1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Francisco Javier Felix, No. CV-19-01885-PHX-MTL
10 Petitioner, ORDER
11 v.
12 Attorney General of the State of Arizona, et al., 13 Respondents. 14 15 Before the Court is Magistrate Judge Michael T. Morrissey’s Report and 16 Recommendation (“R & R”) (Doc. 26), recommending that Francisco Javier Felix’s 17 Petition for Writ of Habeas Corpus (the “Petition”) be denied and dismissed with prejudice. 18 Petitioner filed objections (Doc. 27), and Respondents replied to those objections (Doc. 19 28). For the reasons below, the Court overrules those objections and adopts the R & R in 20 its entirety. 21 I. LEGAL STANDARD 22 This Court “may accept, reject, or modify, in whole or in part, the findings or 23 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). But district 24 courts are not required to conduct “any review at all . . . of any issue that is not the subject 25 of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). “[T]he district judge must 26 review the magistrate judge’s findings and recommendations de novo if objection is made, 27 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 28 banc). This de novo review requirement applies only to “the portions of the [Magistrate 1 Judge’s] recommendations to which the parties object.” Klamath Siskiyou Wildlands Ctr. 2 v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009). Such objections must 3 be “specific.” Fed. R. Civ. P. 72(b)(2). 4 The petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is 5 incarcerated based on a state conviction. This Court must deny the petition as to any claims 6 that state courts have adjudicated on the merits unless “a state court decision is contrary to, 7 or involved an unreasonable application of, clearly established Federal law,” or was “based 8 on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(1)–(2). An 9 unreasonable application of law must be “objectively unreasonable, not merely wrong; 10 even clear error will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) (internal 11 quotation marks and citation omitted). A petitioner must show that the state court’s ruling 12 was “so lacking in justification that there was an error well understood and comprehended 13 in existing law beyond any possibility for fairminded disagreement.” Id. at 419–20 14 (citation omitted). “When applying these standards, the federal court should review the 15 ‘last reasoned decision’ by a state court . . . .” Robinson v. Ignacio, 360 F.3d 1044, 1055 16 (9th Cir. 2004). Additionally, “[a]n application for a writ of habeas corpus may be denied 17 on the merits, notwithstanding the failure of the applicant to exhaust the remedies available 18 in the courts of the State.” 28 U.S.C. § 2254(b)(2). 19 II. BACKGROUND 20 The R & R recounts the factual and procedural history of this case at pages 2–4. 21 (Doc. 26 at 2–4.) Petitioner objects to the Magistrate’s reliance on the Court of Appeals’ 22 “recounting of the facts . . . without further investigation.” (Doc. 27 at 2.) Petitioner asserts 23 that this Court must conduct an independent investigation into “these supposed facts” based 24 on his arguments. (Id.) But the appellate court’s stated facts are entitled to a presumption 25 of correctness. See 28 U.S.C. § 2254 (e)(1) (“[A] determination of a factual issue made by 26 a State court shall be presumed to be correct. The applicant shall have the burden of 27 rebutting the presumption of correctness by clear and convincing evidence.”). As 28 Petitioner has not provided clear and convincing evidence to rebut the presumption of 1 correctness of the facts derived from the appellate court record, this objection is overruled. 2 In brief, the history of Petitioner’s case is as follows: 3 Petitioner was convicted of ten counts of attempted second-degree murder 4 (including one against a minor), ten counts of aggravated assault with a deadly weapon, 5 one count of assisting a criminal street gang, and one count of endangerment. (Id. at 3.) 6 Petitioner timely filed a direct appeal. (Id., Ex. O at 192.) The Court of Appeals affirmed 7 in part and vacated in part, finding fundamental, prejudicial error in the superior court’s 8 jury instruction about the lesser-included offense of attempted second-degree murder. 9 (Doc. 16-1 at 189, 192.) The Court vacated Petitioner’s convictions for attempted second- 10 degree murder and remanded for a new trial but affirmed all of Petitioner’s other 11 convictions and sentences. (Id. at 204.) The Supreme Court of Arizona denied Petitioner’s 12 petition for review. (Doc. 5 at 113.) Subsequently, the State filed a Motion to Dismiss 13 counts one through ten of Petitioner’s sentence (the attempted murder charges). (Doc. 16- 14 1, Ex. P.) 15 While his direct appeal was pending, Petitioner filed a Notice of Post-Conviction 16 Relief (“PCR”). (Id. at 114.) Petitioner filed a pro se PCR petition and raised sixteen 17 grounds for relief—the same grounds that he raises here. (Doc. 16-2, Ex. R at 2–42.) On 18 September 19, 2017, the PCR court dismissed the PCR petition on its merits. (Doc. 16-3, 19 Ex. U at 45–48.) From that point, Petitioner had 30 days to file a petition for review in the 20 Arizona Court of Appeals. See Ariz. R. Crim. P. 32.16(a)(1) (“No later than 30 days after 21 the entry of the trial court’s final decision on a petition or a motion for rehearing, or the 22 dismissal of a notice, an aggrieved party may petition the appropriate appellate court for 23 review of the decision.”). Petitioner moved for a 60-day extension of that deadline (doc. 24 10 at 4), but the PCR Court denied his motion. (Doc. 9-1 at 10.) Petitioner did not file a 25 timely application for review in the Arizona Court of Appeals. 26 Subsequently, thirty-six days after the deadline, Petitioner did file a petition for 27 review in the Arizona Court of Appeals, (Doc 9-1 at 12), which the court dismissed as 28 untimely. (Id. at 14–15.) The Petitioner filed a Motion for reconsideration, which the 1 Court also denied. (Doc. 9-1 at 12.) Petitioner next filed a motion with the PCR Court 2 seeking permission to file an untimely petition for review with the Arizona Court of 3 Appeals. (Doc. 10 at 10–14.) The Superior Court never issued an order on that motion. 4 (See Doc. 26 at 11.) On April 20, 2018, Petitioner petitioned the Arizona Supreme Court 5 for review. (Doc. 9-1 at 24–26.) On November 20, 2018, the Arizona Supreme Court 6 denied that petition. (Id.). 7 Then, on March 21, 2019, Petitioner filed a habeas petition in this Court. (Doc. 1.) 8 Petitioner re-filed an amended habeas petition on May 9, 2019 and raises 18 grounds for 9 relief. (See Doc. 5.) 10 Ground 1: Newly discovered evidence (Fourteenth Amendment violation) 11 Ground 2: Illegal police activities (Fifth, Sixth, and Fourteenth Amendment 12 violations) 13 Ground 3: Insufficient indictment/lack of jurisdiction (Fifth, Sixth, and 14 Fourteenth Amendment violations) 15 Ground 4: Insufficient indictment/ “multiplicitous” (Fifth, Sixth, and Fourteenth 16 Amendment violations) 17 Ground 5: Impermissible amendment/variance to verdict (Fifth, Sixth, and 18 Fourteenth Amendment violations) 19 Ground 6: Unlawful sentence/double jeopardy (Fifth Amendment violation). 20 Ground 7: Unlawful enhancement of Sentence/double jeopardy (Fifth 21 Amendment violation) 22 Ground 8: Prosecutorial misconduct (Fourth, Fifth, Sixth, and Fourteenth 23 Amendment violations) 24 Ground 9: Prosecutorial misconduct/unconstitutional use of perjured testimony 25 during grand jury proceedings (Fifth, Sixth, and Fourteenth 26 Amendment violations). 27 Ground 10: Prosecutorial misconduct/unconstitutional use of perjured testimony 28 during trial (Fifth, Sixth, and Fourteenth Amendment violations) 1 Ground 11: Tainted jury pool (Fifth, Sixth, and Fourteenth Amendment 2 violations) 3 Ground 12: Donald violation (Sixth Amendment violation) 4 Ground 13: Brady violation (Fifth, Sixth, and Fourteenth Amendment violations) 5 Ground 14: Ineffective assistance of counsel (Fourth, Fifth, Sixth, and Fourteenth 6 Amendment violations) 7 Ground 15: Abuse of discretion (Fifth, Sixth, and Fourteenth Amendment 8 violations) 9 Ground 16: Insufficient evidence (Fifth, Sixth, and Fourteenth Amendment 10 violations) 11 Ground 17: Erroneous jury instruction (Fifth, Sixth, and Fourteenth Amendment 12 violations) 13 Ground 18: Charge of aggravated assault was not a dangerous crime against 14 children (Fifth, Sixth, Eighth, and Fourteenth Amendment violations) 15 (Doc. 5, Doc. 6 at 2–3). 16 II. TIMELINESS 17 The R & R recommends finding 214 days of equitable tolling for the period from 18 April 20 to November 20, 2018, the time during which Petitioner’s petition was pending 19 before the Arizona Supreme Court. (Doc. 26 at 10–11.) The R & R finds that equitable 20 tolling is warranted due to Petitioner’s diligence in spite of the “legal limbo” left by the 21 Superior Court’s failure to rule. (Id. at 10.) Petitioner objects that he “cannot be denied as 22 untimely because he was not untimely,” and “the court still recommends in its conclusion 23 that petitioner be denied as untimely.” (Doc. 27 at 2.) But the R & R recommended a 24 finding that the Petitioner timely filed the application by thirty-one days based on the 25 application of equitable tolling. (Doc. 26 at 12.) Respondents do not respond nor object 26 to the application of equitable tolling. (See Doc. 28.) Therefore, the Court overrules this 27 objection and finds that the petition is timely. 28 /// 1 III. PETITIONER’S OBJECTIONS 2 A. Grounds 16 & 18: Insufficient Evidence 3 The R & R concludes that there was sufficient evidence to find Petitioner guilty on 4 the aggravated assault charges, such as the testimony of Petitioner’s then-girlfriend, her 5 mother, a friend (Michael Villalobos), a neighbor who was awoken to gunshots, and a 6 detective who recovered shell casing from the scene. (Doc. 26 at 15–16.) Petitioner 7 challenges the R & R’s findings on his charges of Dangerous Crimes Against Children and 8 Aggravated Assault; Assisting a Criminal Street Gang; and Aggravated Assault on J.V. 9 The Arizona Court of Appeals squarely rejected Felix’s insufficient evidence claim. 10 State v. Felix, 237 Ariz. 280, 289–90, ¶¶ 31–35 (Ct. App. 2015) (“Sufficient evidence 11 supports the jury’s finding that Felix’s aggravated assault of J.V. is a dangerous crime 12 against children.”). Petitioner fails to show that the Arizona Court of Appeals decision is 13 contrary to, or an unreasonable application of, federal law. See Jackson v. Virginia, 443 14 U.S. 307, 324 (1979) (a sufficiency-of-the-evidence claim must be rejected unless “no 15 rational trier of fact could have found proof of guilt beyond a reasonable doubt”); Cavazos 16 v. Smith, 565 U.S. 1, 2 (2011) (a federal court may overturn a state court decision rejecting 17 a sufficiency-of-the-evidence challenge “only if the state court decision was 18 ‘objectively unreasonable’”); Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011) 19 (explaining that under Jackson and the Anti-Terrorism and Effective Death Penalty Act of 20 1996 (“AEDPA”), “there is a double dose of deference that can rarely be surmounted”). 21 i. Dangerous Crimes Against Children and Aggravated Assault 22 As explained in the R & R, “[e]vidence is sufficient to support a conviction so long 23 as ‘after viewing the evidence in the light most favorable to the prosecution, any rational 24 trier of fact could have found the essential elements of the crime beyond a reasonable 25 doubt.’” Cavazos v. Smith, 565 U.S. 1, 7 (2011) (quoting Jackson v. Virginia, 443 U.S. 26 307, 319 (1979)) (emphasis in original). The Court “must presume—even if it does not 27 affirmatively appear in the record—that the trier of fact resolved any [. . .] conflicts in favor 28 of the prosecution, and must defer to that resolution.” Cavazos, 565 U.S. at 7. 1 Petitioner does not challenge this standard of review. (See Doc. 27 at 3–4.) Rather, 2 Petitioner objects to the R & R on the grounds that “[t]he Court refuses to see the fact that 3 Petitioner has proven the unreliability of the State’s ‘witnesses’; and without physical 4 evidence, eyewitness testimony placing him at the scene, or a confession, the evidence 5 against him was insufficient as a matter of all on all counts.” (Doc. 27 at 2.) Petitioner 6 also argues that he has “proven perjury” of several witnesses via conflicting statements. 7 (Id. at 3.) As to the Dangerous Crime Against Children charge, Petitioner next argues that 8 “[n]o evidence exist[s] to even indicate that petitioner knew the child was home at the time 9 of the shooting.” (Id.) Petitioner contends that the “Constitution of the Untied States 10 guarantees [him] a fair trial and to be convicted on sufficient evidence.” (Id. at 4.) 11 As the R & R notes, sufficient evidence supports the jury’s conviction. (Doc. 26 at 12 14–19.) As to Petitioner’s claims that the evidence is insufficient because the State lacked 13 direct evidence, Arizona law does not require direct evidence to sustain a conviction. See 14 Felix, 237 Ariz. at 289, ¶ 32 (“Either direct or circumstantial evidence is sufficient to prove 15 that a defendant placed a victim in reasonable apprehension of immediate physical injury.”) 16 (internal quotation omitted). Petitioner does not dispute that he went to a party at the 17 victims’ house that night, he was aware that J.V. lived at the house with Steve and 18 Elizabeth, and he was aware that J.V. lived in the house on the night that bullets were shot 19 into the house indiscriminately. Felix, 237 Ariz. at 290, ¶ 35. Likewise, Petitioner does 20 not challenge that several spent shell casings from an assault rifle were recovered from the 21 house, and there were several bullet holes on Elizabeth’s house. (Doc. 26 at 16, 16-4 at 22 475–82, Ex. FF at 504–05.) He also does not contest that Elizabeth testififed that J.V. 23 “started crying” when shots were fired, so Elizabeth crouched over J.V. and covered her. 24 Felix, 237 Ariz. at 290, ¶ 35. 25 Moreover, though there were discrepancies in some testimony of witnesses 26 regarding the color, make and model of the vehicle that the shooters arrived in, the jury 27 was made aware of such issues of credibility and chose to resolve them in the State’s favor. 28 See Schlup v. Delo, 513 U.S. 298, 330 (1995) (noting the credibility of witnesses is 1 generally beyond the Court’s review of the sufficiency of the evidence). The Anti- 2 Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires a state prisoner 3 to “show that the state court’s ruling on the claim being presented in federal court was so 4 lacking in justification that there was an error . . . beyond any possibility for fairminded 5 disagreement.” Burt v. Titlow, 571 U.S. 12, 19–20 (2013) (internal quotations and 6 alterations omitted). Based on the record, Petitioner has not met, and cannot meet, this 7 burden to prove that there was insufficient evidence to convict him of dangerous crimes 8 against children, accomplice to the shooting, and aggravated assault. 9 ii. Assisting Criminal Street Gang 10 As to Count 11, assisting a criminal street gang, Petitioner argues that the “court has 11 not actually viewed the drawings and photos in question, because those exhibits clearly 12 showed a lack of any indicators that Petitioner belonged to a gang.” (Doc. 27 at 6.) 13 Petitioner also argues that the R & R “leaves no room for the possibility that [two people’s] 14 issues could be personal” and not gang-motivated.” (Doc. 27 at 6.) But the standard of 15 review here is that the evidence is viewed in the light most favorable to the State, not 16 Petitioner. Cavazos v. Smith, 565 U.S. 1, 7 (2011). Based on that standard of review, it is 17 reasonable that Petitioner’s drawings and photographs could be interpreted to show gang 18 affiliation, especially when coupled with the other evidence produced at trial—including 19 direct testimony that the assault on Petitioner was gang motivated. (See Doc. 26 at 17, see 20 also Docs. 16-4, Ex. EE at 452–53, Ex. Y at 50–51). From this evidence, “any rational 21 trier of fact could have found the essential elements of the crime beyond a reasonable 22 doubt.” Cavazos, 565 U.S. at 7. 23 iii. Aggravated Assault of J.V. 24 As to Count 21, aggravated assault of J.V., Petitioner argues that “knowing a person 25 has given birth to a child, and knowing that a child is present during a party in which a 26 crime is to occur, are two completely different levels of information and require different 27 levels of evidence.” (Doc. 27 at 7.) Petitioner argues that “overwhelming evidence 28 prov[es] Petitioner could not have known the child was home.” Once again, this Court’s 1 standard of review asks whether the state court’s determination was an unreasonable 2 application of or contrary to federal law, and we view the facts in the light most favorable 3 to the State. Cavazos, 565 U.S. at 7. It is not an unreasonable view, based on Elizabeth’s 4 testimony recounting J.V. crying, and Petitioner’s knowledge that J.V. lived in the house, 5 that “J.V. was frightened by the gunshots” and thereby being placed “in reasonable 6 apprehension of physical harm when she heard them.” Felix, 237 Ariz. at 289, ¶ 32. 7 The Court agrees with the R & R that Petitioner has failed to prove that the State 8 court’s denial of relief on the sufficiency of evidence grounds was objectively 9 unreasonable, and thus, Petitioner’s objections as to Grounds 16 and 18 are overruled. 10 B. Ground 1 11 Petitioner next objects to the R & R’s denial of his newly discovered evidence. 12 (Doc. 27 at 7.) Petitioner contends that a previously unknown witness contacted his 13 sentencing counsel and is from a rival gang and would be willing to testify that Petitioner 14 was “in the wrong place at the wrong time.” (Id. at 7–8.) The R & R rejected this new 15 evidence because Petitioner failed to demonstrate the reliability or credibility of the 16 witness’s statements; he included no affidavit or other indication of the veracity of his 17 statements. (Doc. 26 at 20.) Moreover, Petitioner failed to prove that “it is not reasonably 18 probable that the jury would not have convicted Petitioner had it been presented with [the 19 witness’s] testimony in light of all of the other evidence and testimony that was presented 20 at trial.” 21 “Short proof of actual innocence, claims solely based on new evidence are generally 22 not cognizable on habeas.” United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010). 23 A claim of newly discovered evidence to support a habeas petition must be based on an 24 independent constitutional violation. Id., citing Herrera v. Collins, 506 U.S. 390, 400 25 (“[N]ewly discovered evidence . . . alleged in a habeas application . . . must bear upon the 26 constitutionality of the applicant’s detention; the existence merely of newly discovered 27 evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas 28 corpus.”). Besides, even construing Petitioner’s objection under Rule 33, Petitioner cannot 1 prevail because Petitioner’s objection is untimely. See Fed. R. Crim. P. 33(b) (establishing 2 a 3-year limit for any motion for a new trial based on newly discovered evidence). 3 Petitioner’s alleged newly discovered evidence does not support an independent 4 constitutional violation. Petitioner does not even submit affirmative evidence showing 5 actual innocence; as stated in the R & R, Petitioner submits nothing to show that the new 6 proposed testimony is reliable or that this witness would even be willing or available to 7 testify. Jones, 763 F.3d at 1247. Petitioner argues that because he is incarcerated, he has 8 no way of contacting the witness, but “the simple fact that he would be willing to contact 9 Petitioner’s sentencing counsel is proof he would be willing to testify.” (Doc. 27 at 8.) 10 While the Court is sympathetic to Petitioner’s position, the proposed evidence does 11 not reach the necessary threshold to show that Petitioner was actually innocent of the 12 crimes he was convicted of and thus fails to warrant habeas relief. “[T]he threshold for 13 [proving] a freestanding claim of innocence would have to be “extraordinarily high” and 14 “truly persuasive.” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (quoting 15 Herrera v. Collins, 506 U.S. 390, 417 (1993)). Post-conviction evidence serving only to 16 “undercut the evidence presented at trial” does not pass the threshold. Id. at 477; see also 17 Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999) (habeas relief is unavailable where “the 18 totality of the new evidence does not undermine the structure of the prosecution’s case”). 19 Petitoner’s new witness seeks only to undercut the evidence at trial and does not meet this 20 high bar. See, e.g., Carriger v. Stewart, 132 F.3d 463, 477 (9th Cir. 1999) (finding that the 21 newly discovered evidence, although vastly undercutting the evidence presented at trial, 22 failed because it was not affirmative evidence showing petitioner’s actual innocence like 23 something that showed the petitioner was elsewhere at the time of the murder (i.e. a hotel 24 receipt that showed defendant was in another state when the murder occurred)). This 25 objection is overruled. 26 C. Grounds 5 and 17 27 Petitioner argues that the State’s need to prove intent and knowledge obligated it to 28 inform him that it had an alternative theory of accomplice liability. (Doc. 27 at 9.) The 1 Court of Appeals determined there was no error in giving the accomplice liability 2 instruction. Felix, 237 Ariz. at 289, ¶ 28. The R & R concurred with the PCR Court and 3 likewise concluded that Petitioner had adequate notice of the alternative theory of 4 accomplice liability. (Doc. 26 at 23.) 5 Petitioner’s contentions here are repetitive and fail to persuade the Court that there 6 has been a violation of due process or a “travesty of justice.” (Doc. 27 at 9.) Petitioner 7 merely reiterates the same allegations as he did in his initial habeas application. (Compare 8 Doc. 27 at 8–9 with Doc. 1 at 10, 27.) “[M]erely reasserting the grounds of the petition as 9 an objection provides this Court with no guidance as to what portions of the R&R [Felix] 10 considers to be incorrect.” McDowell v. Richardson, No. CV-11-0716-PHX-DGC, 2012 11 WL 393462, at *2 (D. Ariz. Feb. 7, 2012). As such, the Court overrules this objection. 12 D. Grounds 4, 6, and 7 13 Petitioner again objects that his charges and sentences violated double jeopardy 14 because the evidence showed that “the shooter aimed his weapon at an occupied structure, 15 first firing into a dark, unoccupied room, and then into the center of the home.” (Doc. 27 16 at 10.) Petitioner concludes that this evidence shows the shooter could not have targeted 17 individual people, so the incident could not be interpreted separately, in violation of State 18 v. Gordon, 161 Ariz. 308 (1989). The thrust of Petitioner’s objection is that the R & R 19 “never acknowledged that portion of Petitioner’s argument.” (Doc. 27 at 10.) 20 The Gordon case, decided in 1989, interpreted A.R.S. § 13-116 (the “Double 21 Punishment” statute). Gordon, 161 Ariz. at 315. The Gordon court considered two related 22 crimes and held that “given the entire ‘transaction,’ it was factually impossible to commit 23 the ultimate crime without also committing the secondary crime. If so, then the likelihood 24 will increase that the defendant committed a single act under A.R.S. § 13-116.” A more 25 contemporary Arizona Supreme Court case, State v. Jones, 235 Ariz. 501 (2014), also 26 interpreted A.R.S. § 13-116, which defeats Petitioner’s argument. It holds that where the 27 two statutes conflict, the dangerous crimes against children sentencing provision, A.R.S. 28 § 13-705, takes priority over A.R.S. § 13-116. Jones, 235 Ariz. at 502, ¶ 1. As such, 1 Petitioner’s consecutive sentences were correctly imposed without violating double 2 jeopardy. Moreover, under 28 U.S.C. § 2254(a), this Court can only grant habeas relief on 3 grounds that the Petitioner is in custody in violation of the Constitution or laws of the 4 United States—not Arizona state law. Thus, Petitioner’s objection is overruled. 5 E. Ground 2 6 Petitioner alleges that he has “provided evidence of illegal activity that the court 7 simply refuses to acknowledge.” (Doc. 27 at 11.) The Petitioner does not point to any 8 specific evidence that he believes the R & R did not consider in great enough detail. See 9 Fed. R. Civ. P. 72(b)(2) (requiring specific objections to the findings and recommendations 10 of the magistrate judge). Moreover, as stated in the R & R, Petitioner is barred from federal 11 review on this ground because he had full and fair opportunity to suppress the evidence in 12 state court and he cannot claim relief for violation of another’s constitutional rights. (Doc. 13 26 at 25–26.) Petitioner does not provide any legally persuasive reason why his claim 14 should be considered, so his objection as to ground 2 is overruled. 15 F. Grounds 8, 9, and 10 16 After nine full pages of analysis, the R & R concludes that the PCR Court’s 17 determination that there was no prosecutorial misconduct at trial “was not an unreasonable 18 application of, nor contrary to, clearly established federal law” because Petitioner failed to 19 show that any of the conduct infected the trial with unfairness so as to create a denial of 20 due process. (Doc. 26 at 35–36.) Petitioner alleges that the R & R “makes a sweeping 21 argument against all of Petitioner’s subclaims without fully exploring each count and 22 prosecutorial misconduct in its totality.” (Doc. 27 at 11.) This Court disagrees. 23 First, Petitioner alleges that though the R & R concludes the drawings used at trial 24 “were necessary to prove gang membership, the Court does not explain which elements in 25 the drawing proved gang membership.” (Id.) But as explained by the Court, gang 26 membership can be inferred through “paraphernalia or photographs, tattoos, clothing or 27 colors, or any other indicia of street gang membership.” (Doc. 26 at 28 (internal quotations 28 and alterations omitted).) Thus, the State’s admission of evidence that included a drawing 1 of “a man with a skull for a face” with “a helmet” who “is smoking something. He is 2 wearing a shirt, possibly a bandana hanging around his neck, and he is holding a rifle . . . 3 like an AK-47” could be relevant to gang membership and does not constitute a due process 4 violation. (Doc. 16-4 at 175, Ex. AA 43:23–44–4.) 5 Petitioner next alleges that statements regarding past weapon possession were 6 irrelevant and inflammatory, especially because “half of the State of Arizona either owns 7 a weapon or is eligible to purchase a weapon legally and so is capable of committing the 8 shooting.” (Doc. 27 at 11–12.) To support this argument, Petitioner cites Martin v. Parker, 9 11 F.3d 613, 613 (6th Cir. 1993). That case is inapplicable here. In Martin, the Defendant 10 was compared to Adolf Hitler in the prosecutor’s closing arguments and referred to as “a 11 dictator,” a “disturbed individual,” and a man who has some “real problems,” which the 12 court found “create[d] overwhelming prejudice in the eyes of the jury.” Id. Past weapon 13 possession, where relevant, does not create the same overwhelming prejudice as comparing 14 a Defendant to Hitler. See id. As to the relevance of the weapon possession, whether 15 certain evidence is admissible under the Arizona Rules of Evidence is an issue beyond 16 review by a habeas court. Winzer v. Hall, 494 F.3d 1192, 1198 (9th Cir. 2007) (“State 17 court rulings on the admissibility of evidence generally fall outside the scope of federal 18 habeas relief, which is designed only to remedy violations of federal law.”). The Court 19 finds no due process violation from the admission of this evidence. 20 Petitioner repeats his argument that the State “knew or should have known that 21 Alexis Mireles’s testimony would be hearsay, but elicited it during trial.” (Doc. 27 at 12, 22 see also Doc. 1 at 14.) Again, whether a statement is hearsay is not reviewable by a habeas 23 court. Id. The R & R reviewed the statement for a due process violation and found that 24 any error was cured by sustaining the objection. This Court concurs. 25 The Petitioner next states that he “outlined in his Rule 32 all of the misconduct by 26 the State at closing statements” but “the Court failed to properly investigate the matter.” 27 (Doc. 27 at 12.) Petitioner does not make any specific objections to the R & R’s treatment 28 of his allegations. (Id.) Because Petitioner does not object to any specific portions of the 1 R & R, and because the Court agrees with the R & R that Petitioner did not demonstrate 2 that “such testimony was false, or that the Government sought to draw improper inferences 3 based on its admission,” United States v. Reyes, 660 F.3d 454, 466 (9th Cir. 2011), the 4 Court finds no due process violation. 5 As to Petitioner’s perjury claims, Petitioner is not entitled to habeas relief on any of 6 these claims. Petitioner objects to the R & R’s dismissal of his perjury allegations as to 7 Detective Frost, Deputy Jaimez, Heidy Mireles, Alexis Mireles, and Elizabeth Mireles. 8 (Doc. 27 at 13–15.) For each of these witnesses, Petitioner claims to have proven perjury. 9 (Id.) But that is not the standard. 10 “The knowing use of perjured testimony by a prosecutor generally requires that the 11 conviction be set aside.” Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (citing 12 United States v. Agurs, 427 U.S. 97, 103 (1976)). The use of perjured testimony justifies 13 habeas relief where there is a “reasonable probability that without all the perjury the result 14 of the proceeding would have been different.” Id. (internal citations omitted). Petitioner 15 here fails to prove (1) that the testimony was perjured in the first place; (2) that the 16 prosecutor knew that the testimony was perjured; and (3) that there is a reasonable 17 probability that the result of the proceeding would be different. 18 Petitioner first addresses the alleged perjury of Detective Frost, and argues that he 19 “intentionally” made a false statement regarding the make and model of the car “to have 20 evidence point at Petitioner,” Detective Frost made a false statement to “bolster Heidy 21 Mirels[s’s] false testimony,” that Petitioner could not show he was “jumped” into a gang 22 because it was not true, and Frost made knowingly false statements regarding Heidy’s cell 23 phone because the State withheld evidence. (Doc. 27 at 13.) Petitioner provides no 24 evidence to support any of these allegations besides bald assertions. Moreover, as stated 25 in the R & R, a conflict of testimony between two witnesses does not create perjury, nor 26 can a personal statement ever be perjurious. (Doc. 26 at 33.) Additionally, regarding 27 Detective Frost’s testimony that he did not recall if he recovered Heidy’s cell phone, 28 Petitioner fails to show a reasonable probability that the result of the proceeding would 1 have been different, especially given the Heidy’s testimony that she texted the address to 2 Petitioner. (Id.) 3 Petitioner next objects to the R &R’s treatment of Deputy Jaimez’s testimony. He 4 repeats his argument regarding the contradictions between Deputy Jaimez’s testimony and 5 his report. But these contradictions do not fall under the definition of perjury, and therefore 6 Petitioner fails to show prosecutorial misconduct. 7 Petitioner finally objects to the R & R’s treatment of Heidy, Elizabeth, and Alexis 8 Mireles’s testimony. Petitioner’s assertions are insufficient to trigger de novo review 9 because he fails to point to any shortcomings in specific findings or rationale in the R & R 10 in his objections. Warling v. Ryan, No. CV-13-00381-PHX-ROS, 2014 WL 5432133, at 11 *2 (D. Ariz. Oct. 24, 2014) (holding that a general objection “has the same effect as would 12 a failure to object”). Even if the Court were to accept Petitioner’s objection, Petitioner’s 13 claims for relief as to these three witnesses do not arise under federal law. As a result, 14 Petitioner’s claims fail and his objections are overruled. 15 G. Ground 13 16 The R & R analyzed three of Petitioner’s claims under the standards set forth in 17 Brady v. Maryland, 373 U.S. 83 (1963). (Doc. 26 at 36–38.) Petitioner raises several 18 objections to the Brady analysis in the R & R. Id. (Doc. 27 at 15–16.) He first contends 19 that his due process rights were violated because the “prosecution withheld evidence that 20 could have been used to impeach testimony of key witnesses and affect credibility.” (Id.) 21 Petitioner cites evidence such as “[p]hotographs, flash drives, computers, etc. . . . phones 22 and phone records, GPS devices, lab test results, etc.,” “contents of seized evidence” and 23 “the trial transcripts [of ]Theresa Mireles.” (Id. at 15–17.) 24 These arguments are unavailing. The R & R contains a thorough and compelling 25 explanation as to why each of the categories of evidence had no material value under Brady 26 for Petitioner’s case—an issue which Petitioner does not address. Petitioner’s conclusory 27 assertions to the contrary do not undermine this careful analysis. Notwithstanding, 28 Petitioner presents no actual evidence that any favorable evidence was actually contained 1 within these items possessed by the State. See Phillips v. Woodford, 267 F.3d 966, 987 2 (9th Cir. 2001) (rejecting Brady claim based on “mere suppositions” with “absolutely no 3 evidence” that the allegedly withheld material, if it existed, “would have contained 4 exculpatory evidence”). 5 Related to this objection, Petitioner raises an ineffective assistance of counsel claim. 6 (Doc. 27 at 17.) He argues that because the R & R “has concluded that the [S]tate [in 7 e]ffect withheld evidence. With that reasoning, [counsel] was ineffective for failing to 8 investigate.” Though the Petitioner is not specific with this objection, the Court presumes 9 that the Petitioner is referring to blood, saliva, or DNA laboratory test results of evidence 10 collected at the crime scene. (Doc. 26 at 37.) The State asserted that there were “no 11 laboratory test results to disclose” because “there is no evidence or indication that [the 12 evidence collected from the scene of the crime] was sent to a laboratory for testing.” (Id., 13 citing Doc. 16 at 49.) But the record shows that the State ordered fingerprint analysis for 14 the spent casings and DNA analysis on blood and saliva samples collected at the crime 15 scene. (Id., citing Doc. 16—2, Ex. R at 101, 125–26.) The R & R determined that “there 16 is a permissible and reasonable inference that the samples were, at least sent to a lab for 17 analysis, even if they were not ultimately analyzed—for whatever reason.” (Doc. 26 at 18 37–38.) The R & R ultimately concluded that “even if the tests showed that Petitioner’s 19 DNA was not present on the evidence collected from the crime scene, at best, it would 20 suggest that Petitioner may not have been the actual shooter. However, it would not vitiate 21 the other evidence and testimony that established his culpability as an accomplice.” (Id. at 22 38.) 23 To succeed on an ineffective assistance of counsel claim under the Sixth 24 Amendment, Petitioner must show both deficient performance and that it caused him 25 prejudice. First, Petitioner must show that his counsel’s representation fell below an 26 objective standard of reasonableness; and second, that there is a reasonable probability that, 27 but for counsel’s unprofessional errors, the result of the proceeding would have been 28 different. Strickland v. Washington, 466 U.S. 668, 686–88, 694 (1984). Petitioner has the 1 burden of proving these elements and must overcome a “strong presumption that the 2 representation was professionally reasonable.” Id. at 689. Additionally, “[a] habeas 3 petitioner may not establish ineffective assistance by simply alluding to potential 4 evidence.” United States v. Self, 100 F. Supp. 3d 773, 803–04 (D. Ariz. 2015) (citing 5 Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997)). A Petitioner “must adduce evidence 6 to show what it would have been.” Id. 7 Petitioner here does not meet his burden of proof. First, he merely states that his 8 counsel “fail[ed] to investigate” but otherwise does not show that his counsel’s 9 representation fell below a reasonable standard. Second, Petitioner does not state how the 10 results of such lab tests (if they even exist) could be exonerating, because he was found 11 guilty as an accomplice, not a shooter. Therefore, his objection is overruled. 12 H. Ground 15 13 As to his abuse of discretion grounds, Petitioner objects that the R & R “simply 14 claims that all points presented are meritless.” (Doc. 27 at 18.) He argues that any evidence 15 obtained through search warrants is meritless. (Id.) But Petitioner does not make an 16 independent argument regarding search warrants in his Ground 15 statement. (Doc. 1 at 17 25.) Moreover, as addressed thoroughly in the R & R and briefly above, a challenge to the 18 validity of a search warrant is a Fourth Amendment claim, which is not cognizable in a 19 habeas proceeding where a petitioner had “an opportunity for full and fair litigation” of the 20 claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976); see Newman v. Wengeler, 21 790 F.3d 876, 878–79 (9th Cir. 2015) (holding that the Stone doctrine survived the passage 22 of the AEDPA). Here, because the PCR court has already determined that Petitioner has 23 waived his challenge to the legality of the search warrant (Doc. 16-3 at 46), his arguments 24 to the contrary regarding the evidenced obtained from it are overruled. 25 I. Grounds 12 and 14 26 Petitioner disagrees with the R & R “on all points.” He first argues that the plea 27 agreement was attached to his Rule 32 petition. The Court recognizes that the plea 28 agreement was filed with Petitioner’s petition (Doc. 1-1 at 112), but it does not change the 1 R & R’s analysis regarding the plea deal. In his objection, Petitioner again points to nothing 2 in the record to suggest a more favorable plea offer was under negotiation. Finally, as 3 discussed throughout the R & R, Petitioner had constitutionally adequate notice of the 4 State’s accomplice theory of criminal liability. (Doc. 26 at 21–23, 43.) 5 Petitioner next objects to the R & R’s conclusion that the evidence did not support 6 a diminished capacity defense. He argues that he had a lot to drink that night, was stabbed 7 and had lost blood. (Doc. 27 at 19.) Arizona state law does not recognize a diminished 8 capacity defense. State v. Richter, 245 Ariz. 1, 4, ¶ 13 (2018). Therefore, Petitioner’s 9 ineffective assistance of counsel claim fails on this ground. Sexton v. Cozner, 679 F.3d 10 1150, 1157 (9th Cir. 2012) (“[W]e cannot hold counsel ineffective for failing to raise a 11 claim that is meritless.”) Finally, Petitioner objects to the R & R’s conclusion regarding a 12 GPS he claims that could contain exculpatory information on Denise Sanchez’s vehicle. 13 (See Doc. 27 at 19.) Petitioner provides no information besides the fact that this GPS 14 device “could have proven that he did not commit the crime or at least supported 15 Petitioner’s defense” because it contains “global positioning information.” (Id.) Here, the 16 Court must presume that Petitioner’s counsel’s conduct in investigating this GPS device 17 fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 18 685. Petitioner does not claim otherwise in his objection. (See Doc. 27 at 19.) 19 Additionally, even assuming GPS evidence exists, the Court is not persuaded that it would 20 be exculpatory. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (“We caution . . . that 21 tenable actual-innocence gateway pleas are rare: [A] petitioner does not meet the threshold 22 requirement unless he persuades the district court that, in light of the new evidence, no 23 juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.”) 24 (internal quotations omitted). As such, Petitioner’s objection is overruled. 25 J. Certificate of Appealability 26 Before Petitioner can appeal this Court’s judgment, a certificate of appealability 27 must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). Because this Court rendered 28 the judgment denying the Amended Petition, the Court must either issue a certificate of 1 || appealability or state why a certificate should not issue. See id. A certificate may issue 2|| “only ifthe applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A substantial showing is made when the resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve the issues differently, 5 || or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 6 || (2000). Upon review of the record in light of the standards for granting a certificate of || appealability, the Court finds that a certificate shall not issue because dismissal of the 8 |} Amended Petition is justified by a plain procedural bar and reasonable jurists would not find that procedural ruling debatable. /d. at 484 (“Where a plain procedural bar is present 10 || and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the 12 || petitioner should be allowed to proceed further.’”’). 13] IV. CONCLUSION 14 Accordingly, 15 IT IS ORDERED Magistrate Judge Michael T. Morrissey’s Report and 16 || Recommendation (Doc. 26) is adopted. 17 IT IS FURTHER ORDERED that Francisco Javier Felix’s amended 28 U.S.C. 18 || § 2254 Petition (Doc. 5) is dismissed with prejudice. 19 IT IS FURTHER ORDERED that the Court will not issue a certificate of 20 || appealability because, for reasons explained above, Petitioner has not made a substantial showing of the denial of a constitutional right, a point on which reasonable jurists could not disagree. 28 U.S.C. § 2253(c)(2). 23 IT IS FINALLY ORDERED directing the Clerk of the Court to enter judgment 24 || terminating the case. 25 Dated this 14th day of October, 2021. 26 ; 37 Michal T. a hurdle Michael T. Liburdi 28 United States District Judge
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