Rodriguez v. Morris

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Daniel Alexander Rodriguez, No. CV-19-04957-PHX-GMS 10 Petitioner, ORDER 11 v. 12 Stephen Morris, et al., 13 Respondents. — 14 — — 15 — 16 Before the Court is a Report and Recommendation (“R&R”) (Doc. 35) issued by 17 Magistrate Judge Michelle H. Burns recommending that the Court grant Petitioner Daniel 18 Alexander Rodriguez’s (“Petitioner”) Motion under 28 U.S.C. § 2254 challenging his 19 convictions in the Maricopa County Superior Court, (Doc. 1). Respondents timely filed an 20 objection to the R&R. (Doc. 36.) For the following reasons, the Court grants in part the 21 Respondents’ Objection, adopts in part and declines to adopt in part the R&R, and denies 22 the Petitioner’s Motion. 23 BACKGROUND 24 As no party has objected to the procedural background set forth in the R&R, the 25 Court adopts the background as set forth therein: 26 Petitioner was indicted by an Arizona Grand Jury on February 24, 2014, on fourteen separate felony counts: two counts of Discharge of a 27 Firearm at a Structure, class 2 dangerous felonies (counts one and eleven); 28 four counts of Aggravated Assault, class 3 dangerous felonies (counts two, three, twelve and thirteen); one count of Aggravated Assault, a class 3 1 dangerous felony and a domestic violence offense (count fourteen); four counts of Disorderly Conduct, class 6 dangerous felonies (counts four — 2 — through seven); one count Misconduct Involving Weapons, a class 4 felony 3 (count eight); one count Forgery, a class 4 felony (count nine); and one count Taking Identity of Another, a class 4 felony (count ten). (Doc. 11, Exh. A.) — 4 — Counts one through seven related to a shooting incident that occurred on 5 January 31, 2014; and counts eleven through fourteen related to a shooting incident that occurred on February 14, 2014. (Id.) — 6 — Petitioner proceeded to trial, and was convicted of the lesser-included 7 offense of Discharge of a Firearm at a non-residential structure (count one), the lesser-included offense of Disorderly Conduct (counts two and three), — 8 — and as charged on the remaining counts. (Id., Exhs. L, N.) The jury further 9 found counts one through seven, and ten through thirteen to be dangerous offenses. (Id.) On January 23, 2015, Petitioner was sentenced as a repetitive 10 offender with two prior felony convictions to a total of 42.7[5] years in 11 prison. (Id., Exh. N.) Petitioner appealed his judgment and sentence, and the Arizona Court of Appeals, in affirming, set forth the following factual 12 background: 13 ¶ 2 A grand jury indicted defendant on fourteen felony counts stemming from his behavior in several 2014 incidents. 14 The first incident occurred during a fight between defendant and his then 16 year-old former girlfriend (A.G.). The two were — 15 — riding in defendant’s burgundy Mercury Montego when victim 16 fled the vehicle. Defendant screamed at her repeatedly to get back in the car. Eventually defendant pulled a 9mm weapon — 17 — out and shot multiple times in her general direction to get her 18 “attention.” Witnesses heard A.G. crying hysterically “let me just go home,” heard the defendant yelling at her, heard the gun — 19 — shots and heard his car speeding off. A.G. testified she was 20 scared and had gotten back in the car. One of the witnesses found three bullet holes in and around his house. Two 9mm — 21 — shell casings were found at the scene. This event is the factual 22 basis for Counts 1- 7. ¶ 3 Counts 8 and 9 involve defendant using the 23 identification of his brother N.R. Count 8 results from 24 defendant presenting the false identification to an officer when that officer came into contact with defendant and A.G. during 25 a loud fight in a parking lot days after the first shooting event. 26 Count 9 results from defendant presenting N.R.’s identification to purchase the 9mm gun from a pawnshop. [Evidence showed 27 that defendant used his brother’s identification to buy both the 9mm gun and the burgundy Montego, as well as 9mm — 28 — ammunition.] The false identification was found in defendant’s 1 vehicle and A.G. was present both times it was used. ¶ 4 A couple of weeks after the first shooting, victim attempted to — 2 — break up with defendant. Defendant texted her numerous 3 threatening messages over two days. Those texts, as testified to and as recovered in defendant’s phone, included: “tell your — 4 — momma not to sleep on the couch cuz a bullet might hit her” 5 and “Be ready ... I got 83 rounds” and “we both gonna die.” [] A terrified A.G. called the police. Defendant then called A.G. — 6 — and asked her to come outside, she refused; ten minutes later 7 defendant fired multiple gunshots at her house. Approximately eight bullets travelled into the interior of A.G.’s house. A.G. — 8 — provided police with a detailed description of defendant’s car, 9 including his license plate number, and advised them that defendant had a gun he’d recently purchased under a driver’s 10 license in N.R.’s name. This second shooting event is the basis 11 for Counts 11-14. ¶ 5 After an active search for defendant, which included 12 him driving from location to location, he was arrested later that 13 same day while getting into his vehicle. He was taken into custody from the driver’s seat. A protective sweep of the car 14 was done at that time; officers knew that defendant was the suspect in a crime involving a gun and was potentially armed. — 15 — The vehicle was then towed to the police substation while 16 officers waited for a search warrant to issue. Police searched the vehicle pursuant to a search warrant in the early morning — 17 — hours at the police substation. Inside the car officers found a 18 9mm bullet, two bullet shell casings, the sales receipt for the 9mm gun, and a cell phone containing the threatening texts. — 19 — One shell casing and one live round were on the floor of the 20 vehicle; another shell casing was in the trunk. Police testified that the shell in the interior of the vehicle was lodged under the — 21 — carpet and took some rooting around to find. 22 (Doc. 11, Exh. S.) In Petitioner’s opening brief in the Arizona Court of Appeals, he 23 raised the following issues: (1) unlawful search and seizure of Petitioner’s 24 vehicle after his arrest, and (2) the trial court improperly shifted the burden of proof onto Petitioner during the suppression hearing. (Id., Exh. P.) On 25 March 15, 2016, the appellate court affirmed Petitioner’s convictions and 26 sentences, finding no error in the trial court’s denial of his motion to suppress. (Id., Exh. S.) Petitioner filed a petition for review in the Arizona 27 Supreme Court, claiming that the lower court erred in denying his claims regarding the search and seizure of his vehicle. (Id., Exh. T.) The Arizona — 28 — Supreme Court summarily denied review on September 15, 2016. (Id., 1 Exh. U.) On February 18, 2016, Petitioner filed a pro se notice of post2 conviction relief (“PCR”), which his counsel moved to dismiss without 3 prejudice as Petitioner’s direct appeal was still pending. (Doc. 11, Exhs. V, X.) The trial court granted the motion. (Id., Exh. Y.) After the conclusion of — 4 — direct review, on September 18, 2016, Petitioner filed a pro se notice of PCR, 5 indicating that he was raising a claim of ineffective assistance of counsel (“IAC”), and was not requesting the appointment of counsel to represent him. — 6 — (Id., Exh. [Z].) The trial court set a briefing schedule. (Id., Exh. AA.) 7 Pursuant to a subsequent request by Petitioner, the trial court appointed advisory counsel to assist him. (Id., Exh. BB.) On November 14, 2016, — 8 — Petitioner filed his PCR petition, raising the following claims: 9 A.) IAC: trial counsel. 1. Trial counsel’s failure to object to prosecutor’s improper voir dire 10 question identifying one of the victims as a child. 11 2. Trial counsel’s failure to object to the introduction of text messages. 3. Trial counsel’s making prejudicial statements in front of the jury 12 and failing to move for a mistrial. 13 4. Trial counsel’s failure to impeach a law enforcement witness as to the suggestiveness of a photo line-up. 14 5. Trial counsel’s failure to object to the prosecution’s laptop being provided to the jury. — 15 — B.) Prosecutorial misconduct, by making improper remarks during voir dire, 16 using “staged” testimony to introduce inadmissible evidence, and making improper statements to inflame the passions of the jury. — 17 — C.) Trial judge’s abuse of discretion. 18 1. Trial court abused its discretion by not investigating jury panel for bias. — 19 — 2. Trial court abused its discretion by overruling multiple hearsay 20 objections by Petitioner’s counsel. 3. Trial court abused its discretion by not declaring a mistrial after — 21 — prosecutor made improper argument in closing statements. 22 4. The trial court was without jurisdiction to render judgment on count 10, as it did not allege the place of the continuing offense in count. 23 D.) IAC: appellate counsel - for not raising all of the above claims. 24 (Id., Exh. CC.) The trial court denied Petitioner PCR relief, reasoning as follows: 25 The defendant failed to raise his claims of prosecutorial 26 misconduct and abuse of discretion by the trial court in his direct appeal. Further, based on the allegations in the PCR 27 request, the Court finds that defense counsel’s performance did not fall below prevailing professional norms and that no — 28 — deficient performance on the part of defense counsel 1 prejudiced Mr. Rodriguez’s defense or rendered different trial results than would have been achieved through competent — 2 — performance. The Court also does not find that Defendant has 3 stated a colorable claim for abuse of discretion by the trial court. As to one specific issue raised in that regard, the court — 4 — reporter recently filed an Affidavit of Correction indicating 5 that a statement that had been attributed in the trial transcript to defense counsel was, in fact, defendant’s statement. The — 6 — correction makes clear why the Court did not address the 7 defense attorney for making such comment, since the comment was not made by him. Accordingly, and for the other reasons — 8 — stated in the State’s response [it is ordered denying PCR relief]. 9 (Doc. 11, Exh. FF.) Petitioner filed a petition for review of that decision in the Arizona 10 Court of Appeals. (Id., Exh. GG.) On January 4, 2018, the Court of Appeals 11 granted review, but denied relief, holding that Petitioner had failed to meet his burden to show that the trial court abused its discretion in its denial of 12 PCR relief. (Id., Exh. II.) Petitioner subsequently filed a petition for review 13 of the appellate court decision in the Arizona Supreme Court. (Doc. 1 at 36209.) The Arizona Supreme Court summarily denied review on August 24, 14 2018. (Id. at 211.) Petitioner filed his habeas petition on August 13, 2019. In his petition, — 15 — Petitioner asserts the following claims: (1) ineffective assistance of trial 16 counsel, (2) ineffective assistance of appellate counsel, and (3) prosecutorial misconduct. (Doc. 1.) — 17 — (Doc. 35 at 1–6.) — 18 — DISCUSSION — 19 — I. Standards of Review — 20 — A district judge may refer dispositive pretrial motions, and petitions for writ of — 21 — habeas corpus, to a magistrate judge, who shall conduct appropriate proceedings and — 22 — recommend dispositions. Thomas v. Arn, 474 U.S. 140, 141 (1985); see also 28 U.S.C. § 23 636(b)(1)(B); Estate of Connors v. O’Connor, 6 F.3d 656 , 658 (9th Cir. 1993). Any party — 24 — “may serve and file written objections” to a report and recommendation by a magistrate — 25 — judge. 28 U.S.C. § 636 (b)(1). “A judge of the court shall make a de novo determination of — 26 — those portions of the report or specified findings or recommendations to which objection — 27 — is made.” Id. District courts, however, are not required to conduct “any review at all . . . of — 28 — any issue that is not the subject of an objection.” Arn, 474 U.S. at 149 . A district judge 1 “may accept, reject, or modify, in whole or in part, the findings or recommendations made 2 by the magistrate [judge].” 28 U.S.C. § 636 (b)(1). However, “while the statute does not 3 require the judge to review an issue de novo if no objections are filed, it does not preclude 4 further review by the district judge, sua sponte or at the request of a party, under a de novo 5 or any other standard.” Arn, 474 U.S. at 154 . 6 Further, a district court may review a magistrate judge’s ruling on a “pretrial matter 7 not dispositive of a party’s claim or defense.” Fed. R. Civ. P. 72(a). For non-dispositive 8 orders, a district court “must consider timely objections and modify or set aside any part 9 of the order that is clearly erroneous or is contrary to law.” Id. The clearly erroneous 10 standard applies to findings of fact and the contrary to law standard applies to legal 11 conclusions. See Wolpin v. Philip Morris Inc., 189 F.R.D. 418, 422 (C.D. Cal. 1999). “A 12 finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing 13 [body] on the entire evidence is left with the definite and firm conviction that a mistake has 14 been committed.” Concrete Pipe & Prods. of Cal. Inc. v. Constr. Laborers Pension Tr. for 15 S. Cal., 508 U.S. 602, 622 (1993) (quoting United States v. U.S. Gypsum Co., 333 U.S. 16 364, 395 (1948)). “An order is contrary to law when it fails to apply or misapplies relevant 17 statutes, case law, or rules of procedure.” Jadwin v. Cnty. of Kern, No. CV-F-07-026 18 OWW/TAG, 2008 WL 4217742 , at *1 (E.D. Cal. Sept. 11, 2008) (quoting DeFazio v. 19 Wallis, 459 F. Supp. 2d 159, 163 (E.D.N.Y. 2006)). In reviewing a non-dispositive pretrial 20 order, in no event may the district court “simply substitute its judgment for that of the 21 deciding court.” Grimes v. City & Cnty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 22 1991). 23 II. Prosecutorial Misconduct & Ineffective Assistance of Appellate Counsel 24 A. Legal Standard 25 The writ of habeas corpus affords relief to persons in custody in violation of the 26 Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241 (c)(3) (2006). Review 27 of Petitions for Habeas Corpus is governed by the Antiterrorism and Effective Death 28 Penalty Act of 1996 (“AEDPA”). Id.; 28 U.S.C. § 2244 et seq. 1 1. Procedural Default & Exhaustion 2 A petitioner is required to exhaust his claims in state court before bringing them in 3 a federal habeas action. 28 U.S.C. § 2254 (b)(1)(A). In this context, exhaustion requires a 4 petitioner to “give the state courts an opportunity to act on his claims before he presents 5 those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838 , 6 842 (1999). In Arizona, a petitioner is required to “fairly present” all claims he seeks to 7 assert in his habeas proceeding first to the Arizona Court of Appeals either through direct 8 appeal or the state’s post-conviction relief proceedings. See id. at 848 ; Swoopes v. Sublett, — 9 — 196 F.3d 1008, 1010 (9th Cir. 1999). 10 For a petitioner to have fairly presented his claims to the appropriate state courts, he 11 must have described the operative facts and the federal legal theory that support his claim. 12 See Baldwin v. Reese, 541 U.S. 27, 29, 31 (2004); Scott v. Schriro, 567 F.3d 573, 582 (9th 13 Cir. 2009) (per curiam). The petitioner must alert the state court to the federal nature of the 14 right he claims, and broad appeals to “due process” and similar concepts are insufficient. 15 See Johnson v. Zenon, 88 F.3d 828 , 830–31 (9th Cir. 1996) (“While he did assert that the 16 admission of the prior act evidence ‘infringed on his right to present a defense and receive 17 a fair trial,’ the assertion was made in the course of arguing that the evidentiary error was 18 not harmless under state law. Because Johnson never apprised the state court of the federal 19 nature of his claim, he has not satisfied the fair presentation prong of the exhaustion 20 requirement.”); Hivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“[G]eneral appeals 21 to broad constitutional principles, such as due process, equal protection, and the right to a 22 fair trial, are insufficient to establish exhaustion.”). 23 If a petitioner has failed to “fairly present” his federal claims to the state courts— 24 and has therefore failed to fulfill AEDPA’s exhaustion requirement—the habeas court must 25 determine whether state remedies are still available for the petitioner; if not, those claims 26 are procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722 , 735 n.1 (1991). A 27 petitioner can suffer a procedural default if the state court rejected the claim not on the 28 merits, but because the petitioner failed to comply with a procedural rule. “A state court’s 1 invocation of a procedural rule to deny a prisoner’s claims precludes federal review of the 2 claims if, among other requisites, the state procedural rule is a nonfederal ground adequate 3 to support the judgment and the rule is firmly established and consistently followed.” 4 Martinez v. Ryan, 566 U.S. 1, 9 (2012); see also Coleman, 501 U.S. at 729–30 (“The 5 doctrine applies to bar federal habeas when a state court declined to address a prisoner’s 6 federal claims because the prisoner had failed to meet a state procedural requirement. In 7 these cases, the state judgment rests on independent and adequate state procedural 8 grounds.”). Arizona has several rules that petitioners must follow when they seek to present 9 claims in post-conviction relief proceedings; failure to comply with those rules results in a 10 procedural default. See, e.g., Ariz. R. Crim. P. 32.2(a). For example, if a petitioner seeks 11 to bring a claim for the first time in a post-conviction relief proceeding that was available 12 on appeal, the court can find the claim barred because a petitioner cannot bring claims in 13 collateral proceedings that were available on appeal. See id. 32 .2(a)(1). When the state 14 court invokes that procedural rule, its judgment rests on a provision of state law that is both 15 adequate and independent of the merits. Thus, a court in a federal habeas proceeding will 16 accept the state court’s procedural ruling and find the petitioner’s claim defaulted. See 17 Stewart v. Smith, 536 U.S. 856, 860 (2002) (upholding reliance on Arizona’s Rule 32 as an 18 adequate and independent state ground). 19 Still, a petitioner can overcome a procedural default. A habeas court will consider 20 claims the petitioner has procedurally defaulted only if he can demonstrate (1) cause for 21 his failure to comply with state rules and actual prejudice or, in the very rare instance, (2) 22 that a miscarriage of justice would occur. See Dretke v. Haley, 541 U.S. 386 , 388–89 23 (2004). “Cause” means “some objective factor external to the defense impeded counsel’s 24 efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478 , 488 25 (1986). It can include a claim that petitioner’s counsel provided ineffective assistance that 26 caused the default. Id. at 488–89. But that ineffective assistance of counsel claim itself 27 must have been properly presented to the state courts for it to serve as cause to excuse a 28 procedural default. Id. Even if a petitioner demonstrates cause for a procedural default, he 1 must nevertheless show “prejudice” or that the supposed constitutional error “worked to 2 his actual and substantial disadvantage, infecting his entire trial with error of constitutional 3 dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). Finally, a miscarriage of 4 justice is shorthand for a situation “where a constitutional violation has ‘probably resulted’ 5 in the conviction of one who is ‘actually innocent’ of the substantive offense.” Dretke, 541 6 U.S. at 393 (quoting Murray, 477 U.S. at 496 ). 7 2. State Court Decision on the Merits 8 Under the AEDPA, a petitioner is not entitled to habeas relief on any claim 9 “adjudicated on the merits” by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable — 10 — application of, clearly established Federal law, as determined by the Supreme 11 Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of — 12 — the facts in light of the evidence presented in the State court proceeding. — 13 — 28 U.S.C. § 2254 (d). A decision is “contrary to” Supreme Court precedent if “the state — 14 — court confront[ed] a set of facts that are materially indistinguishable from a decision of [the — 15 — Supreme Court] and nevertheless arrive[d] at a result different from [Supreme Court] — 16 — precedent.” Vlasak v. Super. Ct. of Cal. ex rel. Cnty. of Los Angeles, 329 F.3d 683 , 687 — 17 — (9th Cir. 2003) (alterations in original). A decision is an “unreasonable application” if “the — 18 — state court identified the correct legal principles, but applied those principles to the facts of — 19 — [the] case in a way that was not only incorrect or clearly erroneous, but objectively — 20 — unreasonable.” Id. It is not enough that independent review of the legal question leaves a — 21 — court with “a firm conviction that the state court decision was erroneous.” Id. — 22 — In habeas review, the Court must begin by applying a presumption, subject to — 23 — rebuttal, that a state court adjudicated all claims presented to the state court on the merits. — 24 — Johnson v. Williams, 568 U.S. 289, 293 (2013). Thus, if a federal claim was presented to — 25 — the state court and the state court denied all relief without specifically addressing the federal — 26 — claim, “it may be presumed that the state court adjudicated the claim on the merits in the — 27 — absence of any indication or state-law procedural principles to the contrary.” Harrington — 28 — v. Richter, 562 U.S. 86, 99 (2011). 1 The relevant state court decision is the last reasoned state decision regarding a claim. 2 Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 3 U.S. 797 , 803–04 (1991)). When the last reasoned state decision agrees with and 4 substantially incorporates the reasoning from a previous state court decision, courts may 5 consider both decisions to fully understand the reasoning of the last decision. See Amado 6 v. Gonzalez, 758 F.3d 1119, 1130 (9th Cir. 2014). 7 B. Analysis 8 1. Procedural Posture 9 Plaintiff’s Petition for Habeas Corpus seeks relief for four wrongs: (1) ineffective 10 assistance of trial counsel; (2) ineffective assistance of appellate counsel (“IAAC”); (3) 11 prosecutorial misconduct; and (4) abuse of discretion of the trial court judge. Respondents 12 object to the Magistrate Judge’s conclusions concerning IAAC and prosecutorial 13 misconduct. 14 First, Petitioner’s IAAC claim has already been addressed on the merits. Petitioner 15 raised IAAC in his PCR petition, asserting his appellate counsel was ineffective for not 16 raising the cognizable claims contained in the petition. (Doc. 11-2 at 19.) The Arizona 17 Court of Appeals wrote the last reasoned decision addressing the PCR petition and 18 concluded that the trial court’s decision denying the petition was not an abuse of discretion. 19 (Doc. 1 at 33.) Thus, the trial court’s opinion was impliedly incorporated into the Court of 20 Appeal’s reasoning. As the trial court explained: based on the allegations in the PCR request, the Court finds that defense — 21 — counsel’s performance did not fall below prevailing professional norms and 22 that no deficient performance on the part of defense counsel prejudiced Mr. Rodriguez’s defense or rendered different trial results than would have been — 23 — achieved [by] competent performance. . . — 24 — Accordingly, and for other reasons set forth in the State’s response, — 25 — 26 IT IS HEREBY ORDERED summarily denying the Defendant’s Petition for Post-Conviction Relief, filed November 21, 2016. — 27 — Id. at 28–29. The trial court’s finding “that no deficient performance on the part of the — 28 — defense counsel prejudiced” Petitioner necessarily reflects on the merits of Petitioner’s 1 IAAC claim. If trial counsel’s failure to object to the prosecutor’s statements was non2 prejudicial to the Petitioner’s defense, then the likelihood of success of the claims and the 3 severity of the wrongs must also be unlikely to constitute prejudice on appeal. Different 4 outcomes could only coexist if the trial court’s finding of no prejudice, and the appellate 5 court’s affirmation of that outcome, was a violation of clearly established federal law. 6 Moreover, although the trial court’s explicit reasoning regarding ineffective 7 assistance of counsel seems to be principally directed at the performance of trial counsel, 8 the court also denied the petition for the “other reasons set forth in the state’s response.” — 9 — Id. The State’s Response included an argument that appellate counsel’s performance was 10 not constitutionally deficient: Defendant claims that appellate counsel was ineffective “for not raising the — 11 — cognizable claims [in Defendant’s petition] on direct appeal after notification 12 of such.” (Defendant’s Petition at 13.) However, “[a] strong presumption exists that appellate counsel provided effective assistance. Appellate Counsel — 13 — is responsible for reviewing the record and selecting the most promising issue 14 to raise on appeal. As a general rule, ‘[a]ppellate counsel is not ineffective for selecting some issues and rejecting others.’” State v. Bennet, 213 Ariz. 15 562, 567, 146 P.3d 63, 68 (2006) (citations omitted). As noted in the letter 16 sent by appellate counsel to Defendant, additional claims were not filed as a “strategic matter” because “[t]he case law [appellate counsel] found did not — 17 — support the arguments.” 18 (Doc. 11-2 at 47–48.) The trial court’s incorporation of this argument demonstrates, under 19 the extremely deferential habeas standard, that it addressed the IAAC claim on the merits. 20 Petitioner is thus entitled to relief only if the trial court’s decision was “contrary to, or 21 involved an unreasonable application of, clearly established Federal law, as determined by 22 the Supreme Court of the United States.” 28 U.S.C. § 2254 (d).1 23 Second, Petitioner’s prosecutorial misconduct claim is procedurally defaulted. The 24 trial court found: “The Court agrees with the State’s response that defendant fails to raise — 25 — 1 Petitioner contends that, because the State argued procedural default in its PCR Response 26 instead of addressing the merits of prosecutorial misconduct, the trial court’s reasoning cannot apply to the prosecutorial misconduct appeal. (Doc. 37 at 5.) This distinction 27 overlooks the significant deference afforded to trial courts when determining whether an issue has been decided on the merits. Johnson, 568 U.S. at 293 . Because the Response also 28 contains explicit argument addressing IAAC, the trial court’s opinion addresses the claim on the merits. 1 a colorable claim for relief. The defendant failed to raise his claims of prosecutorial 2 misconduct and abuse of discretion by the trial court in his direct appeal.” (Doc. 1 at 28.) 3 Petitioner alleges his appellate counsel’s failure to raise the prosecutorial 4 misconduct claims in his PCR petition on direct appeal amounted to ineffective assistance 5 of counsel and constitutes cause to excuse the procedural default of his prosecutorial 6 misconduct claim. An appellate counsel’s failure to preserve an issue for appeal can 7 establish cause to excuse procedural default if the failure was “so ineffective as to violate 8 the Federal Constitution.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000). However, 9 because the trial court has already addressed Petitioner’s ineffective assistance of trial 10 counsel and IAAC claim on the merits, Petitioner must establish that the trial court’s 11 rejection of these claims was “contrary to, or involved an unreasonable application of, 12 clearly established Federal law” to establish cause to excuse his procedural default. 28 13 U.S.C. § 2254 (d); see Torres v. Ryan, No. CV-17-08227-PCT-DJH, 2021 WL 512231 , at 14 *6 n.5 (D. Ariz. Feb. 11, 2021) (“[T]he Court also finds, as discussed infra, that the PCR 15 court’s dismissal of Petitioner’s independent ineffective assistance of counsel claims was 16 not ‘an unreasonable application of[ ] clearly established Federal law[.]’ . . .The fact that 17 Petitioner’s independent ineffective assistance of counsel claims lack merit underscores 18 the conclusion that appellate counsel’s conduct does not and cannot constitute cause to 19 excuse Petitioner’s procedural defaults.”); Scott v. Smith, No. 3:10-CV-00754-LRH, 2011 20 WL 1882392 , at *4 (D. Nev. May 16, 2011). 21 Thus, both of Petitioner’s claims, IAAC and prosecutorial misconduct, turn on 22 whether the trial court’s denial of his IAAC claim was contrary to or involved an 23 unreasonable application of federal law. To the extent that the IAAC claim relies on trial 24 counsel’s failure to object to the several instances of prosecutorial misconduct that 25 occurred at trial, the PCR court has already considered and rejected the claim that trial 26 counsel was ineffective at trial. Thus, unless the PCR court’s determination in this respect 27 was an “unreasonable application of clearly established federal law,” petitioner can neither 28 establish prejudice sufficient to cure the procedural default on prosecutorial misconduct 1 issue, nor can he prevail on the merits of the IAAC claim. 2 2. Prosecutorial Misconduct 3 Petitioner alleges that the Prosecutor engaged in a number of instances of 4 misconduct during his closing argument at trial. This Court agrees with and accepts the 5 R&R’s recommended finding in some particulars; the prosecutor at least somewhat 6 misstated the testimony of Celene Bensink in his closing argument. This Court, further, 7 accepts the R&R’s conclusions that in his closing the prosecutor also committed 8 misconduct in: (1) vouching for the victim’s testimony by asserting she was not a liar; (2) 9 vouching for Detective Hiticas’ testimony by inventing an explanation for the absence of 10 the gun used in the offense; and (3) burden shifting by referencing the undisputed nature 11 of the testimony where the Petitioner was the only eye-witness who could dispute the 12 victim’s account of the incident. It, however, rejects the R&R’s recommended finding that 13 the prosecutor committed misconduct in misstating the testimony of the Tindall family, in 14 misstating the testimony pertaining to the source of text messaging, in misstating the 15 evidence as it pertains to the Defendant’s purchase of ammunition at the Walmart, or in 16 denigrating defense counsel. 17 In evaluating the PCR court’s determination that the trial counsel’s representation 18 was not ineffective, this Court examines whether the PCR court’s conclusion violates any 19 “clearly established federal law.” To assess the alleged misconduct, and the effectiveness 20 of trial counsel and the trial court in responding to it, this Court considers the nature of the 21 misconduct, whether an objection was made, the extent of any curative measures, and 22 whether, applying the appropriate deferential standard, the state PCR court accurately 23 determined that Petitioner received a fair trial and that there was no ineffective assistance 24 of either trial or appellate counsel. To conduct any of these inquiries, the Court must 25 examine the alleged misconduct at trial. 3. Statements at Trial Which Did Not Rise to the Level of — 26 — Misconduct — 27 — a. Misstating the Testimony — 28 — When considering a claim of prosecutorial misconduct, courts consider whether the 1 prosecutor manipulated or misstated the evidence. See Donnelly v. DeChristoforo, 416 U.S. 2 637, 647 (1974). Prosecutors must not “base closing arguments on evidence not in the 3 record.” United States v. Gray, 876 F.2d 1411, 1417 (9th Cir. 1989). They are however, 4 “granted reasonable latitude to fashion closing arguments” and may “argue reasonable 5 inferences from the evidence.” Id. Petitioner asserts that the prosecutor misstated three 6 types of evidence in closing arguments: (1) witness testimony; (2) the content and meaning 7 of the text messages introduced as evidence; and (3) evidence that Petitioner purchased 8 ammunition at Walmart. 9 i. The Tindalls 10 As no party has objected to the account of the Tindall’s testimony set forth in the 11 R&R, the Court adopts the description as set forth therein: Three other individuals who lived on a street near where the January incident — 12 — took place, testified regarding their knowledge of the July 31st incident: 13 Tammy Tindall and her 18-year old daughter Kiahra, and Tammy’s boyfriend Damien Mitchell. (Doc. 23-1 at 818.) Tammy testified that she was — 14 — awakened by the sound of a male and female arguing, and then heard around 15 4 gunshots. (Id. at 819-821.) She ran to check on her children and met her oldest, who had also heard the commotion, at her door. (Id.) She proceeded — 16 — to check on the younger kids, but they had slept through it. (Id. at 821.) 17 Kiahra Tindall testified that she was watching television when she heard an argument from the street between a male and female. (Id. at 831-32.) She — 18 — heard the male voice command the female to get into the car, shortly 19 thereafter heard 4 or 5 gunshots, then heard a car door slam and the car drive away. (Id. at 830-38.) Damien testified that he was asleep when he was 20 awakened by an argument between a man and a woman, and heard the female 21 indicate that she wanted to go home and the male telling her she was going to stay with him. (Id. at 808-810.) He then heard gunshots. (Id.) Within a few 22 minutes, the County Sheriff Officers arrived and knocked on their door. (Id. at 811-12.) None of the three witnesses observed the individuals involved. — 23 — (Doc. 35 at 26.) — 24 — The prosecutor summarized the Tindalls’ testimony and its effect in his closing — 25 — argument. In doing so, he characterized their experience during the incident: “Damien — 26 — Mitchell, Tammy Tindall, Kiahra Tindall running throughout the house, taking cover, — 27 — checking to see if the kids, little children, are safe. Innocent victims.” (Doc. 23-1 at 1487.) — 28 — 1 He also repeatedly emphasized that the “whole Tindall family” corroborated the victim’s 2 testimony although only three members of the family testified at trial. Id. at 1533 . 3 Trial Counsel did not object to the prosecutor’s characterization of the Tindall’s 4 testimony. The Court finds these references fair inferences in light of the evidence 5 presented. Tammy Tindall testified that she “flew” out of bed and checked on her children 6 after being woken by the disturbance. Id. at 820. And characterization of similar 7 testimonies as coming from “the Tyndall Family” where multiple family members testified, 8 even if not the entire family, did not grossly misstate the evidence presented. 9 ii. Text Messages 10 The prosecution introduced two types of messages at trial: (1) text messages, some 11 of which came from the Petitioner’s phone and some of which were found only on the 12 victim’s phone but purported to be from the Petitioner; and (2) messages the victim 13 received through an application called HeyWire. This second group of messages contained 14 threats to the victim, and the victim testified she believed them to be from the Petitioner. 15 They were not, however, located on Petitioner’s cell phone. At trial, the prosecutor did not 16 clearly distinguish between these two categories of messages. Petitioner argues that his 17 discussion of the messages thus amounted to misrepresentations of the evidence to the jury. 18 During questioning, however, Detective Hiticas distinguished between the two 19 types of messages: Q Just so we’re clear, the text messages we saw on Athena’s phone, were — 20 — those lining up to the same text messages on Daniel’s phone, and the data 21 and everything, once you got all of that? A Correct. Anything that wasn’t either erased or used through the text — 22 — messaging application on the smart phones. — 23 — Id. at 1324. During closing arguments, the prosecutor referred back to the messages: 24 [The victim] told you about the threats and the text messages. She told you about the phone call right before this happened, where he’s telling her he’s — 25 — going to shoot up the house, essentially. She told you all about that, all of 26 which is corroborated by her cell phone record and the text messages found on her phone, and also found and corroborated on the defendant’s phone. — 27 — Id. at 1493–94. And later in the argument: — 28 — Again, Athena’s not lying about anything. Everything she’s telling is the 1 truth and is corroborated by independent sources. The 2/14 shooting. Athena tells you about phone calls from the defendant. Those are corroborated by — 2 — her phone and the defendant’s phone. Detective Hiticase told you that he 3 looked at both phones, and that they both matched up. Of course, there was some deleted text messages on the defendant’s phone, but the ones that — 4 — weren’t deleted, everything matched up. The phone calls, the phone logs, the 5 text messages. 6 Id. at 1501. Trial Counsel objected to the prosecutor’s characterization of the text message 7 testimony. The trial court overruled the objection, concluding that “[t]he jury will 8 determine whether any of the argument correctly states what the evidence is.” Id. at 1534. 9 Regardless, although Petitioner is correct that not all the messages admitted into evidence 10 were corroborated across multiple devices, the prosecutor’s representations were a fair 11 picture of the evidence. The prosecutor’s ambiguous references to “messages” included 12 those which were confirmed across devices. Although there were other messages that did 13 not have this corroboration, the prosecutor made no explicit indication that he was referring 14 to them. During the testimony, Detective Hiticas also clearly differentiated between the 15 two methods of messaging. The prosecutor’s representations were therefore reasonable 16 inferences drawn from the evidence presented at trial and do not rise to the level of 17 prosecutorial misconduct. 18 iii. Ammunition Purchase at Walmart 19 The prosecutor also summarized evidence that Petitioner may have purchased 20 ammunition used in the offense at Walmart. Surveillance photographs were introduced at 21 trial showing Petitioner and the victim entering and leaving the store. Id. at 1489. A receipt 22 also showed ammunition was purchased during the time they were in the store. Id. at 1045– 23 46. The victim likewise testified that they purchased ammunition that day, although there 24 was no photo or video of them purchasing the ammunition. During closing arguments, the 25 prosecutor interpreted this circumstantial evidence as direct proof that the Petitioner had 26 purchased ammunition: The purchase of the bullets, she said she told Detective Hiticase right after — 27 — she got done buying the gun, they went to a Wal-Mart and bought bullets. 28 Detective Hiticase then went and followed up on it, and you heard from the Wal-Mart security officer that came in and said, yeah, I was given a date and 1 time and I was able to narrow it down to a transaction around that time, and lo and behold we have a picture, and we have the security footage of the — 2 — defendant and Athena buying the ammunition. So what Athena said is also, 3 again, corroborated. 4 Id. at 1499. Trial Counsel did not object to the prosecutor’s characterization of the Walmart 5 footage. Although the surveillance footage did not specifically depict the sale, the 6 prosecutor argued that the video shows Petitioner entering the store to purchase 7 ammunition. Given the victim’s testimony to this effect, and the receipt demonstrating that 8 ammunition was purchased while the Petitioner was in the store, this was reasonable 9 inference from the evidence presented to the jury. It does not rise to the level of 10 prosecutorial misconduct. 11 b. Denigration of Defense Counsel 12 Prosecutors may not attack “the integrity of defense counsel” during closing 13 arguments. United States v. Nobari, 574 F.3d 1065, 1079 (9th Cir. 2009). They may, 14 however, undermine “the strength of the defense on the merits.” Id. Courts thus distinguish 15 between comments referring to the defense’s argument and statements which amount to an 16 ad hominem attack on defense counsel. United States v. Ruiz, 710 F.3d 1077, 1086 (9th 17 Cir. 2013) (“[T]he prosecutor’s characterization of the defense’s case as “smoke and 18 mirrors” was not misconduct.”). 19 Here, trial counsel objected to the prosecutor’s comments on the defense. The 20 statements, however, did not amount to personal attacks on defense counsel. The 21 prosecutor asserted that defense counsel’s arguments were a “red herring,” “smoke and 22 mirrors,” and amounted to not presenting a defense. (Doc. 23-1 at 1529, 1531.) He also 23 alleged that the arguments amounted to a plea to “just throw [evidence] out because it hurts 24 my client” and represented “a common tactic to always attack the victim in a case.” Id. at 25 1497, 1535. In perhaps the most personal attack, the prosecutor speculated about defense 26 counsel’s motive: “He’s doing it because he’s representing his client, of course. But what’s 27 the defense? There wasn’t any.” Id. at 1529. Because these statements attack the veracity 28 of the defense, rather than defense counsel personally, they do not amount to denigration 1 of defense counsel. See Williams v. Borg, 139 F.3d 737, 745 (9th Cir. 1998) (“Calling an 2 argument on [the petitioner’s] behalf ‘trash’ cannot be characterized as improper. He did 3 not say the man was ‘trash’; he said the argument was. A lawyer is entitled to characterize 4 an argument with an epithet as well as a rebuttal.”). The Ninth Circuit has found that several 5 similar statements, even those implying misdirection from the defense, did not amount to 6 misconduct. See United States v. Palomo, 714 F. App’x. 799, 800 (9th Cir. 2018) (“[T]he 7 Government did not commit misconduct during rebuttal closing argument by describing a 8 defense tactic as a ‘shell game[;]’. . . criticizing defense tactics is fair game during closing, 9 and this type of argument is generally considered ‘well within normal bounds of 10 advocacy.’”); United States v. Salas, 669 F. App’x. 449, 450 (9th Cir. 2016) (finding the 11 prosecutor did not commit misconduct by calling defense’s focus on sequence of events a 12 “classic lawyer thing” designed to “muddy up the water” and show the jury a “red 13 herring”). The comments thus do not amount to prosecutorial misconduct. 14 4. Statements at Trial Where the Prosecutor Engaged in Misconduct 15 a. Celene Bensink 16 As no party objected to the account of Celene Bensink’s testimony set forth in the 17 R&R, the Court adopts the description as set forth therein: Celene’s testimony was consistent regarding her account of what she — 18 — observed of the shooting incident on January 31st. (Doc. 23-1 at 656-702.) 19 She was in her bedroom on the second floor of the house facing Cheryl Drive at 9:00 pm, when she heard an argument coming from the street. (Id. at 65720 68.) When she went to the window, she observed a vehicle parked on the 21 street in front of her house and heard an argument between a man and a woman. (Id.) She heard the man’s voice growing loader (sic) and it sounded — 22 — like he was yelling for the woman to get back into the vehicle. (Id.) It was 23 dark, so Celene was unable to make out the model of the car, but described it as dark, “almost [] black” and “looking almost like a Mustang Coupe.” (Id. — 24 — at 658-61.) She did not see the woman, but testified that she thought the girl 25 may have been located outside the car, perhaps hiding in bushes in the shadow of a brick fence. (Id. at 670-71.) She could not see the person in the 26 vehicle either, but soon after going to the window she heard gunshots, “three 27 “blue flashes” of gunfire, that she believed were fired in her direction. (Id. at 661-63.) At the same time, Celene determined that the man in the car was in 28 the driver’s seat, with his firing arm extended out the window. (Id. at 6611 63, 681) Celene immediately dropped to the floor to shield a young child and her dog from the gunfire. (Id. at 695-96.) She waited a few minutes after the — 2 — gunfire, and then called 911. Celene did not see anything that happened after 3 that, although she heard the car speed away. (Id.) — 4 — The victim’s testimony regarding this event differed from Celene’s 5 account in some important respects. She testified that on January 31st, she was with Petitioner in his car and were on their way home when they turned — 6 — into the neighborhood of Cheryl Street, where she lived. (Doc. 11-2 at 2367 41.) They were arguing before they parked the car on Cheryl Street, and after the car was parked, both of them got out of the car and continued to argue — 8 — for about 5 to 10 minutes on the sidewalk. (Id. at 242-44.) She testified that 9 Petitioner did not want her to go to her house, and then “started shooting in the air to kind of get [her] attention to listen to what he [] wanted.” (Id. at 10 [245-46].) They then got back into the car and took off again. (Id.) 11 In his closing statement, the prosecutor emphasized several times that Celene’s testimony corroborated the victim’s. He stated that “Celene [] 12 watched the whole thing go [], and watched as the defendant shot up the 13 neighborhood.” (Doc. 23-1 at 1486-87.) (Doc. 35 at 23–25.) The prosecutor repeatedly emphasized that Celene witnessed the entire — 14 — event: — 15 — You know that Celene watched the whole thing. You have two eyewitnesses 16 saying that man shot at the house. . . . You heard that from Celene who watched it all happen. You heard the same story from Athena of what — 17 — happened out there. — 18 — (Doc. 23-1 at 1489–90.) He went on: — 19 — “Celene, already told you, was the one who watched it all go down. All their — 20 — stories jive.” (Doc. 23-1 at 1500.) In addressing the proof that it was 21 Petitioner who did the shooting, the prosecutor stated that the victim, Celene and all eyewitnesses saw his car drive away. (Id. at 1501-1502.) “Celene sees — 22 — it all happening, says exactly the same thing [the victim] says happens.” (Id.) 23 The prosecutor then added that “Celene was watching the whole thing happen, and Celene knew that she wasn’t really going to get shot because — 24 — she’s watching him shoot in a different direction, near her, but towards this 25 house. She’s not in fear because she knows what’s going on, that she’s not going to be getting shot at that point.” (Id. at 1509.) — 26 — (Doc. 35 at 23–25.) — 27 — The prosecutor overstated the strength of Celene’s testimony to the extent he — 28 — implied she identified the Petitioner. Celene never testified that she could see the shooter 1 clearly or that she had witnessed the entire incident. Rather, she explained that she was 2 unable to see the Petitioner in the dark, and that, after hearing gunshots, she ducked down 3 and did not see the vehicle drive away. She also provided a description of the vehicle based 4 on her observation before shots were fired, stating that it appeared to be a dark-colored 5 small vehicle which resembled a Mustang coupe. (Doc. 23-1 at 661.) The prosecutor’s 6 statements reach beyond Celene’s testimony. Indeed, although Respondents suggest that 7 the prosecutor also acknowledged that Celene did not witness the entire event or directly 8 identify the Petitioner, the Court finds no such statement in the cited portion of the 9 testimony. Id. at 1489–90. The prosecutor asserted only that Celene had no prejudice 10 against Petitioner because “[s]he doesn’t even know him.” Id. at 1489. 11 The prosecutor’s overstatements, however, do not establish reversible error. Trial 12 counsel did not object to the prosecutor’s statements about Celene’s testimony. For a 13 misrepresentation to be reversible, a prosecutor’s misconduct must be so egregious that it 14 infects the trial with such unfairness as to constitute a denial of due process before it 15 violates the Fourteenth Amendment to the federal Constitution. Donnelley v. 16 DeChristoforo, 416 U.S. 637, 643 (1974). The prosecutor’s statements about Celene’s 17 testimony were not significant enough to render Petitioner’s trial fundamentally unfair. 18 Because the State had already presented evidence that the victim’s testimony was 19 corroborated, the prosecutor did not address any material issue not already within the jury’s 20 knowledge. Moreover, instructing the jury that lawyers’ comments and argument are not 21 evidence can cure the harmful effect of isolated instances of improper argument. 22 Sassounian v. Roe, 230 F.3d 1097 , 1106–07 (9th Cir. 2000). As the Court gave such an 23 instruction here, the prosecutor’s conduct was not reversible error. 24 b. Vouching 25 “Improper vouching consists of placing the prestige of the government behind a 26 witness through personal assurances of the witness’s veracity or suggesting that 27 information not presented to the jury supports the witness’s testimony.” United States v. 28 Flores, 802 F.3d 1028, 1040 (9th Cir. 2015). Petitioner asserts that the prosecutor vouched 1 for both the victim’s and Detective Hiticas’ testimony. 2 i. The Victim’s Testimony 3 Here, the Prosecutor improperly vouched for the truthfulness of the victim. In his 4 closing argument, he advised the jury: So, let’s look at the credibility of [the victim], because we know maybe she’s — 5 — not the greatest high school female out there right now, but the one thing -- 6 she might not be the ideal homecoming queen or something like that in high school, but the one thing that she isn’t, she isn’t a liar. — 7 — (Doc. 23-1 at 1497–98.) Later in his argument he stated again: “She may be an interesting — 8 — individual, but she’s not a liar.” Id. at 1501. — 9 — These assurances of the victim’s truthfulness were improper vouching. The Ninth — 10 — Circuit has found similar affirmations improper, regardless of whether the prosecutor — 11 — purported to express opinion or fact regarding the truthfulness of the victim. In Carriger v. — 12 — Stewart, for example, the court found a prosecutor’s statements that a witness “is not a liar” — 13 — and “is a lot of things but he is not a liar” were improper vouching. 132 F.3d 463 , 482 (9th — 14 — Cir. 1997); see United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992) (finding — 15 — prosecutor’s statements “I think he was very candid,” and “I think he was honest” to be — 16 — improper vouching for witness’s credibility). The prosecutor thus improperly vouched for — 17 — the veracity of the victim’s testimony in his closing argument. — 18 — ii. Detective Hiticas’ Testimony — 19 — The prosecutor also summarized Detective Hiticas’ testimony. During closing — 20 — arguments, he stated: — 21 — But where’s the gun, you may ask? The police looked for it. Detective 22 Hiticase, just yesterday, or two days ago, testified they tried to track it down. They went knocking on doors, calling the phone numbers found on the — 23 — phone, on the defendant’s phone. No ones going to talk to them. Why? Why 24 do you think any of these individuals are not going to talk to a detective about a gun they just bought, probably pretty cheap, on the street, from a guy you — 25 — probably know, who probably went and told them what he did with it. They 26 know that gun’s hot. They know that it’s got something on it. That’s why they’re buying it off the street for a couple hundred bucks. They’re not going 27 to talk to police. 28 (Doc. 23-1 at 1495.) 1 Earlier in the trial, the detective testified that he looked for the weapon used in the 2 offense but was unable to locate it. Id. at 1378. A text message from Petitioner’s phone, 3 which the officer testified referred to selling a weapon, was also admitted. Id. In his closing 4 argument, the prosecutor is clearly speculating about what the Petitioner may have said 5 when selling the gun that would have contributed to the reluctance of purchasers to identify 6 the seller when the detective sought to locate the weapon. “Why do you think any of these 7 individuals are not going to talk to a detective about a gun they just bought, probably pretty 8 cheap, on the street, from a guy you probably know, who probably went and told them 9 what he did with it.” Although, the prosecutor’s speculation reaches beyond the evidence, 10 it is speculative argument. These speculations are an argumentative attempt to bolster the 11 Detective’s conclusion that the Petitioner possessed the weapon and sold it. But in light of 12 the evidence admitted about the Petitioner selling a weapon, they do not amount to 13 reversible error. 14 iii. Whether Vouching was Reversible Error 15 “There is ‘no bright-line rule about when vouching will result in reversal.’” Ruiz, — 16 — 710 F.3d at 1085 (quoting United States v. Necoechea, 986 F.2d 1273, 1278 (9th Cir. 17 1993)). Courts consider several factors, including form, specificity, timing, the extent that 18 the statement implies extrajudicial knowledge, degree of personal opinion asserted, the 19 importance of the witness’ testimony, and the form and timing of a curative instruction. Id. 20 Trial counsel did not object to either instance of vouching. 21 When addressing comments on truthfulness, the Ninth Circuit has found that general 22 instructions can cure vouching. For example, in a case of “mild” vouching, such as a simple 23 assurance that a witness “is telling the truth,” a general instruction at the end of a case may 24 cure potential prejudice. Necoechea, 986 F.2d at 1280 ; see United States v. Shaw, 829 F.2d 25 714, 718 (9th Cir. 1987) (finding that a general instruction that the testimony of a recipient 26 of a beneficiary plea agreement should be examined with caution cured any potential 27 prejudice). As the prosecutor here twice asserted that the victim was not a liar, without 28 further insinuation that he had special knowledge or power over her honesty, the trial 1 court’s general instruction to the jury that closing arguments are not evidence was sufficient 2 to cure any mild vouching. 3 The Ninth Circuit’s multi-factor approach to vouching also demonstrates that the 4 prosecutor’s statements about Detective Hiticas’ testimony were not fundamental error. 5 The Court issued a general instruction that the closing arguments were not evidence, the 6 statement did not explicitly express personal opinion, and the prosecutor’s statements about 7 the fate of the weapon were not repeated. Though repeated misrepresentation of evidence 8 can demonstrate prejudice, generally, an isolated passage in an attorney’s argument will 9 not. Donnelly, 416 U.S. at 646 . The vouching was thus not reversible error. 10 c. Burden Shifting 11 “It is well established that the privilege against self-incrimination prohibits a 12 prosecutor from commenting on a defendant’s failure to testify.” United States v. Castillo, — 13 — 866 F.2d 1071, 1083 (9th Cir. 1988). A prosecutor comments on a defendant’s silence 14 when a statement is “manifestly intended to call attention to the defendant’s failure to 15 testify, or of such a character that the jury would naturally and necessarily take it to be a 16 comment on the failure to testify.” Lincoln v. Sunn, 807 F.2d 805 , 809–10 & n.1 (9th Cir. 17 1987) (prosecutor’s statement that “there’s only one person who could testify” was a 18 comment on defendant’s silence). 19 However, “[t]here is a distinction between a comment on the defendant’s failure to 20 present exculpatory evidence as opposed to a comment on the defendant’s failure to 21 testify.” United States v. Mende, 43 F.3d 1298, 1301 (9th Cir. 1995). “[A] comment on the 22 failure of the defense as opposed to the defendant to counter or explain the testimony 23 presented or evidence introduced is not an infringement of the defendant’s Fifth 24 Amendment privilege.” United States v. Wasserteil, 641 F.2d 704 , 709–10 (9th Cir. 1981) 25 (quoting United States v. Dearden, 546 F.2d 622, 625 (5th Cir. 1977)). Thus, to run afoul 26 of the Fifth Amendment, a comment must contain “clear signals that the defendant himself, 27 rather than the defense generally, was being discussed.” United States v. Mayans, 17 F.3d 28 1174, 1185 (9th Cir. 1994). This standard of specificity is satisfied when a prosecutor 1 comments on a lack of contradictory testimony in a case where the only person who could 2 provide such evidence is the defendant. See United States v. Preston, 873 F.3d 829 , 843 3 (9th Cir. 2017) (“[I]t was plain error for the prosecutor to state that ‘there’s no testimony 4 in this case that contradicts [the victim’s] testimony,’ because the jury would have 5 immediately inferred that they did not hear testimony from [the defendant,] the only 6 witness who could have directly contradicted [the victim’s] allegations.”). 7 Petitioner asserts several statements during closing arguments rose to the level of 8 inappropriate comment on his silence. First, when introducing a theme that the evidence 9 was undisputed, the prosecutor stated: He’s guilty of all of these counts, ladies and gentlemen. He’s guilty of all the — 10 — charges. And at the end of the day, when you look at the State’s case, and 11 you look at all the evidence, the defendant doesn’t have a burden at all, he doesn’t have to present any evidence, and that’s clear in your jury — 12 — instructions. And that’s what happened here in this case. But what also that 13 tells you is that everything that the State put in front of you is undisputed. All the evidence that came from that stand, all the physical evidence, the — 14 — pictures, the tangible items, the casings, all of that is undisputed. No one took 15 that stand and said anything different than what Athena told you and what I told you in the opening statement what happened. The State’s case is — 16 — undisputed on what happened. 17 (Doc. 23-1 at 1511–12.) As the prosecutor continued in this vein, the court sustained 18 defense objections: 19 MR. RADEMACHER: Defense counsel got up here in his opening and talked to you about he takes issue with the State saying that its case is 20 undisputed. Well, really what it is is his client takes issue with accepting 21 responsibility. He takes issue with he’s being prosecuted for a crime. Because what’s undisputed here is what came from that stand, from the witnesses. No 22 one came in here and disputed anything Athena told you. No one came in here and disputed anything any of the police officers told you. No one came — 23 — in here and disputed anything any of the other civilian victims, our innocent 24 victims told you. — 25 — MR. CARTER: Judge, I’m going to object to improper argument. It’s burden 26 shifting. Period. — 27 — THE COURT: Mr. Rademacher, I’m going to sustain that objection. I think 28 there are different ways you can argue your point. But, ladies and gentlemen, the defense, as you know from the instructions, is not required to produce 1 any evidence, they’re not, and that’s in your instructions and that’s clear. Whether or not any of the evidence that was present was disputed is up to — 2 — you to determine based upon all the information that you receive, and counsel 3 obviously have different opinions about that. With that, I’m going to ask Mr. Rademacher to proceed, please. — 4 — 5 MR. RADEMACHER: What evidence contradicted what Athena told you happened? — 6 — 7 MR. CARTER: Same objection, Judge. — 8 — MR. RADEMACHER: Talking about the evidence, Your Honor. — 9 — THE COURT: I’m going to overrule in this instance. Go ahead. — 10 — Id. at 1527–28. — 11 — These statements amount to inappropriate comment on Petitioner’s silence. In a — 12 — crime where only the victim identified Petitioner, the prosecutor repeatedly emphasized — 13 — the lack of testimony disputing the victim’s account. This was tantamount to referring to — 14 — Petitioner’s failure to testify and improperly shifted the burden to the Petitioner. See Hovey — 15 — v. Ayers, 458 F.3d 892, 912 (9th Cir. 2006) (“The prosecutor’s statement that ‘[t]here’s — 16 — nothing different naturally and necessarily implicates [Defendant’s] decision not to testify, — 17 — as [Defendant] is the only person who could definitively answer the question of whether — 18 — he used a knife.”). — 19 — In response to the prosecutor’s burden-shifting, trial counsel did timely object. — 20 — However, even had he not done so, Ninth Circuit precedent still demonstrates that even — 21 — where a prosecutor’s burden-shifting statements during closing argument are improper, — 22 — they are rendered harmless if a trial court responds with specific instruction to the jury. See — 23 — United States v. Tam, 240 F.3d 797, 802 (9th Cir. 2001). Here, in response to trial counsel’s — 24 — objection, the trial court issued a specific curative instruction regarding the prosecution’s — 25 — burden: 26 [L]adies and gentlemen, the defense, as you know from the instructions, is 27 not required to produce any evidence, they’re not, and that’s in your instruction and that’s clear. Whether or not any of the evidence that was 28 present is disputed is up to you to determine based on all the information that 1 you receive, and counsel obviously have different opinions about that. 2 (Doc. 23-1 at 1528.) In evaluating whether the trial court’s conclusion in the Rule 32 3 proceeding that Petitioner received a fair trial and effective assistance of counsel at trial, 4 this instruction, issued pursuant to the Defense Counsel’s objection and along with the 5 other evidence presented at trial, was a sufficient basis on which the trial court may have 6 appropriately concluded that the Defendant received a fair trial without violating clearly 7 established federal law. In fact, because the wrong was cured by the trial court’s curative 8 instruction, to prevail Petitioner must establish, not just that prosecutorial misconduct 9 occurred, but that the trial court’s responses to that conduct, be it the curative instruction 10 or its other responses to objections, were in error. Plaintiff makes no such showing. 11 5. Cumulative Wrongs 12 Because each instance of misconduct did not alone rise to the level of reversible 13 error, they do not constitute violations of clearly established federal law. The R&R also 14 considered, however, whether, taken together, the wrongs constitute a cumulative harm 15 which was a violation of clearly established federal law. “[C]umulative error warrants 16 habeas relief only where the errors have ‘so infected the trial with unfairness as to make 17 the resulting conviction a denial of due process. . . . In simpler terms, where the combined 18 effect of individually harmless errors renders a criminal defense ‘far less persuasive that it 19 might [otherwise] have been,’ the resulting conviction violates due process.” Nevertheless, 20 this, too, is an issue upon which the PCR court ruled on the merits finding no prejudice 21 arising from any prosecutorial misconduct and finding no ineffective assistance of counsel 22 and no prejudice arising from such ineffective assistance. 23 In fact, although the Ninth Circuit in Parle found that it is “clearly established that 24 the combined effect of multiple trial errors may give rise to a due process violation if it 25 renders a trial fundamentally unfair,” Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) 26 (citing Donnelly, 416 U.S. at 643 );2 Chambers v. Mississippi, 410 U.S. 284 , 290 n.3 (1973), 27 2 Although circuit courts are split on the issue, the Ninth Circuit reasoned that Donnelly clearly established that cumulative error analysis applies to due process violations. Id.; 28 Ruth A. Moyer, To Err Is Human; to Cumulate, Judicious: The Need for U.S. Supreme Court Guidance on Whether Federal Habeas Courts Reviewing State Convictions May 1 “the fundamental question in determining whether the combined effect of trial errors 2 violated a defendant’s due process rights is whether the errors rendered the criminal 3 defense ‘far less persuasive,’ and thereby had a ‘substantial and injurious effect or 4 influence.’” Parle, 505 F.3d at 928 (internal citations omitted). The court specified that an 5 allegation of cumulative error is strongest where several errors undermine an already weak 6 element of the state’s case. Id. That is not the case here. Each error explained above goes 7 to elements of the offense supported by other, properly argued, evidence. The only error 8 which relates to an element the defense argued was unsupported, is the representation of 9 Celene Bensink’s testimony to suggest that she identified the Petitioner. Even to the extent 10 that the representation occurred, however, the Petitioner was also identified via the 11 testimony of the victim, the text messages between the victim and the Petitioner, and the 12 contents of the Petitioner’s vehicle when he was apprehended. Having reviewed all of the 13 instances of such conduct complained of above, this Court cannot find that the state court’s 14 PCR determination on these issues was contrary to, or involved an unreasonable 15 application of, clearly established Federal law, as determined by the Supreme Court of the 16 United States. “[H]abeas corpus is a “guard against extreme malfunctions in the state 17 criminal justice systems, not a substitute for ordinary error correction through appeal.” 18 Harrington v. Richter, 562 U.S. 86, 102-03 (2011). 19 6. Ineffective Assistance of Trial Counsel 20 To prevail on an ineffective assistance claim, the party seeking relief must show (1) 21 that counsel’s representation fell below an objective standard of reasonableness; and (2) 22 that there is a reasonable probability that, but for counsel’s unprofessional errors, the result 23 of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668 , 24 687–88 (1984). 25 In his PCR Petition, Petitioner raised ineffective assistance of his trial counsel. The — 26 — Cumulatively Assess Strickland Errors, 61 Drake L. Rev. 447 , 475 (2013) (“[T]he Supreme 27 Court has not yet rendered cumulative analysis of an attorney’s errors to determine Strickland prejudice as clearly established federal law.”). Regardless, because Petitioner 28 cannot establish that cumulative error occurred, he cannot succeed on the substance of his claim. 1 trial court concluded that “defense counsel’s performance did not fall below prevailing 2 professional norms and that no deficient performance on the part of defense counsel 3 prejudiced Mr. Rodriguez’s defense or rendered different trial results.” (Doc. 1 at 28.) As 4 explained above, this finding is entitled to deference; the Court may only reverse the state 5 court’s finding on the merits if it was a violation of clearly established federal law. The 6 Court’s review of the Petitioner’s allegations of prosecutorial misconduct establishes that 7 no such violation occurred. First, although the prosecutor engaged in burden shifting during 8 closing arguments, trial counsel successfully objected to the statements and received a 9 curative instruction. To the extent that Petitioner maintains he was prejudiced, he therefore 10 alleges error by the trial court, not trial counsel. Moreover, as explained above, of the three 11 remaining instances of misconduct, none constituted reversible error pursuant to clearly 12 established federal law. Indeed, none are particularly egregious to notions of a fair trial, or, 13 when combined with curative instructions, sufficiently egregious so that the trial court’s 14 evaluation meets the standard required for habeas relief. Petitioner thus cannot prove, under 15 a standard deferential to the state’s findings, that the result of the proceeding would have 16 been different but for counsel’s errors. The trial court’s ruling on the PCR petition was 17 therefore not a violation of clearly established law. 18 As a result, the trial court’s finding that trial counsel’s performance did not prejudice 19 Petitioner undermines the merits of his prosecutorial misconduct and IAAC claims. The 20 trial court’s finding that counsel’s failure to object to the prosecutor’s statements was non21 prejudicial to the Petitioner’s defense must stand. This finding therefore controls this 22 Court’s analysis on his other claims. 23 7. IAAC 24 Like ineffective assistance of trial counsel, Courts review claims of IAAC according 25 to the standard set out in Strickland. A petitioner must show that (1) appellate counsel’s 26 advice fell below an objective standard of reasonableness, and (2) that there is a reasonable 27 probability that, but for counsel’s unprofessional errors, he would have prevailed on appeal. 28 Strickland, 466 U.S. at 687 . 1 First, there is a “strong presumption that counsel’s conduct falls within a wide range 2 of reasonable professional assistance.” Id. at 687 . Indeed, “[i]n many instances, appellate 3 counsel will fail to raise an issue because she foresees little or no likelihood of success on 4 that issue; . . . the weeding out of weaker issues is widely recognized as one of the hallmarks 5 of effective advocacy.” Miller, 882 F.2d at 1433. As a result, where counsel has filed a 6 merits brief, it is difficult to demonstrate incompetence. Smith v. Robbins, 528 U.S. 259 , 7 288 (2000). Nonetheless, “it is still possible to bring a Strickland claim based on counsel’s 8 failure to raise a particular claim.” Id. Where ignored issues are clearly stronger than those 9 presented, for example, the presumption of effective assistance can be overcome. Id. 10 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). 11 Second, the salient question in analyzing a claim of ineffective assistance of 12 appellate counsel is whether the unraised issue, if raised, would have “led to a reasonable 13 probability of reversal.” Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Thus, 14 where a petitioner alleges that failure to a raise claim on appeal constitutes ineffective 15 assistance, a finding of prejudice is a function of the strength of the underlying unraised 16 claim. Where the underlying claim was unlikely to lead to a successful appeal, it cannot be 17 the basis of a successful IAAC claim. 18 Here, none of the prosecutor’s violations demonstrate that Petitioner’s appellate 19 counsel violated the Strickland standard by failing to raise prosecutorial misconduct on 20 appeal. On direct appeal, counsel raised only the issue of suppression of an allegedly 21 unconstitutional search. In a letter to Petitioner, counsel explained: — 22 — As a strategic matter, I did not end up filing on the issue regarding juror taint 23 or closing arguments we spoke about. The case law I found did not support the arguments. Because I didn’t want to weaken your best argument with — 24 — weak points, I elected to focus entirely on the suppression issue. — 25 — Although it’s a long shot, I hope we can get your case reversed. — 26 — 27 (Doc. 29-1 at 114.) As explained above, of the four instances of misconduct, trial counsel 28 objected to only burden-shifting. Under Arizona law, “[o]pposing counsel must timely 1 object to any erroneous or improper statements made during closing argument or waive his 2 right to the objection, except for fundamental error.” State v. Smith, 138 Ariz. 79, 83 , 673 3 P.2d 17 , 21 (1983). Thus, to successfully appeal where counsel fails to object during trial, 4 a defendant must prove that the unobjected to event was so prejudicial that the Defendant 5 was denied a fair trial. Id.; see State v. Denny, 119 Ariz. 131, 134 , 579 P.2d 1101 , 1104 6 (1978). 7 This standard, and Counsel’s explanation, demonstrate that the failure to raise 8 prosecutorial misconduct on direct appeal was a strategic decision entitled to deference. 9 Indeed, the standards that apply to each instance of misconduct demonstrate that declining 10 to raise the issues on direct appeal was not a violation of clearly established federal law. 11 The Court is aware of no Supreme Court authority finding otherwise. In fact, the trial 12 court’s finding that trial counsel’s performance did not prejudice Petitioner necessarily 13 reflects on the merits of Petitioner’s IAAC claim. The unobjected-to misconduct cannot 14 establish prejudice for failure to raise the same claims on appeal. Thus, because appellate 15 counsel’s decision not to raise prosecutorial misconduct was not in violation of a clearly 16 established federal law, neither Petitioner’s IAAC claim nor his prosecutorial misconduct 17 claim warrant habeas relief. 18 III. Order to Show Cause 19 In the R&R, the Magistrate Judge recommends “that Respondents be required to 20 show cause as to why sanctions should not be imposed for their mishandling and 21 misrepresenting of the record.” (Doc. 35 at 40.) This recommendation was based on 22 Respondents’ numerous failures to clearly communicate with the Court and accurately 23 represent the record in this matter. Most significant among these deficiencies was 24 Respondents’ failure to provide a complete record to the Magistrate Judge. In their initial 25 Answer, Respondents filed a copy of the Petitioner’s PCR petition that omitted the exhibits 26 originally attached to the petition. (Doc. 11.) The Magistrate Judge directed respondents to 27 file “the exhibits Petitioner indicates were attached to his PCR Petition.” (Doc. 20.) 28 Although Respondents assert in their Supplemental Answer that the attached exhibits 1 included the PCR exhibits ordered to be disclosed, they attached the wrong documents to 2 the filing. (Doc 23.) After this failure was highlighted by Petitioner, Respondents initially 3 misinterpreted the deficiency and filed a Notice regarding independently obtaining each 4 exhibit referenced by Petitioner in his PCR petition. See (Doc. 36 at 7.) Ultimately, 5 Respondents conceded that they had mistakenly attached the wrong documents and 6 provided the correct exhibits to the court. (Doc. 29.) 7 The omission was an unprofessional error with the potential to prejudice the 8 Petitioner. Petitioner repeatedly cites to the exhibits in his PCR petition and the Magistrate 9 Judge explicitly requested that the omitted documents be filed. Respondents, however, 10 even after failing for a second time to produce the attachments, continued to obfuscate the 11 issue with notices regarding their efforts to obtain the trial exhibits referenced by Petitioner, 12 rather than produce the requested attachments to his PCR petition. See (Doc. 36 at 7.) 13 Significantly, the sought PCR attachments were relevant to the disposition of the 14 Petitioner’s claim. Respondents argued that Petitioner’s limited references to prosecutorial 15 misconduct in the PCR petition failed to raise the issue on appeal. (Doc. 23 at 2.) Petitioner 16 asserted, however, that the attachments to his petition, which were repeatedly cited, also 17 included an annotated transcript of the prosecution’s closing argument which clearly 18 identified instances of misconduct. (Doc. 28 at 2.) As the Respondents’ arguments about 19 the specificity of Petitioner’s briefing are clearly undermined by the documents they 20 repeatedly failed to produce to the Court, Respondents are ordered to show cause for why 21 they should not be sanctioned for their failures to comply with the magistrate judge’s 22 orders. 23 CONCLUSION 24 For the reasons set forth above, Petitioner’s Petition for Writ of Habeas Corpus is 25 denied. 26 IT IS THEREFORE ORDERED that Petitioner’s Petition for Writ of Habeas 27 Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED. 28 IT IS FURTHER ORDERED that the Court ADOPTS in part and DECLINES 1 || to adopt in part the Report and Recommendation. (Doc. 35.) 2 IT IS FURTHER ORDERED that Respondents are ordered to show cause for why || they should not be sanctioned for their failure to produce a complete record in this case within 14 days of the filing of this order. 5 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 6|| Section 2254 Cases, the Court issues a Certificate of Appealability limited only to 7\| Petitioner’s claim that ineffective assistance of appellate counsel violates a clearly 8 || established federal law and establishes cause for procedural default. 9 Dated this 17th day of May, 2021. 10 - i A Whacrsay Fotos 12 Chief United States District Judge — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -32-