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6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 7 Eric Shaw Gibson, 8 Petitioner CV-17-3773-PHX-SPL (JFM) -vs- 9 Charles L. Ryan, et al., Report & Recommendation Respondents. on Petition for Writ of Habeas Corpus 10 11 I. MATTER UNDER CONSIDERATION 12 Petitioner, presently incarcerated in the Arizona State Prison Complex at 13 Buckeye, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 14 2254 on October 12, 2017 (Doc. 1). On February 20, 2018 Respondents filed their 15 Response (Doc. 16). Petitioner filed a Reply on March 23, 2018 (Doc. 28). 16 The Petitioner's Petition is now ripe for consideration. Accordingly, the 17 undersigned makes the following proposed findings of fact, report, and recommendation 18 pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules 19 of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil 20 Procedure. II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND 21 A. FACTUAL BACKGROUND 22 Petitioner’s “convictions stem from two robberies Defendant committed in Tempe 23 on January 8, 2010, and January 14, 2010, of, respectively, an Arizona Federal Credit 24 Union, and a Bank of America.” (Exhibit U, Mem. Dec. 2/5/13.) (Exhibits to the 25 Answer, Docs. 16-25 and 27, are referenced herein as “Exhibit ___.”) 26 / / 27 1 B. PROCEEDINGS AT TRIAL 2 Waiver of Probable Cause - A Direct Complaint (Exhibit A) was filed charging 3 Petitioner in two counts of robbery. Subsequently, an Information (Exhibit E) on the 4 same charges was filed. In responding to Petitioner’s Motion to Dismiss for Lack of 5 Jurisdiction, the prosecution recounted:
6 The defendant’s three pending cases were all [designated] as fast track cases. A status conference was held on 02/05/10, before 7 Commissioner Cunanan. The defendant and his attorney, Ian Fischer, were present at the hearing. The State proffered a fast track 8 plea agreement to the defendant, and the defendant signed a Waiver of the Probable Cause Hearing. The Court advised the defendant 9 that the arraignment would be deferred “for approximately 28 days.” Commissioner Cunanan then set the “arraignment or change 10 of plea” on 03/15/10, before Judge Duncan. The parties next participated in a settlement conference 11 before Commissioner Lynch on 03/08/10. Deputy County Attorney Susan Luder handled the case at that time and she noted that the 12 defendant was argumentative at the settlement conference. Ms. Luder told the defendant and his counsel that if he rejected the plea 13 agreement at the Not Guilty Arraignment that no further offers would be made. 14 Judge Duncan, sua sponte, vacated the Fast Track-Not Guilty Arraignment set for 03/15/10, and reset it to 03/19/10. 15 The Not Guilty Arraignment was held as re-scheduled on 03/19/10, before Judge Duncan, who Duncan gave the Defendant a 16 Donald Advisement. Deputy County Attorney Jefferson Simmons noted that the defendant rejected the plea offer. 17 (Exhibit K, Response to MTD at 1-2.) 18 The Waiver of Probable Cause Hearing, included the following provisions 19 regarding the preliminary hearing: 20 C. The State has extended a plea offer in my case. In order to 21 allow the plea offer to remain open up to and including the date of Arraignment, I agree to waive my right to a Preliminary Hearing 22 and agree to schedule this matter for an Arraignment in approximately 28 days, subject to the limitations set forth in 23 subsection D.
24 D. I further understand and agree that the plea agreement the State has extended can be revoked at any time prior to its entry and 25 acceptance by the court. I further understand that if such plea offer is revoked, unless I consent to changes by the State regarding the 26 plea offer, that my waiver of a Preliminary Hearing is revoked, and the State has up to 5 court days to obtain a probable cause 27 determination unless the court allows additional time. If no probable 1 (Exhibit D, Waiver at 1.) 2 Waiver of Counsel - Plaintiff moved to waive his right to counsel, which was 3 granted on June 15, 2010. (See Exhibit QQ, R.T. 6/15/10.) The Arizona Court of 4 Appeals summarized:
5 Before trial, Defendant filed a Motion to Change Counsel in which he asked that his two appointed attorneys withdraw and that 6 he be allowed to represent himself. The trial court held a hearing during which it reviewed Defendant's request and its consequences 7 with Defendant and his two trial attorneys. The court then obtained a signed waiver form from Defendant. Based on the totality of the 8 circumstances, the trial court then found that Defendant "knowingly, intelligently and voluntarily" waived his right to representation by 9 an attorney and granted his request to represent himself at trial with the assistance of advisory counsel. 10 (Exhibit U, Mem. Dec. at 2-3.) The court elaborated on the hearing: 11 At the outset of the hearing, the trial court cautioned Defendant that 12 an attorney would be of "great value and assistance in a criminal case." When it became apparent that Defendant's desire to represent 13 himself was the result of disagreements with his attorneys over trial tactics, the trial court specifically warned Defendant that their 14 differences of opinion "may well have to do with the fact that they are trained in the law and are experienced in the law and they know 15 what will work and what will not work." Defendant stated, "I have taken that into consideration, but this is . . . what I’m requesting." 16 (Id. at 4-5.) 17 Motion to Suppress – “Before trial, Defendant moved to suppress his cell phone 18 records and the evidence derived from those records based on the fact that he had not 19 given Tempe Police permission to take his cell phone and obtain the security code to ‘try 20 and search through it.’” (Exhibit U, Mem. Dec. at 6-7.) “The cell phone records 21 established that, on the night of the Arizona Federal Credit Union robbery, cell phone 22 towers showed Defendant's cell phone activated in the vicinity of the credit union shortly 23 after the robbery. The phone also contained incriminating text messages.” (Id. at 6, n. 24 4.) 25 The Arizona Court of Appeals summarized the facts surrounding the seizure of 26 the cell phone: 27 1 tshtiell cinel lt hpeh poonses ewssitihoinn o4f8 t hheo juarisl aouft hDoerfiteineds.a Tnth'se aterrsetismt, ownyh ifleu ri tt hwe ales 2 established that bank surveillance video showed Defendant with an orange-colored cell phone that appeared similar to the one in jail 3 property. Information pertaining to the cell phone, its subscriber 4 records and its content came in three stages. First, Detective Crites removed the rear cover and battery from the phone, and observed 5 the IMEI number printed on a sticker on the inside back of the phone. Second, Detective Crites used that number to obtain a court 6 order permitting disclosure of subscriber information. Finally, he obtained a search warrant for the contents of the phone using 7 independently obtained evidence as the basis for the warrant. 8 (Id.at 7-8.) The motion was denied. (Id. at 7.) 9 Motion to Sever – “Before trial Defendant moved to sever the two counts of 10 robbery for trial, arguing that ‘the two robberies occurred on two separate days,’ and if 11 he were tried for both at the same time, he would not ‘get a fair trial.’” (Exhibit U, 12 Mem. Dec. at 9.) The motion was denied as insufficient, and was then reurged by 13 Petitioner and again denied on the basis that joinder was appropriate under Arizona Rule 14 of Criminal Procedure 13.3(a)(1), and the evidence of each was admissible in the trial of 15 the other under Arizona Rule of Evidence 404(b). 16 Trial - Petitioner proceeded to trial pro se and was convicted on each of the 17 charges, and the jury made findings of aggravating circumstances with regard to each, 18 including being on parole at the time of the offenses. (Exhibits G, H, I and J, Verdicts.) 19 Probable Cause Motion and Special Action - After trial, but before sentencing, 20 Petitioner filed a Motion to Dismiss for Lack of Jurisdiction, arguing that his waiver of a 21 probable cause determination was terminated (or revoked). The court denied the motion. 22 (Exhibit DDD, R.T. 3/4/11 at 18.) 23 Petitioner the filed with the Arizona Court of Appeals a Petition for Special 24 Action (Exhibit HHH), arguing error on the denial of a probable cause hearing. On 25 April 22, 2011, the Arizona Court of Appeals declined jurisdiction. (Petition, Doc. 1 at 26 Exhibits, Order 4/22/11.) 27 Sentencing - On June 21, 2011, Petitioner was sentenced to concurrent sentences 1 C. PROCEEDINGS ON DIRECT APPEAL 2 Petitioner filed a Notice of Appeal (Exhibit M), and filed through appointed 3 counsel an Opening Brief (Exhibit R), arguing: (1) the trial court erred in allowing 4 Petitioner to waive counsel without advising him that he was thereby waiving his 5 constitutional right to effective counsel; (2) constitutional violations through the 6 warrantless seizure of Petitioner’s cell phone; and (3) the trial court erred in denying the 7 motion to sever trial of the two counts. 8 On February 5, 2013, the Arizona Court of Appeals affirmed Petitioner’s 9 convictions and sentences. The court concluded: “Nothing in the colloquy in any way 10 could be interpreted to have misled Defendant into believing that he would have a right 11 to relief from a conviction if his own self-representation proved ineffective…The trial 12 court was not required specifically to advise Defendant that he was waiving the right to 13 the effective assistance of counsel.” (Exhibit U, Mem. Dec. at 6.) 14 The court concluded that the “visual examination of the telephone to obtain the 15 IMEI number was not an impermissible search,” and “the remaining information was 16 obtained pursuant to valid court orders.” (Id. at 8.) 17 The court concluded that the reversal based on the failure to sever was not 18 warranted because Petitioner had not renewed his motion at trial as required by Arizona 19 Rule of Criminal Procedure 13.4(c), and thus was waived. The court also concluded that 20 Petitioner had not requested fundamental error review nor shown prejudice to avoid the 21 waiver. (Id. at 10-11.) 22 Petitioner did not seek further review. (Exhibit U, Mandate; Petition, Doc. 1 at 23 3.) 24 D. PROCEEDINGS ON POST-CONVICTION RELIEF 25 1. First PCR Proceeding 26 On November 7, 2011, during the pendency of his direct appeal, Petitioner 27 commenced his first post conviction relief proceeding by filing a Notice of Post- 1 Conviction Relief (Exhibit N). Counsel was appointed (Exhibit O, Order 11/14/11), who 2 filed a Motion to Stay (Exhibit P) seeking to stay the proceeding pending completion of 3 direct appeal. The motion was denied as unauthorized, and the proceeding was 4 dismissed with leave to refile after completion of direct appeal. (Exhibit Q, Order 5 2/7/12.) 6 Petitioner did not seek further review. Petitioner alleges in his Petition that he 7 sought review by both the Arizona Court of Appeals and the Arizona Supreme Court in 8 his first and second PCR proceeding. (Petition, Doc. 1 at 5.) However, the proceedings 9 he references are not this first PCR proceeding, but his second PCR proceeding filed 10 with the trial court on March 11, 2013 and denied by the Arizona Court of Appeals on 11 December 6, 2016. (Id. at 4.) 12 13 2. Second PCR Proceeding 14 After denial of his direct appeal, Petitioner commenced his second PCR 15 proceeding by filing on March 11, 2013 a second Notice of Post-Conviction Relief 16 (Exhibit V). Counsel was again appointed (Exhibit W, Order 3/18/13), but counsel 17 eventually filed a Notice (Exhibit X) evidencing an inability to find an issue for review. 18 The court granted Petitioner leave to file a pro per petition, and counsel was ordered to 19 remain in an advisory capacity. (Exhibit Y, Order 10/21/13.) 20 After the denial of motions for new counsel, continuances, to exceed page limits, 21 etc. (see Exhibit Z, M.E. 11/15/13; Exhibit AA, Motion to Exceed; Exhibit BB, M.E. 22 12/23/13), on February 26, 2014, the court dismissed the proceeding based on 23 Petitioner’s failure to file his petition (Exhibit CC, M.E. 2/26/14.) Petitioner sought 24 reconsideration (Exhibit DD), which was granted. (Exhibit EE, M.E. 5/5/14.) 25 In the meantime, Petitioner had sought review of the dismissal by the Arizona 26 Court of Appeals. That court dismissed the petition as moot, based on the PCR court’s 27 vacating of the dismissal and reinstatement of the proceeding. (Petition, Doc. 1, 1 On May 23, 2014, Petitioner filed his “Supplemental Petition” (Exhibit FF) 2 arguing that his “trial, appellate, and post-conviction counsel were all ineffective by: (1) 3 failing to raise the issue that he never received a determination of probable cause; and (2) 4 failing to raise the issue that the photo line-up shown to witnesses was unduly 5 suggestive.” (Exhibit GG, Response at 7-8.) 6 The PCR court summarily denied the Petition for failing to raise a colorable claim 7 for relief. (Exhibit II, Order 10/14/14.) 8 Petitioner then filed a Petition for Review (Exhibit JJ) arguing error in denying 9 his claims of ineffective assistance without an evidentiary hearing, and, according to the 10 state, asserting new claims under Arizona Rule of Criminal Procedure 32.1(b) and (h). 11 (See Exhibit LL, Amended Response.) Included in Petitioner’s Petition was the 12 assertion that the state had breached the terms of their agreement in the Waiver. (Exhibit 13 JJ, Pet.Rev. at 7.) 14 On December 6, 2016, the Arizona Court of Appeals granted review but denied 15 relief, explicitly adopting the trial court’s reasoning on Petitioner’s “claims of ineffective 16 assistance of trial and appellate counsel.” (Exhibit NN, Mem. Dec. 12/6/16 at 2, ¶ 3.) 17 Petitioner did not seek further review. (Exhibit NN, Mandate 1/26/17.) 18 Petitioner alleges in his Petition that he sought review of his second PCR proceedings by 19 the Arizona Supreme Court. (Doc. 1 at 5.) However, Petitioner provides no evidence of 20 seeking such review. The Mandate (Exhibit NN) refutes this contention. 21 E. PRESENT FEDERAL HABEAS PROCEEDINGS 22 Petition - Petitioner commenced the current case by filing his Petition for Writ of 23 Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 12, 2017 (Doc. 1). Petitioner’s 24 Petition asserts the following three grounds for relief: “In Grounds One and Two, 25 Petitioner alleges claims for the ineffective assistance of trial and appellate counsel. In 26 Ground Three, Petitioner alleges that he was denied a preliminary hearing or indictment, 27 1 Response - On February 20, 2018 Respondents filed their Answer (Docs. 16-25, 2 27). Respondents concede that Petitioner has exhausted his state remedies on his claims, 3 the claims of ineffective assistance are without merit under the limitations of 28 U.S.C. § 4 2254, and that Ground Three is a state law claim not cognizable on habeas review, and is 5 without merit. 6 Reply - On March 23, 2018, Petitioner filed a Reply (Doc. 28). Petitioner argues 7 the merits of his grounds for relief. 8 9 III. APPLICATION OF LAW TO FACTS A. STANDARD OF REVIEW 10 Respondents argue that Petitioner fails to show he is entitled to relief under 28 11 U.S.C. § 2254. 12 While the purpose of a federal habeas proceeding is to search for violations of 13 federal law, in the context of a prisoner “in custody pursuant to the judgment a State 14 court,” 28 U.S.C. § 2254(d) and (e), not every error justifies relief. Rather, statutes 15 limiting habeas review “reflects the view that habeas corpus is a ‘guard against extreme 16 malfunctions in the state criminal justice systems,’ not a substitute for ordinary error 17 correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011). 18 Errors of Law - “[A] federal habeas court may not issue the writ simply because 19 that court concludes in its independent judgment that the state-court decision applied [the 20 law] incorrectly.” Woodford v. Visciotti, 537 U. S. 19, 24– 25 (2002) (per curiam). To 21 justify habeas relief, a state court’s decision must be “contrary to, or an unreasonable 22 application of, clearly established Federal law, as determined by the Supreme Court of 23 the United States” before relief may be granted. 28 U.S.C. §2254(d)(1). 24 The Supreme Court has instructed that a state court decision is “contrary to” 25 clearly established federal law “if the state court applies a rule that contradicts the 26 governing law set forth in [Supreme Court] cases or if the state court confronts a set of 27 1 nevertheless arrives at a result different from [its] precedent.” Lockyer v. Andrade, 538 2 U.S. 63, 73 (2003) (internal quotation marks omitted). 3 To show an unreasonable application, “a state prisoner must show that the state 4 court's ruling on the claim being presented in federal court was so lacking in justification 5 that there was an error well understood and comprehended in existing law beyond any 6 possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. 7 Errors of Fact and Evidentiary Hearings - Federal courts are further 8 authorized to grant habeas relief in cases where the state-court decision “was based on an 9 unreasonable determination of the facts in light of the evidence presented in the State 10 court proceeding." 28 U.S.C. § 2254(d)(2). "Or, to put it conversely, a federal court 11 may not second-guess a state court's fact-finding process unless, after review of the state- 12 court record, it determines that the state court was not merely wrong, but actually 13 unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). “Moreover, 14 implicit findings of fact are entitled to deference under § 2254(d) to the same extent as 15 explicit findings of fact.” Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008). 16 See also Watkins v. Rubenstein, 802 F.3d 637, 649 (4th Cir. 2015). 17 Moreover, a state prisoner is not free to attempt to retry his claims in the federal 18 courts by presenting new evidence. “[W]hen we are reviewing state-court decisions 19 under AEDPA…petitioners may introduce new evidence in federal court only for claims 20 that we review de novo.” Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014). 21 Even where the habeas court is reviewing a claim de novo, there is a well- 22 established presumption of correctness of state court findings of fact. This presumption 23 has been codified at 28 U.S.C. § 2254(e)(1), which states that "a determination of a 24 factual issue made by a State court shall be presumed to be correct" and the petitioner 25 has the burden of proof to rebut the presumption by "clear and convincing evidence." 26 This presumption of correctness applies not only to the explicit factual fndings by the 27 state court, but to the implicit factual findings as well. See Tinsley v. Borg, 895 F.2d 1 correctness in appropriate circumstances); see also Taylor v. Horn, 504 F.3d 416, 433 2 (3d Cir.2007) (“Implicit factual findings are presumed correct under § 2254(e)(1) to the 3 same extent as express factual findings.”). 4 Further, when a claim is reviewed de novo, the petitioner may not obtain an 5 evidentiary hearing if he has “failed to develop” the record in the state courts, unless he 6 meets certain stringent showings related to justification for the delay in developing the 7 record, 28 U.S.C. § 2254(e)(2)(A), and that the new evidence will show a lack of 8 evidence to convict, 28 U.S.C. § 2254(e)(2)(B). 9 Finally, even where permitted an evidentiary hearing the petitioner “must meet 10 one of the Townsend [v. Sain, 372 U.S. 293 (1963)] factors and make colorable 11 allegations that, if proved at an evidentiary hearing, would entitle him to habeas relief." 12 Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2004). 13 Applicable Decisions – In evaluating state court decisions, the federal habeas 14 court looks through summary opinions to the last reasoned decision. Robinson v. 15 Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 16 No Decision on the Merits – The limitations of 28 U.S.C. § 2254(d) only apply 17 where a claim has been “adjudicated on the merits in State court.” Thus, where a 18 petitioner has raised a federal claim to the state courts, but they have not addressed it on 19 its merits, then the federal habeas court must address the claim de novo, and the 20 restrictive standards of review in § 2254(d) do not apply. Johnson v. Williams, 133 S.Ct. 21 1088, 1091-92 (2013). See id. (adopting a rebuttable presumption that a federal claim 22 rejected by a state court without being expressly addressed was adjudicated on the 23 merits). 24 B. GROUND 3: PROBABLE CAUSE DETERMINATION 25 Because Grounds 1 and 2 are, to some extent, derivative of Ground 3, the 26 undersigned addresses Ground 3 at the outset. 27 1 In Ground 3, Petitioner argues that he never received a preliminary hearing or 2 other finding of probable cause, and that his waiver of a probable cause hearing was 3 ineffective because the plea offer expired and was revoked. (Petition, Doc. 1 at 8.) 4 Petitioner does not state the legal basis for his claim, and does not identify any federal 5 constitutional provision or federal statute as the basis of his claim. 6 Respondents argue that Ground 3 fails to state a federal claim, that the lack of a 7 federal right to a grand-jury indictment or preliminary hearing is fatal to any federal 8 claim, and that any state law claim is not cognizable on habeas review. (Answer, Doc. 9 16 at 18-19.) Respondents further argue that Ground 3 is without merit because: (1) the 10 state court reasonable found he validly waived any right to a probable cause 11 determination; and (2) because he was convicted of the petit jury at trial, Petitioner 12 cannot show prejudice. (Id. at 19.) 13 Petitioner replies that a probable cause determination is not only guaranteed by 14 state law, but by the Due Process Clause of the U.S Constitution, and was an obligation 15 of the prosecution under the terms of the contractual waiver. (Reply, Doc. 28 at 5, et 16 seq.) 17
18 2. State Court Decision 19 Here, the last reasoned decision on Petitioner’s claims regarding the probable 20 cause determination was that of the PCR court in the second PCR proceeding. The PCR 21 court made the following findings: 22 The court finds the defendant waived his right to a probable cause 23 determination by executing the form captioned Waiver of Probable Cause Hearing, Continuance and Order dated February 5, 2010. 24 Defendant subsequently rejected the plea offer extended by the State. The State did not revoke the plea offer prior to the 25 defendant’s rejection of that plea offer. Thus, the defendant was not entitled to a probable cause hearing under the terms of the written 26 waiver. 27 (Exhibit II, Order 10/14/14 at 3.) The Arizona Court of Appeals adopted this analysis by 1 Petitioner’s Petition fails to state any federal basis for his claim. In his Reply, 2 Petitioner clarifies that he relies upon the Due Process Clause of the U.S. Constitution. 3 Because Respondents have adequately refuted such a claim, the undersigned proceeds to 4 address its merits. 5
6 4. State Law Claim Not Cognizable 7 Petitioner references his rights to a preliminary hearing under provisions of the 8 Arizona Constitution and laws. “But it is only noncompliance with federal law that 9 renders a State's criminal judgment susceptible to collateral attack in the federal courts. 10 The habeas statute unambiguously provides that a federal court may issue the writ to a 11 state prisoner ‘only on the ground that he is in custody in violation of the Constitution or 12 laws or treaties of the United States.’ 28 U.S.C. § 2254(a). And we have repeatedly held 13 that ‘ ‘federal habeas corpus relief does not lie for errors of state law.’ ’ ” Wilson v. 14 Corcoran, 562 U.S. 1, 5 (2010). 15 Further, violations of state law, without more, do not deprive a petitioner of due 16 process. Cooks v. Spalding, 660 F.2d 738, 739 (9th Cir. 1981), cert. denied, 455 U.S. 17 1026 (1982). To qualify for federal habeas relief, an error of state law must be 18 “sufficiently egregious to amount to a denial of equal protection or of due process of law 19 guaranteed by the Fourteenth Amendment.” See Pully v. Harris, 465 U.S. 37, 41 (1984). 20 To sustain such a due process claim founded on state law error, Petitioner must show that 21 the state court "error" was "so arbitrary and fundamentally unfair that it violated federal 22 due process." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (quoting 23 Reiger v. Christensen, 789 F.2d 1425, 1430 (9th Cir.1986)). To receive review of what 24 otherwise amounts to nothing more than an error of state law, a petitioner must argue 25 “not that it is wrong, but that it is so wrong, so surprising, that the error violates 26 principles of due process”; that a state court’s decision was “such a gross abuse of 27 discretion” that it was unconstitutional. Brooks v. Zimmerman, 712 F.Supp. 496, 498 1 (W.D.Pa.1989). 2 Petitioner proffers nothing to suggest that any denial of a preliminary hearing 3 amounted to such an egregious violation. Rather, as discussed hereinafter, the refusal of 4 a preliminary hearing was at least arguably justified under the facts and state law. 5 5. No Due Process Right to Probable Cause Determination 6 Contrary to Petitioner’s arguments in his Reply, the Due Process Clause of the 7 Fourteenth Amendment to the United States Constitution does not mandate a probable 8 cause determination prior to the institution of a state prosecution. 9 The Supreme Court has long held that Due Process under the 5th and 14th 10 Amendments do not mandate a grand jury in state prosecutions. “[I]n the sense of the 11 constitution, ‘due process of law’ was not meant or intended to include, ex vi termini, the 12 institution and procedure of a grand jury in any case. The conclusion is equally 13 irresistible, that when the same phrase was employed in the fourteenth amendment to 14 restrain the action of the states, it was used in the same sense and with no greater extent; 15 and that if in the adoption of that amendment it had been part of its purpose to perpetuate 16 the institution of the grand jury in all the states, it would have embodied, as did the fifth 17 amendment, express declarations to that effect.” Hurtado v. People of State of Cal., 110 18 U.S. 516, 534 (1884). “Indictment by grand jury is not part of the due process 19 guarantees of the Fourteenth Amendment that apply to state criminal defendants.” 20 Jeffries v. Blodgett, 5 F.3d 1180, 1188 (9th Cir. 1993). 21 Nor does Due Process mandate any preliminary determination of probable cause 22 to sustain a prosecution. “The Federal Constitution does not secure to a state court 23 defendant a right to a preliminary hearing.” Ramirez v. State of Ariz., 437 F.2d 119, 119 24 (9th Cir. 1971), abrogated on other grounds by Ross v. Oklahoma, 487 U.S. 81 (1988). 25 “A defendant in a state court is not entitled to a preliminary examination by virtue of a 26 federal constitutional right.” Pearce v. Cox, 354 F.2d 884, 891 (10th Cir. 1965). 27 1 It is true that a finding of probable cause is required to maintain detention of the 2 accused under the Fourth Amendment. Peterson v. California, 604 F.3d 1166, 1169 (9th 3 Cir. 2010). “[T]he Fourth Amendment requires a judicial determination of probable 4 cause as a prerequisite to extended restraint of liberty following arrest.” Gerstein v. 5 Pugh, 420 U.S. 103 (1975). But that finding need not be made in the context of a 6 preliminary hearing. Peterson, 604 F.3d at 1169. Indeed, the “full panoply of adversary 7 safeguards—counsel, confrontation, cross-examination, and compulsory process for 8 witnesses,” normally required by states in their preliminary hearings, “are not essential 9 for the probable cause determination required by the Fourth Amendment.” Gerstein, 420 10 U.S. at 119-120. Moreover, “although a suspect who is presently detained may 11 challenge the probable cause for that confinement, a conviction will not be vacated on 12 the ground that the defendant was detained pending trial without a determination of 13 probable cause.” Gerstein v. Pugh, 420 U.S. 103, 119 (1975). 14 Thus, any denial of a probable cause determination in the state court, whether to 15 maintain the prosecution or to justify detention pending trial, would not of itself justify 16 habeas relief. 17
18 7. No Breach of Contract 19 Petitioner argues that the enforcement of his waiver of a probable cause 20 determination was a violation of his agreement with the prosecution. 21 Ordinarily a due process right to enforcement of the prosecutions’ agreements is 22 recognized in the context of a plea or immunity agreement, see e.g. Santobello v. New 23 York, 404 U.S. 257, 262 (1971) (breach of plea agreement); Robinson, Equitable 24 Immunity, 2 Crim. L. Def. § 204.50 (“The concept of equitable immunity posits that if a 25 promise of immunity induces a defendant to co-operate with the government to her 26 detriment, then due process requires that the prosecutor keep the promise.”). 27 Nonetheless, the undersigned presumes, arguendo, that a breach of any agreement by the 1 prosecution with a defendant would amount to a violation of due process. 2 But here, the state court made a determination that the agreement was not 3 breached because Petitioner’s waiver only terminated if the prosecution “revoked” its 4 plea offer prior to Petitioner’s rejection of it, and that Petitioner rejected the plea offer. 5 (Exhibit II, M.E. 10/14/14 at 3.) 6 Petitioner fails to show that these determinations were unreasonable. Indeed, he 7 alleges “At this time the states’ prosecutor Susan Luder offered a Plea offer wich [sic] 8 Mr. Gibson declined and asserted his right to go to trial.” (Petition, Doc. 1 at 6.) 9 The agreement between the parties provided that the right to a preliminary hearing 10 was waived. (Exhibit D, Waiver at ¶ C.) The only provision made for reinstating the 11 right to a preliminary hearing was “if such plea offer is revoked.” (Id. at ¶ D.) 12 Petitioner fails to show that the plea offer was revoked. Instead, the record is clear that 13 Petitioner rejected the plea offer.
14 THE COURT: All right. Is this going to be just an arraignment? Are there pleas? What's the status? 15 MR. WHITNEY: There are three plea offers on the table for each of the -- one for each of the three cases, obviously. We had a 16 settlement conference about a week and a half ago. So that's been fully discussed. Mr. Gibson does not wish to accept the plea offers, 17 and so I think it's just an arraignment at this point.
18 * * *
19 THE COURT: When does the plea expire? MR. WHITNEY: Our understanding is it expires today, 20 because it's, quote-unquote, a fast track case.
21 * * *
22 THE COURT: Okay. Is it your desire or do you want to not take the pleas? 23 THE DEFENDANT: No, I don't want to take the pleas. THE COURT: Okay. All right. And do you understand that 24 after today the plea offer goes away. THE DEFENDANT: They're finished. 25 THE COURT: Okay. And they don't ever have to come back and they don't have to be as good. Is that part clear? 26 THE DEFENDANT: Yes, ma'am. THE COURT: Okay. All right. Let me go forward with the 27 arraignment. 1 Petitioner counters by pointing to: (a) the expiration clause of the plea offer which 2 provided “THIS OFFER EXPIRES AND IS REVOKED IF NOT ENTERED IN 3 COURT BY MARCH 15, 2010,” (Reply, Exhibit R-B, Plea Agreement); and (b) to the 4 hearing on his motion to waive counsel, where the following occurred:
5 THE COURT: Okay. Go ahead, Mr. Gibson. Did you have something else? 6 THE DEFENDANT: I had a couple of questions. I just wanted to know -- I want to ask you a question. If a plea expires or 7 is taken off the table, is that considered it being revoked? THE [COURT]: Yes. 8 THE [DEFENDANT]: That's all I wanted to know. THE COURT: It does. 9 THE DEFENDANT: That's all I wanted to know. That's all I need to know. 10 THE COURT: And whether or not a plea offer is made to you is ultimately up to the County Attorney's Office. 11 THE DEFENDANT: Oh, all right. THE COURT: And because a plea offer expires doesn't mean 12 that the County Attorney can't give you another plea. They certainly can. But that's ultimately up to them. 13 THE DEFENDANT: I just wanted to get that specific meaning out of the way because I would like after we're done here, I 14 want to ask the -- for a hearing to be set up like January -- June 30th or the 1st. I believe my due process rights were violated, so I want 15 to -- THE COURT: Well - - 16 THE DEFENDANT: I want - - THE COURT: Well, here -- right now we're talking about 17 whether THE DEFENDANT: I know. 18 THE COURT: - - you want to waive counsel or not…. 19 (Exhibit QQ, R.T. 6/15/10 at 12-13.) At most, the trial court, unaware of Petitioner’s 20 soon to be filed motion to dismiss, and thus unaware of the import of Petitioner’s choice 21 of words in asking about revocation, misspoke. 22 Plea agreements are contractual by nature and are measured by contract law 23 standards. United States v. Trapp, 257 F.3d 1053, 1056 (9th Cir. 2001). See also Coy v. 24 Fields, 200 Ariz. 442, 445, ¶ 9, 27 P.3d 799, 802 (App. 2001) (“Plea agreements are 25 contractual in nature and subject to contract interpretation.”). And, it is hornbook law 26 that revocation of an offer is distinct from expiration of an offer.
27 …offers…may be revoked by the offeror at any time prior to 1 that time period. 2 Revocation of offers, 1 Williston on Contracts § 5:8 (4th ed.). Expiration happens by the 3 mere passage of time.
4 Just as the offeror is at liberty to make no offer at all, it is also at liberty to dictate whatever terms it sees fit if it chooses to make an 5 offer. Among these requirements may be acceptance within a specified time, and if no acceptance is made within that time, the 6 power of acceptance necessarily expires 7 Lapse by expiration of time stated in offer, 1 Williston on Contracts § 5:5 (4th ed.). See 8 also Lapse of Time, Restatement (Second) of Contracts § 41 (1981). In contrast, 9 revocation requires affirmative action. “It is universally settled that a revocation requires 10 communication.” Revocation of offers—Revocation not effective until communicated, 1 11 Williston on Contracts § 5:9 (4th ed.). 12 Moreover, revocation of an offer is distinct from its termination by rejection.
13 When an offer has been rejected, it ceases to exist, and a subsequent attempted acceptance is inoperative, even though the acceptance is 14 made within a time which would have been sufficiently early had there been no rejection. 15 Rejection by offeree, 1 Williston on Contracts § 5:3 (4th ed.). 16 The trial court’s after-the-fact dicta on the effect of expiration as a revocation did 17 not alter the substance of the parties’ agreement, which plainly required a revocation, not 18 mere expiration, of the plea offer. 19 More importantly, even if expiration were the equivalent of a revocation, it would 20 not alter the effect of Petitioner’s plain rejection of the plea offer. The revocation clause 21 in the plea offer became moot (and thus never operative) when Petitioner rejected the 22 offer. Thus, Petitioner is simply wrong when he argues “that Mr. Gibson expressly 23 rejected the plea offer at his arraignment, which is true, but has absolutely nothing to do 24 with the state revoking their plea [offer].” Perhaps, had Petitioner not rejected the offer, 25 he might be able to rely upon the surplusage that upon expiration the offer would be 26 “revoked.” But he did reject it. It was his rejection, not any expiration or revocation, 27 1 Finally, this Court is bound by the determination of this state contract law issue 2 by the Arizona Court of Appeals (through its adoption of the PCR court’s decision), 3 rather than the determination of the trial court. 4 Because, as found by the state court, there was no revocation (rather, a rejection), 5 Petitioner remained bound by his waiver of his right to a preliminary hearing, and there 6 was no breach of the agreement. 7 8. Summary 8 Petitioner fails to show that any denial of a state right to a preliminary hearing or 9 other probable cause determination would justify federal habeas relief, that he had a 10 federal right to a probable cause determination that would justify relief, or that the state 11 court’s findings that the agreement for a waiver was not rendered inoperative was an 12 unreasonable determination of the facts. Accordingly, Ground Three is without merit 13 and should be denied. 14
15 C. GROUND 1: TRIAL COUNSEL INEFFECTIVE 16 1. Parties Arguments 17 In Ground 1, Petitioner argues that trial counsel was ineffective for failing to 18 demand a preliminary hearing. (Petition, Doc. 1 at 6.) 19 Respondents argue that the state court’s rejection of this claim in Petitioner’s 20 second PCR proceeding was not contrary to nor an unreasonable application of Supreme 21 Court law, and did not rest on an unreasonable factual determination. In particular, 22 Respondents point to the determination that the waiver remained intact because the plea 23 offer was rejected, not revoked, and thus the futility of a request. In addition, 24 Respondents point to the state court’s finding of a lack of prejudice, as demonstrated by 25 Petitioner’s conviction. (Answer, Doc. 16 at 16-17.) 26 Petitioner replies that counsel was deficient in failing to assert the revocation of 27 the waiver of a preliminary hearing, and that had he done so “the charges against the 1 The state court rejected this claim by finding that the waiver remained effective.1 2 (Exhibit II, Order 10/14/14 at 3.) 3
4 3. Applicable Standard on Ineffective Assistance 5 Generally, claims of ineffective assistance of counsel are analyzed pursuant to 6 Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, 7 Petitioner must show: (1) deficient performance - counsel’s representation fell below the 8 objective standard for reasonableness; and (2) prejudice - there is a reasonable 9 probability that, but for counsel’s unprofessional errors, the result of the proceeding 10 would have been different. Id. at 687-88. Although the petitioner must prove both 11 elements, a court may reject his claim upon finding either that counsel's performance 12 was reasonable or that the claimed error was not prejudicial. Id. at 697. 13 There is a strong presumption counsel’s conduct falls within the wide range of 14 reasonable professional assistance and that, under the circumstances, the challenged 15 action might be considered sound trial strategy. U.S. v. Quinterro-Barraza, 78 F.3d 16 1344, 1348 (9th Cir. 1995), cert. denied, 519 U.S. 848 (1996); U.S. v. Molina, 934 F.2d 17 1440, 1447 (9th Cir. 1991). The court should “presume that the attorneys made 18 reasonable judgments and decline to second guess strategic choices.” U.S. v. Pregler, 19 233 F.3d 1005, 1009 (7th Cir. 2000). 20 An objective standard applies to proving such deficient performance, and requires 21 a petitioner to demonstrate that counsel’s actions were “outside the wide range of 22 professionally competent assistance, and that the deficient performance prejudiced the 23 defense.” United States v. Houtcens, 926 F.2d 824, 828 (9th Cir. 1991) (quoting 24 Strickland, 466 U.S. at 687-90). The reasonableness of counsel’s actions is judged 25 from counsel’s perspective at the time of the alleged error in light of all the 26 27 1 circumstances. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Strickland, 466 U.S. 2 at 689. 3 “The law does not require counsel to raise every available nonfrivolous defense. 4 Counsel also is not required to have a tactical reason—above and beyond a reasonable 5 appraisal of a claim's dismal prospects for success—for recommending that a weak claim 6 be dropped altogether.” Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) (citations 7 omitted). 8 Moreover, it is clear that the failure to take futile action can never be deficient 9 performance. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.1996); Sexton v. Cozner, 10 679 F.3d 1150, 1157 (9th Cir. 2012). “The failure to raise a meritless legal argument 11 does not constitute ineffective assistance of counsel.” Baumann v. United States, 692 12 F.2d 565, 572 (9th Cir. 1982). 13 4. Application of Law 14 As discussed hereinabove in Section III(B)(6), with regard to Ground 3, 15 Petitioner’s underlying assertion that the plea offer was revoked, and thus the waiver of 16 preliminary hearing was waived, must be rejected. On that basis, any effort by trial 17 counsel to demand a preliminary hearing would have been futile, and thus cannot form 18 the basis of a claim of ineffective assistance. Rupe, 93 F.3d at 1445. 19 Accordingly, Ground 1 is without merit and must be denied. 20
21 D. GROUND 2: APPELLATE COUNSEL INEFFECTIVE 22 1. Parties Arguments 23 In Ground 2, Petitioner argues that appellate counsel was ineffective for failing to 24 raise a claim based on the failure to provide a preliminary hearing. (Petition, Doc. 1 at 25 7.) 26 Respondents argue that the waiver remained effective, and that any lack of a 27 preliminary hearing was mooted by Petitioner’s conviction. (Answer, Doc. 16 at 17-18.) 1 Petition for Special Action, the prosecution argued the issue could be raised on appeal. 2 (Reply, Doc. 28 at 19.) 3 2. State Court Decision 4 In addition to the conclusion that the waiver of preliminary hearing was not 5 validly revoked, and thus counsel was not ineffective in failing to raise the argument, the 6 PCR court concluded that appellate counsel could not assert the claim because it was 7 rendered moot by Petitioner’s conviction. (Exhibit II, Order 10/14/14 at 3 (citing Neese 8 v. Duran, 126 Ariz. 499, 503, 616 P.2d 959, 963 (App. 1980) and State v. Canaday, 117 9 Ariz. 572, 576, 574 P.2d 60, 64 (App. 1977)). 10
11 3. Application of Law 12 As discussed hereinabove in Section III(B)(6), with regard to Ground 3, 13 Petitioner’s underlying assertion that the plea offer was revoked, and thus the waiver of 14 preliminary hearing was revoked, must be rejected. On that basis, any effort by appellate 15 counsel to rely on the lack of a preliminary hearing would have been futile, and thus 16 cannot form the basis of a claim of ineffective assistance. Rupe, 93 F.3d at 1445. 17 On this basis, the undersigned concludes that Ground 2 must be denied. 18
19 4. Prejudice and Breach of Contract not Reached 20 The undersigned declines to also rely upon the state court’s reliance on the effect 21 of the conviction at trial as rendering the claim moot. It is true that Arizona holds that 22 “[p]rior to trial the question of whether probable cause exists is an open one, however, 23 after a full scale trial in which a jury determines guilt beyond a reasonable doubt the 24 question is closed.” State v. Neese, 126 Ariz. 499, 502–03, 616 P.2d 959, 962–63 (App. 25 1980). 26 However, the cited cases dealt with defects in the probable cause proceeding. See 27 Neese, supra (loss of grand jury transcript did not justify relief from conviction); 1 the parties had entered into a stipulation that (in the event of a revocation) if a timely 2 preliminary hearing was not held, the case would be dismissed without prejudice. 3 Moreover, while the state courts’ holding in this case might be deemed a 4 determination of state law binding on this court, state law was not the only authority 5 available to appellate counsel. And, the federal cases found similarly do not address a 6 stipulation to dismiss if no preliminary hearing were held. See e.g. Gerstein v. Pugh, 420 7 U.S. 103, 105 (1975) (state rule denying preliminary hearing when information filed by 8 prosecution); Coleman v. Alabama, 399 U.S. 1, 11 (1970) (denial of counsel at 9 preliminary hearing, remanding for prejudice determination); Adams v. Illinois, 405 U.S. 10 278, 284 (1972) (declining to make right to counsel at probable cause hearings 11 retroactive because of burden of need for case-by-case harmless error analysis). 12 Finally, it is at least arguable the state court did not reach the contract based 13 analysis raised by Petitioner, and thus the limitations under 28 U.S.C. § 2254(d) for 14 application of Supreme Court law might not apply. 15 Thus, if a contrary result were reached with regard to the revocation of the plea 16 and waiver, this Court could be required to resolve whether the stipulation to dismiss 17 were required to be enforced as a matter of due process. 18 E. SUMMARY 19 Based on the foregoing, the undersigned concludes that each of Petitioner’s 20 grounds for relief are without merit, and must be denied. Accordingly, the Petition 21 should be denied. 22
23 IV. CERTIFICATE OF APPEALABILITY 24 Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires 25 that in habeas cases the “district court must issue or deny a certificate of appealability 26 when it enters a final order adverse to the applicant.” Such certificates are required in 27 1 proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 2 U.S.C. § 2253(c)(1). 3 Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges 4 detention pursuant to a State court judgment. The recommendations if accepted will 5 result in Petitioner’s Petition being resolved adversely to Petitioner. Accordingly, a 6 decision on a certificate of appealability is required. 7 Applicable Standards - The standard for issuing a certificate of appealability 8 (“COA”) is whether the applicant has “made a substantial showing of the denial of a 9 constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the 10 constitutional claims on the merits, the showing required to satisfy § 2253(c) is 11 straightforward: The petitioner must demonstrate that reasonable jurists would find the 12 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 13 McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition 14 on procedural grounds without reaching the prisoner’s underlying constitutional claim, a 15 COA should issue when the prisoner shows, at least, that jurists of reason would find it 16 debatable whether the petition states a valid claim of the denial of a constitutional right 17 and that jurists of reason would find it debatable whether the district court was correct in 18 its procedural ruling.” Id. 19 Standard Not Met - Assuming the recommendations herein are followed in the 20 district court’s judgment, that decision will be on the merits. Under the reasoning set 21 forth herein, jurists of reason would not find the district court’s assessment of the 22 constitutional claims debatable or wrong. 23 Accordingly, to the extent that the Court adopts this Report & Recommendation 24 as to the Petition, a certificate of appealability should be denied. 25 26 V. RECOMMENDATION 27 IT IS THEREFORE RECOMMENDED that the Petitioner's Petition for Writ 1 IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings 2|| and recommendations are adopted in the District Court’s order, a Certificate of Appealability be DENIED. 5 VI. EFFECT OF RECOMMENDATION 6 This recommendation is not an order that is immediately appealable to the Ninth 7\|| Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 8|| of Appellate Procedure, should not be filed until entry of the district court's judgment. 9 However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties 10|| shall have fourteen (14) days from the date of service of a copy of this recommendation 11|| within which to file specific written objections with the Court. See a/so Rule 8(b), Rules 12|| Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days 13|| within which to file a response to the objections. Failure to timely file objections to any 14|| findings or recommendations of the Magistrate Judge will be considered a waiver of a 15|| party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 16|| 328 F.3d 1114, 1121 (9" Cir. 2003)(en banc), and will constitute a waiver of a party's 17|| tight to appellate review of the findings of fact in an order or judgment entered pursuant 18|| to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146- 19|| 47 (9th Cir. 2007). 20 In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that 21\|| “[u]nless otherwise permitted by the Court, an objection to a Report and 22|| Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
Dated: April 17, 2018 Tames F. Metcalf IPSTTSERR ISDN IT on HC United States Magistrate Judge 25 26 27 28