1 WO 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE DISTRICT OF ARIZONA 4 5 6 Raul Herrera, III, No. CV-17-00183-TUC-RM 7 8 Petitioner ORDER 9 v. 10 11 Attorney General of the State of Arizona, et 12 al., 13 Respondents. 14 15 Pending before the Court is Petitioner Raul Herrera III’s Petition for Writ of Habeas 16 Corpus (Doc. 1) and the Report and Recommendation (“R&R”) of Magistrate Judge 17 Lynnette C. Kimmins recommending this Court dismiss the Petition (Doc. 27). 18 Respondents, the State of Arizona and David Shinn, the Director of the Arizona 19 Department of Corrections, filed a Response to the Petition (Doc. 19), and Petitioner filed 20 a Reply (Doc. 24). Petitioner also filed Objections (Doc. 32) to the R&R, for which he 21 received permission to significantly exceed the page limit (Doc. 36). Respondents filed a 22 Response to Petitioner’s Objections. (Doc. 33.) For the reasons explained below, the Court 23 will overrule Petitioner’s Objections, adopt the findings and recommendations made in 24 Magistrate Judge Kimmins’s R&R, and dismiss Petitioner’s Petition for Writ of Habeas 25 Corpus. 26 I. Background 27 Petitioner was charged with three counts of sexual conduct with a minor under the 28 age of fifteen, two counts of sexual exploitation of a minor under the age of fifteen, and 1 one count of kidnapping. (Doc. 19, Ex. A.) The alleged victim was Petitioner’s 2 stepdaughter, “A.M.” (Doc. 19, Ex. J. at 2.) Petitioner was represented at trial by Natasha 3 Wrae, and the prosecution was represented by Bunkye Chi. (Doc. 26, Ex. A at 3.) Judge 4 Peter J. Cahill presided over the trial. (Id. at 2.) 5 Following six days of jury trial conducted between June 10, 2008, and June 19, 6 2008, Petitioner was convicted of four of the six charges: two counts of sexual conduct 7 with a minor under the age of fifteen, one count of sexual exploitation of a minor under the 8 age of fifteen, and one count of kidnapping. (Doc. 19, Exs. A, B.) The two sexual conduct 9 charges for which Petitioner was convicted alleged that he “ha[d] the victim masturbate 10 him” and “ha[d] the victim place her mouth on his penis.” (Doc. 19, Ex. A.) The sexual 11 exploitation charge alleged Petitioner had possessed a digital photograph of A.M. 12 “engaging in actual or simulated oral sex.” (Id.) The kidnapping charge alleged Petitioner 13 kidnapped A.M. “with the intent to inflict . . . physical injury or a sexual offense on her.” 14 (Id.) Petitioner was found not guilty of one count of sexual conduct, which alleged that he 15 “place[d] his penis inside the victim’s vulva,” and one count of sexual exploitation, which 16 alleged that he possessed a separate digital photograph of A.M. “engaging in actual or 17 simulated oral sex.” (Doc. 19, Exs. A, B.) Petitioner was sentenced to consecutive terms 18 totaling 60.5 years. (Doc. 19, Ex. C.) 19 Petitioner raised several claims on direct appeal. (Doc. 19, Ex. D.) The Arizona 20 Court of Appeals affirmed his convictions and sentences. (Doc. 19, Ex J. at 3.) The Arizona 21 Supreme Court vacated the Arizona Court of Appeals’ opinion and remanded for 22 reconsideration in light of an intervening Arizona Supreme Court decision. State v. 23 Herrera, 285 P.3d 308 (Ariz. 2012) (memorandum). After remanding to the trial court for 24 further findings and receiving supplemental appellate briefing, the Arizona Court of 25 Appeals again affirmed Petitioner’s convictions and sentences. (Doc. 19, Exs. G–J.) The 26 Arizona Supreme Court denied Petitioner’s Petition for Review. (Doc. 19, Ex. S at 20.) 27 Petitioner then filed a Notice of Post-Conviction Relief (“PCR”) (Doc. 19, Ex. K), and 28 subsequently a PCR Petition (Doc. 19, Ex. L). The PCR court held an evidentiary hearing 1 after briefing on the PCR Petition was completed. (Doc. 19, Exs. M–O.) The PCR court 2 subsequently denied the Petition on the merits. (Doc. 19, Ex. P.) The Arizona Court of 3 Appeals granted review but denied relief (Doc. 19, Ex. Q), and the Arizona Supreme Court 4 denied review (Doc. 19, Ex. U at 4). 5 Petitioner then timely brought the instant Petition for Writ of Habeas Corpus, raising 6 eight claims for relief. (Doc. 1.) Magistrate Judge Kimmins filed an R&R recommending 7 the Court reject Petitioner’s claims and deny the Petition for Writ of Habeas Corpus. (Doc. 8 27.) Petitioner filed Objections to the R&R (Doc. 32) and Respondents filed a Response to 9 Petitioner’s Objections (Doc. 33). 10 II. Standard of Review 11 A. Habeas Review Under AEDPA 12 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) created a 13 “highly deferential standard for evaluating state-court rulings.” Woodford v. Visciotti, 537 14 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted). Under the 15 AEDPA, a petitioner is not entitled to habeas relief on any claim that was “adjudicated on 16 the merits” by the state courts, unless the state courts’ adjudication “resulted in a decision 17 that was contrary to, or involved an unreasonable application of, clearly established Federal 18 law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or 19 “resulted in a decision that was based on an unreasonable determination of the facts in light 20 of the evidence presenting in the State court proceeding. 28 U.S.C. § 2254(d)(2). 21 To determine whether a decision was “contrary to, or involved an unreasonable 22 application of, clearly established Federal law,” a court must determine if cases decided by 23 the Supreme Court at the time the petitioner’s state court conviction became final “clearly 24 established” the principle cited by the petitioner. Williams v. Taylor, 529 U.S. 362, 390 25 (2000). A state court decision is “contrary to” the Supreme Court’s clearly established 26 precedents if the decision applies a rule that contradicts the governing law set forth in those 27 precedents, or if it confronts a set of facts that is materially indistinguishable from a 28 decision of the Supreme Court but reaches a different result. Id. at 405–06. A state court 1 decision involves an “unreasonable application” of law if it “identifies the correct 2 governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the 3 facts of the particular . . . case” or if the state court decision “unreasonably extends a legal 4 principle from [Supreme Court] precedent to a new context where it should not apply or 5 unreasonably refuses to extend the principle to a new context where it should apply.” Id. 6 at 407. It is not enough that a court believes a state court determination to be in error, rather, 7 the state court’s determination that a claim lacks merit precludes federal habeas relief so 8 long as “fairminded jurists could disagree” on the correctness of the state court’s decision. 9 See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). 10 To determine if a state court decision involved “an unreasonable determination of 11 the facts in light of the evidence presented to the state court,” state court factual 12 determinations are presumed to be correct, and a petitioner bears the “burden of rebutting 13 this presumption by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Miller-El v. 14 Dretke, 545 U.S. 231, 240 (2005). 15 B. Review of Magistrate Judge’s Report and Recommendation 16 A district judge “may accept, reject, or modify, in whole or in part, the findings or 17 recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district judge 18 must “make a de novo determination of those portions” of the magistrate judge’s “report 19 or specified proposed findings or recommendations to which objection is made.” Id. The 20 advisory committee’s notes to Fed. R. Civ. P. 72(b) state that, “[w]hen no timely objection 21 is filed, the court need only satisfy itself that there is no clear error on the face of the record 22 in order to accept the recommendation” of a magistrate judge. Fed. R. Civ. P. 72(b), 23 advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 24 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district 25 court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225- 26 TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error 27 unobjected-to portions of Report and Recommendation). 28 . . . . 1 III. Discussion 2 A. Claim 1 – 3: Evidentiary Claims 3 a. Claim 1 4 In Claim 1, Petitioner argues that he was denied a fair trial by the introduction of 5 evidence of uncharged sexual acts with A.M. (Doc. 1 at 6.) In particular, Petitioner 6 challenges the introduction of two portions of videotape appearing to show A.M. with her 7 breasts exposed, and statements made by A.M. to law enforcement officers describing 8 uncharged sexual acts involving Petitioner and A.M. committed in Yuma, Arizona. (Id.) 9 Before trial, the state filed a notice disclosing its intent to introduce this evidence, 10 and Petitioner objected, arguing that: (1) there was insufficient evidence establishing he 11 had committed the uncharged acts; (2) the evidence was improper character evidence under 12 Rule 404 of the Arizona Rules of Evidence; and (3) the danger of unfair prejudice 13 outweighed the evidence’s probative value. (Doc. 19, Ex. J at ¶¶ 5–6.) 14 After a hearing, Judge Cruikshank ruled that the portions of videotape as well as 15 A.M.’s statements to law enforcement officers were admissible as “intrinsic” to the charged 16 offenses. (Id. at ¶ 7.) Because he found the evidence admissible as intrinsic, he also found 17 that an analysis under Rule 404 of the Arizona Rules of Evidence was not necessary. (Id.) 18 After Judge Cruikshank’s recusal, defense counsel asked Judge Campoy1 to reconsider 19 Judge Cruikshank’s previous rulings on the admissibility of evidence pertaining to the acts 20 in Yuma. (Id. at ¶ 8.) Judge Campoy refused to reconsider Judge Cruiskhank’s previous 21 rulings on other-act evidence, noting that the challenged evidence “would be part and 22 parcel and intrinsic to the charges.” (Id.) Petitioner again objected to introduction of 23 evidence of the Yuma acts at trial, and Judge Cahill overruled his objection, stating that he 24 had “independently looked at the arguments of counsel” and determined that the prior 25 rulings should stand. (Id. at ¶ 9.) 26 The Arizona Court of Appeals rejected Petitioner’s arguments relating to this other- 27 act evidence on direct appeal. State v. Herrera, 243 P.3d 1041 (Ariz. App. 2010). The
28 1 As discussed below, the case was initially assigned to Judge Campoy after Judge Cruikshank recused himself. Judge Cahill was then appointed to preside over the trial. 1 Arizona Supreme Court, however, vacated the Court of Appeals’ opinion and remanded 2 the matter for reconsideration in light of State v. Ferrero, 274 P.3d 509, 513 (Ariz. 2012), 3 which clarified what qualifies as “intrinsic” evidence under Arizona law. State v. Herrera, 4 285 P.3d 308 (Ariz. 2012) (memorandum). The Arizona Court of Appeals remanded the 5 case to the trial court to determine if the other-act evidence, even if not intrinsic to the 6 charged offenses, was nonetheless admissible under Rule 404(c) of the Arizona Rules of 7 Evidence. (Doc. 19, Ex. J at ¶ 10.) On remand, the trial court concluded the evidence was 8 admissible under Rule 404(c). (Id.) The appellate courts affirmed admission of the 9 evidence under Rule 404(c). (Id. at ¶¶ 11–34; Doc. 19, Ex. U at 4.) 10 In addition to his claim that the introduction of this other-act evidence violated his 11 right to a fair trial, Petitioner also claims that his right to equal protection was violated 12 when his case was remanded for analysis under Rule 404(c), rather than for a new trial as 13 in Ferrero itself. (Doc. 1 at 6.) Petitioner also argues that the state courts violated the proper 14 evidentiary procedure under Arizona law by having the Rule 404(c) determination made 15 on remand after trial. (Id. at 4–7) 16 Magistrate Judge Kimmins found that Petitioner’s challenge to the state court’s 17 adherence to state law evidentiary procedure is not cognizable in this federal habeas 18 proceeding. (Doc. 27 at 6.) To the extent Petitioner contends the admission of the other act 19 evidence violated his constitutional right to due process, Magistrate Judge Kimmins found 20 that the state courts’ findings were not contrary to established law because the Supreme 21 Court has never determined that admission of propensity evidence violates a defendant’s 22 right to due process. (Id. at 7.) Finally, Magistrate Judge Kimmins rejected Petitioner’s 23 equal protection claim, determining that Petitioner received the full benefit of the new rule 24 announced in Ferrero and that remand for an analysis under Rule 404(c) in the first 25 instance, rather than an entirely new trial, was appropriate. (Id. at 6.) 26 In his Objections, Petitioner contends that the post-trial determination on remand 27 that the other-act evidence was admissible under Rule 404(c) violated Arizona’s 28 evidentiary rules. (Doc. 32 at 4–7.) Petitioner maintains that evidence admitted under Rule 1 404(c) of the Arizona Rules of Evidence must be reviewed pretrial rather than post-trial on 2 remand. (Id.) This Court, however, cannot offer Petitioner relief based on this claim. As 3 Magistrate Judge Kimmins correctly concluded, a federal court conducting habeas review 4 will not “reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 5 502 U.S. 62, 67–68 (1991). 6 Petitioner also objects that his right to a fair trial was violated by the improper 7 introduction of this other-act evidence. (Doc. 32 at 2.) However, as Magistrate Judge 8 Kimmins found, the Supreme Court has explicitly left open the question of whether “the 9 use of ‘prior crimes’ evidence to show propensity to commit a charged crime” constitutes 10 a violation of the Due Process Clause. See Estelle v. McGuire, 502 U.S. at 75 n.5. The 11 state court’s decision here therefore could not have violated “clearly established Federal 12 law, as determined by the Supreme Court of the United States,” and federal habeas relief 13 is therefore not available. See 28 U.S.C. § 2254(d)(1); see also Mejia v. Garcia, 534 F.3d 14 1036, 1046 (9th Cir. 2008) (finding “no Supreme Court precedent establishing that 15 admission of propensity evidence, as here, to lend credibility to a sex victim’s allegations, 16 and thus indisputably relevant to the crimes charged, is unconstitutional”). 17 Petitioner does not object to Magistrate Judge Kimmins’s treatment of his Equal 18 Protection Clause argument, and the Court also adopts Magistrate Judge Kimmins’s 19 reasoning as to that argument. Accordingly, the denial of Claim 1 by the state courts did 20 not involve an objectively unreasonable application of clearly established federal law or an 21 unreasonable determination of the facts in light of the evidence presented. 22 b. Claim 2 23 In Claim 2, Petitioner argues that the trial court violated his rights to present his 24 defense and confront witnesses by precluding evidence and cross-examination regarding 25 an alleged consensual same-sex relationship that the victim had shortly before accusing 26 Petitioner. (Doc. 1 at 7.) Petitioner argues disclosure of this consensual same-sex 27 relationship at trial would have cast doubt on the victim’s credibility before the jury 28 1 because the victim might have fabricated her allegations against Petitioner to deflect 2 attention from this consensual relationship. (Id.) 3 At a preliminary hearing, Judge Campoy found “no legal basis or evidentiary 4 relationship between the alleged prior relationship with a same-sex partner and the issue 5 involved in the case.” (Doc. 19, Ex. J at ¶ 40.) When defense counsel tried to introduce the 6 evidence at trial, Judge Cahill found that “it’s just wild speculation that any of these acts 7 would have any relevance.” (Id.) The Arizona Court of Appeals agreed that the evidence 8 was properly precluded as prejudicial with little evidentiary value. (Id. at ¶¶ 37–42.) 9 Magistrate Judge Kimmins similarly found that Petitioner failed to demonstrate that 10 the proffered cross-examination could reasonably have caused the jury to discredit the 11 victim’s testimony. (Doc. 27 at 8–10.) She found that “there is no connection between the 12 victim’s same-sex relationship, or her need to hide it, and her allegations against 13 Petitioner.” (Id. at 9.) Magistrate Judge Kimmins found, in particular, that Petitioner failed 14 to “identify any negative consequences the victim would have endured if her relationship 15 had become known or how accusing [Petitioner] decreased the risk of her relationship 16 being exposed.” (Id.) 17 Petitioner objects to Magistrate Judge Kimmins’s finding that Petitioner neither 18 identified any negative consequences the victim would have endured if her alleged same- 19 sex relationship had become exposed nor explained how accusing Petitioner decreased the 20 risk of her relationship being exposed. (Doc. 32 at 9.) Petitioner argues that although he 21 did not provide an “exhaustive dissertation on this issue – owing to the limited space 22 afforded,” the facts are present in “ample locations in the record.” (Id. at 9–10.) Although 23 the Court granted Petitioner permission to significantly exceed page limits in his 24 Objections to Magistrate Judge Kimmins’s R&R (Doc. 36), Petitioner does not include 25 those facts in his Objections. (Doc. 32 at 9–10.) The Court is unable to discern what specific 26 facts in his case Petitioner believes support a conclusion that the victim would suffer 27 negative consequences if her relationship had been exposed or why falsely accusing 28 Petitioner would prevent her relationship from being exposed. 1 Petitioner also objects that his deflection theory was rendered plausible by the state 2 expert witness’s testimony that an adolescent female might make false allegations to 3 distract from a consensual relationship. (Id. at 11.) The state’s expert, Wendy Dutton, 4 testified that adolescent females might make false accusations for several reasons, 5 including a desire to change their living situation, mental illness, or “to conceal consensual 6 sexual activity.” (Doc. 26-3 at 49.) Regarding attempts to conceal consensual sexual 7 activity, Ms. Dutton explained that adolescent girls “may be sexually active with a 8 boyfriend, and when they’re either caught or perhaps they’re concerned they might be 9 pregnant, they might . . . claim that they were raped by someone . . . so they wouldn’t have 10 to identify who their partner is.” (Id.) The Court finds that, in context, Ms. Dutton’s 11 testimony does not meaningfully corroborate Petitioner’s theory that the accusations 12 against him were fabricated in order to “deflect” attention from a consensual sexual 13 relationship. Petitioner has not presented evidence that A.M. had been “caught” – on the 14 contrary, the proffered evidence appeared to suggest that A.M. did not attempt to hide this 15 consensual relationship from her family. (Doc. 26-2 at 70–71). Petitioner has not 16 demonstrated that there was a threat the relationship would be disclosed to other people, 17 nor that negative consequences would have flowed from such disclosure, nor that a false 18 accusation against Petitioner would avoid such a disclosure. 19 Finally, Petitioner objects that, even in the absence of specific evidence supporting 20 his theory of defense, the question is “still wide open” because he was prevented from 21 exercising his constitutional right to explore the question through cross-examination at 22 trial. (Doc. 32 at 8.) 23 The Supreme Court has made clear that “the exposure of a witness’ motivation in 24 testifying is a proper and important function of the constitutionally protected right of cross- 25 examination.” Delaware v. Van Arsdall, 475 U.S. 673, 678–79 (1986) (internal quotation 26 marks and citation omitted). At the same time, “trial judges retain wide latitude insofar as 27 the Confrontation Clause is concerned to impose reasonable limits on such cross- 28 examination based on concerns about, among other things, harassment, prejudice, 1 confusion of the issues, the witness’ safety, or interrogation that is repetitive or only 2 marginally relevant.” Id. at 679. To determine whether a trial court’s refusal to permit 3 cross-examination was constitutional error, the Court must first determine “whether the 4 proffered cross-examination sufficiently bore upon [the witness’] reliability or credibility 5 such that a jury might reasonably have questioned it.” Ortiz v. Yates, 704 F.3d 1026, 1035 6 (9th Cir. 2012) (citing Fowler v. Sacramento Cty. Sheriff’s Dep’t, 421 F.3d 1027, 1038 7 (9th Cir. 2005)). 8 Here, Petitioner has not demonstrated that cross-examination into the victim’s 9 sexual history might lead to any facts from which a jury could draw a permissible inference 10 about the reliability or credibility of the victim’s testimony. It was therefore within the trial 11 court’s discretion to “impose reasonable limits on such cross-examination based on 12 concerns about, among other things, harassment [and] prejudice . . .” 13 Delaware, 475 U.S. at 679. 14 Accordingly, the denial of Claim 2 by the state courts did not involve an objectively 15 unreasonable application of clearly established federal law or an unreasonable 16 determination of the facts in light of the evidence presented. 17 c. Claim 3 18 In Claim 3, Petitioner argues that the trial court erred by allowing the State’s child 19 abuse expert, Wendy Dutton, to provide testimony that improperly invaded the province of 20 the jury and vouched for the victim. (Doc. 1 at 8.) The trial court read two juror questions 21 to Dutton, “What percentage of allegations later prove to be false?” and, “What are the 22 statistics of stepparents abusing stepchildren?” (Doc. 26–3 at 66.) Ms. Dutton initially 23 stated that she didn’t believe she was allowed to answer such questions, but upon further 24 prompting by the court and prosecutor, stated that, “The most methodologically sound 25 studies seem to indicate that false allegations occur less than ten percent of the time” and 26 that, “[T]he most common victim/perpetrator relationship is . . . [generally] . . . a girl with 27 the mother’s either stepfather or boyfriend.” (Id. at 66–67.) 28 1 On direct appeal, the state conceded that the introduction of this testimony 2 concerning the specific percentage of false sexual abuse allegations and the most common 3 type of perpetrators was error under Arizona v. Lindsey, 720 P.2d 73, 76 (Ariz. 1986), 4 which held that “trial courts should not admit direct expert testimony that quantifies the 5 probabilities of the credibility of another witness.” (Doc. 19, Ex. J at ¶ 44.) The Arizona 6 Court of Appeals agreed that introduction of the challenged testimony was erroneous, but 7 nonetheless found that Petitioner failed to object during trial and so “forfeited the right to 8 seek relief for all but fundamental, prejudicial error.” (Id. at ¶ 46.) The appellate court 9 concluded that the expert testimony was not fundamental, prejudicial error. (Id. at ¶ 47.) 10 First, there was “ample extrinsic evidence of guilt” in the form of “numerous photographs 11 and videotapes and testimony of other witnesses.” (Id.) Second, A.M. testified at trial and 12 so the jurors were able to directly judge her credibility. (Id.) Finally, the trial court 13 instructed the jurors that they were not bound by any expert opinion. (Id. at ¶ 48.) 14 Magistrate Judge Kimmins similarly found that the admission of this testimony, 15 while in error, did not “so fatally infect[] the proceedings as to render them fundamentally 16 unfair.” (Doc. 27 at 11) (quoting Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 17 1991)). She reasoned that defense counsel re-crossed Dutton after the juror questions and 18 Dutton agreed that “[t]here may be any number of allegations that are never actually proven 19 [false or] otherwise,” and that Dutton also testified that adolescent girls have higher rates 20 of false accusations. (Id.) Magistrate Judge Kimmins also considered that Petitioner’s 21 counsel testified at the PCR hearing that Dutton’s percentage testimony was useful rather 22 than prejudicial. (Id.) Magistrate Judge Kimmins also noted that the jury was able to hear 23 directly from the victim and assess her credibility and that the jury was instructed that it 24 was not bound by expert opinion. (Id.) 25 Petitioner objects that Magistrate Judge Kimmins did not sufficiently consider the 26 harmful way in which this improper testimony was seized upon and utilized by the 27 prosecution. (Doc. 32 at 14.) Petitioner notes that the prosecutor referred to Ms. Dutton’s 28 percentage testimony during closing argument, stating: 1 Quite frankly, without knowing anything else about the case, you could be firmly convinced that he’s guilty. Nothing about 2 the case in terms of Ms. Dutton’s statistics. Ninety percent? You decide. Without knowing anything else about the case, 3 you could be firmly convinced. 4 (Doc. 32 at 14.) Although this argument is troubling in that it suggested to the jury that the 5 expert testimony itself would be a sufficient basis for a finding of guilt, this argument was 6 only offered by the state in rebuttal closing argument in response to Petitioner’s trial 7 counsel’s sustained argument that Ms. Dutton’s testimony as to a “ten percent chance [of] 8 false allegations” constituted reasonable doubt on its own. (Doc. 26–8 at 153.) 9 In this habeas proceeding, this Court looks not to whether the admission of this 10 evidence was erroneous under state law, but rather whether its admission “so fatally 11 infected the proceedings as to render them fundamentally unfair.” Jammal, 926 F.2d at 919 12 “[F]ailure to comply with the state’s rules of evidence is neither a necessary nor a sufficient 13 basis for granting habeas relief.” (Id.) “Only if there are no permissible inferences the jury 14 may draw from the evidence can its admission violate due process. Even then, the evidence 15 must ‘be of such quality as necessarily prevents a fair trial.’” Id. at 920 (quoting 16 Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986)). 17 Although Petitioner implies that the prosecutor’s reliance upon the improperly 18 admitted testimony automatically rendered his trial fundamentally unfair, Petitioner does 19 not point to any established federal law supporting such a conclusion. Viewing the 20 evidentiary error in context, the Court cannot conclude that it was objectively unreasonable 21 or in violation of clearly established federal law for the state courts to determine that the 22 admission of this testimony was harmless error. In light of the significant other evidence 23 introduced at trial, including photographs, videotapes, and the testimony of the victim and 24 other witnesses, the introduction of this evidence did not deprive Petitioner of a 25 fundamentally fair trial. The jurors were able to directly judge A.M.’s credibility because 26 she testified at trial. Petitioner’s counsel testified at the PCR hearing that Dutton’s 27 percentage testimony was useful rather than prejudicial, and Petitioner’s counsel also drew 28 out testimony from the state’s expert witness on cross-examination that “[t]here may be 1 any number of allegations that are never actually proven [false or] otherwise” and that 2 adolescent girls have higher rates of false accusations. (Doc. 26–3 at 65, 68.) Finally, as 3 both the Arizona Court of Appeals and Magistrate Judge Kimmins recognized, the trial 4 court instructed the jurors that they were not bound by any expert opinion. (Doc. 26–8 at 5 72.) 6 Accordingly, the Court determines that the introduction of this testimony was not 7 “of such quality as necessarily prevents a fair trial.” See Jammal, 926 F.2d at 920. The 8 introduction of this testimony did not render Petitioner’s trial “fundamentally unfair.” Id. 9 The denial of Claim 3 by the state courts did not involve an objectively unreasonable 10 application of clearly established federal law or an unreasonable determination of the facts 11 in light of the evidence presented. 12 B. Claims 4–7: Ineffective Assistance of Counsel 13 In Claims 4 through 7, Petitioner argues that his trial counsel rendered 14 constitutionally inadequate assistance. To prevail on a claim of ineffective assistance of 15 counsel, a petitioner must show that his counsel’s representation fell below an objective 16 standard of reasonableness and that the deficiency prejudiced the defense. See Strickland 17 v. Washington, 466 U.S. 668, 687–88 (1984). The inquiry under Strickland is highly 18 deferential, and “every effort [must] be made to eliminate the distorting effects of 19 hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to 20 evaluate the conduct from counsel’s perspective at the time.” Id. at 689. Thus, to satisfy 21 Strickland’s first prong, deficient performance, a defendant must overcome “the 22 presumption that, under the circumstances, the challenged action ‘might be considered 23 sound trial strategy.’” Id. (citation omitted). To succeed on an ineffective assistance claim, 24 a petitioner must also affirmatively prove prejudice. Id. at 693. To demonstrate prejudice, 25 he “must show that there is a reasonable probability that, but for counsel’s unprofessional 26 errors, the result of the proceeding would have been different. A reasonable probability is 27 a probability sufficient to undermine confidence in the outcome.” Id. at 694. 28 . . . . 1 a. Claim 4 2 In Claim 4, Petitioner argues that his trial attorney was ineffective in responding to 3 potential biases on the part of Judge Cruikshank, who was originally assigned to 4 Petitioner’s case. According to the PCR court, a detective testified that Judge Cruikshank 5 remarked about Petitioner along the lines of, “if he’s guilty let’s hope someone does what 6 they have to and we don’t have to deal with him again.” (Doc. 19, Ex. P at 4.) Judge 7 Cruikshank recused himself, but not before ruling that the evidence of uncharged acts of 8 sexual abuse discussed in Claim 1 was admissible. (Id.) Petitioner argues that his trial 9 attorney failed to submit a written request to have Judge Cruikshank’s rulings reconsidered 10 after he recused himself and also failed to seek sanctions against the State for not promptly 11 disclosing Judge Cruikshank’s potential bias. (Doc. 1 at 9.) 12 Petitioner’s counsel testified to the PCR court that she verbally addressed the 13 possibility of revisiting Judge Cruikshank’s rulings with Judge Campoy, who was assigned 14 after Judge Cruikshank’s recusal. (Doc. 19, Ex. O at 19–21.) Judge Campoy indicated that 15 Petitioner’s counsel had not provided a compelling argument that the decisions were 16 legally incorrect and that Judge Campoy was not inclined to reconsider them. (Id. at 18– 17 20, 76–77.) Based on that exchange, Petitioner’s counsel determined that filing a written 18 request for reconsideration would be futile. (Id. at 18–19, 76–77.) The PCR court rejected 19 Petitioner’s ineffectiveness claim, concluding that there was no evidence of actual bias on 20 the part of Judge Cruikshank and that Petitioner produced no evidence or argument “that 21 another judge would have ruled any differently than Judge Cruikshank on any issue, 22 including the ruling on this other-act evidence.” (Doc. 19, Ex. P at 4.) 23 Magistrate Judge Kimmins found that Petitioner failed to show either that his 24 counsel rendered deficient performance or that Petitioner was prejudiced. (Doc. 27 at 13.) 25 She found that Petitioner’s counsel had a reasonable basis for believing that filing a written 26 request for reconsideration would be futile, and that “Petitioner does not argue, let alone 27 establish, that upon reconsideration Judge Campoy would have modified any of Judge 28 Cruikshank’s rulings.” (Id.) 1 In his Objections, Petitioner again argues that he was the victim of Judge 2 Cruikshank’s bias. However, Petitioner provides no new evidence or argument to the effect 3 that Judge Campoy might have reconsidered Judge Cruikshank’s rulings if trial counsel 4 had filed a written request for reconsideration. Instead, Petitioner argues that Judge 5 Cruikshank’s rulings were “nullities and of no effect” and so it is “irrelevant” whether 6 Judge Cruikshank’s rulings “were legally incorrect or not.” (Doc. 32 at 17.) Furthermore, 7 Petitioner argues that “Judicial bias, if proven, requires automatic reversal and is not 8 subject to harmless error review” because it is “structural error.” (Id.) 9 Petitioner’s contentions are not supported by the cases he cites, which largely 10 concern the standard of review on direct appeal of verdicts rendered after trial before a 11 judge with proven bias.2 While the Supreme Court has held that judicial bias can constitute 12 structural error and require automatic reversal, it has done so because judicial bias at trial 13 is an error so pervasive as to preclude harmless error review. See Arizona v. Fulminante, 14 499 U.S. 279, 309–10 (1991) (“The entire conduct of the trial from beginning to end is 15 obviously affected by . . . the presence on the bench of a judge who is not impartial”) (citing 16 Tumey v. Ohio, 273 U.S. 510 (1927)). Here, Judge Cruikshank’s potential bias did not 17 “infect the entire trial process” because he recused himself well before trial. Petitioner has 18 not cited any authority demonstrating that Judge Cruikshank’s pre-trial involvement in this 19 case mandates habeas relief. 20 The cases cited by Petitioner are also inapposite because Petitioner’s claim is before 21 the Court on federal habeas review. Under the well-established framework provided by the 22 Supreme Court in Strickland v. Washington, a petitioner claiming ineffective assistance 23 must affirmatively prove prejudice. Strickland, 466 U.S. at 693. Petitioner cites cases 24 considering structural error on direct review without accounting for the fact that courts 25 must apply a “different standard for evaluating a structural error depending on whether it 26 is raised on direct review or raised instead in a claim alleging ineffective assistance of 27 2 Petitioner primarily relies on Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) and Neder 28 v. United States, 527 U.S. 1 (1999) to support his structural error argument. (Doc. 32 at 16–17). 1 counsel.” Weaver v. Massachusetts., 137 S. Ct. 1899, 1912 (2017). Considerations of 2 finality, comity, and federalism also counsel that a higher showing of prejudice is required 3 to grant a federal writ of habeas corpus than to reverse a conviction in the normal course 4 of judicial review. See Brecht v. Abrahamson, 507 U.S. 619, 634–639 (1993) (explaining 5 that the harmless error standard applicable on direct review is too forgiving to be applied 6 on federal habeas review and instead requiring habeas petitioners to establish “actual 7 prejudice” by showing that the error “had substantial and injurious effect or influence in 8 determining the jury’s verdict.”) Petitioner has not demonstrated prejudice. 9 Petitioner has not demonstrated that his trial counsel acted unprofessionally in 10 failing to object in writing to Judge Cruikshank’s pre-recusal rulings, or that any error 11 might be reasonably believed to have made a difference in the outcome of his case. 12 Petitioner does not allege that another judge would have determined the legal issues 13 differently than Judge Cruikshank, much less that a different ruling would have had a 14 reasonable chance of leading to a different outcome at trial. The Court finds that Petitioner 15 has failed to demonstrate either deficient performance or prejudice with respect to Claim 16 4. The denial of this claim by the state courts did not involve an objectively unreasonable 17 application of clearly established federal law or an unreasonable determination of the facts 18 in light of the evidence presented. 19 b. Claim 5 20 In Claim 5, Petitioner alleges his trial counsel was ineffective in relation to the 21 admission of four pieces of evidence. 22 1. Subclaim One 23 In the first subclaim, Petitioner argues that his trial counsel was ineffective in failing 24 to move to preclude the victim’s testimony that sexual intercourse occurred “nearly every 25 night” and to properly object to that testimony during trial. (Doc. 1 at 10.) The PCR Court 26 rejected this argument, finding that Petitioner’s trial counsel’s decision not to object was a 27 “strategic decision” that did “not establish ineffectiveness.” (Doc. 19, Ex. P at 5.) 28 Magistrate Judge Kimmins found that trial counsel did not render deficient 1 performance because counsel could have reasonably assumed that the evidence would have 2 been admitted over an objection. (Doc. 27 at 15.) Before trial, Petitioner’s trial counsel had 3 moved to preclude other act evidence involving sexual conduct with the same victim which 4 occurred in Yuma, Arizona prior to the indictment period. However, the trial court 5 determined the evidence was admissible before trial, and overruled Petitioner’s counsel’s 6 objection during trial as well. (Doc. 26-1 at 234–36.) Magistrate Judge Kimmins therefore 7 reasoned that “because the trial court admitted all the other act evidence presented by the 8 State, except for one photograph lacking foundation, counsel could reasonably conclude 9 the victim’s testimony on the frequency of sexual conduct contemporaneous with the 10 charged conduct would have been admitted” and that it was therefore “not unreasonable 11 for counsel not to object.” (Doc. 27 at 15.) Magistrate Judge Kimmins concluded that 12 Petitioner had failed to rebut the presumption that his trial counsel had acted for tactical 13 reasons, and also noted that, in any case, Petitioner failed to demonstrate prejudice. (Id.) 14 In his Objections, Petitioner argues that Strickland’s presumption that counsel acts 15 for strategic reasons does not apply here because a court may not “simply invent a 16 presumption where no evidence exists to hang that presumption on.” (Doc. 32 at 21.) 17 Petitioner argues that, “absent counsel’s full explanation under oath that she had valid 18 strategic reasons to not object,” the Court must assume that she was inattentive or 19 neglectful. (Id.) But this argument turns Strickland’s presumption on its head. The case 20 Petitioner cites for this proposition, Marcrum v. Luebbers, 509 F.3d 489, 502 (8th Cir. 21 2007), discusses a situation where a petitioner provided direct evidence that counsel’s 22 actions resulted from inattention or neglect rather than reasoned judgment. (Id.) Here, in 23 contrast, Petitioner has not produced any direct evidence that counsel’s actions resulted 24 from inattention or neglect, and so testimony of Petitioner’s counsel is not necessary for 25 the Court to conclude that she acted strategically. See Morris v. State of Cal., 966 F.2d 448, 26 456–57 (9th Cir. 1991) (“We need not determine the actual explanation for trial counsel’s 27 failure to object, so long as his failure to do so falls within the range of reasonable 28 representation.”) 1 Accordingly, the Court adopts Magistrate Judge Kimmins’s finding that Petitioner 2 has failed to rebut the presumption that his counsel acted for tactical reasons. The Court 3 notes that Petitioner did not object to Magistrate Judge Kimmins’s finding that Petitioner 4 also failed to demonstrate prejudice. The Court adopts that finding as well. 5 2. Subclaim Two 6 In his second subclaim, Petitioner argues that his trial counsel brought an 7 incriminating image of the victim within the State’s disclosure to the attention of the 8 prosecution. (Doc. 1 at 10.) The PCR court found that counsel did not alert the prosecution 9 to the incriminating material, but rather that trial counsel requested a copy of video 10 evidence and, when a detective was copying the material, he discovered an incriminating 11 image of the victim. (Doc. 19, Ex. P at 5.) Magistrate Judge Kimmins found that Petitioner 12 failed to rebut the PCR court’s factual finding by clear and convincing evidence. (Doc. 27 13 at 16.) In his Objections, Petitioner maintains that the “record reveals conflicting views 14 about the facts of this concern,” but Petitioner does not provide any additional evidence 15 that could rebut the PCR court’s factual finding. (Doc. 32 at 22.) As this Court presumes 16 the PCR court’s fact finding is correct unless rebutted by clear and convincing evidence, 17 28 U.S.C. § 2254(e)(1), the Court adopts Magistrate Judge Kimmins’s conclusion. 18 3. Subclaims Three and Four 19 In his third subclaim, Petitioner argues that his trial counsel rendered ineffective 20 assistance by failing to move the court to preclude evidence of “thousands of irrelevant but 21 inflammatory images of female genitalia” found on his computer. (Doc. 1 at 10.) In his 22 fourth subclaim, Petitioner argues that trial counsel also rendered ineffective assistance by 23 opening the door during trial to the admission of these images. (Id.) 24 Trial counsel testified to the PCR court that she mentioned the photographic 25 collection to desensitize the jury to the significant level of sexual activity going on in 26 Petitioner’s home. (Doc. 19, Ex. O at 37–38.) She believed it would be more prejudicial to 27 allow the State to present only the two incriminating images depicting A.M., rather than 28 the large volume of pictures with the possibility that the two images had been planted and 1 hidden among the other photographs. (Id. at 36–37, 59–60.) Petitioner’s trial counsel 2 testified before the PCR court that: 3 I embraced [the images]. I brought it up with the detective. I didn’t talk about it as much in closing as I wanted to because 4 we were running out of time when I finally got to that particular segment in my closing argument. But it went ‘part and parcel’ 5 with my whole theory of the case, that this was a conspiracy between our victim, or minor victim, as well as the mother, 6 which was Mr. Herrera’s desire for me to put forth during the trial, that this was a conspiracy. He was very angry that the 7 mother wasn’t charged with these crimes as well. So as a result, those images just helped our case, in our opinion, as far as our 8 trial strategy was concerned, because anyone and everyone had access to that computer. And that’s what we were trying to 9 show, it’s that there was no way to prove one way or another anything about those images. 10 11 (Id. at 32.) The PCR court concluded counsel’s strategy was reasonable and supported 12 Petitioner’s theory of the case. (Doc. 19, Ex P. at 6.) 13 Magistrate Judge Kimmins found that the PCR court’s determination that counsel 14 made a strategic decision was not an objectively unreasonable application of federal law 15 because trial counsel provided rational reasons for not moving to preclude this evidence 16 and for choosing to raise it at trial. (Doc. 27 at 18.) 17 Petitioner makes two objections. (Doc. 32 at 23–24.) First, Petitioner argues that the 18 images did not support an inference that someone had “planted” the two incriminating 19 images because they were found on a different computer than the approximately 17,500 20 images at issue in this subclaim. (Id. at 23.) This objection is overruled because counsel’s 21 strategy of creating doubt by suggesting a possibility that the incriminating images were 22 not placed on the computer by Petitioner could have been effective even though the 23 incriminating images were found on a different computer than the large collection of 24 images. Moreover, the decision to introduce the images to desensitize the jury to the high 25 level of sexual activity going on in Petitioner’s home was reasonable even absent a theory 26 that the incriminating images were “planted.” Second, Petitioner argues that “a competent, 27 well-prepared, and effective attorney would develop strategies to minimize the jury’s 28 exposure to irrelevant, prejudicial evidence.” (Id. at 24.) However, Petitioner has made no 1 showing that the images were so prejudicial that they had no value in contextualizing the 2 incriminating images as part of a trial strategy. 3 The Court concludes that Petitioner has failed to demonstrate either deficient 4 performance or prejudice as to any subclaim of Claim 5. Accordingly, the denial of each 5 subclaim of Claim 5 by the state courts under Strickland did not involve an objectively 6 unreasonable application of clearly established federal law or an unreasonable 7 determination of the facts in light of the evidence presented. 8 c. Claim 6 9 In Claim 6, Petitioner alleges counsel was ineffective in failing to object to a sexual 10 propensity instruction given to the jury. (Doc. 1 at 11.) Petitioner contends that the 11 instruction was not warranted because no other act evidence was properly admitted under 12 Arizona Rule of Evidence 404(c). (Id.) The trial judge instructed the jury: 13 Other acts. If you find that evidence of other acts of sexual misconduct by the defendant has been presented, you may 14 consider such evidence in determining whether Defendant had a character trait that predisposed him to commit the crimes 15 charged. 16 You may determine that the defendant had a character trait that predisposed him to commit the crimes charged only if you 17 decide that, one, the State has proved by clear and convincing evidence that Defendant committed these act[s], and, two, the 18 State has proved by clear and convincing evidence that these facts show Defendant’s character predisposed him to commit 19 abnormal or unnatural sex acts. You may not convict the defendant of the crimes charged simply because you find that 20 the defendant committed the other act or that he had a character trait that predisposed him to commit the crimes charged. 21 Evidence of these acts does not lessen the State’s burden to prove Defendant’s guilt beyond a reasonable doubt as to any 22 given charge. 23 (Doc. 26-8 at 73–74.) The PCR court ruled that Petitioner was not prejudiced by the 24 instruction because the evidence warranted it. (Doc. 19, Ex. P at 7.) The Arizona Court of 25 Appeals similarly found the propensity evidence was properly admitted under Arizona 26 Rule of Evidence 404(c) and that the jury instruction was properly given under state law. 27 (Doc. 19, Ex. J at 21.) 28 Magistrate Judge Kimmins found that deference to the state court’s interpretation 1 of state law was warranted because a federal court sitting in habeas review is ordinarily 2 “bound to accept a state court’s interpretation of state law.” (Doc. 27 at 19) (quoting Butler 3 v. Curry, 528 F.3d 624, 642 (9th Cir. 2008)). 4 In his Objections, Petitioner expands on his argument from Claim 1, and argues that 5 counsel’s failure to object was ineffective assistance because the 404(c) evidence was 6 inadmissible. (Doc. 32 at 25.) The Court has already concluded that it must defer to the 7 state courts’ construction of state procedural law in this instance. (See Claim One, supra at 8 7–9.) Petitioner also argues that, even if the evidence was properly admitted, “the failure 9 of counsel to timely and properly object to the ‘other acts evidence’ instruction where such 10 an objection stood a high likelihood of success, constitutes performance below the 11 prevailing professional norms.” (Doc. 32 at 25.) Petitioner, however, has not demonstrated 12 that an objection to the jury instruction “stood a high likelihood of success,” and for the 13 reasons discussed in Claim One, the Court concludes that an objection would not likely 14 have been sustained. 15 Because this Court must defer to the state courts’ reasonable construction of their 16 own procedural rules, and because under the interpretation of the state courts the objection 17 Petitioner claims counsel should have made would not have been granted, the Court adopts 18 Magistrate Judge Kimmins’s recommendation. Accordingly, the denial of Claim 6 by the 19 state courts did not involve an objectively unreasonable application of clearly established 20 federal law or an unreasonable determination of the facts in light of the evidence presented. 21 d. Claim 7 22 In Claim 7, Petitioner alleges that his trial counsel rendered ineffective assistance 23 of counsel by failing to object to the juror questions that led the state’s expert Wendy 24 Dutton to make the statements discussed in Claim 3. (Doc. 1 at 12.) The juror question led 25 Ms. Dutton to testify that “allegations of sexual misconduct by adolescent females are later 26 proven false less than 10 percent of the time” and that “the most common 27 victim/perpetrator relationship is . . . [generally] . . . a girl with a mother’s either stepfather 28 1 or boyfriend[.]” (Id.) Petitioner argues that counsel’s failure to object to these questions 2 was part of an unreasonable and constitutionally deficient trial strategy. (Id.) 3 Regarding the percentage testimony, Magistrate Judge Kimmins found that 4 counsel’s trial strategy was reasonable. (Doc. 27 at 20.) Trial counsel testified to the PCR 5 court that “her trial technique is one that if the jury wants the answer to a question, provided 6 that it’s not something horribly prejudicial, which in this instance it was not, give them the 7 answer” and that she knew Dutton would testify that ten percent or less claims are proven 8 false. (Doc. 19, Ex. P. at 7.) The PCR court cited counsel’s testimony that “she liked the 9 answer,” and was going to “prance all over the courtroom with it” because it “basically 10 amounts to reasonable doubt.” (Id., Ex. P at 7.) The PCR court found that using this 11 testimony to create reasonable doubt was a “well-reasoned trial strategy.” (Id.) Magistrate 12 Judge Kimmins agreed, noting that Petitioner presented no evidence that counsel’s decision 13 was unreasonable, such as an opinion from another attorney or prevailing norms from 14 attorney guidelines, and that Petitioner therefore failed to satisfy the heavy burden of 15 proving that trial strategy was deficient. (Doc 27 at 20.) 16 Regarding the common victim/perpetrator relationship question, Magistrate Judge 17 Kimmins determined that admission of this testimony was not raised as a basis of 18 ineffective assistance of counsel in the PCR Petition. (Id. at 21, n.5.) She therefore 19 concluded that it was procedurally defaulted under the doctrine of Coleman v. Thompson, 20 501 U.S. 722, 732, 735 n.1 (1991). (Id.) She also noted that, even if it were not procedurally 21 defaulted, that Petitioner would still be unable to demonstrate prejudice. (Id.) 22 In his Objections, Petitioner restates his arguments from Claim 3 regarding the 23 prejudicial nature of the expert’s testimony. (Doc. 32 at 27.) Petitioner argues that the 24 testimony was prohibited, that his counsel had a professional obligation to be familiar with 25 the law, and that acquiescing to impermissibly prejudicial testimony cannot reasonably be 26 considered a “sound trial strategy.” (Id.) He further argues that ten percent is “clearly a 27 miniscule amount of the whole and could not reasonably be considered a useful talking 28 point to argue in his favor.” (Id.) Petitioner does not object to Magistrate Judge Kimmins’s 1 conclusion that his claim regarding common victim/perpetrator relationships is 2 procedurally defaulted. (Id. at 26–28.) 3 To prevail on his ineffective assistance claim, Petitioner bears the burden of 4 “overcom[ing] the presumption that, under the circumstances, the challenged action might 5 be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal quotation marks 6 and citation omitted.) This is a “heavy burden” to carry. Murtishaw v. Woodford, 255 F.3d 7 926, 939 (9th Cir. 2001). “Because advocacy is an art and not a science, and because the 8 adversary system requires deference to counsel’s informed decisions, strategic choices 9 must be respected in these circumstances if they are based on professional 10 judgment.” Strickland, 466 U.S. at 681. 11 Here, Petitioner’s trial attorney articulated a reasonable purpose in not objecting to 12 the percentage testimony, namely that the testimony would support reasonable doubt. 13 Petitioner strongly disagrees with the strategy but has not brought forth any evidence that 14 it was unreasonable, such as an “alternate attorney’s determination challenging” his 15 counsel’s strategy, citations to guidelines of professional practice such as “American Bar 16 Association standards and the like,” or references to statements made by counsel 17 demonstrating flaws in her trial strategy. See Matylinsky v. Budge, 577 F.3d 1083, 1092 18 (9th Cir. 2009). In the absence of evidence of unreasonable strategy, and given the strong 19 presumption that counsel acted for strategic reasons, the Court concludes that Petitioner 20 has failed to carry his “heavy burden.” Murtishaw, 255 F.3d at 939. Accordingly, the 21 denial of Claim 7 by the state courts did not involve an objectively unreasonable 22 application of clearly established federal law or an unreasonable determination of the facts 23 in light of the evidence presented. 24 Petitioner does not object to Magistrate Judge Kimmins’s finding that Petitioner’s 25 ineffective assistance argument related to the victim/perpetrator relationship question is 26 procedurally defaulted, and the Court finds no clear error in Magistrate Judge Kimmins’s 27 analysis and so adopts this conclusion as well. 28 . . . . 1 C. Claim 8: Cumulative Error 2 In Claim 8, Petitioner argues that the “cumulative impact of defense counsel’s many 3 deficiencies as stated in the foregoing Grounds deprived Petitioner of due process and a 4 fundamentally fair trial, in violation of guarantees provided by the United States 5 Constitution’s 5th, 6th and 14th Amendments.” (Doc. 1 at 13.) Magistrate Judge Kimmins 6 determined that, because there was no error by counsel in Claims 4 through 7, that “there 7 is no effect to cumulate.” (Doc. 27 at 21.) 8 In his Objections, Petitioner retreats from the Petition’s argument that he challenges 9 the “cumulative impact of defense counsel’s many deficiencies,” and instead states that his 10 cumulative error claim ties together all his other claims, including the alleged state court 11 errors in Claims 1 through 3. (Doc. 32 at 28.) Even if the Court were inclined to entertain 12 Petitioner’s argument, it would do Petitioner no good because this claim was not exhausted. 13 While Petitioner did present a claim of cumulative error to the state courts in his PCR 14 Petition, the claim was limited to the cumulative errors of Petitioner’s defense counsel. 15 (Doc. 19, Ex. L.) “[A] cumulative error claim must be fairly presented before a state court 16 to be exhausted.” Wooten v. Kirkland, 540 F.3d 1019, 1026 (9th Cir. 2008). Because no 17 cumulative error claim tying together all Petitioner’s claims was fairly presented to the 18 state courts, the claim is unexhausted and procedurally defaulted and therefore not 19 cognizable in this proceeding. See Coleman v. Thompson, 501 U.S. at 730. Accordingly, 20 the Court will review Petitioner’s claim of cumulative error as relating to the cumulative 21 effect of his trial counsel’s alleged errors, which is the claim Petitioner articulated in his 22 Petition and the claim that Magistrate Judge Kimmins reviewed. 23 The Court will adopt the recommendation of Magistrate Judge Kimmins as to 24 Petitioner’s cumulative error claim. Because the Court did not find that Petitioner’s trial 25 counsel rendered deficient performance, there is no error to cumulate. See Runningeagle 26 v. Ryan, 825 F.3d 970, 990 n.21 (9th Cir. 2016) (rejecting cumulative error argument 27 because court found IAC claims “insubstantial or unsuccessful on the merits”); see also 28 Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (“Because we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is possible.’’) IV. Conclusion 4 For these reasons, the Court concludes that each of Petitioner’s claims fail. The 5 || Court will adopt the findings and recommendations of Magistrate Judge Kimmins and will || dismiss Petitioner’s Petition for a Writ of Habeas Corpus. 7 Accordingly, 8 IT IS ORDERED that Petitioner’s Objections (Doc. 32) are overruled, and that 9|| Magistrate Judge Kimmins’s Report and Recommendation (Doc. 27) is accepted and 10 || adopted in full. 11 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied. The Clerk of Court is directed to enter judgment 13 || accordingly and close this case. 14 IT IS FURTHER ORDERED that this Court, pursuant to Rule 11 of the Rules 15 || Governing Section 2254 Cases, the Court declines to issue a certificate of appealability, because reasonable jurists would not find the Court’s ruling debatable. See Slack v. 17} McDaniel, 529 U.S. 473, 478, 484 (2000). 18 Dated this Ist day of February, 2021. 19 20 21 {> □□□ 22 Honorable Rostsiary □□□□□□□ 23 United States District □□□□□ 24 25 26 27 28
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