1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jacques Farr, ) CIV-14-2128-PHX-SRB (MHB) ) 10 Petitioner, ) REPORT AND RECOMMENDATION ) 11 vs. ) ) 12 Charles L Ryan, et al., ) ) 13 Respondents. ) ) 14 15 TO THE HONORABLE SUSAN R. BOLTON, UNITED STATES DISTRICT COURT: 16 Petitioner Jacques Farr has filed a pro se Amended Petition for Writ of Habeas Corpus 17 pursuant to 28 U.S.C. § 2254 (Doc. 5). Respondents filed an Answer (Doc. 65), and 18 Petitioner has filed a Reply (Doc. 74). 19 BACKGROUND 20 Petitioner was convicted in Maricopa County Superior Court, case #CR 2013-423168, 21 of one count of theft, one count of theft of a means of transportation, and one count of 22 trafficking in stolen property, and was sentenced to a 3.5-year term of imprisonment. 23 The Arizona Court of Appeals described the facts of this case as follows: 24 ¶ 2 During the fall of 2009, Farr agreed to help D.W.[] move out of a house where D.W. was staying. Before doing so, Farr took D.W. (who was on 25 parole) to a parole office where D.W. was taken into custody. D.W. surrendered his keys and wallet to the parole officer, asking the parole officer 26 to tell Farr to take them to Frank Meadows, who owned the house where D.W. had been staying. When Farr went to Meadows’ house with a friend, he took 27 all of D.W.’s belongings. 28 1 ¶ 3 In the first part of 2010, Farr sold D.W.’s 1991 Chevy pickup truck to R.S.R. for $1,000. The title had D.W.’s signature notarized on the seller 2 section, but that signature did not match D.W.’s actual signature. 3 ¶ 4 In May 2013, the State charged Farr in a direct complaint with count one, theft of means of transportation, a Class 3 felony; count two, trafficking 4 in stolen property in the second degree, a Class 3 felony, and count three, theft, a Class 6 felony. After failed plea negotiations, the State charged Farr by 5 indictment with the same three offenses. Before trial, while represented by counsel, Farr filed several pro se motions. Other than granting a pro se motion 6 to change counsel, the superior court summarily denied all of Farr’s pro se motions. 7 ¶ 5 During a five-day trial in April and May 2014, the State presented six 8 witnesses: D.W.; R.S.R.; the person who helped Farr move D.W.’s possessions out of Meadows’ house; Meadows and two detectives. The day after R.S.R. 9 testified, the State moved to amend the indictment to conform to the evidence presented concerning the date range for the sale of the truck to R.S.R. See 10 Ariz. R.Crim. P. 13.5(b) (2016).[] Over Farr’s objection, the superior court allowed the amendment as it was consistent with the trial evidence and 11 encompassed the general time frame of the indictment. 12 ¶ 6 After the State rested, Farr presented two witnesses: the notary who witnessed the signature on the title and a friend who saw the transaction; Farr 13 also elected to testify on his own behalf. Farr testified that, after he helped D.W. with a problem, D.W. sold Farr the truck for $500. Farr testified that 14 D.W. signed the title, and his signature was notarized, before D.W. was taken into custody, leaving the buyer line of the title blank. 15 ¶ 7 After final instructions and closing argument, the jury deliberated and 16 found Farr guilty as charged and found, for the theft verdict, that Farr controlled property valued at $1,000 or more. At sentencing, after a proper 17 colloquy, Farr admitted a prior felony conviction from 1989. After considering the presentence report and hearing from counsel as well as Farr, his father, 18 wife and son, the superior court sentenced Farr to presumptive concurrent sentences of 3.5 years in prison for counts one and two and 1 year in prison for 19 count three. 20 State v. Farr, 2016 WL 1425804 (Ariz. Ct. App. April 12, 2016). 21 On direct appeal, Petitioner’s counsel filed a brief pursuant to Anders v. California, 22 386 U.S. 738 (1967), stating that she had searched the record, but found no arguable question 23 of law that is not frivolous, and asking the court to examine the record for reversible error. 24 (Exh. K.) Thereafter, Petitioner filed a pro se “supplemental brief” alleging the following 25 claims: (1) that the court erred in its denial of pre-trial pro se motions; (2) that the State failed 26 to present exculpatory evidence to the grand jury; (3) that his right to a speedy trial was 27 violated; (4) that the court erred by allowing the State to amend the indictment; (5) that he 28 was denied due process by pre-indictment delay; (6) that D.W. should not have been allowed 1 to testify as he was incompetent; (7) that the court erred in giving jury instructions regarding 2 the notary public; (8) that the court erred in not allowing the release of defendant pending 3 appeal; (9) that the court erred by allowing defendant to be cross-examined with his prior 4 conviction; (10) that the court erred by failing to consider the special action as a writ of 5 habeas corpus; (11) that his trial counsel was ineffective; and (12) that there was insufficient 6 evidence to support his convictions and that he is actually innocent. (Exhs. L, M.) 7 The Arizona Court of Appeals affirmed Petitioner’s convictions and sentences on 8 April 12, 2016. (Exh. M.) The Arizona Supreme Court denied the petition for review on 9 August 22, 2016. (Exh. M.) 10 The record reflects that on May 3, 2016, Petitioner filed a notice of post-conviction 11 relief. (Exh. N.) Defense counsel filed a notice of completion of post-conviction review 12 informing the court that after completing review of the record, he was unable to find any 13 meritorious claims for relief in which to raise in post-conviction relief proceedings. (Exh. O.) 14 Counsel also requested an extension of time for Petitioner to file a pro per PCR petition. 15 (Exh. O.) 16 On December 29, 2016, Petitioner filed a pro per PCR petition alleging the following 17 claims: (1) denial of pre-trial pro se motions; (2) failure of the state to present exculpatory 18 evidence to the grand jury; (3) violation of speedy trial right (4) amendment of the indictment 19 during trial; (5) pre-indictment delay; (6) incompetent witness permitted to testify at trial; (7) 20 jury instructions regarding notary public; (8) failure to allow release of defendant pending 21 appeal; (9) use of defendant’s prior conviction for impeachment; (10) denial of October 2014 22 special action complaint; (11) ineffective assistance of trial counsel in that “Every Court 23 appointed lawyer did absolutely nothing to insure that the rights of the Petitioner was [sic] 24 protected or enforced,” and in failing present evidence of a Craigslist ad and satellite image 25 of the pick-up truck from October 2009; and (12) insufficiency of evidence and actual 26 innocence. (Exhs P, R.) 27 On June 12, 2017, the state court dismissed the petition finding that grounds one 28 through ten and twelve were precluded pursuant to Rule 32.2. As to the ineffective assistance 1 claim alleged in ground eleven, the court found that Petitioner failed to state a colorable 2 claim for relief. (Exh. R.) Petitioner did not file a petition for review in the Arizona Court of 3 Appeals. (Doc. 59.) 4 In his Amended Petition, Petitioner names Charles L. Ryan as Respondent and the 5 Arizona Attorney General as an Additional Respondent. (Doc. 5.) Petitioner alleges five 6 grounds for relief. In Ground One, Petitioner alleges that his right to due process and right 7 to a speedy trial were violated, in violation of the Sixth and Fourteenth Amendments. In 8 Ground Two, Petitioner alleges that the State committed prosecutorial misconduct, in 9 violation of the Fifth, Sixth, Eight, and Fourteenth Amendments. In Ground Three, Petitioner 10 alleges that he received the ineffective assistance of counsel. In Ground Four, Petitioner 11 alleges that he was prosecuted in a “biased and unfair venue.” In Ground Five, Petitioner 12 appears to allege that the grand jury process in his case was defective, stating that it was an 13 “unqualified/illegal grand jury.” 14 In their Answer, Respondents argue that Ground One fails on the merits, Grounds 15 Two and Three are procedurally defaulted, and Grounds Four and Five are not cognizable 16 in federal habeas proceedings. 17 DISCUSSION 18 A. Standards of Review 19 1. Merits 20 Pursuant to the AEDPA1, a federal court “shall not” grant habeas relief with respect 21 to “any claim that was adjudicated on the merits in State court proceedings” unless the state 22 court decision was (1) contrary to, or an unreasonable application of, clearly established 23 federal law as determined by the United States Supreme Court; or (2) based on an 24 unreasonable determination of the facts in light of the evidence presented in the state court 25 proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) 26 (O’Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard 27 28 1 Antiterrorism and Effective Death Penalty Act of 1996. 1 of review). This standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 2 (2011). It is also a “highly deferential standard for evaluating state court rulings, which 3 demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 4 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted). “When 5 applying these standards, the federal court should review the ‘last reasoned decision’ by a 6 state court ... .” Robinson, 360 F.3d at 1055. 7 A state court’s decision is “contrary to” clearly established precedent if (1) “the state 8 court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” 9 or (2) “if the state court confronts a set of facts that are materially indistinguishable from a 10 decision of [the Supreme Court] and nevertheless arrives at a result different from [its] 11 precedent.” Williams, 529 U.S. at 404-05. “A state court’s decision can involve an 12 ‘unreasonable application’ of Federal law if it either 1) correctly identifies the governing rule 13 but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) 14 extends or fails to extend a clearly established legal principle to a new context in a way that 15 is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002). 16 2. Exhaustion and Procedural Default 17 A state prisoner must exhaust his remedies in state court before petitioning for a writ 18 of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 19 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To 20 properly exhaust state remedies, a petitioner must fairly present his claims to the state’s 21 highest court in a procedurally appropriate manner. See O’Sullivan v. Boerckel, 526 U.S. 22 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona 23 Court of Appeals by properly pursuing them through the state’s direct appeal process or 24 through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th 25 Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). 26 Proper exhaustion requires a petitioner to have “fairly presented” to the state courts 27 the exact federal claim he raises on habeas by describing the operative facts and federal legal 28 theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78 1 (1971) (“[W]e have required a state prisoner to present the state courts with the same claim 2 he urges upon the federal courts.”). A claim is only “fairly presented” to the state courts 3 when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim 4 under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) 5 (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner 6 fails to alert the state court to the fact that he is raising a federal constitutional claim, his 7 federal claim is unexhausted regardless of its similarity to the issues raised in state court.”). 8 A “general appeal to a constitutional guarantee,” such as due process, is insufficient 9 to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 10 U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) 11 (“Exhaustion demands more than drive-by citation, detached from any articulation of an 12 underlying federal legal theory.”). Similarly, a federal claim is not exhausted merely because 13 its factual basis was presented to the state courts on state law grounds – a “mere similarity 14 between a claim of state and federal error is insufficient to establish exhaustion.” Shumway, 15 223 F.3d at 988 (quotations omitted); see Picard, 404 U.S. at 275-77. 16 Even when a claim’s federal basis is “self-evident,” or the claim would have been 17 decided on the same considerations under state or federal law, a petitioner must still present 18 the federal claim to the state courts explicitly, “either by citing federal law or the decisions 19 of federal courts.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted), 20 amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin v. Reese, 541 U.S. 27, 32 (2004) 21 (claim not fairly presented when state court “must read beyond a petition or a brief ... that 22 does not alert it to the presence of a federal claim” to discover implicit federal claim). 23 Additionally, a federal habeas court generally may not review a claim if the state 24 court’s denial of relief rests upon an independent and adequate state ground. See Coleman 25 v. Thompson, 501 U.S. 722, 731-32 (1991). The United States Supreme Court has explained: 26 In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the 27 rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose 28 custody was supported by independent and adequate state grounds an end run 1 around the limits of this Court’s jurisdiction and a means to undermine the State’s interest in enforcing its laws. 2 Id. at 730-31. A petitioner who fails to follow a state’s procedural requirements for 3 presenting a valid claim deprives the state court of an opportunity to address the claim in 4 much the same manner as a petitioner who fails to exhaust his state remedies. Thus, in order 5 to prevent a petitioner from subverting the exhaustion requirement by failing to follow state 6 procedures, a claim not presented to the state courts in a procedurally correct manner is 7 deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32. 8 Claims may be procedurally barred from federal habeas review based upon a variety 9 of factual circumstances. If a state court expressly applied a procedural bar when a petitioner 10 attempted to raise the claim in state court, and that state procedural bar is both 11 “independent”2 and “adequate”3 – review of the merits of the claim by a federal habeas court 12 is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law 13 default prevents the state court from reaching the merits of a federal claim, that claim can 14 ordinarily not be reviewed in federal court.”) (citing Wainwright v. Sykes, 433 U.S. 72, 87- 15 88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)). 16 Moreover, if a state court applies a procedural bar, but goes on to alternatively address 17 the merits of the federal claim, the claim is still barred from federal review. See Harris v. 18 Reed, 489 U.S. 255, 264 n.10 (1989) (“[A] state court need not fear reaching the merits of 19 a federal claim in an alternative holding. By its very definition, the adequate and independent 20 state ground doctrine requires the federal court to honor a state holding that is a sufficient 21 basis for the state court’s judgment, even when the state court also relies on federal law. ... 22 In this way, a state court may reach a federal question without sacrificing its interests in 23 finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 24 25 26 2 A state procedural default rule is “independent” if it does not depend upon a federal constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002). 27 3 A state procedural default rule is “adequate” if it is “strictly or regularly followed.” Johnson 28 v. Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-53 (1982)). 1 (9th Cir. 2003) (“A state court’s application of a procedural rule is not undermined where, as 2 here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. 3 at 264 n.10). 4 A procedural bar may also be applied to unexhausted claims where state procedural 5 rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred 6 from habeas review when not first raised before state courts and those courts “would now 7 find the claims procedurally barred”); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 8 2002) (“[T]he procedural default rule barring consideration of a federal claim ‘applies only 9 when a state court has been presented with the federal claim,’ but declined to reach the issue 10 for procedural reasons, or ‘if it is clear that the state court would hold the claim procedurally 11 barred.’”) (quoting Harris, 489 U.S. at 263 n.9). 12 Specifically, in Arizona, claims not previously presented to the state courts via either 13 direct appeal or collateral review are generally barred from federal review because an attempt 14 to return to state court to present them is futile unless the claims fit in a narrow category of 15 claims for which a successive petition is permitted. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(a) 16 (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 17 32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty days of trial court’s 18 decision). Arizona courts have consistently applied Arizona’s procedural rules to bar further 19 review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction 20 proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona’s 21 procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 22 1195 n.2 (9th Cir. 2001) (“We have held that Arizona’s procedural default rule is regularly 23 followed [“adequate”] in several cases.”) (citations omitted), reversed on other grounds, 24 Stewart v. Smith, 536 U.S. 856 (2002); see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th 25 Cir. 1998) (rejecting argument that Arizona courts have not “strictly or regularly followed” 26 Rule 32 of the Arizona Rules of Criminal Procedure); State v. Mata, 185 Ariz. 319, 334-36, 27 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post- 28 conviction proceedings). 1 Because the doctrine of procedural default is based on comity, not jurisdiction, federal 2 courts retain the power to consider the merits of procedurally defaulted claims. See Reed v. 3 Ross, 468 U.S. 1, 9 (1984). The federal court will not consider the merits of a procedurally 4 defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result, 5 or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 6 298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the 7 “cause and prejudice” test, a petitioner must point to some external cause that prevented him 8 from following the procedural rules of the state court and fairly presenting his claim. “A 9 showing of cause must ordinarily turn on whether the prisoner can show that some objective 10 factor external to the defense impeded [the prisoner’s] efforts to comply with the State’s 11 procedural rule. Thus, cause is an external impediment such as government interference or 12 reasonable unavailability of a claim’s factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 13 1052 (9th Cir. 2004) (citations and internal quotations omitted). Ignorance of the State’s 14 procedural rules or other forms of general inadvertence or lack of legal training and a 15 petitioner’s mental condition do not constitute legally cognizable “cause” for a petitioner’s 16 failure to fairly present his claim. Regarding the “miscarriage of justice,” the Supreme Court 17 has made clear that a fundamental miscarriage of justice exists when a Constitutional 18 violation has resulted in the conviction of one who is actually innocent. See Murray, 477 19 U.S. at 495-96. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss 20 plainly meritless claims regardless of whether the claim was properly exhausted in state 21 court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate 22 in federal court to allow claims to be raised in state court if they are subject to dismissal 23 under § 2254(b)(2) as “plainly meritless”). 24 B. Ground One 25 In Ground One, Petitioner alleges that his right to due process and right to a speedy 26 trial were violated, in violation of the Sixth and Fourteenth Amendments. (Doc. 5 at 6.) 27 Petitioner states that “[t]here appears to be no explanation as to why the government delayed 28 obtaining an indictment for such a long [length] of time ... the government intentionally 1 delayed the prosecution to obtain a tactical advantage ... .” Petitioner contends that 2 “[m]emories have faded so the petitioner has lost the ability to elicit evidence that has now 3 been forgotten.” 4 In denying this claim on direct review, the Arizona Court of Appeals stated: 5 III. Speedy Trial. 6 ¶ 13 Farr argues his right to a speedy trial was violated and the case should have been dismissed. Farr claims trial should have started no later than 120 7 days after his initial appearance or 90 days after his arraignment. See Ariz. R.Crim. P. 8.2(c). Farr, however, was not in custody pretrial, meaning trial was 8 to start no more than 180 days from arraignment. See Ariz. R.Crim. P. 8.2(a)(2). Farr has shown no violation of this 180–day limitation, let alone how 9 such a violation prejudiced him at trial. See State v. Vasko, 193 Ariz. 142, 143 ¶ 2 (App.1998) (“[I]n the absence of a showing of prejudice, a speedy trial 10 violation raised as error on appeal after conviction does not warrant reversal of that conviction.”). 11 ¶ 14 Farr also claims a violation of his speedy trial rights under the Sixth 12 Amendment of the United States Constitution, as incorporated through the Fourteenth Amendment. Under the Sixth Amendment, “[t]here is no bright line 13 rule for how quickly a trial must occur. In evaluating such claims, courts weigh (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s 14 assertion of the right to a speedy trial, and (4) the prejudice to the defendant.” State v. Parker, 231 Ariz. 391, 398 ¶ 9 (2013) (citing Barker v. Wingo, 407 15 U.S. 514, 530 (1972)). Farr’s trial began on April 30, 2014, 342 days after the State filed the direct complaint. An early January 2014 trial date was continued 16 when the court granted Farr’s pro se motion for change of counsel two days before trial. Another time, trial was continued because of the State’s trial 17 conflict. Farr did not make any speedy trial objection until April 28, 2014, two days before trial began, and that objection only cited Rule 8; he did not cite the 18 United States Constitution. On this record, Farr has shown no violation of his Sixth Amendment speedy trial rights. 19 * * * 20 V. Pre–Indictment Delay. 21 ¶ 16 Farr claims he was denied due process because he was not charged until 22 four years after the offenses and two years after the completion of the police investigation. “To establish that pre-indictment delay has denied a defendant 23 due process, there must be a showing that the prosecution intentionally delayed proceedings to gain a tactical advantage over the defendant or to harass him, 24 and that the defendant has actually been prejudiced by the delay.” State v. Broughton, 156 Ariz. 394, 397 (1988). Farr claims he was prejudiced by the 25 delay but did not argue or present any support showing that the delay was intentional. Trial testimony shows the contrary. 26 ¶ 17 Two detectives testified at trial that the investigation began in March 27 or April 2011. After the case was transferred to a new detective, the investigation continued at least through December 2012, when the detective 28 interviewed Farr. The State filed a direct complaint six months later, not the 1 two years Farr claims, and followed with an indictment. On this record, no evidence or implication would support a finding of intentional delay to obtain 2 a tactical advantage. See Broughton, 156 Ariz. at 397. Accordingly, Farr has shown no due process denial by pre-indictment delay. 3 Farr, 2016 WL 1425804. 4 The Sixth Amendment’s provision of a “right to a speedy and public trial ...” applies 5 to state court proceedings pursuant to the Fourteenth Amendment. See Klopfer v. North 6 Carolina, 386 U.S. 213, 222–23 (1967). The Sixth Amendment guarantees that “[i]n all 7 criminal prosecutions, the accused shall enjoy the right to a speedy ... trial.” The speedy-trial 8 right is “amorphous,” “slippery,” and “necessarily relative.” Barker v. Wingo, 407 U.S. 514, 9 522 (1972). In Barker, the Court refused to quantify the right or to predicate the right on a 10 defendant’s explicit request for a speedy trial. See Vermont v. Brillon, 556 U.S. 81, 89–90 11 (2009). Rejecting such “inflexible approaches,” Barker established a “balancing test, in 12 which the conduct of both the prosecution and the defendant are weighed.” 407 U.S. at 529, 13 530. Some of the factors that should be weighed when considering such claims include the 14 length of and reasons for delay, the defendant’s assertion of his right, and the prejudice to the 15 defendant of the delay. See Brillon, 556 U.S. at 89–90; Barker, 407 U.S. at 530. To trigger 16 a speedy trial inquiry, an accused must show that the period between indictment and trial 17 passes a threshold point of “presumptively prejudicial” delay. See Barker, 407 U.S. at 530. 18 Prejudice normally is presumed if the delay in bringing the defendant to trial has exceeded 19 one year. See Doggett v. United States, 505 U.S. 647, 652 n.1 (1992). If this threshold is not 20 met, the Court need not proceed with the other Barker factors. See id. at 651–52; Barker, 407 21 U.S. at 530; United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993). Deliberate delay 22 “to hamper the defense” weighs heavily against the prosecution. Barker, 407 U.S. at 531. 23 “[M]ore neutral reason[s] such as negligence or overcrowded courts” weigh less heavily “but 24 nevertheless should be considered since the ultimate responsibility for such circumstances 25 must rest with the government rather than with the defendant.” Id. Additionally, because 26 defense counsel is defendant’s agent, delay caused by the defendant’s counsel is charged 27 against the defendant. See Brillon, 556 U.S. at 90–91. 28 1 Further, as to any allegation of pre-indictment delay, the Supreme Court has 2 acknowledged that, although statutes of limitations are the primary protection against overly 3 stale criminal charges, the “Due Process Clause has a limited role to play in protecting 4 against oppressive delay.” United States v. Lovasco, 431 U.S. 783, 789 (1977). The Court 5 has also held that a due process violation is established when the delay of the indictment 6 violates those “fundamental conceptions of justice which lie at the base of our civil and 7 political institutions, and which define the community’s sense of fair play and decency.” Id. 8 at 790 (internal citations and quotation marks omitted). Establishing a denial of due process 9 through pre-indictment delay requires: (1) proof of actual, non-speculative prejudice from 10 the delay; and (2) a showing that the delay, when balanced against the reason for the delay, 11 offends those “‘fundamental conceptions of justice which lie at the base of our civil and 12 political institutions.’” United States v. Sherlock, 962 F.2d 1349, 1353–54 (9th Cir. 1992) 13 (quoting Lovasco, 431 U.S. at 790). Generally, “to prosecute a defendant following 14 investigative delay does not deprive him of due process, even if his defense might have been 15 somewhat prejudiced by the lapse of time.” Lovasco, 431 U .S. at 796. 16 Regarding Petitioner’s speedy trial claim, the Court finds that the state court’s 17 determination was not contrary to, nor an unreasonable application of federal law. The 18 Court’s review of the Barker factors reveals that Petitioner’s trial began on April 30, 2014 19 – 342 days after the State filed the direct complaint. See Farr, 2016 WL 1425804. This factor 20 alone defeats Petitioner’s speedy trial claim since the delay is not “presumptively 21 prejudicial.” See Doggett, 505 U.S. at 651-52 (Prejudice normally is presumed if the delay 22 in bringing the defendant to trial has exceeded one year. If this threshold is not met, the Court 23 need not proceed with the other Barker factors.). Moreover, a review of the other factors 24 reflects no violation of Petitioner’s constitutional rights. Specifically, the trial court 25 continued an early January 2014 trial date when it granted Petitioner’s pro se motion for 26 change of counsel two days before trial. The court continued trial on another occasion when 27 the State had a trial conflict. Additionally, Petitioner failed to assert his right to a speedy trial 28 until April 28, 2014 – two days before the trial began. Lastly, the record reflects that 1 Petitioner was not in custody pretrial, and beyond his general and conclusory allegations, 2 Petitioner has failed to demonstrate prejudice suffered as a result of any alleged delay. 3 “Generalized assertions of the loss of memory, witnesses, or evidence are insufficient to 4 establish actual prejudice.” United States v. Manning, 56 F.3d 1188, 1194 (9th Cir. 1995); 5 see United States v. Valentine, 783 F.2d 1413, 1417 (9th Cir. 1986) (offering bare allegations 6 that potential injuries have actually been suffered is “speculative and insufficient to establish 7 a denial of due process”). 8 To the extent Petitioner raises an allegation of pre-indictment delay, the Court again 9 finds that the state court’s determination was not contrary to, nor an unreasonable application 10 of federal. Petitioner has not demonstrated actual, non-speculative prejudice resulting from 11 alleged pre-indictment delay. A petitioner must do more than assert that “witnesses’ 12 memories may have faded with the passage of time.” Prantil v. California, 843 F.2d 314, 318 13 (9th Cir. 1988). 14 The Court will recommend that Petitioner’s claim in Ground One be denied and 15 dismissed. 16 C. Ground Two 17 In Ground Two, Petitioner alleges that the State committed prosecutorial misconduct, 18 in violation of the Fifth, Sixth, Eight, and Fourteenth Amendments. (Doc. 5 at 7.) Petitioner 19 states that the “prosecutor and police department filed false charges and collaborated together 20 to mislead the court and the jury into believing the 1991 chev. pickup was stolen.” 21 Petitioner failed to raise the specific claim asserted in Ground Two on direct appeal 22 or in his post-conviction relief proceedings. (Exhs. K, L, M, P, R.) Thus, Petitioner failed to 23 fairly present Ground Two in state court. See Picard, 404 U.S. at 275-78. Failure to fairly 24 present Ground Two has resulted in procedural default because Petitioner is now barred from 25 returning to state courts. See Ariz.R.Crim.P. 32.2(a), 32.4(a). 26 Although a procedural default may be overcome upon a showing of cause and 27 prejudice or a fundamental miscarriage of justice, see Coleman, 501 U.S. at 750-51, 28 Petitioner has not established or argued that any exception to procedural default applies. 1 In his Reply, Petitioner argues merits and appears to assert that his default is excused 2 under Martinez v. Ryan, 566 U.S. 1 (2012). In Martinez, the Supreme Court created a 3 “narrow exception” to the principle that “an attorney’s ignorance or inadvertence in a 4 postconviction proceeding does not qualify as cause to excuse a procedural default.” 566 5 U.S. at 9. The Court held that “[i]nadequate assistance of counsel at initial-review collateral 6 proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective 7 assistance at trial.” Id. 8 “Cause” is established under Martinez when: 9 (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only 10 “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in 11 respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] ... be raised in 12 an initial-review collateral review proceeding. 13 Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez). In Nguyen v. Curry, 736 F.3d 14 1287, 1295 (9th Cir. 2013), the Ninth Circuit held that “the Martinez standard for cause 15 applies to all Sixth Amendment ineffective-assistance claims, both to trial and appellate, that 16 have been procedurally defaulted by ineffective counsel in the initial-review state-court 17 collateral proceeding.” 18 19 The Martinez exception applies only to the ineffectiveness of post-conviction counsel 20 in the initial post-conviction review proceeding. It “does not extend to attorney errors in any 21 proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective 22 assistance at trial.” 566 U.S. at 16. Rather, Martinez is concerned that, if ineffective 23 assistance of counsel claims were not brought in the collateral proceeding that provided the 24 first occasion to raise such claims, then the claims could not be brought at all. See id. at 9-11. 25 Therefore, a petitioner may not assert “cause” to overcome the procedural bar based on 26 attorney error that occurred in “appeals from initial-review collateral proceedings, second or 27 successive collateral proceedings, and petitions for discretionary review in a State’s appellate 28 courts.” Id. at 16. 1 Petitioner’s claim alleged in Ground Two does not assert ineffective assistance of 2 counsel. Therefore, Martinez does not apply. 3 Petitioner has also not demonstrated a fundamental miscarriage of justice. A federal 4 court may review the merits of a procedurally defaulted claim if the petitioner demonstrates 5 that failure to consider the merits of that claim will result in a “fundamental miscarriage of 6 justice.” Schlup, 513 U.S. at 327. The standard for establishing a Schlup procedural gateway 7 claim is “demanding.” House v. Bell, 547 U.S. 518, 538 (2006). The petitioner must present 8 “evidence of innocence so strong that a court cannot have confidence in the outcome of the 9 trial.” Schlup, 513 U.S. at 316. Under Schlup, to overcome the procedural hurdle created by 10 failing to properly present his claims to the state courts, a petitioner “must demonstrate that 11 the constitutional violations he alleges ha[ve] probably resulted in the conviction of one who 12 is actually innocent, such that a federal court’s refusal to hear the defaulted claims would be 13 a ‘miscarriage of justice.’” House, 547 U.S. at 555-56 (quoting Schlup, 513 at 326, 327). To 14 meet this standard, a petitioner must present “new reliable evidence – whether it be 15 exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 16 evidence - that was not presented at trial.” Schlup, 513 U.S. at 324. The petitioner has the 17 burden of demonstrating that “it is more likely than not that no reasonable juror would have 18 convicted him in light of the new evidence.” Id. at 327. Petitioner has failed to establish, let 19 alone allege, a sufficient showing of actual innocence to establish a miscarriage of justice. 20 Therefore, Petitioner cannot excuse his procedural default on this basis. 21 D. Ground Three 22 In Ground Three, Petitioner alleges that he received the ineffective assistance of 23 counsel. (Doc. 5 at 8.) Petitioner contends that counsel “failed or deliberately did not 24 introduce important documents” and exculpable evidence, “failed to object to Petitioner not 25 having a speedy trial,” “did not object to the name change on the subpoena,” “did not object 26 to prosecutorial misconduct,” “did not object to almost all of the Petitioner’s motions being 27 denied,” and “did absolutely nothing to help this Petitioner in his case.” 28 1 In ground 11 of his pro per PCR petition, Petitioner alleged ineffective assistance of 2 trial counsel in that “Every Court appointed lawyer did absolutely nothing to insure that the 3 rights of the Petitioner was [sic] protected or enforced,” and in failing present evidence of 4 a Craigslist ad and satellite image of the pick-up truck from October 2009. (Exhs P, R.) The 5 state court dismissed the claim stating, as follows: 6 The Petitioner makes some very general assertions regarding this issue such as that “Every Court appointed lawyer did absolutely nothing to insure that the 7 rights of the Petitioner was [sic] protected or enforced.” [Pet. at 9.] Such an assertion without something more specific fails to establish a claim for 8 ineffective assistance. 9 The Petitioner further asserts that evidence of a Craigslist ad and a satellite image of the pick-up truck from October 2009 were not presented to the jury. 10 Petitioner however, fails to explain how counsel was ineffective in failing to present this evidence. Moreover, Petitioner testified at trial that he sold the 11 truck in October 2009 through a Craigslist ad and that it was purchased in October 2009. While presenting the jury with photos or physical copies of the 12 ad would have supported Petitioners testimony, the Court cannot find there is a reasonable probability that the outcome of the case would have been 13 different had those documents been presented to the jury. 14 The Court finds that the Defendant has failed to state a colorable claim on any of his stated grounds for ineffective assistance of counsel and that all of his 15 other claims raised are precluded. 16 IT IS ORDERED summarily dismissing the Defendant’s Pro-Se Petition for Post-Conviction Relief. 17 (Exh. R.) Petitioner did not file a petition for review in the Arizona Court of Appeals. (Doc. 18 59.) 19 Although it appears that Petitioner may have presented similar ineffective assistance 20 claims in his PCR petition, he failed to file a petition for review to the appellate court. As 21 such, Petitioner failed to fairly present his claim of ineffective assistance of counsel. See 22 Swoopes,196 F.3d at 1010; Roettgen, 33 F.3d at 38. Failure to fairly present Ground Three 23 has resulted in procedural default because Petitioner is now barred from returning to state 24 courts. See Ariz.R.Crim.P. 32.2(a), 32.4(a). 25 In his Reply, Petitioner again argues merits and contends that his default is excused 26 under Martinez. Since the Martinez exception applies only to the ineffectiveness of 27 post-conviction counsel in the initial post-conviction review proceeding, Martinez does not 28 1 apply. See Martinez, 566 U.S. at 16 (Martinez “does not extend to attorney errors in any 2 proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective 3 assistance at trial.” A petitioner may not assert “cause” to overcome the procedural bar based 4 on attorney error that occurred in “appeals from initial-review collateral proceedings, second 5 or successive collateral proceedings, and petitions for discretionary review in a State’s 6 appellate courts.”). 7 In any event, Petitioner has not demonstrated a “substantial” claim of ineffective 8 assistance of counsel. A “substantial” claim “has some merit.” Id. at 14. Like the standard 9 for issuing a certificate of appealability, to establish a “substantial” claim, a petitioner must 10 demonstrate that “reasonable jurists could debate whether ... the petition should have been 11 resolved in a different manner or that the issues presented were adequate to deserve 12 encouragement to proceed further.” Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) 13 (internal quotations omitted). In other words, a claim is “‘insubstantial’ if it does not have 14 any merit or is wholly without factual support.” Id. Determining whether an ineffective 15 assistance of counsel claim is “substantial” requires a district court to examine the claim 16 under the standards of Strickland v. Washington, 466 U.S. 668 (1984). 17 To establish a claim of ineffective assistance of counsel a petitioner must demonstrate 18 that counsel’s performance was deficient under prevailing professional standards, and that 19 he suffered prejudice as a result of that deficient performance. See id. at 687-88. To establish 20 deficient performance, a petitioner must show “that counsel’s representation fell below an 21 objective standard of reasonableness.” Id. at 699. A petitioner’s allegations and supporting 22 evidence must withstand the court’s “highly deferential” scrutiny of counsel’s performance, 23 and overcome the “strong presumption” that counsel “rendered adequate assistance and made 24 all significant decisions in the exercise of reasonable professional judgment.” Id. at 689-90. 25 A petitioner bears the burden of showing that counsel’s assistance was “neither reasonable 26 nor the result of sound trial strategy,” Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 27 2001), and actions by counsel that “‘might be considered sound trial strategy’” do not 28 1 constitute ineffective assistance. Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 2 350 U.S. 91, 101 (1955)). 3 To establish prejudice, a petitioner must show a “reasonable probability that, but for 4 counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. 5 at 694. A “reasonable probability” is one “sufficient to undermine confidence in the 6 outcome.” Id. Courts should not presume prejudice. See Jackson v. Calderon, 211 F.3d 1148, 7 1155 (9th Cir. 2000). Rather, a petitioner must affirmatively prove actual prejudice, and the 8 possibility that a petitioner suffered prejudice is insufficient to establish Strickland’s 9 prejudice prong. See Cooper v. Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001) (“[A 10 petitioner] must ‘affirmatively prove prejudice.’ ... This requires showing more than the 11 possibility that he was prejudiced by counsel’s errors; he must demonstrate that the errors 12 actually prejudiced him.”) (quoting Strickland, 466 U.S. at 693). However, the court need 13 not determine whether counsel’s performance was deficient if the court can reject the claim 14 of ineffectiveness based on the lack of prejudice. See Jackson, 211 F.3d at 1155 n.3 (the 15 court may proceed directly to the prejudice prong). 16 Petitioner supports his claim of ineffective assistance with a narrative of unsupported, 17 conclusory statements regarding what counsel did wrong in this case. Petitioner fails to 18 explain his attorney’s deficient performance and does not even attempt to discuss resulting 19 prejudice. Accordingly, Petitioner’s allegations, unsupported by specifics, do not establish 20 a substantial claim of ineffective assistance of counsel. See, e.g., Jones v. Gomez, 66 F.3d 21 199, 204 (9th Cir. 1995) (conclusory allegations of ineffective assistance do not warrant 22 relief); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (same). Thus, Petitioner fails to establish 23 cause for procedural default of Ground Three under Martinez. 24 E. Grounds Four and Five 25 In Ground Four, Petitioner contends that he was prosecuted in a “biased and unfair 26 venue.” Petitioner argues that he was assigned “a Judge Pro Tem who actually helps train 27 prosecutors for Maricopa County and through the many justified objections and motions I 28 filed none were even brought to be heard.” Petitioner states that he “cannot and will not get 1 an impartial or unbiased decision from Maricopa County Superior Court ... .” The Court 2 notes that Petitioner does not allege any violation of the Constitution or laws or treaties of 3 the United States, including, any allegation of unfair venue based on prejudicial pretrial 4 publicity. In Ground Five, Petitioner alleges that the grand jury process in his case was 5 defective. Petitioner asserts a “direct violation of Rule 12.2 Arizona Rules of Criminal 6 Procedure,” stating that it was an “unqualified/illegal grand jury.” (Doc. 5 at 9-10.) 7 Initially, the Court finds that Petitioner failed to raise the specific claim asserted in 8 Ground Four on direct appeal or in his post-conviction relief proceedings. (Exhs. K, L, M, 9 P, R.) Thus, Petitioner failed to fairly present Ground Four in state court. See Picard, 404 10 U.S. at 275-78. Failure to fairly present Ground Four has resulted in procedural default 11 because Petitioner is now barred from returning to state courts. See Ariz.R.Crim.P. 32.2(a), 12 32.4(a). Petitioner has not established that any exception to procedural default applies. 13 In any event, Petitioner’s claim is unfounded. Petitioner’s allegations are conclusory 14 – he fails to point to any specific evidence demonstrating that he was deprived of a fair trial. 15 His conclusory allegations are insufficient. See Jones, 66 F.3d at 205. 16 Moreover, Petitioner’s claims related to venue (Ground Four) and violations of Rule 17 12.2 of the Arizona Rules of Criminal Procedure (Ground Five) as alleged are not amenable 18 to federal habeas corpus review. See 28 U.S.C. § 2254(a) (the scope of federal habeas corpus 19 review is limited to challenges to a state court judgment based on alleged violations of the 20 Constitution or laws or treaties of the United States). The habeas statute unambiguously 21 provides that “a federal court may issue the writ to a state prisoner ‘only on the ground that 22 he is in custody in violation of the Constitution or laws or treaties of the United States.’” 23 Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). And, the Court has 24 repeatedly held that “‘federal habeas corpus relief does not lie for errors of state law.’” 25 Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 26 (1990)). “[I]t is not the province of a federal habeas court to reexamine state-court 27 determinations on state-law questions.” 502 U.S. at 67–68. 28 1 Accordingly, Petitioner’s claims regarding venue and defective grand jury in violation 2 of Rule 12.2 Arizona Rules of Criminal Procedure alleged in Grounds Four and Five are not 3 cognizable on federal habeas corpus review. 4 CONCLUSION 5 Having determined that Ground One fails on the merits, Grounds Two and Three are 6 procedurally defaulted, and Grounds Four and Five are not cognizable in habeas proceedings, 7 the Court will recommend that Petitioner’s Amended Petition for Writ of Habeas Corpus be 8 denied and dismissed with prejudice. 9 IT IS THEREFORE RECOMMENDED that Petitioner’s Amended Petition for 10 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5) be DENIED and 11 DISMISSED WITH PREJUDICE. 12 IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave 13 to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a 14 substantial showing of the denial of a constitutional right and because the dismissal of the 15 petition is justified by a plain procedural bar and jurists of reason would not find the 16 procedural ruling debatable. 17 This recommendation is not an order that is immediately appealable to the Ninth 18 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 19 Appellate Procedure, should not be filed until entry of the district court’s judgment. The 20 parties shall have fourteen days from the date of service of a copy of this recommendation 21 within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); 22 Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen 23 days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of 24 Civil Procedure for the United States District Court for the District of Arizona, objections 25 to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure 26 timely to file objections to the Magistrate Judge’s Report and Recommendation may result 27 in the acceptance of the Report and Recommendation by the district court without further 28 review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure 1 || timely to file objections to any factual determinations of the Magistrate Judge will be 2 || considered a waiver of a party’s right to appellate review of the findings of fact in an order 3 | or judgment entered pursuant to the Magistrate Judge’s recommendation. See Rule 72, 4 || Federal Rules of Civil Procedure. 5 DATED this 6th day of June, 2018. 6 . Miki He Burnes Michelle H. Burns 8 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -21-