Snee v. Shinn

• Court: District Court, D. Arizona
• Decided: March 8, 2022
• Docket: 2:21-cv-01108
• Status: Unknown

Opinion

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

9 Jason Luke Snee, No. CV-21-01108-PHX-DWL (MTM)

10 Petitioner, REPORT & RECOMMENDATION

11 v.

12 David Shinn,

13 Respondent. 14 15 TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE: 16 Petitioner Jason Luke Snee has filed a Petition for a Writ of Habeas Corpus pursuant 17 to 28 U.S.C. § 2254. (Doc. 1). 18 I. SUMMARY OF CONCLUSION 19 A jury in Maricopa County Superior Court convicted Petitioner of crimes involving 20 sexual misconduct with a minor. Petitioner timely filed a habeas petition asserting four 21 grounds for relief. Petitioner is not entitled to relief because the first ground is without 22 merit, the second and third grounds are procedurally defaulted, and the fourth ground is 23 without merit and non-cognizable. Accordingly, the Court recommends the petition be 24 denied and dismissed with prejudice. 25 II. BACKGROUND 26 A. Conviction & Sentencing. 27 In 2012, the State charged Petitioner with eleven counts, consisting of: aggravated 28 assault (Counts 1 and 2); indecent exposure (Count 3); public sexual indecency to a minor 1 (Count 4); sexual conduct with a minor (Counts 5, 6, 7, and 11); assault (Count 8); 2 contributing to the delinquency of a child (Count 9); and kidnapping (Count 10). (Doc. 9- 3 1, Ex. A, at 4–7). The victim of each offense was the fourteen-year-old daughter of 4 Petitioner’s then-girlfriend. (Doc. 9-2, Ex. EE, at 443, 445, 447, 454–460). At the time of 5 the abuse, Petitioner and his three children, the victim’s mother and her three children 6 (including the victim), and other family members resided in a home together in Phoenix. 7 (Id. at 448). The victim’s mother reported the abuse to the Phoenix Police Department. 8 (Doc. 9-2, Ex. DD, at 332–33). 9 After the victim confirmed the abuse allegations to Detective Christopher Villa, he 10 set up a “confrontation call” between the victim and Petitioner. (Id. at 340–41). Detective 11 Villa monitored and recorded this call. (Id. at 328, 341–42, 348–49). 12 During the call, the victim told Petitioner she had to discuss “sexual things” with a 13 counselor at school and asked him if he thought she should tell the counselor about the 14 sexual activity that had occurred between the two of them, to which he responded, “I 15 don’t.” (Doc. 9-1, Ex. O, at 104–05).1 When she insisted that she “had to tell” the counselor, 16 Petitioner responded, “You can always leave names out of it.” (Id. at 106). She asked 17 Petitioner, “Why did you have sex with me when I was only 14? I just don’t understand,” 18 to which he eventually responded, “I really loved you, I thought you were the one and one 19 thing led to another.” (Id. at 105). When she asked again later, Petitioner responded, “Well, 20 to be honest, I don’t think I ever thought it would go that far that quick the way that it did, 21 but, I feel, like I keep saying, but things just kind of kept happening.” (Id. at 106). She 22 asked why he chose her, and he answered, “Like I said earlier, because I really loved you 23 and you said you felt comfortable talking to me about anything and I felt comfortable 24 talk[ing] to you about anything.” (Id.). 25 After the confrontation call, Detective Villa brought Petitioner in for questioning. 26 (Doc. 9-2, Ex. DD, at 343–44). The videotaped interrogation began with Detective Villa 27

28 1 The record does not contain a transcript of the call. The statements from the call referenced herein are taken from the State’s appellate brief. (Doc. 9-1, Ex. O, at 104–06). 1 advising Petitioner of his Miranda rights, which Petitioner acknowledged he understood. 2 (Doc. 9-1, Ex. O, at 107).2 Detective Villa then asked Petitioner to describe his relationship 3 with the victim. (Id.). Petitioner stated she was “a good friend” and that they were “[v]ery 4 friendly, probably more so than we should have been.” (Id.). Petitioner eventually disclosed 5 he and the victim had engaged in numerous sexual acts while she was a minor, ranging 6 from “hugging and kissing” to intercourse. (Id. at 107–15). 7 At trial, the court admitted into evidence recordings of both the confrontation call 8 and the interrogation by Detective Villa. (Doc. 9-2, Ex. DD, at 348–51; Doc. 9-2, Ex. EE, 9 at 374). The jury found Petitioner guilty on Counts 4, 5, 6, and 9 and not guilty on Counts 10 8 and 10; it did not reach a verdict on Counts 1, 2, 3, 7, and 11. (Doc. 9-1, Ex. J, at 56–58). 11 The court sentenced Petitioner to consecutive terms of 18 years’ imprisonment for Counts 12 5 and 6 and a term of 6 months’ imprisonment for Count 9, and placed him on lifetime 13 probation for Count 4. (Doc. 9-1, Ex. K, at 60; Doc. 9-1, Ex. L, at 62–67). 14 B. Direct Appeal. 15 Petitioner appealed. (Doc. 9-1, Ex. M, at 69–70). His sole claim on appeal was the 16 trial court “should have held a voluntariness hearing prior to the introduction of the 17 interrogation video to the jury,” arguing such a hearing was required under A.R.S. § 13- 18 3988(A). (Doc. 9-1, Ex. N, at 72–87). The Arizona Court of Appeals affirmed his 19 convictions. (Doc. 9-1, Ex. P, at 133–137). On August 31, 2018, the Arizona Supreme 20 Court denied review. (Doc. 9-1, Ex. R, at 157). 21 C. Post-Conviction Relief. 22 On October 29, 2018, Petitioner filed a notice of post-conviction relief (“PCR”). 23 (Doc. 9-1, Ex. S, at 159–62). Petitioner filed a pro se PCR petition alleging his trial counsel 24 was ineffective, the confrontation call violated his Miranda rights, the State withheld 25 certain evidence and refused to correct false testimony, and the trial judge was not 26 disinterested and imposed an unlawful sentence. (Doc. 9-1, Ex. T, at 164–261). In response,

27 2 The record does not contain a transcript of the interview. As with the confrontation 28 call, the statements from the interview referenced herein are taken from the State’s appellate brief. (Doc. 9-1, Ex. O, at 107–15). 1 the State argued Petitioner’s claims of ineffective assistance of counsel were without merit 2 and Ariz. R. Crim. P. 32.2(a)(3) precluded his remaining claims because “he could have, 3 but failed to, raise them on direct appeal.” (Doc. 9-1, Ex. U, at 263–72). The PCR court 4 summarily dismissed the petition for “the reasons stated in the State’s Response.” (Doc. 9- 5 1, Ex. W, at 283). 6 Petitioner filed a petition for review in the Arizona Court of Appeals alleging the 7 PCR court abused its discretion and violated due process in denying his PCR petition, his 8 trial and appellate counsel were ineffective, and the trial court sentenced him under the 9 wrong state statute. (Doc. 9-2, Ex. X, at 4–27). The Arizona Court of Appeals granted 10 review but denied relief, finding no abuse of discretion by the PCR court. (Doc. 9-2, Ex. 11 Z, at 32–33). Petitioner did not seek review by the Arizona Supreme Court, and on October 12 20, 2020, the Arizona Court of Appeals issued its mandate. (Id. at 31). 13 III. PETITION FOR A WRIT OF HABEAS CORPUS 14 On June 25, 2021, Petitioner filed a habeas petition in this Court (doc. 1) raising 15 four grounds for relief as summarized by this Court: 16 In Ground One, Petitioner asserts he received ineffective of counsel because his counsel refused to interview or call anyone on Petitioner’s behalf; refused 17 to file any motions on his behalf; and ignored Rule 8 of the Arizona Rules of 18 Criminal Procedure “for years.” 19 In Ground Two, Petitioner contends his confession was involuntary, and “due-process [was] ignored.” 20 In Ground Three, Petitioner claims “corpus delicti was never met” and the 21 State withheld material vital his defense and presented “known false material.” 22 In Ground Four, Petitioner asserts that the jury’s failure to return a verdict on 23 five charges violated his Sixth Amendment rights and constituted 24 fundamental, reversible error. 25 (Doc. 5 at 2). 26 Respondent asserted that the petition should be dismissed because Petitioner’s 27 claims are either procedurally defaulted without excuse or without merit. (Doc. 9). 28 Petitioner did not file a reply. 1 IV. APPLICABLE LAW 2 A. Requisites for Federal Review. 3 1. Exhaustion of State Remedies. 4 “Before seeking a federal writ of habeas corpus, a state prisoner must exhaust 5 available state remedies, thereby giving the State the opportunity to pass upon and correct 6 alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) 7 (cleaned up); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary 8 ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state court.” 9 Baldwin, 541 U.S. at 29 (citations omitted). Fair presentation requires a prisoner to “clearly 10 state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. 11 Neven, 641 F.3d 322, 326 (9th Cir. 2011); see also Casey v. Moore, 386 F.3d 896, 913 (9th 12 Cir. 2004) (“[U]nless the petitioner clearly alerts the court that he is alleging a specific 13 federal constitutional violation, the petitioner has not fairly presented the claim.”). 14 “To exhaust one’s state court remedies in Arizona, a petitioner must first raise the 15 claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction 16 relief.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). In non-capital cases, claims 17 of Arizona prisoners “are exhausted for purposes of federal habeas once the Arizona Court 18 of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); 19 see Crowell v. Knowles, 483 F. Supp. 2d 925, 933 (D. Ariz. 2007). 20 2. Absence of a State Procedural Bar. 21 “[A] federal court will not review the merits of claims, including constitutional 22 claims, that a state court declined to hear because the prisoner failed to abide by a state 23 procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). “A state court’s invocation of a 24 procedural rule to deny a prisoner’s claims precludes federal review of the claims if, among 25 other requisites, the state procedural rule is a nonfederal ground adequate to support the 26 judgment and the rule is firmly established and consistently followed.” Id. A procedural 27 bar is implied where “the petitioner failed to exhaust state remedies and the court to which 28 the petitioner would be required to present his claims in order to meet the exhaustion 1 requirement would now find the claims procedurally barred.” Coleman v. Thompson, 501 2 U.S. 722, 735 n.1 (1991); see Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“If 3 [petitioner] has any unexhausted claims, he has procedurally defaulted them, because he is 4 now time-barred under Arizona law from going back to state court.”). To obtain review of 5 a procedurally defaulted claim, the petitioner must show “either cause for the default and 6 resulting prejudice, or that failure to review the claims would result in a fundamental 7 miscarriage of justice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005). 8 “‘Cause’ . . . must be something external to the petitioner, something that cannot fairly be 9 attributed to him.” Coleman, 501 U.S. at 753. The fundamental miscarriage of justice 10 “exception is limited to those who are actually innocent.” Poland v. Stewart, 117 F.3d 11 1094, 1106 (9th Cir. 1997). 12 Ariz. R. Crim. P. 32.2(a)(3) precludes relief on any claim “waived at trial or on 13 appeal, or in any previous post-conviction proceeding, except when the claim raises a 14 violation of a constitutional right that can only be waived knowingly, voluntarily, and 15 personally by the defendant.” Id.; see Stewart v. Smith, 202 Ariz. 446, 449–50 (2002) 16 (holding a defendant waives a claim merely by failing to raise it at the appropriate time 17 unless the claim implicates a right “of sufficient constitutional magnitude to require 18 personal waiver by the defendant,” e.g., the right to a jury or counsel).3 “Arizona’s waiver 19 rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 20 780 (9th Cir. 2014); see also Beaty, 303 F.3d at 987. 21 // 22 23 3 Effective January 1, 2020, the Arizona Supreme Court abrogated Rule 32 and divided its substance among new Rule 32 (applying to defendants convicted at trial) and 24 Rule 33 (applying to pleading defendants). Ariz. Sup. Ct. Order No. R–19–0012, at https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure. The 25 new rules apply to PCR proceedings initiated or pending on or after January 1, 2020 unless 26 “applying the rule or amendment would be infeasible or work an injustice.” Id.; see State v. Mendoza, 249 Ariz. 180, 182 n.1 (App. 2020); McCray v. Shinn, No. CV-17-01658- 27 PHX-DJH, 2020 WL 919180, at *4 n.4 (D. Ariz. Feb. 26, 2020). New Rule 32.2(a)(3) is 28 substantively identical to former Rule 32.2(a)(3) except that it expressly incorporates the exception to waiver articulated in Smith, 202 Ariz. at 449–50. 1 B. Standard of Federal Review. 2 To obtain relief, the petitioner must show the state courts’ adjudication of a claim: 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 the 6 State court proceeding. 7 28 U.S.C. § 2254(d). “This [unreasonableness] ‘standard is difficult to meet.’” Mays v. 8 Hines, 141 S. Ct. 1145, 1149 (2021) (citation omitted). “‘[O]rdinary error[s]’” or even 9 “circumstances where the petitioner offers ‘a strong case for relief’” do not suffice. Id. 10 (citation omitted). Rather, a petitioner must demonstrate “a decision was so lacking in 11 justification beyond any possibility for fairminded disagreement.” Id. (cleaned up). 12 V. ANALYSIS 13 A. Ground One. 14 In Ground One, Petitioner claims his trial counsel was ineffective because counsel 15 (1) “refused to interview or call anyone [on his] behalf” (2) “refused to argue or file any 16 motions [on his] behalf” and (3) “ignored” Ariz. R. Crim. P. 84 “for years.” (Doc. 1 at 5). 17 These claims are exhausted because Petitioner fairly presented them as violations 18 of federal law to the Arizona Court of Appeals in his PCR petition for review (doc. 9-2, 19 Ex. X, at 6, 8–18). See Swoopes, 196 F.3d at 1010. The Court consider their merits under 20 28 U.S.C. § 2254(d) by reviewing the reasonableness of “the last reasoned state-court 21 decision” adjudicating them. Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). Here, 22 the last reasoned decision was by the PCR court, which denied the claims “[f]or the reasons 23 stated in the State’s Response [to Petitioner’s PCR petition].” (Doc. 9-1, Ex. W, at 283; see 24 Doc. 9-1, Ex. U, at 268–71).5 25

26 4 Ariz. R. Crim. P. 8.3 provides a right to a speedy trial in criminal cases. 5 The Arizona Court of Appeals did not articulate its reasons for finding the PCR 27 court had not abused its discretion in denying these claims. (See Doc. 9-2, Ex. Z, at 33). As 28 such, this Court presumes the Arizona Court of Appeals “agreed with and adopted the reasons given by the [PCR] court.” Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016). 1 To succeed on a claim of ineffective assistance of counsel, a defendant must show 2 (1) “that counsel’s representation fell below an objective standard of reasonableness” and 3 (2) “that the deficient performance prejudiced the defense,” i.e., “a reasonable probability 4 that, but for counsel’s unprofessional errors, the result of the proceeding would have been 5 different.” Strickland v. Washington, 466 U.S. 668, 687–90, 694 (1984). “[A] court must 6 indulge a strong presumption that counsel’s conduct falls within the wide range of 7 reasonable professional assistance; that is, the defendant must overcome the presumption 8 that, under the circumstances, the challenged action ‘might be considered sound trial 9 strategy.’” Id. at 689 (citation omitted). “The likelihood of a different result must be 10 substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). On 11 habeas review, the petitioner carries the burden of showing “the state court applied 12 Strickland to the facts of his case in an objectively unreasonable manner.” Woodford v. 13 Visciotti, 537 U.S. 19, 25 (2002). 14 As an initial matter, Ground One is subject to dismissal due to Petitioner’s failure 15 to allege any specific facts as to how counsel’s allegedly deficient performance prejudiced 16 him. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are 17 not supported by a statement of specific facts do not warrant habeas relief.”). Nevertheless, 18 the Court will address Ground One on its merits, incorporating the more specific claims 19 and facts Petitioner alleged in his PCR petition for review. 20 In his PCR petition for review, Petitioner alleged his trial counsel “conducted no 21 pretrial investigation or interviews with any witnesses for the State or [the defense].” (Doc. 22 9-2, Ex. X, at 10). He alleged he told counsel that “several individuals could/would have 23 testif[ied] that the victim was lying at the behest of her mother . . . who was conspiring 24 with his ex-wife . . . to strip him of custody of their three children.” (Id. at 11). Petitioner 25 alleged that “had [counsel] interviewed and called [these] witnesses,” including one who 26 died before trial, “they could have shown bias and perjury on part of the victim . . . and her 27 mother . . . and [his] factual innocence.” (Id. at 10). Further, Petitioner alleged counsel was 28 ineffective for failing to challenge the admissibility of the confrontation call as “an 1 unmirandized investigative interrogation.” (Id. at 15). Lastly, Petitioner alleged that 2 counsel “fail[ed] to comply with [his] demand for a speedy trial” by seeking “numerous 3 pretrial continuances” without his consent. (Id. at 11–12). 4 In the State’s response to Petitioner’s PCR petition, which the PCR court adopted 5 in denying Petitioner’s claims, the State argued that Petitioner failed to overcome the 6 presumption that his counsel’s decisions were tactical as opposed to deficient and that he 7 failed to show prejudice because “nothing in the record reflect[ed] that his outcome would 8 have been different for any of his claims.” (Doc. 9-1, Ex. U, at 271). 9 This Court finds that the PCR court reasonably applied Strickland when it denied 10 Petitioner’s claims. Given the great weight of the State’s evidence at trial—notably, 11 Petitioner’s videotaped admissions to Detective Villa, which included his graphic 12 descriptions of his sexual contact with the victim—there is no “reasonable probability” 13 Petitioner would have obtained a more favorable outcome at trial had counsel taken 14 Petitioner’s desired actions.6 15 First, there is no “reasonable probability” the outcome would have been more 16 favorable had counsel presented evidence or testimony challenging the credibility of the 17 victim and her mother because such evidence or testimony would not have diminished the 18 probative power of Petitioner’s own admissions and their likely effect on the jury’s 19 decision to convict him. Given this overwhelming evidence of guilt, which was 20 independent of the testimony of the victim and her mother, there is no “reasonable 21 probability” the result of trial would have been different had the credibility of the victim 22 and her mother been called into question. See Strickland, 466 U.S. at 695 (holding the 23 prejudice determination requires a court to “consider the totality of the evidence before the 24 judge or jury” and the extent to which the verdict was “supported by the record”).

25 6 Because Petitioner fails to show prejudice from counsel’s alleged errors, the Court 26 need not determine whether counsel’s performance was actually deficient. See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim 27 . . . to address both components of the inquiry if the defendant makes an insufficient 28 showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.”). 1 Similarly, there is no “reasonable probability” the outcome would have been more 2 favorable had counsel successfully moved for the exclusion of the confrontation call. 3 During the confrontation call, Petitioner admitted he had sex with the victim while she was 4 fourteen, which he also admitted during his interrogation by Detective Villa. See Section 5 II.A, supra. Thus, a motion to exclude the confrontation call, even if successful, would 6 likely not have resulted in a more favorable outcome because other evidence before the 7 jury contained this same and other admissions. See Styers v. Schriro, 547 F.3d 1026, 1030 8 n.5 (9th Cir. 2008) (“[A] defendant claiming ineffective assistance of counsel for failure to 9 file a particular motion must not only demonstrate a likelihood of prevailing on the motion, 10 but also a reasonable probability that the granting of the motion would have resulted in a 11 more favorable outcome in the entire case.”). 12 Lastly, there is no “reasonable probability” the outcome of trial would have been 13 more favorable had the trial taken place sooner rather than later. As an initial matter, the 14 record is sparse with regards to the pre-trial continuances that were filed; only two are in 15 the record before the Court, though at least twenty were filed. (See Doc. 9-1, Ex. G, at 40– 16 42 (Fifth Request for a Continuance, 4/15/2015); Doc. 9-1, Ex. H, at 45–47 (Twentieth 17 Request for a Continuance, 6/21/2016); see also Doc. 9-2, Ex. JJ, at 719–23 (trial court 18 docket)). The record also contains an order dated July 21, 2014 in which the trial court 19 found Petitioner “waived the applicable time limits” for the one-month period of July 21, 20 2014 to August 21, 2014 (doc. 9-1, Ex. G, at 43); however, it does not indicate whether 21 any additional waivers were obtained for the remainder of the pre-trial period.7 In any 22 event, the only conceivable prejudice Petitioner alleges from trial delay is that a witness he 23 intended to present to challenge the credibility of the victim and her mother died before 24 trial. (Doc. 9-2, Ex. X, at 10). However, as explained above, there is no “reasonable 25 probability” that such testimony would have resulted in a different outcome. Petitioner, 26 therefore, fails to show he was prejudiced by a later trial date, even if, arguendo, his counsel 27

28 7 At sentencing, Petitioner was credited 1,616 days (roughly four and a half years) for time spent in pre-trial custody. (Doc. 9-1, Ex. K, at 60). 1 unreasonably delayed trial. See Barker v. Wingo, 407 U.S. 514, 530–32 (1972) (identifying 2 “prejudice” from the delay as a factor in determining whether a speedy trial violation 3 occurred). 4 Petitioner fails to show the PCR court “applied Strickland to the facts of his case in 5 an objectively unreasonable manner,” Woodford, 537 U.S. at 25, and therefore fails to show 6 he is entitled to habeas relief on Ground One. Accordingly, the Court recommends that 7 Ground One be dismissed for lack of merit. 8 B. Ground Two. 9 Petitioner claims his incriminating statements during the confrontation call and the 10 subsequent interrogation by Detective Villa were involuntary and in violation of his 11 Miranda rights. (Doc. 1 at 7). Petitioner alleges that in his “confession the ONLY person 12 [he] ever mentions or speaks of is [the victim’s mother]” and the “only one” who mentioned 13 the victim was the detective. (Id.). Petitioner concludes due process was “ignored.” (Id.). 14 Petitioner is not entitled to relief on Ground Two. Ground Two’s claims are 15 unexhausted and are implicitly procedurally defaulted because Petitioner is procedurally 16 barred from asserting them in state court now. 17 Petitioner did not fairly present Ground Two’s claims to the Arizona Court of 18 Appeals on direct review. There, Petitioner merely argued that the trial court failed to hold 19 a hearing allegedly required under state law. (See Doc. 9-1, Ex. N, at 83 (“The issue 20 presented to this Court is whether A.R.S. § 13-3998(A) requires the trial court to conduct 21 a voluntariness hearing, outside the presence of the jury, whenever the State offers a 22 defendant’s confession as evidence, even if one is not requested by the defense.”)). 23 Critically, Petitioner did not allege a violation of any specific federal law or right in support 24 of his argument as required for proper exhaustion (see id. at 83–86). See Casey, 386 F.3d 25 at 913 (“[U]nless the petitioner clearly alerts the court that he is alleging a specific federal 26 constitutional violation, the petitioner has not fairly presented the claim.”). Petitioner’s 27 cursory assertion at the end of his argument that the trial court had both a “statutory and 28 constitutional responsibility” to determine the voluntariness of his statements at such a 1 hearing (id. at 86 (emphasis added)) did not constitute fair presentation of the claims 2 asserted here. See Castillo v. McFadden, 399 F.3d 993, 1003 (2005) (“Exhaustion demands 3 more than drive-by citation, detached from any articulation of an underlying federal legal 4 theory.”). A factual overlap between the claims asserted here and Petitioner’s claim on 5 appeal is also insufficient. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (“It is not enough 6 that all the facts necessary to support the federal claim were before the state courts or that 7 a somewhat similar state-law claim was made.” (citations omitted)); Johnson v. Zenon, 88 8 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he 9 is raising a federal constitutional claim, his federal claim is unexhausted regardless of its 10 similarity to the issues raised in state court.”). 11 Petitioner also failed to fairly present Ground Two’s claims to the Arizona Court of 12 Appeals on collateral review. In his PCR petition for review, Petitioner alleged his trial 13 counsel was ineffective for, among other things, failing to challenge the admissibility of 14 the confrontation call as “an unmirandized investigative interrogation.” (Doc. 9-2, Ex. X, 15 at 15). However, the claim was not fairly presented because it was presented as an issue 16 ineffectively handled by counsel rather than as a free-standing ground for relief. See Rose 17 v. Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005) (“[A]lthough [petitioner’s] Fifth 18 Amendment claim is related to his claim of ineffective assistance, he did not fairly present 19 the Fifth Amendment claim to the state courts when he merely discussed it as one of several 20 issues which were handled ineffectively by his trial and appellate counsel. While 21 admittedly related, they are distinct claims with separate elements of proof, and each claim 22 should have been separately and specifically presented to the state courts.”). Thus, Ground 23 Two is unexhausted because Petitioner did not fairly present its claims to the Arizona Court 24 of Appeals. See Swoopes, 196 F.3d at 1010; Roettgen, 33 F.3d at 38. 25 Petitioner is barred from returning to state court to properly exhaust the claims in 26 Ground Two. See Ariz. R. Crim. P. 32.2(a)(3). Ground Two, therefore, is implicitly 27 procedurally defaulted and consequently barred from this Court’s review. See Coleman, 28 501 U.S. at 735 n.1; Hurles, 752 F.3d at 780 (“Arizona’s waiver rules are independent and 1 adequate bases for denying relief.”); Beaty, 303 F.3d at 987 (“If [petitioner] has any 2 unexhausted claims, he has procedurally defaulted them, because he is now time-barred 3 under Arizona law from going back to state court.”). Petitioner does not attempt to excuse 4 the procedural default or show that he is actually innocent. Accordingly, the Court 5 recommends that Ground Two be dismissed with prejudice as unexhausted and 6 procedurally defaulted without excuse. 7 C. Ground Three. 8 In Ground Three, Petitioner claims “corpus delicti was never met” and that the 9 “State withheld material vital to [his] defense [and] presented known false material.” (Doc. 10 1 at 8). Petitioner alleges the State “showed no loss, injury, [or] damage” and relied only 11 on testimony from the detective with “no corroboration, no witness, no proof, [and] no 12 evidence.” (Id.). He further alleges the victim’s identification of him “by scars on arms” is 13 “not proof of sexual anything” because the “entire family lived with [him]” and that he 14 “repeatedly pointed out to counsel his intimate piercing [and] was ignored.” (Id.). 15 Petitioner is not entitled to relief on Ground Three. Petitioner did not present these 16 claims to the Arizona Court of Appeals on direct review (doc. 9-1, Ex. N, at 72–87) or 17 collateral review (doc. 9-2, Ex. X, at 4–27). Therefore, they are unexhausted. See Swoopes, 18 196 F.3d at 1010; Roettgen, 33 F.3d at 38. Petitioner is also barred from returning to state 19 court to properly exhaust them now. See Ariz. R. Crim. P. 32.2(a)(3). Ground Three, 20 therefore, is implicitly procedurally defaulted and consequently barred from this Court’s 21 review. See Coleman, 501 U.S. at 735 n.1; Hurles, 752 F.3d at 780; Beaty, 303 F.3d at 987. 22 Petitioner does not show cause to excuse the procedural default or that he is actually 23 innocent. Petitioner merely alleges he did not raise these claims on direct appeal because 24 his appellate counsel “only brought up voluntariness of confession.” (Doc. 1 at 9). To 25 establish cause to excuse a procedural default on the basis of counsel’s failure to raise a 26 claim, a petitioner must show that the failure “amounted to a deprivation of the 27 constitutional right to counsel,” which requires showing that the omitted claims were 28 “plainly stronger than those actually presented to the appellate court,” Davila v. Davis, 137 1 S. Ct. 2058, 2065, 2067 (2017), and overcoming the presumption that counsel’s choice to 2 forego these claims fell “within the wide range of reasonable professional assistance,” 3 Strickland, at 689. Counsel is not ineffective merely for failing to raise every nonfrivolous 4 issue possible. See Davila, 137 S. Ct. at 2067 (“Effective appellate counsel should not raise 5 every nonfrivolous argument on appeal, but rather only those arguments most likely to 6 succeed.”); Murray v. Carrier, 477 U.S. 478, 486 (1986) (“[T]he mere fact that counsel 7 failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite 8 recognizing it, does not constitute cause for a procedural default.”). Because Petitioner has 9 not shown (or even alleged) that his appellate counsel’s failure to raise these claims 10 constituted constitutionally deficient performance, he fails to show cause to excuse their 11 procedural default on that basis. 12 Accordingly, the Court recommends that Ground Three be dismissed with prejudice 13 as unexhausted and procedurally defaulted without excuse. 14 D. Ground Four. 15 Petitioner claims the absence of a verdict on Counts 1, 2, 3, 7, and 11 violated his 16 rights under the Sixth Amendment. (Doc. 1 at 10).8 17 As an initial matter, the Court does not need to determine whether Petitioner 18 exhausted Ground Four because it is plainly meritless. See 28 U.S.C. § 2254(b)(2) (“An 19 application for a writ of habeas corpus may be denied on the merits, notwithstanding the 20 failure of the applicant to exhaust the remedies available in the courts of the State.”); 21 Medley v. Ryan, No. CV–12–762–PHX–GMS (BSB), 2012 WL 6814246, at *5 (D. Ariz. 22 Dec. 10, 2012) (“Respondents argue that this claim is procedurally barred. The Court will 23 nonetheless address the claim because it is plainly meritless.”), adopted by 2013 WL 24 105269 (D. Ariz. Jan. 9, 2013).

25 8 Petitioner also claims the jury’s failure to return a verdict violated provisions of the 26 Arizona constitution. (Doc. 1 at 10.) However, this component of Ground Four is non- cognizable because “federal habeas corpus relief does not lie for errors of state law.” 27 Swarthout v. Cooke, 562 U.S. 216, 219 (2011); see Estelle v. McGuire, 502 U.S. 62, 68 28 (1991) (“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”). 1 Ground Four is without merit. Petitioner does not cite, nor is the Court aware of, 2 any opinion from the United States Supreme Court holding that a jury’s failure to reach a 3 verdict on a charge—in other words, not convicting the defendant—violates a defendant’s 4 Sixth Amendment rights. The Court, therefore, finds no clearly established federal law that 5 would entitle Petitioner to relief on Ground Four. See 28 U.S.C. § 2254(d)(1). 6 Further, the absence of a conviction on these counts means Petitioner is not “in 7 custody pursuant” to them, which precludes the Court from granting relief. See 28 U.S.C. 8 § 2254(a) (“[A] district court shall entertain an application for a writ of habeas corpus in 9 behalf of a person in custody pursuant to the judgment of a State court only on the ground 10 that he is in custody in violation of the Constitution or laws or treaties of the United States.” 11 (emphasis added)); Maleng v. Cook, 490 U.S. 488, 490–91 (1989) (requiring “the habeas 12 petitioner be ‘in custody’ under the conviction or sentence under attack at the time his 13 petition his filed”). Accordingly, the Court recommends that Ground Four be dismissed. 14 VI. CONCLUSION 15 The record is sufficiently developed; therefore, an evidentiary hearing is not 16 necessary. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). For the reasons 17 discussed in this Report, Petitioner is not entitled to habeas relief. Accordingly, the Court 18 will recommend that Petitioner’s petition be denied and dismissed with prejudice. 19 VII. CERTIFICATE OF APPEALABILITY 20 “The district court must issue or deny a certificate of appealability when it enters a 21 final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Cases, 28 22 U.S.C. § 2254. A certificate of appealability may issue “only if the applicant has made a 23 substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), “by 24 demonstrating that jurists of reason could disagree with the district court’s resolution of his 25 constitutional claims or that jurists could conclude the issues presented are adequate to 26 deserve encouragement to proceed further,” Miller–El v. Cockrell, 537 U.S. 322, 327 27 (2003). Because Petitioner has not made the requisite showing here, the Court will 28 recommend that a certificate of appealability be denied. 1 IT IS THEREFORE RECOMMENDED that the Petition for a Writ of Habeas || Corpus (doc. 1) be denied and dismissed with prejudice. 3 IT IS FURTHER RECOMMENDED that a certificate of appealability be denied. 4 This recommendation is not an order that is immediately appealable to the Ninth 5 || Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should || not be filed until entry of the District Court’s judgment. The parties shall have 14 days 7\|| from the date of service of a copy of this recommendation within which to file specific 8 || written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. 9|| Thereafter, the parties have 14 days within which to file a response to the objections. 10 Failure to file timely objections to the Magistrate Judge’s Report and 11 || Recommendation may result in the acceptance of the Report and Recommendation by the || District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 13 || 1121 (th Cir. 2003). Failure to file timely objections to any factual determinations of the 14|| Magistrate Judge may be considered a waiver of a party’s right to appellate review of the || findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s 16 || recommendation. See Fed. R. Civ. P. 72. 17 Dated this 8th day of March, 2022. 18 19 War Areak V- Prorcis □□ 20 United States Masistrate □□□□□□ 21 22 23 24 25 26 27 28

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