Brechler 293820 v. Ryan

[1] 2 NOT FOR PUBLICATION [6] 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA [9] 10 Delbert Fred Brechler, No. CV-17-08130-PCT-DJH 11 Petitioner, ORDER 12 v. 13 Charles Ryan, 14 Respondent. [15] 16 This matter is before the Court on Petitioner Delbert Fred Brechler’s Petition for 17 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and 18 Recommendation (“R&R”) (Doc. 10) issued by United States Magistrate Judge Michelle 19 H. Burns on August 22, 2018. Petitioner raises four claims of ineffective assistance of 20 counsel in his Petition (Doc. 1): first, that his trial counsel was ineffective for not 21 objecting to his prosecution in absentia (“Ground 1”); second, that his trial counsel was 22 ineffective at sentencing for not presenting mitigation evidence (“Ground 2”); third, that 23 his trial counsel was ineffective for “fail[ing] to object to the trial court sentencing 24 petitioner on misdemeanor DUI and sentencing him to extreme DUI at the same time for 25 the same offense” (“Ground 3”); and fourth, that his trial counsel was ineffective for not 26 objecting to the family and friends of the victim wearing shirts in remembrance of the 27 victim “at every court date” (“Ground 4”). 28 After a thorough analysis, Magistrate Judge Burns determined that Petitioner had 1 failed to fairly present any of his ineffective assistance of counsel claims to the state 2 court, and thus all were procedurally defaulted. (Doc. 10 at 8). Magistrate Judge Burns 3 further found that no basis existed to excuse the defaults because Petitioner could not 4 show cause and prejudice, or that a fundamental miscarriage of justice would occur if the 5 merits of the claims were not considered. (Doc. 10 at 8-9). Magistrate Judge Burns 6 specifically found that the narrow exception found in Martinez v. Ryan, 566 U.S. 1 7 (2012), did not apply to excuse the default of Petitioner’s ineffective assistance of 8 counsel claims. (Id. at 9). Accordingly, Magistrate Judge Burns recommends that the 9 Petition be denied and dismissed with prejudice and that a Certificate of Appealability 10 and leave to proceed in forma pauperis on appeal be denied because the dismissal is 11 justified by a plain procedural bar and jurists of reasons would not find the procedural 12 ruling debatable. 13 Petitioner filed Objections to the R&R (Doc. 11) and a Motion for Certificate of 14 Appealability (Doc. 12) on September 4, 2018. Respondents filed a Reply (Doc. 13) on 15 September 6, 2018. Petitioner subsequently filed two Motions for Case Status 16 (Docs. 16 & 17). 17 I. Standard of Review and Background 18 The district judge “shall make a de novo determination of those portions of the 19 report or specified proposed findings or recommendations to which objection is made.” [20] 28 U.S.C. § 636 (b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must 21 determine de novo any part of the magistrate judge’s disposition that has been properly 22 objected to.”); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (same). The judge “may 23 accept, reject, or modify, in whole or in part, the findings or recommendations made by 24 the magistrate judge.” Id. 25 Magistrate Judge Burns provided a comprehensive summary of the factual and 26 procedural background of this case in the R&R. (Doc. 46 at 1-4). The Court need not 27 repeat that information here, particularly as Petitioner has not objected to it. See Thomas 28 v. Arn, 474 U.S. 140, 149 (1989) (noting that the relevant provision of the Federal 1 Magistrates Act, 28 U.S.C. § 636 (b)(1)(C), “does not on its face require any review at all 2 . . . of any issue that is not the subject of an objection.”). 3 Petitioner’s three objections to the R&R relate to the Magistrate Judge’s finding 4 that Petitioner failed to establish cause under Martinez v. Ryan to excuse the procedural 5 defaults of the claims in Grounds 1-3.1 Petitioner first contends that Judge Burns applied 6 the wrong standard of review in resolving Ground 1 when she determined that 7 Petitioner’s trial counsel did not perform deficiently by failing to object to his absence at 8 trial. Petitioner next objects to Judge Burns’ finding that the record showed that trial 9 counsel presented mitigation evidence prior to Petitioner’s sentencing, thus undermining 10 any alleged ineffective assistance of counsel claim in Ground 2 for failure to properly 11 present mitigating evidence. Finally, Petitioner objects to the standard of review Judge 12 Burns applied to resolve Petitioner’s Ground 3 claim that his trial counsel failed to object 13 when the state court sentenced Petitioner on both a misdemeanor and extreme DUI for 14 the same offense. The Court will review these three objections de novo. 15 II. Procedural Default and Excuse under Martinez v. Ryan 16 Federal review is generally not available for a state prisoner’s claims when those 17 claims have been denied pursuant to an independent and adequate state procedural rule. 18 Coleman v. Thompson, 501 U.S. 722, 750 (1991). A court may, however, review a claim 19 that has otherwise been procedurally defaulted when a petitioner can demonstrate 20 legitimate cause for his failure to exhaust the claim in state court and prejudice from the 21 alleged constitutional violation, or alternatively show that a fundamental miscarriage of 22 justice would result if the claim were not heard on the merits in federal court. Id. at 750 . 23 Reed v. Ross, 468 U.S. 1, 9 (1984) (noting that federal courts retain the authority to 24 consider the merits of defaulted claims because procedural default principles are based on 25 considerations of comity and not jurisdiction). 26 Generally, “cause” for a procedural default exists if a petitioner can demonstrate [27] 1 Petitioner does not object to Judge Burns’s recommendations as they relate to Ground 4; 28 the Court has nevertheless reviewed the record and adopts the R&R’s recommendations as to Ground 4. Thomas, 474 U.S. at 149 . 1 that “some objective factor external to the defense impeded counsel’s efforts to comply 2 with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); accord 3 Coleman, 501 U.S. at 753 . Generally, counsel’s negligence, ignorance, or inadvertence 4 does not qualify as “cause” because these acts are not considered “external” to the 5 defense. Coleman, 501 U.S. at 752–54 (citing Carrier, 477 U.S. at 488 ) (noting that 6 counsel’s acts are generally attributable to the petitioner). Indeed, attorney error will not 7 constitute “cause” to excuse a procedurally defaulted claim unless the ineffective 8 assistance of counsel itself amounts to an independent constitutional violation. Id. at 9 753–54; Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). Because “[t]here is no 10 constitutional right to an attorney in state post-conviction proceedings…a petitioner 11 [typically] cannot claim constitutionally ineffective assistance of counsel in [post12 conviction review (“PCR”)] proceedings.” Coleman, 501 U.S. at 752 (internal citations 13 omitted). In Martinez v. Ryan, however, the Supreme Court, recognized a “narrow 14 exception” to the general proposition that ineffectiveness of PCR counsel will not suffice 15 to establish cause to excuse a procedural default: 16 [w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural [17] default will not bar a federal habeas court from hearing a substantial claim 18 of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was [19] ineffective. [20] 566 U.S. at 17 . Accordingly, under the equitable ruling of Martinez, a petitioner may [21] establish cause for the procedural default of an ineffective assistance of trial counsel [22] claim “where the state (like Arizona) required the petitioner to raise that claim in [23] collateral proceedings, by demonstrating two things: (1) ‘counsel in the initial-review [24] collateral proceeding, where the claim should have been raised, was ineffective under the [25] standards of Strickland [v. Washington, 466 U.S. 668 (1984)]…’ and (2) ‘the underlying [26] ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the [27] prisoner must demonstrate that the claim has some merit.’” Cook v. Ryan, 688 F.3d 598 , [28] 607 (9th Cir. 2012) (quoting Martinez, 566 U.S. at 14 ). 1 Under Strickland, a convicted defendant must show that counsel’s performance 2 was objectively deficient, and counsel’s deficient performance prejudiced the petitioner. 3 Id. at 687. To be deficient, counsel’s performance must fall “outside the wide range of 4 professionally competent assistance.” Id. at 690. When reviewing counsel’s 5 performance, the court engages a strong presumption that counsel rendered adequate 6 assistance and exercised reasonable professional judgment. Id. “A fair assessment of 7 attorney performance requires that every effort be made to eliminate the distorting effects 8 of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to 9 evaluate the conduct from counsel’s perspective at the time.” Id. at 689. Thus, review of 10 counsel’s performance is “extremely limited.” Coleman v. Calderon, 150 F.3d 1105 , 11 1113 (9th Cir. 1998), rev’d on other grounds, 525 U.S. 141 (1998). Acts or omissions 12 that “might be considered sound trial strategy” do not constitute ineffective assistance of 13 counsel. Strickland, 466 U.S. at 689 . Indeed, “[t]he law does not require counsel to raise 14 every available nonfrivilous defense.” Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) 15 (citations omitted). And it is without question that counsel’s failure to take futile action 16 will never constitute deficient performance. Sexton v. Cozner, 679 F.3d 1150, 1157 (9th 17 Cir. 2012); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). See also Baumann v. 18 United States, 692 F.2d 565, 572 (9th Cir. 1982) (“The failure to raise a meritless legal 19 argument does not constitute ineffective assistance of counsel.”). 20 III. Analysis 21 Petitioner objects to the Magistrate Judge’s recommendations that Petitioner has 22 failed to establish cause under Martinez to excuse the procedural defaults of the 23 ineffective assistance of counsel claims in Grounds 1-3. The Court will address each 24 objection in turn. 25 1. Ground 1 26 Petitioner first objects to the standard of review Judge Burns applied when 27 considering whether his trial counsel was ineffective for not objecting to Petitioner’s 28 absence at his trial. In concluding that Petitioner did not have a substantial claim that his 1 trial counsel was ineffective for not objecting to Petitioner’s prosecution in absentia, 2 Judge Burns found that Petitioner had voluntarily absented and thus waived his Sixth 3 Amendment right to be present at every stage of his trial. (Doc. 10 at 12). She therefore 4 concluded that any objection to his absence would have been futile, and thus not a 5 deficient performance under Strickland. (Id.) Petitioner argues that such a finding is 6 contrary to the standard set out in Crosby v. United States (Doc. 11 at 2-5), a case that 7 found that Federal Rule of Criminal Procedure (“Federal Rule”) 43 prohibits trials in 8 absentia of a defendant who is not present at the beginning of his trial. 506 U.S. 255 , 9 258-59 (1993). Petitioner argues that in light of Crosby, the question of whether his 10 absence was “voluntary or [i]nvoluntary is irrelevant.” (Doc. 11 at 3). Respondents 11 contend that Crosby is inapplicable because (1) the case is an interpretation of Federal 12 Rule 43, not the Constitution; and (2) the Arizona Rules of Criminal Procedure (“Arizona 13 Rules”), not the Federal Rules, apply to Petitioner’s state court prosecution. (Doc. 13 14 at 1-2). 15 A defendant has a constitutional and statutory right to be present at all stages of 16 his or her trial. U.S. Const. amends. VI, XIV. However, a defendant may intentionally 17 and voluntarily relinquish that right. Taylor v. United States, 414 U.S. 17, 20 (1973). 18 Arizona Rule 9.1 governed Petitioner’s state court proceedings. Unlike the Federal Rule 19 43, which prohibits federal courts from proceeding to trial when the defendant is absent 20 at its start, Arizona Rule 9.1 states: [21] Except for sentencing or as these rules otherwise provide, a defendant’s 22 voluntary absence waives the right to be present at any proceeding. The court may infer that a defendant’s absence is voluntary if the defendant had 23 actual notice of the date and time of the proceeding, notice of the right to be 24 present, and notice that the proceeding would go forward in the defendant’s absence. [25] Ariz. R. Crim. Pro. 9.1. The Ninth Circuit has upheld the constitutionality of Rule 9.1. [26] Brewer v. Raines, 670 F.2d 117, 118-19 (9th Cir. 1982). [27] Contrary to Petitioner’s contentions, whether his absence was voluntary under [28] Arizona law is entirely relevant to the determination of whether he waived his Sixth 1 Amendment right to be present at his trial. As Judge Burns correctly found, Petitioner 2 did not meet his burden of overcoming the inference that his absence was voluntary. 3 Petitioner failed to make any argument that he did not have actual notice of the date and 4 time of the trial, that he did not have notice of his right to be present, or that he did not 5 have notice that the proceeding would go forward in his absence. See Ariz. R. Crim. Pro. 6 9.1. The Court agrees thus with Magistrate Judge Burns and finds that Petitioner’s 7 absence from trial was voluntary, and Petitioner waived his right to be present at his trial. 8 Under these circumstances, an objection from counsel would have been futile, and cannot 9 serve as the basis for an ineffective assistance of counsel claim. Baumann, 692 F.2d at 10 572 (“The failure to raise a meritless legal argument does not constitute ineffective 11 assistance of counsel.”). The Court thus overrules Petitioner’s objections to the 12 Magistrate’s R&R as they relate to Ground 1. 13 2. Ground 2 14 Petitioner next objects to Judge Burns’s conclusion that Petitioner failed to 15 establish cause for the procedural default of his claim that his trial counsel failed to 16 present mitigating evidence to the jury during the guilt phase of his trial. After reviewing 17 the record, Judge Burns noted that at sentencing, Petitioner’s counsel presented 18 mitigating evidence that supported his request for a mitigated sentence and that 19 Petitioner’s family was permitted to speak to the court regarding mitigation. (Doc. 10 at 20 13). Petitioner says this “misses the point” because the mitigating evidence was not 21 presented to the jury when the jury found that aggravating circumstances existed. (Doc. 22 11 at 6). 23 Mitigation evidence is evidence that is relevant to punishment because it may 24 reduce the severity of a defendant’s sentence. Mitigating evidence does not, however, 25 justify or excuse an offense. As Respondents note, under Arizona law, juries considering 26 non-capital cases are not responsible for imposing punishment and may not consider the 27 possible punishment in reaching their verdicts. State v. Eisenlord, 670 P.2d 1209 , 1220 28 (Ariz. Ct. App. 1983). Trial counsel did not therefore err in failing to present mitigation 1 evidence to the jury. The record reflects that this evidence was properly presented to the 2 court prior to Petitioner’s sentencing. 3 Accordingly, the Court also overrules Petitioner’s objections to the Magistrate’s 4 R&R as they relate to Ground 2. 5 3. Ground 3 6 Finally, Petitioner objects to the standard of review Judge Burns applied in 7 concluding that he failed to establish cause for the procedural default of Ground 3 claim 8 that his trial counsel failed to object when the trial court simultaneously sentenced 9 Petitioner for a misdemeanor DUI and extreme DUI for the same offense. 10 The record shows that after his trial, Petitioner was sentenced to an aggravated 11 sentence of eighteen years for manslaughter (count 1) to run consecutively to an 12 aggravated sentence of ten years for aggravated assault (count 2), which were to run 13 consecutively to each of the three counts of DUI (counts 3, 4, and 5), which the court 14 sentenced defendant to sixty days in jail with credit for sixty days served, all to run 15 concurrently. On appeal, the state appellate court vacated Petitioner’s conviction for DUI 16 with a BAC over .08% because it found that it was a lesser-included offense to his 17 conviction for DUI with a BAC over .15%. In her R&R, Judge Burns found that even 18 assuming the trial counsel performed deficiently in failing to object to the lesser-included 19 counts of DUI, in light of the trial court’s ultimate sentence, the alleged failure was 20 harmless. (Doc. 10 at 15). This Court agrees. The sentence imposed for the DUIs was 21 sixty days in jail with credit for sixty days served, to run concurrently. Had counsel 22 objected, and the trial court vacated the lesser-included offense, Petitioner would still be 23 serving time for counts 1 and 2. See Strickland, 466 U.S. at 694 (holding that to establish 24 prejudice “[t]he defendant must show that there is a reasonable probability that, but for 25 counsel’s unprofessional errors, the result of the proceeding would have been different.”). 26 Moreover, on direct appeal, the Arizona appellate court did vacate the lesser-included 27 offense. Because he cannot establish prejudice, Petitioner cannot establish cause under 28 Martinez to excuse the procedural default of this alleged ineffective assistance of counsel claim. 2|| IV. Conclusion 3 For the foregoing reasons, and after conducting its own de novo review, the Court 4}| reaches the same conclusion as Magistrate Judge Burns and finds Petitioner has failed to establish cause for his procedurally defaulted ineffective assistance of counsel claims. 6|| Petitioner’s habeas petition must therefore be denied. 7 Accordingly, 8 IT IS ORDERED that Magistrate Judge Burns R&R (Doc. 10) is accepted and 9|| adopted. Petitioner’s Objections (Doc. 11) are overruled. 10 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 11 }} pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice. 12 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 13 || Section 2254 Cases, a Certificate of Appealability is denied because dismissal of the || Amended Petition is in part justified by a plain procedural bar and jurists of reason would 15 || not find the procedural ruling debatable, and in part justified because reasonable jurists 16|| would not find the assessment of the constitutional claims debatable or wrong. 17 || Petitioner’s Motion for Certificate of Appealability (Doc. 12) is denied. 18 IT IS FURTHER ORDERED that the Motions for Case Status (Docs. 16 & 17) 19}| are denied as moot. 20 IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action || and enter judgment accordingly. 22 Dated this 25th day of July, 2019. [23] 25 norable’ Diang/. Hunfetewa 26 United States District Judge [28] -9-