Sovero 259970 v. Shinn

• Court: District Court, D. Arizona
• Decided: July 21, 2021
• Docket: 2:18-cv-02948
• Status: Unknown

Opinion

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

9 David Solomon Sovero, No. CV-18-02948-PHX-JGZ

10 Petitioner, ORDER

11 v.

12 Charles L. Ryan, et al.,

13 Respondents. 14 15 Pending before the Court is Magistrate Judge Bruce G. Macdonald’s Report and 16 Recommendation recommending that the Court deny Petitioner David Sovero’s Petition 17 for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (Doc. 31.) Petitioner filed 18 an Objection to the Report and Recommendation, and Respondents filed a Response. 19 (Docs. 37, 38.) Pursuant to the Court’s order, Respondents also provided the transcript of 20 Petitioner’s November 23, 2010 change-of-plea proceeding. (Docs. 39, 40.) Having 21 considered the Report and Recommendation, the parties’ briefing on Petitioner’s Petition 22 (Docs. 10, 20), Petitioner’s Objection (Doc. 31), and Respondents’ Response (Doc. 38) 23 and supplemental filing (Doc. 40), the Court will overrule Petitioner’s Objection and adopt 24 Judge Macdonald’s recommendation to deny the Petition. 25 I. Background 26 Petitioner was charged with two counts of first-degree murder, one count of burglary 27 in the first degree, two counts of kidnapping, two counts of aggravated assault, and one 28 count of burglary. (Doc. 20, p. 2.) Petitioner pled guilty in Arizona Superior Court to two 1 counts of first-degree murder and one count of aggravated assault and the remaining 2 charges, including the possibility of the death penalty, were dismissed. (Id.) He was 3 sentenced to a term of imprisonment for natural life on count one for first-degree murder; 4 a term of imprisonment for natural life on count two (first-degree murder), consecutive to 5 count one; and a term of 21 years of imprisonment on count six (aggravated assault) 6 consecutive to count two. (Doc. 21, pp. 30-31.) 7 In the pending Petition for Writ of Habeas Corpus, Petitioner alleges in Ground 1 that 8 the high dosages of psychotropic medications he was taking rendered him incompetent to 9 knowingly and voluntary enter a guilty plea, in violation of his Fifth and Fourteenth 10 Amendment rights. (Doc. 10, p. 6.) In Ground 2, Petitioner alleges that his trial counsel 11 was ineffective because counsel: (a) knew Petitioner was impaired by psychotropic 12 medication and allowed Petitioner to enter his plea “not knowingly or intelligently”; (b) 13 failed to obtain Brady material from the county attorney; (c) failed to provide sufficient 14 time to discuss strategies; (d) failed to investigate and interview witnesses; and (e) failed 15 to obtain law enforcement “integrity files”. (Id. at 9.) 16 The Magistrate Judge concluded that Grounds 1 and 2(e) were procedurally 17 defaulted because Petitioner did not raise the claims in his post-conviction relief (PCR) 18 petition. The Magistrate Judge concluded that Ground 2(a) was procedurally defaulted 19 because Petitioner failed to raise it in his petition for appellate court review during the PCR 20 proceedings. The Magistrate Judge further concluded that Ground 2(c) was procedurally 21 defaulted because Petitioner did not raise it at all during PCR proceedings. The Magistrate 22 Judge recommended denial of Grounds 2(b) and 2(d) on the merits. Petitioner objects to 23 the Magistrate Judge’s Report and Recommendation as to all Grounds except for 2(e). 24 (Doc. 37.) 25 II. Standard of Review 26 This Court “may accept, reject, or modify, in whole or in part, the findings or 27 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). “[T]he district 28 judge must review the magistrate judge’s findings and recommendations de novo if 1 objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 2 (9th Cir. 2003) (en banc) (emphasis in original). District courts are not required to conduct 3 “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 4 474 U.S. 140, 149 (1985). See also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Reyna- 5 Tapia, 328 F.3d at 1121. 6 III. Applicable Legal Standards 7 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), this Court 8 may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the 9 merits in state court proceedings unless the state court’s adjudication of the claim “resulted 10 in a decision that was contrary to, or involved an unreasonable application of, clearly 11 established Federal law, as determined by the Supreme Court of the United States,” 28 12 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light 13 of the evidence presented in the State court proceeding,” id. at § 2254(d)(2). 14 A state-court decision is “contrary to” clearly established Federal law if it applies a 15 rule that contradicts the governing law set forth in Supreme Court cases or if it confronts a 16 set of facts that are materially indistinguishable from a decision of the Court and 17 nevertheless arrives at a result different from its precedent. Early v. Packer, 537 U.S. 3, 8 18 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)). To satisfy this standard 19 a state court need not cite Supreme Court cases or even be aware of such cases, “so long 20 as neither the reasoning nor the result of the state-court decision contradicts them.” Id. 21 To find that a state court’s factual determination is unreasonable under § 2254(d)(2), 22 the court must be “convinced that an appellate panel, applying the normal standards of 23 appellate review, could not reasonably conclude that the finding is supported by the 24 record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogated on other 25 grounds as discussed in Murray (Robert) v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 26 2014). “This is a daunting standard—one that will be satisfied in relatively few cases.” Id. 27 Additionally, the Court cannot grant habeas relief under AEDPA if the petitioner 28 failed to exhaust his claim in state court. 28 U.D.C. § 2254(b)(1)(A); see O’Sullivan v. 1 Boerckel, 526 U.S. 838, 839 (1999). 2 IV. Discussion 3 A. Ground 1 is properly exhausted but fails on the merits 4 In Ground 1, Petitioner claims that his rights under the Fifth and Fourteenth 5 Amendments to the U.S. Constitution were violated because he was impaired by 6 psychotropic medications during the state criminal proceedings. (Doc. 10, p. 6.) Petitioner 7 asserts that due to his medication, he did not knowingly and intelligently enter into his plea 8 agreement and his due process rights were violated because the trial court failed to hold a 9 competency hearing. (Id.) The Magistrate Judge concluded that Ground 1 was 10 procedurally defaulted because Petitioner did not raise it in his PCR petition. Petitioner 11 objects to this conclusion.1 12 1. Exhaustion of state remedies 13 The Court concludes that Petitioner fairly presented the due process claim in Ground 14 1 in his PCR Petition and that the claim is exhausted. A petitioner fairly presents federal 15 claims only if he alerted the state court that his claims rested on the federal Constitution. 16 Fields v. Waddington, 401 F.3d 1018, 1020-21 (9th Cir. 2005) (citation omitted). “In order 17 to alert the state court, a petitioner must make reference to provisions of the federal 18 Constitution or must cite either federal or state case law that engages in a federal 19 constitutional analysis.” Id. (citations omitted). 20 In his PCR petition, Petitioner asserted he was raising a due process claim under the 21 Fifth and Fourteenth Amendments, and claims of ineffective assistance of counsel under 22 the Sixth Amendment, and that the issues raised involved “competency—due to 23 impairment of heavy psychotropic drugs” and various instances of ineffectiveness of 24 counsel. (Doc. 22, pp. 14-15.) In raising his due process claim, Petitioner stated that his 25 plea was not voluntarily and intelligently made because he was taking high dosages of

26 1 The Court disagrees with Respondents’ contention that Petitioner “does not appear to object to the [Report and Recommendation’s] . . . conclusions regarding Claim 1.” (Doc. 27 38, p. 2.) Petitioner’s Objection challenges the Magistrate Judge’s conclusion that Ground 1 was not raised in the PCR petition, stating several times that the conclusion “is 28 inaccurate” and providing several pages of argument in support of Petitioner’s position that he properly presented the claim during PCR proceedings. (Doc. 37, pp. 3-13.) 1 psychotropic medication at the time. (Doc. 22, pp. 17-28.) Within this discussion, 2 Petitioner cited Pate v. Robinson, 383 U.S. 375 (1966), which held that the failure to 3 observe procedures adequate to protect a defendant’s right not to be tried or convicted 4 while incompetent to stand trial deprives him of his due process right to a fair trial. (Id. 5 at 21.) Petitioner also cited other federal cases for the premise that a plea can be involuntary 6 where the court did not make appropriate inquiry into a defendant’s competency. (Id. at 7 17-18.) The Court concludes that Petitioner’s allegations along with his citation to Pate 8 fairly presented a federal due process claim. 9 The Magistrate Judge concluded, and Respondents do not dispute, that Petitioner 10 raised his due process claim in his petition for appellate court review. (Doc. 20, p. 4; Doc. 11 31, p. 20.) Thus, the claim was exhausted. Notably, the appellate court addressed and 12 rejected Petitioner’s claim that his pleas were not knowing, intelligent and voluntary 13 because he was taking psychotropic medication at the time. (Doc. 23, p. 80.) Thus, even 14 if Petitioner had not fairly presented the claim in his PCR Petition, the claim would be 15 exhausted. A petitioner’s state remedies are also exhausted when the state courts have 16 reached and passed on the merits of a federal claim, regardless whether the petitioner had 17 fairly presented the claim to the state court. See Castille v. Peoples, 489 U.S. 346, 351 18 (1989) (“It is reasonable to infer an exception [to the fair presentation requirement] where 19 the State has actually passed upon the claim.”); see also Sandgathe v. Maass, 314 F.3d 371, 20 377 (9th Cir. 2002) (“Where a court has in fact ruled on a claim, there is no possibility of 21 ‘friction between the state and federal court systems’ caused by “the ‘unseem[liness]’ of a 22 federal district court’s overturning a state court conviction without the state court’s having 23 had an opportunity to correct the constitutional violation in the first instance.’”) (quoting 24 O’Sullivan, 526 U.S. at 845). 25 2. Merits of Claim 26 It is clearly established federal law that the conviction of an accused person while 27 he is legally incompetent violates due process. Pate, 383 U.S. at 378; Drope v. Missouri, 28 420 U.S. 162, 172 (1975); see also Maxwell v. Roe, 606 F.3d 561, 576 (9th Cir. 2010) 1 (recognizing Pate and Drope as clearly established law). A defendant is “competent to 2 plead guilty and stand trial if he had ‘sufficient present ability to consult with his lawyer 3 with a reasonable degree of rational understanding’ and ‘a rational as well as factual 4 understanding of the proceedings against him.’” Deere v. Cullen, 718 F.3d 1124, 1144 5 (9th Cir. 2013) (citing Godinez v. Moran, 509 U.S. 389, 396–98 (1993), Drope, 420 U.S. 6 at 172, and Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)) (footnote 7 omitted). “Competence ‘has a modest aim: It seeks to ensure that [the defendant] has the 8 capacity to understand the proceedings and to assist counsel.’” Id. (quoting Godinez, 509 9 U.S. at 402). When analyzing competence to plead guilty, the court “look[s] to whether a 10 defendant has the ability to make a reasoned choice among the alternatives presented to 11 him.” Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997) (internal quotation marks and 12 citation omitted). “Where the evidence before the trial court raises a ‘bona fide doubt’ as 13 to a defendant’s competence to stand trial, the judge on his own motion must conduct a 14 competency hearing.” Maxwell, 606 F.3d. at 568 (citing Pate, 383 U.S. at 385). “[T]he 15 test for such a bona fide doubt is whether a reasonable judge, situated as was the trial court 16 judge whose failure to conduct an evidentiary hearing is being reviewed, should have 17 experienced doubt with respect to competency to stand trial.” Id. (internal quotation marks 18 and citation omitted). “Factors to consider in ascertaining a defendant’s competence 19 include evidence of his irrational behavior, his demeanor at trial, and any prior medical 20 opinion on competence.” Mendez v. Knowles, 556 F.3d 757, 771 (9th Cir. 2009) (citing 21 Drope, 420 U.S. at 180). “[O]ne of these factors standing alone may, in some 22 circumstances, be sufficient.” Drope, 420 U.S. at 180. 23 Here, the PCR court found Petitioner’s claim was without merit: 24 No report or opinion is offered by a mental health professional to support his 25 claim that he was not competent to enter a plea. To the contrary, Defendant said on the record that the prescribed medications helped him to understand 26 the proceedings rather than impeding his mental competency. His counsel 27 also commented on his personal observations that the medications “are helping him more.” 28 (Doc. 22, p. 165.) On review of the PCR court’s denial of Petitioner’s claim, the Arizona 1 Court of Appeals similarly rejected the claim: 2 Sovero claimed his pleas were not knowing, intelligent and voluntary 3 because he was taking psychotropic medication under a doctor’s care at the time. In pressing this argument, Sovero failed to present a colorable claim. 4 Sovero offered nothing from a medical professional to explain the effects of 5 any relevant medication in general or its effects on him specifically. Moreover, although he pled guilty in November 2010, the medical records 6 he provides (which show that he was taking psychotropic medication at one 7 time) end in May 2010, six months before the change-of-plea hearing. []While Sovero said at the November 2010 change-of-plea hearing 8 that he was still taking medication for mental health issues, he did not identify the medications and did not complain of their effects, but explained to the 9 court that the medications helped him think more clearly. Sovero then went 10 through the full colloquy with the court and stated he understood all the terms of the plea agreement, including the full range of penalties. Nothing about 11 that colloquy suggests his pleas were not knowing, intelligent and voluntary. 12 (Doc. 23, p. 80.) This Court concludes that the state court’s decision denying Petitioner’s 13 Fourteenth Amendment due process claim2 was not contrary to or an unreasonable 14 application of clearly established Federal law. Nor was the state court’s decision based on 15 an unreasonable application of the facts. 16 Petitioner’s federal habeas Petition and Objection essentially restate the arguments 17 that Petitioner raised during the PCR proceedings. The Court rejects the arguments because 18 Petitioner does not persuasively explain how the state court’s decision was not in 19 accordance with Pate and its progeny or otherwise contrary to federal law. And, evidence 20 that Petitioner submitted in support of his claim is insufficient to raise a doubt as to his 21 competency to enter a knowing, intelligent and voluntary plea or to cooperate rationally 22 with counsel at the time he entered his guilty pleas, as reasonably found by the state court. 23

24 2 Petitioner’s claim of a due process violation under the Fifth Amendment is not cognizable. It is the Fourteenth Amendment, not the Fifth Amendment, that protects a 25 person against deprivations of due process by a state. See U.S. Const. amend XIV, § 1 (“nor shall any State deprive any person of life, liberty, or property without due process of law.”); 26 Castillo v. McFadden, 399 F.3d at 993, 1002 n. 5 (9th Cir. 2005) (“The Fifth Amendment prohibits the federal government from depriving persons of due process, while the 27 Fourteenth Amendment explicitly prohibits deprivations without due process by the several States.”). Because the Fifth Amendment Due Process Clause does not provide a cognizable 28 ground for relief regarding Petitioner’s state court conviction, his allegation that the Fifth Amendment Due Process Clause was violated will be dismissed. 1 To support his claim that his medication rendered him incompetent, Petitioner 2 submitted a court minute entry, medical records, transcripts of court proceedings 3 containing comments about his medication, and notes from mitigation specialist Herman 4 Joseph. Many of these documents establish that Petitioner was taking psychotropic 5 medications at various times during his incarceration.3 The notes from mitigation specialist 6 Joseph contain information from Petitioner’s girlfriend, Shannon Sausa. The notes state 7 that at some unspecified point, Petitioner told Joseph that Sausa mentioned she was 8 concerned about how he looked and wanted to know what medications he was taking. (Id. 9 at 104.) In May 24, 2010, Sausa wrote Joseph stating that she “wanted to see about 10 changing [Petitioner’s] meds. [H]e is turning into a zombie.” (Id.) In November 2010, 11 Petitioner told Joseph that Sausa was going to write to the court to advise that she did not 12 think Petitioner “was ‘competent’ enough to have made the decision to have entered into 13 his planned plea agreement.” (Id.) Joseph’s notes also reflect that in June 2010, 14 Petitioner’s former sister-in-law, French, told Joseph that when visiting Petitioner at the 15 jail, she found him to be “lethargic, ‘spacey’ and noncommunitive. [sic]” (Id. at 104.) 16 French described Petitioner’s affect and behavior as entirely different from the person she 17 had known prior to his incarceration. (Id.)4 18 Petitioner also argues that three occurrences during the change of plea hearing show 19 that that he was incompetent at that time. First, after Petitioner was advised of the possible 20 penalties and responded that he understood, Petitioner’s counsel asked for a minute and an 21 off-the-record conversation ensued between Petitioner and counsel. (Id. at 57-58.) 22 Petitioner asserts that this exchange shows he was confused about the possible penalties

23 3 Records from Maricopa County Correctional Health Services reflect that from October 2009 through May 2010, Petitioner received various medications including 24 Vistaril, Thorazine, Risperdal, Cogentin, Trazodone, and Depakote. (Doc. 22, pp. 45-53.) An April 2010 email from Joseph to Petitioner’s counsel relayed Petitioner’s statement that 25 he was receiving Depakote, Cogentin, Risperdal and Thorazine, and that jail staff wanted to evaluate him. (Id. at 107.) 26 4 Petitioner also pointed to excerpts from his subsequent sentencing on January 11, 27 2011, where his former sister-in-law stated: “It saddens me to see [Petitioner] . . . today. It’s like he’s lifeless I am concerned about him, your Honor. He has been heavily 28 medicated [sic] that somedays he doesn’t even respond to our questions.” (Doc. 22, p. 65.) 1 and that his counsel had to stop the proceedings to explain them to him. (Id. at 22.) Second, 2 Petitioner asserts the fact that his counsel provided the factual basis at the hearing shows 3 that Petitioner did not have the capacity to do so. (Id. at 23.) Third, Petitioner asserts that 4 the colloquy showed he was incompetent because he answered the court’s question about 5 the kind of medication he was taking with his own question and because it was defense 6 counsel who actually answered the question. (Id. at 76-78.)5 7 The Court concludes, as the state court did, that the evidence does not establish that 8 (or raise a bona fide doubt about whether) the medications Petitioner was taking, alone or 9 in combination, altered his mental capacity to the degree that would render him unable to 10 understand the nature and object of the proceedings against him, to consult with counsel, 11 and to assist in preparing his defense. “The mere fact that [the defendant] . . . took 12 potentially mood-altering medication is not sufficient to vitiate his plea. There must be 13 some evidence that the medication affected his rationality.” United States v. Pellerito, 878 14 F.2d 1535, 1542 (1st Cir. 1989). Here there is no evidence that the medication affected 15 5 The relevant portion of the transcript reads: 16 THE COURT: Have you used any drugs, alcohol, or medication in 17 the last 24 hours? THE DEFENDANT: Medication. 18 THE COURT: All right. What kind of medication. THE DEFENDANT: What was the one? 19 [Defense counsel]: He’s on medications that help him with his mental health issues. 20 THE COURT: All right. When did you take them? [Defense counsel]: This morning. 21 THE COURT: This morning. All right. Do they help you to think better? 22 THE DEFENDANT: Yeah. THE COURT: You understand why we’re here and what’s going on 23 today? THE DEFENDANT: Yes. 24 THE COURT: All right. You’ve entered into a plea agreement here where you agree to plead guilty to—both Counts 1 25 and 2 are first degree murder, both class 1 dangerous felonies. Both occurred on February 4, 2009. And 26 also Count 6, aggravated assault, a Class 2 dangerous felony. That occurred also—well, that occurred on 27 February 5, 2009. Have you had a chance to go over this plea agreement with your attorneys? 28 THE DEFENDANT: Yes. (Doc. 22, pp. 56-57.) 1 Petitioner’s rationality. In fact, the record from the change of plea hearing shows the 2 contrary. 3 The Petitioner told the state court at the hearing that the medications helped him to 4 think more clearly; he also stated that he understood why he was in court that day and what 5 was going on. (Doc. 40, p. 6.) Immediately prior to the exchange with the court about 6 Petitioner’s medication, Petitioner answered the court’s questions concerning his true 7 name, date of birth and education. (Id. at 2.) And throughout the proceeding, Petitioner 8 appropriately responded to the court’s inquiries. (See Doc. 40, pp. 4-17.) 9 The single off-the-record discussion between Petitioner and counsel does not 10 support an inference that the conference was necessitated by Petitioner’s confusion. 11 Clients and their counsel often consult during hearings. The transcript shows that, after 12 Petitioner was advised of the possible penalties and responded that he understood the 13 possible penalties, defense counsel asked for a minute. (Doc. 40, p. 8.) There is no 14 indication as to why counsel requested the conference. More importantly, nothing about 15 Petitioner’s statements, before or after the conference, suggest he was confused. There 16 were no corrections made to the record, and after the off-the-record conversation occurred, 17 the Court asked if they were ready to go, and Petitioner responded affirmatively. (Id. at 9.) 18 Similarly, it is not uncommon for counsel to state the factual basis at a change of plea 19 hearing. Counsel’s providing the factual basis is not, in itself, evidence of Petitioner’s 20 incompetence. 21 Finally, the fact that Petitioner answered the court’s question about the kind of 22 medication he was taking with his own question, and defense counsel’s subsequent 23 response to the question, does not establish a concern about competency. (Id. at 76-78.) 24 The court asked Petitioner whether he used any drugs, alcohol or medication in the last 24 25 hours. Petitioner appropriately responded to the Court’s question by stating that he had 26 taken medication. When asked by the court for the kind of medication, Petitioner turned 27 to defense counsel and asked, “[w]hat was the one?” (Id. at 6.) It is clear from the context 28 of the exchange that Petitioner did not recall the name of the medication and was seeking 1 defense counsel’s assistance in identifying the medication. (Doc. 40, pp. 5-6.) Petitioner’s 2 response does not indicate a lack of competence. It showed his understanding of the 3 question and his effort to obtain the information required to respond to the question. 4 The record of the change of plea hearing refutes Petitioner’s argument that his 5 medications compromised his competence. The transcript as a whole, Petitioner’s own 6 statements, including statements about the helpfulness of the medication, his ability to 7 comprehend the significance of the hearing, and his ability to respond appropriately to the 8 court’s questions throughout the proceeding, strongly support the state court’s rejection of 9 Petitioner’s argument that his medications compromised his competence. For the foregoing 10 reasons, the Court concludes that the state court decision denying Petitioner’s due process 11 claim was not contrary to or an unreasonable application of clearly established Federal law. 12 B. Ground 2(a) is properly exhausted in part, but that part fails on the 13 merits. 14 In Ground 2(a), Petitioner asserts that trial counsel was ineffective because counsel 15 allowed Petitioner to plead guilty and stand for sentencing knowing that Petitioner’s 16 psychotropic medication rendered him unable to enter a knowing and intelligent plea. 17 (Doc. 10, p. 9) The Magistrate Judge concluded that Ground 2(a) was procedurally 18 defaulted because Petitioner did not fairly present his claim to the Arizona Court of 19 Appeals, and Arizona law would now prohibit him from bringing his claim to the court of 20 appeals. (Doc. 31, pp. 22-23.) 21 The Court concludes that Petitioner exhausted his claim that trial counsel was 22 ineffective for allowing Petitioner to plead guilty knowing that Petitioner’s medications 23 rendered him incompetent, but the claim fails on the merits. The Court further concludes 24 that Petitioner failed to exhaust his claim that counsel was ineffective in allowing Petitioner 25 to proceed with sentencing. 26 1. Exhaustion of state remedies 27 a. Claim of incompetency during guilty plea 28 Respondents acknowledge that Petitioner’s PCR Petition fairly presented the claim 1 that Petitioner’s counsel was ineffective because counsel allowed Petitioner to plead guilty 2 while Petitioner was on psychotropic medications that rendered Petitioner incompetent and 3 his plea unknowing and unintelligent. (Doc. 20, p. 14.) Respondents argue, however, that 4 Petitioner did not exhaust the claim because he failed to fairly present it to the appellate 5 court on review. While the Court agrees with Respondents that Petitioner did not raise the 6 claim in his petition for review, the Court disagrees that the claim is precluded due to the 7 lack of exhaustion. In its decision, the Arizona Court of Appeals expressly addressed and 8 rejected this claim. (Doc. 23, pp. 80-81.) The fact that the Arizona Court of Appeals 9 decided the claim on the merits renders it exhausted. See Castille, 489 U.S. at 351 (it is 10 reasonable to infer an exception to the fair presentment requirement where the state courts 11 have reached and passed on the merits of a federal claim); Sandgathe, 314 F.3d at 377 (fact 12 that state court expressly addressed petitioner’s constitutional claim on the merits precludes 13 any exhaustion defense at that level of decision). 14 b. Claim of incompetency during sentencing 15 Petitioner failed to fairly present his claim that his counsel was ineffective in 16 allowing him to be sentenced while taking medications that rendered Petitioner 17 incompetent. Review of the record reflects that Petitioner did not raise this claim before 18 the state courts. “[E]ach unrelated alleged instance . . . of counsel’s ineffectiveness is a 19 separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th 20 Cir. 2013) (internal quotation marks and citation omitted) (alteration in original). Because 21 Petitioner did not present this claim to the state court, and the state court did not have an 22 opportunity to address it, the Court will adopt the Magistrate Judge’s conclusion that 23 Ground 2(a) is procedurally defaulted as to Petitioner’s claim that counsel was ineffective 24 at sentencing. 25 2. Merits of Claim 26 To merit relief from the state court, Petitioner “had to show both that his counsel 27 provided deficient assistance and that there was prejudice as a result.”6 Harrington v.

28 6 “Generally, in the context of a collateral attack on a guilty plea, Strickland’s prejudice prong requires that the petitioner show that ‘there is a reasonable probability that 1 Richter, 562 U.S. 86, 104 (2011); see also Strickland v. Washington, 466 U.S. 668 (1984). 2 Because failure to make the required showing of either deficient performance or prejudice 3 defeats the claim, the court need not address both factors where one is lacking. Strickland, 4 466 U.S. at 697–700. 5 Additionally, under the AEDPA, the federal court’s review of the state court’s 6 decision is subject to another level of deference. Bell v. Cone, 535 U.S. 685, 689–699 7 (2002). In order to obtain habeas relief, Petitioner must make the additional showing that 8 the state court’s ruling rejecting an ineffective assistance of counsel claim constituted an 9 unreasonable application of Strickland. 28 U.S.C. § 2254(d)(1); see also Harrington, 562 10 U.S. at 105 (Under § 2254(d) “the question is not whether counsel’s actions were 11 reasonable. The question is whether there is any reasonable argument that counsel satisfied 12 Strickland’s deferential standard.”). 13 To establish counsel’s ineffectiveness before the PCR court, Petitioner relied on 14 essentially the same evidence he presented in support of his due process claim. Petitioner 15 argued in his PCR petition that the evidence showed that Petitioner’s attorney knew that 16 Petitioner’s medication rendered him incompetent to enter a plea. Petitioner also asserted:

17 Counsel knew what effect these medications took on the defendant this is 18 why counsel repeatedly had to instruct the defendant to [sic] what to say throughout the proceeding. Yes, no and I understand. Is what (counsel) Mr. 19 Koestner would instruct me to say and when to say it throughout the 20 but for counsel’s errors, he would not have pleaded guilty and would have insisted on going 21 to trial.’” Sherwood v. Neotti, No. EDCV 11-11728-CJC-PLA, 2020 WL 2572459, at *3 (C.D. Cal. May 21, 2020) (quoting Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985)). However, 22 in analyzing the prejudice prong where the petitioner claimed counsel was ineffective by failing to request a competency hearing and allowing the petitioner to enter a guilty plea, 23 the Ninth Circuit has framed the test as whether there was “a reasonable probability that [the petitioner] . . . would have been found incompetent to plead guilty[.]” Deere v. Cullen, 24 718 F.3d 1124, 1126 (9th Cir. 2013). As one court has noted, “a claim of incompetence is difficult to analyze under the ‘outcome’ test in Strickland, because whether the defendant 25 was guilty or innocent is irrelevant if he was convicted while incompetent.” Theriot v. Whitley, 18 F.3d 311, 313 (5th Cir. 1994) (stating that the petitioner “can succeed in 26 establishing that he was prejudiced by his attorney’s failure to investigate [petitioner’s competence] only if he can demonstrate by a reasonable probability that he was 27 incompetent to plead guilty.”). The Court need not resolve which test applies to Petitioner’s claim. As discussed, infra, Petition fails to satisfy the first Strickland prong 28 —deficient performance. Additionally, Petitioner fails to demonstrate prejudice under either test. 1 proceeding to accomplish counsel’s task at hand and that goal was for Mr. Koestner (counsel) to get defendant to complete his plea agreement at all cost 2 even if it was going to violate is clients [sic] constitutional rights. 3 (Doc. 22, pp. 24-25 (emphasis omitted).) 4 Following its discussion rejecting Petitioner’s claim that his medications rendered 5 him incompetent to plead guilty, the PCR court stated that Petitioner’s “ineffective 6 assistance of counsel claim is likewise without factual merit and does not present a 7 colorable claim. This claim must be supported by more than mere speculation.” (Doc. 22, 8 p. 165.) On review, the Arizona Court of Appeals also rejected Petitioner’s claim. The 9 court concluded that Petitioner’s failure to present a colorable claim that his pleas were not 10 knowing, intelligent and voluntary because he was taking medications, also rendered him 11 unable to “to present a colorable claim of ineffective assistance of counsel based on the 12 failure to raise the issue at the change-of-plea hearing.” (Doc. 23, p. 81.) 13 Considering Petitioner’s claim of ineffective assistance of counsel under the 14 applicable standards, the Court concludes that the state court’s decision is not contrary to 15 or an unreasonable application of clearly established federal law. Nor is the state court’s 16 decision based on an unreasonable determination of the facts in light of the evidence 17 presented during the state proceeding. Petitioner fails to identify any evidence that 18 suggests his counsel should have been aware that Petitioner’s medicated state rendered him 19 unable to knowingly, voluntarily and intelligently enter a guilty plea. As discussed supra 20 concerning Ground 1, although counsel knew that Petitioner was taking medication for his 21 mental health issues when Petitioner pleaded guilty, Petitioner stated that the medication 22 helped him to think more clearly, and nothing in the record supports the conclusion that 23 Petitioner was confused or that such confusion was caused by the medication. (See Doc. 24 40, pp. 4-17.) Petitioner’s failure to raise a colorable claim that there was a bona fide doubt 25 as to his competency to enter a plea, also supports the conclusion that counsel was not 26 ineffective in failing to raise a competency issue. An attorney’s failure to make a meritless 27 objection or motion does not constitute ineffective assistance of counsel. See Rupe v. 28 Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“the failure to take a futile action can never be 1 deficient performance”); Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (“The 2 failure to raise a meritless legal argument does not constitute ineffective assistance of 3 counsel.”) Because Petitioner has failed to establish a reasonable probability that he was 4 incompetent, Petitioner also cannot establish that he suffered any prejudice. 5 C. Grounds 2(b) and 2(d) lack merit. 6 Petitioner’s Objection concerning Grounds 2(b) and 2(d) raises essentially the same 7 arguments Petitioner presented to Magistrate Judge Macdonald. Petitioner’s Objection 8 does not undermine the analysis and proper conclusion set forth in the Report and 9 Recommendation. Therefore, the Court will overrule Petitioner’s Objection and adopt the 10 Report and Recommendation concerning Grounds 2(b) and 2(d). 11 D. Ground 2(c) is procedurally defaulted 12 In Ground 2(c), Petitioner asserts that his trial counsel “failed to provide sufficient 13 time to discuss defense strategies as this case was a capital offense.” (Doc. 10, p. 9.) The 14 Magistrate Judge concluded that claim 2(c) was procedurally defaulted because Petitioner 15 failed to raise it before the state court and Petitioner would now be precluded from 16 returning to state court to present the claim. (Doc. 31, pp. 28-31.) Petitioner challenges 17 the Magistrate Judge’s conclusion, arguing that the Magistrate Judge relied on a 18 technicality and failed to liberally construe pro se filings. (Doc. 37, p. 22.) Petitioner 19 asserts that he alleged in the PCR proceeding that his counsel did not spend enough time 20 preparing for a complex capital case. (Id. at 21; see also Doc. 22, pp. 28-31; Doc. 23, pp. 21 36-37.) The Court agrees with the Magistrate Judge that claim 2(c) is procedurally 22 defaulted. 23 As stated supra, “each unrelated alleged instance . . . of counsel’s ineffectiveness is 24 a separate claim for purposes of exhaustion.” Gulbrandson, 738 F.3d at 992 (internal 25 quotation marks and citation omitted). “[I]neffective assistance claims are not fungible, 26 but are instead highly fact-dependent, [requiring] some baseline explication of the facts 27 relating to an ineffective assistance claim.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 28 (9th Cir. 2007); see also Gulbrandson, 738 F.3d at 992 (explaining that a petitioner who 1 presented any ineffective assistance of counsel claim below cannot later add unrelated 2 alleged instances of counsel’s ineffectiveness to that claim). Petitioner’s complaint during 3 the PCR proceeding that counsel did not spend enough time during the course of nearly 4 one year preparing for Petitioner’s case is factually distinct from a claim that counsel did 5 not provide sufficient time to actually discuss defense strategies with Petitioner. Because 6 Petitioner did not fairly present Ground 2(c) to the state court, the claim is procedurally 7 defaulted, and the Court will adopt the Report and Recommendation’s conclusion that this 8 claim is procedurally defaulted. 9 E. Ground 2(e) is procedurally defaulted 10 Petitioner does not challenge the Magistrate Judge’s conclusion that Ground 2(e) is 11 procedurally defaulted. Review of the record supports the Magistrate Judge’s conclusion. 12 The Court will adopt the Report and Recommendation’s conclusion as to this claim. 13 F. Denial of certificate of appealability 14 Before Petitioner can appeal this Court’s judgment, a certificate of appealability 15 (COA) must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the 16 Rules Governing Section 2254 Cases. “The district court must issue or deny a certificate 17 of appealability when it enters a final order adverse to the applicant.” Rule 11(a) of the 18 Rules Governing Section 2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may 19 issue only when the petitioner “has made a substantial showing of the denial of a 20 constitutional right.” The court must indicate which specific issues satisfy this showing. 21 See 28 U.S.C. §2253(c)(3). With respect to claims rejected on the merits, a petitioner 22 “must demonstrate that reasonable jurists would find the district court’s assessment of the 23 constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 24 For procedural rulings, a COA will issue only if reasonable jurists could debate whether 25 the petition states a valid claim of the denial of a constitutional right and whether the court’s 26 procedural ruling was correct. Id. Upon review of the record in light of the standards for 27 granting a certificate of appealability, the Court concludes that a certificate shall not issue, 28 // || as the resolution of the petition is not debatable among reasonable jurists. 2\| IV. Conclusion 3 IT IS ORDERED: 4 1. The Report and Recommendation (Doc. 31) to deny the Petition is ADOPTED. 6 2. Petitioner’s Objection to the Report and Recommendation (Doc. 37) is 7\| OVERRULED. 8 3. Petitioner’s Petition for Writ of Habeas Corpus (Doc. 10) is DENIED. 9 4. A certificate of appealability is DENIED. 10 5. The Clerk of the Court shall enter judgment accordingly and close the file in 11 |} this matter. 12 Dated this 20th day of July, 2021. 13 14 □ 15 pod Soya 16 ; Honorable Jennify □ Zipps United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28

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