Cardenas v. Shinn

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Ronco Cardenas, No. CV-21-00431-TUC-RM (MSA) 10 Petitioner, REPORT AND RECOMMENDATION 11 v. 12 David Shinn, et al., 13 Respondents. [14] 15 Petitioner Ronco Cardenas, an Arizona state prisoner, seeks habeas relief pursuant 16 to 28 U.S.C. § 2254 . Respondents argue that relief should be denied because the petition is 17 untimely, some of Petitioner’s claims are procedurally defaulted without excuse, and the 18 claims that are not defaulted lack merit. While the Court disagrees that the petition is 19 untimely, it agrees that several claims are procedurally barred and that the remaining claims 20 lack merit. The Court will recommend that the petition be denied. 21 Background 22 In December 2015, Petitioner and his friend, Amy Martin, “broke a window of the 23 victim’s home, entered, and took several items with a total value in excess of $1,000, 24 including tools and jewelry.” (Doc. 10-1 at 56.) Petitioner “pawned several of the stolen 25 items and later returned to the victim’s home and attempted to reenter.” (Id.) For his 26 conduct, Petitioner was charged with burglary, attempted burglary, theft, and trafficking in 27 stolen property.1 (Id. at 3–4.) 28 1 Petitioner was also charged with two drug offenses. (Doc. 10-1 at 3.) Those charges were later dropped. (Doc. 1-4 at 6.) 1 In January 2016, the state extended a plea offer that would have required Petitioner 2 to plead guilty to two class-three felonies. (Doc. 1-5 at 24.) The offer made probation 3 unavailable, so Petitioner, who desired probation, rejected it. (Id. at 25, 79–80.) 4 Later that year, the parties appeared for a settlement conference before a superior 5 court judge. (Id. at 30.) During a discussion about the evidence against Petitioner, the judge 6 emphasized that Petitioner’s version of the events was problematic and unlikely to satisfy 7 a jury—especially because recorded phone calls showed Petitioner had not only asked 8 Martin to take the blame, but he had helped her write an admission too. (Id. at 33–49.) The 9 judge explained that someone with Petitioner’s criminal history (nine historical priors) 10 would not be offered a probation-only sentence, but the judge suggested that it would be 11 appropriate to make an offer for a term of prison with a probation tail. (Id. at 48, 54–70.) 12 The prosecutor agreed to present the proposal to his supervisors. (Id. at 69–70.) 13 In mid-July 2016, the state made a second plea offer. (Id. at 85–89.) Under this offer, 14 Petitioner would have pleaded guilty to a class-two felony with no probation available, and 15 to a class-three felony with probation available. (Id. at 85–86.) Defense counsel presented 16 the offer to Petitioner on July 31, during a 40-minute visit at the jail. (Doc. 1-6 at 32.) The 17 parties then held a change-of-plea and Donald hearing on August 2—the deadline the 18 prosecutor had set for accepting the offer.2 (Id. at 11–12.) 19 At the hearing, Petitioner requested new counsel. (Id. at 11.) He asserted that 20 counsel had not told him about the settlement conference in advance, had failed to ask the 21 prosecutor why the second offer did not match the one discussed during the conference, 22 and had given him too little time to consider the offer. (Id. at 13–15.) The judge allowed 23 Petitioner’s counsel to withdraw and then continued with the Donald hearing. (Id. at 16.) 24 The judge explained the consequences of accepting the plea versus being convicted at trial. 25 (Id. at 17–19.) Petitioner confirmed that he had read the offer, discussed it with his former 26 counsel (who was still present), had all his questions about it answered, and was voluntarily 27 2 The purpose of a Donald hearing is to ensure, on the record, that the defendant understands the outstanding plea offer and is knowingly and voluntarily rejecting it. State 28 v. Mendoza, 455 P.3d 705 , 715 (Ariz. Ct. App. 2019) (quoting Missouri v. Frye, 566 U.S. 134, 146 (2012)). 1 rejecting it. (Id. at 17, 19.) At the end of the hearing, the prosecutor sought to clarify that 2 Petitioner’s issues with his former counsel “didn’t involve the explanation and 3 understanding of the plea agreement.” (Id. at 19–20.) When prompted to speak, Petitioner 4 stated that he had “[n]othing more.” (Id. at 20.) 5 Petitioner proceeded to trial and was convicted of all counts. (Doc. 10-1 at 18–19.) 6 He was sentenced to concurrent and consecutive terms of imprisonment totaling 27 years. 7 (Id. at 23–25.) After Petitioner’s convictions and sentences were affirmed on direct appeal, 8 he sought postconviction relief on the ground that he had received ineffective assistance of 9 counsel. (Id. at 56–57; Doc. 1-4 at 2–32.) The trial court denied relief. (Doc. 1-4 at 34–44.) 10 The Arizona Court of Appeals granted review but also denied relief. (Id. at 70–74.) The 11 Arizona Supreme Court denied review. (Doc. 1-5 at 18.) This action followed. 12 Discussion 13 I. Statute of Limitation 14 Respondents argue that the petition is untimely. The Court disagrees. 15 A. Legal Standard 16 This habeas action is governed by the Antiterrorism and Effective Death Penalty 17 Act of 1996 (AEDPA). As relevant here, AEDPA requires that a state prisoner file for 18 federal habeas relief within one year of “the date on which the judgment became final by 19 the conclusion of direct review or the expiration of the time for seeking such review.” [20] 28 U.S.C. § 2244 (d)(1)(A). The limitation period is statutorily tolled during the pendency 21 of a “properly filed application for State post-conviction or other collateral review.” Id. 22 § 2244(d)(2). 23 B. Analysis 24 The petition is timely with the benefit of statutory tolling. On May 7, 2018, the 25 Arizona Court of Appeals denied relief in Petitioner’s direct appeal. (Doc. 10-1 at 55–57.) 26 Petitioner did not seek discretionary review in the Arizona Supreme Court, so the judgment 27 became final—and the statute of limitation began running—when the time for seeking such 28 review expired. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). That was on June 6, 2018. 1 See Ariz. R. Crim. P. 31.21(b)(2)(A) (a party has 30 days to file a petition for review). 2 In Arizona, a postconviction petition becomes pending, and statutory tolling begins, 3 when the prisoner files a notice of postconviction relief. Isley v. Ariz. Dep’t of Corr., [4] 383 F.3d 1054, 1056 (9th Cir. 2004). When, as here, the Arizona Court of Appeals denies 5 relief in a formal opinion, the petition remains pending until that court issues its mandate. 6 Carver v. Shinn, No. CV-19-3755-PHX, 2021 WL 1700723 , at *5 (D. Ariz. Apr. 6, 2021), 7 R. & R. adopted by 2021 WL 3550204 (Aug. 11, 2021). In Petitioner’s case, tolling began 8 on July 5, 2018, when he filed his notice of postconviction relief. (Doc. 10-1 at 65–66.) At 9 that point, the limitation period had run for 29 days. Tolling stopped on March 8, 2021, 10 when the Arizona Court of Appeals issued its mandate. (Doc. 1-5 at 20.) Accounting for 11 the 29 days that had already elapsed, Petitioner had until February 7, 2022, to file his 12 federal petition. He filed on October 20, 2021, so his petition is timely. (Doc. 1 at 48.) 13 Respondents argue that tolling stopped on October 23, 2020, when the Arizona 14 Supreme Court denied review. (Doc. 1-5 at 18.) This would make the petition untimely by 15 about two weeks. However, the denial of review ends the pendency of a proceeding (and 16 ends tolling) only when there is no mandate, i.e., when both the Arizona Court of Appeals 17 and the Arizona Supreme Court deny review without a formal opinion. See Bassett v. Ryan, 18 No. CV-19-8142-PCT, 2021 WL 6427668 , at *5–7 (D. Ariz. Dec. 1, 2021), R. & R. 19 adopted sub nom by Bassett v. Shinn, 2022 WL 112195 (Jan. 12, 2022). When the Arizona 20 Court of Appeals grants review and issues a formal opinion, that court is required to issue 21 a mandate, and the issuance of the mandate marks the end of the proceeding. Compare 22 Hemmerle v. Schriro, 495 F.3d 1069, 1072, 1077 (9th Cir. 2007) (holding the proceeding 23 ended when the Arizona Supreme Court denied review following the Arizona Court of 24 Appeals’ denial of review), with Celaya v. Ryan, 497 F. App’x 744, 745 (9th Cir. 2012) 25 (“Under Arizona law, Celaya’s post-conviction review . . . petition was ‘pending’ until the 26 Arizona Court of Appeals issued the mandate concluding its review of that petition on 27 November 30, 2000.”). In this case, the Arizona Court of Appeals issued a formal opinion, 28 so tolling continued until the mandate was issued. 1 II. Procedural Default 2 Respondents argue that several of Petitioner’s claims are either partially or 3 completely procedurally defaulted. The Court agrees. 4 A. Legal Standard 5 A claim is procedurally defaulted if the state court refuses to consider it based on “a 6 state law ground that is independent of the federal question and adequate to support the 7 judgment.” Guillory v. Allen, 38 F.4th 849 , 855 (9th Cir. 2022) (quoting Walker v. Martin, [8] 562 U.S. 307 , 315 (2011)). A claim is also procedurally defaulted if it is unexhausted, and 9 “state procedural rules would now bar the petitioner from bringing the claim in state court.” 10 Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) (en banc). “[F]ederal habeas review 11 of [procedurally defaulted] claims is barred unless the prisoner can demonstrate cause for 12 the default and actual prejudice as a result of the alleged violation of federal law, or 13 demonstrate that failure to consider the claims will result in a fundamental miscarriage of 14 justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). 15 B. Analysis 16 Petitioner raises seven claims. He claims that he was denied due process and 17 effective assistance of counsel because (1)(a) he was denied counsel at the Donald hearing, 18 and (b) counsel’s deficient conduct prior to withdrawal caused him to lose a favorable plea 19 agreement; (2) counsel failed to object to the prosecution’s use of the recorded phone calls; 20 (3) counsel failed to challenge the victim’s testimony that he owned a ring that in fact 21 belonged to Petitioner; (4) counsel failed to file a motion to suppress the victim’s 22 identification of Petitioner at a “one person show up”; and (5) counsel failed to file a 23 sentencing memorandum and failed to visit Petitioner before the sentencing hearing. 24 Petitioner also claims that (6) his consecutive sentences violate the Fifth Amendment’s 25 Double Jeopardy Clause and the Eighth Amendment’s prohibition of cruel and unusual 26 punishment; and that (7) appellate counsel for his direct appeal was ineffective for not 27 raising a claim of structural error (i.e., denial of counsel at the Donald hearing). 28 Claim (1)(a): The trial court found that Petitioner waived this claim on direct 1 appeal. (Doc. 1-4 at 40.) If the Arizona Court of Appeals had adopted that finding in its 2 opinion, there would be no question that Petitioner’s claim is procedurally defaulted. See 3 Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (“Arizona’s waiver rules are independent 4 and adequate bases for denying relief.” (citations omitted)). The court of appeals’ decision, 5 however, does not mention the trial court’s procedural ruling. (See Doc. 1-4 at 71–74.) 6 Respondents argue that it is appropriate to “look through” to the trial court’s 7 decision—the last reasoned decision on the waiver issue—and presume that the court of 8 appeals upheld that finding. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (creating a 9 presumption that “[w]here there has been one reasoned state judgment rejecting a federal 10 claim, later unexplained orders upholding that judgment or rejecting the same claim rest 11 upon the same ground”). It is not clear, however, that the look-through presumption 12 applies. Ylst applied the presumption to a summary denial of review, not to a reasoned 13 opinion that addressed some of the trial court’s findings but not others. Id. at 805 . In 14 addition, in this circuit, courts generally review only the last of multiple reasoned decisions 15 and may consider a lower court’s findings only when they have been expressly adopted by 16 a higher court. Barker v. Fleming, 423 F.3d 1085 , 1092–93 (9th Cir. 2005). 17 Ultimately, the Court need not decide whether this claim is procedurally defaulted. 18 The most favorable scenario for Petitioner is to have his claim reviewed de novo. As 19 discussed in the next section, under that standard, he is not entitled to relief. 20 Claims (1) through (5): These claims are unexhausted to the extent they allege a 21 violation of due process. To exhaust a claim, the petitioner must present the state court with 22 a description of “both the operative facts and the federal legal theory on which his claim is 23 based so that the state courts have a fair opportunity to apply controlling legal principles to 24 the facts bearing upon his constitutional claim.” Walden v. Shinn, 990 F.3d 1183 , 1196 25 (9th Cir. 2021) (quoting Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008)). Petitioner’s 26 state-court briefing referenced the Sixth Amendment and raised claims of denial of counsel 27 and ineffective assistance of counsel. His briefing did not mention due process or the Fifth 28 or Fourteenth Amendments. Therefore, he did not properly present his due-process claims. 1 See Gray v. Netherland, 518 U.S. 152 , 162–63 (1996) (stating that exhaustion requires not 2 only a statement of facts but also “reference to a specific federal constitutional guarantee”). 3 These claims are procedurally defaulted because Petitioner cannot return to state 4 court to exhaust them. In particular, state rules bar him from raising the claims in another 5 postconviction petition because he could have raised them in his first, and the deadline for 6 bringing his claims has passed. Ariz. R. Crim. P. 32.2(a)(3), 32.4(b)(3)(A). Petitioner does 7 not argue that he can establish cause and prejudice, or that the denial of review would result 8 in a fundamental miscarriage of justice. Therefore, review of these claims is barred. 9 Claim (6): This claim is unexhausted because Petitioner’s state-court briefing does 10 not mention the Fifth Amendment’s Double Jeopardy Clause or the Eighth Amendment’s 11 prohibition of cruel and unusual punishment. Petitioner says this claim is exhausted 12 because it was “part and parcel” of his claim for ineffective assistance of counsel at 13 sentencing. While a claim can be exhausted “despite variations in the legal theory” if “the 14 ultimate question for disposition” is the same, Picard v. Connor, 404 U.S. 270, 277 (1971) 15 (quoting United States ex rel. Kemp v. Pate, 359 F.2d, 749, 751 (7th Cir. 1966)), the 16 questions raised by Petitioner’s claims are not the same. The question presented to the state 17 courts was whether counsel’s ineffectiveness led the trial court to impose a more severe 18 sentence. See Glover v. United States, 531 U.S. 198 , 202–04 (2001). That question is 19 fundamentally different from whether the sentence constitutes multiple punishments for a 20 single offense—the inquiry under the Fifth Amendment, see Brown v. Ohio, 432 U.S. 161 , 21 165–66 (1977)—and whether the sentence was disproportionate to the crime—the inquiry 22 under the Eighth Amendment, see Lockyer v. Andrade, 538 U.S. 63, 72 (2003). Therefore, 23 this claim was not properly presented. 24 The claim is procedurally defaulted because, as explained above, Petitioner cannot 25 return to state court to exhaust it. Petitioner does not argue that he can establish cause and 26 prejudice, or that the denial of review would result in a fundamental miscarriage of justice. 27 Therefore, review of this claim is barred. 28 Claim (7): This claim is procedurally defaulted because Petitioner concedes that it 1 is unexhausted and, for the reasons stated above, he cannot return to state court to exhaust 2 it. Petitioner argues that the default must be excused because he can establish cause and 3 prejudice under Martinez v. Ryan, 566 U.S. 1 (2012). The Martinez exception, however, 4 does not apply to claims of ineffective assistance of appellate counsel. Davila v. Davis, [5] 137 S. Ct. 2058, 2063 (2017). Petitioner does not argue that the denial of review would 6 result in a fundamental miscarriage of justice. Therefore, review of this claim is barred. 7 III. Merits 8 Respondents argue that Petitioner’s remaining claims lack merit. The Court agrees. 9 A. Denial of Counsel (Claim (1)(a)) 10 In claim (1)(a), Petitioner alleges that he was denied counsel during a critical stage 11 of his prosecution—the Donald hearing—because his counsel was allowed to withdraw. 12 “The Sixth Amendment secures to a defendant who faces incarceration the right to counsel 13 at all ‘critical stages’ of the criminal process.” Iowa v. Tovar, 541 U.S. 77, 87 (2004) 14 (citations omitted). This right is violated, and prejudice is presumed, when (1) there is a 15 “complete denial of counsel,” (2) “counsel entirely fails to subject the prosecution’s case 16 to meaningful adversarial testing,” or (3) “counsel is called upon to render assistance under 17 circumstances where competent counsel very likely could not.” Bell v. Cone, 535 U.S. 685 , 18 695–96 (2002) (quoting United States v. Cronic, 466 U.S. 648 , 659–62 (1984)). 19 Petitioner’s case does not fit any of these scenarios, so his claim is without merit. 20 First, although Petitioner’s counsel was allowed to withdraw, she was present on his behalf 21 for the remainder of the hearing. Thus, counsel was not “either totally absent, or prevented 22 from assisting [Petitioner] during a critical stage of the proceeding.” Cronic, 466 U.S. 23 at 659 n.25. Second, the purpose of the hearing was for Petitioner to accept or reject the 24 plea offer; it did not present an opportunity for counsel—and thus counsel did not fail—to 25 subject the prosecution’s case to adversarial testing. And third, counsel was familiar with 26 the case, so it was not “very likely” that she would perform incompetently. Cf. Powell v. 27 Alabama, 287 U.S. 45 , 57–58 (1932) (presuming prejudice because counsel was appointed 28 on the first day of a capital murder trial). 1 B. Ineffective Assistance of Counsel (Claims (1)(b) through (5)) 2 1. Legal Standard 3 Under AEDPA, a federal court must defer to a state habeas court’s decision on the 4 merits unless the decision “was contrary to, or involved an unreasonable application of, 5 clearly established Federal law, as determined by the Supreme Court of the United States,” 6 or “was based on an unreasonable determination of the facts in light of the evidence 7 presented in the State court proceeding.” 28 U.S.C. § 2254 (d). “This is a ‘difficult to meet,’ 8 and ‘highly deferential standard for evaluating state-court rulings, which demands that 9 state-court decisions be given the benefit of the doubt.’” Ross v. Davis, 29 F.4th 1028 , 1042 10 (9th Cir. 2022) (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). 11 The clearly established law governing Petitioner’s ineffectiveness claims is set forth 12 in Strickland v. Washington, 466 U.S. 668 (1984). A petitioner asserting a claim of 13 ineffective assistance of counsel must show both deficient performance and prejudice. [14] Id. at 687 . To establish deficient performance, the petitioner “must show that counsel’s 15 representation fell below an objective standard of reasonableness.” Id. at 688 . This showing 16 requires the petitioner to overcome “a strong presumption that counsel’s conduct falls 17 within the wide range of reasonable professional assistance.” Id. at 689 . To establish 18 prejudice, the petitioner “must show that there is a reasonable probability that, but for 19 counsel’s unprofessional errors, the result of the proceeding would have been different. A 20 reasonable probability is a probability sufficient to undermine confidence in the outcome.” [21] Id. at 694 . 22 2. Analysis 23 The Court observes, at the outset, that Petitioner fails to meaningfully engage with 24 AEDPA’s standard of review. He repeats the de novo arguments from his state-court 25 briefing and then asserts, in a cursory manner, that the state court unreasonably applied 26 federal law by “not consider[ing] the totality of the many errors by trial counsel.” 27 Petitioner’s omission is significant. As just noted, by itself, AEDPA’s standard is “difficult 28 to meet” and “highly deferential.” Ross, 29 F.4th at 1042 (quoting Cullen, 563 U.S. at 181 ). 1 When it applies in tandem with the “highly deferential” standard of Strickland, review is 2 “doubly” deferential. Id. (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)). In the 3 absence of argument, Petitioner fails to overcome that deference. See Ochoa v. Davis, [4] 16 F.4th 1314 , 1325 (9th Cir. 2021) (“The petitioner bears the burden of proof under 5 AEDPA.” (citing Richter, 562 U.S. at 98 )). 6 Regardless, the Court’s review confirms that the Arizona Court of Appeals’ decision 7 was not objectively unreasonable. 8 Claim (1)(b): Petitioner claims that counsel was ineffective because (1) she failed 9 to secure the plea offer that was discussed at the settlement conference, (2) she gave him 10 only two days to consider the second plea offer, (3) she failed to request an extension of 11 the deadline for accepting the second offer, (4) she did not ensure that he had a “fair grasp” 12 of the offer, and (5) she did not give him an opportunity to hear his recorded phone calls 13 before making a decision on the offer. The state court rejected Petitioner’s claim under 14 both prongs of Strickland. (Doc. 1-4 at 72–73.) 15 In denying relief, the state court observed that Petitioner “avowed to the court he 16 had read the plea, understood it, and that counsel had answered his questions about it.” 17 (Id. at 73.) The state court further observed that Petitioner had “not identified any provision 18 of the plea offer he did not understand.” (Id.) In fact, the state court noted, while Petitioner 19 alleged that he mistakenly believed the offer required consecutive sentences, he was not 20 mistaken: the offer stated the sentences “shall run consecutively.” (Id.) These 21 circumstances indicate that Petitioner fully understood the plea offer. Therefore, the state 22 court could reasonably find that counsel did not perform deficiently in explaining the offer 23 and in giving Petitioner only two days to consider it. 24 The state court noted that counsel informed Petitioner “no other plea offer was 25 available,” and that Petitioner had not shown the prosecutor “would have been obligated 26 to keep the offer open” even if counsel had requested an extension. (Id.) Further, the 27 prosecutor was clear at the Donald hearing that the plea offer was expiring regardless of 28 whether Petitioner obtained new counsel, and the trial court notified Petitioner that “[t]here 1 won’t be a plea agreement offered after today.” (Doc. 1-6 at 12, 14.) In short, the offer was 2 entirely within the prosecutor’s control. Under those circumstances, the state court could 3 reasonably find that counsel was not deficient in failing to secure a different offer, and that 4 Petitioner was not prejudiced by counsel’s failure to request an extension of the plea 5 deadline. 6 Finally, the state court noted that Petitioner had “cited no authority suggesting that 7 any competent attorney would have necessarily ensured he had access to th[e] recordings 8 before deciding whether to accept the state’s plea offer.” (Doc. 1-4 at 73.) He does not do 9 so here, either. Petitioner knew the content of the calls because he participated in them. 10 (Id.) He knew the calls could damage his case because the settlement judge told him so. 11 (See Doc. 1-5 at 39 (“But the jury is not going to look kindly on the fact that you conspired 12 with [Martin], so to speak, to make sure that the statements were in line.”).) In that context, 13 the state court could reasonably find that Petitioner had not overcome the presumption that 14 counsel’s conduct was reasonable. 15 Claim (2): In several recorded phone calls, Petitioner encouraged Martin to fire her 16 attorney and to write a letter directing blame onto herself. (Doc. 1-7.) The recordings 17 indicate that Petitioner eventually wrote Martin’s admission for her. (Id. at 25.) Petitioner 18 claims that counsel was ineffective for failing to object to introduction of the recordings at 19 trial. The state court disagreed, finding that Petitioner had not overcome the presumption 20 that counsel acted reasonably. (Doc. 1-4 at 73.) 21 Petitioner does not dispute that his attempts to persuade Martin were relevant and 22 admissible, so counsel could not have been deficient for failing to object to those parts of 23 the recordings. While Petitioner is probably correct that most of the content on the 24 recordings was irrelevant, it does not follow that counsel was ineffective for failing to raise 25 that objection. The irrelevant parts were largely innocuous, and counsel could have 26 reasonably refrained from objecting on that basis. Thus, the state court could reasonably 27 find that Petitioner failed to demonstrate deficient performance. 28 Claim (3): At trial, the victim asserted ownership over numerous items found in 1 Petitioner’s possession, including a ring that purportedly belonged to Petitioner. Petitioner 2 claims that counsel was ineffective for failing to impeach the victim’s testimony about the 3 ring. The state court disagreed, finding that Petitioner had not overcome the presumption 4 that counsel acted reasonably. (Doc. 1-4 at 73.) 5 Petitioner and Martin stole “several items with a total value in excess of $1,000, 6 including tools and jewelry.” (Doc. 10-1 at 56.) Considering the other valuable items that 7 were stolen, counsel could have reasonably believed that it would not help Petitioner’s case 8 to raise a dispute over a single item. Alternatively, counsel could have reasonably refrained 9 from challenging the victim to avoid provoking an adverse reaction from the jury. Counsel 10 may also have believed that the jury simply would not believe Petitioner’s evidence over 11 the victim’s testimony. In light of these possibilities, the state court could reasonably find 12 that Petitioner failed to demonstrate deficient performance. 13 Claim (4): Petitioner claims that counsel was ineffective for failing to file a motion 14 to suppress the victim’s identification of him at a “one person show up.” The state court 15 rejected this claim because Petitioner “d[id] not assert that he told counsel the victim had 16 seen him in custody and acknowledge[d] there was no such evidence presented,” and 17 because Petitioner did not “contest the trial court’s conclusion that his identity was not an 18 issue at trial.” (Doc. 1-4 at 73–74.) 19 Notably, notwithstanding the state court’s criticisms, Petitioner still does not allege 20 that his identity was an issue at trial, or even that the jury heard evidence that he was 21 identified at a “one person show up.” Counsel was not deficient for failing to challenge an 22 identification that may not even have occurred. See Baumann v. United States, 692 F.2d 23 565, 572 (9th Cir. 1982) (“The failure to raise a meritless legal argument does not constitute 24 ineffective assistance of counsel.”). Thus, the state court could reasonably find that 25 Petitioner failed to demonstrate deficient performance. 26 Claim (5): Petitioner claims that counsel was ineffective for failing to file a 27 sentencing memorandum and for failing to visit him before the sentencing hearing. The 28 state court disagreed, finding that Petitioner had not overcome the presumption that counsel 1 acted reasonably. (Doc. 1-4 at 73.) 2 At the sentencing hearing, counsel emphasized that Petitioner’s criminal history, 3 while extensive, was entirely nonviolent, and that Petitioner’s crimes were the product of 4 his struggle with drug addiction. (Doc. 10-1 at 90–93.) Counsel also emphasized that 5 Petitioner suffered from posttraumatic stress disorder, depression, and panic attacks, 6 conditions which had previously gone untreated. (Id. at 86, 91–92.) Counsel objected to 7 the 35-year recommendation, arguing that Petitioner had never served more than four years 8 at a time and that it would be “insane” and “irresponsible” to “warehous[e] somebody for 9 the rest of his life because he’s got a drug addiction and a history of breaking into people’s 10 property.” (Id. at 90–93.) Counsel also pointed out that Martin had received probation for 11 her comparable role in the offenses. (Id. at 94.) Counsel argued that while Martin did not 12 have a criminal history, her sentence reflected the less serious nature of property crimes, 13 and that the court should “keep that in perspective” when sentencing Petitioner. (Id.) 14 Finally, after the court imposed consecutive sentences, counsel urged the court to 15 reconsider, arguing that the offenses were sufficiently related so that they should run 16 concurrently, and that the consecutive sentences were “tantamount to a life sentence” for 17 “a property crimes case.” (Id. at 98–99.) 18 Notwithstanding counsel’s alleged shortcomings, he did advocate on Petitioner’s 19 behalf. The state court could reasonably find that Petitioner failed to demonstrate deficient 20 performance. 21 Conclusion 22 The Court finds that the petition is timely, that several of Petitioner’s claims are 23 procedurally defaulted without excuse, and that Petitioner’s remaining claims lack merit. 24 Therefore, 25 IT IS RECOMMENDED that Petitioner Ronco Cardenas's petition for a writ of 26 habeas corpus under 28 U.S.C. § 2254 (Doc. 1) be denied and dismissed with prejudice. 27 This recommendation is not immediately appealable to the United States Court of 28 Appeals for the Ninth Circuit. The parties have 14 days from the date of service of this 1 || recommendation to file specific written objections with the district court. The parties have 2|| 14 days to file responses to any objections. Fed. R. Civ. P. 72(b)(2). The parties may not 3|| file replies absent permission from the district court. The failure to file timely objections may result in the waiver of de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 5 ]} 1121 (9th Cir. 2003) (en banc). 6 The Clerk of Court is directed to terminate the referral of this matter. Filed || objections should bear the following case number: CV-21-00431-TUC-RM. 8 Dated this 20th day of March, 2023. 9 . A gana United States Magistrate Judge [28] -14-