Free Order on Motion to Amend/Correct - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Charles Goldsmith, et al., 13 Respondents. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pending before the Court is Magistrate Judge Fiora's Report and Recommendation ("R&R") (Dkt. 27) and Petitioner's Objections (Dkt. 32). Also pending is Petitioner's Motion to Amend Petition for Writ of Habeas Corpus (Dkt. 35), Petitioner's Motion for Stay and Abeyance (Dkt. 47), and Petitioner's Motion to Jointly File a Reply to Respondents' Response And Motion for Stay and Abeyance (Dkt. 45). Included within Petitioner's memoranda is a Request / Motion for discovery (Dkt. 46, p. 3) and a Motion for an Evidentiary hearing (Dkt. 32, p. 49). The Court addresses each in turn. I. Report and Recommendation Pending before the Court is Magistrate Judge Fiora's Report and Recommendation dated March 17, 2005. (Dkt. 27). Petitioner asks for relief based on thirteen different claims. (Dkt. 1). Magistrate Judge Fiora has recommended that all thirteen claims be dismissed, denying Plaintiff's Petition for Writ of Habeas Corpus. The Report and Recommendation
Case 2:02-cv-02483-EHC Document 48 Filed 03/29/2006 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Glen Joseph Stiles, Petitioner, vs.

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No. 02-2483-PHX-EHC ORDER

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addresses Plaintiff's first claim, ineffective assistance of trial counsel, on the merits. R&R, p. 20 (Dkt. 27). The remaining claims are recommended to be dismissed because they are procedurally barred. Id. at 12, 14, 15, 17-18. Legal Standard After a magistrate judge has issued a recommended disposition of the matter, and objections have been filed, the "district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Fed. R. Civ. P. 72(b). The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions. Id. Discussion Petitioner has filed specific objections to Magistrate Judge Fiora's Report and Recommendation. (Dkt. 32). The Court addresses those objections that warrant discussion. Claim 1 - Ineffective Assistance of Trial Counsel Magistrate Judge Fiora addressed Petitioner's ineffective assistance of counsel claim on the merits. The R&R did not consider Petitioner's new factual allegations and details that were not presented to the state court: "Even though Petitioner fleshed out this claim in the instant Petition, the record shows that he failed to do that in the state proceeding." R&R, p. 28 (Dkt. 27). Magistrate Judge Fiora recommended that "[t]o the extent that Petitioner now submits affidavits and attempts to state specific facts to support his ineffective assistance of counsel claim in the instant Petition, that claim is procedurally defaulted given that he raises new factual allegations that are fundamental to his claim that were not presented to the state court regarding his allegations for ineffective assistance of trial counsel." Id. at 27. Petitioner objected, claiming that Respondents waived that defense: "the Respondent did not [assert] the magistrate['s] conclusion that

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the defendant should be precluded from raising his IAC1 claim [due] to his [attempt] to introduce new factual [allegations] in their answer to petitioner's writ of Habeas Corpus. The State has waived that defense." Objection, p. 8-9 (Dkt. 32). Regardless of whether Respondents waived procedural default, the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA") prohibits the Court from addressing facts not presented to the state court.

The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under the law." Bell v. Cone, 535 U.S. 685, 693 (2002), citing Williams v. Taylor, 529 U.S. 362, 403-04 (2000). Under that statute, a state prisoner is not entitled to federal habeas relief with respect to any federal claim that was adjudicated on the merits in state court proceedings unless the state court's adjudication­ (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. §2254(d), accord, Campbell v. Rice, 302 F.3d 892, 896 (9th Cir. 2002) ("Because Campbell's habeas petition was filed after April 24, 1996, the effective date of the [AEDPA], we cannot grant his petition unless the state court's adjudication of his claims [violates §2254(d)]."). This amended statute creates a "new, highly deferential standard for evaluating state-court rulings." Lindh v. Murphy, 521 U.S. 320, 334 n.7 (1997). The district court does not make a de novo determination of the claim. Lockyer v.Andrade, 538 U.S. 63, 71 (2003) overruling Van Tran v. Lindsey, 212 F.3d 1143, 1149 (9th Cir. 2000). To warrant habeas relief, "the defendant must show that the state court applied federal law to the facts of his case in an 'objectively unreasonable manner.'"

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Ineffective assistance of counsel. -3Document 48 Filed 03/29/2006 Page 3 of 9

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Campbell, 302 F.3d at 896, citing Bell, 535 U.S. at 699. To determine whether a statecourt decision is contrary to federal law, we look to the state's last reasoned decision as the basis for its judgment. Campbell, 302 F.3d at 896. Irrespective of whether Respondents waived a defense of procedural bar, the Court cannot grant habeas relief based on Petitioner's new factual allegations because those facts were not presented to the state court. See 28 U.S.C. §2254(d). The Court, having reviewed the Petition (Dkt. 1), Defendants' Response (Dkt. 16), Petitioner's Traverse (Dkts. 22, 23), and Magistrate Judge Fiora's R&R (Dkt. 27), and Petitioner's Objections (Dkt. 32), adopts the Recommendation dismissing Petitioner's ineffective assistance of counsel claim. Claims Two - Thirteen Magistrate Judge Fiora recommended that claims two through thirteen be dismissed as procedurally barred. R&R, pp. 12, 14, 15, 17-18 (Dkt. 27). Because this case was filed after April 24, 1996, it is governed by the AEDPA, 28 U.S.C. § 2254. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Woodford v. Garceau, 538 U.S. 202, 210 (2003). The AEDPA requires that no writ of habeas corpus be granted unless it appears that the petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). To properly exhaust state remedies, Petitioner must "fairly present" his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). A claim is "fairly presented" if Petitioner has described the operative facts and the federal legal theory on which his claim is based so that the state courts have a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971). The Ninth Circuit Court of Appeals has held that a state prisoner has not "fairly presented" (and thus exhausted) federal claims in state court unless he specifically indicated to that court that the claims were based on federal law. See, e.g., Lyons v. Crawford, 232 F.3d 666, 669-70 -4Case 2:02-cv-02483-EHC Document 48 Filed 03/29/2006 Page 4 of 9

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(2000), as amended by 247 F.3d 904 (9th Cir. 2001) (general reference to insufficiency of evidence, right to be tried by impartial jury and ineffective assistance of counsel lacked the specificity and explicitness required to present federal claim); Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000) (broad reference to "due process" insufficient to present federal claim); see also Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) ("The mere similarity between a claim of state and federal error is insufficient to establish exhaustion."). A petitioner must make the federal basis of a claim explicit by citing specific provisions of federal statutory or case law, even if the federal basis of a claim is "self-evident," Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), or by citing state cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). In this case, the magistrate judge recommended that Petitioner's second claim, ineffective assistance of appellate counsel, be dismissed for failure to exhaust at the state level. R&R, p. 12 (Dkt. 27). Petitioner objected, citing an Eighth Circuit case for the proposition that the exhaustion requirement is met even if, arguably, he did not precisely articulate the issue in the state court. Hill v. Lockhart, 28 F.3d 832, 835 (8th Cir. 1994). As the magistrate judge observed, review of Petitioner's Post-Conviction Relief ("PCR") pleading reveals that he does not argue that he is entitled to post-conviction relief on the independent ground that his appellate counsel allegedly rendered ineffective assistance. Instead, he refers to the issue to refute the trial court's finding that he waived his PCR claims by not first raising them at trial or on direct appeal. Further, Petitioner's petition filed with the appellate court on this issue did not refer to the United States Constitution or cite to case law addressing the federal issue of ineffective assistance of appellate counsel. The Court, having considered Petitioner's objection, adopts Magistrate Judge Fiora's recommendation to dismiss Claim Two. Magistrate Judge Fiora recommended that Petitioner's third and fourth claims be dismissed because they, too, were not presented to the state court as a federal -5Case 2:02-cv-02483-EHC Document 48 Filed 03/29/2006 Page 5 of 9

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constitutional claim. The Court, having considered Petitioner's objections, adopts the Report and Recommendation dismissing Claims Three and Four. Finally, Claims Five through Thirteen were held procedurally barred at the state level: "the state appellate court agreed [with the trial court] that [claims five through thirteen] were waived at trial or on appeal and were therefore precluded." R&R, p. 17 (Dkt. 27). The Magistrate Judge recommended that "[b]ecause the state court relied on state procedural grounds to reject Petitioner's claims, the federal court is precluded from considering Claims Five through Thirteen of the instant petition." Id. at 17-18. The Court adopts the recommendation dismissing Claims Five through Thirteen. II. Petitioner's Motion to Amend Petitioner filed a Motion to Amend his Petition for Writ of Habeas Corpus to include additional facts not presented at the state court and only recently discovered. "[A] district court need not grant leave to amend where the amendment . . . is futile." AmerisourceBergen Corp. v. Dialysist West, Inc., 2006 WL 709199, p. 3 (9th Cir. 2006) (citing Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999)). Petitioner has not presented these claims in state court, precluding the Court's review. See 28 U.S.C. §2254(d). Amending the Petition to introduce new facts would be futile. The Court will deny Petitioner's Motion to Amend. (Dkt. 35). III. Motion for Discovery Petitioner has requested discovery from Respondents. (Dkt. 46, p.3). In a §2254 case, discovery is only permitted by leave of Court. Rule 6(a), Rules Governing Section 2254 Cases In The United States District Courts ("[a] judge may for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure."). Petitioner's request, without more, does not demonstrate good cause. The Court will deny the motion. //

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IV. Motion for Evidentiary Hearing Petitioner has requested an evidentiary hearing to develop the facts concerning his ineffective assistance of counsel claim. Objection to R&R, p. 49 (Dkt. 32). Section 2254(e)(2) provides that a federal habeas court may hold an evidentiary hearing only in limited circumstances. Rule 8, Rules Governing 2254 Cases contemplates the federal court holding an evidentiary hearing. Petitioner has not demonstrated that he meets those circumstances. Petitioner's Motion for Evidentiary Hearing will be denied. See 28 U.S.C. 2254(d). V. Motion to Stay to Permit Exhaustion at State level Petitioner filed a Request for Stay and Abeyance (Dkt. 47) so that Petitioner may return to state court to present new evidence to exhaust two of his claims. The Motion will be denied. Petitioner recently acquired his file from his former attorney. The file includes reports Petitioner had not seen before, such as a supplemental police report and second lab report of the blood evidence dated 3-20-1997. These items, Petitioner argues, create new factual bases for and otherwise bolster his ineffective assistance of trial counsel claim. Trial counsel's failure, Petitioner argues, to "prepare for the introduction of blood evidence at trial, failure to cross examin[e] prosecution's expert witnesses on blood evidence and failure to present an adversarial defense to said evidence and testimony, when one was available," was a violation of Petitioner's constitutional rights. Motion for Stay, p. 10 (Dkt. 47). Rule 32.2 of the Arizona Rules of Criminal Procedure provides that A defendant shall be precluded from relief under this rule based upon any ground: (1) Raisable on direct appeal under Rule 31 or on post-trial motion under Rule 24; (2) Finally adjudicated on the merits on appeal or in any previous collateral proceeding; (3) That has been waived at trial, on appeal, or in any previous collateral proceeding.

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Ariz. Rev. Stat., Tit. 17, Rule 32.2(a). Section (b) provides exceptions to this procedural bar. Exceptions to the rule include when "[n]ewly discovered material facts probably exist and such facts probably would have changed the verdict or sentence." Ariz. Rev. Stat., Tit. 17, Rule 32.1(e). Petitioner claims that, through this exception, he can return to the state court and exhaust his claims based on the newly acquired information. Petitioner may apply for relief from the state court under the exceptions to Rule 32.2 of the Arizona Rules of Criminal Procedure.2 The Court, above, concluded that Petitioner's ineffective assistance of counsel claim does not warrant relief under §2254(d); the newly discovered evidence would not alter that conclusion because it fails to demonstrate that Petitioner would be entitled to relief under Strickland v. Washington.3 Because any subsequent denial of relief by the state court would not warrant relief under §2254(d), staying this proceeding to allow state-court exhaustion would be futile. Accordingly, IT IS ORDERED GRANTING Petitioner's Motion to Jointly File a Reply to Respondents' Response and Motion for Stay and Abeyance. (Dkt. 45). IT IS FURTHER ORDERED DENYING Petitioner's Motion to Amend Petition for Writ of Habeas Corpus (Dkt. 35); IT IS FURTHER ORDERED DENYING Petitioner's Motion for Stay and Abeyance (Dkt. 47);

The Court at this time expresses no opinion whether Petitioner's newly discovered evidence will entitle Petitioner eligibility under the exceptions to Arizona's procedural bar, allowing Petitioner to bring his claim back to the state court. To succeed on a Sixth Amendment claim of ineffective assistance of counsel, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,2068 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In this case, Petitioner's newly discovered evidence falls short of this standard. -8Case 2:02-cv-02483-EHC Document 48 Filed 03/29/2006 Page 8 of 9
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IT IS FURTHER ORDERED DENYING Petitioner's Request / Motion for discovery (Dkt. 46, p. 3); IT IS FURTHER ORDERED DENYING Petitioner's Motion for an Evidentiary hearing (Dkt. 32, p. 49); IT IS FURTHER ORDERED ADOPTING Magistrate Judge Fiora's Report and Recommendation (Dkt. 27), DISMISSING the Petition for Writ of Habeas Corpus (Dkt 1). DATED this 27th day of March, 2006.

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