Kellywood v. Kimble

• Court: District Court, D. Arizona
• Decided: May 11, 2022
• Docket: 4:21-cv-00234
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Michael Kellywood, No. CV-21-00234-TUC-JCH

10 Petitioner, ORDER

11 v.

12 James Kimble,

13 Respondent. 14 15 On June 6, 2021, Petitioner Michael Kellywood (“Kellywood” or “Petitioner”), who 16 is currently incarcerated in the Arizona State Prison Complex in Florence, Arizona, filed a 17 Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody 18 (“Petition”). (Doc. 1.) This matter was referred to United States Magistrate Judge Leslie 19 A. Bowman for Report and Recommendation (“R&R”). (Doc. 4.) After a full briefing, 20 Judge Bowman issued her R&R recommending that this Court deny the Petition. (Docs. 7, 21 9, 11.) Petitioner objected to portions of the R&R and Respondent filed his response. 22 (Docs. 12, 13.) As explained herein, the Court will adopt the R&R in full, deny the 23 Petition, and dismiss this action. 24 I. BACKGROUND 25 The R&R provides a summary of the case as follows:

26 After a jury trial, Kellywood was convicted of three counts of sexual conduct 27 with a minor under the age of fifteen, and one count each of molestation of a child, continuous sexual abuse of a child, and sexual abuse of a minor under 28 the age of fifteen.” State v. Kellywood, 2020 WL 4581241, at *1 (Ariz. Ct. 1 App. 2020). “The victim was Kellywood’s adopted daughter A.K., and the offenses were committed when she was between eleven and fourteen years 2 old.” Id. “The trial court sentenced Kellywood to life imprisonment, in 3 addition to a combination of consecutive and concurrent prison terms totaling sixty years ….” Id. 4

5 On direct appeal, “Kellywood argue[d] the trial court erred by denying his motion to compel production of the victim’s medical and counseling records 6 for in camera review because they possibly contained exculpatory evidence.” 7 State v. Kellywood, 433 P.3d 1205, 1206 (Ariz. Ct. App. 2018). “According to Kellywood’s theory of defense, A.K. had recently fabricated her 8 allegations, in part because he and his wife had taken away her cell phone 9 after they discovered she had been using it to watch pornography.” Id. He hoped to find evidence that A.K., after being asked by her health care 10 providers, denied being abused. The Arizona Court of Appeals affirmed his 11 convictions and sentences on December 12, 2018. Id. at 1205; (Doc. 1-1, pp. 35-43). The court explained that “the mere possibility A.K. could have said 12 something exculpatory is not, as a matter of law, sufficient by itself to require 13 her to produce the medical and counseling records sought by Kellywood.” (Doc. 1-1, p. 37.) The Arizona Supreme Court denied his petition for review 14 on July 8, 2019. (Doc. 7-1, p. 41.)

15 In his petition for post-conviction relief (“PCR”), Kellywood “argu[ed] trial 16 counsel had been ineffective in failing to adequately investigate, prepare, and argue a motion to compel the production of counseling and medical records 17 of A.K.” State v. Kellywood, 2020 WL 4581241, at *1 (Ariz. Ct. App. 2020). 18 The PCR court denied the petition on March 11, 2020. (Doc. 1-1, p. 59). The court explained that counsel’s failure to include the name of A.K.’s counselor 19 in the motion or his failure to familiarize himself with the proper method of 20 securing documents from the Arizona Attorney General was not dispositive. (Doc. 1-1, pp. 61-62.) Counsel’s motion for documents was denied because 21 he “did not articulate in the Motion to Compel anything from which the trial 22 court could determine that a reasonable possibility existed that the records contained exculpatory evidence.” (Doc. 1-1, p. 62.) On August 10, 2020, the 23 Arizona Court of Appeals granted review but denied relief adopting the 24 reasoning of trial court below. (Doc. 1-1, pp. 44-40.) 25 (Doc. 11 at 1-3.) No party objects to the R&R’s factual recitation and this Court accepts and adopts it. 26 27 28 1 II. THE R&R AND PETITIONER’S OBJECTIONS 2 Judge Bowman set forth Petitioner’s claim in his Petition as a single claim with four 3 subparts identified thusly: claim 1(a), 1(b), 1(c), and 1(d). (Doc. 11 at 6, 8, 10.) In claim 4 (1)(a), Petitioner claims his trial counsel was ineffective when trial counsel “failed to 5 compel production of the complainant’s medical records[.]” Id. at 3. In claim (1)(b), 6 Petitioner claims his trial counsel was ineffective when trial counsel “failed to impeach 7 A.K. with an inconsistent statement.” Id. at 8. Claim 1(c) is identified as a claim that trial 8 counsel was ineffective for “failure to pursue potentially exculpatory evidence and show 9 the court that the potential contents of the documents necessitated in camera review.” Id. 10 at 10. Claim 1(d) is identified as a claim that trial counsel was ineffective for “refusing to 11 call character witnesses on [Petitioner’s] behalf.” Id. at 11. 12 Judge Bowman found claim (1)(a) exhausted and considered this claim on the 13 merits. Id. at 6-8. Judge Bowman concluded that Petitioner failed to show “that prior 14 adjudication of this issue ‘resulted in a decision that was contrary to or an unreasonable 15 application of Supreme Court precedent’ or that ‘resulted in a decision that was based on 16 an unreasonable determination of the facts in light of the evidence presented in the State 17 court proceeding.’” Id. at 8 (quoting 28 U.S.C. § 2254(d)). Judge Bowman found claim 18 (1)(b) procedurally defaulted without excuse and barred from habeas review. Id. at 8-10. 19 Judge Bowman found claim 1(c) to not be a claim for relief but “simply a different way of 20 describing [c]laim 1(a).” Id. at 10. Judge Bowman found claim 1(d) to not be a proper claim 21 and, alternatively, found claim 1(d) to be procedurally defaulted without excuse. Id. at 11. 22 Petitioner lodges three objections to the R&R. (Doc. 12.) First, he “objects to the 23 finding that Petitioner failed to show that former counsel’s performance was deficient 24 regarding the motion to compel medi[c]al and counseling records.” Id. at 1. Second, he 25 “objects to the finding that Petitioner has failed to show that counsel was ineffective for 26 failing to impeach A.K.” Id. at 5. Third, he “objects to any finding or recommendation that 27 his claims are procedurally defaulted.” Id. 28 Respondent argues that Petitioner’s objections are too general to trigger de novo 1 review. (Doc. 13 at 2.) He argues that even if Petitioner’s objections trigger de novo review, 2 he has failed to “establish any basis for rejecting the R&R’s conclusion because 3 [Petitioner’s objection] addresses no relevant basis for that finding.” Id. 4 III. R&R STANDARD OF REVIEW 5 The Court reviews de novo the objected-to portions of the R&R. 28 U.S.C. § 6 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to 7 portions of the R&R. See Johnson v. Zema Systems Corp., 170 F.3d 734, 736 (7th Cir. 8 1999); Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). The district court 9 “must review the magistrate judge’s findings and recommendations de novo if objection is 10 made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 11 2003) (en banc). See also Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[T]he court shall 12 make de novo determination of those portions of [the R&R] to which an objection is 13 made.”). 14 IV. THE AEDPA STANDARDS OF REVIEW 15 a. The AEDPA General Standard of Review 16 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) mandates 17 the standards for federal habeas review. See 28 U.S.C. § 2254. The “AEDPA erects a 18 formidable barrier to federal habeas relief for prisoners whose claims have been 19 adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). The AEDPA “guards 20 against extreme malfunctions in the state criminal justice systems and [is] not … a means 21 of error correction.” McGill v. Shinn, 16 F.4th 666, 679 (9th Cir. 2021) (quoting Greene v. 22 Fisher, 565 U.S. 34, 38 (2011)). 23 The AEDPA provides that a federal court:

24 shall not…grant[] [a writ of habeas corpus] with respect to any claim that 25 was adjudicated on the merits in State court proceedings unless the adjudication of the claim— 26

27 (1) Resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined 28 by the Supreme Court of the United States; or 1 (2) Resulted in a decision that was based on an unreasonable 2 determination of the facts in light of the evidence presented in the State court 3 proceeding. 4 McGill, 16 F.4th at 679 (quoting 28 U.S.C. § 2254(d)(1)-(2); Harrington v. Richter, 562 5 U.S. 86, 97-98 (2011)). The district court may grant relief under § 2254(d)(1):

6 If the state court arrives at a conclusion opposite to that reached by [the 7 Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts. 8 Under the ‘unreasonable application’ clause, a federal habeas court may 9 grant the writ if the state court identifies the correct governing legal principle…but unreasonably applies that principle to the facts of the 10 prisoner’s case. 11 McGill, 16 F.4th at 679 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000). “The 12 ‘pivotal question is whether the court’s application of law was unreasonable.” McGill, 16 13 F.4th at 679 (quoting Richter, 562 U.S. at 101). “A state court’s application of federal law 14 that is merely incorrect will not warrant relief.” Williams, 529 U.S. at 410-11. 15 In determining whether the state courts’ resolution of a claim was contrary to, or an 16 unreasonable application of, clearly established federal law, the habeas court reviews the 17 last reasoned state court judgment addressing the claim. Cook v. Schriro, 538 F.3d 1000, 18 1015 (9th Cir. 2008) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). The reviewing 19 federal court is to be “particularly deferential to [its] state court colleagues.” Taylor v. 20 Maddox, 366 F.3d 992, 1000 (9th Cir. 2004) overruled on other grounds by Murray v. 21 Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014)). The federal habeas court presumes the 22 state court’s factual determinations are correct, and the petitioner bears the burden of 23 rebutting this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) 24 (“[A] determination of a factual issue made by a State court shall be presumed to be correct. 25 The applicant shall have the burden of rebutting the presumption of correctness by clear 26 and convincing evidence.”). 27 b. Review of Ineffective Assistance of Counsel Claims 28 The clearly established federal law governing ineffective assistance of counsel 1 (“IAC”) claims was set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 2 668 (1984). To establish that counsel was constitutionally ineffective under Strickland, “a 3 defendant must show both deficient performance by counsel and prejudice.” Knowles v. 4 Mirzayance, 556 U.S. 111, 122 (2009). 5 Deficient performance is established when counsel’s representation fell below an 6 objective standard of reasonableness. Strickland, 466 U.S. at 688. In determining 7 deficiency, “a court must indulge a strong presumption that counsel’s conduct falls within 8 the wide range of reasonable professional assistance; that is the defendant must overcome 9 the presumption that, under the circumstances, the challenged action might be considered 10 sound trial strategy.” Id. at 689 (internal quotations omitted). 11 To establish prejudice, a petitioner must show “a reasonable probability that, but for 12 counsel’s unprofessional errors, the result of the proceeding would have been different. A 13 reasonable probability is a probability sufficient to undermine confidence in the outcome.” 14 Id. at 694. “The likelihood of a different result must be substantial, not just conceivable.” 15 Richter, 562 U.S. at 112 (citing Strickland, 455 U.S. at 693). 16 On habeas review of an IAC claim, “[t]he pivotal question is whether the state 17 court’s application of the Strickland standard was unreasonable. This is different from 18 asking whether defense counsel’s performance fell below Strickland’s standard.” Richter, 19 562 U.S. at 101. It requires the habeas court to consider “whether there is any reasonable 20 argument that counsel satisfied Strickland’s deferential standard.” Id. at 105. “[I]t is not 21 enough to convince a federal habeas court that, in its independent judgment, the state-court 22 decision applied Strickland incorrectly. Rather, [Petitioner] must show that the [state court] 23 applied Strickland to the facts of the case in an objectively unreasonable manner.” Bell v. 24 Cone, 535 U.S. 685, 699 (2002) (internal citations omitted). 25 V. ANALYSIS 26 a. Petitioner’s Objection to the Finding on Claim (1)(a) 27 Respondent argues that Petitioner’s objection is insufficient to trigger de novo 28 review. The Court narrowly finds Petitioner’s objection sufficient to trigger de novo 1 review.1 As explained below, upon de novo review, the Court finds Petitioner is not entitled 2 to habeas relief on the grounds alleged in claim 1(a) because Petitioner fails to establish 3 that the state court unreasonably applied Strickland in determining that he failed to 4 establish that his trial counsel rendered constitutionally deficient performance and that he 5 suffered prejudice. 6 b. Review of Claim 1(a) 7 In claim 1(a), Petitioner urges that he was denied the effective assistance of trial 8 counsel because “trial counsel[] fail[ed] to diligently pursue discovery and presentation of 9 any evidence of prior statements that contradicted [A.K’s] trial testimony.” (Doc. 1-1 at 10 10.) Specifically, Petitioner alleges that trial counsel was deficient in showing to the state 11 court that “there was a reasonable probability that the information sought in counsel’s 12 motion [to compel A.K.’s counseling records] was exculpatory…despite the information 13 readily available to counsel had he been at all diligent.” Id. To explain what information 14 trial counsel was obligated to pursue and present, Petitioner quotes (without any analysis) 15 the entirety of Judge Eckerstrom’s dissent to the Arizona Court of Appeals’ decision 16 denying Petitioner’s post-conviction relief (“PCR”) petition. (Doc. 1-1 at 7-16; see also 17 State v. Kellywood, No. 2 CA-CR 2020-0067-PR, 2020 WL 4581241, at *3 (Ariz. App. 2d 18 Div. Aug. 10, 2020) (Eckerstrom, J., dissenting).) 19 In reviewing Petitioner’s 1(a) claim this Court looks to the most recent reasoned 20 state court decision which is the trial court’s ruling on Petitioner’s PCR petition. In denying 21 Petitioner’s PCR petition, the trial court held, inter alia,

22 As a preliminary matter, it is notable that the argument contained in the 23 Petition is supported by speculative facts layered upon more speculative facts. Additionally, some of the assertions in the Petition are based upon 24 “information and belief” derived from an affidavit from Petitioner’s mother, 25 1 Petitioner’s objection fails to mention Judge Bowman’s finding on Strickland’s prejudice 26 prong. See Doc. 12 at 1, ¶ 1 (stating that “Petitioner objects to the finding that Petitioner failed to show that former counsel’s performance was deficient regarding the motion to 27 compel medi[c]al and counseling records.”). Because Petitioner references the dissent in the Arizona Court of Appeals’ decision and the dissent discusses both Strickland’s 28 performance and prejudice prong, the Court generously construes Petitioner’s objection to include Judge Bowman’s lack of prejudice finding. 1 Sheila French. Unfortunately, the affidavit contains numerous “facts” of which the affiant has no personal knowledge, but instead are based upon 2 many levels of hearsay. To the extent Petitioner is required to demonstrate a 3 reasonable probability that the result here would have been different if counsel was effective, speculation and hearsay are not compelling. 4

5 The Petition exclusively identifies the litigation of the Motion to Compel as the basis for Mr. Kressler’s alleged ineffective assistance of counsel. 6 Petitioner first claims that Mr. Kessler had the name of A.K.’s counselor 7 because it was contained in Department of Child Safety (“DCS”) records in his possession, and he should have included the counselor’s name in the 8 Motion to Compel to provide additional specificity to the request. Petitioner 9 also believes Mr. Kressler should have requested earlier DCS records relating to A.K. that may have shown sexual abuse before she was placed in 10 Petitioner’s home. Petitioner finally claims Mr. Kressler should have learned 11 more about the appropriate process for requesting DCS records through the Arizona Attorney General’s Office. Petitioner claims these failures constitute 12 ineffective assistance of counsel, and “in all likelihood” the trial judge would 13 have granted the request but for these failures. Petitioner further claims that, because “[m]ost of [A.K.’s] allegations were not supported by independent 14 evidence,” there is a “strong probability” that the use of the documents on cross-examination of A.K. would have caused a different result at trial. … 15

16 The Court does not find that Mr. Kressler’s failure to place the name of A.K.’s counselor in the Motion to Compel constitutes ineffective assistance 17 of counsel. The issue before the trial court was whether any types of 18 counseling records should have been produced, and the identity of any counselor’s was not the primary issue…It is true that Mr. Kressler did not 19 articulate in the Motion to Compel anything from which the trial court could 20 determine that a reasonable probability existed that the records contained exculpatory evidence. However, the Petition likewise fails to identify how 21 the records may contain exculpatory evidence… 22 The Court further finds that Mr. Kessler was not ineffective when he failed 23 to seek DCS records relating to A.K.’s earlier dependency actions. The 24 foundation for Petitioner’s argument is Ms. French’s affidavit, and the facts are not based upon her personal knowledge. And again, it is unlikely the trial 25 court would have granted Mr. Kressler’s request. The Petition fails to provide 26 anything but mere speculation regarding how the records might contain exculpatory evidence… 27 Finally, the Court finds that Mr. Kressler was not ineffective by failing to 28 request documents from the Arizona Attorney General. If there had been a 1 reasonable possibility that any of the DCS documents contained exculpatory evidence, Mr. Kressler certainly would have been advised of the proper 2 method to secure production of the documents. 3 Mr. Kressler’s performance was not deficient, and the Court further finds 4 that, even if it had been deficient, Petitioner was not prejudiced. As noted 5 above, it is unlikely the trial court would have granted the Motion to Compel (or even performed an in camera review) because all of the arguments 6 presented are based upon mere speculation. But even if certain documents 7 had been allowed to be used for cross-examination of A.K., it is very likely the jury verdicts would have been the same. 8

9 State v. Kellywood, Case No. CR20153211-001 (Ariz. Super. Ct. Mar. 11, 2020) (included 10 in the record at Doc. 1-1 at 59-63) (footnotes omitted). The trial court also noted the 11 “overwhelming” physical evidence found in carpeting that was presented at Petitioner’s 12 trial: 13 A.K. was a very believable witness. Her testimony included many small and seemingly unimportant details that added dramatically to her credibility. 14 More importantly, the physical evidence from the carpeting was overwhelming. A.K. disclosed how Petitioner had sexual intercourse with her 15 at one of his worksites when he took her to work, and she noted how he 16 accidentally got semen on the carpeting. A.K. led law enforcement to the house, and she pointed to the exact place on the carpeting where the incident 17 occurred. DNA from both Petitioner and A.K. was found at the same spot, 18 and the DNA from Petitioner was confirmed to be semen. Petitioner testified, as he seemingly was required to do so to explain the physical evidence. He 19 testified that he masturbated sometime earlier at the exact same place, and 20 the jury obviously did not believe him. On cross-examination, Petitioner also admitted to being alone with A.K. at all of the times, and all of the places, he 21 stated he had sexual intercourse with her. For example, he admittedly took 22 her into the desert alone in his vehicle, took her alone to his worksite, and stayed alone with her at the family home when the rest of the family went to 23 dinner elsewhere. He admitted doing everything with A.K. that she testified 24 to, except he claims he did not have any sexual contact with her. Again, the jury did not believe him. 25 26 Kellywood, CR20153211-001, at n.8 (Ariz. Super. Ct. Mar. 11, 2020) (emphasis added). 27 In denying relief on Petitioner’s petition for review of the trial court’s ruling denying his PCR petition, appellate court held “the trial court clearly identified, addressed, and 28 1 correctly resolved Kellwood’s claims of ineffective assistance of trial counsel[]” and 2 adopted its ruling. Kellywood, 2020 WL 4581241, at *2. The court of appeals held, “[m]ost 3 significantly, although a better discovery strategy might have been employed by trial 4 counsel, the standard for evaluating a claim of ineffective assistance is not the best 5 defense…but only a reasonably competent one.” Id. (citations omitted). 6 i. Deficient Performance 7 The filing of the motion to compel makes clear that trial counsel was familiar with 8 the facts of the case and had a strategy. Petitioner complains that trial counsel was not 9 successful in his strategy but trial strategy success is not relevant. As the Arizona Court of 10 Appeals recognized, it is irrelevant to the Strickland analysis that trial counsel failed to 11 employ a successful discovery strategy. See Kellywood, 2020 WL 4581241, at *3 (“Most 12 significantly, although a better strategy might have been employed by trial counsel, the 13 standard for evaluating a claim of ineffective assistance is not the best defense…but only 14 a reasonable competent one.”) (citing Hinton v. Alabama, 571 U.S. 362, 273 (2014) (proper measure of attorney performance is whether counsel’s assistance “was reasonable 15 considering all the circumstances” (quoting Strickland, 466 U.S. at 688)); State v. Valdez, 16 160 Ariz. 9, 15 (1989) (“Defendants are not guaranteed perfect counsel, only competent 17 counsel.”). 18 ii. Resulting Prejudice 19 Petitioner claims that “there was a reasonable probability that the information 20 sought in trial counsel’s motion [to compel] was exculpatory.” (Doc. 1-1 at 10.) Petitioner 21 supports this assertion with his own self-serving affidavit wherein he claims that A.K.’s 22 “medical records would have shown either a record of sexual abuse during the time [she] 23 was living with the Kellywoods or that she explicitly denied the existence of any sexual 24 abuse when routinely questioned about it in her regularly scheduled evaluations.” Id. at 10 25 n.2. However, Petitioner’s self-serving affidavit fails to contain any verifiable facts 26 regarding the basis for his belief that A.K.’s counseling records contains any exculpatory 27 information. Id. at 25-33. As pointed out by Respondent, a habeas petitioner is not entitled 28 to habeas relief where a factual basis for an ineffective assistance of counsel claim has not 1 been established. See Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) (holding 2 factually unfounded IAC claim presents no basis for federal habeas relief); Santoyo v. 3 Seibel, No. 2:11-cv-0771 DB P, 2016 WL 5847012, at *8 (E.D. Cal. Oct. 6, 2016) (denying 4 IAC claim for failure to obtain telephone records based purely on “petitioner’s speculative 5 claim as to what those records would show”). 6 In a footnote to his Petition, Petitioner argues that A.K.’s testimony regarding the 7 incident where she was sexually abused at Petitioner’s worksite could not be true because 8 “he was incapable of kneeling, bending down, or having sex.” (Doc. 1-1 at 3-4, n.1.) 9 Petitioner alleges that “[a]t trial, the detective admitted that the DNA found in the home 10 could have been from sweat; it was not necessarily semen as the complainant had claimed.” 11 Id. at 4, n.1 (emphasis omitted). Significantly, Petitioner’s allegations are not supported by 12 reference to the detective’s trial testimony as one would expect. Rather, Petitioner supports 13 his claim regarding the detective’s alleged testimony to his own self-serving affidavit. Id. 14 at 27-28. iii. The Arizona Court of Appeals Dissent 15 In his Petition, Petitioner repeats arguments made to the trial court and quotes the 16 entirety of Judge Eckerstrom’s dissent to the court of appeals’ decision denying his PCR 17 petition. (Doc. 1-1 at 7-17.) Likewise, in his objection to Judge Bowman’s R&R, Petitioner 18 “reiterates the dissent in the lower court’s opinion that his claim for ineffective assistance 19 of counsel has merit[,]” and again quotes the entirety of Judge Eckerstrom’s dissent. (Doc. 20 12 at 1-5.) Significantly, Petitioner fails to point to anything from which this Court can 21 conclude that the state courts’ application of Strickland was unreasonable. 22 The United States Supreme Court has held that “relief is available under § 23 2254(d)(1)’s unreasonable-application clause if, and only if, it is so obvious that a clearly 24 established rule applies to a given set of facts that there could be no ‘fair[-]minded 25 disagreement’ on the question.” White, 572 U.S. at 427 (citation omitted). In Ritcher, the 26 United States Supreme Court held: 27 As amended by AEDPA, § 2254(d) stops short of imposing a complete bar 28 on federal court relitigation of claims already rejected in state court 1 proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996)…It preserves authority to issue the writ in cases where 2 there is no possibility fairminded jurists could disagree that the state court’s 3 decision conflicts with this Court’s precedents. It goes not farther. Section 2254(d) reflects the view that habeas corpus is a guard against extreme 4 malfunctions in the state criminal justice systems, not a substitute for 5 ordinary error correction through appeal. As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s 6 ruling on the claim being presented in federal court was so lacking in 7 justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. 8

9 Richter, 562 U.S. at 102. “It bears repeating that even a strong case for relief does not mean 10 the state court's contrary conclusion was unreasonable.” Id. (citation omitted). 11 Petitioner has made no effort to satisfy the fairminded jurist standard. Instead, 12 Petitioner quotes Judge Eckerstrom’s dissent without any accompanying analysis or 13 supporting caselaw. Judge Eckerstrom would hold that Kellywood established a colorable 14 claim that trial counsel’s performance fell below reasonable standards and that the result of the proceeding may have been different (i.e., that Petitioner was prejudiced by trial 15 counsel’s performance). Judge Eckerstrom would have the trial conduct an evidentiary 16 hearing to assess “[w]hether any exculpatory information found within the materials sought 17 by Kellywood would ultimately justify a new trial…” Kellywood, 2020 WL 4581241, at 18 *5. 19 As pointed out by Respondent, Judge Eckerstrom applies Strickland just as the 20 majority does but reaches a different conclusion. Disagreement among state court of 21 appeals judges does not establish that the state court unreasonably applied Strickland. 22 Petitioner has cited no authority to the contrary. The Arizona Court of Appeals’ opinion 23 addresses the dissent pointing out that the dissent’s conclusion “relies on many ‘could 24 have’ and ‘ifs,’” something that the majority determined “underscore[ed] the trial court’s 25 express conclusion….[that] Kellywood’s petition…was ‘supported by speculative facts 26 layered upon speculative facts.’” Kellywood, 2020 WL 4581241, at *3. Focusing on the 27 dissent’s assertion that A.K.’s possible failure to report her abuse to her health care 28 providers would have been “clearly exculpatory” the majority concludes “that is highly 1 debatable” and points out that circumstance is “merely positing a circumstance [that A.K.] 2 would have had the opportunity to explain to the jury.” Id. The majority also pointed out 3 Kellywood’s “little reference to Strickland’s prejudice prong[.]” Id. 4 The habeas court’s review of an exhausted IAC claim is highly deferential. This 5 Court finds that Petitioner has failed to establish that the state court unreasonably applied 6 Strickland to his claim that trial counsel was ineffective in failing to successfully compel 7 production of his victim’s counseling records. Petitioner is not entitled to habeas relief on 8 the grounds alleged in claim 1(a) of the Petition. 9 c. Petitioner’s Objection to the Finding on Claim (1)(b) 10 Magistrate Judge Bowman found claim (1)(b)—that Petitioner’s trial counsel was 11 ineffective for failing to impeach A.K. with an inconsistent statement—was procedurally 12 defaulted without excuse. (Doc. 11 at 8-10.) Judge Bowman found that the procedural 13 default resulted from Petitioner’s failure to raise this claim in his PCR petition or in his 14 petition for review with the Arizona Court of Appeals. Id. at 8-9. Judge Bowman also found 15 no excuse for the procedural default. Id. at 9-10. Petitioner objects to this finding asserting: 16 A.K. was the key witness in this matter. Her testimony was largely 17 relied upon by the jury. Several inconsistencies including her police 18 testimony versus trial statement, and story as it related to the alleged conduct does not add up. Petitioner suffers from physical injuries that 19 prevent A.K.’s story from being true. Failure to impeach on this 20 matter satisfies “cause and prejudice” and warrants habeas relief. (Doc. 12 at 5.) The Court narrowly finds Petitioner’s objection sufficient to trigger de novo 21 review. As explained below, upon de novo review, the Court finds Petitioner has failed to 22 demonstrate cause and actual prejudice and thus the Court cannot excuse the admitted 23 procedural default of claim 1(b). 24 d. Review of Claim 1(b) 25 Respondent points out that Petitioner did not raise this claim in either his PCR 26 petition or his petition for review of the trial court’s denial of his PCR petition and, as a 27 result, this claim is procedurally defaulted. (Doc. 7 at 11.) Respondent also urges that 28 1 Petitioner failed to establish the necessary grounds for this Court to excuse the procedural 2 default. Id. at 12-13. In reply, Petitioner summarily asserts:

3 Mr. Kellywood maintains that his claims are not procedurally 4 defaulted, as the Government suggests. But, in the alternative, if this Court finds any of his claim are defaulted, this Court should find that 5 Mr. Kellywood may escape the consequences of any default because 6 he has demonstrated cause and actual prejudice. Wainwright v. Sykes, 433 U.S. 72, 87. 7 (Doc. 9 at 1.) 8 1. Exhaustion and Procedural Default Standards 9 This Court may consider a petitioner’s application for writ of habeas corpus only if 10 he “has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 11 2254(b)(1)(A). The exhaustion requirement prevents unnecessary federal court 12 adjudication and affords the state courts with the opportunity to correct a constitutional 13 violation. Rose v. Lundy, 455 U.S. 509, 518 (1982). Exhaustion requires a prisoner to 14 ‘‘‘fairly present’ his claim in each state court, thereby alerting that court to the federal 15 nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004). The United States Court of 16 Appeals for the Ninth Circuit has held that a prisoner in Arizona does not exhaust a claim 17 for federal review unless he has presented it to the Arizona Court of Appeals. See, e.g., 18 Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2004) (“To exhaust his Arizona 19 remedies, Castillo had to give the Arizona courts a ‘fair opportunity’ to act on his federal 20 due process claim before presenting it to the federal courts…We consider Castillo’s 21 briefing to the Arizona Court of Appeals to determine whether he fairly presented his 22 federal due process claim to the Arizona courts.”) (citations omitted)). 23 Federal habeas review of a procedurally defaulted claim is precluded unless the 24 default is excused. A procedural default may be excused if a habeas petitioner establishes 25 either (1) “cause” and “prejudice,” or (2) that a fundamental miscarriage of justice has 26 occurred. Sawyer v. Whitley, 505 U.S. 333, 339 (1992). “Cause” that is sufficient to excuse 27 a procedural default is “some objective factor external to the defense” which precludes the 28 Petitioner’s ability to pursue his claim in state court. Murray, 477 U.S. at 488. “Prejudice” 1 in the habeas context means actual, objective harm resulting from the alleged error. United 2 States v. Frady, 456 U.S. 152, 170 (1982) (a habeas petitioner “shoulder[s] the burden of 3 showing, not merely that the errors…created a possibility of prejudice, but that they worked 4 to his actual and substantial disadvantage” and infected the state proceedings with errors 5 of constitutional dimension) (emphasis in original). A fundamental miscarriage of justice2 6 may occur where a constitutional violation has probably resulted in the conviction of one 7 who is actually innocent. Murray, 477 U.S. at 496 (the merits of a defaulted claim could 8 be reached “in an extraordinary case, where a constitutional violation has probably resulted 9 in the conviction of one who is actually innocent…”) “A finding of cause and prejudice 10 does not entitle the prisoner to habeas relief. It merely allows a federal court to consider 11 the merits of a claim that otherwise would have been procedurally defaulted.” Martinez v. 12 Ryan, 566 U.S. 1, 17 (2012). 13 2. Analysis 14 The record is clear that Petitioner failed to allege claim 1(b) in either his initial PCR 15 petition or his petition for review with the state court of appeals. (Doc. 1-1 at 50-57, 65- 16 75; Doc. 7 at 10-11.) He is now precluded by the Arizona Rules of Criminal Procedure 17 from raising claim 1(b) in state court. See Ariz. R. Crim. P. 32.2(a). Accordingly, the Court 18 finds claim 1(b) procedurally defaulted. 19 Petitioner argues that the procedural default should be excused because “he has 20 demonstrated cause and actual prejudice.” (Doc. 9 at 1.) As explained below, the Court 21 disagrees. Petitioner has failed to provide any reason for failing to raise this claim in state 22 court. See generally, Doc. 1. He states that “the ineffective assistance of Mr. Kellywood’s 23 post-conviction counsel ultimately led to any procedural default asserted by the 24 2 To demonstrate a “fundamental miscarriage of justice,” a petitioner must establish that, 25 in light of new evidence, “it is more likely than not that no reasonable juror would have 26 found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The fundamental miscarriage of justice standard “is demanding and permits review 27 only in the extraordinary case.” House v. Bell, 547 U.S. 518, 538 (2006) (internal 28 quotations omitted). Petitioner does not allege that he is actually innocent nor does he establish that he meets the fundamental miscarriage of justice standard. 1 Government.” (Doc. 9 at 2.) Default of a claim as a result of state PCR counsel’s failure to 2 raise a trial-counsel-ineffective-assistance-of-counsel claim will constitute “cause” to 3 excuse a procedural default if the claim of ineffective assistance of trial counsel was a 4 substantial claim, the cause consisted of there being ineffective counsel during the state 5 collateral review proceeding within the meaning of Strickland, the state collateral review 6 proceeding was the initial review proceeding with respect to the ineffective assistance of 7 trial counsel claim and it is highly unlikely in the typical case that a defendant will have a 8 meaningful opportunity to raise an ineffective assistance of trial counsel claim on direct 9 appeal. See Trevino v. Thaler, 569 U.S. 413 (2013). 10 Significantly, however, Petitioner fails to demonstrate both that his IAC claim 11 regarding his trial counsel’s alleged failure to impeach A.K. is a substantial claim and that 12 his PCR counsel was ineffective in failing to pursue it. As recognized by Judge Bowman, 13 “[A] prisoner must also demonstrate that the underlying ineffective-assistance-of-trial- 14 counsel claim is a substantial one, which it to say that the prisoner must demonstrate that 15 the claim has some merit.” See Martinez, 566 U.S. at 15. As also recognized by Judge 16 Bowman, Petitioner fails to cite to the state court record or provide any documentation of 17 the “version of events [that A.K.] had given the police in her interview.” (Doc. 11 at 9, 18 citing Doc. 1-1 at 18.) As a result of Petitioner’s failures, this Court cannot determine 19 whether A.K. actually made an inconsistent statement and if, so, in what context the 20 allegedly inconsistent statement was made. 21 Additionally, as recognized by Judge Bowman, Petitioner admits that he raised 22 A.K.’s alleged testimonial discrepancy and that his trial counsel “told me it doesn’t matter.” 23 (Doc. 11 at 9, citing Doc. 1-1 at 30.) As such, this Court must presume that counsel made 24 a strategic decision in failing to raise the issue. See Matylicky v. Budge, 577 F.3d 1083, 25 1091 (9th Cir. 2009) (holding that the petitioner “bears the heavy burden of proving that 26 counsel’s assistance was neither reasonable nor the result of sound trial strategy. Because 27 advocacy is an art and not a science, and because the adversary system requires deference 28 to counsel’s informed decisions, strategic choices must be respected in these circumstances 1 if they are based on professional judgment.”); Thomas v. Schriro, No. CIV 05-320-TUC- 2 CKJ, 2009 WL 648512, at *10 (D. Ariz. Mar. 12, 2009) (recognizing that “[a]ny issues of 3 trial strategy and tactics are committee to defense counsel’s judgment[] and claims of 4 ineffective assistance cannot be predicated thereon.”). 5 Having found that Petitioner has failed to demonstrate cause to excuse his default, 6 it is unnecessary for the Court to address prejudice. See Coleman, 501 U.S. at 750 7 (“[F]ederal habeas review of the claims is barred unless the prisoner can demonstrate cause 8 for the default and actual prejudice as a result of the alleged violation of federal law….” 9 (emphasis added)). Nevertheless, the Court also finds that Petitioner has failed to 10 demonstrate actual prejudice. 11 In support of his claim that he has established prejudice, Petitioner relies upon 12 Bradford v. Davis, 923 F.3d 599 (9th Cir. 2019). (Doc. 9 at 3.) In Bradford, three of the 13 petitioner’s habeas claims were found to be procedurally defaulted and precluded from 14 habeas review. The district court did not address the prejudice prong in its cause and 15 prejudice analysis, having concluded that the petitioner failed to establish cause. Under the 16 unique circumstances present in Bradford, the Ninth Circuit remanded two of the 17 petitioner’s procedurally defaulted habeas claims for consideration of whether the 18 petitioner established prejudice for the purpose of the cause and prejudice analysis where 19 the state court issued an alternative merits decision on the two remanded claims. 923 F.3d 20 at 615. 21 The Ninth Circuit’s decision in Bradford his inapposite to this case. Petitioner 22 admits that claim 1(b) was never presented to the state court and it is clear that the state 23 court never rendered a decision on claim 1(b). It seems that Petitioner conflates claims 1(a) 24 and (b) in that he asserts, “to hold at the outset the state court’s merits denial of the claim 25 barred the prejudice inquiry for procedural default would improperly shield the claim from 26 federal review.” (Doc. 9 at 3.) Here, the only claim that was considered on its merits in 27 state court is claim 1(a) and it is undisputed that claim 1(b) was never presented to the state 28 court and the state court never rendered a decision on claim 1(b), whether a procedural or 1 merits decision. The decision in Bradford that a state court’s merits denial does not 2 necessarily bar a habeas court from conducting a prejudice inquiry in a cause and prejudice 3 analysis is inapplicable to this case. 4 In sum, this Court finds claim 1(b) procedurally defaulted without excuse and barred 5 from habeas review. 6 e. Petitioner’s Objection to the Findings on Claims 1(c) and 1(d) 7 Claim1(c) alleges that Petitioner’s trial counsel was ineffective for failing to pursue 8 potentially exculpatory evidence and establish before the trial court that the potential 9 contents of the documents necessitated in camera review. Judge Bowman determined claim 10 1(c) to “simply be a different way of describing claim 1(a).” (Doc. 11 at 10.) Petitioner has 11 not objected to this finding. (Doc. 12.) As such, this Court’s review is for clear error. The 12 Court finds none. 13 Claim 1(d) alleges that trial counsel was ineffective for “refusing to call character 14 witnesses on [Petitioner’s] behalf.” (Doc. 7 at 12; Doc. 1-1 at 16-17, n.3.) In a footnote, 15 Petitioner asserts that trial counsel should have called his best friend, his ex-wife or his 16 mother to testify and that his trial counsel “said that he will not be calling any character 17 witnesses on my behalf because there’s no point.” Id. at 26. Judge Bowman found claim 18 1(d) “not a proper claim.” (Doc. 11 at 11.) Alternatively, Judge Bowman found claim 1(d) 19 procedurally defaulted because it was not raised below. Id. 20 In his objection to Judge Bowman’s R&R, Petitioner lodges a general objection to 21 “any finding or recommendation that his claims are procedurally defaulted” which this 22 Court construes as an objection to Judge Bowman’s recommendation regarding claim 1(d). 23 (Doc. 12 at 5.) So construed, this Court finds that Petitioner’s global objection fails to 24 identify any error in the R&R’s conclusion regarding claim 1(d) and is insufficient to 25 trigger de novo review. See Neufield v. Shinn, No. CV-20-08155-PCT-JAT, 2021 WL 26 3046904, at *2 (D. Ariz. July 19, 2021) (“[G]lobal or general objections are insufficient to 27 cause the court to engage in a de novo review of an R & R.”). The Court has reviewed the 28 record for clear error regarding claim 1(d) and finds none. 1 VI. EVIDENTIARY HEARING 2 Petitioner requests an evidentiary hearing. (Doc. 1 at 11.) Where the state court 3 adjudicated a petitioner’s claim on the merits (as with Petitioner’s claim 1(a)3), a federal 4 court’s review is limited to the record that was before the state court that adjudicated the 5 claim on the merits. See Pinholster, 563 U.S. at 185 (holding that “[i]f a claim has been 6 adjudicated on the merits by a state court, a federal habeas petitioner must overcome the 7 limitation of § 2254(d)(1) on the record that was before that state court.”). Petitioner’s 8 request for an evidentiary hearing is denied. 9 VII. CERTIFICATE OF APPEALABILITY 10 When a district court enters a final order adverse to the petitioner in a habeas corpus 11 proceeding it must either issue or deny a certificate of appealability. 28 U.S.C. § 12 2253(c)(1)(A). Rule 11(a) of the Rules Governing § 2254 Cases provides that the Court 13 “must issue or deny a certificate of appealability when it enters a final order adverse to the 14 applicant.” “The petitioner must demonstrate that reasonable jurists would find the district 15 court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 16 529 U.S. 473, 484 (2000). “When the district court denies a habeas corpus petition on 17 procedural grounds and fails to reach the prisoner’s underlying constitutional claim, a 18 [certificate of appealability] should issue when the prisoner shows ‘that jurists of reason 19 would find it debatable whether the petition states a valid claim of the denial of a 20 constitutional right and that jurists of reason would find it debatable whether the district 21 court was correct in its procedural ruling.” Jones v. Ryan, 733 F.3d 825, 832 n.3 (9th Cir. 22 2013) (quoting Slack, 529 U.S. at 484). The Court declines to issue a certificate of 23 appealability concluding that jurists of reason would not find its ruling debatable. 24 VIII. CONCLUSION 25 In light of the foregoing, the Court overrules Petitioner’s objections to the R&R. 26 Accordingly, 27 IT IS HEREBY ORDERED WITHDRAWING the reference to the Magistrate

28 3 Petitioner’s procedurally defaulted claims 1(b) and 1(d) are barred from habeas review and claim 1(c) is not an independent claim. 1|| Judge, OVERRULING Petitioner’s objection to the R&R, and ADOPTING IN FULL 2|| the R&R (Doc. 11). The Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus By 3|| a Person in State Custody (Doc. 1) is DENIED. The Court DECLINES to issue a 4|| certificate of appealability finding that jurists of reason would not find this Court’s ruling 5 || debatable. The Clerk of the Court is directed to enter judgment accordingly and close this case. 7 Dated this 10th day of May, 2022. 8 9 .

10 9S MH herb onorable John C. Hinderaker 1] United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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