Leon v. Shinn

• Court: District Court, D. Arizona
• Decided: June 1, 2020
• Docket: 4:17-cv-00008
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Joshua Michael Leon, No. CV-17-0008-TUC-BGM

10 Petitioner,

11 v. ORDER

12 David Shinn,1 et al., 13 Respondents. 14 15 Currently pending before the Court is Petitioner Joshua Michael Leon’s Petition 16 Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody 17 (Non-Death Penalty) (“Petition”) (Doc. 1). Respondents have filed a Answer to Petition 18 for Writ of Habeas Corpus (“Answer”) (Doc. 14), and Petitioner filed his Reply (Doc. 40). 19 The United States Magistrate Judge has received the written consent of both parties and 20 presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil 21 Procedure. The Petition (Doc. 1) is ripe for adjudication. 22 . . . 23 . . . 24 . . . 25 . . . 26 27 1 The Court takes judicial notice, that Charles Ryan is no longer the Director of the Arizona Department of Corrections (“AZDOC”). As such, the Court will substitute the Director of the 28 AZDOC, David Shinn, as a Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 A. Initial Charge and Sentencing 3 The Arizona Court of Appeals stated the facts2 as follows: 4 One evening in October 2009, Maxine S., Amina R., and Kalette M. approached Leon’s girlfriend Claudia R., on a corner in South Tucson. The 5 women asked to buy drugs and, when Claudia agreed, they proceeded to beat 6 and rob her. Claudia yelled for Leon and, as he approached, the three women fled. Leon pursued them and when the women stopped running, he punched 7 one or more of them and stabbed Maxine in the chest. Maxine’s heart was 8 punctured and she later died. The weapon was not recovered. 9 Answer (Doc. 14), Ariz. Ct. of Appeals, Case Nos. 2 CA-CR 2011-0395, Mem. Decision 10 12/3/2013 (Exh. “I”) (Doc. 15) at 51.3 11 Petitioner was indicted on one (1) count of first degree murder. See Answer (Doc. 12 14), Ariz. Superior Ct., Pima County, Case No. CR20094042-001, Indictment (Exh. “A”) 13 (Doc. 15). The State offered Petitioner a Plea Agreement which would have allowed him 14 to plead guilty to one (1) count of manslaughter, with a maximum sentence of 12.50 years, 15 in exchange for the dismissal of the first degree murder charge. Answer (Doc. 14), Ariz. 16 Superior Ct., Pima County, Case No. CR20094042-001, Plea Agreement (Exh. “B”) (Doc. 17 15) at 5–6. The trial court held a Donald4 hearing, and Petitioner rejected the plea. See 18 Answer (Doc. 14), Ariz. Superior Ct., Pima County, Case No. CR20094042-001, Minute 19 Entry 10/4/2010 (Exh. “C”) (Doc. 15) at 5–6 & Donald Hr’g Tr. 10/4/2010 (Exh. “Z”) 20 (Docs. 17, 18) at 30–33. 21 Following a jury trial, Defendant Joshua Michael Leon was found not guilty of the 22 first degree murder charge and guilty of the lesser-included offense of second degree 23 24 2 As these state court findings are entitled to a presumption of correctness and Petitioner has failed to show by clear and convincing evidence that the findings are erroneous, the Court 25 hereby adopts these factual findings. 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473–74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007); Wainwright v. Witt, 469 U.S. 412, 426, 26 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985); Cf. Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 27 1204, 71 L.Ed.2d 379 (1982). 28 3 Page citations refer to the CM/ECF page number for ease of reference. 4 State v. Donald, 198 Ariz. 406, 10 P.3d 1193 (Ariz. Ct. App. 2000). 1 murder. Answer (Doc. 14), Ariz. Superior Ct., Pima County, Case No. CR20094042-001, 2 Verdict (Exh. “E”) (Doc. 15) at 19 & Minute Entry 12/12/2011 (Exh. “F”) (Doc. 15) at 22– 3 23. On December 12, 2011, Petitioner was sentenced to an aggravated term of eighteen 4 (18) years of imprisonment. See Answer (Doc. 14), Ariz. Superior Ct., Pima County, Case 5 No. CR20094042-001, Minute Entry—Sentence of Imprisonment (Exh. “F”) (Doc. 15) at 6 22. 7 B. Direct Appeal 8 On December 19, 2011, counsel for Petitioner filed a Notice of Appeal from the 9 sentence. See Answer (Doc. 14), Ariz. Superior Ct., Pima County, Case No. CR20094042- 10 001, Not. of Appeal (Exh. “G”) (Doc. 15). In May 2013, counsel for Petitioner filed an 11 Opening Brief with the Arizona Court of Appeals. Id., Ariz. Ct. of Appeals, Case No. 2 12 CA-CR 2012-0305, Appellant’s Opening Br. (Exh. “H”) (Doc. 15). Petitioner’s issues 13 included 1) whether the trial court erred by denying appellant’s motion to dismiss or to 14 preclude testimony of Elvin Logan based on Mr. Logan’s representation by Petitioner’s 15 prior counsel; and 2) whether the trial court erred in denying Petitioner’s motion for a new 16 trial based on alleged references to gang membership during trial, as well as alleged juror 17 misconduct. See id., Exh. “H.” 18 On December 3, 2013, the Arizona Court of Appeals vacated the Criminal 19 Restitution Order (“CRO”) entered at sentencing but affirmed Petitioner’s conviction and 20 sentence in all other respects. Answer (Doc. 14), Ariz. Ct. of Appeals, Case No. 2 CA-CR 21 2011-0395, Mem. Decision 12/3/2013 (Exh. “I”) (Doc. 15). The court of appeals observed 22 that “[d]ismissal as a sanction is rare . . . and necessarily directed at improper conduct by 23 the state.” Id., Exh. “I” at 54 (citing State v. Young, 149 Ariz. 580, 585, 720 P.2d 965, 970 24 (Ariz. Ct. App. 1986)). “[B]ecause the trial court expressly found no wrongdoing on the 25 part of the prosecutors . . . dismissal for prosecutorial misconduct was clearly not 26 appropriate, and [the court of appeals] [found] no abuse of discretion by the trial court.” 27 Answer (Doc. 14), Exh. “I” at 54. Regarding the denial of Petitioner’s motion to preclude 28 his cellmate’s testimony the appellate court noted that “[t]he trial court found no evidence 1 that Sweeney had provided Elvin with any details about Leon’s case, despite testimony that 2 she assisted him in preparing for his meeting with prosecutors.” Id., Exh. “I” at 55. The 3 appellate court acknowledged that “[a] defendant thus has a constitutional right to conflict- 4 free counsel.” Id., Exh. “I” at 56. The appellate court found that “[g]iven Leon was 5 represented by non-conflicted trial counsel and was no worse off for his former counsel’s 6 conflict, [they] [could] not say Leon’s constitutional right to effective representation was 7 infringed or that the trial court abused its discretion by allowing Elvin’s testimony.” Id., 8 Exh. “I” at 57. The court of appeals further noted that “a breach of an ethical standard does 9 not necessarily make out a denial of the Sixth Amendment guarantee of assistance of 10 counsel . . . [and] [because] Sweeney’s professional breach had no adverse impact on 11 Leon’s trial and that finding is supported by the record . . . the trial court did not err in 12 permitting Elvin to testify.” Id., Exh. “I” at 58. The appellate court also observed that “the 13 Constitution does not require a new trial every time a juror has been placed in a potentially 14 compromising situation . . . [because] it is virtually impossible to shield jurors from every 15 contact of influence that might theoretically affect their vote.” Answer (Doc. 14), Ariz. Ct. 16 of Appeals, Case No. 2 CA-CR 2011-0395, Mem. Decision 12/3/2013 (Exh. “I”) (Doc. 15) 17 at 62 (quoting Rushen v. Spain, 464 U.S. 114, 118 (1983)) (internal quotation marks 18 omitted) (alterations in original). The court of appeals discussed the trial court’s 19 questioning of Juror Nine regarding her concerns for her safety and found that Juror Nine’s 20 concerns or conduct did not deprive Petitioner of a fair and impartial trial. Answer (Doc. 21 14), Exh. “I” at 62. The appellate court also found “no evidence to support Leon’s assertion 22 that the testimony of Mr. Leon’s sister concerning questions that she was asked about her 23 tattoos by juror embers makes plain that the gang issue was on the jury’s mind.” Id., Exh. 24 “I” at 65–66 (quotations omitted). The appellate court held that “[s]peculation as to juror 25 bias is insufficient to establish that the defendant was denied a fair trial.” Id., Exh. “I” at 26 66 (citing State v. Soule, 164 Ariz. 165, 169, 791 P.2d 1048, 1052 (Ariz. Ct. App. 1989)) 27 (alterations in original). 28 As such, the court of appeals “vacate[d] the CRO entered at sentencing; Leon’s 1 conviction and sentence in all other respects [were] affirmed.” Id., Exh. “I” at 66. On 2 December 27, 2013, Petitioner filed his petition for review with the Arizona Supreme 3 Court. See Answer (Doc. 14), Ariz. Supreme Ct., Case No. CR-13-0456-PR, Pet. for 4 Review (Exh. “J”) (Doc. 16). Petitioner’s petition raised a single issue regarding whether 5 “a prosecution witness [should] be precluded from testifying because he was recruited by 6 defendant’s former defense counsel[.]” Id., Exh. “J” at 6. On May 29, 2014, the Arizona 7 Supreme Court denied review. Answer (Doc. 14), Ariz. Supreme Ct., Case No. CR-13- 8 0456-PR, Mem. to Pet. 5/29/2014 (Exh. “K”) (Doc. 16). On July 17, 2014, the Arizona 9 Court of Appeals issued its Mandate. Answer (Doc. 14), Ariz. Ct. of Appeals, Case No. 2 10 CA-CR 2011-0395, Mandate (Exh. “L”) (Doc. 16) 11 C. Post-Conviction Relief Proceeding 12 On June 25, 2014, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). 13 Answer (Doc. 14), Ariz. Superior Ct., Pima County, Case No. CR20094042-001, Pet.’s 14 Not. of PCR 6/25/2009 (Exh. “M”) (Doc. 16). On July 14, 2014, the trial court appointed 15 PCR counsel. Id., Ariz. Superior Ct., Pima County, Case No. CR20094042-001, Not. Re 16 Not. of Pet. for PCR (Trial) 7/14/2014 (Exh. “N”) (Doc. 16). 17 1. PCR Petition 18 On October 20, 2014, Petitioner filed his Petition for PCR. See Answer (Doc. 14), 19 Ariz. Superior Ct., Pima County, Case No. CR20094042-001, Pet.’s Pet. for PCR (Exh. 20 “O”) (Doc. 16). In his Petition, Petitioner asserted a single claim of ineffective assistance 21 of counsel. Id., Exh. “O” at 58–60. Petitioner urged that “his attorney convinced him that 22 the plea was not in his best interest[,] [and] . . . told [him] that there’s no way [the jury] 23 will find you guilty of anything higher than manslaughter.” Id., Exh. “O” at 60. 24 2. Rule 32 Court Order 25 On April 13, 2015, the Rule 32 court had an evidentiary hearing regarding 26 Petitioner’s petition. Answer (Doc. 14), Ariz. Superior Ct., Pima County, Case No. 27 CR20094042-001, Minute Entry—Evidentiary Hearing 4/13/2015 (Exh. “P”) (Doc. 16). 28 The Rule 32 court found trial counsel credible and Petitioner not credible. Id., Exh. “P” at 1 75–76. As such, the Rule 32 court found that trial counsel was not ineffective and 2 dismissed Petitioner’s PCR petition. Id. 3 3. PCR Appeal 4 On September 8, 2015, counsel for Petitioner filed an Anders5 brief petition for 5 review with the Arizona Court of Appeals.6 Answer (Doc. 14), Ariz. Superior Ct., Pima 6 County, Case No. CR20094042-001, Pet. for Review (Exh. “Q”) (Doc. 16). The court of 7 appeals noted that Anders does not apply to post-conviction proceedings and struck the 8 petition for review. See Answer (Doc. 14), Court of Appeals, State of Arizona, Case No. 9 2 CA-CR 2015-0320-PR, Order 12/17/2015 (Exh. “R”) (Doc. 16) at 92. The appellate 10 court granted Petitioner thirty (30) days to file a pro se petition for review. Id., Exh. “R” 11 at 92. 12 On January 12, 2016, the Arizona Court of Appeals stayed the petition for review 13 proceeding and reaffirmed that the pro se petition was due on or before February 18, 2016. 14 See Answer (Doc. 14), Court of Appeals, State of Arizona, Case No. 2 CA-CR 2015-0320- 15 16 5 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). 6 The Arizona Court of Appeals has described the procedure of filing an Anders brief as follows: 17 Under our procedure, when appointed counsel determines that a defendant's case 18 discloses no arguable issues for appeal, counsel files an Anders brief. The brief 19 contains a detailed factual and procedural history of the case, with citations to the record. See Scott, 187 Ariz. at 478 n. 4, 930 P.2d at 555 n. 4. Counsel submits the 20 brief to the court and the defendant. The defendant is then given the opportunity to file a brief pro per. After receiving all briefing, the court reviews the entire record 21 for reversible error. If any arguable issue presents itself, the court directs appointed 22 counsel to brief the issue. Only after the court has ascertained that counsel has conscientiously performed his or her duty to review the record, and has itself 23 reviewed the record for reversible error and found none, will the court allow counsel to withdraw. See State v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154, 24 156–57 (1984). We conclude that this procedure permits counsel to perform 25 ethically, while simultaneously ensuring that an indigent defendant's constitutional rights to due process, equal protection, and effective assistance of counsel are 26 protected. 27 State v. Clark, 196 Ariz. 530, 537, 2 P.3d 89, 96 (Ct. App. 1999). The Court notes that because this was a PCR petition, the proper authority was Montgomery v. Sheldon (I), 181 Ariz. 256, 889 28 P.2d 614 (1995) rather than Anders. See State v. Smith, 184 Ariz. 456, 910 P.2d 1 (1996). Ultimately, the result is the same. 1 PR, Order 2/26/2016 (Exh. “T”) (Doc. 17). On April 21, 2016, the Arizona Court of 2 Appeals dismissed the petition for review because Petitioner had not complied with its 3 previous orders. Answer (Doc. 14), Court of Appeals, State of Arizona, Case No. 2 CA- 4 CR 2015-0320-PR, Order 4/21/2016 (Exh. “U”) (Doc. 17). On April 29, 2016, Petitioner 5 filed his pro se Petition for Review. Answer (Doc. 14), Court of Appeals, State of Arizona, 6 Case No. 2 CA-CR 2015-0320-PR, Pet.’s Pro Se Pet. for Review (Exh. “V”) (Doc. 17). 7 Petitioner alleged ineffective assistance of counsel based on trial counsel’s alleged advice 8 to reject the plea offer; an alleged failure to request that the plea offer deadline be extended 9 or the Donald hearing continued; and an alleged failure to ensure that Petitioner received 10 a full and fair Donald hearing. Answer (Doc. 14), Court of Appeals, State of Arizona, Case 11 No. 2 CA-CR 2015-0320-PR, Pet.’s Pro Se Pet. for Review (Exh. “V”) (Doc. 17). The 12 court of appeals accepted Petitioner’s brief and reinstated his petition for review. Answer 13 (Doc. 14), Court of Appeals, State of Arizona, Case No. 2 CA-CR 2015-0320-PR, Order 14 5/3/2016 (Exh. “W”) (Doc. 17). 15 On June 7, 2016, the court of appeals granted reviewed and denied relief. Answer 16 (Doc. 14), Court of Appeals, State of Arizona, Case No. 2 CA-CR 2015-0320-PR, Mem. 17 Decision 6/7/2016 (Exh. “X”) (Doc. 17). The appellate court declined any invitation by 18 Petitioner to reweigh the evidence and found that “[s]ubstantial evidence support[ed] the 19 [Rule 32] court’s implicit finding that counsel had not advised Leon to reject the plea offer, 20 but instead had advised him to accept it, and we defer to that finding.” Id., Exh. “X” at 19 21 (citing State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (Ariz. Ct. App. 1993). The 22 appellate court also observed that Petitioner had not presented any evidence that his trial 23 counsel “was mistaken or had misadvised him regarding release provisions under the plea 24 offer.” Id., Exh. “X” at 19. The court of appeals also noted that “Leon’s petition did not 25 allege his Donald hearing was impermissibly ‘incomplete[,]’” but acknowledged the issue 26 had been considered and rejected by the lower court. Id., Exh. “X” at 19–20. The appellate 27 court found that the Rule 32 court did not abuse its discretion. Id., Exh. “X” at 20. The 28 court of appeals held that the trial court held an evidentiary hearing consistent with Donald 1 and Petitioner “failed to meet his burden of establishing ineffective assistance of counsel.” 2 Id., Exh. “X” at 20. 3 Petitioner did not seek review with the Arizona Supreme Court. See Answer (Doc. 4 14), Court of Appeals, State of Arizona, Case No. 2 CA-CR 2015-0320-PR, Mandate 5 8/3/2016 (Exh. “Y”) (Doc. 17). 6 D. The Instant Habeas Proceeding 7 On June 5, 2017, Petitioner filed his Petition Pursuant to 28 U.S.C. § 2254 for a 8 Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). 9 Petitioner asserts two (2) grounds for relief, each with several subparts. See Petition (Doc. 10 1). First, Petitioner alleges that he “was denied his right to the effective/competent 11 assistance of counsel guaranteed under the U.S. Constitution Amendment Six and 12 Fourteen[.]” Id. at 6. Petitioner asserts that his trial counsel was ineffective for allegedly 13 1) advising Petitioner to reject the plea; 2) failing to advise Petitioner regarding his 14 eligibility for serving eighty-five (85) percent of his sentence; 3) failing to ensure Petitioner 15 received a full and fair Donald hearing; 4) failing to move for a continuance of Petitioner’s 16 Donald hearing; and 5) prior counsel created a conflict of interest by representing Elvin 17 Logan. Id. at 7–15. Second, Petitioner asserts that his “right to a fair trial and impartial 18 jury under the Sixth and Fourteenth Amendments to the U.S. Const. were violated[,]” as 19 well as his right to due process. Id. at 16. Petitioner alleges that 1) the trial court abused 20 its discretion in denying Petitioner’s motion to preclude Logan’s testimony; 2) 21 prosecutorial misconduct allowed Sweeney’s conflict-of-interest to go unchecked; 3) the 22 trial court erred in denying Petitioner’s motion to preclude gang affiliation testimony; and 23 4) juror misconduct. Id. at 16–20. 24 On August 8, 2017, Respondents filed their Answer (Doc. 14), and on September 25 29, 2017, Petitioner replied (Doc. 40). 26 . . . 27 . . . 28 . . . 1 II. STANDARD OF REVIEW 2 A. In General 3 The federal courts shall “entertain an application for a writ of habeas corpus in 4 behalf of a person in custody pursuant to the judgment of a State court only on the ground 5 that he is in custody in violation of the Constitution or laws of treaties of the United States.” 6 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person 7 in state custody: 8 shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – (1) 9 resulted in a decision that was contrary to, or involved an unreasonable 10 application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an 11 unreasonable determination of the facts in light of the evidence presented in 12 the State court proceeding. 13 28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 181, 131 S. Ct. 1388, 14 1398, 179 L. Ed. 2d 557 (2011). Correcting errors of state law is not the province of federal 15 habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 480, 116 L. Ed. 16 2d 385 (1991). Ultimately, “[t]he statute’s design is to ‘further the principles of comity, 17 finality, and federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S. Ct. 2842, 18 2854, 168 L. Ed. 2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S. 19 Ct. 1029, 154 L. Ed. 2d 931 (2003)). Furthermore, this standard is difficult to meet and 20 highly deferential “for evaluating state-court rulings, [and] which demands that state-court 21 decisions be given the benefit of the doubt.” Pinholster, 563 U.S. at 181, 131 S. Ct. at 22 1398 (citations and internal quotation marks omitted). 23 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 24 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The 25 “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims 26 have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19, 134 S. Ct. 10, 16, 27 187 L. Ed. 2d 348 (2013). Federal courts reviewing a petition for habeas corpus must 28 “presume the correctness of state courts’ factual findings unless applicants rebut this 1 presumption with ‘clear and convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465, 2 473–74, 127 S. Ct. 1933, 1940, 167 L. Ed. 2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)). 3 Moreover, on habeas review, the federal courts must consider whether the state court’s 4 determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473, 127 S. Ct. at 5 1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is 6 unreasonable where a state court properly identifies the governing legal principles 7 delineated by the Supreme Court, but when the court applies the principles to the facts 8 before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 9 770, 178 L. Ed. 2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. 10 Ed. 2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). “AEDPA 11 requires ‘a state prisoner [to] show that the state court’s ruling on the claim being presented 12 in federal court was so lacking in justification that there was an error . . . beyond any 13 possibility for fairminded disagreement.’” Burt, 134 S. Ct. at 10 (quoting Harrington, 562 14 U.S. at 103, 131 S. Ct. at 786–87) (alterations in original). 15 B. Exhaustion of State Remedies 16 Prior to application for a writ of habeas corpus, a person in state custody must 17 exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This 18 “provides a simple and clear instruction to potential litigants: before you bring any claims 19 to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, 20 455 U.S. 509, 520, 102 S. Ct. 1198, 1204, 71 L. Ed. 2d 379 (1982). As such, the exhaustion 21 doctrine gives the State “the opportunity to pass upon and correct alleged violations of its 22 prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 1349, 158 23 L. Ed. 2d 64 (2004) (internal quotations omitted). Moreover, “[t]he exhaustion doctrine is 24 principally designed to protect the state courts’ role in the enforcement of federal law and 25 prevent disruption of state judicial proceedings.” Rose, 455 U.S. at 518, 102 S. Ct. at 1203 26 (internal citations omitted). This upholds the doctrine of comity which “teaches that one 27 court should defer action on causes properly within its jurisdiction until the courts of 28 another sovereignty with concurrent powers, and already cognizant of the litigation, have 1 had an opportunity to pass upon the matter.” Id. (quoting Darr v. Burford, 339 U.S. 200, 2 204, 70 S. Ct. 587, 590, 94 L. Ed. 761 (1950)). 3 Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long 4 as the applicant “has the right under the law of the State to raise, by any available procedure 5 the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has been fairly 6 presented to the state courts, the exhaustion requirement is satisfied.” Picard v. Connor, 7 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971). The fair presentation 8 requirement mandates that a state prisoner must alert the state court “to the presence of a 9 federal claim” in his petition, simply labeling a claim “federal” or expecting the state court 10 to read beyond the four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 11 27, 33, 124 S. Ct. 1347, 1351, 158 L. Ed. 2d 64 (2004) (rejecting petitioner’s assertion that 12 his claim had been “fairly presented” because his brief in the state appeals court did not 13 indicate that “he was complaining about a violation of federal law” and the justices having 14 the opportunity to read a lower court decision addressing the federal claims was not fair 15 presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed 16 to exhaust federal due process issue in state court because petitioner presented claim in 17 state court only on state grounds). Furthermore, in order to “fairly present” one’s claims, 18 the prisoner must do so “in each appropriate state court.” Baldwin, 541 U.S. at 29, 124 S. 19 Ct. at 1349. “Generally, a petitioner satisfies the exhaustion requirement if he properly 20 pursues a claim (1) throughout the entire direct appellate process of the state, or (2) 21 throughout one entire judicial postconviction process available in the state.” Casey v. 22 Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas 23 Corpus Practice and Procedure, § 23.3b (9th ed. 1998)). 24 In Arizona, however, for non-capital cases “review need not be sought before the 25 Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 26 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 27 2007); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the 28 Supreme Court has further interpreted § 2254(c) to recognize that once the state courts 1 have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for the 2 same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346, 350, 3 109 S. Ct. 1056, 1060, 103 L. Ed. 2d 380 (1989). 4 C. Procedural Default 5 “A habeas petitioner who has defaulted his federal claims in state court meets the 6 technical requirements for exhaustion; there are no state remedies any longer ‘available’ to 7 him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S. Ct. 2546, 2555, 115 L. Ed. 2d 650 8 (1991). Moreover, federal courts “will not review a question of federal law decided by a 9 state court if the decision of that court rests on a state law ground that is independent of the 10 federal question and adequate to support the judgment.” Id., 501 U.S. at 728, 111 S. Ct. at 11 2254. This is true whether the state law basis is substantive or procedural. Id. (citations 12 omitted). Such claims are considered procedurally barred from review. See Wainwright 13 v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). 14 The Ninth Circuit Court of Appeals explained the difference between exhaustion 15 and procedural default as follows: 16 The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner’s claims and that 17 opportunity may still be available to the petitioner under state law. In 18 contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but 19 declined to reach the issue for procedural reasons, or if it is clear that the state 20 court would hold the claim procedurally barred. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and citations 21 omitted). Thus, in some circumstances, a petitioner’s failure to exhaust a 22 federal claim in state court may cause a procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, 303 F.3d 975, 23 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner 24 failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement 25 would now find the claims procedurally barred.’”) (quoting Coleman v. 26 Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). 27 Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005). Thus, a prisoner’s habeas 28 petition may be precluded from federal review due to procedural default in two ways. First, 1 where the petitioner presented his claims to the state court, which denied relief based on 2 independent and adequate state grounds. Coleman, 501 U.S. at 728, 111 S. Ct. at 2554. 3 Federal courts are prohibited from review in such cases because they have “no power to 4 review a state law determination that is sufficient to support the judgment, resolution of 5 any independent federal ground for the decision could not affect the judgment and would 6 therefore be advisory.” Id. Second, where a “petitioner failed to exhaust state remedies 7 and the court to which the petitioner would be required to present his claims in order to 8 meet the exhaustion requirement would now find the claims procedurally barred.” Id. at 9 735 n.1, 111 S. Ct. at 2557 n.1 (citations omitted). Thus, the federal court “must consider 10 whether the claim could be pursued by any presently available state remedy.” Cassett, 406 11 F.3d at 621 n.6 (quotations and citations omitted) (emphasis in original). 12 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 13 courts are prohibited from subsequent review unless the petitioner can show cause and 14 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S. Ct. 1060, 1068, 103 15 L. Ed. 2d 334 (1989) (holding that failure to raise claims in state appellate proceeding 16 barred federal habeas review unless petitioner demonstrated cause and prejudice); see also 17 Smith v. Murray, 477 U.S. 527, 534, 106 S. Ct. 2661, 2666, 91 L. Ed. 2d 434 (1986) 18 (recognizing “that a federal habeas court must evaluate appellate defaults under the same 19 standards that apply when a defendant fails to preserve a claim at trial.”). “[T]he existence 20 of cause for a procedural default must ordinarily turn on whether the prisoner can show 21 that some objective factor external to the defense impeded counsel’s efforts to comply with 22 the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645, 23 91 L. Ed. 2d 397 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 24 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims of 25 ineffective assistance of counsel, [as such] there is no basis on which to address the merits 26 of his claims.”). In addition to cause, a habeas petitioner must show actual prejudice, 27 meaning that he “must show not merely that the errors . . . created a possibility of prejudice, 28 but that they worked to his actual and substantial disadvantage, infecting his entire trial 1 with error of constitutional dimensions.” Murray, 477 U.S. at 494, 106 S. Ct. at 2648 2 (emphasis in original) (internal quotations omitted). Without a showing of both cause and 3 prejudice, a habeas petitioner cannot overcome the procedural default and gain review by 4 the federal courts. Id., 106 S. Ct. at 2649. 5 The Supreme Court has recognized, however, that “the cause and prejudice standard 6 will be met in those cases where review of a state prisoner’s claim is necessary to correct 7 ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 8 2546, 115 L. Ed. 2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S. Ct. 9 1558, 1572–73, 71 L. Ed. 2d 783 (1982)). “The fundamental miscarriage of justice 10 exception is available ‘only where the prisoner supplements his constitutional claim with a 11 colorable showing of factual innocence.’” Herrara v. Collins, 506 U.S. 390, 404, 113 S. 12 Ct. 853, 862, 122 L. Ed. 2d 203 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 13 477 U.S. 436, 454, 106 S. Ct. 2616, 2627, 91 L. Ed. 2d 364 (1986)). Thus, “‘actual 14 innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas 15 petitioner must pass to have his otherwise barred constitutional claim considered on the 16 merits.” Herrara, 506 U.S. at 404, 113 S. Ct. at 862. Further, in order to demonstrate a 17 fundamental miscarriage of justice, a habeas petitioner must “establish by clear and 18 convincing evidence that but for the constitutional error, no reasonable factfinder would 19 have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). 20 In Arizona, a petitioner’s claim may be procedurally defaulted where he has waived 21 his right to present his claim to the state court “at trial, on appeal or in any previous 22 collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3) (2018). “If an asserted claim is of 23 sufficient constitutional magnitude, the state must show that the defendant ‘knowingly, 24 voluntarily and intelligently’ waived the claim.” Id., 2002 cmt. Neither Rule 32.2. nor the 25 Arizona Supreme Court has defined claims of “sufficient constitutional magnitude” 26 requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 202 Ariz. 27 446, 46 P.3d 1067 (2002). The Ninth Circuit Court of Appeals recognized that this 28 1 assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are better 2 suited to make these determinations.” Cassett, 406 F.3d at 622. 3 4 III. STATUTE OF LIMITATIONS 5 A. Timeliness 6 As a threshold matter, the Court must consider whether Petitioner’s petition is 7 barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921–22 (9th Cir. 8 2002). The AEDPA mandates that a one-year statute of limitations applies to applications 9 for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Section 10 2244(d)(1) provides that the limitations period shall run from the latest of: 11 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 12 (B) the date on which the impediment to filing an application created by 13 the State action in violation of the Constitution or laws of the United States 14 is removed, if the applicant was prevented from filing by such State action; 15 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by 16 the Supreme Court and made retroactively applicable to cases on collateral 17 review; or 18 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 19 28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time 20 during which a properly filed application for State post-conviction or other collateral 21 review with respect to the pertinent judgment or claim is pending shall not be counted 22 toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). 23 Respondents do not dispute the timeliness of Leon’s petition. The Court has independently 24 reviewed the records and finds that the Amended Petition (Doc. 10) is timely pursuant to 25 28 U.S.C. § 2244(d)(1)(A). 26 . . . 27 . . . 28 1 IV. ANALYSIS 2 A. Ground One: Ineffective Assistance of Counsel 3 1. Legal Standards 4 For cases which have been fairly presented to the State court, the Supreme Court 5 elucidated a two-part test for determining whether a defendant could prevail on a claim of 6 ineffective assistance of counsel sufficient to overturn his conviction. See Strickland v. 7 Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, Petitioner must 8 show that counsel’s performance was deficient. Id. at 687, 104 S. Ct. at 2064. “This 9 requires showing that counsel made errors so serious that counsel was not functioning as 10 the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, Petitioner 11 must show that this performance prejudiced his defense. Id. Prejudice “requires showing 12 that counsel’s errors were so serious as to deprive the defendant of a fair trial whose result 13 is reliable.” Id. Ultimately, whether or not counsel’s performance was effective hinges on 14 its reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688, 104 15 S. Ct. at 2065; see also State v. Carver, 160 Ariz. 167, 771 P.2d 1382 (1989) (adopting 16 Strickland two-part test for ineffective assistance of counsel claims). The Sixth 17 Amendment’s guarantee of effective assistance is not meant to “improve the quality of 18 legal representation,” rather it is to ensure the fairness of trial. Strickland, 466 U.S. at 689, 19 104 S. Ct. at 2065. “Thus, ‘[t]he benchmark for judging any claim of ineffectiveness must 20 be whether counsel’s conduct so undermined the proper functioning of the adversarial 21 process that the trial cannot be relied on as having produced a just result.’” Cullen v. 22 Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1403, 179 L. Ed. 2d 557 (2011) (quoting 23 Strickland, 466 at 686) (emphasis and alteration in original). 24 “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ . . 25 . and when the two apply in tandem, review is ‘doubly’ so[.]” Harrington v. Richter, 562 26 U.S. 86, 105, 131 S. Ct. 770, 788, 178 L. Ed. 2d 624 (2011) (citations omitted). Judging 27 counsel’s performance must be made without the influence of hindsight. See Strickland, 28 466 U.S. at 689, 104 S. Ct. at 2065. As such, “the defendant must overcome the 1 presumption that, under the circumstances, the challenged action ‘might be considered 2 sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 3 164, 100 L. Ed. 83 (1955)). Without the requisite showing of either “deficient 4 performance” or “sufficient prejudice,” Petitioner cannot prevail on his ineffectiveness 5 claim. Strickland, 466 U.S. at 700, 104 S. Ct. at 2071. “[T]he question is not whether 6 counsel’s actions were reasonable. The question is whether there is any reasonable 7 argument that counsel satisfied Strickland’s deferential standard.” Gentry v. Sinclair, 705 8 F.3d 884, 899 (9th Cir. 2013) (quoting Harrington, 562 U.S. at 105, 131 S. Ct. at 788) 9 (alterations in original). “The challenger’s burden is to show ‘that counsel made errors so 10 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 11 Sixth Amendment.’” Harrington, 562 U.S. at 104, 131 S. Ct. at 787 (quoting Strickland, 12 466 U.S. at 689, 104 S. Ct. 2052). Accordingly, “[w]e apply the doubly deferential 13 standard to review the state court’s ‘last reasoned decision.’” Vega v. Ryan, 757 F.3d 960, 14 966 (9th Cir. 2014) (citations omitted). “By its terms § 2254(d) bars relitigation of any 15 claim ‘adjudicated on the merits’ in state court, subject only to the exceptions in 2254(d)(1) 16 and (d)(2).” Harrington, 131 U.S. at 98, 131 S. Ct. at 784. As such, Petitioner also bears 17 the burden of showing that the state court applied Strickland to the facts of his case in an 18 objectively unreasonable manner. See Bell v. Cone, 535 U.S. 685, 698–99, 122 S. Ct. 1843, 19 1852, 152 L. Ed. 2d 914 (2002); see also 28 U.S.C. § 2254(d). 20 2. Plea Agreement 21 Petitioner alleges that his trial counsel “convinced [him] that the plea was not in his 22 best interest.” Petition (Doc. 1) at 7. Petitioner raised this claim in his PCR petition. See 23 Answer (Doc. 14), Ariz. Superior Ct., Pima County, Case No. CR20094042-001, Pet.’s 24 Pet. for PCR (Exh. “O”) (Doc. 16). The Arizona Court of Appeals found that “[s]ubstantial 25 evidence support[ed] the [Rule 32] court’s implicit finding that counsel had not advised 26 Leon to reject the plea offer, but instead had advised him to accept it, and [the appellate 27 court] defer[ed] to that finding.” Answer (Doc. 14), Court of Appeals, State of Arizona, 28 Case No. 2 CA-CR 2015-0320-PR, Mem. Decision 6/7/2016 (Exh. “X”) (Doc. 17) at 19 1 (citing State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (Ariz. Ct. App. 1993). 2 At the evidentiary hearing on Petitioner’s Rule 32 petition, Petitioner acknowledged 3 that trial counsel did not pressure him in any way to accept the plea agreement. Answer 4 (Doc. 14), Ariz. Superior Ct., Pima County, Case No. CR20094042-001, PCR Evid. Hr’g 5 Tr. 4/13/2015 (Exh. “MM”) (Doc. 35) at 31–32. Trial counsel testified that he and 6 Defendant had discussions regarding the initial plea agreement, then after his further 7 discussion with the prosecutors, a second plea was offered with the 12.5-year maximum 8 sentence. Id., Exh. “MM” at 51–52. Trial counsel expressed confidence that Petitioner 9 had “a decent chance” of beating the first-degree murder charge, but beyond that no one 10 could predict. Id., Exh. “MM” at 54–55. Trial counsel further testified that he advised 11 Petitioner to accept the plea agreement. Id., Exh. “MM” at 66. The Rule 32 court found 12 trial counsel credible and Petitioner not credible. Answer (Doc. 14), Ariz. Superior Ct., 13 Pima County, Case No. CR20094042-001, Minute Entry—Evidentiary Hearing 4/13/2015 14 (Exh. “P”) (Doc. 16) at 75–76. This was finding was upheld by the appellate court. Id., 15 Exh. “X” at 19. 16 Petitioner cannot show that counsel’s performance was deficient. The record does 17 not support a finding that “counsel’s conduct so undermined the proper functioning of the 18 adversarial process that the trial cannot be relied on as having produced a just result.” 19 Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1403, 179 L. Ed. 2d 557 (2011) 20 (quoting Strickland, 466 at 686) (emphasis and alteration in original). Petitioner has also 21 failed to present any evidence to suggest that the Arizona courts’ decisions as to his 22 ineffective assistance claim regarding trial counsel’s communication of the plea agreement 23 is contrary to or an unreasonable application of clearly established Supreme Court law or 24 based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); see also 25 Bell v. Cone, 535 U.S. 685, 698–99, 122 S. Ct. 1843, 1852, 152 L. Ed. 2d 914 (2002). 26 Accordingly, this Court finds that the Arizona courts did not unreasonably apply clearly 27 established Federal law or unreasonably determine the facts in light of the evidence 28 presented, and Petitioner cannot meet his burden to show prejudice. See Gulbrandson, 738 1 F.3d at 991. Petitioner’s ineffective assistance of counsel claim regarding the alleged 2 failure to advise Petitioner regarding the plea agreement is without merit. 3 3. Earned Release Credits 4 Petitioner asserts that trial counsel failed to advise him regarding his eligibility for 5 eighty-five (85) percent. Petition (Doc. 1) at 9. Petitioner further asserts that if trial counsel 6 had fulfilled this duty, Petitioner “would have probably taken the plea.” Id. The appellate 7 court observed that “Leon present[ed] no evidence and develop[ed] no argument that 8 counsel was mistaken or had misadvised him regarding release provisions under the plea 9 offer.” Answer (Doc. 14), Court of Appeals, State of Arizona, Case No. 2 CA-CR 2015- 10 0320-PR, Mem. Decision 6/7/2016 (Exh. “X”) (Doc. 17) at 19. The appellate court further 11 recognized that “[a]s the trial court pointed out, Leon ‘didn’t research the 85 percent issue’ 12 and, at the Donald hearing, did not raise the issue or ask any questions of the judge[,] . . . 13 [i]nstead . . . Leon answered that he understood the sentencing range available under the 14 plea as well as his potential sentence after trial, and he said he understood that day was his 15 ‘final deadline’ to accept the plea.” Id., Exh. “X” at 19. 16 As such, Petitioner cannot show that counsel’s performance was deficient. The 17 record does not support a finding that “counsel’s conduct so undermined the proper 18 functioning of the adversarial process that the trial cannot be relied on as having produced 19 a just result.” Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1403, 179 L. Ed. 2d 557 20 (2011) (quoting Strickland, 466 at 686) (emphasis and alteration in original). Petitioner 21 has also failed to present any evidence to suggest that the Arizona courts’ decisions as to 22 his ineffective assistance claim regarding trial counsel’s communication about earned 23 release credits is contrary to or an unreasonable application of clearly established Supreme 24 Court law or based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); 25 see also Bell v. Cone, 535 U.S. 685, 698–99, 122 S. Ct. 1843, 1852, 152 L. Ed. 2d 914 26 (2002). Accordingly, this Court finds that the Arizona courts did not unreasonably apply 27 clearly established Federal law or unreasonably determine the facts in light of the evidence 28 presented, and Petitioner cannot meet his burden to show prejudice. See Gulbrandson, 738 1 F.3d at 991. Petitioner’s ineffective assistance of counsel claim regarding the alleged 2 failure to advise Petitioner regarding the earned release credits is without merit. 3 4. Full and Fair Donald Hearing 4 Petitioner asserts that counsel and the trial court “failed to ensure Leon was fully 5 apprised of the circumstances surrounding the plea and the trial [court] failed to vet him.” 6 Petition (Doc. 1) at 10. Petitioner further asserts that “[t]he trial court never really 7 completed the record nor made any final determination that Leon had fully, knowingly 8 been apprised of what was going on before he rejected the plea.” Id. (citations and original 9 alterations omitted). The appellate court observed that “principles regarding waiver of a 10 constitutional right do not apply to the rejection of a plea bargain.” Answer (Doc. 14), 11 Court of Appeals, State of Arizona, Case No. 2 CA-CR 2015-0320-PR, Mem. Decision 12 6/7/2016 (Exh. “X”) (Doc. 17) at 20. The appellate court held that “consistent with Donald, 13 the trial court held an evidentiary hearing and found Leon failed to meet his burden of 14 establishing ineffective assistance of counsel[,] [and] [s]ubstantial evidence supports that 15 determination, and we will not disturb it on review. Id., Exh. “X” at 20 (citations omitted). 16 Petitioner cannot show that counsel’s performance was deficient. The record does 17 not support a finding that “counsel’s conduct so undermined the proper functioning of the 18 adversarial process that the trial cannot be relied on as having produced a just result.” 19 Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1403, 179 L. Ed. 2d 557 (2011) 20 (quoting Strickland, 466 at 686) (emphasis and alteration in original). Petitioner has also 21 failed to present any evidence to suggest that the Arizona courts’ decisions that Petitioner 22 did not relinquish any constitutional rights by declining his plea agreement is contrary to 23 or an unreasonable application of clearly established Supreme Court law or based on an 24 unreasonable determination of the facts. See 28 U.S.C. § 2254(d); see also Bell v. Cone, 25 535 U.S. 685, 698–99, 122 S. Ct. 1843, 1852, 152 L. Ed. 2d 914 (2002). Accordingly, this 26 Court finds that the Arizona courts did not unreasonably apply clearly established Federal 27 law or unreasonably determine the facts in light of the evidence presented, and Petitioner 28 cannot meet his burden to show prejudice. See Gulbrandson, 738 F.3d at 991. Petitioner’s 1 ineffective assistance of counsel claim regarding the alleged failure regarding a full and 2 fair Donald hearing is without merit. 3 5. Continuance of Donald hearing 4 Petitioner asserts that trial counsel “performed ineffectively by not actually moving 5 for an extension orally or by motion.” Petition (Doc. 1) at 10. The appellate court observed 6 that “Leon did not argue, in his petition below or at the evidentiary hearing, that his attorney 7 was ineffective in failing to seek an extension of time to consider the offer or a continuance 8 of the Donald hearing[.]” Answer (Doc. 14), Court of Appeals, State of Arizona, Case No. 9 2 CA-CR 2015-0320-PR, Mem. Decision 6/7/2016 (Exh. “X”) (Doc. 17) at 19. 10 As such, the claim would now be precluded and meets the technical requirements 11 for exhaustion. Ariz. R. Crim. P. 32.2(a)(3); see also Baldwin v. Reese, 541 U.S. 27, 29, 12 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the 13 prisoner must do so “in each appropriate state court”). Therefore, Petitioner’s claim is 14 procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 15 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the 16 court to which the petitioner would be required to present his claims in order to meet the 17 exhaustion requirement would now find the claims procedurally barred”). 18 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 19 courts are prohibited from subsequent review unless the petitioner can show cause and 20 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 21 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred 22 federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner has 23 not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 24 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner “must show not merely 25 that the errors . . . created a possibility of prejudice, but that they worked to his actual and 26 substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) 27 (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 28 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally 1 defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits 2 of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence 3 that but for the constitutional error, no reasonable factfinder would have found [him] guilty 4 of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, Petitioner has failed to 5 meet the cause and prejudice standard or demonstrate a fundamental miscarriage of justice. 6 See Coleman, 501 U.S. at 748, 111 S.Ct. at 2564 (citations and quotations omitted). 7 In an effort to overcome this procedural bar, Petitioner relies on Martinez v. Ryan, 8 566 U.S. 1, 132 S. Ct. 1309, 192 L. Ed. 2d 272 (2012) to urge that PCR counsel was 9 ineffective for failing to raise the claim. Petition (Doc. 1) at 11. “In Martinez . . . and 10 Trevino v. Thaler, 569 U.S. 413, 133 S. Ct. 1911, 185 L.Ed.2d 1044 (2013), [the Supreme] 11 Court announced a narrow exception to Coleman’s7 general rule.” Davila v. Davis, — U.S. 12 —, 137 S. Ct. 2058, 2062, 198 L. Ed. 2d 603 (2017). “That exception treats ineffective 13 assistance by a prisoner’s state postconviction counsel as cause to overcome the default of 14 a single claim—ineffective assistance of trial counsel—in a single context—where the 15 State effectively requires a defendant to bring that claim in state postconviction 16 proceedings rather than on direct appeal.” Id. at 2062–63. The Supreme Court observed 17 that “[t]hese rules [under which a prisoner may establish cause to excuse a procedural 18 default] reflect an equitable judgment that only where a prisoner is impeded or obstructed 19 in complying with the State’s established procedures will a federal habeas court excuse the 20 prisoner from the usual sanction of default.” Martinez, 566 U.S. at 13, 132 S.Ct. at 1318 21 (citations omitted). “In applying this standard, Martinez made clear that a reviewing court 22 must determine whether the petitioner’s attorney in the first collateral proceeding was 23 ineffective under Strickland, whether the petitioner’s claim of ineffective assistance of trial 24 counsel is substantial, and whether there is prejudice.” Sexton v. Cozner, 679 F.3d 1150, 25 1159 (9th Cir. 2012) (citing Martinez, 132 S.Ct. at 1321). 26 Petitioner’s ineffective assistance of trial counsel claim is not substantial. 27

28 7 Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). 1 “Discretion over plea bargaining is a core prosecutorial power[.]” State v. Donald, 198 2 Ariz. 406, 417, 10 P.3d 1193, 1204 (Ariz. Ct. App. 2000). During the Donald hearing the 3 prosecutor made clear that day was the final deadline and a plea was unlikely to be re- 4 offered in the future unless something dramatically changed. Answer (Doc. 14), Ariz. 5 Superior Ct., Pima County, Case No. CR20094042-001, Donald Hr’g Tr. 10/4/2010 (Exh. 6 “Z”) (Docs. 17, 18) at 32. As such, any request for an extension of time by trial counsel 7 would have been futile. Petitioner’s claim for ineffective assistance of trial counsel is not 8 substantial and he is not entitled to Martinez relief. 9 6. Conflict of Interest 10 Petitioner asserts that “[f]ormer defense counsel . . . created a conflict of interest 11 between herself and Leon by assisting her client . . . Elvin Logan, present fabricated 12 evidence against Leon.” Petition (Doc. 1) at 11. Petitioner further alleges that prior counsel 13 helped Logan “secure/steal the factuals [sic] about Leon’s case.” Id. The appellate court 14 acknowledged that “[a] defendant thus has a constitutional right to conflict-free counsel.” 15 Answer (Doc. 14), Ariz. Ct. of Appeals, Case Nos. 2 CA-CR 2011-0395, Mem. Decision 16 12/3/2013 (Exh. “I”) (Doc. 15) at 56. The appellate court found that “[g]iven Leon was 17 represented by non-conflicted trial counsel and was no worse off for his former counsel’s 18 conflict, [they] [could] not say Leon’s constitutional right to effective representation was 19 infringed or that the trial court abused its discretion by allowing Elvin’s testimony.” Id., 20 Exh. “I” at 57. The court of appeals further noted that “a breach of an ethical standard does 21 not necessarily make out a denial of the Sixth Amendment guarantee of assistance of 22 counsel . . . [and] [because] Sweeney’s professional breach had no adverse impact on 23 Leon’s trial and that finding is supported by the record . . . the trial court did not err in 24 permitting Elvin to testify.” Id., Exh. “I” at 58. 25 As such, Petitioner cannot show that his former counsel’s actions prejudiced him. 26 The prejudice prong of Strickland “requires showing that counsel’s errors were so serious 27 as to deprive the defendant of a fair trial whose result is reliable.” See Strickland v. 28 Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The 1 record does not support a finding that “counsel’s conduct so undermined the proper 2 functioning of the adversarial process that the trial cannot be relied on as having produced 3 a just result.” Cullen v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1403, 179 L. Ed. 2d 557 4 (2011) (quoting Strickland, 466 at 686) (emphasis and alteration in original). Petitioner 5 has also failed to present any evidence to suggest that the Arizona courts’ decisions as to 6 his ineffective assistance claim regarding prior counsel’s representation of Logan is 7 contrary to or an unreasonable application of clearly established Supreme Court law or 8 based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); see also 9 Bell v. Cone, 535 U.S. 685, 698–99, 122 S. Ct. 1843, 1852, 152 L. Ed. 2d 914 (2002). 10 Accordingly, this Court finds that the Arizona courts did not unreasonably apply clearly 11 established Federal law or unreasonably determine the facts in light of the evidence 12 presented, and Petitioner cannot meet his burden to show prejudice. See Gulbrandson, 738 13 F.3d at 991. Petitioner’s ineffective assistance of counsel claim regarding prior counsel’s 14 representation of Logan is without merit. 15 B. Ground Two: Due Process Claims 16 1. Preclusion of Logan’s Testimony 17 Petitioner asserts that “the trial court abused its discretion/erred by denying his 18 motion to preclude the testimony of [Elvin Logan].” Petition (Doc. 1) at 17. This issue is 19 subsumed under Petitioner’s ineffective assistance of prior counsel claim. See Section 20 IV.A.5., supra. For the reasons discussed above, this claim lacks merit and will be denied. 21 2. Prosecutorial Misconduct 22 Petitioner alleges that “[t]he county attorney also shares the burden of helping create 23 or turning a blind-eye to known misconduct/conflict involving [prior counsel], [Elvin 24 Logan], and Leon.” Petition (Doc. 1) at 17. The appellate court found that “dismissal of 25 an indictment with prejudice due to prosecutorial misconduct occurs only ‘when the 26 evidence is irrevocably tainted or there exists a pattern of misconduct that is prevalent or 27 continuous.’” Answer (Doc. 14), Ariz. Ct. of Appeals, Case Nos. 2 CA-CR 2011-0395, 28 Mem. Decision 12/3/2013 (Exh. “I”) (Doc. 15) at 54 (citing State v. Young, 149 Ariz. 580, 1 585, 720 P.2d 965, 970 (Ariz. Ct. App. 1986); then citing State v. Pecard, 196 Ariz. 371, 2 ¶ 39, 998 P.2d 453, 461 (Ariz. Ct. App. 1999)). The court of appeals further observed that 3 it “need not conduct that analysis, however, because the trial court expressly found no 4 wrongdoing on the part of the prosecutors” and the trial court did not abuse its discretion. 5 Answer (Doc. 14), Exh. “I” at 54. 6 Federal courts “will not review a question of federal law decided by a state court if 7 the decision of that court rests on a state law ground that is independent of the federal 8 question and adequate to support the judgment.” Id., 501 U.S. at 728, 111 S. Ct. at 2254. 9 This is true whether the state law basis is substantive or procedural. Id. (citations omitted). 10 Such claims are considered procedurally barred from review. See Wainwright v. Sykes, 11 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). 12 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 13 courts are prohibited from subsequent review unless the petitioner can show cause and 14 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S. Ct. 1060, 1068, 103 15 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred 16 federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner has 17 not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 18 478, 494, 106 S. Ct. 2639, 2648, 91 L. Ed. 2d 397 (1986) (Petitioner “must show not merely 19 that the errors . . . created a possibility of prejudice, but that they worked to his actual and 20 substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) 21 (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 22 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally 23 defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits 24 of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence 25 that but for the constitutional error, no reasonable factfinder would have found [him] guilty 26 of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, Petitioner has failed to 27 meet the cause and prejudice standard or demonstrate a fundamental miscarriage of justice. 28 See Coleman, 501 U.S. at 748, 111 S. Ct. at 2564 (citations and quotations omitted). 1 Accordingly, Petitioner’s claim is denied. 2 3. Motion for New Trial 3 Petitioner alleges that his “right to a fair trial and impartial jury” and rights to due 4 process were violated when the trial court denied his motion to preclude gang affiliation 5 testimony and juror misconduct. Petition (Doc. 1) at 17–20. As discussed in Section II.B., 6 supra, prior to bringing a claim to federal court, a habeas petitioner must first present all 7 claims to the state court. Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 8 L.Ed.2d 379 (1982). The fair presentation requirement mandates that a state prisoner must 9 alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 10 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner’s 11 assertion that his claim had been “fairly presented” because his brief in the state appeals 12 court did not indicate that “he was complaining about a violation of federal law” and the 13 justices having the opportunity to read a lower court decision addressing the federal claims 14 was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999), cert. denied, 15 529 U.S. 1009 (2000) (holding that petitioner failed to exhaust federal due process issue in 16 state court because petitioner presented claim in state court only on state grounds). Merely 17 labeling a claim “federal” or making a passing reference to the United States Constitution 18 does not constitute “fair presentment.” See Baldwin v. Reese, 541 U.S. at 33, 124 S.Ct. at 19 1351; see also Duncan v. Henry, 513 U.S. 364, 365–66 115 S.Ct. 887, 888, 130 L.Ed.2d 20 865 (1995) (“If state courts are to be given the opportunity to correct alleged violations of 21 prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are 22 asserting claims under the United States Constitution”). Moreover, Petitioner cannot 23 expect the state court to read beyond the four corners of the petition to meet the fair 24 presentation requirement. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 25 L.Ed.2d 64 (2004) (rejecting petitioner’s assertion that his claim had been “fairly 26 presented” because his brief in the state appeals court did not indicate that “he was 27 complaining about a violation of federal law” and the justices having the opportunity to 28 read a lower court decision addressing the federal claims was not fair presentation); Hiivala 1 v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal 2 due process issue in state court because petitioner presented claim in state court only on 3 state grounds). 4 Here, Petitioner presented his claims regarding the denial of his motion for a new 5 trial as a violation of the Arizona state law and procedural rules without reference to the 6 Constitution of the United States. See Answer (Doc. 14), Ariz. Ct. of Appeals, Case No. 2 7 CA-CR 2012-0305, Appellant’s Opening Br. (Exh. “H”) (Doc. 15) at ¶¶ 23–31. As such, 8 the claims would now be precluded and meet the technical requirements for exhaustion. 9 Ariz. R. Crim. P. 32.2(a)(3) (2018); see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 10 1347, 1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the prisoner 11 must do so “in each appropriate state court”). Therefore, Petitioner’s claims are 12 procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 13 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the 14 court to which the petitioner would be required to present his claims in order to meet the 15 exhaustion requirement would now find the claims procedurally barred”). 16 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 17 courts are prohibited from subsequent review unless the petitioner can show cause and 18 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 19 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred 20 federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner has 21 not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 22 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner “must show not merely 23 that the errors . . . created a possibility of prejudice, but that they worked to his actual and 24 substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) 25 (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 26 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally 27 defaulting his claims[,] . . . [and as such,] there is no basis on which to address the merits 28 of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence 1 that but for the constitutional error, no reasonable factfinder would have found [him] guilty 2 of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, Petitioner has failed to 3 meet the cause and prejudice standard or demonstrate a fundamental miscarriage of justice. 4 See Coleman, 501 U.S. at 748, 111 S.Ct. at 2564 (citations and quotations omitted). 5 Accordingly, Petitioner’s claims are denied. 6 4. Juror No. 9 7 Petitioner alleges that his “right to a fair trial and impartial jury” and rights to due 8 process were violated based upon alleged misconduct by Juror Nine. Petition (Doc. 1) at 9 18–19. The appellate court rejected this claim because “Leon never asked the trial court 10 to do so when the court questioned Juror Nine, nor did he question her on the subject when 11 he was given the opportunity.” Answer (Doc. 14), Ariz. Ct. of Appeals, Case Nos. 2 CA- 12 CR 2011-0395, Mem. Decision 12/3/2013 (Exh. “I”) (Doc. 15) at 63. The court of appeals 13 further found that “Juror Nine told the court she had no concerns for her safety, thus it 14 would have been illogical for the court to ask her if she had shared concerns she denied 15 having.” Id., Exh. “I” at 63. Additionally, “with the stipulation of counsel, the juror 16 became an alternate and was excused prior to the jury’s deliberations.” Id., Exh. “I” at 63. 17 “The Constitution ‘does not require a new trial every time a juror has been placed 18 in a potentially compromising situation . . . [because] it is virtually impossible to shield 19 jurors from every contact or influence that might theoretically affect their vote.” Rushen 20 v. Spain, 464 U.S. 114, 118, 104 S. Ct. 453, 455, 78 L. Ed. 2d 267 (1983). The record does 21 not support a finding that Petitioner’s jury was compromised by any improper outside 22 influence. As such, his claim is denied. 23 24 V. CONCLUSION 25 Based upon the foregoing, the Court finds that Petitioner Joshua Michael Leon’s 26 Petition (Doc. 1) is without merit and shall be denied. 27 Accordingly, IT IS HEREBY ORDERED that: 28 1) Petitioner Joshua Michael Leon’s Petition Pursuant to 28 U.S.C. § 2254 for 1 || a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) □□□□□□□□□□□□ (Doc. 1) is DENIED; 3 2) A certificate of appealability is DENIED, because reasonable jurists would not find the Court’s ruling debatable. See 28 U.S.C. § 2253; 5 3) This matter is DISMISSED with prejudice; 6 4) The Clerk of Court shall enter judgment and close its file in this matter. 7 8 Dated this Ist day of June, 2020.

10 Honorable Bruce G. Macdonald ll United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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