Valentini 268586 v. Shinn

Opinion

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

9 Rick Wayne Valentini, No. CV-19-00183-PHX-MTL

10 Petitioner, ORDER

11 v.

12 David Shinn, et al.,

13 Respondents. 14 15 Pending before the Court is Magistrate Judge Deborah M. Fine’s Report and 16 Recommendation (“R & R”) (Doc. 14), recommending that the Petition for Writ of 17 Habeas Corpus (the “Petition”) (Doc. 1) be denied and dismissed with prejudice. The 18 Court has reviewed the Petition (Doc. 1), Respondents’ Response to the Petition (Doc. 19 11), Petitioner’s Reply to the Response (Doc. 12), the R & R (Doc. 14), the arguments 20 raised in Petitioner’s Objection to the R & R (Doc. 15), and Respondents’ Reply to 21 Petitioner’s Objection (Doc. 16). For the reasons expressed below, the Court overrules 22 Petitioner’s objections and adopts the Magistrate Judge’s R & R in its entirety. 23 I. BACKGROUND AND PROCEDURAL HISTORY 24 On March 24, 2011, a Maricopa County grand jury indicted Petitioner on two 25 counts. (Doc. 11-1 at 50.) Count One was for the second-degree murder of his girlfriend 26 Jamie Laiadee. (Id. at 50–51.) Count Two was for fraudulent schemes and artifices for 27 using Ms. Laiadee’s credit cards and personal assets. (Id. at 51.) 28 Petitioner had a fifteen-day jury trial at which his defense was that there was no 1 physical evidence tying him to the homicide. (Doc. 11-8 at 271–81.) The jury found 2 Petitioner guilty on both counts. (Id. at 310.) At sentencing, Petitioner maintained his 3 innocence and insisted Ms. Laiadee was not dead. (Id. at 331, 333, 335.) The trial court 4 sentenced Petitioner to an aggravated sentence of twenty-two years on the second-degree 5 murder charge, and to an aggravated sentence of twenty years on the fraudulent schemes 6 and artifices charge. (Id. at 337–38.) These sentences run concurrently to each other and 7 to a sentence previously imposed in a separate criminal case. (Id.) 8 On direct appeal, Petitioner’s appointed counsel raised one issue: whether 9 Petitioner was “deprived of the right to a unanimous verdict by a duplicitous indictment, 10 erroneous jury instructions and a faulty verdict form.” (Doc. 1 at 127–28.) The Arizona 11 Court of Appeals held that “second-degree murder defines a single offense that may be 12 committed with any of three culpable mental states, and a jury need not agree 13 unanimously on which of the three mental states the defendant possessed when causing 14 the victim’s death.” (Id. at 135.) As a result, the Arizona Court of Appeals affirmed 15 Petitioner’s convictions and sentences. (Id.) The Arizona Supreme Court denied review. 16 (Id. at 169.) Petitioner did not pursue a petition for writ of certiorari to the United States 17 Supreme Court. (Id. at 3.) 18 On May 24, 2013, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). 19 (Doc. 11-9 at 4–6.) In July 2014, appointed counsel filed a notice of completed review 20 stating she was unable to identify an “issue to pursue in a PCR.” (Doc. 1 at 171.) The 21 Maricopa County Superior Court gave Petitioner until August 18, 2014, to file his PCR 22 petition pro per. (Doc. 11-9 at 8–9.) Petitioner executed a “state court complaint” on 23 December 2, 2014. (Id. at 11–13.) This complaint was filed in the superior court on 24 January 6, 2015. (Id.) Petitioner requested “the verdict be vacated and [he] be given a 25 new trial” because (1) no body or evidence was found showing that a crime was 26 committed, (2) the prosecution used false witnesses and statements to obtain an 27 indictment, and (3) the jury was not unanimous and could not agree that Petitioner’s 28 actions were “deliberate, reckless, negligent.” (Id. at 12–13.) Petitioner also attached a 1 note to the complaint form advising that the filing was the “pro per part of my Rule 32 2 appeals proceedings.” (Id. at 16.) 3 The superior court construed Petitioner’s complaint as “Defendant’s Pro Per 4 Petition for Post-Conviction Relief” and ordered the State to respond. (Id. at 17.) The 5 State’s response argued that the petition was procedurally deficient for failure to include 6 “a declaration by the defendant stating under penalty of perjury that the information 7 contained is true to the best of the defendant’s knowledge and belief” as required by 8 Arizona Rule of Criminal Procedure 32.5 (Id. at 22.) In Petitioner’s reply, he moved to 9 “dismiss the incorrect petition and allow [Petitioner] sixty days [60] to re-file his Rule 10 (pro per) petition with the correct paperwork pursuant to Rule 32.5.” (Id. at 26.) In an 11 order filed June 24, 2015, the superior court found that Petitioner violated Rule 32.5, 12 dismissed Petitioner’s January 2015 petition without prejudice, and required Petitioner to 13 file a corrected petition within thirty days. (Id. at 30–31.) 14 On July 16, 2015, Petitioner’s corrected PCR petition was filed and included the 15 required declaration. (Id. at 36–39.) Petitioner asserted additional issues not raised in his 16 January 2015 petition. (Id.) Petitioner raised the same six grounds for relief he now 17 asserts in this § 2254 Petition, (id. at 42–60), and raised a claim that his PCR counsel was 18 inadequate. (Id. at 39.) 19 On December 4, 2015, the superior court filed an order inaccurately stating it had 20 dismissed Petitioner’s Rule 32 proceeding on June 24, 2015, “when [Petitioner] missed 21 the deadline for filing a supporting declaration.” (Id. at 63.) As noted above, the court 22 provided Petitioner the opportunity to file a corrected petition, which Petitioner did 23 timely file. (Id. at 30–31.) The superior court construed Petitioner’s July 16, 2015, 24 petition as a notice of PCR and held that the PCR notice was a successive second PCR 25 proceeding. (Id. at 62–63.) 26 The superior court held that all claims Petitioner raised, except his ineffective 27 assistance of counsel claim, were precluded under Arizona Rule of Criminal Procedure 28 1 32.2(a)(3)1 because Petitioner had not raised the claims on direct appeal. (Id.) The court 2 also held that Petitioner’s ineffective assistance of trial counsel claim was precluded in 3 his “second” Rule 32 action under Rule 32.2(a)(2).2 (Id.) The superior court also rejected 4 Petitioner’s claim for newly discovered evidence, concluding that Petitioner could have 5 asserted this evidence on appeal, the evidence was not “new,” and that Petitioner failed to 6 explain why the evidence “would have changed the verdicts and sentences.” (Id. at 64.) 7 The superior court found Petitioner’s appeal-related claims unpersuasive based on the 8 court’s previous ruling and refused to revisit those same claims. (Id.) The superior court 9 also rejected Petitioner’s ineffective assistance of PCR counsel claim. (Id.) 10 The superior court denied Petitioner’s subsequent motion for reconsideration. (Id. 11 at 67.) On petition for review of the superior court’s ruling, the Arizona Court of Appeals 12 granted review and denied relief. (Id. at 75.) On December 3, 2018, the Arizona Supreme 13 Court denied his petition for review. (Id. at 77.) Petitioner then timely filed the instant 14 habeas petition in this Court. (Doc. 1.) 15 II. LEGAL STANDARD 16 When reviewing a state prisoner’s habeas corpus petition under 28 U.S.C. § 2254, 17 a federal district court “must decide whether the petitioner is ‘in custody in violation of 18 the Constitution or laws or treaties of the United States.’” Coleman v. Thompson, 501 19 U.S. 722, 730 (1991) (quoting 28 U.S.C. § 2254). The Court only reviews de novo those 20 portions of the report specifically objected to and “may accept, reject, or modify, in 21 whole or in part, the findings and recommendations made by the magistrate judge.” 28 22 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must 23 determine de novo any part of the magistrate judge’s disposition that has been properly 24 objected to.”) (emphasis added). The Court need not “review . . . any issue that is not the 25 subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). A proper objection 26 made to a magistrate judge’s R & R “requires ‘specific written objections to the proposed

27 1 As the R & R mentions (see Doc. 14 at 4 n.3), the superior court’s order mistakenly cited “Ariz. R. Crim. P. 32.1(a)(3).” (Doc. 11-9 at 63.) 28 2 Again, as the R & R mentions (see Doc. 14 at 5 n.4), the superior court mistakenly cited Rule 32.1(a)(2) instead of Rule 32.2(a)(2). 1 findings and recommendations.’” Warling v. Ryan, No. CV-12-01396-PHX-DGC (SPL), 2 2013 WL 5276367, at *2 (D. Ariz. Sept. 19, 2013) (quoting Fed. R. Civ. P. 72(b)). If a 3 petitioner raises a general objection, “the Court is relieved of any obligation to review it.” 4 Martin v. Ryan, No. CV-13-00381-PHX-ROS, 2014 WL 5432133, at *2 (D. Ariz. Oct. 5 24, 2014) (citations omitted). Therefore, a general objection “has the same effect as 6 would a failure to object.” Warling, 2013 WL 5276367 at *2 (citations omitted). 7 III. DISCUSSION 8 The Petition raises six grounds for relief. (Doc. 1 at 6–11.) Petitioner’s Ground 9 One alleges a denial of his Miranda rights regarding the testimony of a witness, J.R., who 10 had been housed with Petitioner in jail. (Id. at 6.) In Ground Two, Petitioner contends he 11 was denied Fifth Amendment Due Process when the State used witness J.R.’s statement 12 during grand jury proceedings. (Id. at 7.) In Ground Three, Petitioner alleges the jury 13 violated his Sixth Amendment right to trial by an impartial jury when the “biased and 14 irrational” jury found him guilty of second-degree murder. (Id. at 8.) Petitioner’s Ground 15 Four claim is that his Fifth Amendment due process rights were violated when he 16 received ineffective assistance of trial counsel. (Id. at 9.) In Ground Five, Petitioner 17 alleges there is new evidence in his case supporting a claim of actual innocence. (Id. at 18 10.) Petitioner contends in Ground Six that there was “obstruction of [his] 19 constitutionally protected right to represent himself and participate in the appeals 20 process.” (Id. at 11.) 21 The R & R recommends that all grounds be denied because “Grounds One through 22 Three of the Petition are procedurally defaulted without excuse” and “Grounds Four 23 through Six fails on the merits.” (Doc. 14 at 40.) Petitioner filed an objection and 24 addressed each of the six grounds. (Doc. 15.) For the reasons outlined below, the Court 25 will accept and adopt the R & R in its entirety. 26 A. Grounds One, Two, and Three 27 The R & R correctly summarizes Petitioner’s Grounds One, Two, and Three 28 claims: 1 In Ground One, Petitioner argues that prosecution witness J.R. was recruited in jail by police detectives and a 2 fellow inmate to supply false testimony that Petitioner had 3 reported he had “blasted Jamie [Laiadee] with a shotgun, cut her up, and fed her to the pigs.” (Doc. 1 at 442.) Petitioner 4 contends that “[a]nything [J.R.] says is a violation of 5 [P]etitioner’s Miranda rights under the U.S. Constitution, since [J.R.] did not read [P]etitioner his rights before speaking 6 to him.” (Id. at 443.) 7 In his Ground Two claim, Petitioner asserts that the only evidence provided to the grand jury was the “false 8 statement” provided by J.R. to a police detective. (Doc. 1-1 at 9 1.) Petitioner states that it must be concluded that J.R.’s testimony was false because J.R. changed his “story” from his 10 initial statement to the police detective, to his grand jury 11 testimony, then to a pre-trial interview with defense counsel, and finally to his trial testimony. (Id.) Petitioner further 12 argues that the prosecution used J.R.’s testimony knowing it 13 was false. (Id. at 2.) Petitioner’s Ground Three claim is that he was 14 convicted by a biased jury. (Doc. 1 at 8, Doc. 1-1 at 4–6.) Petitioner supports this conclusion with: (1) evidence that 15 jurors reported to media outlets they had allegedly found 16 Petitioner guilty because he was “arrogant and indifferent”; (2) the prosecution changed its theory of how the victim was 17 killed; and (3) the jury “was exposed” to false testimony 18 given by a police officer, the victim’s father, and witness J.R. (Doc. 1-1 at 4–6.) More generally, Petitioner contends that no 19 unbiased jury could have found him guilty in a case lacking a 20 body, other physical evidence, a coroner or medical examiner’s report, a murder witness, or a weapon. (Id. at 4.) 21 (Doc. 14 at 10–11.) 22 Petitioner did not raise Grounds One, Two, or Three in his direct appeal, rather he 23 brought these arguments in his PCR action filed on July 16, 2015. (Doc. 11-9 at 37–38, 24 42–44, 46, 48–50.) The R & R states that “Petitioner failed to exhaust his claims asserted 25 here in Grounds One, Two, and Three and he is time-barred under Arizona law from 26 returning to state court with these claims.” (Doc. 14 at 11.) Petitioner concedes that he 27 did not bring up these three grounds on direct appeal but outlines several justifications in 28 his objections. (Doc. 15 at 1–3.) First, Petitioner says he “was never made aware of his 1 right to bring them up on direct appeal by his legal counsel.” (Id. at 1.) Petitioner also 2 mentions that he was told “only items from the trial transcript” were challengeable during 3 direct appeal and he had to wait until later to challenge other issues. (Id. at 2.) Finally, 4 Petitioner asserted that he is not a lawyer, has no legal training or experience, and has no 5 access to a law library. (Id. at 3.) 6 A state prisoner must properly exhaust all state court remedies before this Court 7 may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); see 8 Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 9 (1991). Arizona prisoners properly exhaust state remedies by presenting claims to the 10 Arizona Court of Appeals in a procedurally appropriate manner. O’Sullivan v. Boerckel, 11 526 U.S. 838, 843–45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). 12 “To exhaust one’s state court remedies in Arizona, a petitioner must first raise the claim 13 in a direct appeal or collaterally attack his conviction in a petition for post-conviction 14 relief pursuant to Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); see 15 also Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a), 32.4(a). A procedural bar exists if a claim was 16 not fairly presented in state court and no state remedies remain available to the petitioner. 17 Teague v. Lane, 489 U.S. 288, 298–99 (1989); Beaty v. Stewart, 303 F.3d 975, 987 (9th 18 Cir. 2002). 19 Petitioner failed to raise Grounds One, Two, or Three in a procedurally 20 appropriate manner. The Maricopa County Superior Court also found the claims to be 21 precluded because Petitioner failed to raise these issues on direct appeal. (Doc. 11-9 at 22 63.) Petitioner’s objections on this point do not excuse this failure. Thus, each ground is 23 procedurally barred. 24 Even so, the Court may review Petitioner’s procedurally defaulted claims if he can 25 prove either (1) cause for the default and actual prejudice to excuse the default, or (2) a 26 miscarriage of justice/actual innocence. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 27 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750. “Cause” is something that “cannot be 28 fairly attributable” to a petitioner, and a petitioner must show that this “objective factor 1 external to the defense impeded [his] efforts to comply with the State’s procedural rule.” 2 Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish 3 prejudice a “habeas petitioner must show ‘not merely that the errors at . . . trial created a 4 possibility of prejudice, but that they worked to his actual and substantial disadvantage, 5 infecting his entire trial with error of constitutional dimensions.’” Murray v. Carrier, 477 6 U.S. 478, 494 (1986) (citation omitted). “Such a showing of pervasive actual prejudice 7 can hardly be thought to constitute anything other than a showing that the prisoner was 8 denied ‘fundamental fairness’ at trial.” Id. 9 The miscarriage of justice exception to procedural default “is limited to those 10 extraordinary cases where the petitioner asserts his [actual] innocence and establishes 11 that the court cannot have confidence in the contrary finding of guilt.” Johnson v. 12 Knowles, 541 F.3d 933, 937 (9th Cir. 2008). To meet this high standard, a petitioner must 13 establish their factual innocence of the crime and not mere legal insufficiency. See 14 Bousley v. United States, 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 15 882–83 (9th Cir. 2003). A petitioner “must show that it is more likely than not that no 16 reasonable juror would have convicted him in the light of the new evidence.” McQuiggin 17 v. Perkins, 569 U.S. 383, 399 (2013) (citation omitted). Because of “the rarity of such 18 evidence, in virtually every case, the allegation of actual innocence has been summarily 19 rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. 20 Thomas, 523 U.S. 538, 559 (1998)). 21 i. Ground One 22 Petitioner objected to the R & R’s recommendation for Ground One and declares 23 that “[i]t is now clear that Ground One involves ‘cause,’ prejudice,’ and an ‘extreme 24 miscarriage of justice.’” (Doc. 12 at 10; Doc. 15 at 3–5.) In Petitioner’s objections, he 25 argues that Ground One succeeds because (1) a prosecution witness, J.R., and Detective 26 Moffat supplied false testimony and (2) the State violated his Miranda rights. (Doc. 15 at 27 3–7; Doc. 1 at 6, 443.) 28 Petitioner contends that Respondents’ answer to the Petition supplies “new” 1 evidence that J.R. never spoke with Petitioner and that J.R. used a false story when 2 testifying at trial. (Doc. 12 at 9–10.) Petitioner also asserts that the prosecutor lied at trial 3 and defense counsel “did nothing about it.” (Id. at 10.) As the R & R reveals, the record 4 reflects that Detective Moffat told the grand jury that Petitioner had reported to J.R. that 5 Petitioner “killed Jamie, and he used the shotgun from the storage unit.” (Doc. 11-1 at 6 43.) Detective Moffat also testified before the grand jury that Petitioner reported to J.R. 7 that the police would never find the victim’s body and that the police had “found the 8 murder weapon and added that he killed [Ms. Laiadee] with the shotgun that was located 9 during the search of his storage unit.” (Doc. 1 at 203.) However, at trial, J.R. testified that 10 he did not tell Detective Moffat that Petitioner killed Jamie and he used a shotgun but had 11 heard it from other inmates. (Doc. 11-5 at 15.) J.R. did testify that Petitioner said that 12 “the police know that he killed her” and he “can’t take it no more, that he needs to get it 13 off his chest and he needed to talk to somebody.” (Id. at 15–16.) Petitioner also asked 14 J.R. “out of the blue” if he can be charged “with murder without a body.” (Id. at 18.) 15 After trial counsel completed J.R.’s questioning, the jury submitted a question 16 asking J.R., “Did [Petitioner] ever discuss ever telling you the status of his girlfriend, 17 current whereabouts?” (Id. at 95–97.) J.R. answered, “No.” (Id. at 97.) When discussing 18 this question outside the presence of the jury and before the question was posed to the 19 jury, the prosecutor advised the court that “[J.R.] did hear with [Petitioner] did, but he 20 heard it from anther inmate so I don’t want him to say that because that’s hearsay because 21 [Petitioner] never told him that.” (Id. at 95.) Detective Moffat reaffirmed that J.R. did tell 22 him that Petitioner confessed to killing Ms. Laiadee. (Id. at 103–04, 106–07.) Detective 23 Moffat also knew that other inmates said that Petitioner killed Ms. Laiadee. (Id. at 104– 24 05.) Petitioner highlights that this information proves that J.R. lied to Detective Moffat, 25 who in turn lied to the grand jury and again at trial. (Doc. 12 at 10.) Petitioner also says 26 that is clear that another inmate, Ethan Ducharme, provided J.R. with a false story. (Id.) 27 Next, Petitioner asserts that any testimony J.R. provided violated Petitioner’s 28 Miranda rights “since [J.R.] did not read the Petitioner his rights before speaking with 1 him.” (Doc. 1 at 6, 443.) In Miranda v. Arizona, 384 U.S. 436, 444, 478–79 (1966), the 2 United States Supreme Court held that a person subjected to custodial interrogation must 3 be provided certain warnings before a state actor elicits statements. But, “Miranda does 4 not govern interrogation by private citizens acting on their own.” United States v. Eide, 5 875 F.2d 1429, 1433 (9th Cir. 1989) (citations omitted). As the R & R sets out, J.R. 6 sought out the Chandler Police Department to provide this information before the grand 7 jury took place. (Doc. 11-1 at 42–43.) No one was in contact with J.R. before he provided 8 the information. (Id. at 91–92.) 9 The Court agrees with the R & R that “Petitioner fails to explain how he is entitled 10 to a finding of either cause or prejudice . . . to excuse his procedural default of Ground 11 One.” (Doc. 14 at 17.) Petitioner’s argument that J.R. and Detective Moffat supplied false 12 testimony to the court does not align with the assertions or conclusion on the record 13 before this Court. Petitioner’s Miranda claim also does not apply because J.R. went to the 14 police on his own accord. Neither the alleged inconsistency with J.R.’s and Detective 15 Moffat’s story nor the Miranda violation claim meets the standard to excuse Petitioner’s 16 procedural default. The R & R correctly finds that “cause,” “prejudice,” or the 17 “miscarriage of justice” exception were not met. Petitioner did not show “cause,” which 18 the petitioner must establish interfered with his efforts to comply with the State’s 19 procedural rules. Coleman, 501 U.S. at 753. Nor does the record support a finding of 20 “prejudice” or a “miscarriage of justice” given the Petition and objections. See Murray, 21 477 U.S. at 494; Johnson, 541 F.3d at 937. 22 Accordingly, the Court accepts and adopts the R & R’s recommendation that 23 Ground One is procedurally defaulted without excuse. 24 ii. Ground Two 25 Petitioner asserts that the “State’s use of [J.R.]’s false statement during Grand Jury 26 Proceeding is a violation” of his Fifth Amendment rights. (Doc. 1 at 7.) He also states 27 that his “rebuttal of the Respondents’ claim that Ground Two is procedurally defaulted 28 rests with the same arguments as in Ground One.” (Doc. 12 at 10–11.) As the R & R 1 summarizes: Petitioner asserts his Ground Two claim relies on the 2 conclusions that: (1) J.R. lied to Detective Moffat, who in 3 turn lied to the grand jury; (2) J.R. never “received” a confession from Petitioner and relied solely of the allegedly 4 false statements of fellow inmate Ethan Ducharme; (3) the 5 prosecutor knew that Detective Moffat’s statement about J.R. having killed Ms. Laiadee with a shotgun was hearsay and 6 perjury but used it anyway to obtain an indictment; and 7 (4) both defense trial lawyers knew Detective Moffat’s statement was perjurious and did nothing, thus allowing 8 Petitioner to be convicted of a crime he did not commit. 9 (Doc 14 at 18.) In Petitioner’s Objection, he outlines eight “bullet points” to show that 10 the “cause” and “prejudice” standard are met for Ground Two. (Doc. 15 at 8–9.) 11 Petitioner also objects to the R & R based on hearsay concerns and that the evidence was 12 not sufficient to convict him. (Id. at 7–8.) 13 The Court has reviewed each argument and objection and agrees with the R & R 14 that these “are premised on faulty reasoning.” (Doc. 14 at 18.) Petitioner again raises the 15 issue relating to the inconsistency with J.R.’s and Detective Moffat’s testimony. As 16 discussed, J.R. testified that he did not tell Detective Moffat that Petitioner killed Ms. 17 Laiadee. (Doc. 11-5 at 45.) Detective Moffat testified at trial that J.R. did tell him that 18 Petitioner killed Ms. Laiadee. (Id. at 107.) Petitioner uses this discrepancy to allege that 19 grand jury and trial jury were presented false testimony. (Doc. 15 at 7.) As the R & R 20 outlines, “Detective Moffat’s testimony was consistent before the grand jury and at trial, 21 and J.R.’s inconsistent testimony at trial does not prove that Moffat’s testimony was 22 false.” (Doc. 14 at 18.) Nothing in the record suggests that Detective Moffat’s testimony 23 was false. Even if Detective Moffat provided hearsay evidence to the grand jury, that 24 evidence was proper. See Costello v. United States, 350 U.S. 359, 363 (1956) (concluding 25 that an indictment premised on hearsay was not subject to challenge under the Fifth 26 Amendment “on the ground that there was inadequate or incompetent evidence before the 27 grand jury”); United States v. Zielezinski, 740 F.2d 727, 729 (9th Cir. 1984) (same). 28 Moreover, the R & R cites ten other pieces of evidence presented to the grand jury which 1 would provide probable cause for the indicted offense. (See Doc. 14 at 19.) 2 Petitioner’s list of objections to the R & R’s recommendation for Ground Two 3 also do not meet the standard to excuse procedural default. Petitioner rehashes several 4 theories and conclusory statements to support his Ground Two claim. These objections 5 include an ineffective assistance of counsel issue, “incompetence” by certain Arizona 6 Department of Correction legal personnel, and more issues relating to “deceptive 7 testimony” and “false hearsay.” (Doc. 15 at 8–9.) The R & R correctly finds that “cause,” 8 “prejudice,” or the “miscarriage of justice” exception were not met for Ground Two. 9 Petitioner did not show “cause,” which he must establish interfered with his efforts to 10 comply with the State’s procedural rules. Coleman, 501 U.S. at 753. Nor does the record 11 support a finding of “prejudice” or a “miscarriage of justice” given the Petition and 12 objections. See Murray, 477 U.S. at 494; Johnson, 541 F.3d at 937. 13 Accordingly, the Court accepts and adopts the R & R’s recommendation that 14 Ground Two is procedurally defaulted without excuse. 15 iii. Ground Three 16 Petitioner’s Ground Three claim is that the “jury was biased and irrational” and 17 violated his Sixth Amendment right to an “impartial jury” when it found him guilty of 18 murder. (Doc. 1 at 8.) As the R & R notes, “Petitioner agrees with Respondents that his 19 Ground Three claim is a challenge to the sufficiency of the evidence.” (Doc. 12 at 14– 20 15.) In the Petition, Reply to Respondents’ Response, and Objection, he continues to 21 assert that no rational jury could find someone guilty of murder with no body, no crime 22 scene, no physical evidence, no murder weapon, and no witnesses. (Doc. 1 at 450; Doc. 23 12 at 15; Doc. 15 at 9.) 24 “[T]he Due Process Clause protects the accused against conviction except upon 25 proof beyond a reasonable doubt of every fact necessary to constitute the crime with 26 which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). On review for sufficiency 27 of the evidence, “the relevant question is whether, after viewing the evidence in the light 28 most favorable to the prosecution, any rational trier of fact could have found the essential 1 elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 2 319 (1979). The R & R correctly quoted the Ninth Circuit’s two-step test when 3 determining a question of sufficiency of the evidence. (Doc. 14 at 20–21.) The court in 4 United States v. Nevils, explained that Jackson established: [A] two-step inquiry for considering a challenge to a 5 conviction based on sufficiency of the evidence. First, a 6 reviewing court must consider the evidence presented at trial in the light most favorable to the prosecution. This means that 7 a court of appeals may not usurp the role of the finder of fact 8 by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial. 9 Rather, when “faced with a record of historical facts that 10 supports conflicting inferences” a reviewing court “must presume-even if it does not affirmatively appear in the record- 11 that the trier of fact resolved any such conflicts in favor of the 12 prosecution, and must defer to that resolution.” Second, after viewing the evidence in the light most 13 favorable to the prosecution, the reviewing court must 14 determine whether this evidence, so viewed, is adequate to allow “any rational trier of fact [to find] the essential 15 elements of the crime beyond a reasonable doubt.” 16 598 F.3d 1158, 1164 (9th Cir. 2010) (citations omitted). 17 Petitioner raises several issues related to Ground Three. (Doc. 1 at 450–52.) He 18 states that the jury was exposed to “false testimony” from several people. (Id. at 450–51.) 19 Further, Petitioner notes that the prosecutor acted in an “unethical and illegal” manner 20 which “exposed” the jury to false statements. (Id. at 451.) Petitioner objected to many of 21 these same issues that the R & R resolved against his favor. (Doc. 15 at 9–11.) He 22 objected to J.R.’s “hearsay” statements, Ms. Laiadee father’s trial testimony, and a 23 prosecution witness’s testimony about Petitioner’s alleged physical abuse. (Id.) 24 Petitioner’s arguments and objections to J.R.’s testimony fail for the same reasons 25 as they did in Grounds One and Two. As the R & R explains, this argument “disregards 26 key evidence” and omits all the other testimony that J.R. provided against Petitioner. (See 27 Doc. 11-5 at 15, 18–19.) As to Petitioner’s reliance that Mr. Laiadee’s testimony proved 28 that Ms. Laiadee was still alive when the murder occurred, that argument does not follow 1 the whole record. The R & R shows Mr. Laiadee’s testimony on direct and cross 2 examination, which reveals that the part Petitioner relies on was taken out of context. 3 (See Doc. 14 at 22–23.) These arguments and objections do not pass the sufficiency of 4 the evidence two-step test set forth in Nevils nor the standard to overcome procedural 5 default. 6 The rest of Petitioner’s objections raise issues from conclusory statements that 7 certain evidence exposed the jury to false evidence. This includes Petitioner’s arguments 8 that the prosecutor’s actions “exposed” the jury to false statements. None of these 9 arguments and objections explain how they excuse procedural default. The R & R 10 correctly finds that “cause,” “prejudice,” or the “miscarriage of justice” exception were 11 not met for Ground Three. Petitioner did not show “cause,” which the petitioner must 12 establish interfered with his efforts to comply with the State’s procedural rules. Coleman, 13 501 U.S. at 753. Also, the record does not support a finding of “prejudice” or a 14 “miscarriage of justice” given the Petition or objections. See Murray, 477 U.S. at 494; 15 Johnson, 541 F.3d at 937. Petitioner also has not met his burden with his sufficiency of 16 the evidence challenge. 17 Accordingly, the Court accepts and adopts the R & R’s recommendation that 18 Ground Three is procedurally defaulted without excuse. 19 B. Ground Four 20 Petitioner’s Ground Four claim is that his Fifth Amendment Due Process right was 21 violated from ineffective assistance of counsel (“IAC”). 3 (Doc. 1 at 9.) Petitioner argues 22 seven instances of alleged ineffectiveness by one of his two trial attorneys. (Doc. 1-1 at 23 8–9.) Each sub-claim of IAC will be addressed as Petitioner objected to each claim. For 24 the reasons stated below, the Court adopts the R & R’s recommendation that Petitioner’s 25 3 As discussed above, the superior court erred when it held that Petitioner’s pro se 26 petition had been dismissed. (See Doc. 11-9 at 63.) Petitioner timely corrected a procedural defect when he was given the ability to do so. (Id. at 30–31.) As the R & R 27 notes, “Respondents concede this error and do not argue his Ground Four claims were procedurally defaulted.” (Doc. 14 at 24.) Thus, the Court will address the merits of 28 Petitioner’s Ground Four claims de novo. See Atwood v. Schriro, 489 F. Supp. 2d 982, 1000 (D. Ariz. 2007) (citing Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002)). 1 IAC claims fail on the merits. (Doc. 14 at 32.) 2 “An ineffective assistance claim has two components: A petitioner must show that 3 counsel’s performance was deficient, and that the deficiency prejudiced the defense.” 4 Wiggins v. Smith, 539 U.S. 510, 521 (2003) (internal citations and quotations omitted). A 5 court deciding a Sixth Amendment ineffectiveness claim must “judge the reasonableness 6 of counsel’s challenged conduct on the facts of the particular case, viewed as of the time 7 of counsel’s conduct.” Strickland v. Washington, 466 U.S. 668, 690 (1984). A defendant 8 making a claim of IAC must identify the acts or omissions of counsel that are alleged not 9 to have been the result of reasonable professional judgment. Id. The Court must then 10 determine, considering all the circumstances, whether the acts or omissions were outside 11 “the wide range of professionally competent assistance.” Id. In making that 12 determination, “the court should recognize that counsel is strongly presumed to have 13 rendered adequate assistance and made all significant decisions in the exercise of 14 reasonable professional judgment.” Id. Finally, “[r]elief is warranted only if no 15 reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 882 F.3d 16 778, 825 (9th Cir. 2018) (citations omitted). 17 i. IAC Claim One 18 Petitioner asserts that Marie Farney, his trial counsel, “failed to file a timely pre- 19 trial challenge to the Grand Jury indictment – an indictment secured with a false 20 statement from a jailhouse informant.” (Doc. 1-1 at 8.) Petitioner’s objections to the R 21 & R raise the same arguments that trial counsel did not challenge the grand jury 22 indictment or found out about the false testimony at trial and did not challenge it then. 23 (Doc. 15 at 12.) 24 As the R & R notes, the Ninth Circuit has held that “the Due Process Clause of the 25 Fifth Amendment is violated when a defendant has to stand trial on an indictment which 26 the government knows is based partially on perjured testimony, when the perjured 27 testimony is material, and when jeopardy has not attached.” United States v. Basurto, 497 28 F.2d 781, 785 (9th Cir. 1974). Here, Petitioner continues to raise the issue that Detective 1 Moffat’s grand jury testimony was false and that his trial counsel’s performance was 2 deficient in not challenging it. As discussed above, Detective Moffat’s testimony was 3 consistent throughout this matter despite J.R.’s testimony. As the R & R explains, 4 Petitioner’s arguments and objections do not consider the fact that Detective Moffat was 5 cross-examined on this issue and no evidence suggests his testimony was false. (Doc. 14 6 at 25.) Petitioner does not establish either that his defense counsel was ineffective for not 7 filing a challenge to the grand jury indictment or that he suffered prejudice. Strickland, 8 466 U.S. at 687. 9 ii. IAC Claim Two 10 Petitioner’s second claim of IAC is that trial counsel “failed to file a timely motion 11 to dismiss the murder charge for lack of ‘Corpus Delecti’ – a murder charge with no 12 body, no physical evidence, etc.” (Doc. 1-1 at 8.) Petitioner’s objections to the R & R on 13 this point seem to stray off his original argument and challenge his trial counsel’s failure 14 to address “deceptive testimony” at the grand jury and trial. (Doc. 15 at 12–13.) As the R 15 & R notes, “[p]rior to trial, defense counsel filed a motion to dismiss Petitioner’s second 16 degree murder count and for an order ‘precluding the State from offering any and all 17 statements allegedly made by [Petitioner] due to the State’s inability to show Corpus 18 Delecti.’” (Doc. 14 at 26 (quoting Doc. 11-1 at 119).) Defense counsel also argued that 19 the evidence could not support homicide and certain hearsay should be excluded during 20 the trial. (Doc. 11-1 at 124–25.) When the superior court stated it would rule on this upon 21 a Rule 20 motion, (Doc. 11-5 at 7), defense counsel moved to dismiss pursuant to Rule 22 20. (Doc. 11-7 at 112.) Although the superior court noted that there was “substantial 23 circumstantial evidence that Jamie Laiadee is in fact dead, and that [Petitioner] did it,” 24 (id. at 113), defense counsel argued that the State’s evidence was not credible evidence 25 on which a jury could find him guilty. (Id. at 112.) 26 Petitioner’s objections to the R & R on this point are misplaced. Petitioner’s 27 defense counsel did file a proper motion to dismiss which the trial court considered and 28 ruled on. There is no evidence that what defense counsel did would render her ineffective 1 for Strickland purposes. Petitioner does not establish either that his defense counsel was 2 ineffective for not filing a motion to dismiss or that he suffered prejudice. Strickland, 466 3 U.S. at 687. 4 iii. IAC Claim Three 5 Petitioner’s third claim of IAC alleges that trial counsel failed to call Gretchen 6 Deo as a witness, who was “the alleged victim’s real best friend” and that “testimony 7 would have refuted” other harmful testimony presented by the prosecution. (Doc. 1-1 at 8 8.) Petitioner provided a general objection to this claim and stated that his counsel’s 9 failures were not professional, responsible, competent, and ethical. (Doc. 15 at 13–14.) 10 The R & R correctly states that Petitioner “fails to provide any evidence to support 11 his argument that Ms. Deo would have provided testimony to counter the testimony of 12 Karlynne Martin.” (Doc. 14 at 27.) See Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) 13 (denying petitioner’s claim of IAC because of the lack of evidence that a certain witness 14 would have “provided helpful testimony”). As the Respondents pointed out, Ms. Deo was 15 listed as a potential witness for the prosecution (Doc. 11-1 at 62, 135), suggesting that 16 this testimony might not have been helpful to Petitioner. Petitioner’s objections have 17 raised no more than mere speculation of possible helpful information, which is not 18 enough to raise an IAC claim. See Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001), 19 as amended by 253 F.3d 1150 (9th Cir. 2001). Finally, as the R & R concludes, counsel is 20 often in the best position to make these “tactical considerations” on whether to call 21 certain witnesses. See Gonzalez v. United States, 553 U.S. 242, 249 (2008). 22 Petitioner does not establish either that his defense counsel was ineffective for not 23 calling Ms. Deo as a witness or that he suffered prejudice. Strickland, 466 U.S. at 687. 24 iv. IAC Claim Four 25 In Petitioner’s fourth claim, he asserts that trial counsel failed to use expert 26 witness Dr. John Bruhn, “who would have testified that 20% (1 in 5) of all people who 27 disappear do so with nothing more than the clothes on their back and the money in their 28 pockets.” (Doc. 1-1 at 8.) Petitioner again provided a general objection to this claim and 1 stated that his counsel’s failures were not professional, responsible, competent, and 2 ethical. (Doc. 15 at 13–14.) 3 The Court agrees with the R & R that “Petitioner has not shown that failure to call 4 Dr. John Bruhn to testify was prejudicial” and “Petitioner offers nothing other than his 5 own conclusory allegations that Dr. Bruhn would have so testified.” (Doc. 14 at 28.) 6 Petitioner acknowledges that he did not even know if Dr. Bruhn would testify, but that 7 his trial counsel was “too lazy to drive over to Gold’s Gym” to interview him. (Doc. 12 at 8 21–22.) The R & R cites several cases to show that “[u]nsupported conclusory allegations 9 are insufficient to demonstrate prejudice under Strickland.” (Doc. 14 at 28.) These cases 10 correctly point out the weakness in Petitioner’s argument and objections to this claim. As 11 the R & R concludes, “Petitioner’s failure to make the requisite showing of ‘prejudice’ 12 renders it unnecessary for the Court to address the ‘deficient performance’ issue.” (Id. 13 (citing Strickland, 466 U.S. at 697).) Accordingly, Petitioner does not establish IAC for 14 failing to call Dr. Bruhn. 15 v. IAC Claim Five 16 Petitioner’s fifth claim alleges that trial counsel was ineffective for failing to 17 investigate at Gold’s Gym, Petitioner’s former employer, “to uncover potential witnesses 18 and evidence supporting” his case. (Doc. 1-1 at 8.) Petitioner objected to the R & R’s 19 recommendation that this claim fails because his counsel did not “seek out and talk to 20 individuals at the petitioner’s place of employment – something a professional, 21 responsible, competence and ethical defense attorney would have done.” (Doc. 15 at 13.) 22 Further, Petitioner adds that trial counsel “did nothing” and “should have interviewed co- 23 workers and clients of the Petitioner on the chance that someone would have had 24 something important to say or add to the defense.” (Id. at 14.) These claims are 25 speculative and fail to identify how certain unknown witnesses would provide helpful 26 information to Petitioner’s case. The vagueness shows the lack of prejudice needed to 27 succeed under Strickland. The Court agrees with the R & R that “Petitioner does not 28 support his speculative conclusion that there were any witnesses at the gym who would 1 have assisted in his defense or what their testimony would have been.” (Doc. 14 at 29.) 2 Petitioner’s claim fails on the merits and is not entitled to relief under Strickland. 3 vi. IAC Claim Six In Petitioner’s sixth IAC claim, the R & R summarizes that: 4 Petitioner argues his defense counsel was ineffective for 5 failing to introduce evidence that calls made to Ms. Laiadee’s 6 cell phone might support a conclusion that Petitioner did not possess her cell phone and that the phone could have been 7 located at either of Ms. Laiadee’s two prior places of 8 employment as easily as at Petitioner’s condominium, because all three locations were serviced by the same cell 9 phone tower. (Doc. 1-1 at 8.) Petitioner also contends that his 10 defense counsel should have introduced Petitioner’s cell phone records indicating that he received calls from Denver, 11 Colorado while he was in jail. (Id. at 8–9.) He suggests these 12 unidentified calls could have come from Ms. Laiadee and would support his argument that she was still alive and may 13 have moved to Denver. (Id. at 9.) 14 (Doc. 14 at 29.) Petitioner “strongly objects” to the R & R on this claim for the same 15 reasons he raised in his Petition. (Doc. 15 at 15.) “The Petitioner complains again” about 16 his trial counsel’s inaction to pursue the alleged calls he received from a Denver area 17 code. (Id.) He also states that this failure fell below the objective standard required and 18 prejudiced his case. (Id. at 15–16.) 19 Petitioner’s objections ignore the fact that Ms. Laiadee’s cell phone was recovered 20 at Petitioner’s condominium on May 29, 2010. (Doc. 11-4 at 197, 208, 225.) As the R & 21 R notes, “Petitioner fails to support a claim that his counsel was ineffective for not 22 introducing evidence or making an argument that Ms. Laiadee’s cell phone could have 23 been somewhere other than his condominium, where the police located it.” (Doc. 14 at 24 30.) Not only is Petitioner’s contention that Ms. Laiadee called him from Denver 25 speculative, as the R & R notes, there was an “obvious risk to Petitioner’s defense in 26 introducing evidence of these calls from unidentified callers in Colorado” that might not 27 have come from Ms. Laiadee. (Id.) There is no evidence, other than Petitioner’s self- 28 serving statements, that these phone calls were from Ms. Laiadee. These speculations fail 1 to show how his trial counsel’s representation fell below an objective standard of 2 reasonableness or that a reasonable probability exists that but for these alleged errors 3 Petitioner’s trial would have had a different outcome. Strickland, 466 U.S. at 690, 693– 4 94. 5 vii. IAC Claim Seven 6 Petitioner’s seventh claim argues that his counsel was ineffective for advising him 7 to testify at trial. (Doc. 1-1 at 9.) Trial counsel also failed to “properly prepare” Petitioner 8 and, as a result, Petitioner was “confused in regard to certain questions.” (Id.) Petitioner 9 objected to the R & R’s contention that there was “persuasive evidence against the 10 Petitioner” and listed several reasons why the evidence against him was false or 11 insufficient. (Doc. 15 at 16.) 12 Petitioner’s claims that he should not have been called to testify and he was 13 unprepared are both conclusory and speculative. As the R & R notes, “[t]he record 14 transcripts of Petitioner’s testimony on direct examination (Doc. 11-7 at 238–302, Doc. 15 11-8 at 8–42), on cross-examination (Doc. 11-8 at 42–160, 190–93), and on redirect 16 (Doc. 11-8 at 160–83, 186–87) do not suggest that Petitioner’s preparation generally was 17 lacking.” (Doc. 14 at 32.) Petitioner has not provided more information about why he 18 should not have testified or how he was unprepared. The only evidence Petitioner 19 provides, other than his own statements, refers to a news report after his trial ended. 20 (Doc. 1 at 278.) This reported that a juror stated that what “most hurt” Petitioner was his 21 attitude presented as “indifference or arrogance.” (Id.) No evidence suggests that trial 22 counsel inadequately prepared him or counseled Petitioner to act in this way. Given the 23 evidence against him, the Court agrees with the R & R that it would not have been IAC 24 “to advise Petitioner that his testimony was necessary for a reasonable hope that he would 25 be acquitted.” (Doc. 14 at 31.) 26 Petitioner does not establish either that his defense counsel was ineffective for 27 suggesting that Petitioner testify or inadequately preparing him. Strickland, 466 U.S. at 28 687. The Court accepts and adopts the R & R’s recommendation that “Petitioner’s IAC 1 claims fail on the merits because he has failed to establish both that defense counsel’s 2 performance fell below an objective standard of reasonableness and a reasonable 3 probability that but for counsel’s alleged errors, the result of his trial would have been 4 different.” (Doc. 14 at 32.) 5 C. Ground Five 6 Petitioner’s Ground Five claim argues that he is innocent based on “new 7 evidence.” (Doc. 1 at 10.) The R & R summarizes Petitioner’s three instances of “new 8 evidence”: First, Petitioner states that Chandler Police Detective Moffat 9 told a television reporter with the CBS program “48 Hours” 10 that in Petitioner’s case “there was no crime scene, so we created a virtual crime scene.” (Doc. 1-1 at 12.) Petitioner 11 also claims that State’s witness Karlynne Martin told “48 12 Hours” staff that she had “misled jurors by presenting herself as [Ms. Laiadee’s] best friend, when in fact, she was” Ms. 13 Laiadee’s former supervisor, and that Ms. Laiadee despised 14 Ms. Martin because Martin had dismissed Laiadee without cause. (Id.) Petitioner asserts he learned of the “48 Hours” 15 claims from information provided to him “by Judy Rybak, the 16 producer of the ’48 Hours’ segment.” (Id.) Petitioner further declares that witness J.R. had been released from custody 17 after serving only 10 months of his “amended 18-month plea 18 deal and [after serving] only 27% of his original plea deal of 2.5 years.” (Id.) Petitioner states that the jury was never 19 informed of these three pieces of “new evidence.” (Id.) 20 (Doc. 14 at 33.) 21 Neither the Ninth Circuit nor the Supreme Court has resolved whether a 22 freestanding actual innocence claim is legally cognizable.4 McQuiggin v. Perkins, 569 23 U.S. 383, 392 (2013); Herrera v. Collins, 506 U.S. 390, 400 (1993); Jones v. Taylor, 763 24 F.3d 1242, 1246 (9th Cir. 2014). Even if there is such a right, as some courts have 25 assumed, “the threshold for a freestanding claim of innocence would have to be 26 ‘extraordinarily high’” and “contemplates a stronger showing than insufficiency of the 27 4 An actual innocence claim arises when a habeas petitioner argues that new evidence or 28 other circumstances prove that they are innocent. See generally Bisbee v. Ryan, No. CV- 12-00682-PHX-ROS, 2018 WL 740927, at *3 (D. Ariz. Feb. 6, 2018). 1 evidence to convict.” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (quoting 2 Herrera, 506 U.S. at 417). The Ninth Circuit has held that “at a minimum, the petitioner 3 must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he 4 is probably innocent.” Jones, 763 F.3d at 1246 (quotations omitted). “Evidence that 5 merely undercuts trial testimony or casts doubt on the petitioner’s guilt, but does not 6 affirmatively prove innocence, is insufficient to merit relief on a freestanding claim of 7 actual innocence.” Id. at 1251. 8 The R & R correctly concludes that “Petitioner’s asserted new evidence, 9 considered separately or together, is either not new evidence at all or does not fall within 10 the narrow circumstances recognized by the Ninth Circuit” and “fails to meet the 11 ‘extraordinarily high threshold’ assumed by the Supreme Court” in Herrera. (Doc. 14 at 12 36–37.) Petitioner objects to several points raised in the R & R. (Doc. 15 at 17–19.) 13 Although Petitioner raises the same arguments in his objections as mentioned above, he 14 also objects to false testimony, “prosecutorial misconduct,” deliberate fabrications in the 15 R & R, and other conclusory allegations. (Id.) Petitioner’s objections, as well as his 16 Petition, do not provide a basis for relief. 17 As to the alleged information from the producer of “48 Hours,” this is double 18 hearsay. Petitioner does not provide support to show this information is reliable and only 19 provides a speculative story. Although a court assessing a claim of actual innocence is 20 “not bound by the rules of admissibility that would govern at trial,” a court must consider 21 “all of the evidence” with “due regard” to the reliability of the evidence. Schlup, 513 U.S. 22 at 327–28. Petitioner has not provided enough information in the record to establish that 23 Ms. Martin indeed confessed that she was faking her testimony. As the R & R notes, even 24 if Ms. Martin was not Ms. Laiadee’s “best friend,” that fact would not affirmatively 25 prove Petitioner’s innocence. (See Doc. 14 at 35–36.) Moreover, Detective Moffat’s 26 statement in a “48 Hours” episode that he “created a virtual crime scene” goes against the 27 record. As the R & R mentions, “[i]n the State’s closing argument, the prosecutor tacitly 28 admitted that there was no crime scene evidence in Petitioner’s prosecution.” (Doc. 11-8 1 at 239.) The State did not argue at trial that there was a “virtual crime scene.” In fact, the 2 prosecutor consistently admitted that there was no physical evidence. (See id. at 294–95.) 3 Petitioner fails elaborate on what a “virtual crime scene” consists of, how it was used, or 4 how it prejudiced his case. 5 As to Petitioner’s claim that the jury never learned of J.R.’s “deal,” this is 6 contradicted by the record. As the R & R lays out, J.R. testified that after he provided 7 information in Petitioner’s case, his plea agreement was amended to reduce an already 8 existing prison sentence by one year but increased his term of probation by one year. 9 (Doc. 11-5 at 24–26, 29–30.) When J.R. testified at Petitioner’s trial, he had already 10 served his prison sentence and was on probation. (Id. at 28.) This evidence, if it even 11 applies on an actual innocence claim, was in front of the jury. J.R. even agreed in the 12 jury’s presence that he gained a benefit by providing information about Petitioner. (Id. at 13 69.) The record cuts against Petitioner’s objections to this claim and does not provide the 14 evidence needed to “affirmatively prove innocence.” Jones, 763 F.3d at 1251. 15 Accordingly, the Court accepts and adopts the R & R’s recommendation that 16 Petitioner’s Ground Five fails to prove an actual innocence claim. 17 D. Ground Six 18 Petitioner’s final ground raises an issue of “obstruction of the Petitioner’s 19 constitutionally protected right to represent himself and participate in the appeals 20 process.” (Doc. 1 at 11.) The R & R summarizes his Petition’s arguments in detail: Petitioner’s Ground Six claim is that his “constitutionally 21 protected right to represent himself and participate in the 22 appeals process was obstructed when, between October 12 and November 27, 2012, he was detained in a “psych ward” 23 without any of his property, including his legal materials. 24 (Doc. 1-1 at 14.) Petitioner says this situation occurred during his direct appeal process and that he was not permitted to 25 communicate with his family or legal counsel. (Id.) Further, 26 Petitioner states that in July and August 2014, he requested from prison officials copies of the standard Rule 32 Post- 27 Conviction Relief petition forms and that at first his request 28 was ignored and later the paralegal sent him the wrong forms. (Id.) He contends the paralegal also sent him the wrong 1 instructions on how to fill out the forms. (Id. at 15.) Petitioner further complains that on January 20, 2015, he was moved to 2 an isolation cell without any of his property “for no reason 3 whatsoever.” (Id.) He states that until early May 2015 his legal materials were kept from him and he then discovered 4 that half of his legal paperwork was missing and the 5 remaining half was mixed up with the paperwork of several other inmates. (Id.) Petitioner asserts that the “obstructionist 6 and disruptive behavior” of the Arizona Department of 7 Corrections is “a clear violation of the Petitioner’s constitutional rights under the Fifth Amendment” and caused 8 the Arizona Court of Appeals and Arizona Supreme Court to 9 deny his motions for review. (Id. at 16–17.) 10 (Doc. 14 at 37.) In Petitioner’s Objection, he raises almost the same arguments as 11 outlined above. (Doc. 15 at 19–23.) Petitioner states that the R & R “does not even 12 reference ADOC officials at the Santa Rita yard on the Tucson complex, who seized his 13 ‘Motion for Review’ before the Arizona Court of Appeal” removed certain evidence 14 linking two inmates. (Id. at 23.) Other objections raise issue with the prosecutor’s past 15 misconduct and Supreme Court precedent. (Id. at 22–23.) 16 Petitioner’s first argument, that he was unable to meaningfully represent himself 17 and participate in the appeals process while in a “psych ward,” is not persuasive. As the R 18 & R notes, Petitioner raised this argument in his July 2015 PCR petition, (Doc. 11-9 at 19 60), which the superior court rejected. (Id. 31, 64.) Petitioner was also represented by 20 appointed counsel on direct appeal who filed a brief on October 11, 2012, which was one 21 day before Petitioner was allegedly placed in the “psych ward.” (Doc. 1 at 77.) Even if 22 Petitioner was separated from his legal materials from October 12, 2012 through 23 November 27, 2012, this separation did not impact his right to access the court. If 24 Petitioner argues that his constitutional rights were violated because he did not represent 25 himself, Petitioner has provided nothing in the record that suggested he desired to do so. 26 The R & R correctly notes that “Petitioner was represented throughout his direct appeal 27 process and had no constitutional right to a hybrid representation. United States v. Olano, 28 62 F.3d 1180, 1193 (9th Cir. 1995).” (Doc. 14 at 38.) 1 Petitioner also objected to the R & R’s conclusion that his right to access claim 2 was not viable. The right of meaningful access to the courts prohibits officials from 3 actively interfering with inmates’ attempts to prepare or file legal documents. Lewis v. 4 Casey, 518 U.S. 343, 350 (1996). The right of access to the courts is only a right to bring 5 petitions or complaints to federal court and not a right to discover such claims or even to 6 ligate them effectively once filed with a court. Id. at 354. The right “guarantees no 7 particular methodology but rather the conferral of a capability–the capability of bringing 8 contemplated challenges to sentences or conditions of confinement before the courts.” Id. 9 at 356. As a matter of standing, for an access-to-courts claim, a plaintiff must show that 10 he suffered an “actual injury” with respect to contemplated litigation. Id. at 349. To show 11 actual injury with respect to contemplated litigation, the plaintiff must demonstrate that 12 the defendants’ conduct frustrated or impeded him from bringing to court a nonfrivolous 13 claim that he wished to present. Id. at 352–53. 14 “[T]he injury requirement is not satisfied by just any type of frustrated legal 15 claim.” Id. at 354. The right of access to the courts “does not guarantee inmates the 16 wherewithal to transform themselves into litigating engines capable of filing everything 17 from shareholder derivative actions to slip-and-fall claims.” Id. at 355. The nonfrivolous 18 claim must be a direct or collateral attack on the inmate’s sentence or a challenge to the 19 conditions of his confinement. Id. “Impairment of any other litigating capacity is simply 20 one of the incidental (and perfectly constitutional) consequences of conviction and 21 incarceration.” Id. (emphasis in original). 22 The Court agrees with the R & R that “Petitioner does not establish that the 23 actions of prison officials unconstitutionally interfered with his right to access to the 24 courts.” (Doc. 14 at 39.) Petitioner’s allegations are far too vague and conclusory to state 25 an access-to-the-courts claim. Petitioner also fails to allege facts to support that he 26 suffered an actual injury that is required under the Lewis framework. Petitioner’s other 27 objections state similar conclusory grounds dismissed above. 28 Petitioner’s Ground Six claim fails on the merits. The Court accepts and adopts the 1 R & R’s recommendation that Ground Six fails. 2 IV. CONCLUSION 3 For the foregoing reasons, the Court accepts and adopts the R & R’s 4 recommendation that Grounds One through Three are procedurally defaulted without 5 excuse and Grounds Four through Six fail on the merits. The R & R also recommends 6 that a certificate of appealability be denied. 7 Before Petitioner can appeal this Court’s judgment, a certificate of appealability 8 must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). The district court that 9 rendered a judgment denying the petition made pursuant to 28 U.S.C. § 2254 must either 10 issue a certificate of appealability or state why a certificate should not issue. See id. 11 Additionally, 28 U.S.C. § 2253(c)(2) provides that a certificate may issue “only if the 12 applicant has made a substantial showing of the denial of a constitutional right.” In the 13 certificate, the court must indicate which specific issues satisfy this showing. See 28 14 U.S.C. § 2253(c)(3). A substantial showing is made when the resolution of an issue of 15 appeal is debatable among reasonable jurists, if courts could resolve the issues 16 differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 17 473, 484–85 (2000). Upon review of the record considering the standards for granting a 18 certificate of appealability, the Court finds that a certificate shall not issue as the 19 resolution of the Petition is not debatable among reasonable jurists. 20 Accordingly, 21 IT IS ORDERED adopting the Report and Recommendation. (Doc. 14.) 22 IT IS FURTHER ORDERED denying the Petition (Doc. 1) and dismissing it 23 with prejudice. 24 IT IS FURTHER ORDERED declining to issue a certificate of appealability. 25 IT IS FURTHER ORDERED denying as moot Petitioner’s Motion for Status 26 (Doc. 17). 27 /// 28 /// 1 IT IS FINALLY ORDERED directing the Clerk of Court to enter judgment, terminating this case. 3 Dated this 30th day of October, 2020. 4 WM clacl T. Hburde Michael T. Liburdi 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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