Rivera v. Shinn

Opinion

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

9 Agustin Soto Rivera, No. CV-21-00296-TUC-JGZ (DTF)

10 Petitioner, REPORT AND RECOMMENDATION

11 v.

12 David Shinn, et al.,

13 Respondents. 14 15 Petitioner Agustin Soto Rivera (Rivera or Petitioner) presently incarcerated in 16 Arizona State Prison Complex-Santa Rita in Tucson, Arizona, filed a Petition for Writ of 17 Habeas Corpus Pursuant to 28 U.S.C. § 2254. (Doc. 1.) Respondents filed their answer on 18 November 16, 2021. (Doc. 10.) Petitioner filed his reply on January 18, 2022. (Doc. 14.) 19 This matter was referred to the undersigned United States Magistrate Judge for a Report 20 and Recommendation. (Doc. 7 at 4.) 21 As more fully set forth below, this Court recommends the Petition be denied and 22 this matter be dismissed. 23 I. BACKGROUND 24 a. Factual Background and Investigation 25 On March 18, 2012, three individuals, including Petitioner, broke into the victims' 26 house. (Doc. 10-1 at 47-48.) The intruders robbed the three victims at gunpoint. Id. The 27 men took a victim's cellular phone, which the victim later tracked and relayed the phone's 28 location to the police. Id. at 47, 49. Police officers found Petitioner and his co-defendant 1 Rosario Soto Jr. (Soto) in the desert. Id. at 47, 51. On Petitioner's person was a wallet 2 belonging to one of the victims. Id. at 47, 51. Police found other incriminating evidence 3 nearby. Id. at 47, 50-53. 4 According to the Arizona Court of Appeals: 5 ¶ 2 Rivera and co-defendant Rosario Soto Jr. were indicted on three counts of armed robbery, three counts of aggravated 6 assault, three counts of aggravated robbery, three counts of kidnapping, one count of first-degree burglary, one count of 7 possession of marijuana, one count of fleeing from a law enforcement vehicle, and one count of possession of a deadly 8 weapon by a prohibited possessor. At his arraignment, the court advised Rivera that if he failed to attend any scheduled 9 hearing, including his trial, the court could proceed in his absence. 10 ¶ 3 In June 2012, the court set trial for March 2013, and again 11 admonished Rivera that trial could take place in his absence should he fail to appear. Rivera acknowledged that he 12 understood the admonition. 13 State v. Rivera (Rivera I), No. 2 CA-CR 2014-0087, 2016 WL 389490, ¶¶ 2-3 (Ariz. App. 14 Feb. 2, 2016).1 Then the trial date was continued. (Doc. 10-1 at 55-56.) On March 4, 2013, 15 the court held a settlement conference. (Doc. 10-2 at 82.) The judge explained to the 16 defendants that "if they go to trial, it's essentially a life sentence for both of them." Id. at 17 85:16-17. He also told them he typically sentenced consecutively when there are multiple 18 victims and guns, as was the case. Id. at 85:19-22. The prosecutor offered a plea agreement 19 of a class two felony and two class three felonies, with consecutive or concurrent nature to 20 be decided by the judge. Id. at 88:11-15, 89:17-19. The court explained the sentencing 21 range to Petitioner. Id. at 89:11-19. On March 18, 2013, the court held a status conference 22 to continue discussing the plea negotiations. Id. at 98, 100. The prosecution repeated the 23 plea offer. Id. at 101:8-16. The prosecutor explained Petitioner's exposure at trial. Id. at 24 102-03. The judge asked the defendants if they had any questions, and they did not respond. 25 Id. at 106:22-24. The offer was open for one week. Id. at 107:18-19. In April 2013, the trial 26

27 1 The facts as recited by the court of appeals are entitled to a presumption of correctness. See § 2254(e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting 28 argument that statement of facts in Arizona Supreme Court opinion should not be afforded presumption of correctness) 1 court set trial for September 10, 2013. Id. at 63. The trial court confirmed with both 2 defendants that they understood the trial was set for September 10th and that they needed 3 to appear. Id. at 64:1-7. There was no discussion about the plea agreement. Id. at 63-64. 4 On September 4, 2013, Soto's counsel filed a motion to preclude a trial in absentia citing 5 United States v. Crosby, 506 U.S. 225 (1993). Id. at 29. Petitioner's counsel joined the 6 motion on Petitioner's behalf. Id. at 35. The trial court denied the motion. Id. at 37:17-20. 7 ¶ 5 Rivera and Soto failed to appear for trial on September 10, 2013. The trial court found Rivera had been told of his new 8 trial date and warned of the consequences of failing to appear. As a result, the court found Rivera's absence voluntary and 9 proceeded with trial in absentia. After a three-day trial, Rivera was convicted of two counts of armed robbery, one count of 10 attempted armed robbery, three counts of aggravated assault with a deadly weapon or dangerous instrument, two counts of 11 aggravated robbery, one count of attempted aggravated robbery, one count of burglary in the first degree, one count of 12 possession of marijuana, and one count of fleeing from a law enforcement vehicle. Following the verdicts, the court issued a 13 warrant for Rivera's arrest. 14 ¶ 6 Rivera was eventually apprehended and appeared in-custody in November 2013. The trial court ultimately 15 sentenced him to concurrent and consecutive terms totaling 31.5 years' imprisonment. Rivera appealed and we have 16 jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). 17 18 Rivera I, 2016 WL 389490, ¶¶ 5-6. At sentencing, Petitioner did make the following 19 statement to the court: "I mean, I was under the impression that we were going to get a 20 continuance today because I got Laura Udall to step in. I feel I wasn't represented right." 21 (Doc. 10-2 at 76:8-11.) The court continued with the sentencing. Id. at 78. 22 b. Proceedings in the Arizona Court of Appeals 23 Petitioner filed a timely notice of appeal. (Doc. 10-1 at 32.) He argued the trial court 24 had violated his constitutional right to be present at his trial by trying him in absentia and 25 that the trial court had erred in finding the absence was voluntary under Rule 9.1, Ariz. R. 26 Crim. P. Id. at 35, 55-62. The appellate court affirmed Petitioner's convictions. Rivera I, 27 2016 WL 389490, ¶ 23. The court concluded that "regardless of whether a defendant 28 chooses to absent himself before or during trial, the critical question remains the same: Did 1 the defendant voluntarily, knowingly, and intelligently waive his right to be present?" Id. 2 ¶ 15. The court found no error with the trial court's finding that Petitioner had been 3 voluntarily absent from trial. Id. ¶ 22. 4 c. Proceedings in the Arizona Supreme Court 5 Petitioner petitioned the Arizona Supreme Court for review. (Doc. 10-1 at 96.) He 6 raised the arguments he presented below. Id. at 96-105. On June 16, 2016, the Arizona 7 Supreme Court denied the petition. (Doc. 1-1 at 10.) 8 d. State Court Post-Conviction Relief Proceeding 9 On June 27, 2016, Petitioner filed a timely notice of post-conviction relief. (Doc. 10 10-1 at 109.) The post-conviction court appointed counsel. Id. at 114. The proceedings 11 were stayed pending resolution of a restitution issues. Id. at 116, 118. On August 13, 2018, 12 Petitioner's counsel notified the court that she did not "find any arguably meritorious legal 13 issue to raise in a Petition for Post-Conviction Relief." Id. at 120. The court allowed 14 Petitioner to file a pro se petition. Id. at 123. Petitioner filed a declaration and a petition. 15 Id. 125, 128. He argued his right to choose his counsel had been violated when sentencing 16 proceeding without his retained counsel. Id. at 133-34. He also contended that his trial 17 counsel had been ineffective because he failed to "explain the cryptic plea colloquy" and 18 to "obtain a written plea agreement or proposed written plea agreement" for Petitioner to 19 consider. Id. at 139. Finally, Petitioner asserted his appellate counsel had been ineffective 20 because he did not raise Petitioner's claim that he had been denied the right to retain counsel 21 for sentencing. Id. at 142-43. 22 The post-conviction court stated there was no indication that Ms. Udall had been 23 retained, even though Petitioner had received "a significant number of time extensions in 24 order to contact Ms. Udall to acquire an appropriate affidavit from Ms. Udall to corroborate 25 the Petitioner's petition." (Doc. 10-2 at 5.) Further, the court concluded sentencing counsel 26 was not deficient and there was no indication that Ms. Udall could have change the 27 sentence. Id. The court described the record of the Donald2 hearing3 as "illuminating." Id.

28 2 State v. Donald, 10 P.3d 1193 (Ariz. App. Sept. 26, 2000). 3 The Court will follow the Arizona Court of Appeals and refer to both the March 4, 2013 1 The court was satisfied that the Donald hearing had provided sufficient explanation such 2 that Petitioner was "aware of his exposure and knowingly, intelligently, and voluntarily 3 rejected the plea agreement." Id. at 6. The court then concluded appellate counsel had acted 4 in a reasonable and tactically sound manner in not bringing the choice-of-counsel claim 5 when there was no proof Petitioner had retained Ms. Udall. Id. The court summarily 6 dismissed the petition for post-conviction relief without an evidentiary hearing. Id. 7 Petitioner petitioned for review with the Arizona Court of Appeals. Id. at 8. He 8 argued the post-conviction court had abused its discretion by concluding that his right to 9 counsel of choice was not violated and applied the incorrect legal standard in its 10 determination. Id. at 11-13. Second, Petitioner asserted the court had abused its discretion 11 in denying an evidentiary hearing into his claim of ineffective assistance of counsel during 12 plea negotiations. Id. at 14-15. Finally, he maintained his appellate counsel had been 13 ineffective in failing to assert a choice-of-counsel claim. Id. at 15. The appellate court 14 granted review but denied relief. State v. Rivera (Rivera II), No. 2 CA-CR 2020-0081-PR, 15 2020 WL 4436259, ¶ 18 (Ariz. App. Aug. 3, 2020). The appellate court concluded 16 Petitioner could have raised a claim regarding denial of Sixth Amendment right to counsel 17 of choice on direct appeal. Id. ¶ 8. Because Petitioner did not invoke this claim on direct 18 appeal, it was precluded. Id. Further the appellate court concluded the record did not 19 support Petitioner's assertion that he had retained counsel and that she had notified the 20 court. Id. ¶ 9. Thus, the appellate court determined the post-conviction court had not abused 21 its discretion in denying an evidentiary hearing. Id. 22 The Arizona Court of Appeals considered Petitioner's claim that his appellate 23 counsel had been ineffective because he had failed to argue Petitioner had been denied the 24 right to choose and retain counsel for sentencing. Id. ¶ 10. The appellate court agreed with 25 the post-conviction court that "the record is void of any substantive proof that [Petitioner] 26 retained Ms. Udall as counsel for sentencing." Id. Thus, the appellate court concluded 27 settlement conference and the March 18, 2013 Donald hearing as the "Donald hearing." 28 State v. Rivera (Rivera II), No. 2 CA-CR 2020-0081-PR, 2020 WL 4436259, ¶ 13 n.5 (Ariz. App. Aug. 3, 2020). 1 appellate counsel's performance was not deficient. Id. 2 Finally, the appellate court considered the claim Petitioner's trial counsel had been 3 ineffective during plea negotiations. Id. ¶ 11. The court agreed the trial court had explained 4 the risks of going to trial. Id. ¶ 14. The court stated the record did not necessarily show that 5 trial counsel had advised Petitioner about the merits of the offer compared to the chances 6 of success at trial. Id. However, the court still concluded that Petitioner had not shown any 7 prejudice. Id. ¶ 15. Petitioner did not file a motion for reconsideration or a petition for 8 review. (Doc. 10-2 at 27.) On January 20, 2021, the Arizona Court of Appeals filed its 9 mandate. Id. 10 e. Federal Habeas Corpus Proceeding 11 On July 21, 2021, Petitioner placed a Petition for Writ of Habeas Corpus Pursuant 12 to 28 U.S.C. § 2254 in prison mailing system. (Doc. 1 at 15.) The Petition was filed with 13 the Court on July 26, 2021. (Doc. 1.) Petitioner alleges the following grounds for relief: 14 "Ground One: Sixth Amendment right to be present at trial as applied to the state 15 through the Fourteenth Amend., violated." Id. at 5. "Ground Two: Sixth and Fourteenth 16 Amendment[s] violated when the trial court found Plaintiff's absence from trial voluntary." 17 (Doc. 1 at 7.) Petitioner incorporates the facts from Ground One. Id. Petitioner argues his 18 attorney advised him to "talk to [a] travel agent." (Doc. 1-2 at 4.) Based on the advice from 19 his attorney, Petitioner argues he did not have "freedom of choice" necessary to make a 20 voluntary waiver of the right to presence at trial. Id. 21 "Ground Three: Sixth and Fourteenth Amendments violated when Petitioner denied 22 right to counsel of choice; Appellate counsel ineffectiveness." (Doc. 1 at 8.) This is two 23 related claims. Petitioner asserts he retained counsel for sentencing. (Doc. 1-2 at 5.) He 24 further contends the trial court failed to inquire into this request for new counsel and 25 continued with sentencing despite the deteriorated attorney-client relationship. Id. 26 Petitioner argues he was denied a fair opportunity to develop the record regarding whether 27 Laura Udall, esq., had been retained. Id. Appellate counsel did not make any argument 28 regarding choice of sentencing counsel. Id. at 6-7. 1 "Ground Four: Sixth Amendment violated when trial counsel was ineffective during 2 plea negotiations." (Doc. 1 at 10.) Petitioner explains the state offered a plea bargain in 3 March 2013. Id. However, Petitioner claims his trial counsel did not sufficiently explain 4 the plea agreement or obtain a written plea agreement. (Doc. 1-2 at 8.) Petitioner further 5 challenges the state court's determinations as unreasonable. Id. at 8-9. 6 Petitioner asserts his Petition is timely. (Doc. 1 at 13-14.) He requests the Court 7 grant habeas corpus relief, and either vacate the convictions and sentences or conduct an 8 evidentiary hearing on grounds three and four. Id. at 15. 9 On October 7, 2021, Respondents were ordered to respond to the Petition. (Doc. 7.) 10 They filed their response on November 16, 2021. (Doc. 10.) Respondents argue Petitioner's 11 claim that he was denied the right to counsel of his choice at sentencing is procedurally 12 defaulted. Id. at 11. Respondents conclude that the remainder of Petitioner's claims lack 13 merit. Id. at 15-21. 14 II. TIMELINESS 15 Whether a petition is time-barred by the statute of limitations is a threshold issue 16 that must be resolved before considering other procedural issues or the merits of the 17 individual's claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The 18 Anti-Terrorism and Effective Death Penalty Act's (AEDPA) one-year statute of limitations 19 applies here. See 28 U.S.C. § 2244(d)(1); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 20 1999). As potentially applicable here, the limitations period begins to run on the date when 21 "the judgment became final by the conclusion of direct review or the expiration of the time 22 for seeking such review" or "the date on which the factual predicate of the claim or claims 23 presented could have been discovered through the exercise of due diligence," whichever is 24 later. § 2244(d)(1)(A, D). 25 "The time during which a properly filed application for State post-conviction or 26 other collateral review with respect to the pertinent judgment or claim is pending shall not 27 be counted toward any period of limitation." § 2244(d)(2). An PCR application is properly 28 filed if its "delivery and acceptance are in compliance with the [state's] applicable laws and 1 rules governing filings." Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005), amended, 2 439 F.3d 993 (9th Cir. 2006) (quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)). Put another 3 way, applications must comply with provisions setting forth a condition to filing, as 4 opposed to a condition to obtain relief. Artuz, 531 U.S. at 11. Not every state procedural 5 bar prevents an application from being properly filed for statutory tolling. Id. at 10-11. 6 State courts may consider the merits of an application without indicating a conclusion on 7 the application's timeliness. Carey v. Saffold, 536 U.S. 214, 226 (2002). 8 In Arizona, an application for post-conviction relief commences when a notice of 9 post-conviction relief is filed. Isley v. Ariz. Dep't of Corr., 383 F.3d 1054, 1056 (9th Cir. 10 2004). "State review ends when the state courts have finally resolved an application for 11 state postconviction relief." Lawrence v. Florida, 549 U.S. 327, 332 (2007). Thus, once the 12 state's "highest court has issued its mandate or denied review, no other state avenues for 13 relief remain open," then the application is final and statutory tolling ends. Id. If the 14 petitioner appeals to the Arizona Supreme Court, then the application is no longer pending 15 once the court denies relief. Isley, 383 F.3d at 1055. 16 Here, Petitioner's sentence became final on September 14, 2016. See Gonzalez v. 17 Thaler, 565 U.S. 134, 150 (2012) (explaining direct review is final when time to pursue 18 direct review expires, if petitioner who do not pursue direct review to Supreme Court of 19 United States); Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007) (direct appeal 20 final when time to seek review of decision expires); see also Ariz. R. Crim. P. 1.3 21 (computation of time), 31.21(b)(2)(A) ("A party must file a petition for review no later than 22 30 days after the Court of Appeals enters its decision, unless a party files a timely motion 23 for reconsideration in the Court of Appeals . . . ."). Petitioner filed his notice of 24 post-conviction relief on June 27, 2016. (Doc. 10-1 at 109.) As such, the AEDPA clock 25 was tolled before the sentence became final. The clock did not restart until January 20, 26 2021, when the Arizona Court of Appeals issued its mandate. See Celaya v. Stewart, 691 27 F. Supp. 2d 1046, 1054-55 (D. Ariz. 2010), aff'd 497 F. App'x 744 (9th Cir. 2012); see also 28 Hawkins v. Shinn, No. CV-21-01299-PHX-DLR-DMF, 2022 WL 3636749, at *8-9 (D. 1 Ariz. July 5, 2022), R. + R. adopted, No. CV-21-01299-PHX-DLR, 2022 WL 3598248 (D. 2 Ariz. Aug. 23, 2022); Doc. 10-2 at 27. Petitioner filed his Petition within AEDPA's statute 3 of limitations. (See Doc. 1.) 4 This, this Petition is timely. 5 III. EXHAUSTION/PROCEDURAL DEFAULT 6 Respondents urge that Claim III(a) is procedurally defaulted. (Doc. 10 at 11-12.) In 7 his reply, Petitioner asserts his claims are not procedurally default. (Doc. 14 at 1.) However, 8 he does not argue Claim III(a) in any fashion. Id. at 1-6. As set forth below, this Court 9 agrees with Respondents. 10 Legal Principles 11 A district court may consider a petitioner's application for a writ of habeas corpus 12 only if they have "exhausted the remedies available in the courts of the State." 13 § 2254(b)(1)(A). The exhaustion requirement prevents federal courts from unnecessarily 14 adjudicating an issue and affords states the opportunity to correct a constitutional violation. 15 Rose v. Lundy, 455 U.S. 509, 518 (1982). 16 To exhaust a claim, a petitioner must "fairly present" it in each appropriate state 17 court, alerting the courts to its federal nature. Baldwin v. Reese, 541 U.S. 27, 29 (2004). 18 Simply presenting the claim to the state's highest court on discretionary review is 19 insufficient. Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004). In Arizona, a claim not 20 involving a life sentence or death penalty is exhausted if it is presented to the Arizona Court 21 of Appeals; it need not be appealed to the Arizona Supreme Court. Swoopes v. Sublett, 196 22 F.3d 1008, 1010 (9th Cir. 1999). 23 For a claim to be fairly presented, a petitioner must have clearly stated its federal 24 basis and nature, along with relevant facts, and the claim must be the "substantial 25 equivalent" to the one presented to the state. Picard v. Connor, 404 U.S. 270, 278 (1971); 26 Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011); Castillo v. McFadden, 399 F.3d 993, 27 998-99 (9th Cir. 2005). It is insufficient to merely present a state law claim that is "largely 28 coextensive" with the federal claim. Fields v. Washington, 401 F.3d 1018, 1022-23 (9th 1 Cir. 2005). If a state law claim is identical with the federal claim, then raising only the state 2 law claim may be sufficient to exhaust the federal clam. Sanders v. Ryder, 342 F.3d 991, 3 1000 (9th Cir. 2003). The state must have an opportunity to examine a claim in which the 4 evidence creates a significantly different legal or evidentiary posture. Dickens v. Ryan, 740 5 F.3d 1302, 1318 (9th Cir. 2014). 6 A petitioner who fails to follow a state's procedural requirements for presenting a 7 claim deprives the state court of an opportunity to address the claim in much the same 8 manner as a petitioner who fails to exhaust his state remedies. Thus, to prevent a petitioner 9 from subverting the exhaustion requirement by failing to follow state procedures, a claim 10 not presented to the state courts in a procedurally correct manner is deemed procedurally 11 defaulted and is generally barred from habeas relief. See Coleman v. Thompson, 501 U.S. 12 722, 731-32 (1991). 13 Claims may be procedurally barred from federal habeas review based upon either 14 an express or implied bar. See Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). 15 If a state court expressly applied a procedural bar when a petitioner attempted to raise a 16 claim in state court and the procedural bar is both independent and adequate, review of the 17 merits of the claim by a federal habeas court is generally barred. See Ylst v. Nunnemaker, 18 501 U.S. 797, 801 (1991) ("When a state-law default prevents the state court from reaching 19 the merits of a federal claim, that claim can ordinarily not be reviewed in federal court."). 20 An implied procedural bar may be applied to unexhausted claims where state procedural 21 rules make a return to state court futile. Coleman, 501 U.S. at 735 n.1 (claims are barred 22 from habeas review when not first raised before state courts and those courts "would now 23 find the claims procedurally barred"); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th 24 Cir. 2002) ("[T]he procedural default rule barring consideration of a federal claim 'applies 25 . . . if it is clear that the state court would hold the claim procedurally barred.'" (quoting 26 Harris v. Reed, 489 U.S. 255, 263 n.9 (1989))). The implied procedural bar is often referred 27 to as "technical" exhaustion because even though the claim was not actually exhausted, the 28 petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732. 1 In Arizona, claims not previously presented to state courts on either direct appeal or 2 collateral review are generally barred from federal review because an attempt to present 3 them to the state court would be futile unless they fit in a narrow category of claims for 4 which a successive or untimely petition is permitted. See Ariz. R. Crim. P. 32.2(a) 5 (precluding claims not raised on appeal or in prior petitions for post-conviction relief, 6 except for narrow exceptions), 32.4(b)(3) (time bar). Because Arizona's preclusion rules 7 are both independent and adequate, their application to a claim by an Arizona court or their 8 operation precluding a return to state courts to exhaust a claim will procedurally bar 9 subsequent review of the merits of that claim by a federal habeas court. See Stewart v. 10 Smith, 536 U.S. 856, 860 (2002) (determinations made under Arizona's procedural default 11 rule are independent of federal law); see also Carriger v. Lewis, 971 F.2d 329, 333 (9th 12 Cir. 1992) (rejecting assertion that Arizona courts' application of procedural default rules 13 were "unpredictable and irregular"); State v. Mata, 916 P.2d 1035, 1050-52 (Ariz. 1996) 14 (waiver and preclusion rules are strictly applied in post-conviction proceedings). Arizona's 15 time bar under Rules 32.4 is an additional bar that would make a return to state court 16 fruitless. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (holding that if 17 Arizona habeas petitioner "has any unexhausted claims" they are "procedurally defaulted 18 . . . because he is now time-barred under Arizona law from going back to state court"); 19 Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (observing timeliness under Rule 20 32.4 as grounds for dismissal of PCR petition, distinct from preclusion under Rule 32.2(a)). 21 Federal habeas review of a procedurally defaulted claim is barred unless the default 22 is excused. A procedural default may be excused if a habeas petitioner establishes either 23 (1) "cause" and "prejudice," or (2) that a fundamental miscarriage of justice has occurred. 24 Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992). "Cause" that is sufficient to excuse a 25 procedural default is "some objective factor external to the defense" which precludes a 26 petitioner's ability to pursue the claim in state court. Murray v. Carrier, 477 U.S. 478, 488 27 (1986). "Prejudice" in the habeas context means actual, objective harm resulting from the 28 alleged error. United States v. Frady, 456 U.S. 152, 170 (1982) (habeas petitioners 1 "shoulder the burden of showing, not merely that the errors . . . created a possibility of 2 prejudice, but that they worked to his actual and substantial disadvantage" and infected 3 state proceedings with errors of constitutional dimension). A fundamental miscarriage of 4 justice may occur where a constitutional violation has probably resulted in the conviction 5 of an innocent petitioner. Murray, 477 U.S. at 496 (merits of defaulted claim could be 6 reached "in an extraordinary case, where a constitutional violation has probably resulted in 7 the conviction of one who is actually innocent"). "[A] petitioner does not meet the threshold 8 requirement [of establishing actual innocence] unless he persuades the district court that, 9 in light of the new evidence, no juror, acting reasonably, would have voted to find him 10 guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995). The actual 11 innocence gateway requires that a petitioner present new evidence that is not merely 12 cumulative or speculative. Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013). 13 Procedural Status of Petitioner's Claims 14 Petitioner states four grounds for relief and recognizes that Ground three has two 15 claims within it. (Doc. 1 at 5-10; Doc. 1-2 at 7.) He presented the claims in grounds one 16 and four to the state court such that they are exhausted without procedural default. See 17 Rivera I, 2016 WL 389490, ¶¶ 1, 11-22; Rivera II, 2020 WL 4436259, ¶¶ 11-17. 18 Additionally, Petitioner sufficiently exhausted his second claim in Ground three, often 19 referred herein as Claim III(b), claiming that his appellate counsel was ineffective for 20 failing to raise his choice-of-counsel claim. See Rivera II, 2020 WL 4436259, ¶¶ 10. 21 In Claim II, Petitioner contends the state courts erred in determining his absence had 22 been voluntary. (Doc. 1 at 7; Doc. 1-2 at 4.) He raised this issue to the Arizona Court of 23 Appeals. Rivera I, 2016 WL 389490, ¶ 19. The appellate court found Petitioner had waived 24 this argument because he had not presented it to the trial court and had not argued the error 25 was fundamental before the appellate court. Id. ¶ 20. The court then considered the merits, 26 "[i]n any event." Id. ¶ 21. Thus, Claim II is procedurally defaulted. Respondents did not 27 argue this claim was procedurally defaulted. (Doc. 10 at 11.) To the extent this claim is 28 procedurally defaulted, Respondents have waived the default. See Morrison v. Mahoney, 1 399 F.3d 1042, 1046 (9th Cir. 2005) ("[T]he defense of procedural default should be raised 2 in the first responsive pleading in order to avoid waiver.") The Court will consider the 3 merits of this claim, especially as both the Arizona Court of Appeals and Respondents did 4 the same. 5 In Claim III(a), Petitioner argues he was denied the right to be represented by the 6 counsel of his choosing. (Doc. 1 at 8; Doc. 1-2 at 5-7.) He raised this issue in his 7 post-conviction proceeding. Rivera II, 2020 WL 4436259, ¶ 8. The appellate court found 8 the issue was precluded because it should have been presented on appeal. Id. Thus, this 9 claim is procedurally defaulted. Petitioner does not argue this procedural default should be 10 excused. (Doc. 14.) Hence, this Court determines there are no grounds upon which the 11 district court can excuse the procedural default. Claim III(a) should be denied and 12 dismissed without further consideration. 13 IV. MERITS 14 This Court determines that Petitioner's claims in claims I, II, III(b), and IV are 15 without merit and should be dismissed. 16 Merits Review Under AEDPA 17 Congress intended the AEDPA to foster federal-state comity and further society's 18 interest in the finality of criminal convictions. Panetti v. Quarterman, 551 U.S. 930, 945 19 (2007) ("[AEPDA's] design is to 'further the principles of comity, finality, and 20 federalism.'") (quoting Miller-El v. Cockrell, 537 U.S. 322, 337 (2003)). Congress's very 21 purpose in enacting the AEPDA was "to restrict the availability of habeas corpus relief." 22 Greenawalt v. Stewart, 105 F.3d 1268, 1275 (9th Cir. 1997), abrogated on other grounds 23 as recognized by Jackson v. Roe, 425 F.3d 654, 658-61 (9th Cir. 2005). 24 In the AEDPA, Congress set forth "a difficult to meet and highly deferential 25 standard for evaluating state-court rulings, which demands that state-court decisions must 26 be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (cleaned 27 up). "Under AEDPA, . . . a federal court may disturb a final state-court conviction in only 28 narrow circumstances." Brown v. Davenport, 142 S. Ct. 1510, 1518 (2022). 1 The AEDPA limits the availability of habeas relief for a claim adjudicated on the 2 merits to circumstances where the state court's disposition either: 3 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 4 determined by the Supreme Court of the United States; or 5 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in 6 the State court proceeding. 7 § 2254(d). Petitioners bear the burden of proving that their claims fit one of these criteria. 8 Pinholster, 563 U.S. at 181; Lambright v. Blodgett, 393 F.3d 943, 969 n. 16 (9th Cir. 2004). 9 A state-court decision is "contrary to" clearly established federal law when the court 10 applied a rule of law that contradicted the governing law set forth in Supreme Court 11 precedent, or encountered a set of facts "materially indistinguishable" from a Supreme 12 Court decision and yet reached a different result than the Supreme Court. Early v. Packer, 13 537 U.S. 3, 8 (2002). Under § 2254's "unreasonable application" clause, "a petitioner must 14 persuade a federal court that no 'fairminded juris[t]' could reach the state court's conclusion 15 under th[e Supreme] Court's precedents." Davenport, 142 S. Ct. at 1525 (first alteration in 16 Davenport) (quoting Davis v. Ayala, 576 U.S. 257, 269 (2015)). "[A] federal habeas court 17 may not issue the writ simply because that court concludes in its independent judgment 18 that the relevant state-court decision applied clearly established federal law erroneously or 19 incorrectly." Williams v. Taylor, 529 U.S. 362, 411 (2000). "[E]ven a strong case for relief 20 does not mean the state court's contrary conclusion was unreasonable." Harrington v. 21 Richter, 562 U.S. 86, 102 (2011). Richter explained: 22 As a condition for obtaining habeas corpus from a federal 23 court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in 24 justification that there was an error well understood and comprehended in existing law beyond any possibility for 25 fair[-]minded disagreement. 26 Id. at 103. "If this standard is difficult to meet, that is because it was meant to be." Id. at 27 102. 28 Section 2254(d)(2) also sets "a daunting standard—one that will be satisfied in 1 relatively few cases." Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir. 2016) (quoting 2 Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014))."[I]t is not enough to show that 3 'reasonable minds reviewing the record might disagree about the finding in question.'" 4 Davenport, 142 S. Ct. at 1525 (quoting Brumfield v. Cain, 576 U.S. 305, 314 (2015)). 5 Instead, the state court's decision must be "objectively unreasonable." Miller-El, 537 U.S. 6 at 324. 7 In determining whether the state court's resolution of a claim was contrary to, or an 8 unreasonable application of, clearly established federal law, federal courts must review the 9 last reasoned state court decision addressing the merits of the claim. Cook v. Schriro, 538 10 F.3d 1000, 1015 (9th Cir. 2008) (citing Ylst, 501 U.S. at 803). The reviewing federal court 11 is to be "particularly deferential to [its] state court colleagues." Loher, 825 F.3d at 1112 12 (Hernandez, 750 F.3d at 857). The federal habeas court presumes the state court's factual 13 determinations are correct, and petitioners bear the burden of rebutting this presumption 14 by clear and convincing evidence. See § 2254(e)(1) ("[A] determination of a factual issue 15 made by a State court shall be presumed to be correct. The applicant shall have the burden 16 of rebutting the presumption of correctness by clear and convincing evidence."); see also, 17 Miller-El, 545 U.S. at 240 (describing standard as deferential and "demanding," although 18 not impossible). Additionally, the state court decisions are held to the Supreme Court 19 precedents at "the time the state court renders its decision." Davenport, 142 S. Ct. at 1525 20 (quoting Pinholster, 563 U.S. at 182). 21 Trial in Absentia 22 Petitioner argues the state court's decision that he was properly tried in absentia was 23 contrary to, or involved an unreasonable application of, clearly established Federal law. 24 (Doc. 1 at 5; Doc. 1-2 at 2-3.)4 The Court disagrees. 25 The Arizona Court of Appeals concluded Petitioner had waived his presence at trial. 26 Rivera I, 2016 WL 389490, ¶ 18. It reasoned that a distinction between pre-trial and

27 4 Rivera also argues the record does not support the inference that he had waived his right to be present. (Doc. 14 at 2-3.) Rivera does not disagree with the record as summarized by 28 the Arizona Court of Appeals, but instead reasserts his contention from Claim II. Id. Thus, the Court will consider this argument together with Claim II. 1 mid-trial absence would be "anomalous." Id. ¶ 17. Additionally, it noted several instances 2 where the trial court had informed Petitioner of the trial date and his need to appear for the 3 trial. Id. ¶¶ 2-4. 4 Petitioner contends Crosby v. United States, 506 U.S. 255 (1993), and Diaz v. 5 United States, 223 U.S. 455 (1912), prevent finding waiver from absence before a trial 6 commences. (Doc. 14 at 2.) The Arizona Court of Appeals cited and applied both cases. 7 Rivera I, 2016 WL 389490, ¶¶ 9, 12-15. 8 In Diaz, the defendant was voluntarily absent twice during his ongoing trial. 223 9 U.S. at 444. The Supreme Court reasoned that it did "not seem to us to be consonant with 10 the dictates of common sense that an accused person, being at large upon bail, should be at 11 liberty, whenever he pleased, to withdraw himself from the courts of his country and to 12 break up a trial already commenced". Id. at 457 (quoting Falk v. United States, 15 App. 13 D.C. 446, 454 (1899)). Thus, the Supreme Court affirmed the conviction. Id. at 459. 14 In Crosby, the Supreme Court held that Federal Rule of Criminal Procedure 43 did 15 not permit trial in absentia for defendant who absconded before trial and was absent at the 16 start of trial. 506 U.S. at 256. The Supreme Court did "not reach Crosby's claim that his 17 trial in absentia was also prohibited by the Constitution." Id. at 262. 18 Neither case considered or ruled on whether trying a defendant who fled before a 19 trial commences would be unconstitutional. The Supreme Court has not considered this 20 issue. See Hagans v. Shinn, No. CV-19-0475-TUC-JAS (LAB), 2020 WL 1495967, at *4 21 (D. Ariz. Feb. 20, 2020), R. + R. adopted sub nom. Hagans v. Ryan, No. 22 CV-19-00475-TUC-JAS (LAB), 2020 WL 1495335, at *4 (D. Ariz. Mar. 27, 2020) (citing 23 Fairey v. Tucker, 132 S. Ct. 2218, 2220 (2012)). Hence, the state court's decision was 24 neither contrary to nor an unreasonable application of clearly established Supreme Court 25 precedent. The Court does not find that the state court's decision was based on an 26 unreasonable determination of the facts. 27 28 1 Voluntary Absence 2 Petitioner maintains the state court's decision that his absence was voluntary was 3 contrary to or an unreasonable application of Supreme Court precedent. (Doc. 1 at 7; Doc. 4 1-2 at 4; Doc. 14 at 4.) Specifically, Petitioner asserts that he did not have a meaningful 5 choice except to flee because his attorney advised him to "talk to [a] travel agent." (Doc. 6 1-2 at 4.) 7 The state appellate court concluded this claim was waived, but it considered the 8 merits in the alternative. Rivera I, 2016 WL 389490, ¶¶ 19-22. The appellate court stated 9 that Petitioner had freedom of choice because he could have moved for new counsel. Id. ¶ 10 22. 11 Federal law requires waiver be voluntary. Diaz, 223 U.S. at 455. Voluntary has two 12 separate inquiries. Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010). First, the waiver 13 must be "voluntary in the sense that it was the product of a free and deliberate choice rather 14 than intimidation, coercion, or deception." Id. at 382 (quoting Moran v. Burbine, 475 U.S. 15 412, 421 (1986)). Second, the waiver must be "made with a full awareness of both the 16 nature of the right being abandoned and the consequences of the decision to abandon it." 17 Id. at 382-83 (quoting Burbine, 475 U.S. at 421). 18 Petitioner does not argue intimidation, coercion, or deception. (Doc. 1 at 7; Doc. 1-2 19 at 4; Doc. 14 at 3-4.) He argues the absence of meaningful alternatives implies coercion 20 and deception from his attorney. (Doc. 14 at 4.) Petitioner did not point to—and the Court 21 did not find—any Supreme Court precedent that is contrary to the appellate court 22 concluding that Petitioner could have asked for a new attorney. In fact, the Ninth Circuit 23 has affirmed that affirmed a ruling that a denial of defendant's request for new counsel did 24 not undermine his voluntary choice to absent himself from trial. See United States v. 25 Robinson, 921 F.2d 282, at *2 (9th Cir. 1990) (mem.). The state court's decision was neither 26 contrary to nor an unreasonable application of clearly established Supreme Court 27 precedent. The Court does not find that the state court's decision was based on an 28 unreasonable determination of the facts. 1 Review of Ineffective Assistance of Counsel Claims Under AEDPA 2 The Supreme Court set forth the clearly established federal law governing IAC 3 claims in Strickland v. Washington, 466 U.S. 668 (1984). See Pinholster, 563 U.S. at 189. 4 To establish that counsel was constitutionally ineffective under Strickland, "a defendant 5 must show both deficient performance by counsel and prejudice." Knowles v. Mirzayance, 6 556 U.S. 111, 122 (2009). Deficient performance is established when counsel's 7 representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 8 688. 9 In determining deficiency, "a court must indulge a strong presumption that counsel's 10 conduct falls within the wide range of reasonable professional assistance; that is, the 11 defendant must overcome the presumption that, under the circumstances, the challenged 12 action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 13 350 U.S. 91, 100-01 (1955)). To establish prejudice, a petitioner must show "a reasonable 14 probability that, but for counsel's unprofessional errors, the result of the proceeding would 15 have been different." Id. at 694. "A reasonable probability is a probability sufficient to 16 undermine confidence in the outcome." Id. This requires courts to consider "the totality of 17 the evidence before the . . . jury." Id. at 695. "The pivotal question is whether the state 18 court's application of the Strickland standard was unreasonable." Richter, 562 U.S. at 100. 19 "This is different from asking whether defense counsel's performance fell below 20 Strickland's standard." Id. 21 Petitioner's Claims for Ineffective Assistance of Counsel 22 Petitioner challenges the effectiveness of both his trial and appellate counsel. (Doc. 23 1 at 8, 10; Doc. 1-2 at 6-9.) In Claim III(b), he claims his appellate counsel was ineffective 24 in not raising his choice-of-counsel claim on direct appeal. (Doc. 1 at 8; Doc. 1-2 at 6-7.) 25 He argues the sentencing transcript contains evidence that he was denied retained counsel, 26 such that appellate counsel should have conducted an inquiry. (Doc. 14 at 5.) The state 27 appellate court denied this claim because Petitioner failed to support such a claim. Rivera 28 II, 2020 WL 4436259, ¶ 10. It specifically noted that "the record is void of any substantive 1 proof that [Petitioner] retained Ms. Udall as counsel for sentencing." Id. Thus, the court 2 concluded Petitioner failed to raise a claim that his appellate counsel's performance was 3 deficient. Id. Petitioner did not present an affidavit from either his trial counsel or Ms. 4 Udall to support his claim, even though the post-conviction court had provided "repeated 5 requests for extensions for [that] express purpose." Id. ¶ 9. 6 The Supreme Court has stated that it may be reasonable for appellate counsel to not 7 raise every nonfrivolous claim. See Smith v. Robbins, 528 U.S. 259, 288 (2000). In that 8 case, petitioner would need to show that the particular claim was "clearly stronger" than 9 the raised claims. Id. (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). The 10 Arizona Court of Appeals was not unreasonable or acting contrary to established federal 11 law when it concluded that an attorney was not deficient for not raising a claim absent 12 factual and legal support. Petitioner had multiple attempts to procure an affidavit to support 13 his claim and failed to do so. Additionally, there was no formal indication that Ms. Udall 14 had been retained. The state court's decision was neither contrary to nor an unreasonable 15 application of clearly established Supreme Court precedent because it is not deficient to 16 not raise claims without factual determination. The Court does not find that the state court's 17 decision was based on an unreasonable determination of the facts. 18 In Claim IV, Petitioner asserts his trial counsel afforded ineffective assistance 19 during plea negotiations. (Doc. 1 at 10; Doc. 1-2 at 8-9; Doc. 14 at 5-6.) The prosecutor 20 offered a plea agreement with a range of 5 to 51 years' imprisonment on three counts—one 21 class two felony and two class three felonies. (Doc. 10-2 at 89.) It would have been the 22 sentencing court's decision whether to sentence Petitioner to concurrent or consecutive 23 sentences. Id. The court noted that "typically [he] sentence[d] consecutively when there's 24 multiple victims and when there's a gun involved." Id. at 90. Petitioner went to trial and 25 was sentenced to 31.5 years' imprisonment, based on two class two felonies consecutively 26 and all other convictions running concurrently. (Doc. 10-1 at 20-29.) He argues his trial 27 counsel did not explain the plea colloquy and did not provide a written plea agreement for 28 consideration. (Doc. 1-2 at 8.) The appellate court noted that "although [Petitioner] stated 1 in his petition below that 'he would not have proceeded to trial' if Lansdale had acted 2 differently, he did not say that in his declaration or in his petition for review." Rivera II, 3 2020 WL 4436259, ¶ 15. The court also noted that the trial court had explained Petitioner's 4 exposure under the plea. Id. ¶ 13. The court stated that Petitioner had not argued the risks 5 were not explained to him or that he did not understand those risks. Id. ¶ 14. 6 To establish an ineffective-assistance-of-counsel claim during plea negotiations, a 7 petitioner must show "that counsel's representation fell below an objective standard of 8 reasonableness" and "that there is a reasonable probability that, but for counsel's 9 unprofessional errors, the result of the proceeding would have been different." Lafler v. 10 Cooper, 566 U.S. 156, 163 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985) and 11 Strickland, 466 U.S. at 694). Counsel has a duty to communicate formal officers from 12 prosecution to defendants. Missouri v. Frye, 566 U.S. 134, 145 (2012). The state appellate 13 court was not unreasonable when it identified that Petitioner had not declared that he would 14 have accepted the plea agreement had his counsel acted differently or that he had been 15 informed of the terms of the agreement, even if he did not receive a written agreement. The 16 state appellate court reasonably concluded the trial court had explained the risks of going 17 to trial to Petitioner. Therefore, the state court's decision was neither contrary to nor an 18 unreasonable application of clearly established Supreme Court precedent because it is not 19 deficient to not raise claims without factual determination. The Court does not find that the 20 state court's decision was based on an unreasonable determination of the facts. 21 Based on the above, Petitioner's claims should be denied, and his petition should be 22 dismissed. 23 V. RECOMMENDATION 24 Claim III(a) is procedurally defaulted. Petitioner's remaining claims lack merit. 25 Accordingly, it is recommended that the district court, after its independent review, deny 26 and dismiss the Petition. 27 Pursuant to 28 U.S.C. § 636(b)(1) and 72(b)(2), Fed. R. Civ. P., any party may serve 28 and file written objections within fourteen days of being served with a copy of the Report 1 || and Recommendation. A party may respond to the other party's objections within fourteen || days. No reply brief shall be filed on objections unless leave is granted by the district court. || If objections are not timely filed, they may be deemed waived. The Clerk of Court is 4|| directed to terminate the referral of this matter. Filed objections should bear the following 5 || case number: 4:21-cv-00296-TUC-JGZ. 6 Dated this Ist day of March, 2023. 7 8 9 10 Boni D Tons Fra 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-21-