Richter v. Shinn

Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 1 of 75 1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Fernando Hernandez Richter, No. CV-20-00205-TUC-CKJ (EJM) 10 Petitioner, REPORT AND RECOMMENDATION 11 v. 12 David Shinn, et al. 13 Respondents. 14 Currently pending before the Court is Petitioner Fernando Hernandez Richter’s 15 Third Amended Petition for a Writ of Habeas Corpus (“Third Amended Petition”) (Doc. 16 50). Respondents have filed an Answer to Petition for Writ of Habeas Corpus (“Answer”) 17 (Doc. 55), and Petitioner has replied (Doc. 81). The Third Amended Petition (Doc. 50) is 18 ripe for adjudication. 19 Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, 1 this matter 20 was referred to Magistrate Judge Markovich for Report and Recommendation. The 21 Magistrate Judge recommends that the District Judge deny the Third Amended Petition 22 (Doc. 50). 23 ... 24 ... 25 ... 26 ... 27 ... — 28 — — 1 — Rules of Practice of the United States District Court for the District of Arizona. Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 2 of 75 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 A. Initial Charge, Trial, and Sentencing 3 The Arizona Court of Appeals stated the facts2 as follows: 4 [F]or a period of years, including three months in the home where they were ultimately found, Richter forced his three step-children to stay in their — 5 — rooms, only occasionally allowing them out, watching and primarily 6 communicating with them through the use of cameras. They did not attend school, and Richter limited their water consumption, bathroom use, and 7 contact with each other; rarely allowed them to bathe; denied them hygiene 8 products; and struck them with a stick, “belt and a metal spoon” or wire if they disobeyed him. On the night they were discovered, two of the children 9 had fled the house after Richter broke the door of their room while attempting 10 to enter and holding a knife. 11 State v. Richter, No. 2 CA-CR 2016-0112, 2017 WL 491137 , at *1 (Ariz. Ct. App. 2017). 12 On December 6, 2013, Petitioner was indicted on three (3) counts of kidnapping, 13 domestic violence; two (2) counts of aggravated assault with a deadly weapon/dangerous 14 instrument, domestic violence; one (1) count of aggravated assault on a peace officer; and 15 three (3) counts of child abuse, a person under eighteen years, non-death or serious physical 16 injury not likely, domestic violence. Answer (Doc. 55), Amended Indictment, State v. 17 Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Dec. 6, 2013) (Exh. “A”). On 18 August 24, 2013, the trial court severed Count Six, aggravated assault on a peace officer. 19 Answer (Doc. 55), State v. Richter, No. CR 20135144, Minute Entry at 57 (Pima Cnty. 20 Super. Ct. Aug. 24, 2015) (Exh. “N”).3 Following a jury trial on the eight (8) remaining 21 counts, Petitioner “was convicted of three counts of kidnapping, domestic violence 22 offenses and dangerous crimes against children; two counts of aggravated assault, domestic 23 violence offenses and dangerous crimes against children; and three counts of child abuse, — 24 — 25 2 As these state court findings are entitled to a presumption of correctness and Petitioner 26 has failed to show by clear and convincing evidence that the findings are erroneous, the Court hereby adopts these factual findings. 28 U.S.C. § 2254 (e)(1); Schriro v. Landrigan, 550 U.S. 465 , 27 473–74 (2007); Wainwright v. Witt, 469 U.S. 412, 426 (1985); Cf. Rose v. Lundy, 455 U.S. 509 , 28 519 (1982). — 3 — Page citations refer to the CM/ECF page numbers, unless otherwise noted. -2Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 3 of 75 1 domestic violence offenses.” Richter, 2017 WL 491137 , at *1; see also Answer (Doc. 55), 2 State v. Richter, No. CR20135144, Minute Entry (Pima Cnty. Super. Ct. Dec. 4, 2015) 3 (Exh. “KK”). Petitioner was sentenced to “slightly mitigated,” consecutive sentences with 4 imprisonment in the Arizona Department of Corrections of thirteen (13) years for the first 5 two (2) kidnapping, domestic violence convictions (Counts One and Two); a minimum, 6 consecutive, four (4) year term of imprisonment for the third kidnapping, domestic 7 violence conviction (Count Three); “slightly mitigated,” thirteen (13) year terms of 8 imprisonment on the aggravated assault, deadly weapon/dangerous instrument, domestic 9 violence convictions (Count Four and Count Five) to run consecutively with one another 10 and following the term imposed on Count Three; and “slightly mitigated,” two (2) year 11 terms of imprisonment on the child abuse, a person under eighteen years, non-death or 12 serious physical injury not likely, domestic violence convictions, to be run concurrently 13 with one another, but following the term imposed on Count Five. Answer (Doc. 55), State 14 v. Richter, No. CR20135144-001, Minute Entry, (Pima Cnty. Super. Ct. Mar. 10, 2016) 15 (Exh. “VV”). Accordingly, Petitioner’s sentence of imprisonment totaled fifty-eight (58) 16 years. 17 B. Direct Appeal 18 On March 11, 2016, Petitioner filed his Notice of Appeal. Answer (Doc. 55), Not. 19 of Appeal, State v. Richter, No. CR2013-5144-001 (Pima Cnty. Super. Ct. Mar. 11, 2016) 20 (Exh. “YY”). On September 19, 2015, counsel for Petitioner filed an Anders4 brief with 21 the Arizona Court of Appeals.5 See Third Amended Pet. (Doc. 50), Appellant’s Opening — 22 — — 4 — Anders v. California, 386 U.S. 738 (1967). — 23 — — 5 — The Arizona Court of Appeals has described the procedure of filing an Anders brief as 24 follows: 25 Under our procedure, when appointed counsel determines that a defendant's case discloses no arguable issues for appeal, counsel files an Anders brief. The brief 26 contains a detailed factual and procedural history of the case, with citations to the 27 record. See Scott, 187 Ariz. at 478 n.4, 930 P.2d at 555 n.4. Counsel submits the brief to the court and the defendant. The defendant is then given the opportunity to 28 file a brief pro per. After receiving all briefing, the court reviews the entire record for reversible error. If any arguable issue presents itself, the court directs appointed -3Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 4 of 75 1 Br. (Anders), State v. Richter, No. 2 CA-CR 2016-0112 (Ariz. Ct. App. Sept. 19, 2015) 2 (Doc. 50-4). Counsel averred that he “ha[d] searched the record on appeal and [wa]s unable 3 to find any arguable question of law that is not frivolous.” Id. at 38. Petitioner did not file 4 a supplemental brief. State v. Richter, No. 2 CA-CR 2016-0112, 2017 WL 491137 , at *1 5 (Ariz. Ct. App. Jan. 24, 2017). 6 On January 24, 2017, the Arizona Court of Appeals affirmed Petitioner’s 7 convictions and sentences. See id. The appellate court “searched the record for 8 fundamental, reversible error and . . . found none.” Id. at *1. The appellate court 9 determined that “the evidence was sufficient to support the jury’s finding of guilt” and 10 “conclude[d] the sentence imposed [wa]s within the statutory limit.” Id. Petitioner did not 11 file a Motion for Reconsideration or a Petition for Review with the Arizona Supreme Court. 12 See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2016-0112, Mandate (Ariz. Ct. App. 13 Apr. 12, 2017) (Exh. “BBB”) (Doc. 55-1). As such, on April 12, 2017, the Arizona Court 14 of Appeals issued its Mandate. Id. 15 C. Post-Conviction Relief Proceeding 16 1. PCR Petition 17 On May 8, 2017, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). 18 Answer (Doc. 55), Petr.’s Not. of PCR, State v. Richter, No. CR-20135144-001 (Pima 19 Cnty. Super. Ct. May 8, 2017) (Exh. “CCC”) (Doc. 55-1). On February 27, 2018, 20 Petitioner filed his Petition for Post-Conviction Relief, alleging three (3) grounds for relief. 21 See Answer (Doc. 55), Petr.’s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima 22 Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). First, Petitioner asserted that — 23 — counsel to brief the issue. Only after the court has ascertained that counsel has 24 conscientiously performed his or her duty to review the record, and has itself 25 reviewed the record for reversible error and found none, will the court allow counsel to withdraw. See State v. Shattuck, 140 Ariz. 582 , 584–85, 684 P.2d 154 , 26 156–57 (1984). We conclude that this procedure permits counsel to perform ethically, while simultaneously ensuring that an indigent defendant's constitutional 27 rights to due process, equal protection, and effective assistance of counsel are 28 protected. State v. Clark, 2 P.3d 89, 96 (Ariz. Ct. App. 1999). -4Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 5 of 75 1 he was denied his Sixth Amendment right to counsel, because trial counsel was ineffective 2 when he allegedly abandoned the presentation of a Guilty Except Insane (“GEI”) defense. — 3 — Id., Exh. “EEE” at 20–21. Petitioner claimed that defense counsel failed to “consult[] with 4 someone qualified to do a neuropsychological examination,” or “seek a further 5 examination[,] to advocate for or advance a Guilty Except Insane defense[,] . . . [or] 6 challenge[] Judge Bernini’s order forbidding a Guilty Except Insane defense[.]” Id., Exh. 7 “EEE” at 16–17. Next, Petitioner asserted that he was deprived of his right to effective 8 assistance of appellate counsel. Id., Exh. “EEE” at 21–22. Petitioner urged that appellate 9 counsel did not adequately review the record prior to filing an Anders brief, depriving 10 Petitioner of an adequate appeal. Id., Exh. “EEE” at 17–19, 21–22. Finally, Petitioner 11 asserted that the trial court denied him his Sixth Amendment right to counsel when it denied 12 his request for new counsel, did not allow time for counsel to confer privately with him, 13 and conducted an inadequate Torres6 hearing. Answer (Doc. 55), Petr.’s Pet. for PCR at 14 8–13, 22, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) 15 (Exh. “EEE”) (Doc. 55-2). 16 2. Rule 32 Court Order 17 On July 31, 2018, the Rule 32 court issued its order denying Petitioner’s Petition for 18 Post-Conviction relief. See Third Amended Pet. (Doc. 50), State v. Richter, No. 19 CR20135144-001, Ruling—In Chambers Ruling Re: Denial of PCR (Pima Cnty. Super. 20 Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The Rule 32 court first considered its denial 21 of Defendant’s request for new counsel and the adequacy of the Torres hearing. Id., Exh. 22 “14” at 42–44. The court observed that “‘[t]he Sixth Amendment guarantees criminal 23 defendants the right to representation by counsel[;]’ . . . [h]owever, an indigent defendant 24 is not ‘entitled to counsel of choice or to a meaningful relationship with his or her 25 attorney.’” Id., Exh. “14” at 42 (citing State v. Torres, 93 P.3d 1056, 1058 (Ariz. 2004) 26 (en banc); then citing State v. Moody, 968 P.2d 578, 580 (Ariz. 1998)). The Rule 32 court 27 went on to outline the factors to be considered when addressing a request to change counsel, — 28 — — 6 — State v. Torres, 93 P.3d 1056 (Ariz. 2004) (en banc). -5Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 6 of 75 1 including 1) the existence of an irreconcilable conflict; 2) whether new counsel would be 2 confronted by the same conflict; 3) timing of the motion; 4) inconvenience to witnesses; 3 5) amount of time elapsed since the alleged offense; 6) defendant’s proclivity to change 4 counsel; and 7) quality of counsel. Id., Exh. “14” at 42–43 (quoting Moody, 968 P.2d at 5 580 (citations omitted)). The court further observed that “in most cases, the ‘quality of 6 counsel’ factor will not be a consideration when a defendant seeks a substitution of 7 counsel.” Id., Exh. “14” at 43 (citing Torres, 93 P.3d at 1060 ). The Rule 32 court noted 8 that upon receipt of two ex parte letters requesting a change of counsel, it held a Torres 9 hearing at the earliest opportunity, which was eight (8) weeks before trial and twenty-one 10 (21) months after indictment. Third Amended Pet. (Doc. 50), State v. Richter, No. 11 CR20135144-001, Ruling—In Chambers Ruling Re: Denial of PCR at 43 (Pima Cnty. 12 Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The court reviewed the Torres hearing 13 record, including Defendant’s and counsel’s respective positions. Id. The court also 14 reviewed Defendant’s claims to Bradley Johnson, M.D. regarding the number of meetings 15 with counsel, found those statements to be inaccurate, and observed that prior to 16 Defendant’s letters to the court, “trial counsel visited with Defendant a minimum of 12 17 times, most for ‘unknown duration(s).’” Id., Exh.”14” at 44. The Rule 32 court concluded 18 that Defendant had failed to meet his burden to show either a complete breakdown in 19 communication or an irreconcilable conflict. Id., Exh. “14” at 43–44. 20 Next, the Rule 32 court considered Defendant’s ineffective assistance of counsel 21 claims. Id., Exh. “14” at 45–48. The court outlined the Strickland7 test which requires 22 Defendant to prove counsel’s performance was deficient and caused prejudice. Third 23 Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling—In Chambers 24 Ruling Re: Denial of PCR at 45 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 25 50-4). The Rule 32 court went on to evaluate Defendant’s allegation of trial counsel’s 26 ineffectiveness “based on ‘counsel’s abandonment of presenting a Guilty Except Insane 27 (‘GEI’) defense.’” Id. The court delineated the following timeline of counsel’s work — 28 — — 7 — Strickland v. Washington, 466 U.S. 668 (1984). -6Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 7 of 75 1 regarding Defendant’s competency: 2 ➢ February 28, 2014 – Motion for Mental Condition Evaluation and 3 Stay of Proceedings. 4 • April 15, 2014 - Rule 11 Evaluation Report – Michael P. 5 Christiansen, Ph.D. - Ex 18A, p. 9 6 ❖ “Competent” 7 • May 12, 2014 – Rule 11 Evaluation Report – Bradley R. Johnson, 8 M.D. - Ex 19, p. 7 9 ❖ “Not Currently Competent, likely able to be able to [sic] brought to competence within a short period of time.” — 10 — 11 ➢ September 8, 2014 – Requested a GEI Evaluation. See Minute Entry 12 dated September 8, 2014. 13 • October 28, 2014 – GEI Evaluation Report – Michael P. 14 Christiansen, Ph. D. - Ex 18B, p. 9 15 ❖ “Not afflicted with mental disease or defect of such severity that he did not know the criminal act was wrong at the time of — 16 — the offense.” — 17 — 18 ➢ September 25, 2014 – Retained Paul Simpson to Conduct 19 Psychological Evaluation. See Appendix B, Exhibit 21, Psychological 20 Evaluation. 21 • July 8, 2015 – Psychological Evaluation – Paul Simpson, Ed.D. – 22 Ex 21, p. 144 23 ❖ “[B]ased on information obtained from available records and self-reporting regarding Defendant’s mental health history — 24 — and considered to have been possible present in a mild to 25 moderate degree at or around the time of the offenses as described below. — 26 — 27 • 295.90 Schizophrenia, with Delusion, multiple episodes, currently in partial remission; — 28 — -7Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 8 of 75 1 • 317.0 Intellectual Developmental Disorder, Mild; 2 • 309.81 Posttraumatic Stress Disorder, by history and selfreport; — 3 — 4 • Rule in / out 331.83 Major or Mild Neurocognitive Disorder Due to Traumatic Brain Injury.” — 5 — — 6 — Id., Exh. “14” at 46–47 (alterations in original) (punctuation in original). The Rule 32 court 7 observed that following defense counsel’s request for a mental competency examination, 8 the proceedings were stayed; two (2) evaluations occurred, with Dr. Christiansen finding 9 Defendant competent and suggesting possible malingering, and Dr. Johnson opining that 10 Defendant was not currently competent but likely restorable; and Defendant was 11 subsequently restored. Id., Exh. “14” at 45–47. The Rule 32 court further noted that 12 defense counsel sought a GEI evaluation, which was also performed by Dr. Christiansen. — 13 — Id. The Rule 32 court also noted that “Dr. Christiansen concluded, ‘In [his] professional 14 opinion, data indicates at the time of the commission of the criminal act, the defendant was 15 not afflicted with a mental disease or defect of such severity that he did not know the 16 criminal act was wrong.’” Third Amended Pet. (Doc. 50), State v. Richter, No. 17 CR20135144-001, Ruling—In Chambers Ruling Re: Denial of PCR at 46 (Pima Cnty. 18 Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The Rule 32 court indicated that “[t]he 19 trial judge accepted these findings and ruled Defendant ineligible for the GEI defense.” Id. 20 (citations omitted). The Rule 32 court found defense counsel’s decisions not to seek 21 reconsideration of the trial court’s decision or otherwise pursue a second GEI evaluation 22 were not unreasonable. Id., Exh. “14” at 46. The Rule 32 court concluded that Defendant 23 had failed to meet his burden to show defense counsel fell below prevailing norms or had 24 been otherwise ineffective. Id., Exh. “14” at 47. 25 Finally, regarding appellate counsel’s alleged ineffectiveness, the Rule 32 court 26 reiterated the Strickland standard. Id. The court also stated the requirements of appellate 27 counsel as required by Anders, including filing “a brief referring to anything in the record 28 that might arguably support the appeal.” Third Amended Pet. (Doc. 50), State v. Richter, -8Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 9 of 75 1 No. CR20135144-001, Ruling—In Chambers Ruling Re: Denial of PCR at 48 (Pima Cnty. 2 Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4) (citing Anders v. California, 386 U.S. 3 738, 744 (1967)). The Rule 32 court observed that appellate counsel’s Anders brief 4 included an eighteen (18) page “Statement of Relevant Facts” with specific citations to 5 Defendant’s fifteen (15) day trial transcript. Id. Additionally, the court noted that defense 6 counsel sought leave for “Defendant to submit a supplemental brief in propria persona[,] 7 [which] Defendant then failed to do[.]” Id. The Rule 32 court found “Defendant’s 8 conclusory claims [to be] inadequate as he fail[ed] to cite to any specific error(s) in either 9 fact[] or law[,] . . . [and] fail[ed] to support [his] claims by affidavit or otherwise.” Id. The 10 Rule 32 court also found that “Defendant fail[ed] to show prejudice[.]” Id. The Rule 32 11 court concluded that appellate counsel “did not fall below an objective standard of 12 reasonableness as defined by prevailing professional standards[.]” Third Amended Pet. 13 (Doc. 50), State v. Richter, No. CR20135144-001, Ruling—In Chambers Ruling Re: 14 Denial of PCR at 48 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). 15 As such, the Rule 32 court denied Defendant’s Petition for PCR. Id., Exh. “14” at 16 49. 17 3. PCR Appeal 18 Petitioner sought review of the Rule 32 court’s order. See Answer (Doc. 55), State 19 v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz. Ct. App. Apr. 8, 2019) (Exh. 20 “GGG”) (Doc. 55-2). On April 8, 2019, the Arizona Court of Appeals issued its 21 memorandum decision granting review, but denying relief. See id. The appellate court 22 stated the standard of review, indicating that it would “not disturb a trial court’s ruling on 23 a petition for post-conviction relief absent a clear abuse of discretion[,]” and found “Richter 24 ha[d] not sustained his burden of establishing such abuse[.]” Id., Exh. “GGG” at 33. The 25 appellate court observed that “[t]he trial court summarily denied relief in a through, well26 reasoned minute entry.” Id. The court noted that “[o]n review, Richter essentially 27 repeat[ed] his claims and argue[d] the trial court abused its discretion in denying his 28 petition for post-conviction relief.” Id. The appellate court found that “[t]he [Rule 32] -9Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 10 of 75 1 court clearly identified the claims raised and resolved them correctly in its minute entry, 2 which we adopt.” Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. 3 Decision at 33 (Ariz. Ct. App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2) (citing State v. 4 Whipple, 866 P.2d 1358, 1360 (Ariz. Ct. App. 1993)). The appellate court also “reject[ed] 5 Richter’s assertion on review that the court abused its discretion by denying his claim of 6 ineffective assistance of trial counsel ‘[w]ithout factual analysis.’” Id. at 34 (second 7 alteration in original). The appellate court held that “the [Rule 32] court properly 8 determined [Richter] had not established prejudice.” Id. The appellate court further held 9 that “[a]lthough Richter contends he was prejudiced by counsel’s failure to seek a 10 neuropsychological evaluation after the court rejected a guilty-except-insane defense the 11 first time, he has not presented any evidence that such an exam would have resulted in 12 evidence different from that before the court in the first instance.” Id. Finally, the appellate 13 court “note[d] that Richter’s claim that his right to counsel was violated by the trial court’s 14 denial of his request for new counsel was precluded by his failure to raise it on appeal.” 15 Id. (citing Ariz. R. Crim. P. 32.1, 32.2(a)(3)). The appellate court went on to adopt the 16 Rule 32 court’s “ruling insofar as it pertains to Richter’s claim that appellate counsel was 17 ineffective in failing to raise the claim on appeal, which [it] properly rejected.” Answer 18 (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision at 34 (Ariz. Ct. 19 App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2). 20 4. PCR Petition for Review 21 On August 30, 2018, Petitioner sought review by the Arizona Supreme Court of his 22 PCR petition. See Answer (Doc. 55), Petr.’s Pet. for Review from Denial of Rule 32 Pet. 23 for PCR, State v. Richter, No. 2 CA CR 2018-0252-PR (Ariz. Sept. 30, 2018) (Exh. 24 “HHH”) (Doc. 55-2). Petitioner’s sole issue for review was “whether the trial court erred 25 in summarily denying Petitioner’s Petition for Post-Conviction Relief without granting an 26 evidentiary hearing.” Id., Exh. “HHH” at 39. In arguing that the trial court’s summary 27 denial was improper, Petitioner realleged that 1) trial counsel was ineffective for allegedly 28 “abandoning” a Guilty Except Insane defense and failing to object to the Torres hearing, - 10 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 11 of 75 1 thereby prejudicing Petitioner; 2) appellate counsel was ineffective for allegedly failing to 2 argue that Petitioner had been denied his Sixth Amendment right to counsel due to the 3 allegedly inadequate Torres hearing; and 3) the Torres hearing was inadequate. Id., Exh. 4 “HHH” at 46–55. On September 23, 2019, the Arizona State Supreme Court denied 5 Petitioner’s Petition for Review. Answer (Doc. 55), State v. Richter, No. CR-19-0157-PR, 6 Memorandum (Ariz. Sept. 23, 2019) (Exh. “III”) (Doc. 55-2). 7 Accordingly, on December 2, 2019, the Arizona Court of Appeals issued its 8 Mandate. See State v. Richter, No. 2 CA-CR 2018-0252-PR, Mandate (Ariz. Ct. App. Dec. 9 2, 2019) (Exh. “JJJ”) (Doc. 55-2). 10 D. The Instant Habeas Proceeding 11 On May 13, 2020, Petitioner filed his Petition for a Writ of Habeas Corpus and 12 Application for Appointment of Counsel (Doc. 1). On May 21, 2020, the Honorable Cindy 13 K. Jorgenson granted Petitioner in forma pauperis status and appointed counsel. Order 14 5/21/2020 (Doc. 7). On June 15, 2020, she directed service of the Petition. Order 15 6/15/2020 (Doc. 10). Petitioner filed an unauthorized Amended Petition for Writ of Habeas 16 Corpus (Doc. 16), and subsequently showed adequate cause to support the filing. See Order 17 7/20/2020 (Doc. 19). On August 26, 2020, Petitioner a Second Amended Petition for Writ 18 of Habeas Corpus (Doc. 22).8 On September 28, 2021, undersigned held a status 19 conference and directed Petitioner to file his Third Amended Petition on or before 20 December 15, 2021. Order 10/1/2021 (Doc. 45). Ultimately, Petitioner filed his Third 21 Amended Petition for Writ of Habeas Corpus (Doc. 50) that is now pending before the 22 Court. 23 Petitioner raises nine (9) claims for relief, some with subparts. See Third Amended 24 Petition (Doc. 50). First, Petitioner asserts that he was denied his Sixth Amendment right 25 to the effective assistance of counsel.9 See id. at 26–55. In Ground A1, Petitioner alleges — 26 — 27 This document is only titled “Amended Petition for Writ of Habeas Corpus”; however, — 8 — 28 review of the docket in CM/ECF indicates that it was Petitioner’s Second Amended Petition. — 9 — This is referred to as Ground or Claim “A,” with a subpart designation where appropriate. - 11 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 12 of 75 1 that trial counsel “fail[ed] to adequately investigate and pursue a GEI defense after the trial 2 court disallowed it based solely on the evaluation of its own expert, Dr. Christiansen.” Id. 3 at 29. In Ground A2, Petitioner alleges that “[t]rial counsel fell below the standard of care 4 by failing to raise Mr. Richter’s incompetence to stand trial.” Id. at 39. Petitioner notes 5 that “[t]rial counsel was aware that Mr. Richter is severely mentally ill and, appropriately, 6 raised his incompetence to stand trial at the onset of proceedings.” Id. Petitioner 7 acknowledges that after an initial finding of incompetence, he was subsequently restored, 8 but urges that he subsequently began to decompensate and trial counsel should have 9 intervened. Third Amended Petition (Doc. 50) at 39; see also Reply (Doc. 81) at 36. In 10 Ground A3, Petitioner asserts that trial counsel provided ineffective assistance when he 11 allegedly “failed to request non-conflicted counsel to represent Mr. Richter at [the] 12 hearing” conducted by the trial court to address Petitioner’s request for new counsel, or 13 otherwise failed to move to withdraw. Third Amended Petition (Doc. 50) at 46. In Ground 14 A4, Petitioner alleges that “[t]rial counsel . . . failed to object to an unqualified expert 15 opining about prejudicial evidence which was beyond his area of expertise[,] . . . [thereby] 16 violat[ing] Mr. Richter’s rights to the due process and effective assistance of counsel.” Id. 17 at 52 (citations omitted). 18 Next, Petitioner asserts ineffective assistance of counsel at sentencing.10 Id. at 56– 19 65. In Ground B1, Petitioner alleges that counsel’s performance was deficient because he 20 called one witness, and his “presentation on behalf of Mr. Richter—both the testimony of 21 Bob Richter and Skitzki’s recommendation argument—lasted a mere ten transcript pages.” 22 Id. at 49–50 (citations omitted). In Ground B2, Petitioner alleges that “[t]rial counsel 23 should have known that Mr. Richter was intellectually disabled.” Id. at 63. Petitioner 24 acknowledges that counsel’s “one sentencing witness, Bob Richter, testified briefly 25 regarding Mr. Richter’s low IQ, difficulty in school, how he can barely read or write with 26 any understanding, and that he was on ‘mental disability’ during the time period of the 27 offense and the co-defendant was in charge of the government funds to support Mr. — 28 — — 10 — This is referred to as Ground or Claim “B,” with a subpart designation where appropriate. - 12 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 13 of 75 1 Richter”; however, Petitioner asserts that because counsel “inaccurately stated that Mr. 2 Richter was ‘borderline IQ,’ minimizing his client’s impairments” and “conducted no 3 investigation into Mr. Richter’s adaptive deficits or intellectual disability prior to 4 sentencing and presented no live intellectual disability expert witness to the trial court[,]” 5 his assistance was ineffective. Third Amended Petition (Doc. 50) at 64. 6 Third, Petitioner asserts that he was denied effective assistance of appellate 7 counsel.11 Id. at 65–81. In Ground C1, Petitioner argues that “[t]he Anders brief filed by 8 Hopkins was profoundly deficient[,] [and] [i]t failed to raise any claim for relief, despite 9 the existence of at least a half dozen non-frivolous claims.” Id. at 67 (emphasis in original). 10 Petitioner opines that appellate counsel should have raised claims related to 1) “the trial 11 court’s preclusion of the GEI defense”; 2) Petitioner’s request for and the trial court’s 12 denial of a change of counsel prior to trial; 3) the trial court’s denial of defense counsel’s 13 motion for a directed verdict and sufficiency of the evidence; 4) the trial court’s denial of 14 defense counsel’s motion to sever trial; 5) the trial court’s denial of defense counsel’s 15 motion for a mistrial based on the State’s expert witness psychiatrist’s vouching regarding 16 the victim’s credibility; and 6) the admission of the State’s expert witness psychiatrist’s 17 testimony during which he reviewed photographs of the victims and identified scars and 18 opined about their relative age and the type of implement that may have caused them. See 19 id. at 68–77. In Ground C2, Petitioner asserts that “the Anders brief filed by Hopkins 20 contained numerous errors and omissions and failed to present the strongest arguments in 21 favor of Mr. Richter.” Id. at 77–78 (quotations and citations omitted). Petitioner further 22 asserts that in light of the “myriad errors [sic] and omissions, the state court[’s] 23 conclu[sion] that appellate counsel fulfilled his obligations to the Defendant under 24 Anders[,] . . . [wa]s contrary to what the Supreme Court has clearly established are appellate 25 counsel’s duties under Strickland, Evitts, and Anders[,] . . . [and] constitute[d] an 26 unreasonable determination of the facts.” Third Amended Petition (Doc. 50) at 79–80 27 (quotations and citations omitted). — 28 — — 11 — This is referred to as Ground or Claim “C,” with a subpart designation where appropriate. - 13 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 14 of 75 1 Fourth, Petitioner asserts that he “was prohibited from raising an affirmative GEI 2 defense.” Id. at 81 (citations omitted). In Ground D, Petitioner further asserts that “the 3 trial court’s refusal to permit Mr. Richter to plead GEI implicated both his due process and 4 confrontation rights.” Id. at 84. Petitioner argues that “[h]is jury was never able to hear 5 the overwhelming evidence of his serious mental illnesses[,] . . . [and] [he] was unable to 6 effectively cross-examine his wife/co-defendant[.]” Id. (citations omitted). 7 In Ground E, Petitioner alleges that his due process rights were violated because he 8 “was deprived of his right to be competent at his trial.” Id. at 86. Next, in Ground F, 9 Petitioner alleges that he was deprived of his right to counsel when the trial court denied 10 his motion for new counsel prior to trial. Third Amended Petition (Doc. 50) at 86–89. 11 Petitioner urges that the state courts’ determinations that he had not met his burden to prove 12 an irreconcilable difference with trial counsel, and was therefore not entitled to new 13 counsel, were contrary to and an unreasonable application of Supreme Court precedent and 14 “based on an unreasonable determination of the facts.” Id. at 88–89. 15 In Ground G, Petitioner alleges that “[t]he trial court violated [his] federal due 16 process and fair trial rights when it repeatedly denied Mr. Richter’s requests to sever his 17 trial from Sophia’s[.]” Id. at 89. Petitioner opines that his “conviction and sentence are 18 unconstitutional in light of the denial of his request for severance.” Id. at 90. In Ground 19 H, Petitioner asserts that “[t]he trial court violated [his] federal due process rights when it 20 permitted the prosecution to introduce victim mental health evidence that did not prove an 21 element of the offence, vouch for the credibility of their key witnesses, and introduce 22 unqualified expert testimony, relieving the prosecution of its burden of proof beyond a 23 reasonable doubt.” Id. at 91 (citations omitted). In Ground H1, Petitioner asserts that the 24 State’s expert witness psychiatrist “testified that the victims’ suffered from PTSD[12] and 25 other mental health issues due to Mr. Richter’s acts.” Third Amended Petition (Doc. 50) 26 at 92. Petitioner opines that this testimony was improper because it “was not required to 27 prove any element of the charges, but used to capitalize on the jury’s sympathy for the — 28 — — 12 — Post-traumatic stress disorder. - 14 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 15 of 75 1 already sympathetic victims.” Id. In Ground H2, Petitioner asserts that the State’s 2 psychiatrist “improperly vouched for the truthfulness of the victims[.]” Id. In Ground H3, 3 Petitioner urges a due process violation because the State’s psychiatrist was allegedly 4 “allowed . . . to testify beyond the scope of his expertise.” Id. 5 Finally, Petitioner asserts that after a 2017 prison assault he is “unable to form a 6 rational understanding of what he was convicted of and why he is in prison.” 13 Id. at 93. 7 Petitioner further asserts that his continued incarceration under these circumstance violates 8 the Eighth Amendment. Third Amended Petition (Doc. 50) at 93–116. Petitioner bases 9 Ground I on two (2) primary arguments: 1) “incarcerating a defendant who is unable to 10 form a rational understanding of why he is being punished constitutes cruel and unusual 11 punishment”; and 2) “because of his profound cognitive impairments, continuing to 12 incarcerate Mr. Richter serves no legitimate penological purpose, rendering that 13 punishment disproportionate under the Eighth Amendment.” Id. at 106–107. 14 On July 5, 2022, Respondents filed their Answer to Petition for Writ of Habeas 15 Corpus (Doc. 55) and Petitioner replied (Doc. 81). — 16 — 17 II. STATUTE OF LIMITATIONS 18 As a threshold matter, the Court must consider whether Petitioner’s petition is 19 barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920 , 921–22 (9th Cir. 20 2002). The AEDPA mandates that a one-year statute of limitations applies to applications 21 for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244 (d)(1). Section 22 2244(d)(1) provides that the limitations period shall run from the latest of: 23 (A) the date on which the judgment became final by the conclusion of 24 direct review or the expiration of the time for seeking such review; 25 (B) the date on which the impediment to filing an application created by the State action in violation of the Constitution or laws of the United States 26 is removed, if the applicant was prevented from filing by such State action; — 27 — — 28 — — 13 — This is referred to as Ground or Claim “I.” - 15 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 16 of 75 1 (C) the date on which the constitutional right asserted was initially 2 recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral 3 review; or 4 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. — 5 — — 6 — 28 U.S.C. § 2244 (d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time 7 during which a properly filed application for State post-conviction or other collateral 8 review with respect to the pertinent judgment or claim is pending shall not be counted 9 toward any period of limitation under this subsection.” 28 U.S.C. § 2244 (d)(2). 10 Respondents do not dispute the timeliness of Richter’s original petition, and the Court has 11 independently reviewed the records and finds that his original petition (Doc. 1) is timely 12 pursuant to 28 U.S.C. § 2244 (d)(1)(A). Respondents do dispute the timeliness of Ground 13 I in Richter’s Third Amended Petition (Doc. 50), because it fails to relate back to the 14 original petition. Answer (Doc. 55) at 113–18. The Court finds that Richter’s Third 15 Amended Petition (Doc. 50) is timely to the extent that it relates back to the original 16 petition, but will address the timeliness of Ground I in Section IV.C., infra. — 17 — 18 III. STANDARD OF REVIEW 19 A. In General 20 The federal courts shall “entertain an application for a writ of habeas corpus in 21 behalf of a person in custody pursuant to the judgment of a State court only on the ground 22 that he is in custody in violation of the Constitution or laws of treaties of the United States.” — 23 — 28 U.S.C. § 2254 (a) (emphasis added). Moreover, a petition for habeas corpus by a person 24 in state custody: 25 shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – (1) 26 resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme — 27 — Court of the United States; or (2) resulted in a decision that was based on an — 28 — - 16 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 17 of 75 1 unreasonable determination of the facts in light of the evidence presented in 2 the State court proceeding. — 3 — 28 U.S.C. § 2254 (d); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Correcting 4 errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, — 5 — 502 U.S. 62, 67 (1991). Ultimately, “[t]he statute’s design is to ‘further the principles of 6 comity, finality, and federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945 (2007) 7 (quoting Miller-El v. Cockrell, 537 U.S. 322, 337 (2003)). Furthermore, this standard is 8 difficult to meet and highly deferential “for evaluating state-court rulings, [and] . . . 9 demands that state-court decisions be given the benefit of the doubt.” Pinholster, 563 U.S. 10 at 181 (citations and internal quotation marks omitted). 11 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 12 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254 . The 13 “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims 14 have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). Federal 15 courts reviewing a petition for habeas corpus must “presume the correctness of state courts’ 16 factual findings unless applicants rebut this presumption with ‘clear and convincing 17 evidence.’” Schriro v. Landrigan, 550 U.S. 465 , 473–74 (2007) (citing 28 U.S.C. § 18 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the 19 state court’s determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473 ; 20 Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is 21 unreasonable where a state court properly identifies the governing legal principles 22 delineated by the Supreme Court, but when the court applies the principles to the facts 23 before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86 , (2011); 24 Williams v. Taylor, 529 U.S. 362 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th 25 Cir. 2004). “AEDPA requires ‘a state prisoner [to] show that the state court’s ruling on the 26 claim being presented in federal court was so lacking in justification that there was an error 27 . . . beyond any possibility for fairminded disagreement.’” Burt, 134 S. Ct. at 10 (quoting 28 Harrington, 562 U.S. at 103) (alterations in original). - 17 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 18 of 75 1 B. Exhaustion of State Remedies 2 Prior to application for a writ of habeas corpus, a person in state custody must 3 exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254 (b)(1)(A). This 4 “provides a simple and clear instruction to potential litigants: before you bring any claims 5 to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, — 6 — 455 U.S. 509, 520 (1982). As such, the exhaustion doctrine gives the State “the opportunity 7 to pass upon and correct alleged violations of its prisoners’ federal rights.” Baldwin v. 8 Reese, 541 U.S. 27, 29 (2004) (internal quotations omitted). Moreover, “[t]he exhaustion 9 doctrine is principally designed to protect the state courts’ role in the enforcement of federal 10 law and prevent disruption of state judicial proceedings.” Rose, 455 U.S. at 518 (internal 11 citations omitted). This upholds the doctrine of comity which “teaches that one court 12 should defer action on causes properly within its jurisdiction until the courts of another 13 sovereignty with concurrent powers, and already cognizant of the litigation, have had an 14 opportunity to pass upon the matter.” Id. (quoting Darr v. Burford, 339 U.S. 200 , 204 15 (1950)). 16 Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long 17 as the applicant “has the right under the law of the State to raise, by any available 18 procedure, the question presented.” 28 U.S.C. § 2254 (c). “[O]nce the federal claim has 19 been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard 20 v. Connor, 404 U.S. 270, 275 (1971). The fair presentation requirement mandates that a 21 state prisoner must alert the state court “to the presence of a federal claim” in his petition, 22 simply labeling a claim “federal” or expecting the state court to read beyond the four 23 corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27 , 31–33 (2004) 24 (rejecting petitioner’s assertion that his claim had been “fairly presented” because his brief 25 in the state appeals court did not indicate that “he was complaining about a violation of 26 federal law” and finding the justices’ opportunity to read a lower court decision addressing 27 the federal claims insufficient to support fair presentation); Hiivala v. Wood, 195 F.3d 1098 28 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state - 18 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 19 of 75 1 court because petitioner presented claim in state court only on state grounds). Furthermore, 2 in order to “fairly present” one’s claims, the prisoner must do so “in each appropriate state 3 court.” Baldwin, 541 U.S. at 29 . “Generally, a petitioner satisfies the exhaustion 4 requirement if he properly pursues a claim (1) throughout the entire direct appellate process 5 of the state, or (2) throughout one entire judicial postconviction process available in the 6 state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, 7 Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 1998)). 8 In Arizona, however, for non-capital cases “review need not be sought before the 9 Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 10 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 11 2007); Moreno v. Gonzalez, 962 P.2d 205 (Ariz. 1998). Additionally, the Supreme Court 12 has further interpreted § 2254(c) to recognize that once the state courts have ruled upon a 13 claim, it is not necessary for an applicant to seek collateral relief for the same issues already 14 decided upon direct review. Castille v. Peoples, 489 U.S. 346, 350 (1989). 15 C. Procedural Default 16 1. In General 17 “A habeas petitioner who has defaulted his federal claims in state court meets the 18 technical requirements for exhaustion; there are no state remedies any longer ‘available’ to 19 him.” Coleman v. Thompson, 501 U.S. 722, 732 (1991). The Ninth Circuit Court of 20 Appeals explained the difference between exhaustion and procedural default as follows: 21 The exhaustion doctrine applies when the state court has never been 22 presented with an opportunity to consider a petitioner’s claims and that opportunity may still be available to the petitioner under state law. In 23 contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but — 24 — declined to reach the issue for procedural reasons, or if it is clear that the state 25 court would hold the claim procedurally barred. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and citations 26 omitted). Thus, in some circumstances, a petitioner’s failure to exhaust a 27 federal claim in state court may cause a procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, 303 F.3d 975 , 28 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner - 19 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 20 of 75 1 failed to exhaust state remedies and the court to which the petitioner would 2 be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.’”) (quoting Coleman v. 3 Thompson, 501 U.S. 722 , 735 n. 1, 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991)). 4 Cassett v. Stewart, 406 F.3d 614 , 621 n.5 (9th Cir. 2005). “Together, exhaustion and 5 procedural default promote federal-state comity.” Shinn v. Ramirez, 142 S. Ct. 1718 , 1732 6 (2022). 7 Thus, a prisoner’s habeas petition may be precluded from federal review due to 8 procedural default in two ways. First, where a “petitioner failed to exhaust state remedies 9 and the court to which the petitioner would be required to present his claims in order to 10 meet the exhaustion requirement would now find the claims procedurally barred.” 11 Coleman, 501 U.S. at 735 n.1 (citations omitted). In this circumstance, the federal court 12 “must consider whether the claim could be pursued by any presently available state 13 remedy.” Cassett, 406 F.3d at 621 n.6 (quotations and citations omitted) (emphasis in 14 original). Second, where the petitioner presented his claims to the state court, which denied 15 relief based “on a state law ground that is independent of the federal question and adequate 16 to support the judgment.” Coleman, 501 U.S. at 728 . Federal courts are prohibited from 17 review in such cases because they have “no power to review a state law determination that 18 is sufficient to support the judgment, [because] resolution of any independent federal 19 ground for the decision could not affect the judgment and would therefore be advisory.” — 20 — Id. This is true whether the state law basis is substantive or procedural. Id. (citations 21 omitted). 22 In Arizona, a petitioner’s claim may be procedurally defaulted where he has waived 23 his right to present his claim to the state court “at trial or on appeal or in any previous 24 collateral proceeding[.]” Ariz. R. Crim. P. 32.2(a)(3) (2022). If an asserted claim “raises 25 a violation of a constitutional right that can only be waived knowingly, voluntarily and 26 personally by the defendant[,]” such claim is not automatically precluded. Id. Neither 27 Rule 32.2. nor the Arizona Supreme Court has defined claims of “sufficient constitutional 28 magnitude” requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, - 20 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 21 of 75 — 1 — 46 P.3d 1067 (Ariz. 2002). The Ninth Circuit Court of Appeals recognized that this 2 assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are better 3 suited to make these determinations.” Cassett, 406 F.3d at 622 . 4 2. Overcoming a Procedural Bar 5 Where a habeas petitioner’s claims have been procedurally defaulted, a petitioner 6 must show cause and actual prejudice to overcome the bar on federal review. Teague v. 7 Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate 8 proceeding barred federal habeas review unless petitioner demonstrated cause and 9 prejudice); see also Smith v. Murray, 477 U.S. 527, 534 (1986) (recognizing “that a federal 10 habeas court must evaluate appellate defaults under the same standards that apply when a 11 defendant fails to preserve a claim at trial.”). “[T]he existence of cause for a procedural 12 default must ordinarily turn on whether the prisoner can show that some objective factor 13 external to the defense impeded counsel’s efforts to comply with the State’s procedural 14 rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Martinez-Villareal v. Lewis, — 15 — 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally 16 defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on 17 which to address the merits of his claims.”). Actual prejudice requires a habeas petitioner 18 to “show not merely that the errors . . . created a possibility of prejudice, but that they 19 worked to his actual and substantial disadvantage, infecting his entire trial with error of 20 constitutional dimensions.” Murray, 477 U.S. at 494 (emphasis in original) (internal 21 quotations omitted). Without a showing of both cause and prejudice, a habeas petitioner 22 cannot overcome the procedural default and gain review by the federal courts. Id. at 494– 23 96. 24 The Supreme Court has recognized, however, that “the cause and prejudice standard 25 will be met in those cases where review of a state prisoner’s claim is necessary to correct 26 ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722 (1991) 27 (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)). “The fundamental miscarriage of 28 justice exception is available ‘only where the prisoner supplements his constitutional claim - 21 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 22 of 75 1 with a colorable showing of factual innocence.’” Herrera v. Collins, 506 U.S. 390 , 404 2 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). 3 Thus, “‘actual innocence’ is not itself a constitutional claim, but instead a gateway through 4 which a habeas petitioner must pass to have his otherwise barred constitutional claim 5 considered on the merits.” Herrera, 506 U.S. at 404 . Further, to demonstrate a 6 fundamental miscarriage of justice, a habeas petitioner must “establish by clear and 7 convincing evidence that but for the constitutional error, no reasonable factfinder would 8 have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254 (e)(2)(B). 9 D. Evidentiary Development 10 “[R]eview under § 2254(d)(1) is limited to the record that was before the state court 11 that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 12 Similarly, § 2254(d)(2) contemplates whether the state court decision “was based on an 13 unreasonable determination of the facts in light of the evidence presented in the State court 14 proceeding.” 28 U.S.C. § 2254 (d)(2). “[W]hen the state-court record ‘precludes habeas 15 relief’ under the limitations of § 2254(d), a district court is ‘not required to hold an 16 evidentiary hearing.’” Pinholster, 563 U.S. at 183 (quoting Schriro v. Landrigan, 550 U.S. 17 465, 474 (2007) (citing with approval the Ninth Circuit's recognition that “an evidentiary 18 hearing is not required on issues that can be resolved by reference to the state court record” 19 (internal quotation marks omitted)). 20 Section 2254(e)(2) provides the standard for evidentiary hearings to develop the 21 factual record in the federal court. It provides: 22 If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on — 23 — the claim unless the applicant shows that – 24 (A) the claim relies on – 25 (i) a new rule of constitutional law, made retroactive to cases 26 on collateral review by the Supreme Court, that was previously unavailable, or — 27 — (ii) a factual predicate that could not have been previously 28 discovered through the exercise of due diligence; and - 22 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 23 of 75 1 (B) the facts underlying the claim would be sufficient to establish by 2 clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the 3 underlying offense. — 4 — 28 U.S.C. § 2254 (e)(2) (emphasis added). “[U]nder § 2254(e)(2), a federal habeas court 5 may not conduct an evidentiary hearing or otherwise consider evidence beyond the state6 court record based on ineffective assistance of postconviction counsel.” Shinn v. Ramirez, — 7 — 596 U.S. 366 (2022). Moreover, in any circumstance, “even if all of these requirements 8 are satisfied, a federal habeas court still is not required to hold a hearing or take any 9 evidence.” Ramirez, 596 U.S. at 382 (emphasis in original). — 10 — 11 IV. ANALYSIS 12 Petitioner’s claims fall into one of three (3) categories: 1) procedurally defaulted; 2) 13 reviewable on the merits; and 3) untimely or otherwise non-cognizable. The Court will 14 address each category of claims in turn. 15 A. Procedurally Defaulted Claims 16 Petitioner makes much of “the State [having] affirmatively waived preclusion as to 17 Mr. Richter’s claims that counsel was ineffective for failing to adequately pursue the GEI 18 defense (Claim A(1)), that Mr. Richter received ineffective assistance of counsel at 19 sentencing (Claim B), and that he received ineffective assistance of counsel on appeal 20 (Claim C)” in response to Petitioner’s recently filed Petition for Post-Conviction Relief in 21 the Arizona courts. Petr.’s Reply (Doc. 81) at 15. Petitioner again asserts that “[g]iven the 22 State’s waiver, Respondent’s argument that Claim B and part of Claim C are procedurally 23 defaulted is moot.” Id. at 15–16. As the District Judge has already explained, “[T]he Court 24 rejects the Petitioner’s assertion that [because] the State agrees to waive preclusion under 25 Rule 32.2 as to the GEI related claims, . . . this Court should also waive it. This is not the 26 relevant analysis in this Court.” Order 9/12/2023 (Doc. 75) at 7. The District Judge 27 reiterated the irrelevance of the State’s position in the current Arizona court proceeding by 28 stating: - 23 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 24 of 75 1 Resolution of the independent proceedings in the state court does not bear 2 upon this case, which will be decided pursuant to federal habeas law that requires application of state procedural rules, including Rule 32.2. It 3 does not matter whether the State agrees to waive the preclusive effect of Rule 32.2. This Court’s resolution on the merits of the Petition is — 4 — unaffected by any relief granted in the state courts, except to the extent 5 Petitioner’s release may moot this proceeding. 6 Order 9/12/2023 (Doc. 75) at 9 (emphasis added). 7 “Together, exhaustion and procedural default promote federal-state comity.” Shinn 8 v. Ramirez, 596 U.S. 366, 378 (2022). “Exhaustion affords States an initial opportunity to 9 pass upon and correct alleged violations of prisoners’ federal rights, . . . and procedural 10 default protects against the significant harm to the States that results from the failure of 11 federal courts to respect state procedural rules.” Id. at 378–379 (quotations and citations 12 omitted). “[T]o allow a state prisoner simply to ignore state procedure on the way to federal 13 court would defeat the evident goal of the exhaustion rule.” Id. at 378 (citing Coleman v. 14 Thompson, 501 U.S. 722, 732 (1991)). “Thus, federal courts must apply an important 15 ‘corollary’ to the exhaustion requirement: the doctrine of procedural default.” Id. 16 (emphasis added) (quotations and citations omitted). 17 The Court finds Grounds A2, A3, A4, B1, B2, C1, D, E, G, H1, H2, and H3 of 18 Petitioner’s Third Amended Petition (Doc. 50) procedurally defaulted without excuse. 19 These claims, which include allegations of ineffective assistance of trial counsel (including 20 during sentencing); ineffective assistance of appellate counsel; due process violations 21 arising from the trial court’s denial of a GEI defense, an alleged deprivation of his right to 22 be competent at trial, the trial court’s denial of Petitioner’s requests to sever his trial from 23 that of his co-defendant, and alleged issues regarding the State’s expert witness 24 psychiatrist, were not raised. See Third Amended Petition (Doc. 50). “[P]etitioner failed 25 to exhaust state remedies [for each claim listed above,] and the court to which the petitioner 26 would be required to present his claims in order to meet the exhaustion requirement would 27 now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1 (citations 28 omitted). The Court will address each claim, in turn. - 24 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 25 of 75 1 1. Ineffective Assistance of Counsel 2 Grounds A2, A3, A4, B1, and B2 relate to allegations regarding counsel’s 3 ineffectiveness at trial and during sentencing. Ground C1 relates to appellate counsel’s 4 alleged ineffectiveness. 5 a. Legal Standards 6 The Supreme Court has elucidated a two-part test for determining whether a 7 defendant could prevail on a claim of ineffective assistance of counsel sufficient to overturn 8 his conviction. See Strickland v. Washington, 466 U.S. 668 (1984). First, Petitioner must 9 show that counsel’s performance was deficient. Id. at 687 . “This requires showing that 10 counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed 11 the defendant by the Sixth Amendment.” Id. Second, Petitioner must show that this 12 performance prejudiced his defense. Id. Prejudice “requires showing that counsel’s errors 13 were so serious as to deprive the defendant of a fair trial whose result is reliable.” Id. 14 Ultimately, whether or not counsel’s performance was effective hinges on its 15 reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688 ; see also 16 State v. Carver, 771 P.2d 1382 (Ariz. 1989) (adopting Strickland two-part test for 17 ineffective assistance of counsel claims). The Sixth Amendment’s guarantee of effective 18 assistance is not meant to “improve the quality of legal representation,” rather it is to ensure 19 the fairness of trial. Strickland, 466 U.S. at 689 . “Thus, ‘[t]he benchmark for judging any 20 claim of ineffectiveness must be whether counsel’s conduct so undermined the proper 21 functioning of the adversarial process that the trial cannot be relied on as having produced 22 a just result.’” Cullen v. Pinholster, 563 U.S. 170 (2011) (quoting Strickland, 466 U.S. at 23 686) (emphasis and alteration in original). 24 “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ . . 25 . and when the two apply in tandem, review is ‘doubly’ so[.]” Harrington v. Richter, 562 26 U.S. 86 (2011) (citations omitted). Judging counsel’s performance must be made without 27 the influence of hindsight. See Strickland, 466 U.S. at 689 . As such, “the defendant must 28 overcome the presumption that, under the circumstances, the challenged action ‘might be - 25 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 26 of 75 1 considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91 , 101 2 (1955)). Without the requisite showing of either “deficient performance” or “sufficient 3 prejudice,” Petitioner cannot prevail on his ineffectiveness claim. Strickland, 466 U.S. at 4 700. “[T]he question is not whether counsel’s actions were reasonable. The question is 5 whether there is any reasonable argument that counsel satisfied Strickland’s deferential 6 standard.” Gentry v. Sinclair, 705 F.3d 884, 899 (9th Cir. 2013) (quoting Harrington, 562 7 U.S. at 105) (alterations in original). 8 “The challenger’s burden is to show ‘that counsel made errors so serious that 9 counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 10 Amendment.’” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689 ). 11 Accordingly, “[w]e apply the doubly deferential standard to review the state court’s ‘last 12 reasoned decision.’” Vega v. Ryan, 757 F.3d 960, 966 (9th Cir. 2014) (citations omitted). 13 “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits’ in state 14 court, subject only to the exceptions in 2254(d)(1) and (d)(2).” Harrington, 131 U.S. at 15 98, 131 S. Ct. at 784 . As such, Petitioner also bears the burden of showing that the state 16 court applied Strickland to the facts of his case in an objectively unreasonable manner. See 17 Bell v. Cone, 535 U.S. 685 , 698–99 (2002); see also 28 U.S.C. § 2254 (d). 18 b. Ground A2: Failure to raise Petitioner’s right to be competent 19 Petitioner alleges that trial counsel was ineffective for an alleged “fail[ure] to raise 20 Mr. Richter’s incompetence to stand trial.” Third Amended Petition (Doc. 50) at 39. 21 Petitioner notes that “[t]rial counsel was aware that Mr. Richter is severely mentally ill and, 22 appropriately, raised his incompetence to stand trial at the onset of proceedings.” Id. 23 Petitioner acknowledges that after an initial finding of incompetence, he was subsequently 24 restored, but urges that he subsequently began to decompensate and trial counsel should 25 have intervened. Third Amended Petition (Doc. 50) at 39; see also Reply (Doc. 81) at 36. 26 i. Fair Presentation 27 As noted in Section III.B., supra, the fair presentation requirement mandates that a 28 state prisoner must alert the state court “to the presence of a federal claim” in his petition. - 26 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 27 of 75 1 Baldwin v. Reese, 541 U.S. 27 , 31–33 (2004). “[A] petitioner satisfies the exhaustion 2 requirement if he properly pursues a claim (1) throughout the entire direct appellate process 3 of the state, or (2) throughout one entire judicial postconviction process available in the 4 state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, 5 Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 1998)). In other words, 6 “a petitioner must properly raise [a claim] on every level of direct review.” Id. (citing 7 Ortberg v. Moody, 961 F.2d 135, 137 (9th Cir. 1992)); see also Baldwin, 541 U.S. at 29 8 (fair presentation requires a prisoner to raise his claims “in each appropriate state court”). 9 Petitioner did not raise his ineffective assistance of trial counsel for an alleged 10 failure to raise Mr. Richter’s incompetence to stand trial based on alleged decompensation 11 in his PCR petition to the Rule 32 court. See Answer (Doc. 55), Petr.’s Pet. for PCR, State 12 v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) 13 (Doc. 55-2). Furthermore, Petitioner did not raise this claim to the Arizona Court of 14 Appeals on review of his PCR petition. See Answer (Doc. 55), State v. Richter, No. 2 CA15 CR 2018-025-PR, Mem. Decision (Ariz. Ct. App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 5516 2). As such, Petitioner did not fairly present his claim to the state court. “As a general 17 matter, each ‘unrelated alleged instance [ ] of counsel’s ineffectiveness’ is a separate claim 18 for purposes of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) 19 (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)) (alterations in 20 original). This means “all operative facts to an ineffective assistance claim must be 21 presented to the state courts in order for a petitioner to exhaust his remedies.” Hemmerle 22 v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). This is “[b]ecause ineffective assistance 23 claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline 24 explication of the facts relating to it[.]” Id. As such, “a petitioner who presented any 25 ineffective assistance of counsel claim below can[not] later add unrelated instances of 26 counsel’s ineffectiveness to that claim.” Id. (citations and internal quotations omitted); see 27 also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner’s assertion of a 28 claim of ineffective assistance of counsel based on one set of facts, does not exhaust other - 27 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 28 of 75 1 claims of ineffective assistance based on different facts”). 2 Furthermore, “when a defendant raises an IAC claim in a successive petition and 3 has already raised a different IAC claim in an earlier petition, preclusion is required and 4 courts need not determine whether the claim alleges a violation requiring personal waiver.” 5 State v. Traverso, 537 P.3d 345 (Ariz. Ct. App. 2023) (citing Stewart v. Smith, 46 P.3d 6 1067 (Ariz. 2002) (en banc)); see also Ariz. R. Crim. P. 32.2(a)(3). Therefore, Petitioner’s 7 claim is procedurally defaulted and unavailable for review unless he can show cause and 8 prejudice for the default. 9 ii. No Cause and Prejudice to Excuse Default 10 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 11 courts are prohibited from subsequent review unless the petitioner can show cause and 12 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure 13 to raise claims in state appellate proceeding barred federal habeas review unless petitioner 14 demonstrated cause and prejudice). Petitioner relies on Martinez v. Ryan14 to excuse any 15 procedural default of this claim. 16 “In Martinez . . . and Trevino v. Thaler, 569 U.S. 413 , 133 S. Ct. 1911 , 185 L. Ed. 17 2d 1044 (2013), [the Supreme] Court announced a narrow exception to Coleman’s15 18 general rule.” Davila v. Davis, — U.S. —, 137 S. Ct. 2058, 2062 (2017). “That exception 19 treats ineffective assistance by a prisoner’s state postconviction counsel as cause to 20 overcome the default of a single claim—ineffective assistance of trial counsel—in a single 21 context—where the State effectively requires a defendant to bring that claim in state 22 postconviction proceedings rather than on direct appeal.” Id. at 2062–63. The Supreme 23 Court observed that “[t]hese rules [under which a prisoner may establish cause to excuse a 24 procedural default] reflect an equitable judgment that only where a prisoner is impeded or 25 obstructed in complying with the State’s established procedures will a federal habeas court 26 excuse the prisoner from the usual sanction of default.” Martinez, 566 U.S. at 13, 132 S. — 27 — — 14 — 566 U.S. 1 (2012). — 28 — — 15 — Coleman v. Thompson, 501 U.S. 722 (1991). - 28 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 29 of 75 1 Ct. at 1318 (citations omitted). “In applying this standard, Martinez made clear that a 2 reviewing court must determine whether the petitioner’s attorney in the first collateral 3 proceeding was ineffective under Strickland, whether the petitioner’s claim of ineffective 4 assistance of trial counsel is substantial, and whether there is prejudice.” Sexton v. Cozner, — 5 — 679 F.3d 1150, 1159 (9th Cir. 2012) (citing Martinez, 132 S. Ct. at 1321 ). Additionally, 6 this Court’s “review of counsel’s performance is highly deferential.” Campbell v. Wood, — 7 — 18 F.3d 662, 673 (9th Cir. 1994) (citing Strickland v. Washington, 466 U.S. 668 , 689 8 (1984)). The Court “will neither second-guess counsel’s decisions, nor apply the fabled 9 twenty-twenty vision of hindsight.” Id. 10 Petitioner acknowledges that trial counsel initially raised Mr. Richter’s 11 incompetence early in the case, the trial court found Mr. Richter to be incompetent and 12 ordered him restored, which then occurred. Third Amended Petition (Doc. 50) at 39. 13 Without citation to the record, Petitioner asserts that “[r]ecord evidence suggests that Mr. 14 Richter’s mental health continued to decline, even on medication, and he was once again 15 incompetent to understand the proceedings against him or assist in his defense.” Id. 16 Petitioner asserts that during the hearing on his request for new counsel, trial counsel failed 17 to “recogniz[e] Mr. Richter’s inability to understand the proceedings against him as a 18 function of his deteriorating mental health and competence.” Id. at 40. Petitioner further 19 asserts that “[t]hree months later, on the third day of trial, Mr. Richter’s medications were 20 so impairing his motor functioning that he indicated he was ‘having trouble speaking 21 through [his] medication[.]”16 Id. (citations omitted). 22 On September 21, 2015, the trial court addressed Mr. Richter’s letters seeking new 23 counsel. See Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr’g Tr. (Pima 24 Cnty. Super. Ct. Sept. 21, 2015) (Exh. “OOO”) (Doc. 55-2). The trial court asked Mr. — 25 — 26 16 As an initial matter, this exchange took place on the fourth day of trial. Petitioner cited 27 to “RT 12/11/15 at 3-5.” On habeas, the Court does not receive a full copy of the state court record, which renders such citations unhelpful, particularly when, as here, the date is incorrect and 28 Petitioner fails to attach a copy to his pleading. The correct transcript, Trial Tr. 11/13/2015 (Trial – Day 4), can be found at Exhibit “SSS” (Doc. 55-2) of Respondent’s Answer (Doc. 55). - 29 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 30 of 75 1 Richter to “identify some issues that are out there as to why [he] think[s] that [he] should 2 have a new lawyer?” Id., Exh. “OOO” at 5:8–10.17 Mr. Richter referred the trial court to 3 the information contained in his letters. Id., Exh. “OOO” at 5:11–19. Trial counsel 4 acknowledged that the letters indicated Petitioner’s dissatisfaction, but could not represent 5 whether the dissatisfaction “r[o]se to some sort of conflict that would make [trial counsel] 6 unable to represent [Petitioner.]” Id., Exh. “OOO” at 6:2–10, 14–16. At the trial court’s 7 behest, trial counsel addressed various points raised in the letters. Id., Exh. “OOO” at 6:17– 8 25, 8:11–16, 9:21–10:19. The trial court also questioned Mr. Richter regarding the letters, 9 whether he received assistance writing them, what type of assistance was received, and if 10 there was anything else he wanted the court to know. Answer (Doc. 55), State v. Richter, 11 No. CR20135144-001, Hr’g Tr. at 4:20–5:19, 7:1–8:9, 10:20–24 (Pima Cnty. Super. Ct. 12 Sept. 21, 2015) (Exh. “OOO”) (Doc. 55-2). Nothing in either trial counsel or the trial 13 court’s interactions with Petitioner appeared to raise any concerns regarding his 14 competence. See Williams v. Woodford, 384 F.3d 567, 604 (9th Cir. 2004) (“Although no 15 particular facts signal a defendant’s incompetence, suggestive evidence includes the 16 defendant’s demeanor before the trial judge, irrational behavior of the defendant, and 17 available medical evaluations of the defendant’s competence to stand trial.”). 18 On November 13, 2015, the fourth day of trial, trial counsel raised the issue of 19 Petitioner’s new medications. Answer (Doc. 55), State v. Richter, No. CR20135144-001, 20 Hr’g Tr. (Trial – Day 4) at 3:3–14. (Pima Cnty. Super. Ct. Nov. 13, 2015) (Exh. “SSS”) 21 (Doc. 55-2). The following exchange took place between the trial court and defense 22 counsel: 23 THE COURT: Good morning. Show we’re back on the record. 24 Show the presence of counsel and the parties previously indicated. 25 All right. A couple of items I understand we 26 need to make a record of? — 27 — 28 17 The Court cites page and line designations within a transcript to the original page number, rather than the CM/ECF page number. - 30 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 31 of 75 1 MR. SKITZKI: Yes, Your Honor. It’s my understanding that my 2 client has been placed on some new mental health medication that’s had 3 some effect, negative effect on him, on his motor skills. 4 I believe that mentally and for purposes of his 5 acuity, I don’t believe that there’s been any change negatively. 6 THE COURT: In other words, it’s not an impairment on his 7 ability to assist you in terms of this trial. 8 MR. SKITZKI: That is correct, Your Honor. 9 THE COURT: And can I get a consent on that from your client 10 to make sure of that? 11 MR. SKITZKI: You certainly may ask him, Judge. — 12 — Id., Exh. “SSS” at 3:3–22. The trial court went on to discuss the medication change with 13 Mr. Richter. See id., Exh. “SSS” at 3:23–5:21. Regarding the medication’s impact on 14 Petitioner, the following exchange occurred: 15 THE COURT: So, Mr. Richter, I understand that your 16 meds were changed down at the Pima County Adult Detention Center; is that 17 correct? 18 THE DEFENDANT: Yes. 19 THE COURT: Can you just, for the record, share with us 20 in what respect that your meds were changed? 21 THE DEFENDANT: I’m not sure. 22 THE COURT: Well, how do you know they were 23 changed then? 24 THE DEFENDANT: Oh, no, they were. I’m having trouble 25 speaking through my medication right now. 26 THE COURT: Okay. But what meds – so – if you can’t 27 recall the meds that – what meds were you taking previously, I suppose? Do 28 you remember? - 31 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 32 of 75 1 MR. RICHTER: Yeah, on Theraquil. 2 THE COURT: And? 3 MR. RICHTER: And Buspar. 4 THE COURT: And – 5 MR. RICHTER: And – the new medication is Buspar. 6 THE COURT: Oh, okay. And is it a prescribed 7 medication by the health care professionals at the Adult Detention Center. 8 THE DEFENDANT: Yeah. 9 THE COURT: And what’s – since I’m not familiar with 10 that medication, can you share with me what it’s supposed to do or designed 11 to do? 12 THE DEFENDANT: I don’t know. 13 THE COURT: Well, obviously the doctor must have 14 thought it was necessary. Does it help you sleep or something or what? 15 THE DEFENDANT: Yeah. 16 THE COURT: Okay. All right. But at this juncture, are 17 you okay in terms of your ability to sit through the trial? 18 THE DEFENDANT: Yeah. 19 THE COURT: And you can help your lawyer and assist 20 him in terms of defending yourself? 21 THE DEFENDANT: Yes. — 22 — Id., Exh. “SSS” at 3:23–5:14. Nothing in this exchange appeared to raise any concerns 23 regarding his competence. See Williams v. Woodford, 384 F.3d 567, 604 (9th Cir. 2004) 24 (“Although no particular facts signal a defendant’s incompetence, suggestive evidence 25 includes the defendant’s demeanor before the trial judge, irrational behavior of the 26 defendant, and available medical evaluations of the defendant’s competence to stand 27 trial.”). Furthermore, “a defendant’s counsel is in the best position to evaluate a client’s 28 comprehension of the proceedings.” Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991) - 32 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 33 of 75 1 (citations omitted). Here, counsel reported that his client was still able to assist with trial. 2 Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr’g Tr. (Trial – Day 4) at 3:3– 3 14. (Pima Cnty. Super. Ct. Nov. 13, 2015) (Exh. “SSS”) (Doc. 55-2). “[T]he fact that the 4 trial judge, government counsel, and [Petitioner’s] own attorney did not perceive a 5 reasonable cause to believe [Petitioner] was incompetent” cuts against Petitioner’s claims 6 on habeas. Hernandez, 930 F.2d at 718 . “The trial transcript does not indicate that 7 [Petitioner] lacked understanding of the proceedings or was unable to assist in his defense.” 8 Williams, 384 F.3d at 607. 9 “In order to show ineffectiveness of PCR counsel, [Petitioner] must show that PCR 10 counsel’s failure to raise the claim that trial counsel was ineffective was an error ‘so serious 11 that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 12 Amendment,’ and caused [Petitioner] prejudice.” Sexton v. Cozner, 679 F.3d 1150 , 1157 13 (9th Cir. 2012) (citing Strickland, 466 U.S. at 687 ). In arguing that PCR counsel was 14 ineffective, Petitioner observes “much of the evidence of Mr. Richter’s deteriorating 15 mental health at trial overlapped with the evidence initial PCR counsel used to raise the 16 IAC/GEI claim . . . and right to counsel claim[.]” Petr.’s Reply (Doc. 81) at 51 (citations 17 omitted). This fact undermines Petitioner’s argument. PCR counsel reviewed the entirety 18 of the record and made a choice not to include what appears to be a meritless claim. See 19 Murray v. Schriro, 745 F.3d 984, 1011 (9th Cir. 2014) (“[T]he relevant inquiry . . . is not 20 what defense counsel could have pursued, but rather whether the choices made by defense 21 counsel were reasonable.”). 22 Petitioner has failed “to show ‘that [either trial or PCR] counsel made errors so 23 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 24 Sixth Amendment.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, — 25 — 466 U.S. at 689 ). As such, Martinez will not excuse his procedural default. See Sexton, 26 679 F.3d at 1159–61. Review of the record confirms that Petitioner has not met his burden 27 to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494 (1986) 28 (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but - 33 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 34 of 75 1 that they worked to his actual and substantial disadvantage, infecting his entire trial with 2 error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); 3 see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed 4 to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no 5 basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] 6 by clear and convincing evidence that but for the constitutional error, no reasonable 7 factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 8 2254(e)(2)(B). Accordingly, Petitioner’s claim is procedurally defaulted and precluded 9 from habeas review. 10 c. Ground A3: Failure to move for non-conflicted counsel or withdraw — 11 — 12 Petitioner asserts that trial counsel provided ineffective assistance when he allegedly 13 “failed to request non-conflicted counsel to represent Mr. Richter at [the] hearing” 14 conducted by the trial court to address Petitioner’s request for new counsel, or otherwise 15 failed to move to withdraw. Third Amended Petition (Doc. 50) at 46. 16 i. Fair Presentation 17 As discussed in Sections III.B. and IV.A.1.b.i., supra, the fair presentation 18 requirement mandates that a state prisoner must alert the state court “to the presence of a 19 federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27 , 31–33 (2004). Petitioner did 20 not raise his ineffective assistance of trial counsel for an alleged failure to request non21 conflicted counsel, or otherwise move to withdraw in his PCR petition to the Rule 32 court. 22 See Answer (Doc. 55), Petr.’s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima 23 Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Neither did Petitioner raise this 24 claim to the Arizona Court of Appeals on review of his PCR petition. See Answer (Doc. 25 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz. Ct. App. Apr. 8, 26 2019) (Exh. “GGG”) (Doc. 55-2). As such, Petitioner did not fairly present his claim to 27 the state court. As noted in Section IV.A.1.b.i., supra, “ineffective assistance claims are 28 not fungible, but are instead highly fact-dependent, [requiring] some baseline explication - 34 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 35 of 75 1 of the facts relating to it[.]” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). 2 As such, “a petitioner who presented any ineffective assistance of counsel claim below 3 can[not] later add unrelated instances of counsel’s ineffectiveness to that claim.” Id. 4 (citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736 , 5 788 (D. Ariz. 2008) (“Petitioner’s assertion of a claim of ineffective assistance of counsel 6 based on one set of facts, does not exhaust other claims of ineffective assistance based on 7 different facts”). Furthermore, “when a defendant raises an IAC claim in a successive 8 petition and has already raised a different IAC claim in an earlier petition, preclusion is 9 required and courts need not determine whether the claim alleges a violation requiring 10 personal waiver.” State v. Traverso, 537 P.3d 345 (Ariz. Ct. App. 2023) (emphasis added) 11 (citing Stewart v. Smith, 46 P.3d 1067 (Ariz. 2002) (en banc)); see also Ariz. R. Crim. P. 12 32.2(a)(3). Therefore, Petitioner’s claim is procedurally defaulted and unavailable for 13 review unless he can show cause and prejudice for the default. 14 ii. No Cause and Prejudice to Excuse Default 15 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 16 courts are prohibited from subsequent review unless the petitioner can show cause and 17 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure 18 to raise claims in state appellate proceeding barred federal habeas review unless petitioner 19 demonstrated cause and prejudice). Petitioner relies on Martinez v. Ryan18 to excuse any 20 procedural default of this claim. 21 As discussed in Section IV.A.1.b.ii., supra, Petitioner’s letters requesting new 22 counsel were addressed by the trial court. Upon request by the trial court, defense counsel 23 responded to various issues raised in Petitioner’s letters. Answer (Doc. 55), State v. 24 Richter, No. CR20135144-001, Hr’g Tr. at 6:17–25, 8:11–16, 9:21–10:19 (Pima Cnty. 25 Super. Ct. Sept. 21, 2015) (Exh. “OOO”) (Doc. 55-2). The trial court also questioned Mr. 26 Richter regarding the same. Id., Exh. “OOO” at 4:20–5:19, 7:1–8:9, 10:20–24. 27 Furthermore, Petitioner’s presumption that the trial court would have granted defense — 28 — — 18 — 566 U.S. 1 (2012). - 35 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 36 of 75 1 counsel’s motion to withdraw is unsupported. See State v. Gomez, 293 P.3d 495 , 500–501 2 (Ariz. 2012) (en banc) (upholding trial court’s denial of counsel’s motion to withdraw and 3 defendant’s motion for change of counsel based on an insufficient showing “that a change 4 of counsel [wa]s necessary, especially considering the age of the case and the timing of the 5 motion[.]”) The Court finds that trial counsel’s actions were reasonable, as was PCR 6 counsel’s decision not to raise this issue in the Rule 32 proceeding. 7 Petitioner has failed “to show ‘that [either trial or PCR] counsel made errors so 8 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 9 Sixth Amendment.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, — 10 — 466 U.S. at 689 ). As such, Martinez will not excuse his procedural default. See Sexton v. 11 Cozner, 679 F.3d 1150 , 1159–61 (9th Cir. 2012). Review of the record confirms that 12 Petitioner has not met his burden to show either cause or actual prejudice. Murray v. 13 Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . 14 created a possibility of prejudice, but that they worked to his actual and substantial 15 disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis 16 in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 17 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting 18 his claims[,] . . . [and as such,] there is no basis on which to address the merits of his 19 claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but 20 for the constitutional error, no reasonable factfinder would have found [him] guilty of the 21 underlying offense.” 28 U.S.C. § 2254 (e)(2)(B). Accordingly, Petitioner’s claim is 22 procedurally defaulted and precluded from habeas review. 23 d. Ground A4: Failure to object to State’s expert witness 24 Petitioner asserts that trial counsel provided ineffective assistance when he allegedly 25 “failed to object to an unqualified expert opining about prejudicial evidence which was 26 beyond his area of expertise[,] . . . [thereby] violat[ing] Mr. Richter’s rights to the due 27 process and effective assistance of counsel.” Third Amended Petition (Doc. 50) at 52 28 (citations omitted). - 36 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 37 of 75 1 i. Fair Presentation 2 As discussed in Sections III.B. and IV.A.1.b.i., supra, the fair presentation 3 requirement mandates that a state prisoner must alert the state court “to the presence of a 4 federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27 , 31–33 (2004). Petitioner did 5 not raise his ineffective assistance of trial counsel for an alleged failure to object to an 6 allegedly unqualified expert’s testimony in his PCR petition to the Rule 32 court. See 7 Answer (Doc. 55), Petr.’s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima 8 Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Furthermore, Petitioner did not 9 raise this claim to the Arizona Court of Appeals on review of his PCR petition. See Answer 10 (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz. Ct. App. 11 Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2). As such, Petitioner did not fairly present his 12 claim to the state court. As noted in Section IV.A.1.b.i., supra, “ineffective assistance 13 claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline 14 explication of the facts relating to it[.]” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th 15 Cir. 2007). As such, “a petitioner who presented any ineffective assistance of counsel 16 claim below can[not] later add unrelated instances of counsel’s ineffectiveness to that 17 claim.” Id. (citations and internal quotations omitted); see also Date v. Schriro, 619 18 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner’s assertion of a claim of ineffective 19 assistance of counsel based on one set of facts, does not exhaust other claims of ineffective 20 assistance based on different facts”). Furthermore, “when a defendant raises an IAC claim 21 in a successive petition and has already raised a different IAC claim in an earlier petition, 22 preclusion is required and courts need not determine whether the claim alleges a violation 23 requiring personal waiver.” State v. Traverso, 537 P.3d 345 (Ariz. Ct. App. 2023) 24 (emphasis added) (citing Stewart v. Smith, 46 P.3d 1067 (Ariz. 2002) (en banc)); see also 25 Ariz. R. Crim. P. 32.2(a)(3). Therefore, Petitioner’s claim is procedurally defaulted and 26 unavailable for review unless he can show cause and prejudice for the default. 27 ii. No Cause and Prejudice to Excuse Default 28 Where a habeas petitioner’s claims have been procedurally defaulted, the federal - 37 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 38 of 75 1 courts are prohibited from subsequent review unless the petitioner can show cause and 2 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure 3 to raise claims in state appellate proceeding barred federal habeas review unless petitioner 4 demonstrated cause and prejudice). Petitioner relies on Martinez v. Ryan19 to excuse any 5 procedural default of this claim. 6 This claim is devoid of merit. Prior to trial, defense counsel filed a motion in limine 7 seeking to preclude “[a]ny testimony from Dr. John Leipsic wherein he opines about the 8 future prognosis for any of the three alleged victims[,] [and] [i]n addition, any testimony 9 wherein he opines about any of the following: child abuse; posttraumatic stress disorder; 10 entrapment; captor binding; [and] trauma.” See Answer (Doc. 50), Def.’s Mot. in Limine, 11 State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Nov. 4, 2015). Counsel also 12 opposed the State’s Motion in Limine re: Dr. Leipsic’s testimony. See Answer (Doc. 50), 13 State v. Richter, No. CR20135144-001, Minute Entry at 102 (Pima Cnty. Super. Ct. Nov. 14 13, 2015). Following argument, the trial court granted the State’s motion and denied 15 Petitioner’s. Id. The breadth of testimony defense counsel sought to preclude pre-trial 16 encompasses that which Petitioner now argues counsel should have objected to during trial. 17 The Court finds that trial counsel’s actions were reasonable, as was PCR counsel’s decision 18 not to raise this issue in the Rule 32 proceeding. 19 Petitioner has failed “to show ‘that [either trial or PCR] counsel made errors so 20 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 21 Sixth Amendment.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, — 22 — 466 U.S. at 689 ). As such, Martinez will not excuse his procedural default. See Sexton v. 23 Cozner, 679 F.3d 1150 , 1159–61 (9th Cir. 2012). Review of the record confirms that 24 Petitioner has not met his burden to show either cause or actual prejudice. Murray v. 25 Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . 26 created a possibility of prejudice, but that they worked to his actual and substantial 27 disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis — 28 — — 19 — 566 U.S. 1 (2012). - 38 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 39 of 75 1 in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 2 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting 3 his claims[,] . . . [and as such,] there is no basis on which to address the merits of his 4 claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but 5 for the constitutional error, no reasonable factfinder would have found [him] guilty of the 6 underlying offense.” 28 U.S.C. § 2254 (e)(2)(B). Accordingly, Petitioner’s claim is 7 procedurally defaulted and precluded from habeas review. 8 e. Ground B1: Presentation of mitigation evidence at sentencing 9 Petitioner alleges that counsel’s performance was deficient because he called one 10 witness, and his “presentation on behalf of Mr. Richter—both the testimony of Bob Richter 11 and Skitzki’s recommendation argument—lasted a mere ten transcript pages.” Third 12 Amended Petition (Doc. 50) at 49–50 (citations omitted). Petitioner expands on this claim 13 to note that trial counsel’s presentation at sentencing omitted evidence regarding “Mr. 14 Richter’s incredibly traumatic life history, severe mental illness, history of head injuries, 15 and intellectual disability.” Petr.’s Reply (Doc. 81) at 62. 16 i. Fair Presentation 17 As discussed in Sections III.B. and IV.A.1.b.i., supra, the fair presentation 18 requirement mandates that a state prisoner must alert the state court “to the presence of a 19 federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27 , 31–33 (2004). Petitioner did 20 not raise his ineffective assistance of sentencing counsel for an alleged failure to call more 21 than one witness or any claim regarding an alleged failure to investigate Petitioner’s history 22 in his PCR petition to the Rule 32 court. See Answer (Doc. 55), Petr.’s Pet. for PCR, State 23 v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) 24 (Doc. 55-2). Furthermore, Petitioner did not raise this claim to the Arizona Court of 25 Appeals on review of his PCR petition. See Answer (Doc. 55), State v. Richter, No. 2 CA26 CR 2018-025-PR, Mem. Decision (Ariz. Ct. App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 5527 2). As such, Petitioner did not fairly present his claim to the state court. As noted in 28 Section IV.A.1.b.i., supra, “ineffective assistance claims are not fungible, but are instead - 39 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 40 of 75 1 highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” 2 Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). As such, “a petitioner who 3 presented any ineffective assistance of counsel claim below can[not] later add unrelated 4 instances of counsel’s ineffectiveness to that claim.” Id. (citations and internal quotations 5 omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner’s 6 assertion of a claim of ineffective assistance of counsel based on one set of facts, does not 7 exhaust other claims of ineffective assistance based on different facts”). Furthermore, “[a]s 8 a general rule, when ineffective assistance of counsel claims are raised, or could have been 9 raised in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective 10 assistance will be deemed waived and precluded.” State v. Bennett, 146 P.3d 63, 67 (Ariz. 11 2006) (emphasis in original) (quotations and citations omitted); see also Ariz. R. Crim. P. 12 32.2(a)(3). Therefore, Petitioner’s claim is procedurally defaulted and unavailable for 13 review unless he can show cause and prejudice for the default. 14 ii. No Cause and Prejudice to Excuse Default 15 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 16 courts are prohibited from subsequent review unless the petitioner can show cause and 17 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure 18 to raise claims in state appellate proceeding barred federal habeas review unless petitioner 19 demonstrated cause and prejudice). Petitioner relies on Martinez v. Ryan20 to excuse any 20 procedural default of this claim. 21 Petitioner’s contention that sentencing counsel failed to perform any investigation 22 regarding “Mr. Richter’s incredibly traumatic life history, severe mental illness, history of 23 head injuries, and intellectual disability” is unsupported by the record. Sentencing counsel 24 obtained a mitigation specialist whose report was submitted to the trial court prior to 25 sentencing. See Answer (Doc. 55), Mitigation Rpt. for Fernando Richter, State v. Richter, 26 No. CR20135144-001 (Pima Cnty. Super. Ct. Feb. 23, 2016) (Exh. “PP”) (Doc. 55-1). The 27 mitigation specialist provided the court with information regarding Petitioner’s birth; his — 28 — — 20 — 566 U.S. 1 (2012). - 40 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 41 of 75 1 mother’s status as a single parent and subsequent marriage to Petitioner’s step-father; 2 Petitioner’s immigration to the United States as a child; his difficult childhood; the loss of 3 one of his siblings to suicide; Petitioner being run over by a car at the age of nine and a 4 half; the resulting head injuries; Petitioner’s “high order cognitive deficits”; his mental 5 health issues; Petitioner’s frontal lobe damage; his education and attendant difficulties, 6 including an Individualized Education Program (“IEP”) for emotional instability; 7 Petitioner’s employment history; and his restoration report. See id., Exh. “PP.” 8 Defense counsel also submitted a sentencing memorandum. See Answer (Doc. 55), 9 Sentencing Memo., State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Mar. 3, 10 2016) (Exh. “QQ”) (Doc. 55-1). Counsel discussed Petitioner’s “traumatic upbringing,” 11 including not knowing his biological father, how his biological father abused physically 12 his mother, even while she was pregnant; Petitioner’s cognitive difficulties, including 13 special education in school and his tenuous reading ability which persists to the present; 14 and Petitioner being run over by a car at the age of nine (9), resulting in severe head injuries. — 15 — Id., Exh. “QQ” at 172–73. Counsel also noted Petitioner’s inability to maintain 16 employment and eventual receipt of social security disability benefits. Id., Exh. “QQ” at 17 173. Counsel reviewed Petitioner’s mental illnesses which exists “[i]n addition to his 18 cognitive impairment[.]” Id., Exh. “QQ” at 173–74. Counsel described the worsening of 19 Petitioner’s schizophrenia and the negative impacts of the disease which “eventually 20 resulted in the circumstances and situation which led to his conviction.” Id. Counsel 21 indicated that “[t]he specifics of Fernando’s conditions and his history have been more 22 specifically set forth in the prior submissions to this Court.” Answer (Doc. 55), Sentencing 23 Memo. at 174, State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Mar. 3, 2016) 24 (Exh. “QQ”) (Doc. 55-1). Counsel emphasized Petitioner was not an “evil monster” but 25 rather a victim of his disease, “which ultimately led to the offenses for which he now stands 26 to be punished.” Id. 27 On February 17, 2016, defense counsel filed sentencing mitigation documents, 28 including the Rule 11 Evaluation by Michael Christiansen, Ph.D., the Restoration to - 41 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 42 of 75 1 Competency Program Report by Serena Gorgueiro, Psy.D., the Rule 11 Evaluation by 2 Bradley Johnson, M.D., and the Psychological Evaluation by Paul Simpson, Ed.D. See 3 Answer (Doc. 55), Not. of Filing of Def.’s Sentencing Mitigation Docs., State v. Richter, 4 No. CR20135144-001 (Pima Cnty. Super. Ct. Feb. 17, 2016) (Exh. “RR”) (Doc. 55-1). On 5 February 10, 2016, defense counsel filed sentencing mitigation documents consisting of 6 letters from family members, including Jean Richter (sister), Grace Soto (sister), Raphael 7 Richter (brother), Robert Richter (step-father), and Maria Cruz Alvarez Richter (mother). 8 See Answer (Doc. 55), Not. of Filing Def.’s Sentencing Mitigation Docs., State v. Richter, 9 No. CR20135144-001 (Pima Cnty. Super. Ct. Feb. 10, 2016) (Exh. “SS”) (Doc. 55-1). 10 Petitioner’s mother’s letter reflected the terrible abuse she suffered from his father, her 11 travel from Mexico, the fear Petitioner exhibited as a child, his difficulties in school, and 12 mental health issues. Id., Exh. “SS” at 184–85. On February 26, 2016, defense counsel 13 filed a joint letter from Robert and Maria Richter as mitigation evidence. See Answer (Doc. 14 55), Not. of Filing Def.’s Sentencing Mitigation Docs., State v. Richter, No. CR2013514415 001 (Pima Cnty. Super. Ct. Feb. 26, 2016) (Exh. “TT”) (Doc. 55-1). This letter reflected 16 Petitioner’s difficulty with comprehension, his mental illness, the accident when he was 17 run over by a car at the age of nine (9), and the effect of immigrating to the United States 18 from Mexico as a child. Id., Exh. “TT” at 188. This letter with “a couple moderate 19 additions” was read into the record by Robert Richter during Petitioner’s sentencing 20 hearing. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr’g Tr. (Sentencing) 21 at 6:21–24 (Pima Cnty. Super. Ct. Mar. 10, 2016) (Exh. “DDDD”) (Doc. 55-2). 22 Additionally, the trial court also received Petitioner’s Presentence Report (“PSR”). See 23 Answer (Doc. 55), Richter PSR, State v. Richter, No. CR20135144-001 (Pima Cnty. Super. 24 Ct. Feb. 29, 2016) (Exh. “OO”) (Doc. 55-1). The PSR reflected Petitioner’s loss of a 25 sibling to suicide, the incident where he was run over by a car, his education and 26 employment histories, and substance use. Id., Exh. “OO” at 162. 27 On February 29, 2016, the initial sentencing hearing was held, and defense counsel 28 raised concerns regarding Petitioner’s competence and moved for another Rule 11 - 42 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 43 of 75 1 evaluation. See Answer (Doc. 55), State v. Richter, No. CR20135144-001, Minute Entry 2 at 151 (Pima Cnty. Super. Ct. Feb. 29, 2016) (Exh. “LL”) (Doc. 55-1). The trial court 3 questioned Petitioner and ultimately ordered an additional assessment. Id., Exh. “LL” at 4 151–52. The sentencing hearing was therefore continued. Id., Exh. “LL” at 152–53. Prior 5 to sentencing, Serena Gorgueiro, Psy.D. provided an Addenda to the Final Competency 6 Report to the trial court. See Answer (Doc. 55), Gorgueiro Addenda to the Final 7 Competency Rpt., State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Mar. 3, 8 2016) (Exh. “UU”) (Doc. 55-1). 9 On March 10, 2016, the trial court held a sentencing hearing for both Petitioner and 10 his co-defendant. See Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr’g Tr. 11 (Sentencing) (Pima Cnty. Super. Ct. Mar. 10, 2016) (Exh. “DDDD”) (Doc. 55-2). At the 12 outset of presenting mitigation witnesses, trial counsel stated, “Judge, we had previously 13 discussed this before. I was going to call Bob Richter. He was just planning on reading 14 something rather than having me examine him[.]” Id., Exh. “DDDD” at 4:24–5:2. Robert 15 Richter testified on behalf of Petitioner and read “a letter presented to Judge Tang, and 16 there’s a couple moderate additions, but this is on behalf of his mother and myself as well.” — 17 — Id., Exh. “DDDD” at 6:22–24. Mr. Robert Richter testified regarding Petitioner’s inability 18 to read and write properly; his difficulties with understanding and communication; the help 19 that he required in writing letters to the court; his lack of comprehension regarding 20 “everything in the trial”; that he is easily manipulated; that he has a low IQ and had 21 difficulty in school; his history of mental illness; his inability to think independently, 22 normally, and logically; the abuse suffered by his mother at the hands of Petitioner’s 23 biological father; Petitioner’s receipt of social security disability which was managed by 24 his wife; and ultimately requested the court to incarcerate him nearby so that his mother 25 could visit him. Id., Exh. “DDDD” at 6:21–10:11. Defense counsel presented argument 26 in which he directed the trial court to Petitioner’s long mental health history, referred to 27 the voluminous evidence that had been provided to the trial court, attempted to characterize 28 Petitioner as someone who was not “inherently evil” but rather a victim of his mental - 43 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 44 of 75 1 illness, highlighted his cognitive difficulties, noted that his graduation from high school 2 was “more [] social promotion than any type of academic achievement[,]” indicated that 3 he had been picked on and bullied throughout his life, and was readily manipulated. Id., 4 Exh. “DDDD” at 64:17–69:6. Accordingly, defense counsel sought a mitigated sentence. 5 Answer (Doc. 55), State v. Richter, No. CR20135144-001, Hr’g Tr. at 68:25–69:6 6 (Sentencing) (Pima Cnty. Super. Ct. Mar. 10, 2016) (Exh. “DDDD”) (Doc. 55-2). 7 The evidence presented to the trial court encompasses the areas that Petitioner now 8 complains sentencing counsel failed to investigate. Petitioner urges that “even if Skitzki 9 had chosen to offer written submissions in lieu of testimony, that decision would not have 10 been sound, as live testimony at sentencing is always preferable.” Petr.’s Reply (Doc. 81) 11 at 67. Petitioner states that “Arizona courts have long recognized that live testimony has a 12 quality and import that written submissions cannot duplicate.” Id. (citing State v. 13 Talmadge, 999 P.2d 192, 195 (Ariz. 2000)). Petitioner mischaracterizes Talmadge and 14 State v. Brady, 594 P.2d 94, 96 (Ariz. 1979), the case upon which Talmadge relies, as 15 requiring a preference for live testimony at sentencing. Both of those cases dealt with the 16 presentation of witnesses during the guilt phase, where a jury was hearing testimony from 17 a material witness. Here, the evidence was being presented solely to the trial judge.21 18 Furthermore, a review of the record indicates that Petitioner’s co-defendant only presented 19 one live witness in mitigation. See Answer (Doc. 55), State v. Richter, No. CR2013514420 001, Hr’g Tr. (Sentencing) (Pima Cnty. Super. Ct. Mar. 10, 2016) (Exh. “DDDD”) (Doc. 21 55-2). Based upon trial counsel’s statement at the outset of the hearing, supra, this Court 22 surmises that there was an agreement that each Defendant would present one mitigation 23 witness. 24 Given the totality of the evidence presented in support of mitigation, the Court finds 25 that trial counsel did not “abandon[ ] their investigation of [the] petitioner’s background — 26 — — 21 — 27 In Arizona, judges are governed by the Arizona Code of Judicial Conduct which mandates that they “shall perform all duties of judicial office fairly and impartially.” Ariz. Code 28 of Jud. Conduct Rule 2.2. This requirement undercuts Petitioner’s argument that a live witness is necessary. - 44 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 45 of 75 1 after having acquired only rudimentary knowledge of his history from a narrow set of 2 sources.” Cullen v. Pinholster, 563 U.S. 170, 195 (2011) (alterations in original) (citations 3 omitted). “Strickland specifically commands that a court ‘must indulge [the] strong 4 presumption’ that counsel ‘made all significant decisions in the exercise of reasonable 5 professional judgment.’” Id. at 196 (alterations in original) (quoting Strickland, 466 U.S. 6 at 689–90). The Court finds that sentencing counsel was not ineffective, and therefore 7 PCR counsel was not unreasonable in declining to raise this claim on collateral review. 8 Petitioner has failed “to show ‘that [either trial or PCR] counsel made errors so 9 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 10 Sixth Amendment.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, — 11 — 466 U.S. at 689 ). As such, Martinez will not excuse his procedural default. See Sexton v. 12 Cozner, 679 F.3d 1150 , 1159–61 (9th Cir. 2012). Review of the record confirms that 13 Petitioner has not met his burden to show either cause or actual prejudice. Murray v. 14 Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . 15 created a possibility of prejudice, but that they worked to his actual and substantial 16 disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis 17 in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 18 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting 19 his claims[,] . . . [and as such,] there is no basis on which to address the merits of his 20 claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but 21 for the constitutional error, no reasonable factfinder would have found [him] guilty of the 22 underlying offense.” 28 U.S.C. § 2254 (e)(2)(B). Accordingly, Petitioner’s claim is 23 procedurally defaulted and precluded from habeas review. 24 f. Ground B2: Intellectual disability evidence at sentencing 25 Petitioner asserts that because counsel “inaccurately stated that Mr. Richter was 26 ‘borderline IQ,’ minimizing his client’s impairments” and “conducted no investigation 27 into Mr. Richter’s adaptive deficits or intellectual disability prior to sentencing and 28 presented no live intellectual disability expert witness to the trial court[,]” his assistance - 45 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 46 of 75 1 was ineffective. Third Amended Petition (Doc. 50) at 64. 2 i. Fair Presentation 3 As discussed in Sections III.B. and IV.A.1.e.i, supra, the fair presentation 4 requirement mandates that a state prisoner must alert the state court “to the presence of a 5 federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27 , 31–33 (2004). Petitioner did 6 not raise his ineffective assistance of sentencing counsel for an alleged failure to investigate 7 his adaptive deficits or intellectual disability in his PCR petition to the Rule 32 court. See 8 Answer (Doc. 55), Petr.’s Pet. for PCR, State v. Richter, No. CR-20135144-001 (Pima 9 Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Furthermore, Petitioner did not 10 raise this claim to the Arizona Court of Appeals on review of his PCR petition. See Answer 11 (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz. Ct. App. 12 Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2). As such, Petitioner did not fairly present his 13 claim to the state court. As noted in Section IV.A.1.b.i., supra, “ineffective assistance 14 claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline 15 explication of the facts relating to it[.]” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th 16 Cir. 2007). As such, “a petitioner who presented any ineffective assistance of counsel 17 claim below can[not] later add unrelated instances of counsel’s ineffectiveness to that 18 claim.” Id. (citations and internal quotations omitted); see also Date v. Schriro, 619 19 F.Supp.2d 736, 788 (D. Ariz. 2008) (“Petitioner’s assertion of a claim of ineffective 20 assistance of counsel based on one set of facts, does not exhaust other claims of ineffective 21 assistance based on different facts”). Furthermore, “[a]s a general rule, when ineffective 22 assistance of counsel claims are raised, or could have been raised in a Rule 32 post23 conviction relief proceeding, subsequent claims of ineffective assistance will be deemed 24 waived and precluded.” State v. Bennett, 146 P.3d 63, 67 (Ariz. 2006) (emphasis in 25 original) (quotations and citations omitted); see also Ariz. R. Crim. P. 32.2(a)(3). 26 Therefore, Petitioner’s claim is procedurally defaulted and unavailable for review unless 27 he can show cause and prejudice for the default. 28 ... - 46 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 47 of 75 1 ii. No Cause and Prejudice to Excuse Default 2 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 3 courts are prohibited from subsequent review unless the petitioner can show cause and 4 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure 5 to raise claims in state appellate proceeding barred federal habeas review unless petitioner 6 demonstrated cause and prejudice). Petitioner relies on Martinez v. Ryan22 to excuse any 7 procedural default of this claim. 8 Petitioner’s contention that counsel’s alleged mischaracterization of Petitioner’s IQ, 9 alleged failure to investigate Mr. Richter’s adaptive deficits or intellectual disability, and 10 lack of live intellectual disability expert witness during sentencing rendered his assistance 11 was ineffective is unsupported. As discussed in Section IV.A.1.e.ii., supra, defense 12 counsel submitted significant documentation to the trial court as mitigation evidence, 13 including a report from a mitigation specialist and the evaluations of various medical 14 professionals. Petitioner’s mitigation specialist documented, inter alia, his “high order 15 cognitive deficits” and frontal lobe damage, as well as their effects. Answer (Doc. 55), 16 Mitigation Rpt. for Fernando Richter, State v. Richter, No. CR20135144-001 (Pima Cnty. 17 Super. Ct. Feb. 23, 2016) (Exh. “PP”) (Doc. 55-1). Paul Simpson, Ed.D.’s Psychological 18 Evaluation documented Petitioner’s WAIS-IV, full scale IQ at 63. Third Amended Petition 19 (Doc. 50), Simpson Psych. Eval. (Exh. “3”) (Doc. 50-2) at 8. Dr. Simpson described 20 “Fernando’s general cognitive ability [a]s within the extremely low range of intellectual 21 functioning, as measured by FSIQ.” Id. Michael Christiansen, Ph.D.’s Rule 11 Evaluation 22 reviewed Petitioner’s developmental, educational, and family history, and reported that 23 “[a] Psychoeducational Evaluation (7/05/2000) notes the defendant had borderline 24 defective range verbal IQ of 73 while performance IQ scores reached the average range.” 25 Third Amended Petition (Doc. 50), Christiansen Rule 11 Eval. (Exh. “8”) (Doc. 50-3) at 26 14. Dr. Christiansen described his scores as “consistent with learning disability, with 27 deficits in verbal and language abilities.” Id. Additionally, Mr. Robert Richter provided — 28 — — 22 — 566 U.S. 1 (2012). - 47 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 48 of 75 1 testimony regarding Petitioner’s intellectual deficits and their effect on his life. Answer 2 (Doc. 55), State v. Richter, No. CR20135144-001, Hr’g Tr. (Sentencing) at 6:21–10:11 3 (Pima Cnty. Super. Ct. Mar. 10, 2016) (Exh. “DDDD”) (Doc. 55-2). Contrary to 4 Petitioner’s assertion, information regarding Petitioner’s intellectual disabilities and 5 adaptive deficits were provided to the trial court from a variety of sources. Moreover, 6 although counsel’s description of Petitioner’s IQ as “borderline” was not as low as that 7 reported by Dr. Simpson, it was consistent with the report relied on by Dr. Christiansen. 8 The Court finds that sentencing counsel was not ineffective, and therefore PCR counsel 9 was not unreasonable in declining to raise this claim on collateral review. 10 Petitioner has failed “to show ‘that [either trial or PCR] counsel made errors so 11 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 12 Sixth Amendment.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, — 13 — 466 U.S. at 689 ). As such, Martinez will not excuse his procedural default. See Sexton v. 14 Cozner, 679 F.3d 1150 , 1159–61 (9th Cir. 2012). Review of the record confirms that 15 Petitioner has not met his burden to show either cause or actual prejudice. Murray v. 16 Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show not merely that the errors . . . 17 created a possibility of prejudice, but that they worked to his actual and substantial 18 disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis 19 in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 20 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting 21 his claims[,] . . . [and as such,] there is no basis on which to address the merits of his 22 claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but 23 for the constitutional error, no reasonable factfinder would have found [him] guilty of the 24 underlying offense.” 28 U.S.C. § 2254 (e)(2)(B). Accordingly, Petitioner’s claim is 25 procedurally defaulted and precluded from habeas review. 26 g. Ground C1: Failure to raise claims on appeal 27 Petitioner asserts that appellate counsel should have raised claims related to 1) “the 28 trial court’s preclusion of the GEI defense”; 2) Petitioner’s request for and the trial court’s - 48 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 49 of 75 1 denial of a change of counsel prior to trial; 3) the trial court’s denial of defense counsel’s 2 motion for a directed verdict and sufficiency of the evidence; 4) the trial court’s denial of 3 defense counsel’s motion to sever trial; 5) the trial court’s denial of defense counsel’s 4 motion for a mistrial based on the State’s expert witness psychiatrist’s vouching regarding 5 the victim’s credibility; and 6) the admission of the State’s expert witness psychiatrist’s 6 testimony during which he reviewed photographs of the victims and identified scars and 7 opined about their relative age and the type of implement that may have caused them. Third 8 Amended Petition (Doc. 50) at 68–77. 9 i. Fair Presentation 10 As discussed in Sections III.B. and IV.A.1.b.i, supra, the fair presentation 11 requirement mandates that a state prisoner must alert the state court “to the presence of a 12 federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27 , 31–33 (2004). Petitioner did 13 not raise his ineffective assistance of appellate counsel regarding failures to raise specific 14 claims in his PCR petition to the Rule 32 court. See Answer (Doc. 55), Petr.’s Pet. for 15 PCR, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. 16 “EEE”) (Doc. 55-2). Furthermore, Petitioner did not raise these claims to the Arizona 17 Court of Appeals on review of his PCR petition. See Answer (Doc. 55), State v. Richter, 18 No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz. Ct. App. Apr. 8, 2019) (Exh. “GGG”) 19 (Doc. 55-2). As such, Petitioner did not fairly present his claims to the state court. As 20 noted in Section IV.A.1.b.i., supra, “ineffective assistance claims are not fungible, but are 21 instead highly fact-dependent, [requiring] some baseline explication of the facts relating to 22 it[.]” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). As such, “a petitioner 23 who presented any ineffective assistance of counsel claim below can[not] later add 24 unrelated instances of counsel’s ineffectiveness to that claim.” Id. (citations and internal 25 quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 788 (D. Ariz. 2008) 26 (“Petitioner’s assertion of a claim of ineffective assistance of counsel based on one set of 27 facts, does not exhaust other claims of ineffective assistance based on different facts”). 28 Furthermore, “[a]s a general rule, when ineffective assistance of counsel claims are raised, - 49 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 50 of 75 1 or could have been raised in a Rule 32 post-conviction relief proceeding, subsequent claims 2 of ineffective assistance will be deemed waived and precluded.” State v. Bennett, 146 P.3d 3 63, 67 (Ariz. 2006) (emphasis in original) (quotations and citations omitted); see also Ariz. 4 R. Crim. P. 32.2(a)(3). Therefore, Petitioner’s claim is procedurally defaulted and 5 unavailable for review unless he can show cause and prejudice for the default. 6 ii. No Cause and Prejudice to Excuse Default 7 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 8 courts are prohibited from subsequent review unless the petitioner can show cause and 9 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure 10 to raise claims in state appellate proceeding barred federal habeas review unless petitioner 11 demonstrated cause and prejudice). Petitioner asserts that “[t]he salient question in 12 analyzing a claim of ineffective assistance of appellate counsel is whether the unraised 13 issue, if raised, would have ‘led to a reasonable probability of reversal.’” Petr.’s Reply 14 (Doc. 81) at 74 (citing Hurles v. Ryan, 188 F. Supp. 3d 907, 922 (D. Ariz. 2016)). This is 15 not the appropriate standard. Hurles was a death penalty case, which the Ninth Circuit had 16 remanded to the district court for consideration, “pursuant to Martinez, Hurles’ claim that 17 his counsel performed ineffectively by failing to raise a claim[.]” Hurles, 188 F. Supp. 3d 18 at 918 . When Hurles was decided, “[t]he Ninth Circuit ha[d] expanded Martinez to include 19 procedurally defaulted claims of ineffective assistance of appellate counsel.” Id. at 921 20 (citations omitted). The following year, however, the Supreme Court of the United States 21 foreclosed that rule. See Davila v. Davis, 582 U.S. 521 (2017). The Supreme Court 22 unequivocally declined to extend Martinez “to allow federal courts to consider a different 23 kind of defaulted claim—ineffective assistance of appellate counsel.” Id. at 525. As such, 24 Petitioner must demonstrate cause and prejudice to excuse his procedural default. 25 Petitioner has failed to meet this burden. Murray v. Carrier, 477 U.S. 478 , 494 26 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of 27 prejudice, but that they worked to his actual and substantial disadvantage, infecting his 28 entire trial with error of constitutional dimensions”) (emphasis in original) (internal - 50 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 51 of 75 1 quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 2 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . 3 [and as such,] there is no basis on which to address the merits of his claims.”). Neither has 4 Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional 5 error, no reasonable factfinder would have found [him] guilty of the underlying offense.” — 6 — 28 U.S.C. § 2254 (e)(2)(B). Accordingly, Petitioner’s claim is procedurally defaulted and 7 precluded from habeas review. 8 2. Due Process and Confrontation Rights 9 Grounds D, E, G, H1, H2, and H3 relate to allegations regarding alleged due process 10 violations by the trial court. 11 In Ground D, Petitioner asserts that “the trial court’s refusal to permit Mr. Richter 12 to plead GEI implicated both his due process and confrontation rights.” Third Amended 13 Petition (Doc. 50) at 84. Petitioner argues that “[h]is jury was never able to hear the 14 overwhelming evidence of his serious mental illnesses[,] . . . [and] [he] was unable to 15 effectively cross-examine his wife/co-defendant[.]” Id. (citations omitted). 16 In Ground E, Petitioner alleges that his due process rights were violated because he 17 “was deprived of his right to be competent at his trial.” Id. at 86. 18 In Ground G, Petitioner alleges that “[t]he trial court violated [his] federal due 19 process and fair trial rights when it repeatedly denied Mr. Richter’s requests to sever his 20 trial from Sophia’s[.]” Id. at 89. 21 Grounds H1–H3 assert that “[t]he trial court violated Mr. Richter’s federal due 22 process rights when it permitted the prosecution to introduce victim mental health evidence 23 that did not prove an element of the offence, vouch for the credibility of their key witnesses, 24 and introduce unqualified expert testimony, relieving the prosecution of its burden of proof 25 beyond a reasonable doubt.” Id. at 91 (citations omitted). More specifically, in Ground 26 H1, Petitioner asserts that the State’s expert witness psychiatrist “testified that the victims’ 27 suffered from PTSD and other mental health issues due to Mr. Richter’s acts.” Third 28 Amended Petition (Doc. 50) at 92. Petitioner opines that this testimony was improper - 51 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 52 of 75 1 because it “was not required to prove any element of the charges, but used to capitalize on 2 the jury’s sympathy for the already sympathetic victims.” Id. In Ground H2, Petitioner 3 asserts that the State’s psychiatrist “improperly vouched for the truthfulness of the 4 victims[.]” Id. In Ground H3, Petitioner urges a due process violation because the State’s 5 psychiatrist was allegedly “allowed . . . to testify beyond the scope of his expertise.” Id. 6 a. Fair Presentation 7 As discussed in Sections III.B., supra, the fair presentation requirement mandates 8 that a state prisoner must alert the state court “to the presence of a federal claim” in his 9 petition. Baldwin v. Reese, 541 U.S. 27 , 31–33 (2004). Petitioner did not raise any of these 10 due process claims or his confrontation clause claim on direct appeal or in his PCR petition 11 to the Rule 32 court. See Third Amended Pet. (Doc. 50), Appellant’s Opening Br. (Anders), 12 State v. Richter, No. 2 CA-CR 2016-0112 (Ariz. Ct. App. Sept. 19, 2015) (Doc. 50-4); 13 State v. Richter, No. 2 CA-CR 2016-0112, 2017 WL 491137 , at *1 (Ariz. Ct. App. Jan. 24, 14 2017); Answer (Doc. 55), Petr.’s Pet. for PCR, State v. Richter, No. CR-20135144-001 15 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Furthermore, Petitioner 16 did not raise these claims to the Arizona Court of Appeals on review of his PCR petition. 17 See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz. 18 Ct. App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2). As such, Petitioner did not fairly present 19 his claims to the state court. “[P]etitioner failed to exhaust state remedies and the court to 20 which the petitioner would be required to present his claims in order to meet the exhaustion 21 requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 22 n.1 (citations omitted); Ariz. R. Crim. P. 32.2(a)(3) (2023). Accordingly, the Court finds 23 all of Petitioner’s due process claims and his confrontation claim are procedurally defaulted 24 and unavailable for review unless he can show cause and prejudice for the default. 25 b. No Cause and Prejudice to Excuse Default 26 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 27 courts are prohibited from subsequent review unless the petitioner can show cause and 28 actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure - 52 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 53 of 75 1 to raise claims in state appellate proceeding barred federal habeas review unless petitioner 2 demonstrated cause and prejudice). Petitioner asserts that “an affirmative GEI 3 determination constitutes a finding of innocence, so precluding the GEI defense constitutes 4 a miscarriage of justice excusing any default.” Petr.’s Reply (Doc. 81) at 97. Petitioner 5 further asserts that “[a]lternatively, default of [these] claim[s] is excusable under 6 Martinez.” See id. at 97–111. Petitioner’s contention are without merit. 7 As an initial matter, Martinez is inapplicable to the procedurally default of due 8 process claims regarding the trial court’s actions. See Section IV.A.1.b., supra. Moreover, 9 Petitioner has not met his burden to demonstrate a fundamental miscarriage of justice to 10 excuse default. “The fundamental miscarriage of justice exception is available ‘only where 11 the prisoner supplements his constitutional claim with a colorable showing of factual 12 innocence.’” Herrera v. Collins, 506 U.S. 390, 404 (1993) (emphasis in original) (quoting 13 Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). Thus, “‘actual innocence’ is not itself a 14 constitutional claim, but instead a gateway through which a habeas petitioner must pass to 15 have his otherwise barred constitutional claim considered on the merits.” Id. at 404. “The 16 gateway should open only when a petitioner presents ‘evidence of innocence so strong that 17 a court cannot have confidence in the outcome of the trial unless the court is also satisfied 18 that the trial was free of nonharmless constitutional error.’” McQuiggin v. Perkins, 569 19 U.S. 383 , 401 (2013) (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)). 20 On February 28, 2014, defense counsel filed a Motion for Mental Condition 21 Examination and Stay of Proceedings.23 See Answer (Doc. 55), Def.’s Mot. for Mental 22 Condition Exam and Stay of Proceedings, State v. Richter, No. CR20135144-001 (Pima 23 Cnty. Super. Ct. Feb. 28, 2014) (Exh. “B”) (Doc. 55-1). On March 10, 2014, the trial court 24 granted Defendant’s motion for a Rule 11 examination and appointed two (2) doctors to 25 examine Defendant. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Minute 26 Entry (Pima Cnty. Super. Ct. Mar. 10, 2014) (Exh. “C”) (Doc. 55-1). On March 21, 2014, — 27 — 28 23 The Court supplies information regarding the Rule 11 restoration proceedings to provide a complete timeline of events. - 53 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 54 of 75 1 the trial court issued its order appointing the Rule 11 examiners. Answer (Doc. 55), State 2 v. Richter, No. CR20135144-001, Minute Entry (Pima Cnty. Super. Ct. Mar. 21, 2014) 3 (Exh. “D”) (Doc. 55-1). On June 9, 2014, the trial court found Petitioner incompetent but 4 restorable, and ordered the necessary treatment for his restoration. Answer (Doc. 55), State 5 v. Richter, No. CR20135144-001, Minute Entry (Pima Cnty. Super. Ct. June 8, 2014) (Exh. 6 “F”) (Doc. 55-1). On September 8, 2014, the trial court found Petitioner restored and 7 competent to stand trial. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Minute 8 Entry (Pima Cnty. Super. Ct. Sept. 8, 2014) (Exh. “G”) (Doc. 55-1). 9 At the same hearing, defense counsel moved for a GEI evaluation to be completed, 10 which the trial court granted. Id., Exh. “G.” On September 12, 2014, the trial court 11 appointed Michael Christiansen, Ph.D. to evaluate Petitioner regarding his state of mind at 12 the time of the offense. Answer (Doc. 55), State v. Richter, No. CR20135144-001, Order 13 (Pima Cnty. Super. Ct. Sept. 12, 2014) (Exh. “H”) (Doc. 55-1). On December 8, 2014, 14 based upon Dr. Christiansen’s report, the trial court found Petitioner “did not suffer from 15 a mental disease or defect that would impair his ability to appreciate the wrongfulness of 16 his conduct at the time of the alleged offense(s)[,]” and was therefore not entitled to present 17 a GEI defense or plea at that time. Answer (Doc. 55), State v. Richter, No. CR2013514418 001, Minute Entry (Pima Cnty. Super. Ct. Dec. 8, 2014) (Exh. “I”) (Doc. 55-1); Answer 19 (Doc. 55), State v. Richter, No. CR20135144-001, Hr’g Tr. at 5:4–14 (Pima Cnty. Super. 20 Ct. Dec. 8, 2014) (Exh. “NNN”) (Doc. 55-1). The trial court acknowledged that Petitioner 21 was free to obtain an independent evaluation if he so chose. Id. Defense counsel retained 22 Paul Simpson, Ed.D. to evaluate Petitioner, but his report did not conclusively address 23 Petitioner’s mental state at the time of the offenses. See Third Amended Petition (Doc. 24 50), Simpson Psych. Eval. (Exh. “3”) (Doc. 50-2). 25 In Arizona, “[a] person may be found guilty except insane if at the time of the 26 commission of the criminal act the person was afflicted with a mental disease or defect of 27 such severity that the person did not know the criminal act was wrong.” A.R.S. § 1328 502(A). “A mental disease or defect constituting legal insanity is an affirmative defense[,]” - 54 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 55 of 75 1 and the defendant bears the burden to prove “legal insanity by clear and convincing 2 evidence.” A.R.S. § 13-502(A), (C). Here, the trial court granted defense counsel’s motion 3 for evaluation, stayed the proceedings, appointed a qualified evaluator, and had Petitioner 4 evaluated for a GEI defense. Upon receipt and review of Dr. Christiansen’s report, the trial 5 court made its determination that the GEI defense was unavailable at that juncture. The 6 Arizona statutory scheme for a GEI defense has been found to comport with due process. 7 See Clark v. Arizona, 548 U.S. 735, 756, 779 (2006). 8 Petitioner has not provided any evidence to support his contention that the trial court 9 was required to consider more than one expert evaluation. Moreover, even if the trial court 10 had been presented with more than one expert report, it “could credit one expert over 11 another.” Apelt v. Ryan, 878 F.3d 800, 837 (9th Cir. 2017) (acknowledging the state court’s 12 ability to weigh expert opinion evidence in determining whether defendant suffered major 13 deficits in his adaptive behavior). Furthermore, three (3) of the offenses for which 14 Petitioner was indicted took place over several months. See Answer (Doc. 55), Amended 15 Indictment, State v. Richter, No. CR20135144-001 (Pima Cnty. Super. Ct. Dec. 6, 2013) 16 (Exh. “A”). As such, the Court finds Petitioner’s claim that greater weight should be given 17 to Dr. Gorgueiro’s GEI finding for Petitioner’s “offense in the jail he committed a week 18 after the principal crimes” is unavailing.24 Third Amended Petition (Doc. 50) at 82. The — 19 — — 24 — Dr. Gorgueiro’s report was prepared for Pima County Superior Court Case No. 20 CR20135288-001. It is unclear from the record that is was ever submitted to the trial court in 21 Petitioner’s case from which this habeas arises (Case No. CR20135144-001). The record reflects that the two cases were consolidated for Rule 11 purposes only. Answer (Doc. 55), State v. Richter, 22 No. CR20135144-001, Minute Entry at 12 (Pima Cnty. Super. Ct. Mar. 10, 2014) (Exh. “C”) (Doc. 55-1). Petitioner was arrested on November 26, 2013. Third Amended Petition (Doc. 50) at 14. 23 Review of Dr. Gorgueiro’s report demonstrates that Petitioner’s mental health decompensated 24 during the first days of incarceration. Third Amended Petition (Doc. 50), Gorgueiro’s Rpt. (Exh. “2”) at 12–13 (“In November [2013] . . . noted as emotionally unstable . . . [and] assessed as 25 depressed but denied hallucinations and/or delusions”; “On December 1, 2013 he was described as being cooperative but with severe anxiety, pressured speech and a tangential thought process”; 26 “On December 3, 2013 the defendant . . . reported[ly] made statements to the corrections officer 27 to ‘Get me a gun and I’ll shoot myself”; “On December 4, 2014, the defendant . . . appeared paranoid”; “On December 9, 2014, the day of the alleged offense, the defendant . . . made suicidal 28 statements[,]” “believed his wife was shot in the head[,]” and thought he would only be safe if he remained with the nurse.”). As such, Dr. Gorgueiro’s findings do not support an inference that - 55 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 56 of 75 1 Court further finds that Petitioner has failed to “show that it is more likely than not that no 2 reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup 3 v. Delo, 513 U.S. 298, 327 (1995). As such, he has failed to demonstrate a fundamental 4 miscarriage of justice entitling him to excuse of his procedural default. 5 Petitioner has failed to otherwise demonstrate cause and prejudice to excuse his 6 procedural defaults. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show 7 not merely that the errors . . . created a possibility of prejudice, but that they worked to his 8 actual and substantial disadvantage, infecting his entire trial with error of constitutional 9 dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez10 Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause 11 “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to 12 address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and 13 convincing evidence that but for the constitutional error, no reasonable factfinder would 14 have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254 (e)(2)(B). 15 Accordingly, Petitioner’s due process claims and confrontation claim are procedurally 16 defaulted and precluded from habeas review. 17 B. Merits Analysis of Properly Exhausted Claims 18 The Court finds that Petitioner has exhausted Grounds A1 and C2 of his Third 19 Amended Petition (Doc. 50) and will address the merits of each claim. The Court finds 20 that Ground F was procedurally defaulted, but will additionally address the merits. 21 1. Ground A1: IAC Regarding GEI Defense 22 Petitioner alleges that trial counsel “fail[ed] to adequately investigate and pursue a 23 GEI defense after the trial court disallowed it based solely on the evaluation of its own 24 expert, Dr. Christiansen.” Third Amended Petition (Doc. 50) at 29. Petitioner raised this 25 claim in his PCR petition. See Answer (Doc. 55), Petr.’s Pet. for PCR, State v. Richter, 26 No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). 27 Petitioner also presented this claim to the Arizona Court of Appeals. See Answer (Doc. — 28 — Petitioner did not know right from wrong at the time of the offenses relevant to this case. - 56 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 57 of 75 1 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz. Ct. App. Apr. 8, 2 2019) (Exh. “GGG”) (Doc. 55-2). The Court has delineated the legal standards for 3 assessing ineffective assistance of counsel claims in Section IV.A.1.a., supra. 4 In his PCR petition, Petitioner asserted that he was denied his Sixth Amendment 5 right to counsel, because trial counsel was ineffective when he allegedly abandoned the 6 presentation of a GEI defense. Answer (Doc. 55), Petr.’s Pet. for PCR at 20–21, State v. 7 Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 8 55-2). On July 31, 2018, the Rule 32 court issued its order denying Petitioner’s Petition 9 for Post-Conviction relief. See Third Amended Pet. (Doc. 50), State v. Richter, No. 10 CR20135144-001, Ruling—In Chambers Ruling Re: Denial of PCR (Pima Cnty. Super. 11 Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The court outlined the Strickland25 test which 12 requires Defendant to prove counsel’s performance was deficient and caused prejudice. Id. 13 The Rule 32 court went on to evaluate Defendant’s allegation of trial counsel’s 14 ineffectiveness “based on ‘counsel’s abandonment of presenting a Guilty Except Insane 15 (‘GEI’) defense.’” Id. The court delineated the following timeline of counsel’s work 16 regarding Defendant’s competency: 17 ➢ February 28, 2014 – Motion for Mental Condition Evaluation and 18 Stay of Proceedings. 19 • April 15, 2014 - Rule 11 Evaluation Report – Michael P. 20 Christiansen, Ph.D. - Ex 18A, p. 9 21 ❖ “Competent” 22 • May 12, 2014 – Rule 11 Evaluation Report – Bradley R. Johnson, 23 M.D. - Ex 19, p. 7 24 ❖ “Not Currently Competent, likely able to be able to [sic] brought to competence within a short period of time.” — 25 — 26 ➢ September 8, 2014 – Requested a GEI Evaluation. See Minute Entry 27 dated September 8, 2014. — 28 — — 25 — Strickland v. Washington, 466 U.S. 668 (1984). - 57 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 58 of 75 1 • October 28, 2014 – GEI Evaluation Report – Michael P. 2 Christiansen, Ph. D. - Ex 18B, p. 9 3 ❖ “Not afflicted with mental disease or defect of such severity that he did not know the criminal act was wrong at the time of — 4 — the offense.” — 5 — 6 ➢ September 25, 2014 – Retained Paul Simpson to Conduct 7 Psychological Evaluation. See Appendix B, Exhibit 21, Psychological 8 Evaluation. 9 • July 8, 2015 – Psychological Evaluation – Paul Simpson, Ed.D. – 10 Ex 21, p. 144 11 ❖ “[B]ased on information obtained from available records and self-reporting regarding Defendant’s mental health history — 12 — and considered to have been possible present in a mild to 13 moderate degree at or around the time of the offenses as described below. — 14 — 15 • 295.90 Schizophrenia, with Delusion, multiple episodes, currently in partial remission; — 16 — 17 • 317.0 Intellectual Developmental Disorder, Mild; 18 • 309.81 Posttraumatic Stress Disorder, by history and selfreport; — 19 — • Rule in / out 331.83 Major or Mild Neurocognitive — 20 — Disorder Due to Traumatic Brain Injury.” — 21 — — 22 — Id., Exh. “14” at 46–47 (alterations in original) (punctuation in original). The Rule 23 32 court observed that following defense counsel’s request for a mental competency 24 examination, the proceedings were stayed; two (2) evaluations occurred with Dr. 25 Christiansen finding Defendant competent and suggesting possible malingering, and Dr. 26 Johnson opining that Defendant was not currently competent but likely restorable; and 27 Defendant was restored. Id., Exh. “14” at 45–47. The Rule 32 court further noted that 28 defense counsel sought a GEI evaluation, which was also performed by Dr. Christiansen. - 58 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 59 of 75 1 Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, Ruling—In 2 Chambers Ruling Re: Denial of PCR at 45–47 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. 3 “14”) (Doc. 50-4). The Rule 32 court also noted that “Dr. Christiansen concluded, ‘In [his] 4 professional opinion, data indicates at the time of the commission of the criminal act, the 5 defendant was not afflicted with a mental disease or defect of such severity that he did not 6 know the criminal act was wrong.’” Id., Exh. “14” at 46. The Rule 32 court indicated that 7 “[t]he trial judge accepted these findings and ruled Defendant ineligible for the GEI 8 defense.” Id. (citations omitted). The Rule 32 court found defense counsel’s decisions not 9 to seek reconsideration of the trial court’s decision or otherwise pursue a second GEI 10 evaluation were not unreasonable. Id. The Rule 32 court concluded that Defendant had 11 failed to meet his burden to show defense counsel fell below prevailing norms or had been 12 otherwise ineffective. Id., Exh. “14” at 47. 13 The appellate court noted that “[t]he [Rule 32] court clearly identified the claims 14 raised and resolved them correctly in its minute entry, which [the appellate court] 15 adopt[ed].” Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. 16 Decision at 33 (Ariz. Ct. App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2) (citing State v. 17 Whipple, 866 P.2d 1358, 1360 (Ariz. Ct. App. 1993)). The appellate court “reject[ed] 18 Richter’s assertion on review that the [Rule 32] court abused its discretion by denying his 19 claim of ineffective assistance of trial counsel ‘[w]ithout factual analysis.’” Id., Exh. 20 “GGG” at 34 (second alteration in original). The appellate court further observed that 21 “[a]lthough Richter contends he was prejudiced by counsel’s failure to seek a 22 neuropsychological evaluation after the court rejected a guilty-except-insane defense the 23 first time, he has not presented any evidence that such an exam would have resulted in 24 evidence different from that before the court in the first instance.” Id. The appellate court 25 concluded that the Rule 32 court “properly determined [Petitioner] had not established 26 prejudice.” Id. 27 On habeas review, Petitioner asserts that trial counsel “deficiently failed to pursue 28 the GEI defense after it was disallowed based on Dr. Christiansen’s report.” Third - 59 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 60 of 75 1 Amended Petition (Doc. 50) at 29. Petitioner asserts that Dr. Christiansen’s finding that 2 there was evidence of Petitioner’s “malingering” “was unsupportable and absurd.” Petr.’s 3 Reply (Doc. 81) at 20. Dr. Christiansen reviewed Petitioner’s medical and psychiatric 4 treatment history. Third Amended Petition (Doc. 50) , Christiansen Eval. 10/2/2014 (Exh. 5 “10”) (Doc. 50-4) at 4–6. Dr. Christiansen observed that Petitioner’s COPE psychiatrist 6 described him “as ‘mentally stable’ on 11/27/2012, 12/31/2012 and 3/8/2013.” Id., Exh. 7 “10” at 5 (emphasis in original). On September 13, 2013, COPE staff described Petitioner 8 “as having perseverative thought process and ‘paranoid thought patterns’ were listed but 9 not specified.” Id. (emphasis in original). Dr. Christiansen reported that “[t]he Title 36 10 evaluation by Dr. Keller 12/30/2013 note[d] the defendant was noted the day after his 11 intake to the jail “to be anxious and detoxing off of opiates and benzodiazepines.” Id., Exh. 12 “10” at 6 (emphasis in original). Dr. Christiansen further noted that “[a] Conmed mental 13 health clinician noted an impression of psychosis N[ot ]O[therwise ] S[pecified] versus 14 malingering on 12/13/2013.” Id. Dr. Christiansen further noted that “[t]hroughout 15 December 2013 the defendant presented inconsistently in terms of reported delusional 16 though content[,] [and] [h]e was not described in a manner that is clearly compelling of 17 genuine ongoing delusions.” Third Amended Petition (Doc. 50), Exh. “10” at 6. As an 18 example, Dr. Christiansen noted that “[o]n 1/03/2014 he reported ‘he no longer thinks that 19 COs are trying to kill him,’ despite being noncompliant with psychotropic medications.” — 20 — Id. (emphasis in original). Regarding Petitioner’s medications, Dr. Christiansen reported 21 that: 22 [Petitioner] affirmed that he was taking medications “since my car accident” and that prior to the crime he was taking them, “sometimes a little — 23 — more than I needed to.” Specifically taking “2 Zyprexa; just to help me out 24 with my voices and stuff.” He also endorsed taking “Valiums” to help him sleep. He then reported taking Trazodone, affirming he took more than 25 prescribed by COPE to help him sleep. Despite his reported vague recall for 26 other information he reported specific information regarding medications, that he was supposed to take “Zyprexa only once a day” but the day prior to 27 his arrest he took “2 Zyprexa’s and the Valiums, 6 to 8 pills, plus all kind 28 of others” prescribed to him. He recalled being prescribed “one Zyprexa and Valium, limit four per day.” He recalled taking “oxycodone and - 60 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 61 of 75 1 ibuprofen . . . For hand pain.” — 2 — Id., Exh. “10” at 7 (emphasis and alterations in original). Dr. Christiansen found 3 incongruity with Petitioner’s “reporting details regarding his medications and some of his 4 activities, [but] he also claimed ‘I don’t remember nothing[,] I just remember people 5 being everywhere” at the time of his arrest including a ‘big black person.’” Id., Exh. “10” 6 at 8. Dr. Christiansen also noted that “[t]he defendant intimated having symptoms of 7 severe psychosis upon arrival to the jail, ‘hearing voices all the time . . . Talking about 8 raping Sofia; killing me and Sofia . . . I heard Sofia screaming in the background.’” Id. 9 Dr. Christiansen also reviewed law enforcement records and noted that “[a] TPD incident 10 report dated 11/30/2013 describes behavior from the defendant that seems to reflect 11 malingering, being unresponsive but then showing normal vital signs and ‘after hearing he 12 would not be transported’ to the hospital the defendant ‘woke up and sat up on his own[;] 13 [h]e then placed himself in the back seat of the patrol vehicle.” Third Amended Petition 14 (Doc. 50), Exh. “10” at 9 (emphasis in original). Dr. Christiansen administered the SIRS15 2 as a symptom validity test. Id. “The defendant was asked to report on symptoms he 16 experienced in the period of time from about one week prior, up to the time of his arrest.” — 17 — Id. Dr. Christiansen observed that “[w]hile [Petitioner] reported poor recall on direct 18 questioning for this time, on this instrument the defendant made several comments 19 suggesting intact recall such as having difficulty making every day [sic] decisions “yeah 20 because my voices always kicked in . . . Tell me to do something different.” Id. (emphasis 21 in original). Dr. Christiansen reported that Petitioner “scored in the definite range of 22 malingering on 2 of 8 primary scales, and scored in the probable range on 4 other scales[,] 23 . . . leading to a classification decision of feigning.” Id. (emphasis in original). Based 24 upon the testing, his examination, and other evidence, Dr. Christiansen concluded that 25 Petitioner was not afflicted with a mental disease of defect of such severity that he did not 26 know the criminal act was wrong. Third Amended Petition (Doc. 50), Exh. “10” at 10. 27 Petitioner submits an evaluation of Petitioner by Bhushan S. Agharkar, M.D., 28 D.F.A.P.A. to assert, inter alia, that Dr. Christiansen’s use of the SIRS-2 effort test - 61 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 62 of 75 1 inappropriate due to Petitioner’s “low intellectual functioning, head trauma, and/or active 2 psychosis.” Third Amended Petition (Doc. 50), Agharkar Eval. (Exh. “17”) (Doc. 50-5) at 3 201. As discussed in Section III.D., supra, “review under § 2254(d)(1) is limited to the 4 record that was before the state court that adjudicated the claim on the merits.” Cullen v. 5 Pinholster, 563 U.S. 170, 181 (2011). As such, the Court will not consider Dr. Agharkar’s 6 evaluation.26 Also, as discussed in Section IV.A.2.b., supra, the Court finds Dr. 7 Gorgueiro’s GEI finding in the subsequent case not relevant to assessing Dr. Christiansen’s 8 findings in this case. Furthermore, to the extent that Dr. Gorgueiro’s evaluation was not 9 before the state court in the underlying case relevant to this habeas, it is precluded from 10 review. 11 Petitioner also asserts that “Respondent inexplicably argues that despite a merits 12 ruling on this claim by the Court of Appeals, the ‘last reasoned decision’ was made by the 13 PCR court.” Petr.’s Reply (Doc. 81) at 23 (citations omitted). Petitioner opines that “the 14 Court of Appeals decision denying relief was the last reasoned decision on this claim.” Id. 15 (citations omitted). “Although [the] AEDPA generally requires federal courts to review 16 one state decision, if the last reasoned decision adopts or substantially incorporates the 17 reasoning from a previous state court decision, we may consider both decisions to fully 18 ascertain the reasoning of the last decision.” Edwards v. Lemarque, 475 F.3d 1121 , 1126 19 (9th Cir. 2007) (quotations and citations omitted). Because the Arizona Court of Appeals 20 unequivocally adopts the Rule 32 court’s decision, this Court will consider both decisions. 21 See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision at 33 — 22 — — 26 — Aside from the proscription on considering information beyond the State court record, 23 the Court notes that there are several deficiencies which make Dr. Agharkar’s evaluation 24 unhelpful. First, Dr. Agharkar’s evaluation took place on September 19, 2021, well after the 2017 incident which Petitioner now asserts has so compromised his mental acuity that his continued 25 incarceration violates the Eighth Amendment. See Third Amended Petition (Doc. 50) at 93–116 & Agharkar Eval. (Exh. “17”). Dr. Agharkar acknowledges the limitations this places on any 26 current evaluation. See Third Amended Petition (Doc. 50), Exh. “17” at 202–204. Dr. Agharkar 27 also acknowledges the limited value of retrospective examinations. Id., Exh. “17” at 200. Finally, one of Dr. Agharkar criticisms of Dr. Christiansen’s findings was because he “only spent ninety 28 minutes evaluating Mr. Richter”; however, this fails to account for the additional time Dr. Christiansen had previously spent examining Petitioner under Rule 11. See id., Exh. “17” at 201. - 62 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 63 of 75 1 (Ariz. Ct. App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2) (citing State v. Whipple, 866 P.2d 2 1358, 1360 (Ariz. Ct. App. 1993)). 3 “In general, an attorney is entitled to rely on the opinions of mental health experts 4 in deciding whether to pursue an insanity or diminished capacity defense.” Williams v. 5 Woodford, 384 F.3d 567, 611 (9th Cir. 2004) (citations omitted). The Ninth Circuit has 6 “previously held that defense counsel reasonably declined to pursue a mental-state defense 7 when two experts opined that the defendant was neither insane nor diminished in mental 8 capacity, and a third could not reach a conclusion.” Id. (citations omitted). Furthermore, 9 “the passage of time and the difficulties inherent in evaluating the defendant’s competence 10 from a written record reduce the likelihood of an accurate retrospective determination.” Id. 11 at 610 (citing Pate v. Robinson, 383 U.S. 375, 387 (1966)). 12 Here, the PCR court properly delineated the Strickland test for assessing counsel’s 13 performance. Third Amended Pet. (Doc. 50), State v. Richter, No. CR20135144-001, 14 Ruling—In Chambers Ruling Re: Denial of PCR at 45 (Pima Cnty. Super. Ct. July 31, 15 2018) (Exh. “14”) (Doc. 50-4). The PCR court then provided a timeline of counsel’s work 16 regarding Defendant’s competency. Id., Exh. “14” at 46–47. The Rule 32 court noted that 17 upon Petitioner’s restoration, defense counsel sought a GEI evaluation. Id., Exh. “14” at 18 45–47. The Rule 32 court reiterated Dr. Christiansen’s professional opinion that “at the 19 time of the commission of the criminal act, the defendant was not afflicted with a mental 20 disease or defect of such severity that he did not know the criminal act was wrong.” Id., 21 Exh. “14” at 46. This finding was accepted by the trial judge and Defendant was ruled 22 ineligible for the GEI defense. Id. (citations omitted). The Rule 32 court concluded that 23 Defendant had failed to meet his burden to show defense counsel fell below prevailing 24 norms or had been otherwise ineffective. Third Amended Pet. (Doc. 50), State v. Richter, 25 No. CR20135144-001, Ruling—In Chambers Ruling Re: Denial of PCR at 47 (Pima Cnty. 26 Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The appellate court agreed and further 27 noted that “[a]lthough Richter contends he was prejudiced by counsel’s failure to seek a 28 neuropsychological evaluation after the court rejected a guilty-except-insane defense the - 63 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 64 of 75 1 first time, he has not presented any evidence that such an exam would have resulted in 2 evidence different from that before the court in the first instance.” Answer (Doc. 55), State 3 v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision at 34 (Ariz. Ct. App. Apr. 8, 2019) 4 (Exh. “GGG”) (Doc. 55-2). 5 Despite Petitioner’s exhortations, Dr. Christiansen did not conclude that Petitioner 6 was not schizophrenic, or have other mental illnesses, rather Dr. Christiansen found that 7 those illnesses did not keep Petitioner from appreciating the wrongfulness of his conduct. 8 See Clark v. Arizona, 548 U.S. 735, 746 (2006) (alterations in original) (defendant’s 9 paranoid schizophrenia “did not . . . distort his perception of reality so severely that he did 10 not know his actions were wrong.”) Furthermore, trial counsel retained Dr. Simpson to 11 evaluate Petitioner, although this evaluation did not conclude that Petitioner did not know 12 his actions were wrong. Petitioner assumes that this is a failing attributable to trial counsel. 13 On habeas review, “[c]ounsel’s competence, however, is presumed[.]” Kimmelman v. 14 Morrison, 477 U.S. 365, 385 (1986) (citing Strickland, 466 U.S. at 689 ). “Under § 2254(d), 15 a state prisoner ‘must show that the state court’s ruling on the claim being presented in the 16 federal court was so lacking in justification that there was an error well understood and 17 comprehended in existing law beyond any possibility for fairminded disagreement.’” 18 Walden v. Shinn, 990 F.3d 1183, 1195 (9th Cir. 2021) (quoting Harrington v. Richter, 562 19 U.S. 86, 103 (2011)). Petitioner has failed to make such a showing nor has he shown “‘that 20 counsel made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed 21 the defendant by the Sixth Amendment.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) 22 (quoting Strickland, 466 U.S. at 689 ). Accordingly, the Court finds that Petitioner has 23 failed to meet his burden to show that the appellate court’s findings were contrary to, or an 24 unreasonable application of, clearly established Supreme Court precedent or resulted in a 25 decision based on an unreasonable determination of the facts. See 28 U.S.C. § 2254 (d). 26 As such, Petitioner’s claim regarding ineffective assistance of trial counsel for an alleged 27 failure to pursue a GEI defense is denied. 28 ... - 64 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 65 of 75 1 2. Ground C2: IAC Regarding Anders Brief 2 Petitioner alleges that “the Anders brief filed by [appellate counsel] contained 3 numerous errors and omissions and failed to present the strongest arguments in favor of 4 Mr. Richter.” Third Amended Petition (Doc. 50) at 77–78. Petitioner raised this claim in 5 his PCR petition. See Answer (Doc. 55), Petr.’s Pet. for PCR, State v. Richter, No. CR6 20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). Petitioner 7 also presented this claim to the Arizona Court of Appeals. See Answer (Doc. 55), State v. 8 Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz. Ct. App. Apr. 8, 2019) (Exh. 9 “GGG”) (Doc. 55-2). The Court has delineated the legal standards for assessing ineffective 10 assistance of counsel claims in Section IV.A.1.a., supra. As discussed in Section IV.A.1.g., 11 supra, the individual claims that Petitioner argues appellate counsel should have brought 12 are procedurally defaulted and will not be reviewed on habeas. Arguably, the addition of 13 those claims fundamentally altered Petitioner’s claim of ineffective assistance of appellate 14 counsel. See Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (“conclud[ing] that the 15 new allegations and evidence Dickens presented to the federal court fundamentally altered 16 Dickens’s previously exhausted IAC claim.”); see also Nevius v. Sumner, 852 F.2d 463 , 17 470 (9th Cir. 1988) (citations omitted) (“In habeas proceedings, the federal courts are not 18 free to entertain new evidence that places the claim in a significantly different posture, 19 when that evidence was never presented to the state courts.”) As such, the entirety of 20 Ground C would be procedurally exhausted. Because Petitioner exhausted this portion of 21 the claim, however, the Court will consider it. 22 In his PCR petition, Petitioner asserted that appellate counsel did not adequately 23 review the record prior to filing an Anders brief, depriving Petitioner of an adequate appeal. 24 Answer (Doc. 55), Petr.’s Pet. for PCR at 17–19, 21–22, State v. Richter, No. CR25 20135144-001 (Pima Cnty. Super. Ct. Feb. 27, 2018) (Exh. “EEE”) (Doc. 55-2). On July 26 31, 2018, the Rule 32 court issued its order denying Petitioner’s Petition for Post27 Conviction relief. See Third Amended Pet. (Doc. 50), State v. Richter, No. CR2013514428 001, Ruling—In Chambers Ruling Re: Denial of PCR (Pima Cnty. Super. Ct. July 31, - 65 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 66 of 75 1 2018) (Exh. “14”) (Doc. 50-4). The Rule 32 court properly outlined the Strickland 2 standard. Id., Exh. “14” at 47. The court also stated the Anders requirements of appellate 3 counsel, including filing “a brief referring to anything in the record that might arguably 4 support the appeal.” Id., Exh. “14” at 48. The Rule 32 court observed that “appellate 5 counsel’s ‘Statement of the Relevant Facts’ in his Anders brief spans 18 pages with specific 6 citations to the transcripts of Defendant’s 15-day trial.” Id. The Rule 32 court further 7 observed that “appellate counsel found no arguable issues for appeal or questions of law[;] 8 . . . asked the Court of Appeals to review the record for error, filing a motion for leave to 9 allow Defendant to submit a supplemental brief in propria persona[;] Defendant then failed 10 to do so[;] [and] [t]he Court of Appeals searched the record for fundamental, reversible 11 error and found none, ultimately affirming Defendant’s convictions.” Id. The Rule 32 12 court found “Defendant’s conclusory claims [ ] inadequate as he fail[ed] to cite to any 13 specific error(s) in either facts or law[,] . . . [and] [he] fail[ed] to show prejudice as the facts 14 and law against Defendant were overwhelming[.]” Third Amended Pet. (Doc. 50), State 15 v. Richter, No. CR20135144-001, Ruling—In Chambers Ruling Re: Denial of PCR at 48 16 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The Rule 32 court 17 concluded that “appellate counsel fulfilled his obligations to the Defendant under Anders.” — 18 — Id. The Arizona Court of Appeals adopted the Rule 32 court’s summary denial. See 19 Answer (Doc. 55), State v. Richter, No. 2 CA-CR 2018-025-PR, Mem. Decision (Ariz. Ct. 20 App. Apr. 8, 2019) (Exh. “GGG”) (Doc. 55-2). 21 Petitioner’s claim that appellate counsel filed a deficient Anders brief is without 22 merit. The record indicates that appellate counsel complied with the Arizona procedures 23 delineated in State v. Clark, 2 P.3d 89, 96 (Ariz. Ct. App. 1999). See Section I.B. at n.5, 24 supra (outlining Arizona’s procedure for filing an Anders brief). “It is not enough ‘to show 25 that [counsel’s] errors had some conceivable effect on the outcome of the proceeding.’” 26 Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 693 ). 27 Furthermore, “a state prisoner must show that the state court's ruling on the claim being 28 presented in federal court was so lacking in justification that there was an error well - 66 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 67 of 75 1 understood and comprehended in existing law beyond any possibility for fairminded 2 disagreement.” Id. at 103. 3 Here, Petitioner has failed to show “‘that [appellate] counsel made errors so serious 4 that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 5 Amendment.’” Id. at 104 (quoting Strickland, 466 U.S. at 689 ). Accordingly, the Court 6 finds that Petitioner has failed to meet his burden to show that the appellate court’s findings 7 were contrary to, or an unreasonable application of, clearly established Supreme Court 8 precedent or resulted in a decision based on an unreasonable determination of the facts. 9 See 28 U.S.C. § 2254 (d). As such, Petitioner’s claim regarding ineffective assistance of 10 appellate counsel for an allegedly deficient Anders brief is denied. 11 3. Ground F: Denial of New Counsel 12 Petitioner alleges that he was deprived of his right to counsel when the trial court 13 denied his motion for new counsel. Third Amended Petition (Doc. 50) at 86–89. Petitioner 14 further urges that because he had an irreconcilable conflict with trial counsel, the state 15 courts’ determinations that he was not entitled to new counsel were an unreasonable 16 application of Supreme Court precedent and “based on an unreasonable determination of 17 the facts.” Id. at 88–89; see also Petr.’s Reply (Doc. 81) at 100–103. 18 a. Procedural default 19 This claim is procedurally defaulted. In his PCR Petition, Petitioner claims that his 20 “right to counsel” was violated because “[d]espite two letters from Defendant[,] . . . the 21 [c]ourt with no notice to Defendant, and no time for Mr. Skitzki to confer privately with 22 Defendant, conducted an inadequate Torres mini-hearing.” See Answer (Doc. 55), Petr.’s 23 Pet. for PCR at 22, State v. Richter, No. CR-20135144-001 (Pima Cnty. Super. Ct. Feb. 24 27, 2018) (Exh. “EEE”) (Doc. 55-2). Petitioner further referenced “a complete breakdown 25 in communications or an irreconcilable conflict[.]” Id. Petitioner does not reference the 26 Sixth Amendment to the United States Constitution until his Reply. See Answer (Doc. 55), 27 Def.’s Reply to Pet. for PCR at 28, State v. Richter, No. CR-20135144-001 (Pima Cnty. 28 Super. Ct. Feb. 27, 2018) (Exh. “FFF”) (Doc. 55-2). As such, this claim was not “fairly - 67 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 68 of 75 1 presented” to the State courts and is now procedurally defaulted. State v. Lopez, 221 P.3d 2 1052, 1054 (Ariz. Ct. App. 2009) (in a Rule 32 proceeding, issues raised for the first time 3 in reply may be deemed waived); Baldwin v. Reese, 541 U.S. 27 , 31–33 (2004) (state 4 prisoner must alert the state court “to the presence of a federal claim” in his petition); Ariz. 5 R. Crim. P. 32.2(a). 6 Petitioner has failed to otherwise demonstrate cause and prejudice to excuse the 7 procedural default. Murray v. Carrier, 477 U.S. 478, 494 (1986) (Petitioner “must show 8 not merely that the errors . . . created a possibility of prejudice, but that they worked to his 9 actual and substantial disadvantage, infecting his entire trial with error of constitutional 10 dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez11 Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause 12 “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to 13 address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and 14 convincing evidence that but for the constitutional error, no reasonable factfinder would 15 have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254 (e)(2)(B). 16 Accordingly, Petitioner’s claim is procedurally defaulted and precluded from habeas 17 review. 18 Additionally, the Rule 32 court’s order regarding the trial court’s denial of 19 Defendant’s motion for new counsel focuses on Arizona state law, and correcting errors of 20 state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 21 62, 67 (1991). However, “federal courts on habeas corpus review of state prisoner claims, 22 . . . will presume that there is no independent and adequate state ground for a state court 23 decision when the decision fairly appears to rest primarily on federal law, or to be 24 interwoven with the federal law, and when the adequacy and independence of any 25 possible state law ground is not clear from the face of the opinion.” Coleman v. Thompson, 26 501 U.S. 722 , 734–35 (emphasis added) (quotations and citation omitted). Furthermore, 27 “when a state court issues an order that summarily rejects without discussion all the claims 28 raised by a defendant, including a federal claim that the defendant subsequently presses in - 68 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 69 of 75 1 a federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) 2 that the federal claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289 , 3 293 (2013). Because the Rule 32 court’s order obliquely references the Sixth Amendment 4 right to counsel, the Court will address the merits of this claim. 5 b. Merits analysis 6 “In all criminal prosecutions, the accused shall enjoy the right . . . to have the 7 Assistance of Counsel for his defence.” U.S. Const., amend. VI. “[A]n indigent 8 defendant[, however,] does not have an unqualified right to the appointment of counsel of 9 his own choosing.” Morris v. Slappy, 461 U.S. 1, 10 (1983) (quotations and citations 10 omitted). “In evaluating a trial court’s denial of a motion for new counsel, [a federal court] 11 consider[s] a number of factors, including the timeliness of the motion, the adequacy of the 12 court’s inquiry into the defendant’s complaint, and whether the conflict between the 13 defendant and his counsel was so great that it resulted in a total lack of communication 14 preventing an adequate defense.” Hudson v. Rushen, 686 F.2d 826, 829 (1982) (citations 15 omitted). Relying on state law, the Rule 32 court outlined the factors for consideration 16 when addressing a request to change counsel, to include 1) the existence of an 17 irreconcilable conflict; 2) whether new counsel would be confronted by the same conflict; 18 3) timing of the motion; 4) inconvenience to witnesses; 5) amount of time elapsed since 19 the alleged offense; 6) defendant’s proclivity to change counsel; and 7) quality of counsel. — 20 — Id., Exh. “14” at 42–43 (quoting State v. Moody, 968 P.2d 578, 580 (Ariz. 1998) (citations 21 omitted)). The court further observed that “in most cases, the ‘quality of counsel’ factor 22 will not be a consideration when a defendant seeks a substitution of counsel.” Id., Exh. 23 “14” at 43 (citing State v. Torres, 93 P.3d1056, 1060 (Ariz. 2004)). Because Arizona’s 24 Moody list of factors encompasses the non-exhaustive list in Hudson, the Court finds that 25 the Rule 32 court delineated the proper standard. 26 The Rule 32 court noted that upon receipt of two ex parte letters requesting change 27 of counsel, it held a Torres hearing at the earliest opportunity, which was eight (8) weeks 28 before trial and twenty-one (21) months after indictment. Third Amended Pet. (Doc. 50), - 69 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 70 of 75 1 State v. Richter, No. CR20135144-001, Ruling—In Chambers Ruling Re: Denial of PCR 2 at 43 (Pima Cnty. Super. Ct. July 31, 2018) (Exh. “14”) (Doc. 50-4). The court reviewed 3 the Torres hearing record, including Defendant’s and counsel’s respective positions. Id.; 4 see also Section IV.A.1.b.ii., supra. The Rule 32 court also reviewed Defendant’s claims 5 to Bradley Johnson, M.D. regarding the number of meetings with counsel, found those 6 statements to be inaccurate, and observed that prior to Defendant’s letters to the court, “trial 7 counsel visited with Defendant a minimum of 12 times, most for ‘unknown duration(s).’” 8 Id., Exh.”14” at 44. The Rule 32 court concluded that Defendant had failed to meet his 9 burden to show either a complete breakdown in communication or an irreconcilable 10 conflict. Id., Exh. “14” at 43–44. 11 “Factual determinations by state courts are presumed correct absent clear and 12 convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits 13 in a state court and based on a factual determination will not be overturned on factual 14 grounds unless objectively unreasonable in light of the evidence presented in the state15 court proceeding, § 2254(d)(2).” Miller-El v. Cockrell, 537 U.S. 322, 324 (2003). Review 16 of the state court record confirms that “based on the record and on [Petitioner’s] testimony 17 during the motion, there is no evidence of a total lack of communication between 18 [Petitioner] and his attorney resulting in a complete inability to present a defense.” Haines 19 v. Roe, 90 Fed. Appx. 525, 528 (9th Cir. 2004). The Court finds that Petitioner has failed 20 to meet his burden to show that the appellate court’s findings were contrary to, or an 21 unreasonable application of, clearly established Supreme Court precedent or resulted in a 22 decision based on an unreasonable determination of the facts. See 28 U.S.C. § 2254 (d). 23 As such, Petitioner’s claim is denied. 24 C. Untimely Claims 25 The Court finds that Petitioner’s Ground I is untimely and therefore unreviewable 26 on habeas. In Ground I, Petitioner asserts that after a 2017 prison assault he is “unable to 27 form a rational understanding of what he was convicted of and why he is in prison.” Third 28 Amended Petition (Doc. 50) at 93. Petitioner further asserts that his continued - 70 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 71 of 75 1 incarceration under these circumstance violates the Eighth Amendment. Id. at 93–116. 2 “Federal Rules of Civil Procedure 15(c)(1)(B) and 10(c) apply in habeas 3 proceedings. Ross v. Williams, 950 F.3d 1160, 1166 (9th Cir. 2020). Rule 15 provides, in 4 relevant part: “An amendment to a pleading relates back to the date of the original pleading 5 when[] . . . the amendment asserts a claim or defense that arose out of the conduct, 6 transaction, or occurrence set out—or attempted to be set out—in the original pleading[.]” 7 Fed. R. Civ. P. 15(c)(1)(B). Furthermore, as discussed in Section II., supra, the AEDPA 8 mandates a one-year statute of limitations. 28 U.S.C. § 2244 (d)(1). 9 Petitioner’s habeas petition was required to be filed within one year from “the date 10 on which the judgment became final by the conclusion of direct review or the expiration 11 of the time for seeking such review.” 28 U.S.C. § 2244 (d)(1)(A); see also McQuiggin v. 12 Perkins, 569 U.S. 383 (2013). On January 24, 2017, the Arizona Court of Appeals affirmed 13 Petitioner’s convictions and sentences on direct review. See State v. Richter, No. 2 CA14 CR 2016-0112, 2017 WL 491137 (Ariz. Ct. App. Jan. 24, 2017). Petitioner did not seek 15 review the Arizona Supreme Court. See Answer (Doc. 55), State v. Richter, No. 2 CA-CR 16 2016-0112, Mandate (Ariz. Ct. App. Apr. 12, 2017) (Exh. “BBB”) (Doc. 55-1). As such, 17 Petitioner’s judgment became final on became final on February 23, 2017, thirty (30) days 18 after the appellate court entered its decision. See Ariz. R. Crim. P. 31.21(b)(2). Therefore, 19 limitations period for AEDPA purposes began to run on February 24, 2017. On May 8, 20 2017, Petitioner filed his Notice of Post-Conviction Relief, thereby tolling the limitations 21 period. See Answer (Doc. 55), Petr.’s Not. of PCR, State v. Richter, No. CR-2013514422 001 (Pima Cnty. Super. Ct. May 8, 2017) (Exh. “CCC”) (Doc. 55-1). At this point seventy23 three (73) days had elapsed. Petitioner’s post-conviction proceedings continued until 24 September 23, 2019, when the Arizona State Supreme Court denied review. Answer (Doc. 25 55), State v. Richter, No. CR-19-0157-PR, Memorandum (Ariz. Sept. 23, 2019) (Exh. 26 “III”) (Doc. 55-2). Accordingly, the limitations period began to run on September 24, 27 2019. The one-year statute of limitations ended on July 14, 2020. 28 Petitioner’s original habeas petition was timely filed on May 13, 2020. See Petition - 71 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 72 of 75 1 (Doc. 1). Petitioner’s Third Amended Petition (Doc. 50) was filed on December 21, 2021. 2 “[A]n amendment made after the statute of limitations has run ‘relates back to the date of 3 the original pleading,’ thereby avoiding AEDPA’s time bar, when ‘the amendment asserts 4 a claim . . . that arose out of the conduct, transaction, or occurrence set out—or attempted 5 to be set out—in the original pleading.” Walden v. Shinn, 990 F.3d 1183, 1202 (9th Cir. 6 2021) (quoting Fed. R. Civ. P. 15(c)(1)(B)). “[R]elation back requires a single course or 7 pattern of conduct—not factually and temporally unrelated conduct arising out of the same 8 underlying proceeding.” Ross v. Williams, 950 F.3d 1160, 1171 (9th Cir. 2020) (en banc). 9 Here, Petitioner’s Ground I relates to alleged cognitive and mental health decline 10 following a 2017 prison assault. Third Amended Petition (Doc. 50) at 93–116. This claim 11 is wholly unrelated to the alleged errors arising from the 2013 offenses, criminal trial, 12 appeal, and post-conviction proceedings. “[T]he actors [are] different, the alleged error 13 [is] different, and the time [the] claim[s] arose [is] different[.]” Walden, 990 F.3d at 1203 14 (citations omitted). “Thus, the ‘barrier to relation back’ here ‘is the difference between 15 [the claims’] respective factual predicates.’” Id. (alterations in original) (quoting Alfaro v. 16 Johnson, 862 F.3d 1176, 1184 (9th Cir. 2017)). 17 The Supreme Court of the United States has held “that § 2244(d) is subject to 18 equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631 , 645 (2010). The 19 Ninth Circuit Court of Appeals “will permit equitable tolling of AEDPA’s limitations 20 period only if extraordinary circumstances beyond a prisoner’s control make it impossible 21 to file a petition on time.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (quotations 22 and citations omitted). Moreover, Petitioner “bears the burden of establishing two 23 elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary 24 circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also 25 Holland, 130 S. Ct. at 2562 (quoting Pace). 26 Counsel was appointed in this matter on May 21, 2020 and were co-counsel on the 27 2019 civil rights suit arising from the 2017 incident. See Richter v. Romero, et al., No. 28 CV-19-05513-DGC (JZB), Docket (D. Ariz.). As such, counsel have been aware from the - 72 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 73 of 75 1 beginning about the underpinnings of this claim. Counsel asserts that Petitioner can prove 2 entitlement to equitable tolling due to mental incapacity. Petr.’s Response (Doc. 81) at 3 115. Petitioner, however, has been represented by counsel and “the attorney is the 4 petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the 5 petitioner must bear the risk of attorney error.” Coleman, 501 U.S. at 753 (internal 6 quotations omitted). The record does not support a finding that Petitioner has been 7 pursuing his rights diligently here. Furthermore, Petitioner has failed to meet the “very 8 high threshold” of establishing that extraordinary circumstances beyond his control made 9 it impossible for him to timely file a habeas petition and that those extraordinary 10 circumstances were the cause of his untimeliness. United States v. Battles, 362 F.3d 1195 , 11 1197 (9th Cir. 2004). As such, Petitioner is not entitled to equitable tolling and his habeas 12 petition as to Ground I is untimely. The Court recommends that Ground I be denied 13 because it is untimely.27 14 D. Evidentiary Hearing 15 As outlined in Section III.D., supra, the grounds for an evidentiary hearing are 16 narrow. “Either a claim must rely on (1) a ‘new’ and ‘previously unavailable’ ‘rule of — 17 — — 27 — Additionally, this claim was not “fairly presented” to the State courts and is now 18 procedurally defaulted. Rose v. Lundy, 455 U.S. 509, 520 (1982) (exhaustion requirements 19 “provide[] a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.”); Coleman, 501 U.S. 722 , 20 735 n.1 (1991) (citations omitted) (“petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion 21 requirement would now find the claims procedurally barred.”); Ariz. R. Crim. P. 32.2(a). 22 Petitioner has failed to otherwise demonstrate cause and prejudice to excuse his procedural defaults. Murray v. Carrier, 477 U.S. 478, 494 , 106 S. Ct. 2639, 2648 , 91 L. Ed. 2d 397 (1986) 23 (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that 24 they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also 25 Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on which to 26 address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing 27 evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254 (e)(2)(B). As an aside, it remains unclear that 28 habeas review is the proper forum for the relief Petitioner seeks, rather it may be a proper issue for clemency proceedings. - 73 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 74 of 75 1 constitution law’ made retroactively applicable by th[e] [Supreme] Court, or (2) ‘a factual 2 predicate that could not have been previously discovered through the exercise of due 3 diligence.’” Shinn v. Ramirez, 596 U.S. 366, 382 (2022) (citing 28 U.S.C. §§ 4 2254(e)(2)(A)(i), (ii)). A review of the record and claims in this case demonstrates that 5 Petitioner has not met his burden to show that he can satisfy either of these exceptions. 6 Furthermore, even if he could show diligence, he has not provided “‘clear and convincing 7 evidence,’ that ‘no reasonable factfinder’ would have convicted him of the crime charged.” — 8 — Id. (citing 28 U.S.C. § 2254 (e)(2)(B)). Accordingly, Petitioner’s requests for an 9 evidentiary hearing will be denied. — 10 — 11 V. CONCLUSION 12 Based upon the foregoing, the Court finds that Petitioner Fernando Hernandez 13 Richter’s habeas claims are either procedurally defaulted, without merit, or untimely and 14 recommends that his Third Amended Petition (Doc. 50) be denied. The Court additionally 15 finds that an evidentiary hearing is unwarranted in this case. — 16 — 17 VI. RECOMMENDATION 18 For the reasons delineated above, the Magistrate Judge recommends that the District 19 Judge enter an order DENYING Petitioner’s Third Amended Petition for a Writ of Habeas 20 Corpus (Doc. 50). 21 Pursuant to 28 U.S.C. § 636 (b) and Rule 72(b)(2), Federal Rules of Civil Procedure, 22 any party may serve and file written objections within fourteen (14) days after being served 23 with a copy of this Report and Recommendation. A party may respond to another party’s 24 objections within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 25 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If 26 objections are filed, the parties should use the following case number: CV-20-0205-TUC27 CKJ. 28 ... - 74 - Case 4:20-cv-00205-CKJ Document 84 Filed 02/29/24 Page 75 of 75 1 Failure to file timely objections to any factual or legal determination of the 2 Magistrate Judge may result in waiver of the right of review. 3 Dated this 29th day of February, 2024. — 4 — — 5 — — 6 — — 7 — — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — - 75 -