 41-42, 74. He stated that one of the men was five foot, ten inches tall and the other was 3 about six foot in height. Id. at 72. The men demanded his wallet and phone, which he 4 handed over. Id. at 39. One of the men threw the victim down and patted him down. Id. at 5 43. When the man was on top of him, the victim could see his arm and that he was black.5 6 Id. at 69. The other said “cap him,” which the victim interpreted as an instruction to kill 7 him. Id. at 44. The victim drew his weapon and shot at the man on top of him. Id. at 45. He 8 then stood and fired a few more shots toward the other man running away. Id. at 45-46. 9 Petitioner and his codefendant arrived at University Medical Center (UMC) about 10 fifteen minutes after the first 9-1-1 call reporting shots near the robbery came in.6 (Doc. 11 23-2 at 118, 135, 138; Doc. 23-3 at 76, 127.) Petitioner had been shot in the back and had 12 a black hooded sweater with a hole surrounded by blood. (Doc. 23-2 at 125-26; Doc. 23-3 13 at 130.) 14 This Court must look to state law for “the substantive elements of the criminal 15 offense.” Johnson, 566 U.S. at 655 (quoting Jackson, 443 U.S. at 324 n.16). Accordingly, 16 “[a] person commits robbery if in the course of taking any property of another from his 17 person or immediate presence and against his will, such person threatens or uses force 18 against any person with intent either to coerce surrender of property or to prevent 19 resistance” to the taking or retaining of property. A.R.S. § 13-1902(A). “‘Force’ means any 20 physical act directed against a person as a means of gaining control of property.” A.R.S. 21 § 13-1901(A). “A person commits aggravated robbery if in the course of committing 22 robbery . . . , such person is aided by one or more accomplices actually present.” A.R.S. 23 § 13-1903(A). “A person commits armed robbery if, in the course of committing robbery 24 . . . , such person or an accomplice: 1. Is armed with a deadly weapon or a simulated deadly 25 5 The victim originally identified both man as black, but then later said it was dark and he 26 only saw their eyes. (Doc. 32-2 at 41, 69, 73.) The Court will note that Petitioner is referred to through the trial as Hispanic. Id. at 22. Further, Petitioner notes that he is five foot, nine 27 inches in height. (Doc. 6-1 at 105.) 6 Petitioner argues he was prejudiced by the trial judge stating an opinion in open court. 28 (Doc. 6-1 at 107.) However, that exchange “took place at the bench between Court and Counsel, out of the hearing of the jurors.” (Doc. 23-3 at 32-35.)

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1 weapon; or 2. Uses or threatens to use a deadly weapon or dangerous instrument or a 2 simulated deadly weapon.” A.R.S § 13-1904(A). Robbery, armed robbery, and aggravated 3 robbery are all felonies. §§ 13-1902(B), 13-1903(B), 13-1904(B). “A person commits 4 kidnapping by knowingly restraining another person with the intent to . . . otherwise aid in 5 the commission of a felony . . . .” A.R.S. § 13-1304(A). “‘Restrain’ means to restrict a 6 person’s movements without consent, without legal authority, and in a manner which 7 interferes substantially with such person’s liberty, by either moving such person from one 8 place to another or by confining such person.” A.R.S. § 13-1301(A)(2). Restraint through 9 “[p]hysical force, intimidation or deception” is without consent. Id. 10 Petitioner acknowledges that the evidence is sufficient to prove that someone robbed 11 the victim at gunpoint with an accomplice. (Doc. 6-1 at 109.) Thus, Petitioner admits that 12 the evidence demonstrates that someone committed robbery, armed robbery, and 13 aggravated robbery. See §§ 13-1901 to 13-1904. It follows, but was not explicitly stated, 14 that the evidence was sufficient to confirm that the victim’s movement was restrained 15 through force or intimidation in aid of the commission of a felony, such as robbery, armed 16 robbery, or aggravated robbery. Hence, the evidence also shows that someone kidnapped 17 the victim. See §§ 13-1301(A)(2), 13-1304(A). Petitioner contends that evidence does not 18 implicate him in these offenses. (Doc. 6-1 at 109.) This Court disagrees. 19 The state court was not objectively unreasonable in concluding that a reasonable 20 juror could have found that Petitioner committed the offenses beyond a reasonable doubt. 21 The Court would not characterize the evidence against Petitioner as strong, and even the 22 state appellate court characterized it as “circumstantial.” See Cordova, 2015 WL 1394696, 23 at ¶ 42. However, the evidence did show that Petitioner was at the hospital with a bullet 24 wound shortly after the offense occurred, and that he had likely been wearing a dark hooded 25 sweatshirt when he was shot, similar to the victim’s descriptions. The evidence did not 26 establish which assailant the victim had shot, but the jury could reasonably have found that 27 the victim shot Petitioner as he ran away, which would have explained the trajectory and 28 entrance wound. Further, he matched the approximate height description of one of the

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1 assailants. Finally, he was with his codefendant at the hospital, whom the victim identified 2 at trial as a participant in the robbery. The victim was vigorously cross-examined about the 3 identification. 4 Petitioner has not shown that the state courts’ rulings were an unreasonable 5 application of federal law. Hence, the claim in Ground One has no merit. 6 Ground Three: Petitioner alleges that his due process rights were violated when 7 the State presented perjured testimony to the grand jury. (Doc. 6-1 at 119.) 8 In Petitioner’s opening brief to the Arizona Court of Appeals, Petitioner alleged his 9 due process rights were violated because he had to stand trial on an indictment based on 10 perjured testimony. (Doc. 6 at 59-68.) The Arizona Court of Appeals denied Petitioner’s 11 claims, reasoning: 12 Detective Barber never stated or insinuated to the grand jury that Rodriguez had made a confession. Nor did he state that the 13 black cloth and red bandana had been used by J.A.’s assailants as masks. There is no evidence to suggest that Barber’s 14 testimony was false or that he knew it was false. And because Cordova has been found guilty beyond a reasonable doubt, “we 15 will not now review the finding of probable cause made by the grand jury.” 16 17 Cordova, 2015 WL 1394696, at ¶ 38 (citations omitted). 18 This claim is without merit. First, the Fourteenth Amendment’s due process clause 19 does not guarantee indictment by grand jury. See Hurtado v. California, 110 U.S. 516, 538 20 (1884); see also Apprendi v. New Jersey, 530 U.S. 466, 477 n.3 (2000) (not addressing 21 indictment requirement); Guatt v. Lewis, 489 F.3d 993, 1003 n.10 (9th Cir. 2007) (pointing 22 out that Supreme Court has not incorporated grand jury requirement to states). Second, 23 assuming there was perjured testimony before the grand jury, it would have been harmless 24 because Petitioner is not alleging structural error and a jury found beyond a reasonable 25 doubt that he was guilty. See United States v. Mechanik, 475 U.S. 66, 70 (1986); United 26 States v. Bingham, 653 F.3d 983, 998 (9th Cir. 2011). Thus, Petitioner has not shown that 27 the state courts’ rulings were an unreasonable application of federal law or clearly contrary 28 to established federal law.

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1 Review of Ineffective Assistance of Counsel Claims Under AEDPA 2 The Supreme Court set forth the clearly established federal law governing IAC 3 claims in Strickland v. Washington, 466 U.S. 668 (1984). See Pinholster, 563 U.S. at 189. 4 To establish that counsel was constitutionally ineffective under Strickland, “a defendant 5 must show both deficient performance by counsel and prejudice.” Knowles v. Mirzayance, 6 556 U.S. 111, 122 (2009). Deficient performance is established when counsel’s 7 representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 8 688. 9 In determining deficiency, “a court must indulge a strong presumption that 10 counsel’s conduct falls within the wide range of reasonable professional assistance; that is, 11 the defendant must overcome the presumption that, under the circumstances, the 12 challenged action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel v. 13 Louisiana, 350 U.S. 91, 100-01 (1955)). To establish prejudice, a petitioner must show “a 14 reasonable probability that, but for counsel’s unprofessional errors, the result of the 15 proceeding would have been different.” Id. at 694. “A reasonable probability is a 16 probability sufficient to undermine confidence in the outcome.” Id. This requires courts to 17 consider “the totality of the evidence before the . . . jury.” Id. at 695. “The pivotal question 18 is whether the state court’s application of the Strickland standard was unreasonable.” 19 Richter, 562 U.S. at 100. “This is different from asking whether defense counsel’s 20 performance fell below Strickland’s standard.” Id. 21 Ground Five: Petitioner claims his trial counsel was ineffective because she failed 22 to present evidence of third-party culpability. (Doc. 6-1 at 122.) Petitioner claims that his 23 counsel should have admitted evidence of two other robberies with similarities to the 24 charged robbery. Id. According to Petitioner, the three robberies occurred days apart, in the 25 same location, and with the same modus operandi. Id. The victims in the other two 26 robberies were unable to identify Rodriguez as the female suspect. Id. 27 The post-conviction court explained the two robberies as follows: 28 Detective Barber stated said [sic] that there had been two other robberies with a similar M.O. In one robbery, a Somali victim

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1 was flagged down by a female and taken to the back of an apartment location where he was robbed by “what he thought 2 were two black guys[.”] In the second robbery, near the same area as the scene in the instant case, two guys ran up and 3 knocked a victim down and took his phone; they were wearing hoodies and masks. Neither victim identified anyone as a 4 perpetrator. (30). Rodriguez was in the photo lineup shown to the Somali victim, and he did not positively identify her as the 5 female in his robbery. (32). Initially Barber reported the second victim said the two men in the second case were black, but then 6 clarified he wasn’t sure in that case and he didn’t want to guess. The second robbery did not appear to involve a female 7 accomplice, based on the two pages provided in this exhibit. 8 Id. at 64-65. The appellate court adopted the post-conviction court’s ruling. Cordova, 2018 9 WL 4781486, at ¶ 4. 10 The state courts rejected Petitioner’s claim. (Doc. 6-1 at 67.) First, the 11 post-conviction court concluded Petitioner’s counsel investigated the other robberies but 12 decided to pursue a different strategy, which is not deficient performance. Id. Second, the 13 court determined that Petitioner “likely would not have prevailed” in admitting the 14 evidence; thus, Petitioner did not show prejudice. Id. 15 To be successful in the first instance, Petitioner needed to show that trial counsel’s 16 performance was deficient and that the trial court likely would have allowed third-party 17 culpability evidence and that there is a reasonable probability that the jury would have 18 returned a different verdict after seeing this evidence. See Knowles, 556 U.S. at 122. To 19 prevail here, Petitioner must show that the state courts were unreasonable in their 20 conclusion the trial counsel’s performance was not deficient and there was no prejudice. 21 See Richter, 562 U.S. at 100. 22 First, Petitioner is claiming that his counsel failed to sufficiently investigate the 23 third-party evidence. (Doc. 6-1 at 122.) Petitioner faults counsel for not interviewing the 24 witnesses (Doc. 24 at 39), but the duty to investigate is not limitless. Bragg v. Galaza, 242 25 F.3d 1082, 1088 (9th Cir. 2001) (quoting Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th 26 Cir. 1995)). “A claim of failure to interview a witness . . . cannot establish ineffective 27 assistance when the person’s account is otherwise fairly known to defense counsel.” Id. 28 (alteration in Bragg) (quoting Eaggleston v. United States, 798 F.2d 374, 376 (9th Cir.

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1 1986)). Nonetheless, it does appear that trial counsel investigated the possible third-party 2 culpability evidence by interviewing the officers. (Doc. 6-1 at 46-47.) But trial counsel 3 abandoned this potential defense because, without a known culprit for the other robberies, 4 it would have been more incriminating than exculpatory for Petitioner. This was a strategic 5 decision, which does not show deficient performance. See Strickland, 466 U.S. at 689. 6 Petitioner has not shown that the state court was objectively unreasonable in its application 7 of Strickland’s first prong. 8 Second, Petitioner cites to Mann v. Ryan, 774 F.3d 1203 (9th Cir. 2014), to argue 9 that the state court applied a prejudice standard that is contrary to established federal law. 10 (Doc. 24 at 36, 38-39.) In Mann, the Ninth Circuit concluded that the district court erred in 11 determining that Mann was not entitled to relief based on one of his 12 ineffective-assistance-of-counsel claims. 774 F.3d at 1223. The court reasoned that the 13 state post-conviction court applied a more-likely-than-not standard when determining 14 prejudice, rather than a reasonable-probability standard. Id. at 1216. However, the Ninth 15 Circuit reheard Mann and affirmed the district court’s denial of habeas relief as to Mann’s 16 convictions and sentence. Mann v. Ryan, 828 F.3d 1143, 1161 (9th Cir. 2016) (en banc). 17 The en banc panel determined that while the standard the state court considered was 18 ambiguous, it was not clearly incorrect. Id. at 1147. The court stated that it was possible to 19 read the state court’s decision as comporting with clearly established law because reading 20 the issues in context provided indication that the judge knew the proper standard but spoke 21 in “direct terms . . . rather than in words designed to express degrees of probability.” Id. at 22 1157. Further, the post-conviction judge was the same one who had imposed the sentence 23 and was subsequently uniquely familiar with the facts and issues. Id. at 1157-58. 24 Here, the post-conviction court stated that the trial court “likely would have . . . 25 precluded the third-party culpability evidence, had it been proffered.” (Doc. 6-1 at 67.) 26 This does create an ambiguity that the post-conviction court applied the incorrect standard 27 when considering prejudice. However, the post-conviction court did state the correct 28 standard when explaining Strickland. Id. at 62. Further, the post-conviction judge presided

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1 over the trial and would have been the judge to rule on admitting evidence. Id. at 60, 115 2 (same judge ruled on motion to suppress as ruled on Rule 32 petition). Thus, he was in a 3 unique position as to the facts and issues. The post-conviction described the “considerably” 4 tenuous nature of the evidence. Id. at 67. Thus, at worst, the post-conviction court’s 5 statements were ambiguous, which is insufficient to find that the court clearly misapplied 6 established federal law. See Mann, 828 F.3d at 1157. 7 Third, Petitioner has not shown that the post-conviction court was objectively 8 unreasonable in its determination. He does not argue there is a reasonable probability that 9 the trial court would have admitted the potential evidence. (Doc. 6-1 at 122.) 10 The right to introduce relevant evidence may be curtailed “if there is a good reason 11 for doing” so. Clark v. Arizona, 548 U.S. 735, 770 (2006). Trial judges are permitted to 12 exclude evidence if its probative value is outweighed by unfair prejudice, confusion of the 13 issues, or potential to mislead the jury. Id. In Arizona, “[a] defendant may not, in the guise 14 of a third-party culpability defense, simply throw strands of speculation on the wall and 15 see if any of them will stick.” State v. Goudeau, 372 P.3d 945, ¶ 165 (Ariz. 2016) (quoting 16 State v. Machado, 246 P.3d 632, ¶ 16 n.2 (Ariz. 2011)). Defendants may only present 17 third-party culpability evidence if the evidence complies with Rules 401 and 403, Ariz. R. 18 Evid. Machado, 246 P.3d 632, ¶ 16. This mandates that “the proffered evidence must first 19 be relevant; that is, it must ‘tend to create a reasonable doubt as to the defendant’s guilt.’” 20 Goudeau, 372 P.3d 945, ¶ 163 (quoting State v. Gibson, 44 P.3d 1001, ¶ 16 (Ariz. 2002)). 21 The trial courts have “discretion to exclude third-party culpability evidence if its probative 22 value is substantially outweighed by the danger of ‘unfair prejudice, confusing the issues, 23 misleading the jury, undue delay, wasting time, or needlessly presenting cumulative 24 evidence.’” Id. (quoting Ariz. R. Evid. 403). 25 Here, the post-conviction court concluded that the evidence of third-party 26 culpability was so tenuous as to cause undue confusion of the issues or mislead the jury. 27 (Doc. 6-1 at 67.) No one had been charged in the other robberies, and there was no evidence 28 that anyone even knew the identity of the other robbers. Id. at 66. Also, the exact location

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1 and times of the robberies was not presented to either the state courts or this Court. Id. at 2 46-47, 66. Accordingly, Petitioner has not shown that he was prejudiced or that the state 3 courts were objectively unreasonable in their application of the Strickland prejudice prong. 4 Petitioner has not satisfied either prong of Strickland and has not shown that the 5 state courts’ rulings were objectively unreasonable or contrary to established federal law. 6 See Richter, 562 U.S. at 100. Thus, the claim in Ground Five has no merit. 7 Ground Six: Petitioner claims his trial counsel was ineffective because she failed 8 to call either an expert or a medical witness to testify that the victim could not have shot 9 him. (Doc. 6-1 at 123.) He asserts that the victim’s testimony was inconsistent with his 10 wound in the following ways: he was not shot with a hollow-point round, the ammunition 11 the victim carried; and he was shot in the middle of the back, with an exit wound through 12 the collar bone, indicating the shooter was lower than him. Id. 13 The state post-conviction court rejected Petitioner’s claim based on both Strickland 14 prongs. Id. at 69. The court determined that Petitioner’s counsel did investigate the claim. 15 Id. at 68. It also mentioned that this information was presented to the jury in different ways, 16 such as through witnesses or closing arguments. Id. The court faulted Petitioner for not 17 providing an affidavit from an expert to explain what the testimony would have been. Id. 18 at 68-69. Finally, the court noted that the testimony did not indicate where the second 19 assailant was when the victim shot from the ground or how far apart the victim was the 20 men when they ran away. Id. at 69. Thus, the court concluded that Petitioner had “not stated 21 a colorable claim.” Id. The appellate court adopted the post-conviction court’s ruling. 22 Cordova, 2018 WL 4781486, at ¶ 4. 23 To be successful in the first instance, Petitioner needed to show that trial counsel’s 24 performance was deficient and that there is a reasonable probability that the jury would 25 have returned a different verdict if the requested testimony had been admitted. See 26 Knowles, 556 U.S. at 122. To prevail here, Petitioner must show that the state courts were 27 unreasonable in their conclusion the trial counsel’s performance was not deficient and he 28 was not prejudiced by the evidence’s omission. See Richter, 562 U.S. at 100.

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1 Here, during opening statements each attorney noted that Petitioner had been shot 2 in the back. (Doc. 32-2 at 15, 24, 29.) Petitioner’s counsel explained that the victim is going 3 to say that he shot the robber in the chest. Id. at 29. Then the victim testified that he shot 4 the robber “on top” of him, got into a standing position, and fired two more times toward 5 the assailant running away. Id. at 45-46. The victim also testified that he only used 6 “hollow-tip bullets” in his “.40 caliber Glock, mid-size” because “it would stick more in 7 the person” and would not come out of its target. Id. at 75, 91. The jury was able to see 8 Petitioner’s shirts with the bullet hole and blood on it. Id. at 125-26. Petitioner’s counsel 9 confirmed with Detective Barber that Petitioner had been shot in the back. (Doc. 23-3 at 10 130-31.) She also asked him if “the bullet went through him and exited somewhere,” which 11 he confirmed. Id. at 131. During closing arguments, Codefendant’s counsel pointed out 12 that Petitioner’s injury was not consistent with the information the victim had provided 13 about hollow-point bullets. (Doc. 32-4 at 36.) Petitioner’s counsel argued Petitioner was 14 shot in the back and had two bullet holes with lots of blood because there was an exit 15 wound. Id. at 62-63. She focused on how he had a partially punctured lung and would have 16 been unable to run or make it to the hospital in the time allotted if he had been one of the 17 robbers. Id. at 64. No party presented evidence as to the caliber of ammunition, large or 18 otherwise, with which Petitioner had been shot. (See Docs. 32-2, 32-3, 32-4.) 19 First, Petitioner is not claiming that his counsel failed to investigate the medical 20 evidence. (Doc. 6-1 at 123.) Nonetheless, it does appear that trial counsel talked with 21 Petitioner’s doctor and obtained his medical records. Id. Second, the jury heard most of the 22 information Petitioner alleges should have been presented through other methods. (Doc. 23 23-2 at 15, 24, 29, 75, 125-26; Doc. 23-3 at 130-31; Doc. 32-4 at 36.) The decision to 24 present this information through argument and witnesses was a strategic decision, which 25 does not show deficient performance. See Strickland, 466 U.S. at 689. This is particularly 26 true as the jury did not hear that Petitioner was shot with a “large caliber bullet, a .40 or 27 .45” as admitted in the Amended Petition, when the victim shot large caliber bullets at the 28 assailants. (Doc. 6-1 at 123; Doc. 23-2 at 91.)

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1 Petitioner again cites to Mann, 774 F.3d 1203, to argue that the state court applied 2 a prejudice standard that is contrary to established federal law. (Doc. 24 at 40.) The Court 3 has explained Mann and its history above. The relevant information here is the Ninth 4 Circuit reheard Mann and affirmed the district court’s denial of habeas relief as to Mann’s 5 convictions and sentence. Mann, 828 F.3d at 1161. The en banc panel determined that 6 while the standard the state used was ambiguous, it was not clearly incorrect, and that 7 courts should examine the statements in context. Id. at 1147, 1157-58. 8 Here, the post-conviction court stated that Petitioner “had not shown the testimony 9 would have changed the outcome at trial” after it pointed out that Petitioner had “not 10 presented, through affidavits, the testimony of either expert.” (Doc. 6-1 at 69.) The Court 11 considers this statement ambiguous as to the standard applied. First, the post-conviction 12 court did state the correct standard when explaining Strickland. Id. at 62. Second, the 13 post-conviction judge presided over the trial and saw the evidence actually admitted to the 14 jury. Id. at 60, 115. Third, Petitioner had not presented what the expert testimony would 15 have been. Id. at 69. 16 Even assuming this claim warrants a de novo review, Petitioner has still failed to 17 show prejudice under Strickland. Petitioner asserts that the testimony would have been 18 “presumably ex[]onerating.” Id. at 123. Courts will presume prejudice in only narrow types 19 of cases, which are not applicable here. See Garza v. Idaho, 139 S. Ct. 738, 744 (2019); 20 Bell v. Cone, 535 U.S. 685, 695-96 (2002); Roe v. Flores-Ortega, 528 U.S. 470, 483 21 (2000). Petitioner has not shown what testimony would have been provided if an expert or 22 medical witness had been called. See Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) 23 (rejecting ineffective assistance of counsel claim where petitioner did not provide evidence 24 of testimony that would have been). Even Petitioner’s argument that the trajectory of the 25 bullet proves that the person “who actually shot [him] was significantly lower” assumes 26 neither he nor the shooter could have been bending or leaning when the shots were fired. 27 (Doc. 6-1 at 123.) Further, the jury heard most of the information Petitioner argues should 28 have been admitted, without learning that Petitioner was shot with a large caliber bullet

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1 when the victim carried large caliber ammunition. (Doc. 23-2 at 15, 24, 29, 75, 91, 125; 2 Doc. 23-3 at 130; Doc. 32-4 at 36.) Accordingly, Petitioner has not shown “a reasonable 3 probability that . . . the result of the proceeding would have been different” if the jury had 4 heard from an expert or medical witness. See Strickland, 466 U.S. at 694. 5 Petitioner has not satisfied either prong of Strickland and has not shown that the 6 state courts’ rulings were objectively unreasonable or contrary to established federal law. 7 See Richter, 562 U.S. at 100. Thus, the claims in Ground Six have no merit. 8 Ground Seven: Petitioner claims his trial counsel was ineffective because she did 9 not object to the in-court identification of his codefendant or move for a mistrial after the 10 identification. (Doc. 6-1 at 124.) 11 The post-conviction court rejected Petitioner’s claim based on the first Strickland 12 prong. Id. at 71. It reasoned that the defense counselors had thoroughly cross-examined the 13 victim about his identification of Rodriguez and his failure to identify her prior to trial. Id. 14 at 70. The trial court had also instructed the jury that it must determine whether the 15 identification was reliable beyond a reasonable doubt. Id. Furthermore, the post-conviction 16 court concluded that there was “[n]othing in Arias’s identification of co-Defendant 17 Rodriguez at trial was grounds for either Rodriguez or Cordova to move for a mistrial.” Id. 18 Petitioner’s counsel had renewed her motion to sever and challenged the identification. Id. 19 The appellate court adopted the post-conviction court’s ruling. Cordova, 2018 WL 20 4781486, at ¶ 4. 21 To be successful in the first instance, Petitioner needed to show that trial counsel’s 22 performance was deficient and that there is a reasonable probability that the trial court 23 would have granted the motion for mistrial or objection to the in-court identification. See 24 Knowles, 556 U.S. at 122. To prevail here, Petitioner must show that the state courts were 25 unreasonable in their conclusions. See Richter, 562 U.S. at 100. 26 Here, after the robbery, the victim was shown some six photographs, including 27 Rodriguez. (Doc. 32-2 at 58.) He was unable to identify any of the photographs as the 28 woman who had lured him into the alleyway. Id. During the investigation, the victim was

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1 also shown a single picture of Rodriguez and still did not identify her as the woman that 2 had tricked him into the alley. Id. at 71-72. At trial, however, the victim made an in-court 3 identification of Rodriguez as the person who had led him into the alleyway. Id. at 57. Both 4 defense counsel vigorously cross-examined him about this discrepancy, and Rodriguez’s 5 counsel pointed out that the victim had seen Rodriguez walk out of the courtroom with 6 guards and that she was the only Hispanic woman at the defense table. Id. at 62, 64, 67-69, 7 71-72. Petitioner’s counsel renewed her motion to sever based on the identification of 8 Rodriguez; the trial court denied the motion. Id. at 89. The trial court instructed the jury 9 that “[t]he State must prove beyond a reasonable doubt that [the victim’s] in-court 10 identification of the defendant . . . Rodriguez at this trial is reliable.” (Doc. 32-4 at 13.) 11 Finally, both defense counselors attacked the identification during their closing arguments. 12 Id. at 32, 57. 13 Petitioner’s counsel’s performance was not deficient by failing to object to the 14 in-court identification. First, counsel vigorously attacked the identification multiple times 15 before the jury. (Doc. 32-2 at 67-69, 71-72; Doc. 32-4 at 57.) Second, counsel renewed her 16 motion to sever. (Doc. 32-2 at 89.) Third, the decision to argue for severance instead of 17 mistrial or object to the identification was a reasonable strategic decision. See Strickland, 18 466 U.S. at 689. 19 Petitioner did not satisfy the first prong of Strickland and has not shown that the 20 state courts’ rulings were objectively unreasonable or contrary to established federal law. 21 See Richter, 562 U.S. at 100. Thus, the claims in Ground Seven have no merit. 22 Ground Eight: Petitioner claims his trial counsel was ineffective because she failed 23 to inform him of his right to testify, which he would have exercised. (Doc. 6-1 at 126.) 24 Petitioner asserts that he wanted to testify regarding his history with the officers to show 25 that “these charges were not founded out of good, honest police work.” Id. His attorney’s 26 investigator did “a few prep runs” with him, but his attorney decided she would not “put 27 [him] on the stand because the state bears an extremely heavy burden.” Id. During the trial, 28 he again urged his attorney to let him testify that “this [case] was the product of vindication,

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1 not justice.” Id. at 127. She refused. Id. 2 The post-conviction court rejected Petitioner’s claim as waived. Id. at 71-72. The 3 court focused on Petitioner’s claim that his counsel refused to allow him to testify and 4 advised him to not testify. Id. But it indicated that “If Cordova had testified at trial, he 5 would have been subject to cross-examination regarding a previous felony conviction.” Id. 6 at 72. The court also noted that Cordova had been convicted of “aggravated assault with a 7 deadly weapon.” Id. at 72 n.8. The appellate court adopted the post-conviction court’s 8 ruling and noted that Petitioner failed to cite anything “suggesting he was unaware of his 9 right to testify.” Cordova, 2018 WL 4781486, at ¶ 4. Indeed, as described below Petitioner 10 was aware of his right to testify and that the decision rested with him because the trial court 11 instructed the jury accordingly. 12 To be successful in the first instance, Petitioner needed to show that trial counsel’s 13 performance was deficient and that there is a reasonable probability that the outcome would 14 have been different had he been informed of his right to testify. See Knowles, 556 U.S. at 15 122. To prevail here, Petitioner must show that the state courts were unreasonable in their 16 conclusions. See Richter, 562 U.S. at 100. 17 Here, Petitioner neither testified nor told the trial court that he wished to testify. 18 (Docs. 32-2, 32-3, 32-4.) Before closing arguments, the trial court provided several 19 instructions to the jury, including: “A defendant is not required to testify. The decision on 20 whether or not to testify is left to a defendant acting with the advice of an attorney.” (Doc. 21 32-4 at 10.) 22 First, Petitioner was aware of his right to testify and that the decision rested with 23 him because the trial court instructed the jury as such. Id. After hearing that the decision 24 was left to him, he did not object or notify the trial court that he had wanted to testify. (Doc. 25 32-4 at 10-100.) “A defendant is ‘presumed to assent to his attorney’s tactical decision not 26 to have him testify.’” United States v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir. 1999) 27 (quoting United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993)). “[W]aiver of the right 28 to testify may be inferred from the defendant’s conduct and is presumed from the

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1 defendant’s failure to testify or notify the court of his desire to do so.” Id. at 195 (alteration 2 in Pino-Noriega) (quoting Joelson, 7 F.3d at 177). Thus, the state courts were not 3 unreasonable in its ruling that Petitioner implicitly waived his right to testify and cannot 4 now argue that he had wanted to testify. See id. Further, Petitioner has not shown that there 5 was a reasonable probability that the outcome would have been different had he been 6 informed of his right to testify, or had he testified. 7 Hence, Petitioner has not established that he received ineffective assistance of 8 counsel or that the state courts’ rulings were unreasonable or contrary to established federal 9 law. See Richter, 562 U.S. at 100. Thus, the claim in Ground Eight lacks merit. 10 RECOMMENDATION 11 Petitioner’s claims in grounds Two, and Four and parts of grounds Three and Eight 12 were barred from review because they are procedurally defaulted without excuse or not 13 cognizable in this proceeding. His remaining claims lack merit. Accordingly, it is 14 recommended that the district court, after its independent review, deny and dismiss the 15 Amended Petition. 16 Pursuant to 28 U.S.C. § 636(b)(1) and 72(b)(2), Fed. R. Civ. P., any party may serve 17 and file written objections within fourteen days of being served with a copy of the Report 18 and Recommendation. A party may respond to the other party’s objections within fourteen 19 days. No reply brief shall be filed on objections unless leave is granted by the district court. 20 If objections are not timely filed, they may be deemed waived. The Clerk of Court is 21 directed to terminate the referral of this matter. Filed objections should bear the following 22 case number: 4:20-cv-00163-TUC-SHR. 23 Dated this 16th day of June, 2021. 24 25 26 27 28

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