Bailey #361996 v. Thornell et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Leon Bailey, Jr.,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-25-01145-PHX-SPL (ASB)
REPORT AND RECOMMENDATION
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT
JUDGE:
Petitioner Leon Bailey, Jr. (“Petitioner”), who is confined at the Arizona State
Prison Complex—Yuma, has filed an Amended Petition for Writ of Habeas Corpus
(“Amended Petition”) pursuant to 28 U.S.C. § 2254 (Doc. 7).1 For the reasons that follow,
undersigned will recommend that the Amended Petition be denied and dismissed.
PROCEDURAL HISTORY
I. State Proceedings and First Federal Habeas Corpus Petition
A. Underlying State Criminal Matter
The record in this case is not extensive, and there is no trial or appellate court order
outlining the facts of the underlying criminal case. The record establishes that Petitioner
1 Citation to the record indicates documents as they are displayed in the District of Arizona’s
official Court electronic document filing system under Case No. CV-25-01145-PHX-SPL (ASB),
unless specified otherwise.
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was convicted by jury in case CR-2022-140097-001 DT on April 3, 2023 in Maricopa
County Superior Court of Arizona (hereinafter “Superior Court”) of aggravated assault in
violation of A.R.S. §§ 13-3601, 13-702, 13-704 and misdemeanor assault in violation of
A.R.S. §§ 13-3601, 13-707. (Doc. 12-1 at 3-9.) Petitioner was sentenced on June 6, 2023
to a term of six years for the aggravated assault charge and a term of one month for the
misdemeanor assault charge in Arizona State Prison, with a presentence credit for 228 days
of time served. (Id. at 9-10.) On the day of his conviction, April 3, 2023, Petitioner
requested to continue pro per and remove his appointed trial counsel on the grounds of
ineffective assistance of counsel. (Doc. 7-1 at 1-2.) According to Petitioner, the first request
to remove counsel was denied by the trial court on May 3, 2023, and Petitioner again
requested to remove counsel and proceed pro per on May 3, 2023. (Id. at 4-5.) The trial
court granted Petitioner’s request on May 23, 2023 and allowed Petitioner to waive his
right to counsel. (Id. at 7-8.)
B. Direct Appeal
On July 14, 2023, Petitioner filed a Notice of Appeal. (Doc. 12-1 at 14.) On July 26,
2023, the Arizona Court of Appeals dismissed Petitioner’s appeal on the grounds that the
Notice of Appeal was untimely, and the court thus lacked jurisdiction over the matter. (Id.
at 16.)
C. First State Post-Conviction Relief Proceeding
Petitioner filed his first Notice for Post-Conviction Relief (“first PCR”) and a
Motion for Mistrial and Vacate Convictions on July 14, 2023 in Superior Court. (Doc. 12-
1 at 22-24.) In his first PCR, Petitioner raised the following issues: (1) excessive bail; (2)
preindictment delay and unfair prejudice caused by the State amending charges with no
objection from defense counsel; (3) he was coerced into signing paperwork in return for
his release; (4) illegal search and seizure in violation of the Fourth Amendment; (5) denial
of a fair trial and impartial jury because 132,336 eligible African Americans in Maricopa
County were not selected for his jury pool with no objection by defense counsel; (6) jurors
saw him in restraints with no objection by defense counsel; (7) defense counsel was
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unprepared and should not have “objected” to the Petitioner during his testimony as a
Defendant; and (8) defense counsel’s closing statement was improper because counsel
referred to a cartoon. (Id.) The Superior Court returned Petitioner’s PCR Notice and Motion
for Mistrial and Vacate Convictions on July 27, 2023, finding that the petition was partially
illegible. (Doc. 7-1 at 18-19.) The Superior Court also found that the Petitioner was
indigent and appointed appellate and PCR counsel to represent Petitioner. (Id.) Petitioner
then requested on August 6, 2023 that the Superior Court remove appointed counsel
because Petitioner had already elected to represent himself. (Id. at 20.) Petitioner attached
a copy of the Superior Court’s order regarding his pro per status. (See id. at 7-8.)
On August 14, 2023, Petitioner submitted a Petition for Writ of Habeas Corpus to
the Superior Court which was filed on September 7, 2023. (Doc. 12-1 at 35-42.) Petitioner
argued that (1) he was charged excessive bail and indicted under “non-existent charges”
without opposition from his defense counsel, in violation of his Fifth and Eighth
Amendment rights; (2) he experienced preindictment delay and unfair prejudice when
charges were amended without his permission and without objection from defense counsel;
(3) he was coerced into signing paperwork for his release while he was incarcerated, but
he was not subsequently released; (4) his Fourth Amendment rights were violated when he
was subjected to an illegal search and seizure by police, and defense counsel failed to raise
the issue, violating Petitioner’s Sixth Amendment rights; (5) the Jury Commissioner
strategically excluded 132,000 eligible African American jurors in Maricopa County from
his case, and defense counsel failed to object, thereby violating his rights under the Equal
Protection Clause; (6) defense counsel failed to object to Petitioner being shown to the jury
in restraints and a shock vest; (7) defense counsel a) failed to object to prosecutor using
“spliced” video, because it was not an original, in of violation of “Federal Rule 1002” and
b) improperly objected to Defendant’s right to testify on the witness stand; (8) the trier of
fact was instructed to infer guilt; (9) the state vouched for the credibility of their witness;
and (10) Petitioner had ineffective assistance of counsel because counsel referred to a
cartoon during closing argument. (Id.)
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The Superior Court issued an Order on September 13, 2023 confirming receipt of
the PCR documents filed on July 14, 20232 (which the Court had, in a previous order,
returned for partial illegibility) and September 7, 2023. (Doc. 7-1 at 18, 21.) The Superior
Court ordered the State to respond to the petitions by October 30, 2023. (Id. at 21.) The
Order also removed Petitioner’s appointed Rule 32 counsel, pursuant to Petitioner’s August
6, 2023 request. (Id.)
Petitioner then submitted a new PCR (“amended PCR”) to the Superior Court
pursuant to Rule 32, filed on September 21, 2023. (Doc. 12-1 at 44-55.) The claims made
in Petitioner’s Writ of Habeas Corpus to Superior Court and Petitioner’s amended PCR
were identical. (Compare id. at 37-41 with id. at 51-55.) Upon receipt of the amended PCR,
the Superior Court set a new deadline of September 21, 2023 for the State to respond. (Doc.
7-1 at 22.)
Pursuant to the Superior Court’s Order, the State timely filed a response on
November 13, 2023. (Doc. 12-1 at 57-67.) Petitioner replied to the State’s Response on
December 11, 2023. (Id. at 69-73.)
On January 3, 2024, the Superior Court dismissed Petitioner’s first PCR proceeding,
which was comprised of the three aforementioned pleadings: “Motion for mistrial and
vacate the convictions with prejudice/Notice of Post-Conviction Relief” filed on July 14,
2023; “Petition for Writ of Habeas Corpus” filed on September 7, 2023; and “Petition for
Post-Conviction Relief under Rule 32” filed on September 21, 2023. (Doc. 12-1 at 82-84.)
The Superior Court determined that the pleadings in all three were interwoven and
addressed them in a single order. (Id. at 82.) The Court found that (1) the cash bail was not
excessive; (2) there was not undue delay; (3) a Deputy asking the Defendant to sign release
paperwork does not present “an issue[;]” (4) there was not sufficient argument regarding
an unlawful search and this issue should have been raised on appeal; (5) the issue of
insufficient African American jurors should have been raised on appeal; (6) the Court and
2 The Superior Court references this document as the “‘Petition for Post-Conviction Relief’
filed on July 13, 2023.” (Doc. 7-1 at 18.) Based on the record that Petitioner and Respondent have
provided this Court, it appears that the first PCR was filed in Superior Court on July 14, 2023, and
thus this Court will refer to this document based on the July 14, 2023 date. (Id. at 22.)
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Court staff took all precautions to ensure that Defendant was not seen by the jury while in
handcuffs or a leg restraint; and (7) defense counsel “did all they could to zealously
advocate for their client.” (Id. at 82-84.) The Superior Court ultimately found that
Petitioner did not present any material issues of law or fact that would entitle him to relief,
or any evidence that any of the allegations raised in his pleadings were true. (Id. at 83.)
Following the Superior Court’s denial of Petitioner’s first PCR proceeding,
Petitioner submitted a Petition for Review in the Arizona Court of Appeals (hereinafter
“Court of Appeals”), which was filed on February 5, 2024. (Doc. 12-1 at 86-90.) In his
Petition for Review, Petitioner presented the following issues: (1) his freedom of speech
was violated when his defense counsel “objected” to his testimony regarding tampered
video evidence, violating his First, Fifth, and Fourteenth Amendment rights; 2) the video
was altered in violation of “Rule 1002[;]” (3) the state’s witness committed perjury, which
defense counsel failed to raise; and (4) defense counsel was ineffective in his closing
argument. (Id.) The State filed a Notice of Acknowledgement, but did not substantively
respond to Petitioner, on March 6, 2024. (Id. at 92-93.) Petitioner timely replied. (Id. at
95.) The Court of Appeals denied relief on February 25, 2025, finding that “Petitioner ha[d]
not established an abuse of discretion” by the Superior Court when it denied Petitioner’s
first PCR proceeding. (Id. at 99.) Petitioner did not file a motion for reconsideration by the
Court of Appeals or a petition for review with the Arizona Supreme Court. (Id. at 101.)
D. First Federal Habeas Petition
On May 14, 2024, Petitioner submitted his first federal habeas petition in this Court,
pursuant to 28 U.S.C. § 2254. (Doc. 1 in CV-24-01118-PHX-SPL (ASB).) Petitioner
challenged his sentence on six grounds.3 (Id.) On July 3, 2024, this Court dismissed the
Petition without prejudice as premature, because Petitioner still had a Petition for Review
3 Petitioner raised the following claims in his first federal habeas petition: (1) Fourth and
Fourteenth Amendment violations under the due process clause during his arrest; (2) excessive
and unlawful bond imposed; (3) failure to follow preliminary hearing timelines, violating
Petitioner’s due process rights; (4) Equal Protection Clause violations when eligible jurors were
“strategically excluded” based on their race and “Rule 18.6” violations when the trial judge spoke
with the jurors off the record; (5) violations of evidence rules (FRE 1002 and “Federal Rules 401
and 403”); and (6) ineffective assistance of counsel. (Doc. 1 in CV-24-01118-PHX-SPL (ASB).)
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pending before the Court of Appeals. (Doc. 6 in CV-24-01118-PHX-SPL (ASB).) The
Clerk of Court entered Judgment on the same day. (Doc. 7 in CV-24-01118-PHX-SPL
(ASB).) Petitioner submitted a Motion to Reopen on March 11, 2025, alerting this Court
that the Court of Appeals issued a final decision denying post-conviction relief on February
25, 2025 and requesting that the Court reopen the previously dismissed petition. (Doc. 8 in
CV-24-01118-PHX-SPL (ASB).) The Court denied the Motion on March 20, 2025 on the
grounds that the action was properly closed, and informed Petitioner that he must file a
new action if he wanted to seek a writ of habeas corpus in federal court. (Doc. 9 in CV-24-
01118-PHX-SPL (ASB).)
E. Second State Post-Conviction Relief Proceeding
While Petitioner’s Petition for Review of the Superior Court decision in the first
PCR proceeding was pending in front of the Court of Appeals, Petitioner filed a new
Petition for Post-Conviction Relief (“second PCR”) in Superior Court pursuant to Rule 32
on September 5, 2024. (Doc. 12-1 at 103-115.) In his second PCR, Petitioner pled that (1)
his Sixth Amendment right to a speedy trial was violated; and (2) his Eighth Amendment
right to be free from cruel and unusual punishment and his Fourteenth Amendment right
to equal protection of the laws were violated by an improper sentence. (Id.) Petitioner also
submitted a Notice Requesting Post-Conviction Relief, which was filed on September 13,
2024. (Id. at 117-120.) Petitioner asserted in his Notice that his untimely Rule 32(a) claim
should be excused because “newly discovered material facts have surfaced.” (Id. at 119.)
On September 24, 2024, the Superior Court dismissed Petitioner’s second PCR.
(Doc. 12-1 at 122-124.) The Superior Court found that Petitioner’s first claim, his Sixth
Amendment speedy trial claim, was precluded pursuant to Ariz. R. Crim. P. 32.2(a)(2).
Specifically, the Court concluded (a) Petitioner had already raised a version of the
argument in his amended PCR with the Superior Court (id. at 51) and (b) Petitioner was
not entitled to litigate a speedy trial claim in the first instance at the post-conviction relief
stage. (Id. at 123 (citing State v. Guerrero, 768 P.2d 1014, 1016-1017 (Ariz. 1989)). Next,
the Superior Court considered Petitioner’s other claim, in where he alleged his Eighth and
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Fourteenth Amendment rights were violated due to an improper sentence. (Id.) The Court
found that the claim failed on the merits and Petitioner was properly sentenced under
A.R.S. § 13-704. (Id.) Finally, the Superior Court found that Petitioner’s “discovery of
legal issues does not qualify him for Rule 32.1(e) relief based on newly discovered material
facts.” (Id.) The Superior Court thus dismissed Petitioner’s Notice Requesting Post-
Conviction Relief (id. at 117-120) and second PCR (id. at 103-115) because Petitioner
failed to state a claim for which relief could be granted in a successive Rule 32 proceeding.
(Id. at 123). Petitioner has not asserted, nor has either party provided evidence, that
Petitioner filed a petition for review of trial court’s denial of his second PCR in the Court
of Appeals. (See Docs. 7, 12, 13.)4
F. Summary of Matters Proceeding the Instant Federal Petition
In summary, Petitioner filed a Notice of Appeal to the Court of Appeals, which was
dismissed as untimely. (Doc. 12-1 at 14; Doc. 7-1 at 16.) Petitioner then filed a PCR, and
an amended PCR, and a Writ of Habeas Corpus to the Superior Court, which were denied
on the merits. (Doc. 12-1 at 22-84.) Petitioner then filed a Petition for Review in the Court
of Appeals, which was denied on the merits. (Id. at 86-90, 99.) While Petitioner’s Petition
for Review was pending, Petitioner submitted his first federal habeas petition, which was
dismissed without prejudice as premature. (Docs. 1, 6 in CV-24-01118-PHX-SPL (ASB).)
Finally, the Petitioner filed a second PCR in Superior Court, also while his Petition for
Review was pending, which was denied on the merits. (Id. at 103-124.) Petitioner sought
no appellate review of the second PCR proceeding according to the record. (See Docs. 7,
12.) On March 11, 2025, Petitioner filed a Motion to Reopen his first federal habeas
petition, which was denied on March 20, 2025. (Docs. 8, 9 in CV-24-01118-PHX-SPL
(ASB).) Petitioner then initiated the instant proceeding.
4 Petitioner asserts in his Amended Petition that he appealed the actions in his first, second,
and third petitions to the Court of Appeals. (Doc. 7 at 5.) However, based on the record before this
Court, it appears that Petitioner submitted appeals to the Court of Appeals only twice: (1) Petitioner
submitted a Notice of Appeal regarding his conviction in Superior Court, which was denied as
untimely (Doc. 12-1 at 14-16), and (2) Petitioner submitted an appeal of the Superior Court denial
of his amended PCR and Writ of Habeas Corpus, which was denied on the merits (id. at 86-91,
99).
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II. Instant Federal Proceeding
On April 8, 2025, Petitioner filed a Petition for Writ of Habeas Corpus with this
Court pursuant to 28 U.S.C. § 2254 (Doc. 1). On July 31, 2025, the Petition was dismissed
without prejudice and with leave to amend, because the Petitioner’s claims did not conform
to Rule 8 pleading requirements. (Doc. 6.) Petitioner filed an Amended Petition on August
8, 2025 (Doc. 7) pursuant to 28 U.S.C. § 2254. In the Amended Petition, Petitioner raises
seven claims. (Id.) The Court previously summarized the claims as follows:
(1) Petitioner alleges his Fourteenth Amendment due process
and equal protection rights and his Sixth Amendment
Confrontation Clause rights were violated because he was
not informed of the right to a preliminary hearing, he did
not receive a preliminary hearing, and, therefore, he was
unable to present “material evidence” regarding probable
cause, cross-examine witnesses, review witness’ written
statements and body-camera video, and make an “offer of
proof to the contrary and produce this offered evidence
from his personal cellular phone.” Petitioner also contends
the State was “granted a vacate of the preliminary hearing,”
which was an “abuse of discretion,” and the trial court
“further abused its discretion” by accepting a “supervening
indictment to replace the preliminary hearing.”
(2) Petitioner claims his Eighth Amendment rights were
violated because the $10,000 cash bond was excessive.
Petitioner also claims he was refused access to his wallet
and a phone to “prove or utilize funds for bail with a
bondsman.”
(3) Petitioner asserts his Fourth Amendment rights were
violated because he was “arrested without a warrant and
deprived [of] completion of probable cause hearing, and
liberty restricted.” He contends he should have been
released because “a required preliminary hearing was
vacated and not administered by the abused discretion of
the court” but he was not released. Petitioner asserts “the
detainment was unconstitutional” and the [“]trial,
conviction, and the current imprisonment [are] invalid.”
Petitioner also claims the trial court “disregarded” a release
order sent to Petitioner by the Deputy Attorney General.
(4) Petitioner alleges his Sixth Amendment right to a speedy
trial was violated and this also violated his rights to due
process and equal protection.
(5) Petitioner contends his Sixth and Fourteenth Amendment
rights were violated because African American jurors were
“purposely excluded from the jury pool” and the two jurors
who “matched the color of the Petitioner by African
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American standards of racial likeness” were “immediately
dismissed.” He also claims the trial judge had a “direct or
indirect substantial interest for pecuniary gain” because,
after voir dire, the [“]newly selected jurors engaged in
casual conversation outside the courtroom.” He also
contends he was unfairly “displayed to the trier of fact in a
shock vest.”
(6) Petitioner asserts his Fifth Amendment due process rights
were violated because the court “abused its discretion to
purposely delay the post-conviction relief attempts for
numerous issues, to include changing filing dates to
perpetrate separate filings by the Petitioner for
adjudication.” He also asserts his signature was “forged by
the court” and the trial and appellate courts “abuse[d] their
discretion to be unfair at [the] cost of constitutional
violations that deprive[d] the ends of justice with deceptive
practices against the Petitioner.”
(7) Petitioner contends his Sixth Amendment rights were
violated because he received ineffective assistance of
counsel and he was “refused to represent himself until
convicted.”
(Doc. 9 at 2-3.) Respondents filed an Answer on October 14, 2025, asserting that the
Amended Petition’s claims are either precluded or lack merit. (Doc. 12.) Petitioner filed a
Reply on October 31, 2025, contending that his claims should not be considered
procedurally defaulted. (Doc. 13.)
ANALYSIS
The writ of habeas corpus affords relief to persons in custody pursuant to the
judgment of a state court in violation of the Constitution, laws, or treaties of the United
States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for habeas corpus are governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244.
I. Exhaustion
At the outset, the Court recognizes that this is Petitioner’s second habeas corpus
petition filed in federal court. (See Doc. 1 in CV-24-01118-PHX-SPL (ASB).) While
typically “successive” petitions are barred under the AEDPA, see 28 U.S.C. § 2244(b)(2),
“[a] habeas petition filed in the district court after an initial habeas petition was
unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a
second or successive petition.” Slack v. McDaniel, 529 U.S. 473, 485-486 (2000).
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Petitioner’s first federal habeas corpus petition was dismissed without prejudice as
premature for adjudication because Petitioner’s case was pending review in state court.
(See Docs. 1, 6 in CV-24-01118-PHX-SPL (ASB).) Respondent has not raised any
argument about the instant Amended Petition being successive. (See Doc. 12.) Given that
Petitioner’s first federal habeas corpus petition was “unadjudicated on its merits[,]” the
Court will thus consider whether the claims in the Amended Petition have been properly
exhausted. See Slack, 529 U.S. at 486.
A. Standard of Review
1. Exhaustion
To seek federal habeas review, a state prisoner must also exhaust the available state
remedies. 28 U.S.C. § 2254(b)(1)(A). To exhaust state remedies, a petitioner must afford
the state courts the opportunity to rule upon the merits of his federal claims by “fairly
presenting” them “in each appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court to the federal nature of the
claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364,
365 (1995) and O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). In other words, proper
exhaustion requires a petitioner to “give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate
review process.” Date v. Schriro, 619 F. Supp. 2d 736, 762 (D. Ariz. 2008) (quoting
O’Sullivan, 526 U.S. at 845).
Under controlling case law, fair presentment of a claim requires a court to engage
in a two-prong analysis. See Rose v. Palmateer, 395 F.3d 1108, 1111 (9th Cir. 2005). First,
a court must consider whether the petitioner invoked “one complete round” of the state’s
established review process for any claim raised on federal habeas review. See O’Sullivan,
526 U.S. at 845. The court then must determine whether the petitioner pled the federal
nature of the claim with “considerable specificity” before the state courts. See Rose, 395
F.3d at 1111; see also Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (holding
“[a] petitioner fairly and fully presents a claim to the state court for purposes of satisfying
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the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through
the proper vehicle, and (3) by providing the proper factual and legal basis for the claim”)
(internal citations omitted).
a. Proper Forum and Proper Vehicle
“To exhaust state remedies, a petitioner must afford the state courts the opportunity
to rule upon the merits of his federal claims by ‘fairly presenting’ them to the state’s
‘highest’ court in a procedurally appropriate manner.” Date, 619 F. Supp. 2d at 762
(quoting Castille v. Peoples, 489 U.S. 346, 349 (1989) and Baldwin, 541 U.S. at 29). In
non-capital cases arising in Arizona, the “highest court” requirement is satisfied by fair
presentation to the Arizona Court of Appeals either on direct appeal or in a petition for
post-conviction relief. Date, 619 F. Supp. 2d at 762 (citing Crowell v. Knowles, 483 F.
Supp. 2d 925 (D. Ariz. 2007)). Thus, claims of Arizona state prisoners “are exhausted for
purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes
v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).
“To exhaust one’s state court remedies in Arizona, a petitioner must first raise the
claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction
relief pursuant to Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); see also
Castillo v. McFadden, 399 F.3d 993, 997-1000 (9th Cir. 2005) (analyzing claims raised on
direct appeal where state prisoner directly appealed but did not pursue PCR proceedings in
state court). “Only one of these avenues of relief must be exhausted before bringing a
habeas petition in federal court.” Salazar v. Ryan, No. CV-17-1132-PHX-JAT-JFM, 2018
WL 3062017, at *10 (D. Ariz. Feb. 22, 2018), report and recommendation adopted, 2018
WL 2426175 (D. Ariz. May 30, 2018).
b. Specificity of Federal Basis
In addition to presenting his claims to the proper court and via the proper vehicle, a
state prisoner must fairly present his claims to the state court by describing both the
operative facts and the federal legal theory on which his claims are based. See Date, 619
F. Supp. 2d at 764; Baldwin, 541 U.S. at 33; Duncan, 513 U.S. at 365-66 (holding
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petitioners must fairly present federal claims to state courts in order to give the state the
“opportunity to pass upon and correct” alleged violations of federal rights, which requires
petitioners to alert the state courts that they are asserting claims under the federal
Constitution) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).
In the Ninth Circuit, petitioners “must make the federal basis of the claim explicit
either by specifying particular provisions of the federal Constitution or statutes, or by citing
to federal case law. While the petitioner must refer to federal law in state court explicitly,
exhaustion is satisfied once the petitioner makes that explicit reference even if the
petitioner relies predominantly on state law before the state courts.” Insyxiengmay, 403
F.3d at 668 (internal citations omitted); see also Picard, 404 U.S. at 278 (holding fair
presentation of a claim in state courts requires petitioners to present the state courts with
the “substantial equivalent” of the claim raised in federal court). To exhaust his claim,
Petitioner “must have presented his federal, constitutional issue before the Arizona Court
of Appeals within the four corners of his appellate briefing.” Castillo, 399 F.3d at 1000
(citing Baldwin, 541 U.S. at 32).
2. Procedural Default
A federal habeas claim is not exhausted if the petitioner still has the right to raise
the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). “A habeas
petitioner’s claims may be precluded from federal review in either of two ways.” Date, 619
F. Supp. 2d at 765. A claim may be procedurally defaulted in federal court if: (1) “it was
actually raised in state court but found by that court to be defaulted on state procedural
grounds[,]” or (2) “a state prisoner failed to present his federal claims to the state court, but
returning to state court would be ‘futile’ because the state courts’ procedural rules, such as
waiver or preclusion, would bar consideration of the previously unraised claims.” Id.
(internal citations omitted). An “express” procedural bar exists if the state court denies or
dismisses a claim based on a procedural bar “that is both ‘independent’ of the merits of the
federal claim and an ‘adequate’ basis for the court's decision.” Harris v. Reed, 489 U.S.
255, 260 (1989) (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935); Murdock v.
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City of Memphis, 87 U.S. 590, 635-636 (1875)). Federal courts are barred from reviewing
claims that were decided on independent and adequate state law grounds. See Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991). “This rule applies whether the state law ground
is substantive or procedural.” Id. at 729 (citations omitted).
An implied procedural bar can occur when a claim was not actually exhausted in
state court, but the petitioner no longer has an available state remedy. Date, 619 F. Supp.
2d at 766; see also Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). “Generally,
any claim not previously presented to the Arizona courts is procedurally barred from
federal review because any attempt to return to state court to properly exhaust a current
habeas claim would be ‘futile.’” Van Norman v. Schriro, 616 F. Supp. 2d 939, 949 (D.
Ariz. 2007), aff’d, 362 F. App’x 597 (9th Cir. 2010) (citations omitted). A claim may be
“futile” in Arizona based on waiver, preclusion, or timeliness. See Arizona Rules of
Criminal Procedure 32.1(b)-(h), 32.2(a) & (b), 33.1 (b)-(h), 32.4(a) & (b).
If a petitioner failed to exhaust his claim and is now procedurally barred from
returning to state court to present his claim, then his claim is procedurally defaulted and
barred from federal habeas corpus review. See Coleman, 501 U.S. at 735 n.1 (citations
omitted). A petitioner can overcome procedural default, and thus bar of his claim, only by
showing cause for the default and resulting prejudice or that a fundamental miscarriage of
justice will result from the denial. Id. at 750. The “fundamental miscarriage of justice”
exception is “explicitly tied” to the “petitioner’s innocence.” Schlup v. Delo, 513 U.S. 298,
321 (1995). To show a fundamental miscarriage of justice, or “actual innocence,” a
petitioner must demonstrate that “in light of all the evidence, it is more likely than not that
no reasonable juror would have convicted him.” Bousley, 523 U.S. at 623 (quoting Schlup,
513 U.S. at 327-328). The so-called “actual innocence gateway” requires petitioners to
make a showing of actual innocence, which would allow a petitioner to “have his otherwise
barred constitutional claim considered on the merits.” Herrera v. Collins, 506 U.S. 390,
404 (1993). Under this standard, “actual innocence” means “factual innocence, not mere
legal insufficiency.” Bousley, 523 U.S. at 623 (citing Sawyer v. Whitley, 505 U.S. 333, 339
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(1992)).
B. Analysis
Respondents argue that Petitioner’s federal claims in Grounds One, Two, Three,
Four, Five and Six, and Seven (a)-(d) are procedurally defaulted and that none of these
procedural defaults can be excused either by showing 1) actual innocence or 2) cause. (Doc.
12 at 6-19.) Petitioner does not respond directly to the argument that his claims are
procedurally defaulted in his Reply (see Doc. 13), but he does assert that “the many
attempts for relief on the state level were exhausted and dismissed without merit” (Id. at
12).
1. Petitioner’s Claims in Grounds One, Two, Three, Four, Five, and Six,
and Seven (a)-(e)
In Ground One of his Amended Petition, Petitioner claims that his Fourteenth
Amendment equal protection and due process rights, and his Sixth Amendment
confrontation clause rights, were violated. (Doc. 7 at 6.) Petitioner alleges that “during the
initial appearance process, the magistrate failed to inform [P]etitioner of the right to a
preliminary hearing and set the time for this process.” (Id.) Petitioner asserts that he had a
right to have a preliminary hearing before “a magistrate” no later than ten days after his
initial appearance, he did not waive this preliminary hearing, and he was not provided a
preliminary hearing but he was not thereafter released from custody. (Id.)5 Furthermore,
Petitioner asserts that the State was “granted a vacate of the preliminary hearing.” (Id.)
Additionally, Petitioner pleads that the trial court “further abused its discretion to accept a
supervening indictment to replace the preliminary hearing.” (Id.) Petitioner argues that, by
denying him a preliminary hearing, Petitioner was unable to present evidence of “original
video footage” which would have been relevant to his pre-trial detainment. (Id.) He alleges
that, if the proper procedural process were conducted, “innocence could have easily been
5 Petitioner appears to be arguing that the State violated his right to a speedy trial. (See Doc.
7 at 6.) Petitioner does not make clear whether he brings these claims pursuant to federal law or
state law. (See id.) For purposes of analyzing Petitioner’s exhaustion requirements, undersigned
will afford Petitioner the presumption that he brought claims of speedy trial violations pursuant to
both federal and state statutes. See Ariz. R. Crim. P. 8.1; 18 U.S.C. § 3161.
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proven by a preponderance of the clear and convincing untainted evidence.” (Id.) Petitioner
further asserts that he presented the issues in Ground One of his Amended Petition to the
Arizona Court of Appeals by direct appeal and in his three Rule 32 petitions.6 (Id.)
In Ground Two of his Amended Petition, Petitioner claims that his Eighth
Amendment rights were violated by an excessively large bail of “$10,000 cash.” (Doc. 7
at 7.) Petitioner argues that the two felonies he was charged with on October 21, 2022,
assault with a deadly weapon and possession of a firearm during the commission of a
felony, “do not exist as crimes under Arizona Revised Statutes.” (Id.) Petitioner argues that
the only legitimate charge was a misdemeanor disorderly conduct, which he asserts “would
not accrue such a high bond.” (Id.) Finally, Petitioner alleges that he had the means to post
bail, “but was refused access to [his] wallet and phone” and was not given an opportunity
to meet with or “utilize funds for bail with a bondsman.” (Id.) Petitioner further asserts that
he presented the issues in Ground Two of his Amended Petition on direct appeal and in
three Rule 32 petitions to the Arizona Court of Appeals. (Id.)
In Ground Three of his Amended Petition, Petitioner claims that his Fourth
Amendment rights were violated because he was “arrested without a warrant and deprived
[of] completion of probable cause hearing, and [his] liberty [was] restricted.” (Doc. 7 at 8.)
Petitioner asserts that he should have been released because “a required preliminary
hearing was vacated and not administered by the abused discretion of the court.” (Id.) He
asserts that he was not thereafter released, and that his detainment was unconstitutional,
rendering the trial, conviction, and sentence invalid. (Id.) He also claims that the trial court
abused its discretion and “disregarded” a release order sent to Petitioner by the Deputy
Attorney General. (Id.) Petitioner asserts that he presented the above issues in Ground
Three of his Amended Petition to the Court of Appeals, both on direct appeal and in his
three Rule 32 petitions. (Id.)
6 Petitioner checked the boxes following each of the grounds listed in his Amended Petition,
alleging that he presented each of the issues to the Court of Appeals in his “First petition,” “Second
petition,” and “Third petition.” (Doc. 7 at 6-12.) It appears Petitioner may be referring to his first
Rule 32 petition, amended Rule 32 petition, and second PCR Petition, as there was no third Rule
32 petition on the record before this Court.
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In Ground Four of his Amended Petition, Petitioner claims that his Sixth
Amendment right to a speedy trial was violated, and that his due process and equal
protection rights were also violated. (Doc. 7 at 9.) Petitioner asserts that he was unlawfully
detained prior to trial, at no fault of himself or defense counsel, though, he argues, defense
counsel should have objected to this unexcused delay. (Id.) Petitioner argues that the trial
court abused its discretion by failing to automatically review Petitioner’s conditions for
release once the “ninety-day period in custody pending trial expired.” (Id.) Petitioner
claims that his period in custody pending trial exceeded the “state speedy trial rule” by 139
days without any explanation or extraordinary circumstances, and that the failure of
counsel to object to this highlights the ineffective assistance of counsel. (Id.) Petitioner
claims in his Amended Petition that he presented the issues in Ground Four via direct
appeal and his three Rule 32 petitions to the Arizona Court of Appeals. (Id.)
In Ground Five of his Amended Petition, Petitioner claims that his Fourteenth
Amendment rights were violated when “the court abused its discretion to deny the
Petitioner the Equal Protection of the laws” by failing to secure an impartial jury, and his
Sixth Amendment right to effective assistance of counsel was violated when his attorney
failed to object to the Fourteenth Amendment violation. (Doc. 7 at 10.) Petitioner asserts
that African American jurors were “purposely excluded from the jury pool” and the two
jurors who “matched the color of the Petitioner by African American standards of racial
likeness” were “immediately dismissed.” (Id.) He also claims that the trial judge had a
“direct or indirect substantial interest for pecuniary gain” because, after voir dire, the jurors
“engaged in a casual conversation outside the courtroom off-bench, off-the-record and not
in writing.” (Id.) Finally, Petitioner alleges that the jury “could have been compromised”
because the Petitioner was “displayed to the trier of fact in a shock vest.” (Id.) Petitioner
further asserts that he presented the issues in Ground Five of his Amended Petition on
direct appeal and in his three Rule 32 petitions to the Arizona Court of Appeals. (Id.)
In Ground Six of his Amended Petition, Petitioner claims that his Fifth Amendment
due process rights were violated because the trial court “abused its discretion to purposely
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delay” Petitioner’s post-conviction relief attempts by “changing filing dates to perpetrate
separate filings by the Petitioner for adjudication.” (Doc. 7 at 11.) He further asserts that
the Deputy Attorney General responded, presumably to the PCR petition, after “over 100
days past the July 14, 2023 date without good cause or extraordinary circumstances.”7 (Id.)
He also claims that his signature was “forged by the court” and the trial and appellate courts
“abuse[d] their discretion to be unfair at [the] cost of constitutional violations that
deprive[d] the ends of justice with deceptive practices against the Petitioner.” (Id.) He avers
he presented the issues in Ground Six to the Court of Appeals by way of his direct appeal
and three Rule 32 petitions. (Id.)
In Ground Seven of his Amended Petition, Petitioner claims that his Sixth
Amendment rights were violated because he received ineffective assistance of counsel and
was refused the opportunity to “represent himself until convicted.” (Doc. 7 at 12.)
Petitioner argues that his counsel was ineffective because counsel failed to object to the
following: (a) preliminary hearing “to be held to protect the rights of his client[;]” (b) a
Confrontation Clause violation; (c) Petitioner’s charges being “altered and amended five
times without five grand jury indictments[;]” (d) violations of the Speedy Trial Act; (e) the
voir dire process “that excluded over 132,000 eligible African American candidates” for
the jury; and (f) “tampered video evidence” which was “spliced” and not original. (Id.)
Petitioner further claims that counsel was ineffective (g) because counsel objected to
Petitioner’s testimony, where Petitioner “pointed out [the] issue” of the “spliced” and
“tampered with” video evidence. (Id.) Finally, Petitioner argues that counsel was
ineffective (h) because the defense counsel’s closing argument “was about Popeye the
Sailor” and the co-counsel was “engaged with Instant Messenger of Meta” during the trial.
(Id.) Petitioner also asserts that he presented the issues in Ground Seven of his Amended
7 It appears Petitioner is arguing here that the Deputy Attorney General failed to conform to
the court’s deadlines for filing a Reply to Petitioner’s PCR petition. (See Doc. 7 at 11.)
Specifically, Petitioner appears to allege that the Respondents should have replied to the PCR
petition based on when Petitioner submitted his PCR Petition on July 14, 2023 and failed to timely
do so. (See id.) The Superior Court, however, extended the filing deadlines after Petitioner
submitted his amended PCR on September 21, 2023. (Doc. 12-1 at 44-55.) There is no indication
based on the record before this Court that Respondents did not abide by the Superior Court’s filing
deadlines.
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Petition to the Arizona Court of Appeals by direct appeal and in his three Rule 32 petitions.
(Id.) The undersigned will address Ground Seven (a)-(e) first and will then turn to Ground
Seven (f)-(h).
2. Application of Law to Petitioner’s Claims in Grounds One, Two, Three,
Four, Five, and Six, and Seven (a)-(e)
a. Exhaustion
As discussed supra, a court analyzing exhaustion must consider first whether the
petitioner invoked “one complete round” of the review process within state court, such that
the claims were presented in the proper forum and through the proper vehicle. See
O’Sullivan, 526 U.S. at 845; see also Insyxiengmay, 403 F.3d at 668. Then, a court must
consider second whether the petitioner pled the federal nature of the claim with
“considerable specificity” by “describing both the operative facts and the federal legal
theory on which his claims are based.” See Rose, 395 F.3d at 1111; Date, 619 F. Supp. 2d
at 764.
Here, Petitioner attacked his conviction in state court in three ways. First, Petitioner
filed a direct appeal with the Court of Appeals, which was dismissed as untimely. (Doc.
12-1 at 14-16.) Second, he initiated his first PCR proceeding: he filed a PCR, an amended
PCR, and a Writ of Habeas Corpus in Superior Court, all of which were denied on the
merits. (Id. at 22-84.) Petitioner then filed a petition for review of the Superior Court’s
decision in the Court of Appeals, which was denied on the merits. (Id. at 86-91, 99.) Third,
Petitioner filed a second PCR in Superior Court, which was denied on the merits. (Id. at
103-124.) Petitioner sought no appellate review of the second PCR proceeding according
to the record. (See Docs. 7, 12.)
Thus, the only two filings by Petitioner that reached the Court of Appeals were 1)
his direct appeal and 2) his first PCR proceeding. (See Doc. 12-1 at 14-16; 86-90.) Because
the direct appeal was merely a notice and did not address the merits (see id. at 14),
Petitioner did not “fairly present” any arguments on direct appeal to the state’s highest
court. See Date, 619 F. Supp. 2d at 762. Petitioner did, however, present in the proper
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forum, because he filed a Petition for Review of his first PCR proceeding with the Court
of Appeals. See Swoopes, 196 F.3d at 1010; see also Roettgen, 33 F.3d at 38. Furthermore,
when Petitioner filed that Rule 32 Petition, he utilized a proper vehicle to “exhaust one’s
state court remedies in Arizona.” See Roettgen, 33 F.3d at 38. Given that Petitioner sought
review in the proper forum and via a proper vehicle in state court, Petitioner has met the
first prong of the exhaustion requirement.
Next, the Court considers the second prong of exhaustion: fair presentment of
claims. As detailed supra, to exhaust state remedies in Arizona, a petitioner must fairly
present their claims to the Arizona Court of Appeals by describing both the operative facts
and the federal legal theory on which his claims are based. See Date, 619 F. Supp. 2d at
764; Baldwin, 541 U.S. at 33. In his Petition for Review of the Superior Court’s decision
on his amended PCR, Petitioner properly and timely presented only the following
arguments on appeal to the Court of Appeals8: (1) Petitioner’s freedom of speech was
violated when his defense counsel “objected” to his testimony regarding tampered video
evidence, violating his First, Fifth, and Fourteenth Amendment rights; 2) the video
evidence was altered in violation of “Rule 1002[;]” (3) the state’s witness committed
perjury, which defense counsel failed to raise; and (4) defense counsel was ineffective in
his closing argument by failing to say that Petitioner was “not guilty” and by referencing a
cartoon. (See Doc. 12-1 at 86-90.)
Petitioner asserted many claims and alleged many constitutional errors in his
Amended Petition to this Court (see Doc. 7) and raised several of them in various PCR
Petitions in Superior Court (see Doc. 12-1 at 35-42; 44-55; 103-115). However, Petitioner
failed to allege the bulk of the claims within the “four corners of his appellate briefing.”
See Castillo, 399 F.3d at 1000. Specifically, Petitioner did not raise the claims in Grounds
One, Two, Three, Four, Five, Six, and Seven (a)-(e) of his Amended Petition before the
Arizona Court of Appeals, thereby failing to “give the state courts one full opportunity to
8 As discussed supra, Petitioner did not raise any substantive claims in his notice of direct
appeal and he did not seek appellate review in the second PCR proceeding. (See Doc. 12-1 at 14,
117-124.) Thus, the Court’s analysis is necessarily limited only to the issues raised to the Court of
Appeals in the first PCR proceeding.
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resolve any constitutional issues by invoking one complete round of the State’s established
appellate review process.” (See Doc. 7 and Doc. 12-1 at 86-90); Date, 619 F. Supp. 2d at
762. Thus, Grounds One, Two, Three, Four, Five, Six, and Seven (a)-(e) were not properly
exhausted.
b. Procedural Default
As outlined supra, an implied procedural bar, and thus procedural default of the
claim, can occur when a petitioner fails to exhaust a claim in state court but no longer has
an available state remedy. Date, 619 F. Supp. 2d at 766. Under Arizona Rules of Criminal
Procedure, a notice requesting post-conviction relief must be filed either “within 90 days
after the oral pronouncement of sentence” or “within 30 days after the issuance of the
mandate in the direct appeal,” whichever is later. Ariz. R. Crim. P. 32.4. A claim is
precluded from relief under Arizona Rules of Criminal Procedure if it (1) is still raisable
on direct appeal; (2) was finally adjudicated on the merits in an appeal or previous post-
conviction proceeding; or (3) was waived at trial or on appeal, or in any post-conviction
proceeding. Ariz. R. Crim. P. 32.2.
Were Petitioner to attempt to bring claims in Grounds One, Two, Three, Four, Five,
Six, and Seven (a)-(e) to the Court of Appeals, they would be “futile” as either precluded
or time-barred. See Date, 619 F. Supp. 2d at 765; see Ariz. R. Crim. P. 32.2(b) (citing
32.1(b)-(h)) and 32.4(b)(3). Given that these claims are precluded or time-barred, they are
considered procedurally defaulted. See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002)
(finding that petitioner’s unexhausted claims were procedurally defaulted, “because he is
now time-barred under Arizona law from going back to state court.”) (internal citations
omitted). Because Petitioner would be barred from now presenting the aforementioned
claims to the Court of Appeals, these claims are technically exhausted but procedurally
defaulted. See Date, 619 F. Supp. 2d at 764.
Finally, Petitioner cannot overcome the procedural default because he has not
shown cause for the default and resulting prejudice, or that a fundamental miscarriage of
justice would result from the denial. (See Doc. 7); see Coleman, 501 U.S. at 750. Petitioner
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has not alleged, either in his Amended Petition or in his Reply, any cause for his failure to
exhaust remedies at the state level.9 (See Docs. 7, 13.) Petitioner has vaguely referenced in
various filings claims of “innocence.” (See Doc. 7 at 6) (“If this process was conducted,
innocence could have been easily proven”); (see also id. at 26) (Petitioner selected the box
in his PCR Petition reading: “[t]his petition demonstrates by clear and convincing evidence
that the facts underlying the claim would be sufficient to establish that no reasonable fact-
finder would find the Defendant guilty of the offense beyond a reasonable doubt”); (see
also Doc. 13 at 6) (“[a]ctual innocence would have been easily proven if not for the
fundamental miscarriage of justice suffered by the Petitioner). Therefore, the Court may
assume, arguendo, that Petitioner has argued that a “fundamental miscarriage of justice”
would result from the denial of federal habeas corpus review. (See id.); see Coleman, 501
U.S. at 750. However, Petitioner has failed to allege any factual support for a claim of
actual innocence such that “in light of all the evidence, it is more likely than not that no
reasonable juror would have convicted him.” See Bousley, 523 U.S. at 623 (quoting Schlup,
513 U.S. at 327-328). Rather, Petitioner has argued “legal insufficiency” in the processes
and procedures leading to his conviction, which is inadequate to support a claim of “actual
innocence.” See Bousley, 523 U.S. at 623 (citing Sawyer, 505 U.S. at 339). Petitioner has
thus not met the threshold requirement for an “actual innocence gateway” claim, which
necessitates Petitioner to show actual innocence. See Herrera, 506 U.S. at 404. Thus,
Petitioner has provided this Court no reason to “have his otherwise barred constitutional
claim considered on the merits.” See id. Consequently, Petitioner cannot overcome
procedural default.
C. Conclusion on Exhaustion
Because Petitioner did not actually exhaust his claims in Grounds One, Two, Three,
Four, Five, Six, and Seven (a)-(e) in state court, the claims are technically exhausted but
procedurally defaulted. Accordingly, undersigned will recommend that Petitioner’s claims
9 To the contrary, Petitioner avers he presented each of the claims on direct appeal, which
he did not, and that he presented all of the claims in three Rule 32 petitions, which he did not. (See
Doc. 7 at 6-12.)
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in Grounds One, Two, Three, Four, Five, Six, and Seven (a)-(e) of the Amended Petition
be dismissed as precluded from habeas review.
II. Ineffective Assistance of Counsel (Grounds Seven (f), (g), and (h))
In Ground Seven of his Amended Petition, Petitioner claims that his Sixth
Amendment rights were violated because he received ineffective assistance of counsel and
was refused the opportunity to “represent himself until convicted.” (Doc. 7 at 12.) Having
recommended above that Grounds One, Two, Three, Four, Five, and Six, and Seven (a)-
(e) be dismissed as procedurally defaulted, undersigned discusses the three remaining
grounds for relief, Ground Seven (f), (g), and (h).
Respondent argues that Petitioner’s non-precluded claim fails on the merits because
Petitioner cannot prove that his counsel’s performance was unreasonable or that the trial
would have had a different result if counsel had performed differently.10 (Doc. 12 at 23.)
Petitioner argues in his Reply that “[t]he totality of . . . circumstances proves the probability
that, but for the counsel’s unprofessional errors, the result would have been different and
the performance fell below objective standards.” (Doc. 13 at 6.) Respondent concedes, or
does not dispute, that Ground Seven (f)-(h) was timely filed and not otherwise procedurally
barred.11 (See Doc. 12 at 5, 19-23.) Undersigned will therefore address Ground Seven (f)-
(h) on the merits.
//
//
10 Respondent enumerates Petitioner’s ineffective assistance of counsel claims slightly
differently than undersigned. (See Doc. 12.) For purposes of this Report and Recommendation,
undersigned will refer to the Court’s enumeration of the ineffective assistance of counsel claims.
However, it should be noted that Respondent only addressed the merits of the argument that
Petitioner’s counsel was ineffective due to the use of “tampered video evidence that was not the
original” (Ground Seven (f)). (Doc. 12 at 5, 19-23.) Respondent dismisses in a footnote the
“additional facts” about counsel’s closing argument (Ground Seven (g) and (h)) because “those
facts do not support any of Bailey’s claims of [ineffective assistance of counsel] because of a
failure to object.” (Doc. 12 at 5 n.2.) Undersigned will address the merits of the ineffective
assistance of counsel claims raised in the Amended Petition that are not procedurally barred
(Ground Seven (f)-(h)).
11 Respondent concedes that the habeas corpus petition in federal court was timely filed.
(Doc. 12 at 4.) Additionally, while Respondent dismisses the “additional facts” alleged in
Petitioner’s ineffective assistance of counsel claim based on their lack of “support of [Petitioner’s]
claims” (id. at 5 n.2), interpreted by undersigned to be Ground Seven (g) and (h), Respondent does
not otherwise claim these “additional facts” are procedurally barred from review. (See Doc. 12.)
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A. Standard of Review
Under the AEDPA, Petitioner must show that the state court’s adjudication of the
claim either “(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
2254(d). This is a “highly deferential standard for evaluating state-court rulings, which
demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (per curiam) (internal quotations and citation omitted).
Ineffective assistance of counsel claims are generally analyzed pursuant to
Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, a habeas
petitioner must show: (1) his counsel’s performance was deficient, meaning “counsel’s
representation fell below an objective standard of reasonableness,” and (2) that the
deficient performance prejudiced the petitioner’s defense. Id. at 687-88. “The [petitioner]
bears the burden of overcoming the strong presumption that counsel performed adequately
. . . [a]s with deficiency, Strickland places the burden of proving prejudice on the
[petitioner], not the government.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010)
(citations omitted); Strickland, 466 U.S. at 689 (holding “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’”) (citing
Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
In federal habeas corpus review, the federal court “must apply a ‘doubly deferential’
judicial review to a state court’s application of the Strickland standard under AEDPA.”
Cheney, 614 F.3d at 995 (quoting Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (per
curiam)). It is Petitioner’s burden to show “the state court applied Strickland to the facts of
his case in an objectively unreasonable manner.” Woodford, 537 U.S. at 25. This Court has
discretion to review the two prongs of the Strickland test in any order and need not address
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both prongs if Petitioner makes an insufficient showing in one. See Strickland, 466 U.S. at
697.
The Court applies the AEDPA’s standard of review to the last reasoned state-court
decision. Noguera v. Davis, 5 F.4th 1020, 1034 (9th Cir. 2021) (citing Martinez v. Cate,
903 F.3d 982, 991 (9th Cir. 2018)). Accordingly, this Court reviews the Court of Appeals’
decision in his first PCR proceeding. (Doc. 12-1 at 98-99) because it was the last reasoned
state court decision to address Petitioner’s ineffective assistance of counsel claim.
B. Analysis
1. Petitioner’s Claims in Ground Seven (f)-(h)
In Ground Seven (f), Petitioner argues that his counsel was ineffective because
counsel failed to object to “tampered video evidence” which was “spliced” and not original.
(Doc. 7 at 12.) Petitioner further claims in Ground Seven (g) that counsel was ineffective
because counsel objected to Petitioner’s testimony, where Petitioner “pointed out [the]
issue” of the “spliced” and “tampered with” video evidence. (Id.) Finally, Petitioner argues
in Ground Seven (h) that counsel was ineffective because counsel’s closing argument “was
about Popeye the Sailor” and the co-counsel was “engaged with Instant Messenger of
Meta” during the trial. (Id.) Petitioner further asserts that he presented these issues on direct
appeal and in his first three Rule 32 petitions. (Id.)
2. Application of Law to Petitioner’s Claims in Ground Seven (f)-(h)
As a preliminary matter, undersigned will address exhaustion of the claims in
Ground Seven (f)-(h). Petitioner raised a version of the arguments in Ground Seven (f)-(h)
in his Writ of Habeas Corpus and amended PCR petition, pursuant to Rule 32, in Superior
Court. (See Doc. 12-1 at 39, 53.) The Superior Court dismissed Petitioner’s amended PCR
and Writ of Habeas Corpus, finding that “[i]n the litigation leading up to the trial and
throughout the trial, both Defense Counsel did all they could to zealously advocate for their
client.” (Id. at 82-84.) Petitioner then raised these arguments in a Petition for Review to the
Court of Appeals, asserting that defense counsel was ineffective because (1) they did not
object to “alterations to the original video” which “violate Rule 1002” and “would have
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changed the outcome,” (2) “‘objected’ to his testimony in regards to tampered video
evidence,” and (3) had an inappropriate closing argument where counsel referenced “a
classic cartoon ‘Popeye the Sailor.’” (Id. at 86-90.) The Court of Appeals denied relief,
finding that Petitioner failed to establish that the Superior Court abused its discretion in
denying the petition for post-conviction relief. (Id. at 98-99.) Because Petitioner presented
the claims in Ground Seven (f)-(h) in the proper forum, via the proper vehicle, and through
appropriate presentment of the federal issue, these claims were properly exhausted under
Date. 619 F. Supp. 2d at 762.
Petitioner claims that his counsel was ineffective assistance of counsel under
Ground Seven (f) because counsel failed to object to “tampered video evidence” which was
“spliced” and not original. (See Doc. 7 at 12.) First, it is not clear whether Petitioner raised
this argument pursuant to Arizona Rules of Evidence 1002 or Federal Rules of Evidence
1002. (See Doc. 12-1 at 47) (Petitioner cites to “Rule 1002” in his amended PCR in
Superior Court); (Doc. 12-1 at 53) (Petitioner cites to “Federal Rule 1002” in the analysis
section of his amended PCR in Superior Court); (Doc. 12-1 at 87) (Petitioner cites to “Rule
1002” in his Petition for Review in the Court of Appeals); (Doc. 1 at 10 in CV-24-01118-
PHX-SPL (ASB)) (Petitioner cites to “Federal Rule 1002” in his first federal habeas
petition); (Doc. 7 at 12) (Petitioner does not cite to a rule). Given that Petitioner never
references Arizona Rule of Evidence 1002, and either references “Federal Rule 1002” or
“Rule 1002,” this Court will assume that Petitioner challenges the video evidence
admissibility under Federal Rule of Evidence 1002. (See Doc. 12-1 at 47, 53, 87; Doc. 1 at
10 in CV-24-01118-PHX-SPL (ASB); Doc. 7 at 12.) However, the Court notes that the
result would not differ if the Petitioner had cited to Arizona Rule of Evidence 1002.12
As Respondent correctly identifies (Doc. 12 at 22), the Federal Rules of Evidence
do not apply to state court proceedings, preventing Petitioner’s defense counsel from
properly objecting on that basis. See Fed. R. Evid. 101(a). Respondent also addresses that
“[e]ven if [Petitioner] had instead cited to the corresponding Arizona Rule of Evidence,
12 Arizona Rule of Evidence 1002 and Federal Rule of Evidence 1002 are largely identical.
Compare Ariz. R. Evid. 1002 with Fed. R. Evid. 1002.
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that Rule would not prohibit the introduction into evidence of something other than a full
video recording.” (Doc. 12 at 22.) Even assuming, arguendo, that Federal Rule of Evidence
1002 applied to Petitioner’s state trial, or, in the alternative, that Petitioner cited to Arizona
Rule of Evidence 1002, any objection by defense counsel would have been futile. This is
because Rule 1002, otherwise known as the best evidence rule, does not require that the
entire video be shown when introduced. Rather, the rule is one “requiring production of
the original . . . to prove its contents.” See Fed. R. Evid. 1002, advisory committee’s note
to 1972 amendment. The rule has no applicability where the challenge is made to the fact
that “spliced” excerpts of a video, rather than the entire video, was shown at trial.13 See
Fed. R. Evid. 1002. Given that any objection based on Federal Rule of Evidence 1002
would have been meritless, undersigned finds that Petitioner has not shown counsel’s
performance was deficient with regard to Ground Seven (f). See Sexton v. Cozner, 679 F.3d
1150, 1157 (9th Cir. 2012) (“[W]e cannot hold counsel ineffective for failing to raise a
claim that is meritless”).
Next, Petitioner claims in Ground Seven (g) that counsel was ineffective because
his counsel objected to Petitioner’s testimony, where Petitioner “pointed out [the] issue”
of the “spliced” and “tampered with” video evidence. (See Doc. 7 at 12.) But even
assuming, arguendo, that defense counsel “objected” to Petitioner’s testimony about the
“spliced” video evidence, Petitioner has not met his burden to “overcom[e] the strong
presumption that counsel performed adequately.” See Cheney, 614 F.3d at 995. Given that
any objection to “spliced” video evidence pursuant to “Rule 1002” would have been
meritless, the challenged action of objecting to Petitioner’s testimony disputing that
evidence would likely “be considered sound trial strategy.” See Strickland, 466 U.S. at 689.
Petitioner has not met his burden of showing that counsel fell below an objective standard
13 It appears, rather, that Petitioner is arguing that Petitioner’s counsel failed to raise Federal
Rule of Evidence 106, the rule of completeness. This rule states that “If a party introduces all or
part of a statement, an adverse party may require the introduction, at that time, of any other part--
or any other statement--that in fairness ought to be considered at the same time. The adverse party
may do so over a hearsay objection.” Fed. R. Evid. 106. Petitioner does not allege or otherwise
raise the argument that the entire video “in fairness ought to be considered at the same time.” See
id.
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of reasonableness. See id. at 687-688. Thus, Petitioner has not met the burden to overcome
the “highly deferential standard for evaluating state-court rulings” with regard to Ground
Seven (g). See Woodford, 537 U.S. at 24.
Finally, Petitioner claims under Ground Seven (h) that counsel was ineffective
because counsel referenced Popeye the Sailor, failed to use the words “not guilty,” and
because co-counsel was on Instant Messenger during his closing argument. (See Doc. 7 at
12.) The references to Popeye the Sailor or deciding to omit the words “not guilty” could
have been part of the defense counsel’s legitimate and sound legal strategy. See, e.g., Shook
v. Shinn, No. CV-19-04905-PHX-NVW-MTM, 2020 WL 5124945, at *5-6 (D. Ariz. July
15, 2020) (finding that the PCR court was not unreasonable in finding that a defense
counsel, who affirmed Petitioner’s guilt in the closing argument, was not ineffective
because this was “not an unreasonable trial strategy”). Thus, Petitioner has not shown how
counsel’s closing argument was outside the “wide range of reasonable professional
assistance.” See Strickland, 466 U.S. at 689. Additionally, Petitioner’s allegation that the
“assistant” was “engaged with Instant Messenger of Meta” does not demonstrate that
defense counsel’s representation fell below an objective standard of reasonableness, or that
the “assistant[’s]” behavior in any way prejudiced the Petitioner’s defense. (See Doc. 7 at
12); see Strickland, 466 U.S. at 687-688. Undersigned finds that Petitioner has not shown
that defense counsel’s closing argument strategy was unreasonable, and he has not
overcome the “doubly deferential” standard that a federal court conducting habeas review
must apply to a state court’s application of Strickland. See Cheney, 614 F.3d at 995.
C. Conclusion as to Ineffective Assistance of Counsel
Petitioner has failed to show how counsel’s performance fell below an objective
standard of reasonableness and how counsel’s performance in any way prejudiced
Petitioner’s defense. See Strickland, 466 U.S. at 687-688. Undersigned will recommend
that Petitioner’s claims in Ground Seven (f), (g), and (h) of his Amended Petition be
dismissed.
//
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III. Leave to Amend
“[A] petition for habeas corpus should not be dismissed without leave to amend
unless it appears that no tenable claim for relief can be pleaded were such leave granted.”
Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (citations omitted). A petition for habeas
corpus may be amended pursuant to the Federal Rules of Civil Procedure. 28 U.S.C. §
2242; Rule 12, Rules Governing Section 2254 Cases. Federal Rule of Civil Procedure 15(a)
applies to a party’s motion to amend a pleading in a habeas corpus proceeding. James v.
Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001); see also Local Rule of Civil Procedure
(“LRCiv”) 15.1. Leave to amend shall be freely given “when justice so requires.” Fed. R.
Civ. P. 15. A court may deny leave to amend if it finds undue delay, bad faith, repeated
failures to cure deficiencies, undue prejudice to the opposing party, or futility of
amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). “Futility of amendment can, by
itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815,
845 (9th Cir. 1995). A claim can be futile when the legal basis is tenuous or when a
petitioner has failed to exhaust state remedies. Caswell v. Calderon, 363 F.3d 832, 837 (9th
Cir. 2004) (citations omitted). Additionally, “[t]he district court’s discretion to deny leave
to amend is particularly broad where plaintiff has previously amended the complaint.”
Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (citations
omitted).
Here, Petitioner has not requested that he be provided leave to amend should his
Petition be deficient. (See Docs. 7, 13.) Even without that request, undersigned considers
whether “justice so requires” leave to amend. See Fed. R. Civ. P. 15(a); see also Lopez v.
Smith, 203 F.3d 1122 (9th Cir. 2000) (“a district court should grant leave to amend even if
no request to amend the pleading was made, unless it determines that the pleading could
not possibly be cured by the allegation of other facts.”) (citations omitted).
For the reasons described supra, Petitioner’s claims in Grounds One, Two, Three,
Four, Five, Six, and Seven (a)-(e) are technically exhausted but procedurally defaulted.
Thus, leave to amend for these claims would be futile, as no tenable claim for habeas corpus
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relief could be pleaded with regard to these claims. See Jarvis, 440 F.2d at 14. In addition,
as discussed supra, Petitioner’s claims in Grounds Seven (f), (g), and (h) failed to show
how counsel’s performance was deficient and prejudiced Petitioner’s defense. Because
Petitioner has failed to demonstrate these claims have any merit, leave to amend these
claims would be futile. See, e.g., Loya v. Shinn, No. CV-19-02104-PHX-SRB, 2020 WL
5658976, at *8 (D. Ariz. Sept. 23, 2020) (denying leave to amend on an ineffective
assistance of counsel habeas corpus claim, in part, where petitioner “provided little
argument for why [the] purported failures amount[ed] to deficient performance or that the
deficiency prejudiced [p]etitioner . . . [n]or [did] [p]etitioner demonstrate that the
underlying ineffectiveness claim ha[d] merit.”)
Moreover, Petitioner has already been granted leave to amend on the claims before
this Court. (See Doc. 6); see Ascon, 866 F.2d at 1160. Undersigned will recommend the
Amended Petition be dismissed without leave to amend.
CONCLUSION
The Court concludes Petitioner is not entitled to relief on any ground raised in his
habeas petition. The record is sufficiently developed, and the Court does not find that an
evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638
F.3d 1027, 1041 (9th Cir. 2011). Accordingly,
IT IS THEREFORE RECOMMENDED that the Amended Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 7) be DENIED and DISMISSED
WITH PREJUDICE and without leave to amend.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave
to proceed in forma pauperis on appeal be DENIED because Petitioner has not shown
jurists of reason would not find the procedural ruling debatable, and because Petitioner has
not made a substantial showing of the denial of a constitutional right.
This Report and Recommendation is not an order that is immediately appealable to
the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal
Rules of Appellate Procedure, should not be filed until entry of the District Court’s
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judgment. The parties shall have fourteen days from the date of service of a copy of this
Report and Recommendation within which to file specific written objections with the
Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties
have fourteen days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report
and Recommendation. See Fed. R. Civ. P. 72.
Dated this 17th day of December, 2025.
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