Sosnowicz v. Shinn

• Court: District Court, D. Arizona
• Decided: June 30, 2021
• Docket: 2:20-cv-00040
• Status: Unknown

Opinion

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

9 Jonathan L. Sosnowicz, No. CV-20-0040 PHX DGC (MTM)

10 Petitioner, ORDER

11 v.

12 David Shinn, et al.,

13 . Respondent 14 15 Jonathan Sosnowicz has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 16 (Doc. 1) and a motion for certificate of appealability (Doc. 24). Magistrate Judge Michael 17 Morrissey has issued a report recommending that the petition be denied (“R&R”). Doc. 18 20. Sosnowicz objects. Doc. 23. The Court will accept the R&R with respect to grounds 19 two through five and part of ground one, deny the petition and motion with respect to these 20 claims, and hold an evidentiary hearing on the remaining portion of ground one. 21 I. Background. 22 In November 2008, Sosnowicz struck and killed the victim, J.P., with his vehicle 23 after a physical altercation outside of a bar. See State v. Sosnowicz, 270 P.3d 917, 919-21 24 (Ariz. Ct. App. 2012). In September 2010, a jury convicted Sosnowicz of second-degree 25 murder and three counts of aggravated assault. See id. Sosnowicz was sentenced to 22 26 years in prison for count one and three concurrent 8.5-year prison terms for counts two 27 through four, all running consecutively to the 22-year term for count one. Id. 28 II. Procedural History. 1 A. Direct Appeal. 2 In June 2011, Sosnowicz appealed his convictions and sentences to the Arizona 3 Court of Appeals, which affirmed the convictions and sentences in two concurrently filed 4 decisions. Doc. 15-2 at 397-419, 478-505, 507-08.1 The Court of Appeals held that: (1) 5 admission of the medical examiner’s testimony that the victim’s death was a homicide was 6 harmless error, and (2) the trial court did not err in precluding evidence of the victim’s 7 blood alcohol level. Sosnowicz, 270 P.3d at 918-19; State v. Sosnowicz, No. 1 CA-CR 10- 8 0789, 2012 WL 1843716, at *1 (Ariz. Ct. App. Mar. 8, 2012). Sosnowicz did not seek 9 review by the Arizona Supreme Court, and the Arizona Court of Appeals issued its mandate 10 in August 2012. Doc. 15-2 at 478. 11 B. First Post-Conviction Relief (“PCR”) Proceeding. 12 In April 2013, Sosnowicz filed a PCR petition arguing that his trial counsel rendered 13 ineffective assistance of counsel (“IAC”) by: (1) failing to object to comments by the 14 prosecutor that Sosnowicz had two girlfriends and the jury could consider this fact in 15 determining his credibility, and (2) calling witnesses who were drunk at the time of the 16 incident and provided damaging testimony. Doc. 15-2 at 513-22. Neal Bassett, the 17 attorney who handled Sosnowicz’s direct appeal, also represented him in the PCR 18 proceeding. 19 The PCR court summarily dismissed the petition, and Sosnowicz filed a petition for 20 review in the Arizona Court of Appeals in March 2014. Id. at 552, 554-69. In April 2016, 21 the Court of Appeals held that the PCR petition was defective for failing to identify the 22 relevant standard for IAC claims or demonstrating that trial counsel’s conduct had no 23 reasoned basis. Id. at 585-87. And even if counsel’s performance was deficient, the court 24 held, Sosnowicz had not shown that different tactics would have produced a different trial 25 result. Id. at 587. Sosnowicz did not seek review in the Arizona Supreme Court, and the 26 Court of Appeals issued its mandate in December 2016. Doc. 15-2. at 591. 27 C. Professional Misconduct by Appellate and PCR Counsel.

28 1 Page citations are to numbers placed at the top of pages by the electronic filing system. 1 In May 2016, Sosnowicz’s new counsel, David Goldberg, requested Sosnowicz’s 2 trial files from the Maricopa County Public Defender’s Office upon discovering that he did 3 not have access to Sosnowicz’s entire trial record. See Doc. 19-7 at 10. The Office 4 informed Goldberg that it had released the entire file to Bassett – Sosnowicz’s former PCR 5 and appellate counsel – in 2012. Id. When Goldberg requested the remaining materials 6 from Bassett, he received no response. Id. at 19. In July 2016, the Arizona Supreme Court 7 ordered Bassett to deliver to Goldberg all files in his possession related to Sosnowicz’s 8 case. Id. In August 2016, Bassett filed a Notice of Compliance, stating that he had 9 provided Sosnowicz and his new counsel with “everything [he] had” and had “nothing left 10 to give them.” Id. at 22. 11 In January 2017, the State Bar of Arizona issued an order of admonition to Bassett 12 for violating the Arizona Rules of Professional Conduct by: (1) engaging in a conflict of 13 interest by representing Sosnowicz in both his direct appeal and his first PCR proceeding, 14 depriving him of the chance of bringing an appellate-counsel IAC claim in the PCR 15 proceeding (Rule 42, ER 1.7); and (2) failing to timely communicate with Sosnowicz’s 16 new attorney regarding the trial file (Rule 42, ER 8.4(d)). Id. at 43. 17 D. Second PCR Proceeding. 18 Sosnowicz filed a second, successive PCR petition through new counsel in March 19 2017. Docs. 15-2 at 1-132; 15-3 at 593-98. The petition raised trial- and appellate-counsel 20 IAC claims, as well as an actual innocence claim. 21 First, Sosnowicz argued that his trial counsel had failed to: (1) explain to Sosnowicz 22 that he could be convicted of second-degree murder for reckless conduct, which led him to 23 reject a favorable plea offer; and (2) competently investigate, research, and present a 24 defense of involuntary act and lack of criminal intent due to semi-conscious conduct. Doc. 25 15-3 at 2 3. 26 Second, Sosnowicz argued that his appellate counsel, Bassett, was ineffective for 27 failing to argue on direct appeal that: (1) the trial court’s preclusion of evidence about his 28 involuntary behavior and lack of criminal intent deprived him of his constitutional right to 1 present a complete defense; and (2) the admission of prior bad act evidence violated his 2 constitutional right to a fair trial. Id. 3 Finally, Sosnowicz made an actual innocence claim, arguing that expert testimony 4 established that he was innocent because he was “semi-conscious and acting involuntarily” 5 when driving his vehicle toward the victim. Id. 6 In May 2017, the PCR court dismissed Sosnowicz’s trial-counsel IAC claims as 7 precluded under state law because Sosnowicz did not timely raise them during his first 8 PCR proceeding. Doc. 15-3 at 136-37; Ariz. R. Crim. P. 32.2(a)(3) (2019) (providing that 9 a defendant is precluded from relief under Rule 32.1 “based on any ground . . . waived at 10 trial, on appeal, or in any previous collateral proceeding”).2 In August 2017, the PCR 11 court dismissed the remaining two claims on the merits, finding that Sosnowicz had made 12 no “colorable” argument with respect to either claim. Id. at 178. The Arizona Court of 13 Appeals affirmed in July 2018. Doc. 15-4 at 2-9. The Arizona Supreme Court denied 14 review in April 2020. Id. at 15. 15 E. Petition for Writ of Habeas Corpus. 16 Sosnowicz filed this habeas petition in January 2020, raising five grounds for relief. 17 Doc. 1. Grounds one through three assert that Bassett failed, in the first PCR proceeding, 18 to raise: (1) certain IAC claims with respect to Sosnowicz’s trial counsel; (2) IAC claims 19 with respect to appellate counsel; and (3) an actual innocence claim based on expert 20 testimony. See id. at 6-16. Ground four alleges that the trial court erred in admitting, and 21 precluding, certain testimony of a medical examiner in violation of Sosnowicz’s 22 constitutional rights. Id. at 17. Ground five alleges that trial counsel rendered ineffective

23 2 Rule 32.1 was amended, effective January 2020, to provide that a defendant is precluded from relief “based on any ground . . . waived at trial or on appeal, or in any 24 previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the 25 defendant.” Ariz. R. Crim. P. 32.2(a)(3) (emphasis added). This exception, applicable to all actions filed on or after January 1, 2020, appears to codify longstanding Arizona case 26 law providing that the waiver exception applies only to claims of “sufficient constitutional magnitude” such as waiver of the right to counsel, a jury trial, or a twelve-person jury under 27 the Arizona Constitution. Stewart v. Smith, 46 P.3d 1067, 1070 (Ariz. 2002). Because Sosnowicz’s second PCR petition was filed in 2017, the new rule does not apply to it, but 28 the waiver exception for claims of sufficient constitutional magnitude still applies, as will be discussed below. 1 assistance by calling intoxicated witnesses and failing to object to the government’s 2 evidence and arguments. 3 Judge Morrissey issued an R&R on January 8, 2021, recommending denial of the 4 habeas petition without an evidentiary hearing or a certificate of appealability. Doc 20 at 5 21-22. Sosnowicz objects to Judge Morrissey’s conclusions with respect to all grounds 6 except ground five. See Doc. 23. 7 III. R&R Standard of Review. 8 This Court “may accept, reject, or modify, in whole or in part, the findings or 9 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court “must 10 review the magistrate judge’s findings and recommendations de novo if objection is made, 11 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 12 banc). The Court is not required to conduct “any review at all . . . of any issue that is not 13 the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Because Sosnowicz 14 does not object to Judge Morrissey’s recommendation for ground five, the Court will 15 address only grounds one through four. 16 Some of Sosnowicz’s objections are general in nature, reasserting arguments made 17 in the petition rather than addressing Judge Morrissey’s ruling. “[M]erely reasserting the 18 grounds of the petition as an objection provides this Court with no guidance as to what 19 portions of the R&R Petitioner considers to be incorrect.” McDowell v. Richardson, No. 20 CV-11-0716-PHX-DGC, 2012 WL 393462, at *2 (D. Ariz. Feb. 7, 2012). Rule 72 requires 21 more. The party seeking de novo review must provide “specific written objections to the 22 proposed findings and recommendations” of the magistrate judge. Fed. R. Civ. P. 72(b)(2) 23 (emphasis added). The clear purpose of this requirement is judicial economy – to permit 24 magistrate judges to resolve matters not objectionable to the parties. See Thomas, 474 U.S. 25 at 149. Because de novo review of the entire R&R would defeat the efficiencies intended 26 by Congress and Rule 72, a general objection has the same effect as a failure to object. 27 Warling v. Ryan, No. CV 12-01396-PHX-DGC, 2013 WL 5276367, at *2 (D. Ariz. Sept. 28 19, 2013); Eagleman v. Shinn, No. CV-18-2708-PHX-RM (DTF), 2019 WL 7019414, at 1 *5 (D. Ariz. Dec. 20, 2019); Quigg v. Salmonsen, No. CV 18-77-H-DLC-JTJ, 2019 WL 2 1244989, at *4 (D. Mont. Mar. 18, 2019). As a result, the Court will accept portions of the 3 R&R to which Sosnowicz makes only general objections. 4 As discussed below, the Court concludes that grounds two through four are without 5 merit, but that an evidentiary hearing is needed with respect to the ground one claim 6 involving Sosnowicz’s decision to reject his plea offer. The Court will address this issue 7 after dispensing with the remaining claims. 8 IV. Discussion. 9 A. Ground Two – Ineffective Assistance of Appellate Counsel. 10 Sosnowicz argues that his appellate counsel was ineffective for failing to argue on 11 direct appeal that: (1) the trial court’s preclusion of expert testimony and evidence 12 supporting his involuntary conduct defense deprived him of his constitutional right to 13 present a complete defense; and (2) the admission of remote prior bad act evidence violated 14 his right to a fair trial. Doc. 1 at 12. The second PCR court and Arizona Court of Appeals 15 rejected these claims on their merits, concluding they met neither prong of the Strickland 16 IAC test – that counsel’s performance was deficient and that Sosnowicz was prejudiced by 17 the deficient performance. Strickland v. Washington, 466 U.S. 668 (1984); Docs. 15-3 at 18 178, 15-4 at 2-9, 15.3 19 Because the ground two claims have already been adjudicated on the merits in state 20 court, this Court may not grant habeas relief unless the state courts reached a decision that 21 was contrary to or involved an unreasonable application of clearly established federal law. 22 See 28 U.S.C. § 2254(d); Carey v. Musladin, 549 U.S. 70, 75 (2006); Musladin v. 23 Lamarque, 555 F.3d 834, 838 (9th Cir. 2009). “A state court’s determination that a claim 24 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on 25 the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 26 (2011). 27 Judge Morrissey found that Sosnowicz had not shown that the state courts’ dismissal

28 3 The Strickland test was adopted by the Arizona Supreme Court in State v. Lee, 689 P. 3d 153 (Ariz. 1984). 1 of his claims were contrary to or based on an unreasonable application of Strickland. Doc. 2 20 at 20. Sosnowicz objects by repeating and incorporating by reference the arguments 3 made in his habeas petition and reply brief. Doc. 23 at 23-25. Because this does not 4 constitute a specific objection under Rule 72, the Court will accept the R&R’s 5 recommendation that ground two be denied.4 6 The Court also notes that ground two fails on the merits because Sosnowicz has not 7 established that the state courts’ decisions were based on an unreasonable application of 8 Strickland. 28 U.S.C. § 2254(d). Sosnowicz claims that his appellate counsel failed to 9 challenge two decisions of the trial court: its preclusion of evidence supporting his 10 involuntary conduct defense and its admission of evidence that Sosnowicz had, years 11 earlier, driven his car into his girlfriend’s car after an argument. Docs. 15-3 at 19, 15-4 at 12 7, 19-2 at 7; see also Ariz. R. Evid. 404(b)(1) (“[e]vidence of other crimes, wrongs, or acts 13 is not admissible to prove the character of a person in order to show action in conformity 14 therewith.”). 15 Under Strickland, however, Sosnowicz has not shown that “there is a reasonable 16 probability that, but for counsel’s unprofessional errors, the result of the proceeding would 17 have been different.” 466 U.S. at 694. As the Arizona Court of Appeals observed on direct 18 appeal, the evidence of Sosnowicz’s guilt was “extremely strong.” Sosnowicz, 270 P.3d at 19 925. Multiple witnesses saw Sosnowicz get into a physical altercation with the victim, 20 drive away enraged, then return and drive his Hummer into the victim “as fast as [he] 21 could” with the engine “rev[ved].” Sosnowicz, 270 P.3d at 925. Sosnowicz admitted that 22 he saw people in front of him, yet made no attempt to brake before striking and fatally 23 injuring the victim. Id. Instead of remaining at the scene or rendering aid, Sosnowicz 24 drove away from the crime scene with his friends, purchased and used cocaine, and 25 returned to his residence. Id. Upon arriving home he had the presence of mind to instruct 26 4 In his objection, Sosnowicz also argues that his ground two claims fall under the 27 limited exception to procedural default recognized in Martinez v. Ryan, 566 U.S. 1 (2012). Doc. 23 at 24. Martinez excuses procedural default in certain limited circumstances, but 28 Sosnowicz’s ground two claims were not procedurally defaulted. They were adjudicated on the merits by the state courts. 1 his friend to remove another parked vehicle from the garage so that he could park the 2 Hummer inside. Doc. 15 2 at 481-85. He shut the garage door, called 911, and told the 3 operator that he had been attacked by a group of people. Id. He then told police and a 4 paramedic that he had no memory of the incident, though he later stated in a taped jail 5 phone call – played during trial – that he “remembered everything . . . that happened.” Id. 6 After the tape was played for the jury, Sosnowicz admitted that he lied about not 7 remembering the incident. Id. 8 Given this evidence, admission of involuntary conduct evidence and exclusion of 9 the prior bad act evidence would not likely have changed the result of the trial. See Harden 10 v. Lizarraga, No. 2:19-CV-00566-PA (SK), 2019 WL 12379550, at *2 (C.D. Cal. Sept. 8, 11 2019) (given “overwhelming” evidence of petitioner’s guilt, failure to obtain limiting 12 instruction regarding testimony about petitioner’s prior bad acts “could not have had a 13 substantial and injurious effect on the jury verdict”); Crecy v. Runnels, No. C 03-3703 JSW 14 (PR), 2006 WL 2092626, at *10-13 (N.D. Cal. July 27, 2006) (given the strength of the 15 prosecution’s case, petitioner failed to establish that the introduction of “highly 16 inflammatory prior bad acts” would have changed the result of the proceedings). 17 B. Ground Three – Actual Innocence. 18 Sosnowicz argues that witness testimony at trial, as well as a precluded expert 19 report, establish that he acted involuntarily and lacked the requisite mental state for second- 20 degree murder. See Alaimalo v. U.S., 645 F.3d 1042, 1047 (9th Cir. 2011) (“A petitioner 21 is actually innocent when he was convicted for conduct not prohibited by law.”). Judge 22 Morrissey concluded that Sosnowicz’s actual innocence claim should be denied as not 23 cognizable on § 2254 habeas review. Doc. 20 at 17. Alternatively, he concluded that the 24 claim should be denied on the merits because Sosnowicz failed to demonstrate that he is 25 actually innocent. Id. at 18-19. Sosnowicz makes no specific objection to this conclusion 26 other than to repeat arguments made in his habeas petition and reply brief. Docs. 1 at 15; 27 19 at 57-76. Because this does not constitute a specific objection under Rule 72, the Court 28 will accept the R&R’s recommendation that ground three be denied. 1 The Court also notes that Sosnowicz’s actual innocence claim fails on the merits. 2 Assuming a freestanding claim of actual innocence is cognizable on habeas review, 3 Sosnowicz must still “affirmatively prove that he is probably innocent.” Carriger, 132 4 F.3d at 476.5 Sosnowicz fails to present evidence of actual innocence other than to repeat 5 arguments already presented to and rejected by the Arizona Court of Appeals on direct 6 appeal. As discussed above, the evidence supporting the jury’s verdicts – including his 7 actions at the time of the killing, his admission that he remembered everything about the 8 crimes, and his admission that he lied about not remembering – was substantial. See 9 Sosnowicz, 270 P.3d at 925. Sosnowicz fails to present evidence that would affirmatively 10 prove he is probably innocent. The Court will adopt the R&R’s recommendation and reject 11 ground three. 12 C. Ground Four – Trial Court Error. 13 Sosnowicz argues that the trial court erred by: (1) permitting the medical examiner, 14 Dr. William Stano, to testify that the victim’s death was a homicide; and (2) precluding Dr. 15 Stano from testifying as to the victims’ blood alcohol level at the time of death. The 16 Arizona Court of Appeals rejected both claims on their merits. 17 Judge Morrissey correctly concluded that Sosnowicz’s ground four claims were 18 unexhausted. A state prisoner must exhaust his remedies in state court before petitioning 19 for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan 20 v. Henry, 513 U.S. 364, 365–66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 21 1991). To exhaust claims in state court, Sosnowicz was required to fairly present his claims 22 to the Arizona Court of Appeals through direct appeal or post-conviction relief. See 23 Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 24 36, 38 (9th Cir. 1994). A claim is “fairly presented” when a petitioner has “alert[ed] the 25 state courts to the fact that [he] was asserting a claim under the United States Constitution.” 26 Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted). “If a petitioner

27 5 Whether a freestanding claim of actual innocence is cognizable on habeas review is an “open question.” Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 71 (2009). The 28 Ninth Circuit has assumed, without deciding, that such claims are cognizable, and the Court will do the same. See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc). 1 fails to alert the state court to the fact that he is raising a federal constitutional claim, his 2 federal claim is unexhausted regardless of its similarity to the issues raised in state court.” 3 Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). 4 Sosnowicz presented his ground four claims to the Arizona Court of Appeals solely 5 as violations of the Arizona Rules of Evidence and Arizona case law. See Doc. 15-2 at 6 397-419. The habeas petition in this Court claims various federal constitutional violations, 7 but Sosnowicz never made those arguments to the Arizona Court of Appeals and thus did 8 not fairly present them in state court. Shumway, 223 F.3d at 987. 9 Judge Morrissey also concluded that Sosnowicz’s claims are barred from federal 10 review because Arizona procedural rules would make a return to state court futile. He 11 concluded that ground four was procedurally defaulted under Arizona Rule of Criminal 12 Procedure 32.2(a)(2), which bars litigants from raising in post-conviction relief 13 proceedings any claims that were “finally adjudicated on the merits in an appeal or in any 14 previous post-conviction proceeding.” Doc. 20 at 16. But this rule does not apply here, 15 because the Arizona Court of Appeals never adjudicated Sosnowicz’s ground four federal 16 arguments on their merits. As noted above, those arguments were never fairly presented 17 to the state courts. 18 The Court concludes, nonetheless, that Sosnowicz is precluded from returning to 19 state court to litigate his federal constitutional arguments. Arizona law permits petitioners 20 to return to state court to exhaust their claims only in limited instances. McCray v. Shinn, 21 No. CV-17-01658-PHX-DJH, 2020 WL 919180, at *4 (D. Ariz. Feb. 26, 2020) (“Under 22 Arizona law, a petitioner generally may not return to state court to exhaust claims unless 23 the claims fall within the category of claims for which a successive PCR petition is 24 permitted.”). Rule 32.2(b) identifies several grounds that may be asserted by a returning 25 petitioner – those identified in Rule 32.1(b)-(h). Ariz. R. Crim. P. 32.2(b).6 But none of

26 6 The January 2020 revisions to Rule 32.2 broadened the category of exceptions to preclusion. Compare Ariz. R. Crim. P. 32.2(b) (2019) (stating that preclusion does not 27 apply to claims under Rule 32.1(d) through (h)) with Ariz. R. Crim. P. 32.2(b) (2020) (stating that preclusion does not apply to claims under Rule 32.1(b) through (h)). The 28 Court will assume that the revised version would apply to any renewed effort by Sosnowicz to litigate issues in state court. 1 these includes claims based on a “violation of the United States or Arizona constitution,” 2 which is covered by Rule 32.1(a) and is not included in the list of exceptions enumerated 3 in Rule 32.2(b). 4 Constitutional claims instead are covered by Rule 32.2(a)(3) and are precluded from 5 a successive PCR proceeding unless “the claim raises a violation of a constitutional right 6 that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. 7 R. Crim. P. 32.2(a)(3). This language was added to the rule in January 2020, but even 8 under the previous rule, Arizona courts found an exception to preclusion only where “an 9 asserted claim is of sufficient constitutional magnitude.” Stewart, 46 P.3d at 1070 10 (emphasis added). Arizona law has not clearly defined this phrase, but the Arizona 11 Supreme Court has stated that examples include the right to counsel and the right to a jury 12 trial. See id. Arizona law makes clear that petitioners cannot simply characterize trial 13 errors as serious constitutional violations to avoid preclusion. See, e.g., State v. Swoopes, 14 166 P.3d 945, 954 (Ariz. Ct. App. 2007) (if “any error, including trial error . . . were 15 sufficient to bring the error under the umbrella of sufficient constitutional magnitude for 16 purposes of Rule 32.2, all error could be so characterized, and arguably, no claim could be 17 precluded without a personal waiver.”). Sosnowicz has not shown that the evidentiary 18 errors alleged in ground four amount to violations of a constitutional right that can only be 19 waived knowingly, voluntarily, and personally by the defendant, or are claims of sufficient 20 constitutional magnitude. Thus, under either version of Rule 32.2(a)(3), he cannot return 21 to state court to litigate his federal arguments and they are procedurally defaulted. 22 Finally, Judge Morrissey correctly concluded that no exception to the procedural 23 default rule applies because Sosnowicz fails to establish cause and prejudice or point to 24 any miscarriage of justice that would result from the Court’s failure to consider the merits 25 of his claims. Ford v. Ryan, No. CV-13-02474-PHX-DGC, 2015 WL 3960804, at *13 (D. 26 Ariz. June 30, 2015) (“The federal court will not consider the merits of a procedurally 27 defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would 28 result, or establish cause for his noncompliance and actual prejudice.”) (citing Schlup v. 1 Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750–51; Murray v. Carrier, 477 2 U.S. 478, 495-96 (1986)). 3 Sosnowicz objects that his appellate counsel, Bassett, was a “scam artist” who failed 4 to “meet procedural rules.”7 Doc. 23 at 22. Although it is not entirely clear, Sosnowicz 5 appears to be making a cause and prejudice argument – namely, that his procedural default 6 should be excused because of Bassett’s failure to present his ground four claims as federal 7 claims on direct appeal. See Doc. 15-2 at 397-419; Ford, 2015 WL 3960804, at *13 8 (“Pursuant to the cause and prejudice’ test, a petitioner must point to some external cause 9 that prevented him from following the procedural rules of the state court and fairly 10 presenting his claim.”). The Court has no obligation to address this argument because 11 Sosnowicz never raised it in his habeas petition with respect to ground four. Williams v. 12 Ryan, No. CV-18-00349-TUC-RM, 2019 WL 4750235, at *5 (D. Ariz. Sept. 30, 2019) 13 (“Issues raised for the first time in objections to the magistrate judge’s recommendation 14 are deemed waived.”) (citation omitted). In addition, the argument fails on its merits 15 because Sosnowicz has not established that, but for his counsel’s unreasonable failure to 16 federalize his claims, he “would have prevailed on appeal.” See Smith v. Robbins, 528 U.S. 17 259, 285 (2000) (noting that ineffective assistance of appellate counsel claims are subject 18 to the two-prong standard set forth in Strickland); Karban v. Ryan, No. CV-14-02763- 19 PHX-SRB, 2017 WL 3460837, at *1 (D. Ariz. Aug. 11, 2017) (appellate lawyer’s failure 20 to federalize petitioner’s state law claims failed to excuse procedural default because it 21 would not have changed the result of the appeal and the claims lacked merit). 22 First, “[g]iven appellate counsel’s wide discretion in exercising professional 23 judgment, the presumption of effective assistance of counsel is overcome ‘only when 24 ignored issues are clearly stronger than those presented[.]’” Saunders v. Almager, No. 09- 25 0708 L WMC, 2011 WL 2181320, at *23 (S.D. Cal. Apr. 27, 2011) (citations omitted). 26 Sosnowicz fails to establish that the federal arguments his appellate counsel failed to

27 7 Sosnowicz claims that Bassett’s deficient performance should be excused under Martinez, but Martinez “applies only to claims of ineffective assistance of trial counsel; it 28 has not been expanded to other types of claims.” Garcia v. Ryan, No. CV-15-00025-PHX- DGC, 2018 WL 4679644, at *3 (D. Ariz. Sept. 28, 2018) (emphasis added). 1 present were stronger than the state law issues raised in the Arizona Court of Appeals. 2 Second, even if appellate counsel had rendered ineffective assistance, Sosnowicz 3 fails Strickland’s second prong. The Arizona Court of Appeals rejected his ground four 4 claims because (1) admission of the medical examiner’s testimony that the death was a 5 homicide, while erroneous, would not have contributed to or affected the jury verdict; and 6 (2) the trial court was justified in precluding testimony about the blood alcohol content of 7 the victim as irrelevant and potentially misleading to the jury. Doc. 15-2 at 478-505. 8 Sosnowicz has not shown how asserting federal arguments with respect to these issues 9 would allow him to prevail on appeal. The Court will dismiss ground four. 10 D. Ground One – Ineffective Assistance of Trial Counsel. 11 Sosnowicz argues that his trial counsel was ineffective for (1) not explaining that he 12 could be convicted if the jury found he acted recklessly, which led him to reject a favorable 13 plea offer; and (2) failing to investigate and present a defense of involuntary act and lack 14 of criminal intent, given that he was knocked out by the victim and assaulted by others 15 prior to the incident. Doc. 1 at 6-11. 16 The second PCR court rejected these arguments as waived because Sosnowicz failed 17 to timely raise them during his first PCR proceeding. See Doc. 15-3 at 136-37 (citing Ariz. 18 R. Crim. P. 32.2(a)(3)). Judge Morrissey concluded that because Rule 32.2 provides an 19 independent and adequate basis for denying relief, Sosnowicz’s claims are procedurally 20 defaulted and therefore barred from this Court’s review. Stewart v. Smith, 536 U.S. 856, 21 861 (2002) (holding that denials pursuant to Rule 32.2(a) are “independent of federal law”); 22 Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (“Arizona’s waiver rules are independent 23 [nonfederal] and adequate bases for denying relief.”) (internal citations omitted). 24 Sosnowicz argues that the procedural default should be excused under Martinez v. 25 Ryan, 566 U.S. 1 (2012), which recognizes a limited exception to procedural default where 26 PCR counsel fails to raise a trial-counsel IAC claim in the initial review. Doc. 23 at 21. 27 He also requests discovery and an evidentiary hearing to further develop his Martinez 28 argument. See id. 1 Under Martinez, a petitioner may establish cause and prejudice for procedural 2 default “by demonstrating two things: (1) ‘counsel in the initial-review collateral 3 proceeding, where the claim should have been raised, was ineffective under the standards 4 of Strickland v. Washington, 466 U.S. 668 (1984),’ and (2) ‘the underlying ineffective- 5 assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must 6 demonstrate that the claim has some merit.’” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 7 2012) (quoting Martinez, 566 U.S. at 14). For Sosnowicz’s underlying trial-counsel IAC 8 claim to qualify as “substantial” under Martinez, he must “demonstrate that reasonable 9 jurists could debate whether . . . the petition should have been resolved in a different 10 manner or that the issues presented were adequate to deserve encouragement to proceed 11 further.” Weber v. Sinclair, No. C08-1676RSL, 2014 WL 1671508, at *6 (W.D. Wash. 12 Apr. 28, 2014) (quoting Detrich v. Ryan, 740 F. 3d 1237, 1245 (9th Cir. 2013)) (internal 13 quotation marks and citations omitted). The Ninth Circuit has explained that “PCR counsel 14 would not be ineffective for failure to raise an ineffective assistance of counsel claim with 15 respect to trial counsel who was not constitutionally ineffective.” Sexton v. Cozner, 679 16 F.3d 1150, 1157 (9th Cir. 2012). 17 “For procedurally defaulted claims, to which Martinez is applicable, the district 18 court should allow discovery and hold an evidentiary hearing where appropriate to 19 determine whether there was ‘cause’ under Martinez for the state-court procedural default 20 and to determine, if the default is excused, whether there has been trial-counsel IAC.” 21 Detrich, 740 F.3d at 1246. To show entitlement to an evidentiary hearing, a petitioner must 22 allege “specific factual allegations that, if true, state a claim on which relief could be 23 granted.” United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003). 24 1. Ground One – Involuntary Conduct Defense. 25 Sosnowicz’s contention that trial counsel failed to investigate and present a defense 26 of involuntary conduct lacks merit and cannot trigger the Martinez exception. Sosnowicz 27 contends that he was beaten unconscious moments before driving his vehicle into the 28 victim, resulting in a brain injury that rendered him unaware of his subsequent actions. 1 Doc. 1 at 10, 13-16. He claims that his expert witness was precluded from testifying at 2 trial about his cognitive limitations because his trial counsel failed to cite relevant legal 3 authority and make proper evidentiary arguments. Id. at 10. 4 Judge Morrissey correctly concluded, however, that Sosnowicz fails to show his 5 counsel was ineffective, let alone that the result of the trial would have been different if the 6 expert had testified and his counsel had presented an involuntary conduct defense. 7 Strickland, 466 U.S. at 695. As discussed above, and as the Arizona Court of Appeals 8 observed on direct appeal, “[t]he evidence that defendant intentionally aimed his vehicle 9 at the group of persons – including [the victim] – with whom he had the altercation, is 10 extremely strong.” Sosnowicz, 270 P.3d at 925. Sosnowicz’s actions – climbing inside his 11 vehicle after the altercation, driving the vehicle out of several witnesses’ direct line of sight, 12 returning and driving his car directly at the victim who had assaulted him, revving his 13 engine as he drove toward the victim, driving away after he hit the victim, attempting to 14 conceal his car in his garage, and lying to police and paramedics that he did not recall the 15 events – undermine any claim that he hit the victim involuntarily. Sosnowicz, 270 P.3d at 16 925; see also Bean v. Calderon, 163 F.3d 1073, 1082-83 (9th Cir. 1998) (rejecting claim 17 that trial counsel was ineffective for failing to present and investigate a defense theory that 18 lacked support from the record and was in conflict with other evidence). Because the 19 involuntary conduct defense was clearly contradicted by the evidence, Sosnowicz has not 20 established a reasonable probability that the outcome of the trial would have been different 21 had the defense been asserted, nor that his trial counsel was ineffective for failing to pursue 22 the doubtful defense. 23 Sosnowicz objects that Judge Morrissey and the Court of Appeals reached the 24 wrong conclusion based on the evidence presented at trial. He quotes several trial 25 witnesses who testified that he was unconscious after getting into a physical altercation 26 with the victim. Doc. 23 at 17-18. But these witnesses merely testified that he was 27 “unconscious for a few seconds” and looked “kind of out of it” after the altercation. Id. 28 (emphasis added). Given that the jury heard this witness testimony at trial and still found 1 Sosnowicz guilty of second-degree murder, the Court cannot conclude that a more effective 2 presentation of an involuntary defense theory would have changed the result. 3 Because Sosnowicz has not shown that this IAC claim is a substantial one, he cannot 4 argue under Martinez that his PCR counsel was ineffective for failing to raise it. Sexton, 5 679 F.3d at 1157. The Court will adopt Judge Morrissey’s conclusion that the involuntary 6 conduct defense in ground one is procedurally defaulted. 7 2. Ground One – Plea Negotiations. 8 Ground one also alleges that Sosnowicz’s trial counsel was ineffective for not explaining 9 that he could be convicted if the jury found he acted recklessly, which in turn led him to 10 reject a favorable plea offer. In evaluating trial-counsel IAC claims in the context of plea 11 negotiations, the Court looks “not at whether the defendant would have proceeded to trial 12 absent ineffective assistance but whether he would have accepted the offer to plea pursuant 13 to the terms earlier proposed.” Missouri v. Frye, 566 U.S. 134, 142 (2012).8 14 Judge Morrissey concluded that this underlying IAC claim was not substantial 15 because there was no evidence that Sosnowicz would have accepted the favorable plea 16 offer had he known he could be convicted of second-degree murder for mere recklessness. 17 Sosnowicz objects that the record demonstrates his clear belief, when rejecting the plea 18 offer, that he could be convicted for intentional conduct only. Doc. 23 at 5-16. 19 The Court has reviewed the record and cannot conclude that it supports Judge 20 Morrissey’s conclusion. At an October 2009 settlement conference, the parties reviewed 21 the terms of the government’s plea offer and Sosnowicz stated that he wanted to go to trial. 22 Doc. 15-1 at 81-83. Sosnowicz and his counsel confirmed that they had reviewed and 23 discussed the plea deal, including the sentencing range he faced if convicted at trial. Id. at 24 83. Sosnowicz stated that he understood the terms of the plea offer “perfectly,” and was 25 making an informed decision to proceed with trial despite the risks involved. Id. at 81-83.

26 8 In the context of plea negotiations, petitioners making a trial counsel IAC claim must also show that “such a plea would have been acceptable to both the state and the 27 court[.]” Clark v. Lewis, 1 F.3d 814, 823 (9th Cir. 1993). These prerequisites appear to be satisfied here because the government extended the plea offer and, for reasons about to be 28 explained, it appears that Sosnowicz may have rejected it at a time when he did not know of the recklessness standard. Doc. 15-1 at 101. More evidence is needed on this point. 1 When asked whether he had any questions for the court or the government, he answered 2 no. Id. at 82. 3 Based on this transcript, Judge Morrissey concluded that Sosnowicz had been fully 4 apprised by his counsel regarding the terms of the offer. Doc. 20 at 11. But as Sosnowicz 5 notes, at no point during the settlement conference was the recklessness component of his 6 second-degree murder charge ever mentioned. Doc. 23 at 7-8. In an affidavit submitted at 7 his second PCR proceeding, Sosnowicz claims that his trial lawyer, Ewa Lockard, never 8 explained that a finding of guilt could be based on reckless conduct, and that Lockard’s 9 replacement, George Gaziano, urged him to proceed to trial without explaining that 10 “simply acting recklessly was enough to lead to a murder conviction.” See Doc. 15-3 at 11 26-27, ¶¶ 6, 11. If, as Sosnowicz contends, he was unaware of the recklessness component 12 of second-degree murder, he would have no reason to ask questions of the trial court or 13 government at the October 2009 hearing. 14 At a June 2, 2010 evidentiary hearing, the judge again raised the subject of a possible 15 plea agreement. Doc. 15-1 at 100-02. The judge noted that the plea offer extended by the 16 state had expired – “[a]t this time there is no offer extended to you” (id. at 100) – but said 17 she would ask the state to re-extend the offer if a settlement looked possible (id. at 101). 18 After reviewing the previously-offered terms, the principle feature of which was that 19 Sosnowicz’s sentences on the various counts would be served concurrently rather that 20 consecutively, the judge asked Sosnowicz if he was interested in further settlement talks. 21 Id. at 102. Sosnowicz responded: 22 Your honor, I’ve already made this decision with my counsel. The fact is I didn’t do anything intentionally, so I can’t sign for what they are asking for. 23 I would be willing to settle, but not for something – I am a man and I understand that an accident happened, but I can’t admit to something I didn’t 24 do. 25 Id. at 102-03. This statement seems clearly to reflect an understanding that intentional 26 conduct was required to establish guilt on the murder charge – that Sosnowicz thought he 27 would have to admit intentional conduct as part of the plea deal. It also implies that 28 Sosnowicz would be willing to settle if he did not have to make this admission. 1 After Sosnowicz made this statement, the prosecutor provided the following 2 clarification: Judge, just also so that the defendant is clear and the Court is clear, the 3 second-degree murder is charged intentional or knowing or reckless, so a jury has three different options and can find, again, not perhaps what the State 4 believes happened, but the jury could find that his actions were reckless and still come back as a second-degree murder conviction. 5 6 Id. at 104 (emphasis added). The judge responded: “thank you, counsel. That’s 7 important to know.” Id. 8 Sosnowicz’s immediate response was to express confusion: “I have a question about 9 reckless. Is it a voluntary recklessness or involuntary recklessness?” Id.9 The judge 10 responded that Sosnowicz’s counsel could explain that with the statute book. Id. 11 Sosnowicz then engaged the judge in questions about consecutive versus concurrent 12 sentences and who qualifies as a victim. Id. at 105-108. After this exchange, the judge 13 adjourned the hearing and emptied the courtroom so Sosnowicz could speak with his 14 lawyer about what had been said. Id. at 108. 15 Upon returning to the courtroom, the judge stated that defense counsel “indicated to 16 me that his client was open to discussion.” Id. at 109. The prosecutor then explained that 17 Sosnowicz had expressed “an interest in exploring not necessarily the original offer, but . 18 . . a more limited offer[.]” Id. She then explained: “before we went any further to see if 19 he wanted to go back and reconsider the initial offer, pleading to all charges concurrent, 20 before we went down that road, it was my suggestion that I contact my supervisors.” Id. 21 She explained that the discussions with her supervisors and the victims’ family members 22 resulted in a decision not to extend any plea offer – “we are prepared to go to trial.” Id. at 23 110. As a result, discussion of a plea ended and the court proceeded to hear evidentiary 24 issues for trial. Id. at 110-11. 25 Judge Morrissey concluded that Sosnowicz’s interest in exploring a “more limited 26 offer” suggests that he would not have accepted the original plea deal (Doc. 20 at 13), but 27 9 This question suggests Sosnowicz did not understand the concept of recklessness. 28 See United States v. Begay, 934 F.3d 1033, 1040 (9th Cir. 2019) (“Reckless conduct, no matter how extreme, is not intentional.”). 1 the Court cannot reach the same conclusion. After hearing the prosecutor’s explanation 2 that the murder charge could be based on recklessness, and talking with his lawyer, 3 Sosnowicz expressed an interest in further settlement talks. Those talks did not occur 4 because the state deferred to the victims’ strong preferences and elected not to extend 5 further offers, including the original offer. The prosecutor clearly contemplated further 6 discussion about the original offer – “before we went any further to see if he wanted to go 7 back and reconsider the initial offer, pleading to all charges concurrent, before we went 8 down that road, it was my suggestion that I contact my supervisors” – and yet those 9 discussions never occurred because the state decided not to re-extend the offer. Id. at 109. 10 In sum, recklessness was never mentioned during the October 2009 settlement 11 conference where Sosnowicz rejected the plea deal. It was only at the June 2010 hearing 12 that the government clarified on the record that Sosnowicz could be convicted for reckless 13 conduct. Sosnowicz immediately expressed uncertainty about whether recklessness 14 encompassed both involuntary and voluntary conduct and, after conferring with his 15 counsel, expressed an interest in revisiting plea discussions. Those discussion never 16 occurred, however, because the state decided not to engage in further discussions. These 17 events could support Sosnowicz’s claim that he was unaware that a second-degree murder 18 conviction encompassed reckless conduct when he rejected the original offer. 19 The Court concludes that it should receive further evidence on whether Sosnowicz’s 20 trial counsel informed him of the recklessness standard before he rejected the original plea 21 offer. Further evidence about what was said during the recess in the June 2, 2010 hearing 22 might also be relevant in determining why Sosnowicz rejected the original offer. 23 3. Martinez Prejudice. 24 Under the second prong of Martinez, Sosnowicz must show that he was prejudiced 25 by his PCR counsel’s failure to raise his trial-counsel IAC claim during post-conviction 26 proceedings – in other words, that there was “a reasonable probability that the trial-level 27 IAC claim would have succeeded had it been raised.” Hooper v. Shinn, 985 F.3d 595, 627 28 (9th Cir. 2021) (internal citations and quotation marks omitted). The Court will address 1 this issue after receiving further evidence.10 2 V. Appointment of Counsel. 3 Further evidence is required to determine whether Sosnowicz can established cause 4 and prejudice sufficient to excuse his procedural default under Martinez on the portion of 5 ground one discussed above. Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014) (“[A] 6 district court may take evidence to the extent necessary to determine whether the 7 petitioner’s claim of ineffective assistance of trial counsel is substantial under Martinez.”). 8 The Court will withhold ruling on this ground one claim until the record has been further 9 developed. 10 The Court will appoint counsel to represent Sosnowicz in the further presentation 11 of evidence. See 18 U.S.C. § 3006A(a)(2) (providing the Court with the discretion to 12 appoint counsel when it determines that “the interests of justice so require[.]”); see also 13 Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Within 30 days of the filing date 14 of this order, the selected attorney must file a notice of appearance. The parties should 15 then promptly and jointly contact the Court to schedule a status conference to discuss 16 procedures for the presentation of additional evidence. 17 VI. Certificate of Appealability. 18 Judge Morrissey recommended that the Court deny a certificate of appealability. 19 Doc. 20 at 22. Sosnowicz objects by repeating his habeas arguments and asserting that 20 “this case does have merit and should be heard.” Doc. 23 at 2. On the same day he filed 21 his objection, Sosnowicz filed a motion for certificate of appealability that restates the 22 arguments made in his habeas petition and objection. Doc. 24. With respect to grounds 23 10 Sosnowicz also objects that his initial PCR proceeding – where he failed to raise 24 his trial-counsel IAC claims – is void because he was represented by Bassett, the attorney whom the Arizona State Bar admonished for also representing Sosnowicz on direct appeal. 25 Doc. 23 at 3-4. He argues that the Court should consider his second PCR proceeding as operative given Bassett’s professional misconduct. Id. at 4. The Arizona Court of Appeals 26 already rejected this argument in its review of Sosnowicz’s second PCR proceeding: “no Arizona authority has held an initial Rule 32 proceeding is ‘void’ . . . because a defendant 27 was represented in that matter by the same attorney who represented him on appeal.” State v. Sosnowicz, No. 2 CA-CR 2018-0058-PR, 2018 WL 3472027, at *2 (Ariz. Ct. App. 28 July 18, 2018). Sosnowicz cites no authority requiring the Court to reach a different conclusion. 1 || two through five, and the involuntary conduct defense in ground one, the Court concludes || that Sosnowicz has not “made a substantial showing of the denial of a constitutional right,” 28 U.S.C. §2253(c)(2), and reasonable jurists would not find his constitutional claims 4|| debatable or wrong, Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court will accept 5 || Judge Morrissey’s recommendation that the certificate of appealability be denied as to || these claims. The Court will consider whether a certificate of appealability is appropriate || for the remaining ground one claim after it has considered further evidence. 8 IT IS ORDERED: 9 1. Judge Morrissey’s R&R (Doc. 20) is accepted with respect to the involuntary conduct defense in ground one and grounds two through five. Sosnowicz’s 11 |} habeas corpus petition (Doc. 1) and motion for certificate of appealability (Doc. 24) are 12 || denied with respect to these claims. 13 2. The Court withholds ruling on ground one’s claim of ineffective assistance of trial counsel associated with rejection of the original plea offer. 15 3. The Court’s staff will contact the Federal Public Defender and request the designation of counsel to represent Sosnowicz, pursuant to the Criminal Justice Act, in the evidentiary issues related to his ground one Martinez claim. 18 4, Within 30 days of the filing date of this order, the selected attorney must file || a notice of appearance, and the parties must promptly and jointly contact the Court to || schedule a status conference. 21 Dated this 30th day of June, 2021. 22 . 23 d gerd 6 Cour phtl 24 David G. Campbell 5 Senior United States District Judge 26 27 28

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