1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA
10 Brandon Kyle Mayol, No. CV 23–08092–PCT–DWL (ESW)
11 Petitioner, REPORT AND RECOMMENDATION 12 v.
13 Ryan Thornell, et al.,
14 Respondents.
17 TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT 18 JUDGE: 19 Pending before the Court is Brandon Kyle Mayol’s (“Petitioner”) “Petition under 20 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). After reviewing 21 the parties’ briefing (Docs. 1, 19, 27), the undersigned recommends that the Court deny 22 habeas relief without an evidentiary hearing.1 23
24 1 “[I]f the record refutes the [habeas] applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” 25 Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (a hearing is not required if the allegations would not entitle the petitioner to relief under Section 2254(d)); Totten v. Merkle, 137 F.3d 26 1172, 1176 (9th Cir. 1998) (“[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record.”) (emphasis in original). 27 The undersigned finds that the record is adequately developed. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (finding “a district court is not obligated to 28 hold evidentiary hearings to further develop the factual record” when the record is “amply 1 I. BACKGROUND 2 In March 2018, Petitioner pled guilty in the Superior Court of Arizona in and for 3 Mohave County to Attempted Sexual Exploitation of a Minor, a class 3 felony and 4 dangerous crime against children. (Doc. 19-1 at 28-34). The trial court suspended the 5 imposition of sentence and placed Petitioner on lifetime supervised probation. (Id. at 52- 6 54). 7 In April 2020, Petitioner’s probation officer petitioned to revoke his probation, 8 alleging Petitioner had violated several probation conditions. (Id. at 65-66). After a 9 contested violation hearing in September 2020, the trial court found in favor of the State. 10 (Id. at 73-75). It revoked Petitioner’s probation and sentenced Petitioner to 6.5 years in 11 prison. (Id. at 100-03). The Arizona Court of Appeals affirmed the revocation of 12 Petitioner’s probation and the imposed sentence. (Id. at 165-69). Petitioner did not seek 13 further review by the Arizona Supreme Court. (Id. at 171). 14 In October 2021, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Id. 15 at 179-81). The trial court appointed counsel, who could find not find any colorable PCR 16 claims to raise. (Id. at 187-95). In March 2022, Petitioner filed a pro se PCR Petition. (Id. 17 at 200-25). The trial court summarily dismissed the PCR petition in July 2022, finding that 18 Petitioner failed to present a colorable claim. (Doc. 19-2 at 2-3). Petitioner moved for 19 reconsideration, which the trial court denied. (Id. at 5-9, 12). In February 2023, the Arizona 20 Court of Appeals granted review but denied relief. (Id. at 49-52). The Arizona Supreme 21 Court denied Petitioner’s request for further review on May 10, 2023. (Id. at 76). 22 Petitioner timely initiated this federal habeas proceeding on May 23, 2023. (Doc. 23 1). The Petition raises four grounds for relief. Petitioner’s fourth ground for relief contains 24 two sub-claims, enumerated by Respondents and herein as Ground 4(a) and Ground 4(b). 25 Respondents filed a Limited Answer (Doc. 19) on December 22, 2023. Petitioner filed a 26 developed” and explaining that “[d]istrict courts have limited resources (especially time), 27 and to require them to conduct further evidentiary hearings when there is already sufficient evidence in the record to make the relevant determination is needlessly wasteful”). 28 1 Reply (Doc. 27) on March 21, 2024. As discussed below, the undersigned concurs with 2 Respondents that Grounds One, Three, and 4(a) are procedurally defaulted without excuse. 3 The undersigned finds that 28 U.S.C. § 2254(d) bars relief on Grounds Two and 4(b) 4 because Petitioner has failed to show that the state courts’ denial of those claims is (i) 5 contrary to or an unreasonable application of Supreme Court precedent or (ii) based on an 6 unreasonable determination of the facts. 7 II. GROUNDS ONE, THREE, AND 4(a) ARE PROCEDURALLY DEFAULTED 8 A. Legal Standards 9 1. Exhaustion-of-State-Remedies Doctrine 10 It is well-settled that a “state prisoner must normally exhaust available state 11 remedies before a writ of habeas corpus can be granted by the federal courts.” Duckworth 12 v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“It 13 has been settled since Ex parte Royall, 117 U.S. 241, 6 S. Ct. 734, 29 L.Ed. 868 (1886), 14 that a state prisoner must normally exhaust available state judicial remedies before a federal 15 court will entertain his petition for habeas corpus.”). The rationale for the doctrine relates 16 to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy 17 is designed to give a state the initial opportunity to review and correct alleged federal rights 18 violations of its state prisoners. Id. In the U.S. Supreme Court’s words, “it would be 19 unseemly in our dual system of government for a federal district court to upset a state court 20 conviction without an opportunity to the state courts to correct a constitutional violation.” 21 Darr v. Burford, 339 U.S. 200, 204 (1950); see also Reed v. Ross, 468 U.S. 1, 11 (1984) 22 (“[W]e have long recognized that in some circumstances considerations of comity and 23 concerns for the orderly administration of criminal justice require a federal court to forgo 24 the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted). 25 The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that 26 a habeas petition may not be granted unless the petitioner has (i) “exhausted” the available 27 state court remedies; (ii) shown that there is an “absence of available State corrective 28 process”; or (iii) shown that “circumstances exist that render such process ineffective to 1 protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). 2 Case law has clarified that in order to “exhaust” state court remedies, a petitioner’s 3 federal claims must have been “fully and fairly presented” in state court. Woods v. Sinclair, 4 764 F.3d 1109, 1129 (9th Cir. 2014). To “fully and fairly present” a federal claim, a 5 petitioner must present both (i) the operative facts and (ii) the federal legal theory on which 6 his or her claim is based. This test turns on whether a petitioner “explicitly alerted” a state 7 court that he or she was making a federal constitutional claim. Galvan v. Alaska 8 Department of Corrections, 397 F.3d 1198, 1204–05 (9th Cir. 2005). “It is not enough that 9 all the facts necessary to support the federal claim were before the state courts or that a 10 somewhat similar state law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) 11 (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as 12 modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be “explicit either 13 by citing federal law or the decisions of federal courts, even if the federal basis is self- 14 evident or the underlying claim would be decided under state law on the same 15 considerations that would control resolution of the claim on federal grounds”). 16 2. Procedural Default Doctrine 17 If a claim was presented in state court, and the court expressly invoked a state 18 procedural rule in denying relief, then the claim is procedurally defaulted in a federal 19 habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even 20 if a claim was not presented in state court, a claim may be procedurally defaulted in a 21 federal habeas proceeding if the claim would now be barred in state court under the state’s 22 procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). 23 Similar to the rationale of the exhaustion doctrine, the procedural default doctrine 24 is rooted in the general principle that federal courts will not disturb state court judgments 25 based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 26 (2004). A habeas petitioner who has failed to meet the state’s procedural requirements for 27 presenting his or her federal claims has deprived the state courts of an opportunity to 28 address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 1 (1991). 2 As alluded to above, a procedural default determination requires a finding that the 3 relevant state procedural rule is an adequate and independent rule. See id. at 729-30. An 4 adequate and independent state rule is clear, consistently applied, and well-established at 5 the time of a petitioner’s purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 6 (9th Cir. 2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 7 1996). An independent state rule cannot be interwoven with federal law. See Ake v. 8 Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state 9 procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). 10 B. Petitioner Failed to Fairly Present Grounds One, Three, and 4(a) to the State Courts 11 In 2019, law enforcement received a tip from the Internet Crimes Against Children 12 (“ICAC”) task force that an IP address associated with Petitioner’s residence had been used 13 to upload child pornography to Skype. (Doc. 19-2 at 88, 91, 102, 109-11). This tip 14 triggered a search of Petitioner’s home, during which Petitioner admitted to his probation 15 officer that he had been viewing child pornography. The ICAC tip report was admitted 16 into evidence at Petitioner’s September 2020 probation violation hearing. 17 Ground One of the Petition alleges that the trial court violated Petitioner’s 18 Fourteenth Amendment rights by admitting the ICAC tip report into evidence at the 19 probation violation hearing, which Petitioner argues was inadmissible hearsay. (Doc. 1 at 20 6). Ground Three further challenges the admission of the ICAC tip report on the basis that 21 “reasonable evidence did not support the trial court’s finding that the report was reliable 22 and authentic.” (Id. at 8).2 In Ground 4(a), Petitioner argues that his defense counsel was 23
24 2 Respondents correctly assert in their Limited Answer (Doc. 19 at 12 n. 4) that a 25 district court on habeas review cannot reexamine state court determinations on state law questions. “The correctness of a state evidentiary ruling presenting only an issue of state 26 law is not cognizable on federal habeas corpus review.” Roettgen v. Ryan, 639 F. Supp. 2d 1053, 1063 (C.D. Cal. 2009). A habeas petitioner may not “transform a state-law issue 27 into a federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996); see also Windham v. Merkle, 163 F.3d 1092, 1103 (9th 28 Cir. 1998) (“We have no authority to review alleged violations of a state’s evidentiary rules 1 ineffective for failing to argue that Petitioner did not waive his claim that his statements to 2 his probation officer were involuntary. (Id. at 9). 3 1. Grounds One and Three 4 After reviewing the state court record, the undersigned finds that Petitioner did not 5 fairly present the federal bases of Grounds One and Three to the Arizona Court of Appeals. 6 In his Opening Brief on appeal, Petitioner argued that the trial court erred by admitting the 7 ICAC tip report because it was “hearsay not within any exception.” (Doc. 19-1 at 125). 8 Petitioner further contended that “there was no evidence that [the] Tip Report was authentic 9 other than the officer’s testimony” and that it “was not necessary to admit the Tip Report, 10 whose author could not be cross examined about how he collected and verified his 11 information.” (Id. at 124, 125-26). However, Petitioner relied exclusively on state law and 12 did not alert the state court that he was asserting federal constitutional claims. (Id.). 13 A federal claim is not exhausted merely because its factual basis was presented to 14 the state courts on state law grounds—a “mere similarity between a claim of state and 15 federal error is insufficient to establish exhaustion.” Shumway v. Payne, 223 F.3d 982, 988 16 (9th Cir. 2000) (quotations omitted). Even when a claim’s federal basis is “self-evident,” 17 or the claim would have been decided on the same considerations under state or federal 18 law, a petitioner must still present the federal claim to the state courts explicitly, “either by 19 citing federal law or the decisions of federal courts.” Lyons v. Crawford, 232 F.3d 666, 668 20 (9th Cir. 2000) (quotations omitted), amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin 21 v. Reese, 541 U.S. 27, 32 (2004) (claim not fairly presented when state court “must read 22 beyond a petition or a brief . . . that does not alert it to the presence of a federal claim” to 23
24 in a federal habeas proceeding. Our role is limited to determining whether the admission of evidence rendered the trial so fundamentally unfair as to violate due process.”) (internal 25 citation omitted); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state court determinations on state-law grounds.”); 26 Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993) (“[M]ere error of state law, one that does not rise to the level of a constitutional violation, may not be corrected on federal habeas.”); 27 Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”). 28 1 discover implicit federal claim). Because Petitioner failed to fairly present Grounds One 2 and Three to the state courts, the undersigned finds that Grounds One and Three are 3 unexhausted. 4 2. Ground 4(a) 5 As to Ground 4(a) of the Petition, Respondents correctly observe that Petitioner 6 raised a different ineffective assistance of counsel claim in his PCR proceeding. (Doc. 19 7 at 15). Petitioner argued in his PCR Petition and Petition for Review that his defense 8 counsel was ineffective for failing to seek a voluntariness/suppression hearing regarding 9 Petitioner’s confession. (Doc. 19-1 at 211, 221-22, Doc. 19-2 at 22). Petitioner did not 10 argue the specific allegation of deficient performance in Ground 4(a) that counsel was 11 ineffective for failing to argue that Petitioner did not waive his claim that his statements 12 were involuntary. “[I]neffective assistance claims are not fungible, but are instead highly 13 fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” 14 Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). “As a general matter, each 15 ‘unrelated alleged instance [ ] of counsel’s ineffectiveness’ is a separate claim for purposes 16 of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (alteration in 17 original). The undersigned finds that Ground 4(a) is unexhausted. 18 C. Grounds One, Three, and 4(a) are Procedurally Defaulted 19 Petitioner can no longer return to state court to properly exhaust Grounds One, 20 Three, and 4(a). Under Arizona Rules of Criminal Procedure 32.2 and 32.4(b), the claims 21 would be found precluded and untimely if Petitioner attempted to raise them in a new post- 22 conviction relief proceeding. See Ariz. R. Crim. P. 32.2(a) (precluding claims based on 23 grounds that could have been raised in a previous proceeding); Ariz. R. Crim. P. 32.4(b) 24 (setting time limits for filing notice of post-conviction relief). Arizona courts have 25 consistently applied Rules 32.2(a) and 32.4(b) to find claims waived, and the Ninth Circuit 26 has consistently held that these rules are adequate and independent state grounds for 27 denying relief. See, e.g., Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (finding 28 Arizona’s preclusion rule consistently applied and an adequate and independent state 1 ground); Stewart v. Smith, 536 U.S. 856, 860 (2002) (per curiam) (preclusion of issues for 2 failure to present them at an earlier proceeding under Arizona Rule of Criminal Procedure 3 32.2(a)(3) “are independent of federal law because they do not depend upon a federal 4 constitutional ruling on the merits”); Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) 5 (“Arizona Rule of Criminal Procedure 32.2(a)(3) is independent of federal law and has 6 been regularly and consistently applied, so it is adequate to bar federal review of a claim.”); 7 Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014) (“[A] claim that has been ‘waived’ 8 under [Ariz. R. Crim. P. 32.2(a)(3)] is procedurally defaulted and therefore barred from 9 federal court consideration, absent a showing of cause and prejudice or fundamental 10 miscarriage of justice.”) (quoting Poland v. Stewart, 169 F.3d 573, 578 (9th Cir. 1998)). 11 Because adequate and independent state rules would preclude Petitioner from 12 returning to state court to exhaust Grounds One, Three, and 4(a), the undersigned finds that 13 the claims are procedurally defaulted.3 See Beaty, 303 F.3d at 987 (a claim is procedurally 14 defaulted “if the petitioner failed to exhaust state remedies and the court to which the 15 petitioner would be required to present his claims in order to meet the requirement would 16 now find the claims procedurally barred”) (quoting Coleman, 501 U.S. at 735 n.1)). 17 D. Petitioner’s Procedural Defaults are Not Excused 18 The merits of a habeas petitioner’s procedurally defaulted claims are to be reviewed 19 if the petitioner (i) shows cause for the default and actual prejudice as a result of the alleged 20 violation of federal law or (ii) shows that the failure to consider the federal claim will result 21 in a fundamental miscarriage of justice. McKinney v. Ryan, 730 F.3d 903, 913 (9th Cir. 22 2013). 23 In order to establish cause for a procedurally defaulted claim, “a petitioner must 24 demonstrate that the default is due to an external objective factor that cannot fairly be 25 attributed to him.” Smith v. Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007) (internal
26 3 This type of procedural default is often referred to as “technical” exhaustion 27 because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has 28 defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available’ to him.”). 1 quotation marks and citation omitted). Under Ninth Circuit precedent, Petitioner’s status 2 as an inmate with limited legal resources does not constitute cause. See Hughes v. Idaho 3 State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner’s lack 4 of legal assistance did not amount to cause to excuse a procedural default); Tacho v. 5 Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner’s arguments concerning his 6 mental health and reliance upon jailhouse lawyers did not constitute cause). 7 The undersigned finds that Petitioner has failed to establish that his procedural 8 defaults are “due to an external objective factor that cannot fairly be attributed to him.” 9 Smith, 510 F.3d at 1146 (internal quotation marks and citation omitted). Petitioner has 10 therefore failed to show cause for his procedural defaults. Where a petitioner fails to 11 establish cause, the Court need not consider whether the petitioner has shown actual 12 prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 13 527, 533 (1986). Accordingly, the undersigned finds that Petitioner has not satisfied the 14 “cause and prejudice” exception to excuse his procedural defaults. 15 To satisfy the fundamental miscarriage of justice exception, Petitioner must show 16 that “a constitutional violation has resulted in the conviction of one who is actually 17 innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995). To the extent Petitioner may assert 18 that he is innocent, Petitioner has failed to satisfy his burden of producing “new reliable 19 evidence” of actual innocence. See id. at 324 (“To be credible, such a claim requires 20 petitioner to support his allegations of constitutional error with new reliable evidence— 21 whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 22 physical evidence.”). The undersigned recommends that the Court find that Petitioner 23 cannot pass through the actual innocence/Schlup gateway to excuse his procedural defaults. 24 See Smith v. Hall, 466 F. App’x 608, 609 (9th Cir. 2012) (explaining that to pass through 25 the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming 26 forward with ‘new reliable evidence’”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 27 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable 28 evidence . . . that was not presented at trial.’”) (quoting Schlup, 513 U.S. at 324). 1 Consequently, the undersigned recommends that the Court dismiss Grounds One, Three, 2 and 4(a). III. GROUNDS TWO AND 4(b): HABEAS RELIEF IS BARRED 3 UNDER 28 U.S.C. § 2254(d) 4 A. Legal Standards Governing Habeas Review 5 In reviewing a habeas petitioner’s claims, the Anti-Terrorism and Effective Death 6 Penalty Act of 1996 (“AEDPA”) requires federal courts to defer to the last reasoned state 7 court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 8 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show 9 that the state court’s adjudication of his or her claims either: 10 1. resulted in a decision that was contrary to, or involved 11 an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the 12 United States; or 2. resulted in a decision that was based on an unreasonable 13 determination of the facts in light of the evidence 14 presented in the State court proceeding. 15 28 U.S.C. § 2254(d)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 16 132 S. Ct. 2148, 2151 (2010); Harrington v. Richter, 562 U.S. 86, 99 (2011). 17 As to relief under 28 U.S.C. § 2254(d)(1), “clearly established federal law” refers 18 to the holdings of the U.S. Supreme Court’s decisions applicable at the time of the relevant 19 state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 20 U.S. 43, 47 (2010). A state court decision is “contrary to” such clearly established federal 21 law if the state court (i) “applies a rule that contradicts the governing law set forth in [U.S. 22 Supreme Court] cases” or (ii) “confronts a set of facts that are materially indistinguishable 23 from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different 24 from [U.S. Supreme Court] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003) 25 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “The ‘unreasonable 26 application’ clause of § 2254(d)(1) applies when the ‘state court identifies the correct 27 governing legal principle from [the Supreme Court’s] decisions but unreasonably applies 28 that principle to the facts of the prisoner’s case.’” Holland v. Jackson, 542 U.S. 649, 652 1 (2004) (quoting Williams, 529 U.S. at 413). 2 As to relief under 28 U.S.C. § 2254(d)(2), factual determinations by state courts are 3 presumed correct unless the petitioner can show by clear and convincing evidence to the 4 contrary. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) 5 (“Factual determinations by state courts are presumed correct absent clear and convincing 6 evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state 7 court and based on a factual determination will not be overturned on factual grounds unless 8 objectively unreasonable in light of the evidence presented in the state-court proceeding, § 9 2254(d)(2)[.]”). 10 B. Ground Two 11 Ground Two of the Petition pertains to the admission of Petitioner’s confession at 12 the September 2020 probation violation hearing. At the hearing, Petitioner’s probation 13 officer testified that she went to Petitioner’s home in October 2019 to search for 14 unauthorized devices or material. (Doc. 19-2 at 132, 134). The officer testified that when 15 she asked Petitioner if he had been using anything to access the internet, Petitioner admitted 16 he had been looking at adult and child pornography on his phone and Xbox for the past 17 couple months. (Id. at 134-36). The officer testified that when Petitioner was having 18 difficulty articulating what websites he had visited, the officer asked Petitioner if he would 19 feel more comfortable writing it down rather than telling her verbally. (Id. at 136). 20 Petitioner then wrote a statement detailing the kinds of child pornography he had been 21 viewing. (Id.; Doc. 19-1 at 87-88). The trial court admitted the written statement into 22 evidence over the objection of Petitioner’s defense counsel. (Doc. 19-2 at 139). 23 Petitioner testified at the hearing that he felt pressured to make the inculpatory 24 statements and that they were partly false. (Id. at 189-92). Petitioner testified: “I felt 25 obligated to tell [the probation officer] what I believe she needed to hear in order for it to 26 just be correct, I guess.” (Id. at 191). Defense counsel asked Petitioner: “All right. So your 27 testimony, then, is that’s not true?” (Id.). Petitioner responded: “It’s, like, half true, half 28 not. I don’t know how to really put that.” (Id.). When defense counsel asked if Petitioner 1 was intimidated by the probation officer, Petitioner stated: “I always feel intimidated by a 2 presence, but not by her personally. An authority presence, sorry.” (Id.). Petitioner further 3 testified that due to his intellectual disabilities, it is “easy” for people to get him to say 4 things and that he will sometimes go along with people when he feels under pressure. (Id. 5 at 192). Petitioner’s father also testified that Petitioner has cognitive limitations. (Id. at 6 170-74). 7 After the parties concluded their presentations, the trial court recounted that 8 Petitioner “admitted, at least on the stand, that it is partially true what he wrote in his 9 statement” and that Petitioner “didn’t clarify what was half true. He didn’t clarify what was 10 correct and what was incorrect.” (Id. at 208). The trial court implicitly found that the 11 probation officer’s testimony was more credible. It ruled that the State proved by a 12 preponderance of the evidence that Petitioner violated certain probation conditions. (Id. at 13 209-10). 14 In Ground Two of the Petition, Petitioner argues that the trial court violated his 15 Fourteenth Amendment rights by admitting Petitioner’s “verbal and written statements” 16 into evidence at the probation violation hearing “because they were not voluntarily made.” 17 (Doc. 1 at 7). Petitioner argues that his “lack of cognitive and comprehension skills should 18 have led the trial court to rule that these statements were involuntary.” (Id.). Respondents 19 concede that Ground Two was exhausted by being presented to the Arizona Court of 20 Appeals in his appeal following the probation violation hearing.4 (Doc. 19 at 19). 21 22 4 In a footnote, Respondents state that they “believe Ground 2 is procedurally defaulted based on an express procedural bar applied by the Arizona Court of Appeals on 23 direct appeal,” but “want to give time for this issue to percolate in the Arizona appellate courts, which appear at this time to be in conflict, and so for that reason ask that this Court 24 expressly find that the defense is not waived as to Ground 2.” (Doc. 19 at 20 n.6). Procedural default is not a jurisdictional bar to review of a habeas petition. Trest v. 25 Cain, 522 U.S. 87, 89 (1997). Thus, a federal court may choose to consider the merits of a habeas claim even if that claim is procedurally defaulted. See Franklin v. Johnson, 290 26 F.3d 1223, 1232 (9th Cir. 2002) (“[A]ppeals courts are empowered to, and in some cases should, reach the merits of habeas petitions if they are, on their face and without regard to 27 any facts that could be developed below, clearly not meritorious despite an asserted procedural bar.”). The undersigned will recommend that the Court grant Respondents’ 28 request and expressly find that Respondents have reserved and not waived their procedural 1 In order to be voluntary, a confession must be “the product of a rational intellect 2 and a free will.” Blackburn v. Alabama, 361 U.S. 199, 208 (1960). “A confession must be 3 suppressed, even absent a Miranda violation, when the totality of the circumstances 4 demonstrates that the confession was involuntary.” DeWeaver v. Runnels, 556 F.3d 995, 5 1002-03 (9th Cir. 2009) (citing Dickerson v. United States, 530 U.S. 428, 434 (2000)). 6 When a confession is challenged, the prosecution must prove at least by a preponderance 7 of the evidence that the confession was voluntary. Lego v. Twomey, 404 U.S. 477, 489 8 (1972). “A court must consider the totality of the circumstances in assessing the 9 voluntariness of a statement.” United States v. Dufur, 648 F.2d 512, 513 (9th Cir. 1980). 10 The Arizona Court of Appeals rejected Petitioner’s involuntariness claim, finding 11 that “nothing in the record suggests the probation officer threatened, coerced, or made 12 promises to [Petitioner] to induce his confession.” (Doc. 19-1 at 167). Although Petitioner 13 and his father testified that Petitioner had cognitive deficits, the probation officer testified 14 that there were no indicators that Petitioner was “not of a sound mind” when he confessed 15 and that Petitioner “was very specific about what he was saying.” (Doc. 19-2 at 157). After 16 reviewing the record, the undersigned finds that the Arizona Court of Appeals’ decision 17 denying Ground Two is (i) not contrary to, or an unreasonable application of, clearly 18 established federal law as determined by the Supreme Court or (ii) based on an unreasonable 19 determination of the facts. The undersigned finds that 28 U.S.C. § 2254(d) bars relief as to 20 Ground Two. It is recommended that the Court deny Ground Two. 21 C. Ground 4(b) 22 In Ground 4(b), Petitioner asserts that his defense counsel was ineffective for failing 23 to move to suppress his statements to his probation officer or request an evidentiary 24 hearing. (Doc. 1 at 9). Respondents concede that Petitioner exhausted Ground 4(b) in his 25 PCR proceeding. (Doc. 19 at 28). 26 27 default defense as to Ground Two. 28 1 1. Legal Standards 2 The “clearly established federal law” for an ineffective assistance of counsel claim 3 is the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under 4 Strickland, a petitioner arguing an ineffective assistance of counsel claim must establish 5 that his or her counsel’s performance was (i) objectively deficient and (ii) prejudiced the 6 petitioner. Strickland, 466 U.S. at 687. This is a deferential standard, and “[s]urmounting 7 Strickland’s high bar is never an easy task.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 8 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). 9 In assessing the performance factor of Strickland’s two-part test, judicial review 10 “must be highly deferential” and the court must try not “to second-guess counsel’s 11 assistance after conviction.” Clark, 769 F.3d at 725 (internal quotation marks and citation 12 omitted). To be constitutionally deficient, counsel’s representation must fall below an 13 objective standard of reasonableness such that it was outside the range of competence 14 demanded of attorneys in criminal cases. Id. A reviewing court considers “whether there 15 is any reasonable argument” that counsel was effective. Rogovich v. Ryan, 694 F.3d 1094, 16 1105 (9th Cir. 2012). 17 To establish the prejudice factor of Strickland’s two-part test, a petitioner must 18 demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the 19 result of the proceeding would have been different. A reasonable probability is a 20 probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 21 694. In other words, it must be shown that the “likelihood of a different result [is] 22 substantial, not just conceivable.” Richter, 562 U.S. at 112. 23 Although the performance factor is listed first in Strickland’s two-part test, a court 24 may consider the prejudice factor first. In addition, a court need not consider both factors 25 if the court determines that a petitioner has failed to meet one factor. Strickland, 466 U.S. 26 at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of 27 sufficient prejudice, which we expect will often be so, that course should be followed.”); 28 LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both 1 deficiency and prejudice if the habeas petitioner cannot establish one or the other). 2 In the habeas context, the issue is whether there is a “reasonable argument that 3 counsel satisfied Strickland’s deferential standard, such that the state court’s rejection of 4 the [ineffective assistance of counsel] claim was not an unreasonable application of 5 Strickland. Relief is warranted only if no reasonable jurist could disagree that the state 6 court erred.” Murray v. Schriro, 882 F.3d 778, 825 (9th Cir. 2018) (internal quotation 7 marks and citation omitted). Hence, a review of Strickland claims under AEDPA is 8 “doubly deferential.” Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (“We take a 9 ‘highly deferential’ look at counsel’s performance [pursuant to Strickland, 466 U.S. at 10 689], through the ‘deferential lens of § 2254(d)’. . . .). 11 2. Analysis of Ground 4(b) 12 In its ruling denying Petitioner’s PCR Petition, the trial court stated that Petitioner 13 has “submitted no evidence that counsel was deficient in failing to request a voluntariness 14 hearing. Specifically, he has not demonstrated that counsel was aware of and disregarded 15 specific evidence which would support a finding that the statements were involuntary. . . . 16 [Petitioner] failed to make a colorable claim regarding ineffective assistance of counsel.” 17 (Doc. 19-2 at 2). In its decision affirming the trial court’s ruling, the Arizona Court of 18 Appeals stated that the “trial court clearly identified and correctly resolved [Petitioner’s] 19 claims in thorough, well-reasoned rulings, which we adopt.” (Id. at 51). 20 The undersigned concurs with Respondents that the state courts reasonably rejected 21 Ground 4(b). As Respondents recount, defense counsel did object to the admission of 22 Petitioner’s written statement on Fifth Amendment grounds. During the probation 23 violation hearing, defense counsel stated: I believe that statement's inadmissible based on 24 Jacobson v. Lindberg 225 Arz. 318 at 2010, Court of Appeals 25 Division 1 case, which, basically, states that the State cannot require a defendant on sex offender probation to waive his Fifth 26 Amendment rights as a condition of probation and cannot 27 require him to answer questions that would incriminate him in future proceedings. 28 1 Additionally, it references a case, State v. Eccles, Arizona Supreme Court case, which, basically, holds that you 2 can’t force a defendant on probation to waive his right against 3 self-incrimination by asking him questions at all, but questions that specifically pertain to his sex offender terms of probation. 4 So there’s actually two cases. 5 (Doc. 19-2 at 137-38). The trial court found the cases cited by defense counsel 6 distinguishable and overruled counsel’s objection. (Id. at 139). The submitted record does 7 not reveal a basis from which it may be reasonably concluded that the trial court would 8 have granted a motion to suppress Petitioner’s inculpatory statements. See Wilson v. 9 Henry, 185 F.3d 986, 990 (9th Cir. 1999) (“To show prejudice under Strickland from 10 failure to file a motion, [habeas petitioner] must show that (1) had his counsel filed the 11 motion, it is reasonable that the trial court would have granted it as meritorious, and (2) 12 had the motion been granted, it is reasonable that there would have been an outcome more 13 favorable to him.”) (citing Kimmelman v. Morrison, 477 U.S. 365, 373-74 (1986)); Rupe 14 v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (stating that “the failure to take a futile action 15 can never be deficient performance”). 16 After reviewing the parties’ briefing and the submitted record, the undersigned finds 17 that the state courts’ denial of Ground 4(b) is not contrary to or an unreasonable application 18 of Strickland. The undersigned further finds that Petitioner has failed to show that the state 19 courts unreasonably determined the facts in denying the claim in Ground 4(a). The 20 undersigned finds that 28 U.S.C. § 2254(d) bars relief as to Ground 4(b). It is recommended 21 that the Court deny Ground 4(b). 22 IV. CONCLUSION 23 Based on the foregoing, 24 IT IS RECOMMENDED that the Court (i) deny Grounds Two and 4(b) of the 25 Petition (Doc. 1) and (ii) dismiss with prejudice Grounds One, Three, and 4(a). 26 IT IS FURTHER RECOMMENDED that the Court grant Respondents’ request 27 in their Limited Answer (Doc. 19 at 20 n.6) and expressly find that Respondents have 28 reserved and not waived their right to raise a procedural default defense as to Ground Two 1 of the Petition. 2 IT IS FURTHER RECOMMENDED that a certificate of appealability and leave 3 to proceed in forma pauperis on appeal be denied because dismissal of Grounds One, 4 Three, and 4(a) is justified by a plain procedural bar and Petitioner has not made a 5 substantial showing of the denial of a constitutional right in his remaining claims for relief. 6 This recommendation is not an order that is immediately appealable to the Ninth 7 Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should 8 not be filed until entry of the District Court’s judgment. The parties shall have fourteen 9 days from the date of service of a copy of this recommendation within which to file specific 10 written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. 11 Thereafter, the parties have fourteen days within which to file a response to the objections. 12 Failure to file timely objections to the Magistrate Judge’s Report and Recommendation 13 may result in the acceptance of the Report and Recommendation by the District Court 14 without further review. Failure to file timely objections to any factual determinations of 15 the Magistrate Judge may be considered a waiver of a party’s right to appellate review of 16 the findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s 17 recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 18 Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). 19 Dated this 7th day of August, 2024. 20 21 22 23 24 25 26 27 28