Montez Lavell Wright, III v. Ryan Thornell, Arizona Attorney General

Opinion

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

9 Montez Lavell Wright, III, No. CV 24-00260 PHX KML (CDB) 10 Petitioner, REPORT AND 11 v. RECOMMENDATION

12 Ryan Thornell, Arizona Attorney General, 13 Respondents. 14

15 16 TO THE HONORABLE KRISSA M. LANHAM: 17 Petitioner Montez Wright seeks federal habeas relief from his state court 18 convictions pursuant to 28 U.S.C. § 2254. The matter was referred for preparation of a 19 Report and Recommendation, and is now ready for the Court’s review. 20 I. Background 21 The Arizona Court of Appeals summarized Wright’s state criminal proceedings 22 and the evidence presented at his trial as follows:

23 In early 2016, Wright met Andrew Lauro while they were working for a landscaping company. Because of money problems, Wright and Lauro 24 developed a plan to burglarize a house in the retirement community where 25 their employer had them doing landscaping work. On Sunday, the day before the burglary, Wright and his then-wife, 26 Tichinia Shephard, met with Lauro and finalized a plan to commit a 27 burglary the next day. The plan was to drive around on Monday morning until they selected a house with an open garage door. According to their 28 plan, Wright and Lauro would enter the house, and Wright would hold the 1 victims at gunpoint while Lauro tied them up. Shephard was to drive the getaway car. 2 Later on Sunday, Shephard created a “Stripe” account. A Stripe 3 account can be used for companies to move money around to different bank accounts. Shephard’s Stripe account, purportedly for a wig business, was 4 registered using Shephard’s phone, and was linked to her email address. 5 The Stripe account was subsequently linked to two bank accounts, one belonging to Shephard and one belonging to Wright. 6 On Monday morning, when Wright and Lauro were scheduled to 7 work, Wright, Lauro, and Shephard drove around the retirement community to search for houses to rob. They identified a house with an open garage 8 door. A homeowner, A.D., saw the three park near his house, watched 9 Wright and Lauro put on their work vests, and approach his open garage door. A.D. closed his garage door and called the police. 10 The three left and within minutes, came across another open garage 11 door at B.L.’s home a few blocks away. Wright and Lauro went into the house through the garage. Shephard stayed in the car. 12 When Wright and Lauro entered the house, B.L.’s friend, R.S., was 13 reading a newspaper. Wright told her “it’s a stick up.” Wright then shot her. Hearing the disturbance, B.L. came out of a bedroom, and Wright also shot 14 her. Wright then shot R.S. a second time as she was about to use her cell phone. Both victims died. 15 Wright and Lauro stole the victims’ purses and fled in B.L.’s SUV. 16 They met Shephard at a nearby church. Wright realized he had dropped his cell phone at B.L.’s home, and he returned to retrieve it but was unable to 17 do so. Wright abandoned B.L.’s SUV in Avondale. Later, Wright and 18 Shephard made several transactions using the victims’ credit cards with the Stripe account they had created the day before. 19 The next day, police went to B.L.’s home for a welfare check and 20 discovered the victims. Police found Wright’s cell phone and recovered his DNA from it. Police soon located B.L.’s stolen SUV and found Wright’s 21 DNA on the steering wheel. B.L.’s iPad was inside her vehicle, and 22 Wright’s DNA was on it as well. Using cell phone records for Wright and Shephard, police established they were in the immediate area of B.L.’s 23 home before and after the murders. 24 The State charged Wright with two counts of first-degree murder, [footnote 1: Shephard was jointly prosecuted with Wright. In Shephard’s 25 case counts 1 and 2 were charges for felony murder based on accomplice 26 liability. See A.R.S. §§ 13-1105.A.2, 13-301.] one count of first-degree burglary, one count of theft of means of transportation, one count of 27 attempted first-degree burglary, one count of fraudulent schemes and artifices, one count of attempted fraudulent schemes and artifices, one 28 1 count of aggravated taking identity of another, one count of computer tampering, and two counts of theft of credit card. 2 Lauro pled guilty to felony murder. [footnote 2: Lauro entered a 3 “free talk” agreement with the prosecution in which he agreed to testify against Wright and Shephard for a lesser sentence.] Wright and Shephard 4 went to trial. Under the terms of his plea deal, Lauro testified against 5 Wright and Shephard and received a life sentence with the possibility of parole on the murder.1 After a 12-day trial, the jury convicted Wright and 6 Shephard as charged. 7 The superior court sentenced Wright to serve the sentence for the first, first-degree murder conviction concurrently with the sentences for 8 first-degree burglary, theft of means of transportation, and attempted first- 9 degree burglary, for which Wright was given 1,160 days presentence incarceration credit (Counts 1, 3, 4, and 5). The longest sentence in this 10 group is natural life in prison on the first count of first-degree murder. 11 The superior court sentenced Wright to serve the sentence for the second, first-degree murder conviction concurrently with the sentences for 12 fraudulent schemes and artifices, attempted fraudulent schemes and 13 artifices, aggravated taking identity of another, computer tampering, and two counts of theft of credit card but consecutively to the sentences on 14 Counts 1, 3, 4, and 5. The longest sentence in this group is natural life in prison on the second count of first-degree murder. 15 16 State v. Wright, 2020 WL 2768989, at *1-2 (Ariz. Ct. App. May 28, 2020). 17 Wright appealed, alleging the trial court erred by admitting evidence of Wright’s 18 other acts, citing Rule 404(b) of the Arizona Rules of Evidence, and also asserting the 19 trial court erred by denying his motion for judgment of acquittal under Rule 20 of the 20 Arizona Rules of Criminal Procedure for want of sufficient evidence. Id. at *2-5. The 21 appellate court denied relief on the merits and Wright did not seek review by the Arizona 22 Supreme Court. (ECF No. 13-2 at 2). 23 24 1 In Wright’s counsel’s notice of completion in Wright’s state post-conviction action, 25 counsel detailed additional trial evidence as follows: Wright testified at his trial, denying any involvement in the incident and he denied being involved in any criminal activity other than 26 attempting to cash a check (for approximately $35,000) he said Lauro had stolen and given to 27 him, and he testified that Lauro gave Wright the victim’s credit cards to repay “gas money” owed to Wright and he only later found out the credit cards belonged to murder victims. (ECF 28 No. 13-2 at 34-37). Wright testified he was able to “successfully transfer” about $6000 from the credit cards to his own accounts. (ECF No. 13-2 at 36). 1 Wright filed a petition for state post-conviction relief on August 3, 2020. (ECF 2 No. 13-2 at 14-18). Wright was appointed post-conviction counsel. On July 1, 2021, post- 3 conviction counsel averred they had conferred with Wright and examined the record and 4 could find no meritorious issues to raise on Wright’s behalf. (ECF No. 13-2 at 43). 5 Wright filed a pro se petition on September 28, 2021, raising claims of ineffective 6 assistance of trial counsel, “prosecutorial misconduct,” perjured testimony, and a Brady 7 claim contending the state suppressed exculpatory evidence. (ECF No. 13-2 at 46-80). 8 The State responded that Wright’s claim of prosecutorial misconduct and his Brady claim 9 were precluded for his failure to raise the claims on appeal, and further argued Wright’s 10 ineffective assistance of trial counsel claims were without merit. (ECF No. 13-3 at 2-29). 11 The state habeas trial court summarily dismissed Wright’s post-conviction petition 12 on January 18, 2023, concluding Wright failed to establish his counsel’s performance was 13 unconstitutionally deficient or that he was prejudiced by his counsel’s performance, and 14 that Wright’s other claims were precluded pursuant to Rule 32.2(a)(3) of the Arizona 15 Rules of Criminal Procedure for Wright’s failure to raise the claims on appeal. (ECF No. 16 13-3 at 43-49). 17 There is no indication in the record that Wright appealed the state habeas trial 18 court’s denial of relief in his first state post-conviction action. 19 On March 17, 2023, Wright filed a pleading deemed a second petition for state 20 post-conviction relief. (ECF No. 13-3 at 69, 71-75). Wright asserted his Sixth 21 Amendment right to a fair trial was violated because “falsified” evidence was presented 22 to the jury and the prosecutor committed misconduct in closing argument. (ECF No. 13-3 23 at 72-75, 99). The state habeas trial court dismissed the petition on June 16, 2023, finding 24 the petition was a second, successive petition, and concluding Wright’s claims were 25 precluded pursuant to Rule 32.2(a) of the Arizona Rules of Criminal Procedure. (ECF 26 No. 13-3 at 98-99) (“In sum, Defendant has failed to state a claim for which relief can be 27 granted in a successive Rule 32 proceeding. Defendant must assert substantive claims and 28 adequately explain the reasons for their untimely assertion. Ariz. R. Crim. P. 32.2(b). He 1 has failed to meet this standard.”). The state habeas trial court also noted the Arizona 2 Court of Appeals previously found the evidence was sufficient to support the jury’s 3 verdict. (ECF No. 13-3 at 99). 4 On June 30, 2023, Wright filed a third state post-conviction action. (ECF No. 13-3 5 at 101-03). On August 16, 2023, the state habeas trial court dismissed the action, finding 6 the petition successive, the claims precluded, and also determining Wright’s claims did 7 not fall within the parameters of Arizona Rule of Criminal Procedure 32.4(b)(3)(D).2 8 (ECF No. 13-3 at 108-10). The court also found Wright had not stated a colorable claim 9 of actual innocence. (ECF No. 13-3 at 110). 10 Wright appealed (ECF No. 13-3 at 118-24), and the Arizona Court of Appeals 11 found and concluded:

12 On review, Wright contends the prosecutor improperly argued in closing that cell phone records placed Wright at the scene of the murders. 13 He further contends trial counsel performed ineffectively by failing to 14 object to the argument and appellate counsel performed ineffectively by failing to raise the issue on appeal. 15 The trial court correctly found Wright’s prosecutorial misconduct 16 claim precluded because he either had raised or could have raised it in a previous post-conviction proceeding. See Ariz. R. Crim. P. 32.2(a)(2), (3).3 17 Wright’s ineffective assistance of appellate counsel claim is similarly 18 precluded because he could have raised it in his previous post-conviction proceedings but failed to do so. See Ariz. R. Crim. P. 32.2(a)(3); State v. 19 Swoopes, 216 Ariz. 390, ¶ 25 (App. 2007) (successive ineffective assistance 20 claims deemed waived and precluded not only when previously raised but also when they could have been raised in prior Rule 32 proceeding). … 21 22 2 Subpart (3)(A) of rule 32.4(b) provides a defendant must file a notice for a claim under Rule 32.1(a) within 90 days after the oral pronouncement of sentence or within 30 days after the 23 issuance of the mandate in the direct appeal, whichever is later. Rule 32.4(b)(3)(D), regarding “Excusing an Untimely Notice,” provides the “court must excuse an untimely notice requesting 24 post-conviction relief filed under subpart (3)(A) if the defendant adequately explains why the 25 failure to timely file a notice was not the defendant’s fault.” 3 Under Arizona Rule of Criminal Procedure 32.2(a)(3), a defendant is precluded from 26 relief on any constitutional claim “waived in any previous post-conviction proceeding, except 27 when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Unless it falls within this exception, a claim is 28 waived if “the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding.” Stewart v. Smith, 202 Ariz. 446, 449 (2002) (citation omitted). 1 (ECF No. 13-3 at 134-35). See also State v. Wright, 2024 WL 126923, at *1 (Ariz. Ct. 2 App. Jan. 11, 2024). 3 II. Claims for Relief 4 In his § 2254 petition Wright contends he is entitled to habeas relief because:

5 1. The prosecutor committed misconduct by showing the jury a cell phone tower map not admitted into evidence; lying during closing arguments; and 6 calling Wright a liar. 7 2. The State violated the doctrine of Brady v. Maryland by not producing exculpatory evidence, i.e., a cell phone tower site map showing an 8 incoming call at 4:45 a.m. 9 3. Wright’s trial counsel was ineffective for failing to object to a false 10 phone and tower map and failing to obtain a cell phone expert, and his appellate counsel was ineffective for failing to locate the false phone tower 11 map. 12 4. The State presented perjured testimony, i.e., a witness testified about 13 Wright’s presence in the victim’s home. 14 Respondent asserts Wright’s claims are all procedurally defaulted “because he has 15 either (1) failed to fully exhaust in state court the specific claims he raises now or (2) the 16 state court applied an express bar to preclude him from fully raising the claim.” (ECF 17 No. 13 at 12). 18 III. Analysis 19 A. Rules governing exhaustion and procedural default 20 Absent specific circumstances, the Court may only grant federal habeas relief on a 21 claim which has been “properly” exhausted in the state courts. See, e.g., O’Sullivan v. 22 Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 23 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state 24 courts the opportunity to rule upon the merits of the claim by “fairly presenting” the 25 claim to the state’s “highest” court in a “procedurally correct” manner. E.g., Castille v. 26 Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 27 2005). In non-capital cases arising in Arizona, the “highest court” test is satisfied if the 28 habeas petitioner presented his claim to the Arizona Court of Appeals in their direct 1 appeal or in a properly-filed state action for post-conviction relief. See Swoopes v. 2 Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F. Supp. 2d 736, 762- 3 63 (D. Ariz. 2008). 4 To fairly present a claim in the state courts, thereby exhausting the claim, the 5 petitioner must present to the state courts the “substantial equivalent” of the claim 6 presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. 7 Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner 8 to present the substance of his claim to the state courts, including a statement of the facts 9 supporting the claim. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Lopez v. 10 Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007). Full and fair presentation also requires a 11 petitioner to reference, in the state court, the same operative federal constitutional 12 guarantee relied on by the petitioner in his § 2254 petition. See Walden v. Shinn, 990 F.3d 13 1183, 1195 (9th Cir. 2021); Scott, 567 F.3d at 582. 14 A federal habeas petitioner has not exhausted a federal habeas claim if he still has 15 the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. 16 § 2254(c). Because the exhaustion requirement refers only to remedies still available to 17 the petitioner at the time they file their action for federal habeas relief, it is satisfied if the 18 petitioner is procedurally barred from pursuing their claim in the state courts. See, e.g., 19 Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). If it is clear the habeas petitioner’s claim is 20 procedurally barred pursuant to state law, the claim is exhausted by virtue of the 21 petitioner’s “procedural default” of the claim. Id. at 92.

22 [The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has 23 presented his claim to the state courts and the state courts have relied on a 24 state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly 25 present his claims to the highest state court and would now be barred by a 26 s tate procedural rule from doing so. 27 Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). Pursuant to this doctrine, “a 28 federal court will not review the merits of claims, including constitutional claims, that a 1 state court declined to hear because the prisoner failed to abide by a state procedural 2 rule,” such as the Arizona state procedural rules regarding waiver and the preclusion of 3 claims. Martinez v. Ryan, 566 U.S. 1, 9 (2012); Hurles v. Ryan, 752 F.3d 768, 780 (9th 4 Cir. 2014). The doctrine bars a federal court from considering the merits of a habeas 5 claim when the state court explicitly invoked a state procedural rule to bar the claim, even 6 if the state court does so as a separate basis for its decision. See Williams v. Filson, 908 7 F.3d 546, 579 (9th Cir. 2018), citing Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir. 8 1996). Additionally, an implied procedural bar may be applied to unexhausted claims 9 where a state’s procedural rules regarding waiver and the preclusion of claims make a 10 return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin v. Johnson, 290 F.3d 11 1223, 1230-31 (9th Cir. 2002). 12 “[A] state court’s application of a procedural rule can preclude federal habeas 13 review only if the rule is independent of federal law and adequate to support the 14 judgment.” Williams, 908 F.3d at 577. See also Coleman, 501 U.S. at 728. To be 15 “independent,” “the state law basis for the decision must not be interwoven with federal 16 law.” LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). To preclude federal habeas 17 review of a claim, the state procedural rule must also be “firmly established and 18 consistently followed.” Martinez, 566 U.S. at 9. A state rule is considered consistently 19 applied and well-established if the state courts follow it in the “vast majority of cases.” 20 Scott, 567 F.3d at 580, citing Dugger v. Adams, 489 U.S. 401, 417 n.6 (1989). The 21 federal courts have repeatedly determined Arizona’s rules regarding waiver and the 22 preclusion of claims are independent and adequate bases for denying relief, and firmly 23 established and consistently followed. Stewart v. Smith, 536 U.S. 856, 859-60 (2002); 24 Hurles, 752 F.3d at 780; May v. Ryan, 807 F. App’x 632, 636 (9th Cir. 2020); Cotham v. 25 Shinn, 2022 WL 20595113, at *4 (D. Ariz. May 2, 2022). 26 If a prisoner has procedurally defaulted a claim in the state courts, review of the 27 merits of the claim is barred absent a showing of both cause and prejudice. E.g., Ellis v. 28 Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). Under the “cause” prong of this test, the 1 petitioner bears the burden of establishing that some objective factor external to the 2 defense impeded his compliance with Arizona’s procedural rules. See Moorman v. 3 Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005); Vickers v. Stewart, 144 F.3d 613, 617 (9th 4 Cir. 1998); Martinez–Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). Examples of 5 cause sufficient to excuse a procedural default include a showing that the factual or legal 6 basis for a claim was not reasonably available, or that “some interference by officials” 7 made compliance with the state’s procedural rules impracticable. Murray v. Carrier, 477 8 U.S. 478, 488 (1986). To establish prejudice a habeas petitioner must show the alleged 9 error “worked to his actual and substantial disadvantage, infecting his entire [criminal 10 proceedings] with error of constitutional dimensions.” Id. at 494 (internal quotations and 11 emphasis omitted). See also Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). It is the 12 petitioner’s burden to establish both cause and prejudice with regard to their procedural 13 default of a federal habeas claim in the state courts. See Djerf v. Ryan, 931 F.3d 870, 880 14 (9th Cir. 2019). 15 Petitioners who default federal habeas claims may also obtain review if they show 16 a failure to consider the claims would result in a fundamental miscarriage of justice. See, 17 e.g., Bradford v. Davis, 923 F.3d 599, 610 (9th Cir. 2019). A petitioner meets the 18 “fundamental miscarriage of justice” exception only by establishing that under the 19 probative evidence they have a colorable claim of factual, rather than legal, innocence. 20 Bousley v. United States, 523 U.S. 614, 623 (1998) (stating that “actual innocence means 21 factual innocence, not mere legal insufficiency”); Cook v. Schriro, 538 F.3d 1000, 1028 22 (9th Cir. 2008). Because the required showing is one of factual innocence, to surmount a 23 procedural default the petitioner must present “‘new reliable evidence—whether it be 24 exculpatory scientific evidence, trustworthy eye-witness accounts, or critical physical 25 evidence—that was not presented at trial.’” Cook, 538 F.3d at 1028, quoting Schlup v. 26 Delo, 513 U.S. 298, 324 (1995). See also McQuiggin v. Perkins, 569 U.S. 383, 399 27 (2013); Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011). 28 1 B. Application of rules regarding procedural default to Wright’s claims 2 On appeal, Wright alleged the trial court erred by admitting evidence of Wright’s 3 other acts, citing Rule 404(b) of the Arizona Rules of Evidence, and also that the trial 4 court erred by denying his motion for judgment of acquittal under Rule 20 of the Arizona 5 Rules of Criminal Procedure, for want of sufficient evidence. Accordingly, these are the 6 only claims properly exhausted in Wright’s appeal. 7 In his first state post-conviction action Wright alleged claims of ineffective 8 assistance of trial counsel, “prosecutorial misconduct,” perjured testimony, and a Brady 9 claim. (ECF No. 13-2 at 46-80). None of these claims were properly exhausted because 10 after the state habeas trial court denied relief Wright did not present the claims to the 11 state’s “highest court,” i.e., the Arizona Court of Appeals. 12 All of the claims raised in Wright’s subsequent, successive state post-conviction 13 actions were deemed procedurally defaulted as waived and therefore precluded. The state 14 procedural rules applied by the state courts to the claims raised in Wright’s successive 15 state post-conviction actions, i.e., those regarding the waiver and preclusion of claims, 16 are independent of federal law, firmly established, and regularly followed. See, e.g., 17 Stewart, 536 U.S. at 860; Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014). The 18 rules cited by the state habeas trial court and the Arizona Court of Appeals are an 19 independent and adequate basis for denying relief on a claim procedurally defaulted in 20 the state court and presented in a § 2254 petition. See Stewart, 536 U.S. at 859-60; 21 Martinez v. Ryan, 926 F.3d 1215, 1225 (9th Cir. 2019). 22 C. Wright’s Claims for Relief 23 1. Prosecutorial misconduct 24 Wright contends the prosecutor engaged in misconduct by showing the jury a cell 25 phone tower map which was not admitted into evidence, by lying during closing 26 arguments, and by calling Wright a liar. Although Wright asserted claims of prosecutorial 27 misconduct in his state post-conviction actions, the claims were found waived and relief 28 precluded for Wright’s failure to raise the claims on appeal. Accordingly, the claims were 1 found procedurally defaulted per Arizona’s rules regarding waiver and preclusion. 2 Additionally, although Wright raised claims of prosecutorial misconduct in his first state 3 action for post-conviction relief, he did not bring these claims to the Arizona Court of 4 Appeals. When Wright did raise claims of prosecutorial misconduct in his third state 5 action for post-conviction relief the Arizona affirmed the state habeas trial court’s 6 determination that the claims were precluded by Wright’s failure to raise the claims on 7 appeal. 8 Because any claims alleging prosecutorial misconduct were procedurally defaulted 9 in the state courts, relief is barred unless Wright establishes cause for and prejudice 10 arising from his procedural default of the claims, or that a fundamental miscarriage of 11 justice will occur absent consideration of the claim. In his reply in support of his petition 12 Wright asserts he did not raise his federal habeas claims on appeal due to ineffective 13 assistance of both his trial counsel (who failed to object “when the State presented a 14 ‘False Phone Tower Ping’ during trial at closing argument”) and his appellate counsel, 15 who he alleges “did not and with reasonable diligence could not have discovered the 16 factual predicate for the claim at the time of the alleged procedural default.” (ECF No. 14 17 at 2). Even if Wright could establish cause for his procedural default of any procedural 18 misconduct claims, he fails to establish prejudice, i.e., that the alleged errors worked to 19 his actual and substantial disadvantage, infecting his entire criminal proceedings with 20 error of constitutional dimensions. Given the overwhelming evidence against him, 21 including the testimony of Lauro and the forensic evidence, and the jury’s apparent 22 disbelief of Wright’s own testimony, Wright fails to establish prejudice arising from 23 alleged acts of prosecutorial misconduct. Nor has Wright established a fundamental 24 miscarriage of justice will occur absent consideration of the merits of these claims 25 because he does not present a plausible case of his actual, factual innocence of the crimes 26 of conviction. 27 28 1 2. Brady claim 2 Wright asserts the State violated the doctrine of Brady v. Maryland by not 3 producing exculpatory evidence, i.e., a cell phone tower site map showing an incoming 4 call at 4:45 a.m. 5 Wright raised this claim in his first state post-conviction action, and the state 6 habeas trial court found the claim procedurally defaulted for Wright’s failure to raise the 7 claim on appeal. Thus the state court found the claim waived and relief precluded 8 pursuant to Arizona’s procedural rules, which have been found an adequate basis for 9 procedural default of federal habeas claims. Additionally, Wright did not fully exhaust 10 this claim by presenting this claim to the Arizona Court of Appeals in a petition for 11 review of the state habeas trial court’s denial of relief and the claims is also procedurally 12 defaulted on this basis. In his reply in support of his habeas petition Wright only 13 discusses cause and prejudice with regard to his first claim for federal habeas relief and, 14 accordingly, he does not establish cause for or prejudice arising from his procedural 15 default of his Brady claim. Furthermore, to the extent Wright’s reply can be construed as 16 asserting cause for his procedural default of this claim, Wright again fails to establish any 17 prejudice arising from his procedural default of the claim because, due to the weight of 18 the other evidence against him, it is not probable that the introduction of this purportedly 19 improperly excluded Brady evidence would have resulted in a different verdict. 20 3. Ineffective assistance of counsel 21 Wright alleges his trial counsel was ineffective for failing to object to a false cell 22 phone tower map, and failing to obtain a cell phone expert. He also asserts his appellate 23 counsel was ineffective for failing to locate the false phone tower map. 24 Wright procedurally defaulted his ineffective assistance of trial and appellate 25 counsel claims by failing to present them to the Arizona Court of Appeals, the state’s 26 “highest court,” in his first state post-conviction action. Wright fails to establish cause for 27 his procedural default of these claims as he presents no argument as to why he did not 28 seek review of the state habeas trial court’s dismissal of his claims in the Arizona Court 1 of Appeals. Additionally, Wright has not demonstrated prejudice arising from these 2 errors, nor has he persuasively presented evidence of his actual, factual innocence of the 3 crimes of conviction. 4 4. Perjured testimony 5 Wright alleges the State presented perjured testimony, i.e., that with the 6 prosecution’s knowledge a witness testified falsely about Wright’s presence in the 7 victim’s home. Wright raised this claim in his first state action for post-conviction relief, 8 and the state habeas trial court found the claim waived and relief precluded due to 9 Wright’s failure to raise the claim on appeal. Wright did not seek review of this decision 10 by the Arizona Court of Appeals and, therefore, the claim is procedurally defaulted, 11 based on both the state trial court’s finding of procedural default and because Wright did 12 not present the claim to the Arizona Court of Appeals in a procedurally correct manner. 13 As with his other claims, Wright fails to establish cause for or prejudice arising from his 14 procedural default of this claim, and Wright has not shown that a fundamental 15 miscarriage of justice will occur absent consideration of the merits of the claim. 16 IV. Conclusion 17 Wright’s federal habeas claims were procedurally defaulted in the state courts. 18 Wright fails to establish cause for, or prejudice arising from, his procedural default of his 19 claims, or that a fundamental miscarriage of justice will occur absent consideration of the 20 merits of the claims. 21 Accordingly, 22 IT IS RECOMMENDED that the petition seeking a federal writ of habeas 23 corpus at ECF No. 1 be DENIED. 24 This recommendation is not an order that is immediately appealable to the Ninth 25 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 26 Appellate Procedure, should not be filed until entry of the District Court’s judgment. 27 Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have 28 fourteen (14) days from the date of service of a copy of this recommendation within || which to file specific written objections with the Court. Thereafter, the parties have 2|| fourteen (14) days within which to file a response to the objections. Pursuant to Rule || 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal 6 || determinations of the Magistrate Judge will be considered a waiver of a party’s right to || de novo appellate consideration of the issues. See United States v. Reyna—Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 9 Rule 11 of the Rules Governing Section 2254 Cases in the United States District 10 || Courts requires the Court to “issue or a deny a certificate of appealability when it enters a || final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned 12 || recommends that, should the Report and Recommendation be adopted and, should Smith 13 || seek a certificate of appealability, a certificate of appealability should be denied because □□ he has not made a substantial showing of the denial of a constitutional right. 15 Dated this 13th day of August, 2024. 16 17 . “7 4

19 / Jl 7 by CEE 20 Camille D. Bibles 1 United States Magistrate Judge 22 23 24 25 26 27 28

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