Francois #310554 v. Thornell et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Kevin Lee Francois,
Petitioner
-vs-
Ryan Thornell, et al.,
Respondents.
CV-24-3231-PHX-SPL (JFM)
Report & Recommendation
on Petition for Writ of Habeas Corpus
and Order on Motions
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254 (Doc. 1), a Motion for Evidentiary Hearing (Doc. 17), a Motion to Expand the Record
(Doc. 20), and a Motion for Discovery (Doc. 21). The Petitioner's Petition and motions
are now ripe for consideration. Accordingly, the undersigned makes the following
proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules
Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. §
636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure, and orders on the motions.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
The following summary of the facts is drawn from the decision of the Arizona Court
of Appeals in disposing of Petitioner’s direct appeal, which purported to present the facts
in the light most favorable to sustaining the judgment. (Exh. Y, Mem. Dec. 5/3/18 at n. 1.)
¶2 Early in the morning of August 22, 2003, the female victim
awoke in her bed with a man on top of her covering her face with a
pillow. The man violently physically and sexually assaulted the
woman before fleeing. The victim woke up her roommate, who
called 9-1-1.
¶3 The victim did not see the perpetrator and could not otherwise
identify him, although she “thought maybe [she] recognized the
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voice.” A male DNA profile from “dried oral secretions” located on
the victim’s breast did not match any possible suspects or the profiles
stored in a national law enforcement DNA database (“CODIS”).
Fingerprints at the crime scene that were not the victim’s also did not
match prints in a law enforcement database. The investigation went
cold.
¶ 4 Seven years after the assault, Francois was arrested in
California after a police officer observed him attempting to break into
a residence, and pursuant to California law Francois provided a DNA
sample for testing. Francois’s DNA profile was then added to
CODIS, and thereafter, the Maricopa County Sherriff’s Office
learned of a “hit” on the DNA sample collected from the victim’s
breast. Arizona law enforcement officers determined that the hit was
related to Francois’s DNA profile, and they, with the assistance of a
California peace officer, obtained a warrant to collect a sample of
Francois’s saliva and blood. The officers travelled to California and
procured the samples, and subsequent testing revealed a “match”
between Francois’s DNA and the DNA found on the victim’s breast.
(Id. at ¶¶ 2-4.) (Exhibits herein are referenced as follows: to the Petition (Doc. 1 as “Exh.
P-__”; to the Answer (Doc. 10), as “Exh. ___”; and to the Reply (Doc. 40) as Exh. R-
___.”) In the interim, on November 7, 2010, the day after Petitioner’s California arrest,
the California court had conducted a probable cause hearing, taking testimony from the
arresting officer (Zeeman), and concluding “that the arrest in California was supported by
probable cause.” (Id. at ¶ 21. See also Exh. LL, Order 9/1/22 at 5.) The California case
was ultimately dismissed on January 24, 2011. (Exh. II, PCR Pet. at 5.)
B. PROCEEDINGS AT TRIAL
On May 7, 2010 Petitioner was charged in Maricopa County Superior Court case
number CR-2010-006046-001 with burglary, kidnapping, aggravated assault, sexual
abuse, and eight counts of sexual assault (arising from eight different forms of assault on
the victim AS on August 22, 2003). (Exh. A.) On July 7, 2010, Petitioner was also
charged in Maricopa County Superior Court case number CR-2010-006261-001 with
similar charges related to an assault on September 11, 2007 of SG). (Exh. B.) Counsel
was appointed for both cases and they were initially prosecuted jointly. Petitioner
challenges herein only his conviction on the May 7, 2010 indictment in the “046” case.
Counsel filed a joint Motion to Suppress (Exh. D) in both cases, seeking to
suppress the DNA evidence from California as illegally obtained on the basis that Officer
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Zeeman lacked probable cause to effect an arrest. Eventually, the State filed a
Supplemental Response (Exh. G) on the Motion to Suppress. Plaintiff filed pro per a
Supplemental Reply (Exh. H) in which he argued that the arresting officer was not
Zeeman, but a female officer, and that all of the records reflecting Zeeman as the arresting
officer were fabricated.
The trial court held oral arguments. The court explained:
I guess let me tell you where I'm at, from my perspective. The
only way you win your motion is if I accept your argument that it
didn't go down like the Newport Beach police say it went down and
I can't get there.
If Zeeman is testifying truthfully, you lose either because his
contact with you was reasonable in light of the fact that it's a high
burglary area, it's late at night.
He says he sees you potentially you could perceive it as
someone getting -- trying to get in a house. I understand your
argument about the time, how long you were standing there, and how
long he says he observed you.
* * *
I'm not going where you want me to go because I see different
interpretations than you do whether it's related to this, whether it's
related to Gamble's dash cam and the timing of that.
I just think that your position is unlikely in terms of what
occurred. And I don't accept your argument that it was Gamble's
contact initially with you and that the rest was a cover up.
I accept Zeeman's testimony. It's reasonable under the
circumstances. It's reasonably supported by the background evidence
that I've seen, whether it's the dash cam, the disparity in some of the
times or identifying unit numbers I think can be explained and has
been explained by the State as it relates to that evidence.
And you're just not getting me there. And if you don't get me
there on that, there's no basis for suppression and we don't get into a
fruit of the poisonous tree analysis.
(Exh. TT, R.T. 8/16/13 at 6, 8.) The court denied the motion to suppress and set a deadline
for a motion to consolidate the cases for trial. (Exh. I, ME 8/16/13; Exh. TT, R.T. 8/16/13.)
Defense counsel then filed a Motion to Vacate (Exh. J) on the suppression motion, arguing
an evidentiary hearing should have been allowed, and then an “Updated Motion to
Suppress” (Exh. L) making similar arguments. The motions were denied. (Exh. N, M.E.
12/17/13.)
Before a decision on the Motion to Suppress issued, Petitioner waived his right to
counsel in the “261” case and preceded pro se in that case. (Exh. F, M.E. 11/21/11.)
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However, Petitioner proceeded with counsel in the instant case, until just before
trial. (Exh. O, M.E. 5/12/15.) On the first day, Petitioner sought to waive counsel, citing
ineffective assistance of counsel. The court questioned petitioner, and advised that counsel
would remain available to him if he changed his mind about representation. Petitioner
signed a Waiver of Counsel (Exh. P), which was effectively accepted by the Court. (Exh.
UU, R.T. 5/12/15 (TD1) at 6-12.) Counsel continued to appear as advisory counsel. (See
e.g. id. at 19 (Petitioner introducing himself and counsel as “advisory counsel”).)
Advisory counsel continued to actively participate in various portions of the case.
Petitioner was convicted as charged, and the jury found aggravating factors on
various charges of: harm to the victim; lying in wait/ambush; and serious physical injury.
(Exh. R, M.E. 6/4/15.)
After the conclusion of trial, the “261” case was dismissed without prejudice on the
motion of the prosecution. (Exh. S, M.E. 3/29/16.)
On May 20, 2016, Petitioner was sentenced to “aggravated consecutive prison
sentences totaling 137.75 years.” (Exh. Y, Mem. Dec. 5/3/18 at ¶ 5; Exh. T, Sentence.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal (Exhs. U, V), with appellate counsel raising claims
that the court erred by denying his motion to appoint substitute trial counsel and
precluding defense witnesses, and by denying his motion to suppress DNA evidence, and
a claim of prosecutorial misconduct. (Exh. W, Opening Brief.)
In a Memorandum Decision issued May 3, 2018 (Exh. Y) the Arizona Court of
Appeals found no merit to the asserted claims, and affirmed Petitioner’s convictions and
sentences.
Petitioner was denied review by the Arizona Supreme Court, and on March 7, 2019,
the Arizona Court of Appeals issued its Mandate (Exh. AA).
/ /
/ /
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D. PROCEEDINGS ON POST-CONVICTION RELIEF
1. First and Second PCR Proceeding
During the pendency of his direct appeal, Petitioner filed two post-conviction relief
notices. (Exh. BB, Not. 8/15/16; Exh. CC, Not. 8/16/16.) The Court initially appointed
counsel (Exh. DD, M.E. 4/2/18). Counsel moved for a stay pending completion of appeal
(Exh. EE). Ultimately, however, the PCR court dismissed the proceedings without
prejudice to them being refiled within 30 days after the mandate on direct appeal. (Exh.
FF, M.O. 5/14/18.)
Petitioner never filed a PCR petition in his first and second PCR proceedings, and
his PCR notices in those cases asserted only a claim that the prison had destroyed
Petitioner’s legal documents and a failure to file a timely PCR notice was not Petitioner’s
fault. (See Exh. BB 1st PCR Not. at 2; Exh. CC 2nd PCR Not. at 3.)
2. Third PCR Proceeding
After the mandate on direct appeal, on March 19, 2019, Petitioner filed a third PCR
Notice (Exh. GG). The PCR court appointed counsel for Petitioner. (Exh. HH, ME
3/25/19.) Counsel filed a PCR Petition (Exh. II) raising claims based: on trial counsel’s
failure to appear for hearings and an interview; the unavailability of California transcripts
at trial; improper reliance on the California suppression hearing; denial of an evidentiary
suppression hearing; illegal seizure of his DNA by California authorities; improper
garnering of DNA evidence; and duplicative sentences; and various claims of ineffective
assistance.
The PCR court dismissed all but the ineffective assistance claims as precluded or
waived under Ariz. R. Crim. Proced. 32.2 (Exh. LL, Order 9/1/22 at 3), and found the
claims of ineffective assistance to be without merit (id. at 4-7).
Petitioner filed a Petition for Review (Exh. MM) challenging the PCR Court’s
dismissals under Rule 32.2 and its denial of the ineffectiveness claims. The Arizona Court
of Appeals granted review but summarily denied relief based on failure to show an abuse
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of discretion by the PCR court. (Exh. MM, Mem. Dec. 4/6/23.)
Petitioner sought review by the Arizona Supreme Court (Exh. QQ Pet. Rev.), but
review was denied on November 23, 2023. (Exh. RR, Mandate.)
E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at
Florence, Arizona, commenced the current case by filing his Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 on November 19, 2024 (Doc. 1).1 Petitioner’s
Petition asserts the following
(1) Petitioner’s Sixth Amendment right to confront his accusers
was violated because evidence that Officer Gamble was the
arresting officer in a California case was “withheld until after
the case [was] dismissed” and Petitioner’s Fourteenth
Amendment right to due process was violated by “the manner
in which the government proceeded . . . by fabricating said
evidence.”2
(2) Petitioner received ineffective assistance of counsel because
his attorney missed court appearances and failed to interview
witnesses, interview the case agent at the jail, notify the trial
court of Petitioner’s alibi defense, and conduct a pretrial
investigation.
(3) The consecutive terms of imprisonment violated the Fifth
Amendment proscription “against consecutive punishment for
a continuous course of conduct.”
(4) Petitioner was denied due process because the Newport Beach
Police Department and a police officer “orchestrated to
manufacture a crime to induce criminal charges.”
(5) The Newport Beach Police Department violated Petitioner’s
Fourth, Fifth, Sixth, and Fourteenth Amendment rights
regarding “unreasonable search and seizure, due process and
compulsory process.”
(6) The trial court violated Petitioner’s Fourth and Fourteenth
Amendment rights by “fail[ing] to litigate the unconstitutional
arrest and illegal taking . . . of DNA without holding an
evidentiary hearing.”
(7) The trial court “erred by not holding a suppression hearing
base[d] on the record and evidence that Petitioner’s 4th, 5th,
6th & 14th Amendment rights were violated when the
1 The Petition’s pages are numbered using interleaved and non-consecutive numbering.
Consequently, the Petition is referenced by docket page number.
2 Petitioner’s due process claim in Ground 1 based on fabricated evidence is duplicative
of his claim in Ground 4 that California officials “manufacture[d] a crime.” (Compare
Petition at 12 (Ground 1) (arguing “arrest by NBPD was manufactured”) with Petition at
9 (Ground 4) (arguing “orchestrated to manufacture a crime to induce criminal charges”).
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government exercised its power to gather evidence in violation
of the U.S. Constitution.”
(8) Petitioner was “not accorded protections of [the] Full Faith
and Credit Clause” and this “deprived [Petitioner of] an
evidentiary hearing on [his] motion to suppress.”
(9) The taking of Petitioner’s DNA violated procedural due
process, the United States Constitution, and California law.
(10) The State of Arizona violated the Fourteenth Amendment and
procedural due process “to obtain evidence and jurisdiction by
and through a search and seizure that arbitrarily exercised
government powers” when “Arizona authorities traveled to
California[] and[,] without jurisdiction[,] took DNA from
[Petitioner], and then traveled back to Arizona without a
secure chain of custody.”
(11) Petitioner’s attorney was inadequate and “ineffective in nearly
all aspects of pre[]trial and trial,” which prejudiced Petitioner.
(Order 1/14/25, Doc. 7 at 2-3.)
In Ground 2, Petitioner asserts subclaims of ineffective assistance based on: (1)
failure to interview witnesses, including the forensic lab, (2) missing court appearances,
(3) missing an interview, (4) not providing notice of an alibi defense, (5) not conducting a
pretrial investigation, and (6) failure to communicate with Petitioner. In Ground 11,
Petitioner asserts subclaims of ineffective assistance based on: (1) failure to interview
witnesses, including the forensic lab, (2) failure to communicate with Petitioner, (3) failure
to appear for witness interview, (4) failure to investigate, (5) failure to present mitigating
evidence, (6) failure to notice an alibi defense, and (7) failure to subpoena witnesses.
Many of these claims are duplicative of each other.3 Accordingly, (in keeping with
Respondents’ unopposed approach) the claims of ineffective assistance in Grounds 2 and
11 are denominated and addressed herein as:
- Ground IAC 1: failure to interview or subpoena witnesses (Grounds 2(1), 11(1)
and 11(7));
- Ground IAC 2: missing court appearances (Ground 2(2));
- Ground IAC 3: missing witness interview (Grounds 2(3) and 11(3);
3 Petitioner makes other conclusory assertions such as counsel’s failure to “provide
adequate adversarial testing of the evidence at trial” (Petition at 7), and “failure to prepare
for trial” (Petition at 26). Conclusory allegations that are not supported by specific facts
do not merit habeas relief. James v. Borg, 24 F.3d 20, 26 (9th Cir.), cert. denied, sub. nom
James v. White, 513 U.S.935 (1994). Moreover, Petitioner has not objected to
Respondents descriptions of his claims.
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- Ground IAC 4: not providing notice of alibi defense (Grounds 2(4) and 11(6));
- Ground IAC 5: not conducting pretrial investigation (Grounds 2(5) and 11(4));
- Ground IAC 6: failure to communicate with Petitioner (Grounds 2(6) and
11(2));
- Ground IAC 7: failure to present mitigation at sentencing (Ground 11(5));
Response - On February 14, 2025, Respondents filed their Answer (Doc. 10).
Respondents argue: (a) Grounds 4 and 5 are not cognizable because they challenge only
the conduct of the California officials, and thus does not challenge Petitioner’s current
custody; (b) Grounds 4, 5, 6, 7, 8, 9 and 10 are not cognizable because they rely on
violations of state law and/or assert a Fourth Amendment claim in violation of Stone; (c)
Ground 1, and the claims of ineffective assistance of counsel in Grounds 2 and 11, and
Grounds 3, 4, 5, 6, 7, 8, 9, and 10 are procedurally defaulted; (d) Petitioner’s claims of
ineffective assistance of counsel and claims in Ground 6, 7, and 8 regarding a suppression
hearing are without merit.
Reply - Because Respondents relied upon a failure to properly exhaust state
remedies and deferential review, the Court directed:
(A) Any assertions in the reply that Petitioner’s claims were fairly
presented to the state appellate courts shall be supported by
specific references to the location of the presentation of the claim,
i.e. by exhibit number/letter in the record of this proceeding,
document name, date of filing with the state court, page(s)/ line
number(s) (e.g. “Exh. A, Petition for Review, filed 1/1/15, at 1/17
– 2/23”).
(B) Any assertions in the reply that Petitioner’s claims addressed on
the merits by the state courts meet the standards of 28 U.S.C. §
2254(d) must be supported by: the specific error under U.S.
Supreme Court law; and/or the erroneous factual determinations
and why the state court determination of those facts was
unreasonable in light of the evidence before the state courts
(Order 2/14/26, Doc. 11.) On November 18, 2025, Petitioner filed his Reply (Doc. 40).4
Petitioner argues the merits and fair presentation of Grounds 1 (id. at 2-9), 2 and 11 (id. at
4 Petitioner’s Reply numbers pages separately for each section. Consequently, the Reply
is referenced by the docket page number.
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10-21), 4 (id. at 22-31), 5 (id. at 32-37), 6 (id. at 38-40), 7 (id. at 41-42), 9 (id. at 43-44).
Ground 3, 8, and 10 are not addressed. Various exhibits are attached (id. at 45-138).
III. APPLICATION OF LAW TO FACTS
A. CALIFORNIA PROCEEDING ERRORS – GROUNDS 4, 5
Arguments - Respondents argue Grounds 4 and 5 are not cognizable because they
challenge only the proceedings in California, which is not the basis for Petitioner’s
custody. (Answer at 14-17.)
In Ground 4, Petitioner argues:
My 14th Amendment Right to Due Process was violated by the
Newport Beach Police Dept. and Ofr. Troy Zeeman when
orchestrated to manufacture a crime to induce criminal charges also
in violation of the U.S. Constitution.
(Petition at 9.)
In Ground 5, Petitioner argues:
The NBPD violated my 4th, 5th, 6th & 14th Amendment rights
including unreasonable search and seizure, due process and
compulsory process.
(Id. at 16.)
Petitioner replies that he raises Ground 4 and 6 in his Petition because his related
damage claims were “Heck barred until the state case was completed.” (Reply at 22, 37.)
He further argues the merits of his challenges to the California events in Grounds 4 and 5,
and obliquely references that evidence developed from those events were used
(“bootstrap[ped]”) in his Arizona conviction. (Reply at 29-30, 37.)
Applicable Law - To sustain a habeas petition under 28 U.S.C. § 2254, like the
instant one, the petitioner must be “in custody” pursuant to the challenged actions.
“Section 2254(a)'s language permitting a habeas petition to be entertained ‘only on the
ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties
of the United States,’ (emphasis added), explicitly requires a nexus between the petitioner's
claim and the unlawful nature of the custody.” Bailey v. Hill, 599 F.3d 976, 980 (9th Cir.
2010) (emphasis in original).
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To the extent that Petitioner’s claims in Ground 4 and 5 seek to challenge the
California investigation and prosecution (rather than the validity of the evidence in the
Arizona case as a result of such actions), the claims are not cognizable. Petitioner is not
in custody pursuant to those proceedings, but only under his Arizona conviction.
The “in custody” requirement is not avoided because Petitioner’s challenges in
Grounds 4 and 5 may have been previously barred in earlier proceedings under the
principles of Heck v. Humphrey, 512 U.S. 577 (1994) (actions that would imply invalidity
of conviction cannot be brought until conviction is overturned) or similar principles, see
e.g. Wallace v. Kato, 549 U.S. 384, 393–94 (2007) (stay of case until completion of related
criminal prosecution). Such procedural hurdles to do not alter the
The portions of Ground 4 and 5 directly challenging the California proceedings
must be dismissed as failing to challenge Petitioner’s current custody.
B. STONE BAR ON EXCLUSION CLAIMS – GROUNDS 4, 5, 6, 7, 8, 9, 10
Respondents argue that Petitioner’s exclusionary rule claims in Grounds 4, 5, 6, 7,
8, 9, and 10 are barred under Stone v. Powell, 428 U.S. 465, 481–82 (1976). (Answer at
16 (4), 17 (5), 18 (6), 19 (7), 20 (8), 21 (9), 21-22 (10).)
Indeed, these Grounds assert exclusionary rule claims. As discussed hereinabove,
Petitioner asserts in Ground 4 and 5 that the DNA evidence from California should have
been suppressed because the search yielding it was illegally conducted.
In Ground 6, Petitioner argues the DNA from California should have, under
California law, been destroyed and thus should have been excluded in the Arizona
proceeding . (Petition at 21.) In Ground 7, Petitioner argues error by failure to hold an
evidentiary hearing on his suppression motion. (Id. at 22.) In Ground 8, Petitioner argues
the failure to hold such an evidentiary hearing was a violation of the Full Faith and Credit
Clause. (Id. at 23.) In Ground 9, Petitioner argues the DNA should have been suppressed
as a matter of Due Process. (Id. at 24.) All of these claims in Ground 4, 5, 6, 7, 8 and 9
are founded upon the argument that Petitioner’s conviction is unconstitutional because the
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DNA evidence should have been suppressed.
And finally, in Ground 10, Petitioner directly argues a Fourth Amendment violation
as a result of the use of the DNA evidence he contends was obtained by an improper search
and seizure. (Id. at 25.) But his only remedy for such a violation is exclusion of the
evidence, and the exclusionary rule is a limited one.
For much of this country’s history, until 1921, evidence obtained in violation of the
Constitution was nonetheless admissible in federal prosecutions. See Stone at 482-483
(citing Gouled v. United States, 255 U.S. 298 (1921)). In the Weeks case, the Court
adopted a prophylactic rule that excluded improperly secured evidence from introduction
in federal cases, as a means to deter constitutional violations. However, it was not until
1961 that this “exclusionary” rule was extended by the Supreme Court to state
prosecutions. See Stone, 428 U.S. at 483 (citing Mapp v. Ohio, 367 U.S. 643 (1961)).
But by 1976, the tide began to change. In Stone v. Powell, 428 U.S. 465 (1976),
the Supreme Court recognized that habeas proceedings are so far removed from the
offending conduct that any deterrent effect is outweighed by the societal cost of ignoring
reliable, trustworthy evidence and the judicial burden of litigating collateral issues. Thus,
the Court held that “where the State has provided an opportunity for full and fair litigation
of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus
relief on the ground that evidence obtained in an unconstitutional search or seizure was
introduced at his trial.” Id. at 494.
The rub, of course, is whether Petitioner had “an opportunity for full and fair
litigation” of his claims in the state court. In this analysis, "[t]he relevant inquiry is
whether petitioner had the opportunity to litigate his claim, not whether he did in fact do
so or even whether the claim was correctly decided." Ortiz-Sandoval v. Gomez, 81 F.3d
891, 899 (9th Cir. 1996).
Petitioner replies that he did not have a full and fair opportunity to litigate his claims
in his state prosecution because: (1) the California prosecution was dismissed; (2) the state
court failed to hold an evidentiary hearing or to allow subpoenas (pursuant to his right of
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confrontation) on his motion to suppress despite proffers of evidence in support of his
requests purportedly tending to counter the California officers’ assertions about the events
surrounding his arrest (Reply at 24-25); (3) both Arizona and California have failed to
disclose records related to those matters as required by Brady/Giglio, etc. (id. at 28-29);
(4) the California officers lied (id. at 29-30); and (5) the Arizona Supreme Court recast his
claims as based solely on ineffective assistance of counsel (id. at 30). (See also Reply at
32-33 (Ground 5), 40 (6), 41-42 (7).)
The dismissal of the California prosecution is irrelevant, because that prosecution
did not result in Petitioner’s current detention. At most, evidence from the California
investigation was used to prosecute Petitioner in Arizona. It was in the Arizona
prosecution that Petitioner must have had the opportunity to litigate the admissibility of
that evidence.
Petitioner’s complaints about the lack of an evidentiary hearing and subpoenas,
the failures to disclose evidence, and false testimony go to the correctness of the state court
decision on his exclusionary rule claim. But a state court does not have to decide rightly.
Ortiz-Sandoval, 81 F.3d at 899.
Moreover, Stone is not offended where a state applies normal procedural rules in
conducting exclusionary rule litigation. See e.g. Mack v. Cupp, 564 F.2d 898, 901 (9th
Cir. 1977) (Stone satisfied without evidentiary hearing where petitioner’s affidavit in
support of application to state court offered only conclusory allegations). This is true
even if the state court does so based on incorrect views of the facts. Id. at 902.
Here, the state court did not simply deny an evidentiary hearing on the motion to
suppress ab initio. Instead, before denying an evidentiary hearing and subpoenas for the
California officers, the state court engaged in an extended hearing, reviewed transcripts of
the deposition of the purportedly arresting California officer, videos from the night of the
arrest, and various reports proffered by Petitioner. (See Exh. TT, R.T. 8/16/13 at 21-23.)
The trial court concluded that Petitioner’s claims of a conspiracy to concoct a basis for his
California arrest were simply not plausible. “I understand your argument, but I don't get
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to where you get relating to the conspiracy that was created immediately and then in a
complicated fashion carried out within ten minutes that evening.” (Id. at 13.)
Petitioner asserts that California and Arizona authorities suppressed records of
disciplinary actions against the California arresting officer. (Reply at 28.) But Petitioner
had and took the opportunity to argue such failure to disclose to the trial court at the case
management conference. (See Exh. SS R.T. 7/1/13 at 23.) Moreover, Petitioner was not
without remedy on any alleged Brady violations, having the ability of making directly such
a claim to the trial court or PCR court (if discovered after appeal) and the Arizona Court
of Appeals.
Similarly, Petitioner spent much time and presented a plethora of evidence to
attempt to persuade the state court that the California authorities had lied. Right or wrong,
the state court’s conclusion was that his assertions were not sufficiently supported to be
even plausible.
Finally, Petitioner assertion that the Arizona Supreme Court converted his
substantive claims into ineffective assistance claims is nonsensical. The Arizona Supreme
Court has issued no opinions in this case, only denials of review.
Accordingly, Petitioner had in the state courts an “opportunity for full and fair
litigation” of his exclusionary rule claims. Thus they are barred from review in this habeas
proceeding. Accordingly, Petitioner’s exclusionary rule claims in Grounds 4, 5, 6, 7, 8, 9,
and 10 must be dismissed with prejudice.
C. STATE LAW CLAIMS – GROUNDS 6, 7, 8, 9
Respondents argue that Petitioner asserts state law claims in Grounds 6, 7, 8, and
9, and that such claims are not cognizable bases for federal habeas relief.
In Ground 6, Petitioner asserts that California officials were obligated under
California law to destroy the DNA evidence with their case was dismissed, and that the
provision of the DNA to Arizona officials was a violation of California law. (Petition at
21.) In Grounds 7, 8, 9, Petitioner effectively makes the same arguments. (Id. at 22, 23,
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24.)
A state prisoner is entitled to habeas relief under 28 U.S.C. § 2254 only if he is held
in custody in violation of the Constitution, laws or treaties of the United States. Federal
habeas relief is not available for alleged errors in the interpretation or application of state
law. Estelle v. McGuire, 502 U.S. 62 (1991); Middleton v. Cupp, 768 F.2d 1083 (9th Cir.
1985), cert. denied, 478 U.S. 1021 (1986).
Petitioner proffers no reason his claims based on California law should not be
dismissed as non-cognizable.
Accordingly, the portions of Grounds 6, 7, 8, and 9 founded upon violations of
California law must be dismissed with prejudice.
D. PROCEDURAL DEFAULT
Respondents argue that Petitioner has procedurally defaulted5 his state remedies on
Grounds 1, 3, 4, 5, 6, 7, 9, and 10, and his ineffective assistance of counsel claims in
Grounds IAC 1 through 7. With one partial exception, the undersigned agrees.
1. Exhaustion Requirement
Generally, a federal court has authority to review a state prisoner’s claims only if
available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 (1981)
(per curiam). The exhaustion doctrine, first developed in case law, has been codified at 28
U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to
show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104
5 In Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010), a panel of the Ninth Circuit
denominated an expected future application of a procedural bar as an “implied procedural
bar,” and an actually applied procedural bar as “explicit.” Because habeas courts are
sometimes called upon to imply an explicit procedural bar from a summary state court
decision, see Hunter v. Aispuro, 982 F.2d 344 (9th Cir. 1992) and Wilson v. Sellers, 138
S.Ct. 1188 (2018), and because a procedural default involves a forecast of a state court’s
future decision, rather an implication about a past decision, the undersigned maintains the
separate nomenclature of procedural default and procedural bar. The principles, however,
are the same.
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(9th Cir. 1981).
Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented
his federal claims to the state courts.6 “A petitioner fairly and fully presents a claim to the
state court for purposes of satisfying 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.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th
Cir. 2005).
Proper Forum - “In cases not carrying a life sentence or the death penalty, ‘claims
of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona
Court of Appeals has ruled on them.’” Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir.
2005)(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).
Petitioner complains that he attempted to raise his claims in a prior habeas petition
(citing CV-11-0717-PHS-GMS(MHB)) and in a California case, but his efforts were
thwarted by application of a bar under Heck v. Humphrey. (See Motion for Evidentiary
Hearing, Doc. 17 at 2.) But presentation of his claims in those forums would not have
resulted in exhaustion of his Arizona state remedies.
Proper Vehicle - Ordinarily, “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). Only one of these avenues of relief must be exhausted before
bringing a habeas petition in federal court. This is true even where alternative avenues of
reviewing constitutional issues are still available in state court. Brown v. Easter, 68 F.3d
1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987).
6 Exhaustion can result from the relevant state court actually deciding a claim on the merits.
Castille v. Peoples, 489 U.S. 346, 351 (1989); Greene v. Lambert, 288 F.3d 1081, 1086
(9th Cir. 2002). However, even if decided on the merits, a claim will be procedurally
barred if the state court also denies it on an independent and adequate state ground. Harris
v. Reed, 489 U.S. 255, 264 n. 10 (1989). Plaintiff makes no suggestion that his claims not
fairly presented were actually decided on the merits by the relevant state courts. The
undesigned finds they were not.
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Factual Basis – A petitioner must have fairly presented the operative facts of his
federal claim to the state courts as part of the same claim. A petitioner may not broaden
the scope of a constitutional claim in the federal courts by asserting additional operative
facts that have not yet been fairly presented to the state courts. Expanded claims not
presented in the highest state court are not considered in a federal habeas petition. Brown
v. Easter, 68 F.3d 1209 (9th Cir. 1995); see also, Pappageorge v. Sumner, 688 F.2d 1294
(9th Cir. 1982). And, while new factual allegations do not ordinarily render a claim
unexhausted, a petitioner may not "fundamentally alter the legal claim already considered
by the state courts." Vasquez v. Hillery, 474 U.S. 254, 260 (1986).
Legal Basis - Failure to alert the state court to the constitutional nature of the claim
will amount to failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 366
(1995). While the petitioner need not recite “book and verse on the federal constitution,”
Picard v. Connor, 404 U.S. 270, 277-78 (1971) (quoting Daugherty v. Gladden, 257 F.2d
750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary to support the federal
claim were before the state courts or that a “somewhat similar state law claim was made.”
Anderson v. Harless, 459 U.S. 4, 6 (1982)(per curiam). “[T]he petitioner 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,” Insyxiengmay v. Morgan, 403
F.3d 657, 668 (9th Cir. 2005), or by “a citation to a state case analyzing [the] federal
constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003).
However, a drive-by-citation of a state case applying federal and state law is not sufficient.
For a federal issue to be presented by the citation of a state decision
dealing with both state and federal issues relevant to the claim, the
citation must be accompanied by some clear indication that the case
involves federal issues. Where, as here, the citation to the state case
has no signal in the text of the brief that the petitioner raises federal
claims or relies on state law cases that resolve federal issues, the
federal claim is not fairly presented.
Casey v. Moore, 386 F.3d 896, 912 n. 13 (9th Cir. 2004).
Proper Mode - "[O]rdinarily a state prisoner does not 'fairly present' a claim to a
state court if that court must read beyond a petition or a brief (or a similar document) that
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does not alert it to the presence of a federal claim in order to find material, such as a lower
court opinion in the case, that does so." Baldwin v. Reese, 541 U.S. 27, 32 (2004). The
Arizona habeas petitioner "must have presented his federal, constitutional issue before the
Arizona Court of Appeals within the four corners of his appellate briefing." Castillo v.
McFadden, 399 F.3d 993, 1000 (9th Cir. 2005).
2. Procedural Default
Ordinarily, unexhausted claims are dismissed without prejudice. Johnson v. Lewis,
929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to properly
exhaust his available administrative or judicial remedies, and those remedies are now no
longer available because of some procedural bar, the petitioner has "procedurally
defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice of
a procedurally defaulted habeas claim is generally proper absent a “miscarriage of justice”
(i.e. actual innocence) which would excuse the default. Reed v. Ross, 468 U.S. 1, 11
(1984).
Respondents argue that Petitioner may no longer present his unexhausted claims to
the state courts. Respondents rely upon Arizona’s preclusion bar, set out in Ariz. R. Crim.
Proc. 32.2(a) and time limit bar, set out in Ariz. R. Crim. P. 32.4. (Answer at 24-25.)
Remedies by Direct Appeal - Under Ariz.R.Crim.P. 31.3, the time for filing a
direct appeal expires twenty days after entry of the judgment and sentence. Moreover, no
provision is made for a successive direct appeal. Accordingly, direct appeal is no longer
available for review of Petitioner’s unexhausted claims.
Remedies by Post-Conviction Relief – Under Arizona’s preclusion, waiver and
timeliness bars, Petitioner can no longer seek review by a subsequent PCR Petition.
Preclusion Bar – Under the rules applicable to Arizona’s post-conviction process,
a claim may not be brought in a petition for post-conviction relief if the claim was
“[f]inally adjudicated on the merits on appeal or in any previous collateral proceeding.”
Ariz. R. Crim. P. 32.2(a)(2). Thus, Petitioner cannot reassert previously asserted claims.
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And, for claims asserted only to the PCR court and not to the appellate court, he cannot
reurge them in a new PCR petition to then seek review by the appellate court.
Waiver Bar - Under the rules applicable to Arizona's post-conviction process, a
claim may not ordinarily be brought in a petition for post-conviction relief that “has been
waived at trial or on appeal, or in any previous post-conviction proceeding.”
Ariz.R.Crim.P. 32.2(a)(3). Under this rule, some claims may be deemed waived if the
State simply shows "that the defendant did not raise the error at trial, on appeal, or in a
previous collateral proceeding." Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070
(2002) (quoting Ariz.R.Crim.P. 32.2, Comments).
For others of "sufficient constitutional magnitude," the State "must show that the
defendant personally, ''knowingly, voluntarily and intelligently' [did] not raise' the ground
or denial of a right." Id. See also Ariz. R. Crim. Proced. 32.2(a)(3) “waived knowingly,
voluntarily, and personally by the defendant.” That requirement is limited to those
constitutional rights “that can only be waived by a defendant personally.” State v.
Swoopes, 216 Ariz. 390, 399, 166 P.3d 945, 954 (App.Div. 2, 2007). Indeed, in coming
to its prescription in Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver
of the right to counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to
a twelve-person jury under the Arizona Constitution, as among those rights which require
a personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Claims based upon ineffective
assistance of counsel are determined by looking at “the nature of the right allegedly
affected by counsel’s ineffective performance. Id. In State v. Traverso, - - - Ariz. - - - ,
576 P.3d 97, 107 (Ariz. 2025) the Arizona Supreme Court added to the Stewart list,
holding that “the right to be sufficiently informed of the prosecution's plea offer to decide
whether to accept it, plead guilty, and waive a jury trial is of sufficient constitutional
magnitude to require the defendant's knowing, voluntary, and personal waiver for purposes
of Rule 32.2(a)(3).”
Here, none of Petitioner’s claims are of the sort requiring a personal waiver, and
Petitioner’s claims of ineffective assistance similarly have at their core the kinds of claims
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not within the types identified as requiring a personal waiver.
Timeliness Bar - Even if not barred by preclusion, Petitioner would now be barred
from raising his claims by Arizona’s time bars. Ariz.R.Crim.P. 32.4 requires that petitions
for post-conviction relief (other than those which are “of-right”) be filed “within ninety
days after the entry of judgment and sentence or within thirty days after the issuance of
the order and mandate in the direct appeal, whichever is the later.” See State v. Pruett,
185 Ariz. 128, 912 P.2d 1357 (App. 1995) (applying 32.4 to successive petition, and noting
that first petition of pleading defendant deemed direct appeal for purposes of the
rule). That time has long since passed.
Exceptions - Rules 32.2(a)(3) and 32.4(a) do not bar dilatory claims if they fall
within the category of claims specified in Ariz.R.Crim.P. 32.1(b) through (h). See Ariz.
R. Crim. P. 32.2(b) (exceptions to preclusion bar); Ariz. R. Crim. P. 32.4(a) (exceptions
to timeliness bar). Petitioner has not asserted that any of these exceptions are applicable
to his claims. Nor does it appears that such exceptions would apply. The rule defines the
excepted claims as follows:
(b) the court did not have subject matter jurisdiction to render a
judgment or to impose a sentence on the defendant;
(c) the sentence as imposed is not authorized by law;
(d) the defendant continues to be or will continue to be in custody
after his or her sentence expired;
(e) newly discovered material facts probably exist, and those facts
probably would have changed the judgment or sentence. Newly
discovered material facts exist if:
(1) the facts were discovered after the trial or sentencing;
(2) the defendant exercised due diligence in discovering these facts;
and
(3) the newly discovered facts are material and not merely cumulative
or used solely for impeachment, unless the impeachment evidence
substantially undermines testimony that was of such critical
significance that the impeachment evidence probably would have
changed the judgment or sentence.
(f) the failure to timely file a notice of appeal was not the defendant's
fault;
(g) there has been a significant change in the law that, if applicable to
the defendant's case, would probably overturn the defendant's
judgment or sentence; or
(h) the defendant 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, or that no reasonable fact-finder would
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find the defendant eligible for the death penalty in an aggravation
phase held pursuant to A.R.S. § 13-752.
Ariz.R.Crim.P. 32.1.
Petitioner does not assert a lack of subject matter jurisdiction under Rule 32.1(b),
or an unauthorized sentence under Rule 32.1(c). Paragraph 32.1 (d) (expired sentence)
generally has no application to an Arizona prisoner who is simply attacking the validity of
his conviction or sentence. Where a claim is based on "newly discovered evidence" that
has previously been presented to the state courts, the evidence is no longer "newly
discovered" and paragraph (e) has no application. Here, with one exception discussed
hereinafter regarding Ground 4, Petitioner has long ago asserted the facts underlying his
claims. Paragraph (f) has no application because Petitioner filed a timely notice of post-
conviction relief. Paragraph (g) has no application because Petitioner has not asserted a
change in the law since his last PCR proceeding. Finally, paragraph (h), concerning claims
of actual innocence, has no application to the procedural claims Petitioner asserts in this
proceeding.
Therefore, none of the exceptions apply, and Arizona’s time and waiver bars would
prevent Petitioner from returning to state court. Thus, Petitioner’s claims that were not
fairly presented are all now procedurally defaulted.
3. Procedural Bar on Independent and Adequate State Grounds
Related to the concept of procedural default is the principle of barring claims
actually disposed of by the state courts on state grounds. “[A]bsent showings of ‘cause’
and ‘prejudice,’ federal habeas relief will be unavailable when (1) ‘a state court [has]
declined to address a prisoner's federal claims because the prisoner had failed to meet a
state procedural requirement,’ and (2) ‘the state judgment rests on independent and
adequate state procedural grounds.’ ” Walker v. Martin, 562 U.S. 307, 316 (2011).
In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit addressed the
burden of proving the independence and adequacy of a state procedural bar.
Once the state has adequately pled the existence of an independent
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and adequate state procedural ground as an affirmative defense, the
burden to place that defense in issue shifts to the petitioner. The
petitioner may satisfy this burden by asserting specific factual
allegations that demonstrate the inadequacy of the state procedure,
including citation to authority demonstrating inconsistent application
of the rule. Once having done so, however, the ultimate burden is the
state's.
Id. at 584-585.
Waiver Bar - Petitioner fails to proffer anything to suggest that Rule 32.2(a) is not
an independent and adequate state ground, sufficient to bar federal habeas review of claims
a defendant could have but did not raise on direct appeal. The federal courts have routinely
held that it is. “Arizona's waiver rules are independent and adequate bases for denying
relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014).
Timeliness Bar – Similarly, Petitioner fails to proffer anything to suggest that Rule
32.4 is not an independent and adequate state ground, sufficient to bar federal habeas
review of claims a defendant could have but did not raise on direct appeal. Courts in this
district have held that it is. See e.g. Hevel v. Shinn, 2021 WL 5311082, at *6 (D. Ariz. July
13, 2021), report and recommendation adopted sub nom. Hevel v. Ryan, 2021 WL
5299678 (D. Ariz. Nov. 15, 2021); Cortez v. Ryan, 2019 WL 7494659, at *7 (D. Ariz. Oct.
31, 2019), report and recommendation adopted sub nom. Cortez v. Att'y Gen. of Arizona,
2020 WL 85105 (D. Ariz. Jan. 7, 2020); and Veseli v. Agnew-Hacker, 2018 WL 8053771,
at *4 (D. Ariz. Dec. 13, 2018), report and recommendation adopted sub nom. Veseli v.
Hacker-Agnew, 2019 WL 1676193 (D. Ariz. Apr. 17, 2019).
4. Application to Petitioner’s Claims
a. Ground 1 - Confrontation
Briefs - In Ground One of his Petition, Petitioner argues that his Sixth Amendment
Confrontation Clause rights were violated by the refusal to allow him to subpoena and
depose the California officer he alleges actually arrested him, Officer Gamble. (Petition
at 6, 12-13.)
Respondents argue that the claim was not fairly presented on direct appeal because
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it was only summarily stated, as found by the Arizona Court of Appeals. They argue that
it was procedurally barred in the PCR proceeding as precluded. (Answer at 26-27.)
Petitioner argues that he did not knowingly waive this claim, appellate counsel was
ineffective for failing to raise it, and that it was asserted in his Petition for Review to the
Arizona Supreme Court filed July 7, 2023 (Exh. QQ) at 3/18 to 3/23. (Reply at 8.)
State Court Proceedings – On direct appeal Petitioner asserted in his third claim
that the trial court had erred by shifting the burden of proof on the lawfulness of the
collection of his DNA. (Exh. W, OBrf. at 3, 30.) In the conclusion of this claim, while
arguing the trial court should have held an evidentiary hearing, Petitioner asserted:
At a hearing, Francois had the right to confront the state's witnesses.
By requiring Francois to bring the witnesses to Arizona or by
requiring him to rely on affidavits that he could not cross-examine,
the court impermissibly shifted the burden of proof to Francois to
prove his arrest and seizure was unlawful. The court erred in shifting
the burden to Francois and denying him a hearing on his motion to
suppress.
(Id. at 37-38.)
The Arizona Court of Appeals ruled:
¶23 Regarding Francois’s assertion that the court’s failure to
conduct an evidentiary hearing violated his confrontation rights, we
do not address it because Francois fails to present a developed
argument supported by authority and has thereby waived the issue.
See Ariz. R. Crim. P. 31.10(a)(7)(A) (“An appellant’s opening brief
must set forth . . . appellant’s contentions with supporting reasons for
each contention, and with citations of legal authorities . . . on which
the appellant relies.”); State v. Moody, 208 Ariz. 424, 452, ¶ 101, n.9
(2004) (“In Arizona, opening briefs must present significant
arguments, supported by authority, setting forth an appellant’s
position on the issues raised.”) (quoting State v. Carver, 160 Ariz.
167, 175 (1989)); State v. Sanchez, 200 Ariz. 163, 166, ¶ 8 (App.
2001) (issue waived because defendant failed to develop argument in
his brief).
(Exh. Y, Mem. Dec. 5/3/18 at ¶ 23.)
Petitioner references his third PCR Proceeding. In his PCR petition in that
proceeding he raised and argued the following claim:
(5) Francois was denied the right to compulsory process and
confrontation when the Court relied on evidence developed
during litigation on a related matter to refuse him an
evidentiary hearing to contest an investigatory stop in
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California and the subsequent seizure of DNA evidence after
arrest;
(Exh. II, PCR Pet. at 2. See also id. at 37-40.) However, the PCR Court addressed, inter
alia, this confrontation claim and ruled that Petitioner’s claims (other than his ineffective
assistance claims) were:
precluded from relief under Rule 32.2 either because he raised the
claims on direct appeal and the Arizona Court of Appeals adjudicated
them on the merits or because they are waived by Defendant’s failure
to raise the claims on direct appeal.
(Exh. LL, Order 9/1/22 at 3.)
Petitioner then raised this same claim in his Petition for Review to the Arizona
Court of Appeals (Exh. MM, Az. Ct. App. Pet. Rev. at 3) and his Petition for Review to
the Arizona Supreme Court (Exh. QQ, Az. Sup. Ct. Pet. Rev. at 4).7 However, the
argument in both those petitions was limited to attacking the PCR court’s application of
the procedural bar to the claims.
Analysis – Petitioner’s confrontation claim was not fairly presented on direct
appeal because (as determined by the Arizona Court of Appeals) Petitioner did not
adequately argue it as required by Arizona’s rules.8
It was fairly presented in his PCR Petition, with Petitioner citing the Sixth
Amendment. (Exh. II, PCR Pet. at 38.) However, the PCR court found it precluded under
Rule 32.2.9 But the PCR court did not make clear in its ruling whether this claim was
7 Petitioner asserts his confrontation claim was raised in this Arizona Supreme Court PCR
Petition for Review at “3/18-3/23.” There, Petitioner argued:
(2) Francois was deprived of protections due to him under the
Fourth and the Fourteenth Amendments when the Court refused to
convene an evidentiary hearing to permit Francois to litigate the
circumstances surrounding an investigatory stop and the subsequent
seizure of DNA evidence after arrest in California;
(Exh. QQ, Az. Sup. Ct. Pet. Rev. at 3.) That did not fairly present a confrontation claim.
Moreover, even if there was a fair presentation to that court, looking through its summary
denial of review leave subject to the trial court’s procedural bar.
8 Even if this Court could conclude the claim was fairly presented on direct appeal, the
result would be the same because this Court would have to conclude that it was
procedurally barred by the state court based on Plaintiff’s failure to adequately support the
claim.
9 Petitioner repeated his claims to the Arizona Court of Appeals and the Arizona
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barred because it had been raised before and decided on the merits, or that it merely
should have been raised. If the claim was found to have been raised previously raised and
decided, that would imply it was fairly presented and thus state remedies exhaustion.
Where a state court decision appears to rely on more than one state law grounds,
but affords no basis for choosing between a state law ground that would bar federal review,
and one that would not (i.e. because it is not "independent"), that decision cannot bar
federal review. Koerner v. Grigas, 328 F.3d 1039 (9th Cir. 2003); Ceja v. Stewart, 97
F.3d 1246, 1253 (9th Cir.1996).
A claim cannot be both previously litigated and procedurally
defaulted; either it was raised in a prior proceeding or it was not.
These cases do not allow for the possibility that the state court relied
on both grounds for dismissing the relevant claims; only one ground
could apply to each claim. The question is not whether the state relied
primarily on a particular ground, but on which mutually exclusive
ground the state court relied. When either ground is a possibility, the
choice between them is wholly arbitrary. It is not our role to make
such a choice.
Koerner, 328 F.3d at 1053.
However, the habeas court need not resolve the issue by reference to the order
alone. Rather, “other information can be consulted to determine if the state court clearly
relied upon Rule 32.2(a)(3).” Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014).
Relevant considerations include: (1) the state’s arguments before the state courts making
the ambiguous determination, id. at 1016 (citing Coleman v. Thompson, 501 U.S. 722, 740
(1991)); (2) whether the claim actually was raised in prior proceedings, id. at 1016 (citing
Poland v. Stewart, 169 F.3d 573, 578-579 (9th Cir.1999); and (3) the petitioner’s
arguments before the state courts, id. at 1017.
Here, the undesigned concludes that the PCR court was treating this claim as
waived by failure to raise it on direct appeal because: (a) the Arizona Court of Appeals
Supreme Court, both of those courts issued summary rulings. (See Exh. PP, Mem. Dec.
4/6/23; Exh. RR, Mandate.) In considering the application of a state procedural bar, the
habeas court looks at the “last reasoned decision.” Robinson v. Ignacio, 360 F.3d 1044,
1055 (9th Cir. 2004). Accordingly this Court evaluates only the decision of the PCR
Court.
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had recognized that on direct appeal Petitioner had only made a conclusory reference to
the confrontation issue and thus declined to address the claim, including refusing to decide
it on its merits (Exh. Y, Mem. Dec. 5/3/18 at ¶ 23); and (b) Petitioner argued to the PCR
court that the claim was properly presented “for the first time” in the PCR proceeding
(Exh. KK, PCR Reply at 5).
Petitioner makes no argument that Ariz. R. Crim. Proced. 32.2(a)(3) is not an
independent and adequate state ground. As noted hereinabove, the Ninth Circuit has held
that it is. Hurles, 752 F.3d at 780.
Petitioner does argue that he did not knowingly, voluntarily or personally waive his
confrontation rights. (Reply at 8.) However, a confrontation claim is not one of the types
of claims that Arizona requires to be personally waived for its waiver bar to apply. See
Stewart, 202 Ariz. at 450, 46 P.3d at 1070.
Conclusion - Based on the foregoing, the undersigned concludes that Petitioner’s
claim in Ground 1 was procedurally barred in the PCR proceedings on independent and
adequate state law grounds under Arizona’s waiver bar in Ariz. R. Crim. Proced.
32.2(a)(3).
b. Ground 3 – Double Punishment
Briefs – In Ground 3, liberally construed, Petitioner argues his consecutive
sentences arose from a single course of conduct, and thus violate the Double Jeopardy
Clause of the Fifth Amendment. See Smith v. U.S., 287 F.2d 270, 274 (9th Cir. 1961) (““A
second punishment for the same offense violates the double jeopardy provision of the Fifth
Amendment.”). Petitioner asserts this claim was raised on direct appeal, and in his first
and second PCR petitions.10
Respondents argue this claim was not raised on direct appeal, it was thus waived
10 The undesigned presumes that Petitioner counted both of his first two PCR notices as a
single proceeding, and that his references to his “first” PCR proceeding is to those two,
and his references to the “second” PCR proceeding is to his third proceeding in which he
filed a PCR petition. The analysis herein proceeds accordingly.
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and therefore not fairly presented on PCR review, and it was thus procedurally barred as
waived on direct appeal. (Answer at 32.)
Petitioner does not reply on this claim. (See generally Reply at 21-22 (omitting
Ground 3).)
State Court Proceedings – Petitioner raised no challenges to his sentence on direct
appeal. (See generally Exh. W, OBrf.) Petitioner’s first and second PCR notices did not
challenge his sentence.
In his third PCR petition, Petitioner argued a double jeopardy claim based on the
consecutive sentences for a continuous course of conduct. (Exh. II, PCR Pet. at 3, 50-52.)
However, as with the claim in Ground 1, this claim was procedurally barred by the PCR
court. Because the claim was not raised on direct appeal, the undersigned finds it barred
by the PCR court because it was waived on direct appeal under Ariz. R. Crim. Proced.
32.2(a)(3).
Analysis and Conclusion – As with Ground 1, the undersigned concludes that the
PCR court’s rejection of this claim as waived is an independent and adequate state ground,
and therefore this claim is procedurally barred.
c. Ground 4 – Manufactured Crime
Briefs – In Ground 4, Petitioner asserts his due process rights were violated when
the California officers conspired to manufacture a crime and Arizona relied on the
resulting evidence. The Petition asserts no presentation of this claim to the Arizona Court
of Appeals. (Petition at 9.)
Respondents argue that Petitioner never presented this claim to the state courts and
it is now procedurally defaulted. (Answer at 32-33.)
Petitioner replies solely on the merits of this claim. (See Reply at 22-31.) At most,
Petitioner asserts the Arizona Supreme Court improperly recast this claim as one based on
ineffective assistance. (Id. at 30.)
State Court Proceedings – The Petitioner points to and the undesigned has found
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nowhere in the state proceedings that Petitioner asserted this claim.
Petitioner’s assertion that the Arizona Supreme Court improperly recast the claim
is nonsensical. The Arizona Supreme Court has not addressed any claims in this
prosecution, but has issued only summary denials of review. (See Exh. AA, Mandate on
Direct Appeal; Exh. RR, Mandate 3rd PCR.)
Analysis and Conclusion – For the reasons discussed hereinabove, the
undersigned concludes that this claim is now procedurally defaulted under Arizona’s
waiver and time bars.
It is true that Petitioner makes assertions of recently discovered evidence about
misconduct in other cases by one of the California officers. (Reply at 27-28.) He
acknowledges, however, that he has known and argued about the fabricated evidence
“since April of 2010.” (Reply at 27.) The exception to Arizona’s procedural and
timeliness bars does not apply to all arguments which rely on newly discovered evidence.
Rather, the exception is limited to situations where:
(e) newly discovered material facts probably exist, and those facts
probably would have changed the judgment or sentence. Newly
discovered material facts exist if:
(1) the facts were discovered after the trial or sentencing;
(2) the defendant exercised due diligence in discovering these facts;
and
(3) the newly discovered facts are material and not merely cumulative
or used solely for impeachment, unless the impeachment evidence
substantially undermines testimony that was of such critical
significance that the impeachment evidence probably would have
changed the judgment or sentence.
Here, the alleged misconduct in prior cases would be useful in this case solely as
impeachment, and that impeachment would not have undermined critical testimony
affecting the judgment or sentence. At most it might have had some effect in the
suppression proceeding. The events in California were irrelevant to Petitioner’s guilt and
sentence in the Arizona prosecution, except (potentially) as to the admissibility of some
evidence.
Moreover, Petitioner proffers nothing to show diligence in previously seeking out
the information, particularly where he failed to raise the claim in the state court
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proceedings after purportedly knowing the underlying facts since 2010. At most, he argues
it was not volunteered by the prosecution.
Conclusion - Petitioner’s claim in Ground 4 is procedurally defaulted.
d. Ground 5 – Unreasonable Search and Seizure
Briefs – In Ground 5 Petitioner asserts a claim that the California officers engaged
in an unreasonable search and seizure of his DNA evidence in violation of the Fourth
amendment. (Petition at 16-20.) The Petition asserts the claim was raised on direct appeal
and in his first and second PCR petitions. (Id. at 15.)
Respondents argue that on direct appeal Petitioner raised only the related claim that
the trial court erred in not conducting an evidentiary hearing on his suppression motion.
Respondents argue the claim was raised in the third PCR proceeding, but was procedurally
barred as waived. (Answer at 33.)
Petitioner replies only on the merits of this claim, and points to no fair presentation
of it on direct appeal or in his PCR proceedings. (Reply at 32-37.)
Analysis – Petitioner argued in his third issue on direct appeal:
Francois argued that the DNA evidence and results therefrom should
be suppressed for two reasons. First, the California DNA Act was
unconstitutional and second, even if it was constitutional, because
Francois's arrest was illegal he was not subject to the statute. Did the
trial court err by shifting the burden to Francois to prove that the DNA
evidence against him was obtained either unlawfully or
unconstitutionally instead of placing the burden on the state to show
the lawfulness of the DNA evidence obtained by a warrantless
search?
(Exh. W, OBrf. at 30.) In making this argument, Petitioner did not assert that the search
was constitutionally unreasonable in violation of the Fourth Amendment, only that: (1) he
was wrongly denied a hearing on such a claim; and (2) the California statute was violated.
(Id. at 30-37.) That was not fair presentation of the federal, Fourth Amendment claim
Petitioner now raises.
In his third PCR proceeding, Petitioner did not assert a claim on the
constitutionality of the search, but instead only challenged in his second ground for relief
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that trial court’s failure to “convene an evidentiary hearing” on the investigatory stop,
ensuing arrest, and search.
(2) Francois was deprived of protections due to him under the
Fourth and the Fourteenth Amendments when the Court
refused to convene an evidentiary hearing to permit Francois
to litigate the circumstances surrounding an investigatory stop
and the subsequent seizure of DNA evidence after arrest in
California;
(Exh. II, PCR Pet. at 2, 23-32.) That is not fair presentation of the underlying
constitutional question. Petitioner posits no reason to conclude that this claim would be
excepted from Arizona’s waiver and time bars, and thus now procedurally defaulted.
Even if this claim had been fairly presented in his PCR petition, as with Ground 1,
the PCR court rejected the claim raised as precluded under Rule 32.2(a). Because the
claim was not raised on direct appeal, the undersigned would find it was barred by the
PCR court as waived on direct appeal under Ariz. R. Crim. Proced. 32.2(a)(3)
Conclusion- Accordingly, the undersigned concludes that Ground 5 is either
procedurally defaulted, or if not procedurally defaulted it was procedurally barred on an
independent and adequate state ground.
e. Ground 6 – Right to Hearing on Suppression
Briefs – In Ground 6, Petitioner argues the trial court violated his 4th and 14th
Amendment rights to litigate his challenge to his California arrest and collection of DNA
by failing to hold an evidentiary hearing. The Petition asserts presentation of this claim
on direct appeal and in the first and second PCR proceedings. (Petition at 21.)
Respondents argue some of the facts of this claim were raised by Petitioner on direct
appeal, but Petitioner did not fairly present the claims as a federal one. They argue it was
raised in the PCR petition, but was procedurally defaulted as waived. (Answer at 33-34.)
Petitioner asserts this claim was raised in his Petition for Review to the Arizona
Supreme Court in his third PCR proceeding, filed July 7, 2023 (Exh. QQ) at 3/24 – 3/28.
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(Reply at 39.)11
Analysis and Conclusion – Petitioner raised some of the facts of this claim in his
direct appeal. He argued that: (1) he was entitled to a hearing to determine what and
when authorities knew of the California courts’ ruling that the California DNA statute was
unconstitutional (id. at 34-36); and (2) that he was entitled to an evidentiary hearing on the
his Fourth Amendment seizure issue (id. at 36-38). But he did not argue that the denial of
the evidentiary hearing was itself a constitutional violation, as opposed, for example, to a
violation of state rules or precedent. Petitioner did not make the federal nature of that
argument explicit by asserting it as a federal violation. Nor did he cite to federal case law
or relevant state case law which did so. See Insyxiengmay, 403 F.3d at 668, Peterson, 319
F.3d at 1158. At best he made passing reference to Crawford v. Washington, 541 U.S. 36
(2004) for the proposition that he had a confrontation right. (Exh. W, OBrf. at 37, n.111.)
But the right of confrontation arises under the Sixth Amendment not the Fourth
Amendment on which Petitioner now relies in Ground 6. Accordingly, Petitioner did not
fairly present on direct the appeal the claim he now makes in Ground 6.
As noted above concerning Ground 5, in this PCR petition Petitioner raised his
claim on the state court’s handling of his challenge to the evidence in his second ground
for relief. (Exh. II, PCR Pet. at 2.) However, as with Grounds 1 and 3, this claim was
procedurally barred as waived, an independent and adequate state ground.
Accordingly, the undesigned concludes Ground 6 was procedurally barred on an
independent and adequate state ground.
f. Ground 7 – Suppression Hearing 4th, 5th , 6th and 14th Amend.
Briefs – In Ground 7 Petitioner asserts the trial court’s failure to hold a suppression
hearing, while allowing his motion to suppress to languish for two years, while the state
11 Petitioner also asserts a manifest injustice will result if this claim is not addressed.
(Reply at 39-40.) This assertion is addressed hereinafter when discussing actual innocence
as a means to avoid procedural defaults or bars.
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withheld relevant evidence, gave preference to the state’s position, was contrary to the
evidence, and violated his 4th, 5th, 6th and 14th Amendment rights. The Petition asserts
presentation on direct appeal and in the first and second PCR proceedings. (Petition at
22.)
Respondents argue that, as with Ground 6, the facts of the claim were raised on
direct appeal, but it was not presented as a federal claim. Respondents further argue
Petitioner attempted to raise it in his third PCR proceeding, but it was procedurally barred
as waived. (Answer at 34.)
Petitioner replies on the merits of the claim. (Reply at 41-42.)
Analysis – Petitioner’s related claim on direct appeal (asserted in Issue III therein),
was, as discussed hereinabove with regard to Ground 6, limited to challenging two issues
on constitutional grounds: (1) the lack of a “full and fair hearing” on his Fourth
Amendment claim; and (2) the Sixth Amendment confrontation issue.
The latter, however, was not directed to the failure to hold an evidentiary hearing,
but on the trial court “requiring Francois to bring the witnesses to Arizona or by requiring
him to rely on affidavits that he could not cross-examine.” (Exh. W at 37-38.) In making
that argument, no reference was made to the delay, or withholding of evidence, or that the
court’s decision was contrary to the evidence.12 These additional facts fundamentally alter
the claim made. Moreover, the combination of the multiple legal bases for challenging
the lack of a suppression hearing results in a fundamental alteration of the claim made.
Expanded claims not presented in the highest state court are not considered in a federal
habeas petition. Brown v. Easter, 68 F.3d 1209 (9th Cir. 1995). Although a federal habeas
petitioner may reformulate somewhat the claims made in state court, Tamapua v. Shimoda,
796 F.2d 261, 262 (9th Cir. 1986), rev’d in part on other grounds by Duncan v. Henry,
513 U.S. 364 1995), a petitioner may not "fundamentally alter the legal claim already
12 At best, Petitioner argue that he had made a “prima facie case” that his arrest was
unlawful. (Exh. W, OBrf. at 37.)
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considered by the state courts." Vasquez v. Hillery, 474 U.S. 254, 260 (1986). The factual
substance of the federal claim must have been “fairly presented” in state court. Anderson
v. Harless, 459 U.S. 4, 6 (1982)(per curiam). The claim now made by Petitioner was not
fairly presented by Petitioner on direct appeal.13
Petitioner attempted to bring a similar claim in issue 5 of his PCR petition,
although this argument was limited to the right to present a defense, and the confrontation
and compulsory process provisions of the Sixth Amendment. (See Exh II, PCR Pet. at 37-
39.) To the extent this amounted to fair presentation of the instant claim, (as with Grounds
1, 3, 5 and 6) it was procedurally barred in that proceeding on Arizona’s waiver bar.
Conclusion – Petitioner’s claim in Ground 7 was either procedurally defaulted or
procedurally barred on an independent and adequate state ground, i.e. Arizona’s waiver
bar.
g. Ground 8 – Full Faith and Credit
In Ground 8 Petitioner argues that he was denied the protections of the Full Faith
and Credit Clause when he was denied an evidentiary hearing on his motion to suppress
because the California case was dismissed. The Petition asserts presentation on direct
appeal and in the first and second PCR proceedings. (Petition at 23.)
Respondents argue this claim is procedurally defaulted because: (1) on direct appeal
Petitioner did not assert his challenges to the absence of an evidentiary on the basis of the
Full Faith and Credit clause; and (2) the claim was raised in his third PCR proceeding but
it was procedurally barred as waived. (Answer at 34-35.)
Petitioner does not reply on this claim. (See Reply at 42-43.)
Contrary to the assertions in the Petition, Petitioner did not assert a Full Faith and
Credit Clause claim on direct appeal. (See generally Exh. W, OBrf.)
13 Even if the confrontation clause issue were fairly presented, it would relate solely to the
application of the exclusionary rule, and thus would remain subject to the Stone bar, as
discussed hereinabove in Section III(B).
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Petitioner did raise the claim in his fourth ground in his third PCR proceeding.
(See Exh. II, PCR Pet. at 2, 35-36.) However, (as with his claims in Grounds 1, 3, 6 and
7) this claim was procedurally barred based on Arizona’s waiver bar, an independent and
adequate state ground.
h. Ground 9 – Procedural Due Process
In Ground 9 Petitioner argues the taking of his DNA violated his procedural Due
Process rights and California law because his arrest was without probable cause, and the
California charges were dismissed but his DNA was not destroyed as required by
California law, but was instead provided to Arizona officials to pursue the Arizona
prosecution.14 The Petition asserts presentation of this claim on direct appeal and in the
first and second PCR proceedings. (Petition at 24.)
Respondents argue the claim was not presented on direct appeal, and was
procedurally barred when raised in the third PCR proceeding. (Answer at 35.)
Petitioner replies by summarily reasserting his claims of exhaustion from the
Petition. Reply at 43.)
Petitioner presented no claim founded on procedural due process in his direct
appeal. (See generally Exh. W, OBrf.)
He did suggest he was raising a “procedural due process” claim in Ground 6 of his
PCR Petition. But apart from referencing “procedural due process” in his summary,
Petitioner made no argument for procedural due process, and made no reference to the
Fourteenth Amendment of the U.S. Constitution or other federal authority establishing a
“procedural due process” right. (Exh. II, PCR Pet. at 3, 39-45.) At best, he argued the
process used was a violation of the Fourth Amendment and Maryland v. King, 569 U.S.
435 (2013). (Id. at 41.) King was not based upon, and did not engage in any discussion
of, due process – procedural or substantive. Instead, it was based solely on rights under
14 As discussed hereinabove in Section III(C), the portions of this claim relying on state
law must be dismissed as not cognizable in this federal habeas proceeding.
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the Fourth Amendment, having granted certiorari to decide “whether the Fourth
Amendment prohibits the collection and analysis of a DNA sample from persons arrested,
but not yet convicted, on felony charges.” 569 U.S. at 442. The holding of King was not
based on the Fourteenth Amendment or procedural due process:
When officers make an arrest supported by probable cause to hold for
a serious offense and they bring the suspect to the station to be
detained in custody, taking and analyzing a cheek swab of the
arrestee's DNA is, like fingerprinting and photographing, a legitimate
police booking procedure that is reasonable under the Fourth
Amendment.
Id. at 465–66.
"[I]t is not enough to make a general appeal to a constitutional guarantee as broad
as due process to present the ‘substance’ of such a claim to a state court." Gray v.
Netherland, 518 U.S. 152, 163 (1996). “Mere general appeals to broad constitutional
principles, such as due process, equal protection, and the right to a fair trial, do not
establish exhaustion.” Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005)
(quotations and citations omitted).
Thus Petitioner’s PCR Petition did not fairly present a federal procedural due
process claim.
Similarly, Petitioner’s Petition for Review to the Arizona Court of Appeals argued
in Issue 6 that the DNA “was collected in violation of…procedural due process.” (Exh.
MM, Az. Ct. App. PCR Pet. Rev. at 3, 20-21.) But again Petitioner made no reference to
the Fourteenth Amendment or federal authorities other than the Fourteenth Amendment
and King. (Id. at 20-21.)15
Accordingly, the undersigned finds that Petitioner never fairly presented his federal
claim in Ground 9 to the state courts. For the reasons discussed hereinabove in Section
III(D)(2), the claim is now procedurally defaulted as waived.
15 No similar claim was raised in his Petition for Review to the Arizona Supreme Court.
(See generally Exh. QQ, Az. Suprm. Ct. PCR Pet. Rev.)
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i. Ground 10 – Arizona Collection of DNA
In Ground 10 Petitioner argues his Fourth Amendment and procedural due process
rights were violated by Arizona’s seizure of his DNA from California authorities. The
Petition asserts presentation on direct appeal and in the first and second PCR proceedings.
(Petition at 25.) Petitioner does not reply on this claim. (See generally Reply at 44.)
Respondents argue this claim was not fairly presented on direct appeal. The
undersigned agrees. (See Exh. W, OBrf. at 3-4 (identifying issues presented).)
Respondents argue the claim was presented in the PCR Petition, but was
procedurally barred in the PCR proceeding as precluded. (Answer at 36.) The
undersigned agrees. This claim was raised in Ground 7 of the PCR Petition. (Exh. II at 3,
45- 49.) However, (as with Grounds 1, 3, 6, 7 and 8) this claim was procedurally barred
as waived under Ariz. R. Crim. Proced. 32.2(a)(3) on an independent and adequate state
ground.
j. Ineffective Assistance Claims
As noted by Respondents, ineffective assistance claims are not fungible, but must
each be specifically argued to result in exhaustion. See Pappageorge v. Sumner, 688 F.2d
1294, 1295 (9th Cir. 1982) (presentation of “additional facts of attorney incompetence”
transformed claim into one not presented to state court); and Carriger v. Lewis, 971 F.2d
329, 333-34 (9th Cir. 1992) (rejecting argument that presentation of any claim of
ineffectiveness results in fair presentation of all claims of ineffective assistance).
Accordingly, each of Petitioner’s claims of ineffective assistance in Grounds 2 and 11
must be addressed separately.
(1). IAC 1 – Interview and Subpoena Witnesses
In Ground IAC 1, Petitioner asserts trial counsel was ineffective for “not
interviewing witnesses,” instead asserting counsel claimed “he did not have enough time
to interview witnesses [and] lacked the time to coordinate with the forensic lab, and was
not going to subpoena any witnesses, nor did he subpoena one witness.” (Petition at 7.)
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In Ground 11 he similarly asserts counsel “did not interview any witnesses, participate in
discussions with the forensic lab” and failed to serve “any subpoenas.” (Petition at 26.)
Respondents argue this claim was not presented by Petitioner to the Arizona Court
of Appeals, and it is now procedurally defaulted. (Answer at 28-29.)
Petitioner replies that all his ineffective assistance claims were presented in his
Arizona Supreme Court PCR Petition for Review filed July 7, 2023 (Exh. QQ) at 2/25-3/2
and 4/7. (Reply at 21.)
Petitioner did not present any of his claims of ineffective assistance of counsel
raised herein on direct appeal. At best, he asserted in his Issue 1 that the trial court erred
by allowing hybrid representation. (Exh. W at 3, 11-27.) That is not a claim of ineffective
assistance. Moreover, Arizona precludes claims of ineffective assistance from being raised
on direct appeal. “[A] defendant may bring ineffective assistance of counsel claims only
in a Rule 32 post-conviction proceeding—not before trial, at trial, or on direct review.”
State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, 153 P.3d 1040, 1044 (2007).
In his PCR Petition, Petitioner argued in Ground 1 of his PCR Petition a claim
asserting a denial of counsel and constructive denial of counsel, leaving Petitioner self-
represented, citing inter alia Cuyler v. Sullivan, 446 U.S. 335 (1980) (actual conflict of
interest by retained counsel amounts to denial of counsel), and United States v. Cronic,
466 U.S. 648 (1984) (if counsel entirely fails to subject the prosecution's case to
meaningful adversarial testing, then there has been a denial of counsel). (Exh. II, PCR
Pet. at 2, 8-23.) Such claims do not assert ineffective assistance of counsel. In Bell v.
Cone, 535 U.S. 685 (2002), the United States Supreme Court noted that the difference
between a Strickland claim of ineffective assistance and a Cronic claim of denial of
counsel is a matter “not of degree but of kind.” Id. at 697. See Butler v. Shinn, CV-21-
1860-PHX-DWL-JFM, 2022 WL 1217491, at *8 (D. Ariz. Mar. 29, 2022), report and
recommendation adopted, 2022 WL 1212823 (D. Ariz. Apr. 25, 2022) (Strickland claim
not fairly presented even though Strickland cited where state petition “explicitly
disavow[ed] any claim based on Strickland”); Cummings v. Ryan, CV-09-489-TUC-RCC-
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JM, 2011 WL 2940787, at *3 (D. Ariz. May 18, 2011), report and recommendation
adopted, 2011 WL 2939425 (D. Ariz. July 21, 2011) (because Petitioner relied only on
Strickland, the “state courts in the instant case had no reason…to analyze his claims under
the presumed prejudice standards of Cronic”).16
Petitioner did assert a claim of ineffective assistance of counsel under Strickland in
Ground 8 of his PCR petition. (Exh. II, PCR Pet. at 3, 52-61.) At least some of the
instances of ineffective assistance raised herein were touched on, including failure to
interview and subpoena witnesses, failure to appear for interviews and hearings, etc. (Id.
at 55-58.)
However, in his Petition for Review to the Arizona Court of Appeals, Petitioner
raised only: (1) failure to object to hybrid representation; (2) failure to investigate for trial;
(3) failure to subpoena California Officer Zeeman for the suppression hearing, preventing
Petitioner from having a record to appeal. (Exh. MM, Az Ct. App. Pet. Rev. at 24-25.)
Thus, of the claims raised in Ground IAC 1, the only one argued to the Arizona
Court of Appeals was the portion relating to a failure to subpoena Officer Zeeman. This
claim had been raised in his PCR Petition. (Exh. II, PCR Pet. at 4, 55.)
The fact that additional instances of ineffective assistance were presented to the
PCR court takes Petitioner no further. "[O]rdinarily a state prisoner does not 'fairly present'
a claim to a state court if that court must read beyond a petition or a brief (or a similar
document) that does not alert it to the presence of a federal claim in order to find material,
such as a lower court opinion in the case, that does so." Baldwin v. Reese, 541 U.S. 27,
32 (2004). “[T]he Arizona Court of Appeals was not required to review the parties' trial
court pleadings to see if it could discover for itself a federal, constitutional issue. To
exhaust his claim, Castillo must have presented his federal, constitutional issue before the
16 Petitioner argues in his Reply that counsel’s actions amounted to a Cronic violation.
(Reply at 15.) However, the Petition and the Court’s screening Order (Doc. 7) identified
only claims of ineffective assistance. “The district court need not consider arguments
raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir.
2007).
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Arizona Court of Appeals within the four corners of his appellate briefing.” Castillo v.
McFadden, 399 F.3d 993, 1000 (9th Cir. 2005)
Petitioner’s reference to two portions of his Petition for Review to the Arizona
Supreme Court takes him no further. The first referenced portion relates solely to
Petitioner’s claim that the PCR court erred by construing some (unidentified) claims into
claims of ineffective assistance. (Exh. QQ, Az. Sup. Ct. Pet. Rev. at 2-3.) The second
appears to have no relationship to claims of ineffective assistance. (Id. at 4.) Petitioner
did identify a general claim of ineffective assistance in that Petition for Review. (Id. at 4,
Item 9.) However, he argued no specific instances of ineffectiveness, focusing instead on
the conversion of substantive claims to ineffectiveness claims (id. at 13-14), and the hybrid
representation issue. (Id.at 14-15.)
Moreover, even if Petitioner had argued his claims in Ground IAC 1 to the Arizona
Supreme Court, his failure to fairly present it to the Arizona Court of Appeals would
prevent a finding of proper exhaustion. In Casey v. Moore, 386 F.3d 896 (9th Cir. 2004),
the court reiterated that to fairly present and properly exhaust a claim, "a petitioner must
properly raise it on every level of direct review." Id. at 916.
Academic treatment accords: The leading treatise on federal habeas
corpus states, “Generally, a petitioner satisfies the exhaustion
requirement if he properly pursues a claim (1) throughout the entire
direct appellate process of the state, or (2) throughout one entire
judicial postconviction process available in the state.”
Id. (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b
(4th ed. 1998) (emphasis added)).
Accordingly, except for the portion related to the failure to subpoena Officer
Zeeman, Ground IAC 1 was not fairly presented to the Arizona Court of Appeals and thus
not properly exhausted.
(2). IAC 2 – Missed Appearances
In Ground IAC 2 Petitioner argues trial counsel was ineffective for missing various
appearances. This was not one of the three claims of ineffectiveness raised argued in
Petitioner’s PCR Petition for Review to the Arizona Court of Appeals (hybrid
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representation, investigation/preparation, subpoenaing Zeeman), and was not presented in
the Petition for Review to the Arizona Supreme Court. Accordingly, Ground IAC 2 was
not fairly presented and thus not properly exhausted.
(3). IAC 3 – Missing Interviews
In Ground IAC 3 Petitioner argues trial counsel was ineffective for missing witness
interviews.
This was not one of the three claims of ineffectiveness argued in Petitioner’s PCR
Petition for Review to the Arizona Court of Appeals, and was not presented in the Petition
for Review to the Arizona Supreme Court. It is true that a missing an interview might
arguably be categorized as a portion of the conclusory argument of failure to investigate
presented to the Arizona Court of Appeals. But Petitioner did not argue the facts of
missing interviews to that court. That would not alert the appellate court to a failure to
appear for scheduled interviews. This claim was not fairly presented and thus not properly
exhausted.
(4). IAC 4 – Notice of Alibi Defense
In Ground IAC 4, Petitioner argues trial counsel was ineffective for failing to give
a notice of an alibi defense. This was not one of the three claims of ineffectiveness raised
in Petitioner’s PCR Petition for Review to the Arizona Court of Appeals, and was not
presented in the Petition for Review to the Arizona Supreme Court. This claim was not
fairly presented and thus not properly exhausted.
(5). IAC 5 – Pretrial Investigation
In Ground IAC 5, Petitioner asserts trial counsel was ineffective for failing to
conduct a pretrial investigation. In particular, Petitioner arguably asserts trial counsel
failed to: “interview witnesses,” “coordinate with the forensic lab,” “participate in
discussions with forensic lab,” “interview the case agents.” (Petition at 7, 14-15, 26.)
Again these assertions could be categorized as a portion of the conclusory argument of
failure to investigate presented to the Arizona Court of Appeals. But Petitioner did not
argue these facts to that court. That would not alert the appellate court to a failure to
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appear for scheduled interviews. This claim was not fairly presented and thus not properly
exhausted.
(6). IAC 6 – Failure to Communicate
In Ground IAC 6, Petitioner argues trial counsel was ineffective for failing to
communicate with Petitioner. This was not one of the three claims of ineffectiveness
raised argued in Petitioner’s PCR Petition for Review to the Arizona Court of Appeals
(hybrid representation, investigation/preparation, subpoenaing Zeeman), and was not
presented in the Petition for Review to the Arizona Supreme Court. This claim was not
fairly presented and thus not properly exhausted.
/ /
(7). IAC 7 – Mitigation
In Ground IAC 7, Petitioner argues trial counsel was ineffective for failing to
present mitigation at sentencing. This was not one of the three claims of ineffectiveness
raised argued in Petitioner’s PCR Petition for Review to the Arizona Court of Appeals
(hybrid representation, investigation/preparation, subpoenaing Zeeman), and was not
presented in the Petition for Review to the Arizona Supreme Court. This claim was not
fairly presented and thus not properly exhausted.
(8). Procedural Default of Ineffectiveness Claims
None of Petitioner’s claims of ineffectiveness not properly exhausted have at their
core the types of claims which require a personal waiver, i.e. (1) waiver of the right to
counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelve-person
jury under the Arizona Constitution, as among those rights which require a personal
waiver. See Smith, 202 Ariz. at 450, 46 P.3d at 1071. Accordingly, they were waived
under Rule 32.3(a)(3) by failure to raise them. For the reasons discussed hereinabove in
Section III(D)(2), these claims are now procedurally defaulted.
k. Summary Re Exhaustion
Based upon the foregoing, the undersigned concludes:
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- Petitioner properly exhausted his remedies as to the portion of Ground IAC 1
related to the failure to interview and subpoena Officer Zeeman;
- Petitioner has procedurally defaulted on his state remedies on: (1) his claims in
Ground 4 (manufactured crime) and 9 (procedural due process); his claims of
ineffective assistance in Grounds IAC 1 other than the failure to interview and
subpoena Officer Zeeman, IAC 2 (missed appearances), IAC 3 (missed
interviews), IAC 4 (alibi defense), IAC 5 (pretrial investigation and
preparation), IAC 6 (failure to communicate), and IAC 7 (mitigation).
- Petitioner was procedurally barred on independent and adequate state grounds
from asserting: the claims in Grounds 1 (confrontation), 3 (double punishment),
6 (hearing on suppression), 8 (Full Faith and Credit), and 10 (Arizona collection
of DNA).
- Petitioner has either procedurally defaulted his state remedies on, or been
procedurally barred on independent and adequate state grounds, on his claims
in Grounds 5 (unreasonable search and seizure), and 7 (suppression hearing 4th,
5th and 6th amendments),
5. Cause and Prejudice
If the habeas petitioner has procedurally defaulted on a claim, or it has been
procedurally barred on independent and adequate state grounds, he may not obtain federal
habeas review of that claim absent a showing of “cause and prejudice” sufficient to excuse
the default. Reed v. Ross, 468 U.S. 1, 11 (1984).
"Cause" is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119,
1123 (1991). "Because of the wide variety of contexts in which a procedural default can
occur, the Supreme Court 'has not given the term "cause" precise content.'" Harmon v.
Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (quoting Reed, 468 U.S. at 13). The
Supreme Court has suggested, however, that cause should ordinarily turn on some
objective factor external to petitioner, for instance:
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... a showing that the factual or legal basis for a claim was not
reasonably available to counsel, or that "some interference by
officials", made compliance impracticable, would constitute cause
under this standard.
Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted).
In arguing Ground 1, Petitioner argues that his failure to fairly present his claims in
that ground resulted from ineffective assistance of counsel Segal in failing to raise the
claim on appeal or in the PCR proceeding. (Reply at 39.) At the outset, the undersigned
observes that attorney Segal represented Petitioner only on direct appeal. (See Exh. W,
OBrf. at 1.) In his first and second PCR proceedings, Petitioner was represented by
attorney Dew. (See Exh. EE, Motion; Exh. FF Order 5/14/18.) In his third PCR
proceeding, Petitioner was represented by attorney Mehu. (See Exh. II, PCR Pet. at 1;
Exh. MM, Az. Ct. App. PCR Pet. Rev. at 1; Exh. QQ, Az. Sup. Ct. PCR Pet Rev. at 1.)
Thus any ineffectiveness of Segal would have occurred solely on direct appeal.
Ineffective assistance of appellate counsel can establish cause for failure to properly
exhaust state remedies. See Ortiz v. Stewart, 149 F.3d 923, 932, (9th Cir. 1998). However,
“[t]o constitute cause for procedural default of a federal habeas claim, the constitutional
claim of ineffective assistance of counsel must first have been presented to the state courts
as an independent claim.” Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003). “[A]n
ineffective-assistance-of-counsel claim asserted as cause for the procedural default of
another claim can itself be procedurally defaulted.” Edwards v. Carpenter, 529 U.S. 446,
453 (2000). Here, Petitioner has never presented to the state courts a claim of ineffective
assistance of appellate counsel. Such a claim must have been raised in his first post-appeal
PCR proceeding, in this case his third PCR proceeding. He asserted ineffective assistance
of only trial counsel in that proceeding. (See Exh. II, PCR Pet. at 52 (“The trial attorneys
were actually ineffective”).) Accordingly, any such claims of ineffectiveness of appellate
counsel cannot establish cause to excuse his failure to raise the claims asserted in his
habeas petition.
Otherwise, Petitioner asserts no basis for his procedural defaults and procedural
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bars. At best, he argues regarding Ground 4 (manufactured crime) that the claim has merit
and the related prosecution in California was dismissed. (Petition at 9.) That does not
explain Petitioner’s failure to press those matters on direct appeal and/or in his PCR
proceeding.
The undersigned finds no cause to excuse Petitioner’s procedural failings.
Both "cause" and "prejudice" must be shown to excuse a procedural default,
although a court need not examine the existence of prejudice if the petitioner fails to
establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 F.2d
1119, 1123 n. 10 (9th Cir.1991). Petitioner has filed to establish cause for his procedural
default. Accordingly, this Court need not examine the merits of Petitioner's claims or the
purported "prejudice" to find an absence of cause and prejudice.
6. Actual Innocence
The standard for “cause and prejudice” is one of discretion intended to be flexible
and yielding to exceptional circumstances, to avoid a “miscarriage of justice.” Hughes v.
Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Accordingly, failure
to establish cause may be excused “in an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who is actually innocent.” Murray
v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added).
Petitioner asserts a failure to consider his claims would be a miscarriage of justice.
Although not explicitly limited to actual innocence claims, the Supreme Court has not yet
recognized a "miscarriage of justice" exception to exhaustion outside of actual
innocence. See Hertz & Lieberman, Federal Habeas Corpus Pract. & Proc. §26.4 at
1229, n. 6 (4th ed. 2002 Cumm. Supp.). The Ninth Circuit has expressly limited it to
claims of actual innocence. Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008).
A petitioner asserting his actual innocence of the underlying crime must show "it is
more likely than not that no reasonable juror would have convicted him in the light of the
new evidence" presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327
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(1995). A showing that a reasonable doubt exists in the light of the new evidence is not
sufficient. Rather, the petitioner must show that no reasonable juror would have found the
defendant guilty. Id. at 329. This standard is referred to as the “Schlup
gateway.” Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002). Moreover, to pass
through the Schlup gateway, not just any evidence of innocence will do; the petitioner
must present “new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not presented at
trial.” Schlup, 513 U.S. at 324.
Petitioner’s attacks on the purportedly improperly admitted evidence does not
suffice. In making a finding on actual innocence, the federal habeas court must consider
all the evidence, old and new, incriminating and exculpatory, without regard to whether it
would necessarily be admitted under rules of admissibility that would govern at trial.
House v. Bell, 547 U.S. 518, 538 (2006). Thus any evidence suppressible under the
exclusionary rule would still be considered in evaluating actual innocence.
Here, Petitioner offers nothing to show that, considering all the evidence, no
reasonable juror would have found him guilty. Accordingly his procedurally defaulted
and procedurally barred claims must be dismissed with prejudice.
E. MERITS RE SUBPOENA OF ZEEMAN
Respondents’ Answer addresses on the merits (in the alternative to their arguments
of procedural default) Petitioner’s claims in Grounds IAC 5 (failure to investigate), IAC
2 (missed appearances), and IAC 3 (missed interviews). The undersigned has concluded
that all but one of those claims are plainly procedurally defaulted. Accordingly, they are
not addressed on the merits.
The undersigned has, however, found proper exhaustion on Petitioner’s claim in
Ground 1 based on failure to subpoena Officer Zeeman.
/ /
/ /
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1. Standard of Review
While the purpose of a federal habeas proceeding is to search for violations of
federal law, in the context of a prisoner “in custody pursuant to the judgment a State court,”
28 U.S.C. § 2254(d) and (e), not every error justifies relief.
Deferential Review of Merits Decisions – Where the state court has rejected a
claim on the merits, “a federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the state-court decision applied [the law]
incorrectly.” Woodford v. Visciotti, 537 U. S. 19, 24– 25 (2002) (per curiam). Rather, in
such cases, 28 U.S.C. § 2254(d) provides restrictions on the habeas court’s ability to grant
habeas relief based on legal or factual error. This statute “reflects the view that habeas
corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’ not
a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S.
86, 102–03 (2011).
Errors of Law – To justify habeas relief based on legal error, a state court’s merits-
based decision must be “contrary to, or an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” before relief may
be granted. 28 U.S.C. §2254(d)(1).
The Supreme Court has instructed that a state court decision is “contrary to” clearly
established federal law “if the state court applies a rule that contradicts the governing law
set forth in [Supreme Court] cases or if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [its] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73
(2003) (internal quotation marks omitted).
To show an unreasonable application, “a state prisoner must show that the state
court's ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
Errors of Fact – Similarly, the habeas courts may grant habeas relief based on
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factual error only if a state-court merits decision “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)(2). "Or, to put it conversely, a federal court may not second-guess a
state court's fact-finding process unless, after review of the state-court record, it determines
that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox,
366 F.3d 992, 999 (9th Cir. 2004). “Moreover, implicit findings of fact are entitled to
deference under § 2254(d) to the same extent as explicit findings of fact.” Blankenship v.
Hall, 542 F.3d 1253, 1272 (11th Cir. 2008). See also Watkins v. Rubenstein, 802 F.3d 637,
649 (4th Cir. 2015).
Moreover, there is a well-established presumption of correctness of state court
findings of fact. This presumption has been codified at 28 U.S.C. § 2254(e)(1), which
states that "a determination of a factual issue made by a State court shall be presumed to
be correct" and the petitioner has the burden of proof to rebut the presumption by "clear
and convincing evidence." This presumption of correctness applies not only to the explicit
factual findings by the state court, but to the implicit factual findings as well. See Tinsley
v. Borg, 895 F.2d 520, 525 (9th Cir.1990) (implicit factual findings are entitled to a
presumption of correctness in appropriate circumstances); see also Taylor v. Horn, 504
F.3d 416, 433 (3d Cir.2007) (“Implicit factual findings are presumed correct under §
2254(e)(1) to the same extent as express factual findings.”).
2. Standard for Ineffective Assistance
Generally, claims of ineffective assistance of counsel are analyzed pursuant to
Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim,
Petitioner must show: (1) deficient performance - counsel’s representation fell below the
objective standard for reasonableness; and (2) prejudice - there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 687-88. Although the petitioner must prove both elements, a court may
reject his claim upon finding either that counsel's performance was reasonable or that the
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claimed error was not prejudicial. Id. at 697.
3. State Court Decision
In evaluating state court decisions, the federal habeas court looks through summary
opinions to the last reasoned decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.
2004). Here, the last reasoned decision on this claim was that of the PCR Court.
The PCR court dismissed this claim as “not colorable” because:
Defendant fails to demonstrate that he was prejudiced by the failure
to subpoena the arresting officer.
Since Defendant failed to demonstrate a reasonable
probability that the result of the proceeding would have been different
had Officer Zeeman testified, his claim is dismissed.
(Exh. LL, Order 9/1/22 at 5.)
4. Analysis
Petitioner fails to explain how the state court’s finding of a lack of prejudice was
legally or factually erroneous, let alone sufficiently so as to meet the demands of 28 U.S.C.
§ 2254(d).
At best, Petitioner offers speculation that Zeeman would have supported
Petitioner’s assertions that Zeeman had no reasonable suspicion and therefore no reason
to arrest Petitioner. But, a petitioner may not simply speculate about what a witness’s
testimony might be, but must adduce evidence to show what it would have been. Grisby
v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997). “[E]vidence about the testimony of a
putative witness must generally be presented in the form of actual testimony by the witness
or on affidavit. A defendant cannot simply state that the testimony would have been
favorable; self-serving speculation will not sustain an ineffective assistance claim.” U.S.
v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991).
Petitioner presented to the PCR court no actual testimony or affidavit from Zeeman.
Nor has he explained why the PCR court should have reached the conclusion that Zeeman
would have offered such testimony if subpoenaed.
In rejecting challenges to the lack of an evidentiary hearing on suppression, the
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Arizona Court of Appeals discussed the existing testimony from Zeeman:
The court considered the arresting officer’s sworn testimony given at
the probable cause and suppression hearings in the California case.
Based on that testimony, the superior court concluded, as did the
California court that addressed the same arguments Francois raised
in support of his suppression motion, that the arrest in California was
supported by probable cause.
(Exh. Y, Mem. Dec. 5/3/18 at ¶ 21.) The appellate court concluded that, at most, “a hearing
would have allowed the court to assess the credibility of the officer involved.”
It is no different in this proceeding. Petitioner now hopes to conduct discovery to
supplement the record in this Court on this issue. (See Motion for Evidentiary Hearing,
Doc. 17 (seeking plenary hearing), Motion to Expand Record, Doc. 20 (seeking various
California records), Motion for Discovery, Doc. 21 (seeking various records). But none
of these requests suggest that testimony from Zeeman was available at trial that would
have altered the outcome at trial. At best, Petitioner still hopes to garner evidence
attacking the credibility of Zeeman in his previous testimony.
Moreover, for the reasons discussed hereinafter, such evidence cannot now be
considered in this habeas case.
Accordingly, this portion of Ground IAC 1 is without merit.
F. CONCLUSIONS
Based on the foregoing, the undersigned concludes:
- Ground 1 (confrontation) must be dismissed as procedurally barred;
- Ground 3 (double punishment) must be dismissed as procedurally barred;
- Grounds 4 (manufactured crime) must be dismissed: (a) for lack of custody to
the extent it challenges the California proceedings, (b) as barred under Stone to
the extent it challenges the Arizona proceedings, and (c) in its entirety as
procedurally defaulted;
- Grounds 5 (unreasonable search and seizure) must be dismissed: (a) for lack of
custody to the extent it challenges the California proceedings, (b) as barred
under Stone to the extent it challenges the Arizona proceedings, and (c) in its
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entirety as either procedurally defaulted or procedurally barred;
- Ground 6 (hearing on suppression) must be dismissed: (a) as barred under Stone
to the extent it asserts an exclusionary rule claim; (b) as not cognizable to the
extent that it asserts a claim based on state law; and (c) in its entirety as
procedurally barred;
- Ground 7 (suppression hearing 4th, 5th and 6th amendments) must be dismissed:
(a) as barred under Stone to the extent it asserts an exclusionary rule claim; (b)
as not cognizable to the extent that it asserts a claim based on state law; and (c)
in its entirety as either procedurally defaulted or procedurally barred;
- Ground 8 (full faith and credit) must be dismissed: (a) as barred under Stone to
the extent it asserts an exclusionary rule claim; (b) as not cognizable to the
extent that it asserts a claim based on state law; and (c) in its entirety as
procedurally barred;
- Ground 9 (procedural due process) must be dismissed: (a) as barred under Stone
to the extent it asserts an exclusionary rule claim; (b) as not cognizable to the
extent that it asserts a claim based on state law; and (c) in its entirety as
procedurally defaulted;
- Ground 10 (Arizona collection of DNA) must be dismissed: (a) as barred under
Stone to the extent it asserts an exclusionary rule claim; and (b) in its entirety as
procedurally barred;
- As to Grounds 2 and 11, Ground IAC 1 (interviews/subpoenas), except as to the
Zeeman subpoena, must be dismissed as procedurally defaulted, and as to the
Zeeman subpoena denied as without merit;
- As to Grounds 2 and 11, Grounds IAC 2 (missed appearances), IAC 3 (missed
interviews), IAC 4 (alibi defense), IAC 5 (pretrial investigation and
preparation), IAC 6 (failure to communicate), and IAC 7 (mitigation) must be
dismissed as procedurally defaulted.
/ /
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IV. CERTIFICATE OF APPEALABILITY
The standard for issuing a certificate of appealability (“COA”) is whether the
applicant has “made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
“When the district court denies a habeas petition on procedural grounds without reaching
the prisoner’s underlying constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Id. “If the court
issues a certificate, the court must state the specific issue or issues that satisfy the showing
required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2253(c)(3). See also Rules Governing §
2254 Cases, Rule 11(a).
Assuming the recommendations herein are followed in the district court’s
judgment, that decision will be in part on procedural grounds, and in part on the merits.
Under the reasoning set forth herein, jurists of reason would not find it debatable whether
the district court was correct in its procedural ruling, and jurists of reason would not find
the district court’s assessment of the constitutional claims debatable or wrong.
Accordingly, to the extent that the Court adopts this Report & Recommendation as
to the Petition, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) The portions of Grounds 2 and 11 of the Petition for Writ of Habeas Corpus (Doc. 1)
based on ineffective assistance of counsel in failing to interview or subpoena Officer
Zeeman (i.e. Ground IAC 1) be DENIED.
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(B) The remainder of the Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED
WITH PREJUDICE.
(C) To the extent the foregoing findings and recommendations are adopted in the District
Court’s order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This 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 judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. See also Rule 8(b), Rules
Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days
within which to file a response to the objections. Failure to timely file objections to any
findings or recommendations of the Magistrate Judge will be considered a waiver of a
party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to
appellate review of the findings of fact in an order or judgment entered pursuant to the
recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th
Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that
“[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation
issued by a Magistrate Judge shall not exceed ten (10) pages.”
VII. ORDERS
A. MOTION FOR EVIDENTIARY HEARING
Petitioner has filed a Motion for Evidentiary Hearing (Doc. 17) to support his
exclusionary rule challenges to his California arrest in order to gain the exclusion of the
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California DNA evidence and the fruits thereof.
Respondents have responded (Doc. 19) arguing the limitations of 28 U.S.C. §
2254(d) and (e)(2), the absence of dispute on relevant facts, and the bar under Stone which
precludes consideration of the merits of the related exclusionary rule claims.
Petitioner has replied (Doc. 24) arguing the facts to be presented at an evidentiary
hearing were concealed by state officials, and that they will establish he was arrested by a
different officer, precluding the probable cause purportedly relied on by Zeeman to arrest
him and collect DNA.
For the reasons discussed hereinabove, because Petitioner’s related exclusionary
rules claims are barred under Stone, and they are either procedurally defaulted or
procedurally barred. Allowing an evidentiary hearing to support claims which cannot lead
to habeas relief would “needlessly prolong” this habeas case, because the “newly
developed evidence never would entitle the prisoner to federal habeas relief.” Shinn v.
Ramirez, 596 U.S. 366, 390 (2022). See also Shoop v. Twyford, 596 U.S. 811, 820 (2022)
(evidentiary hearing impermissible where evidence would be barred under 28 U.S.C. §
2254(e)(2)).
To the extent that Petitioner would seek an evidentiary hearing to support his
exhausted claim of ineffective assistance in Ground IAC 1, these procedural defenses
would not preclude the consideration of such evidence. See Kimmelman v. Morrison, 477
U.S. 365, 382–83 (1986) (declining to extend Stone to claim of ineffective assistance
found on Fourth Amendment issues).
However, this habeas Court’s ability to consider new evidence is constrained by
both 28 U.S.C. § 2254(d)(2) and (e)(2).
Value of Hearing Not Shown – Because the PCR court rejected the Zeeman claim
on the merits, this claim subject to the limitations of 28 U.S.C. § 2254(d).
To the extent that Petitioner would assert an entitlement to relief under 28 U.S.C. §
2254(d)(1), based a decision contrary to or an unreasonable application of Supreme Court
law, Petitioner cannot obtain an evidentiary hearing. A “review under § 2254(d)(1) is
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limited to the record that was before the state court that adjudicated the claim on the
merits.” Cullen v. v. Pinholster, 563 U.S. 170, 181 (2011).
On the other hand, § 2254(d)(2), requires Petitioner to show that the state court’s
decision “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Petitioner proffers nothing to make such a
showing.
The factual determination made by the state court in rejecting the Zeeman claim
was that Petitioner had failed to show prejudice.
Defendant fails to demonstrate that he was prejudiced by the failure
to subpoena the arresting officer.
Since Defendant failed to demonstrate a reasonable
probability that the result of the proceeding would have been different
had Officer Zeeman testified, his claim is dismissed.
(Exh. LL, PCR Ord. 9/1/22 at 5.) That was not an unreasonable determination because
Zeeman’s prior testimony showed he was the arresting officer, and there was probable
cause for the arrest.
The day after his arrest a preliminary examination was held where
Officer Troy Zeeman testified and the California court found
probable case for multiple offenses.
(Id.) Petitioner’s only “evidence” suggesting Zeeman’s testimony should have been
different, i.e. discrepancies in various California police, fire and dispatch records, etc. had
been rejected by the trial court. But the prejudice question did not turn on what Zeeman’s
testimony should have been, but on what it would be if subpoenaed. There was no proffer
of evidence on that issue.
And, Petitioner has not shown he offered or even proffered evidence (as opposed
to opinion) that Zeeman’s testimony if subpoenaed would have been different or
beneficial. This failure, coupled with the record evidence of Zeeman’s prior testimony,
shows an evidentiary hearing is not required. “If the record contains a sufficient factual
basis that refutes the applicant's factual allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary hearing.” Cook v. Kernan, 948 F.3d
952, 970–71 (9th Cir. 2020).
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Moreover, the lack of a hearing on that issue did not render the state court’s fact-
finding unreasonable. “A petitioner challenging the adequacy of the fact-finding process
must show no appellate court could reasonably hold that the state court's fact-finding
process was adequate.” Prescott v. Santoro, 53 F.4th 470, 479 (9th Cir. 2022) (quotations
and citations omitted). Here, PCR counsel had some 21 months between appointment and
the filing of the PCR Petition17 to investigate and garner evidence to support a claim that
Zeeman’s testimony at trial would have been prejudicial. This was on top of Petitioner’s
opportunities to investigate during trial and his appeal.
Additionally, an Arizona PCR petitioner is only entitled to an evidentiary hearing
if he makes a “colorable claim.” “A colorable claim is one that, if the allegations are true,
might have changed the outcome.” State v. Evans, 252 Ariz. 590, 598, 506 P.3d 819, 827
(Ct. App. 2022) (quotations and citations omitted). Despite this requirement, Petitioner’s
PCR petition did not even make allegations about what the substance of Zeeman’s
testimony would have been had he been subpoenaed. Instead, to show prejudice, counsel
simply speculated that “there is a reasonable probability that the trial judge would have
found Zeeman did not have reasonable suspicion criminal activity was afoot, thus, the
initial detention of Francois was illegal and in violation of the Federal and state
constitutions.” (Exh. II, PCR Pet. at 59.) Counsel offered no factual allegations to support
that conjecture.
The claim must have a basis in reality and cannot be based on pure
conjecture. Cf. State v. Meeker, 143 Ariz. 256, 264, 693 P.2d 911,
919 (1984) (proof of counsel's ineffectiveness “must be a
demonstrable reality rather than a matter of speculation”). “To
mandate an evidentiary hearing, [a] defendant's challenge must
consist of more than conclusory assertions and be supported by more
than regret.” State v. Donald, 198 Ariz. 406, ¶ 21, 10 P.3d 1193, 1201
(App.2000).
State v. Chairez, 235 Ariz. 99, 101–02, 327 P.3d 886, 889–90 (Ct. App. 2013). A defective
fact finding process under § 2254(d)(2) is not shown by the absence of an evidentiary
17 PCR counsel was appointed on March 25, 2019. (Exh. HH, ME 3/26/19.) The PCR
Petition (Exh. II) was filed December 4, 2020.
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hearing when the Petitioner fails to show that an evidentiary hearing was required. Cook
v. Kernan, 948 F.3d 952, 972 (9th Cir. 2020).
Finally, Petitioner has still proffered no reason for this Court to believe that
anything to be offered at an evidentiary hearing would be relevant to the determination of
this case. Petitioner simply speculates that Zeeman would change his testimony. “Bare
allegation[s],” “speculation,” and “wishful suggestions” do not entitle a petitioner to an
evidentiary hearing. Morris v. California, 966 F.2d 448, 455–56 (9th Cir.1991).
Permissibility of Hearing Not Shown - Even if Petitioner had such evidence to
present at an evidentiary hearing, this Court could not consider it under the limitations of
§ 2254(e)(2). That section applies where a habeas petitioner has “failed to develop the
factual basis of a claim in State court proceedings.” Here, Petitioner has not shown any
effort to develop in the PCR court proceedings the evidence he seeks to now present. For
example, he fails to show he undertook any effort in his PCR proceeding to obtain
testimony or an affidavit from Zeeman, or other evidence which would justify his
speculation that Zeeman’s testimony, if subpoenaed by the trial court, would have altered
the case.
Because Petitioner failed to develop the record in the state court, he can introduce
new evidence now only if his claim meets a “newness” factor and an “innocence factor.”
The “newness factor” requires a showing that the related claim depends on a new rule of
constitutional law made retroactive, or “a factual predicate that could not have been
previously discovered through the exercise of due diligence.” Petitioner’s ineffective
assistance claim does not raise any new constitutional rule. And, he proffers no reason to
believe he could not have developed the factual predicate (as opposed to simply
developing the evidence of those facts) of his claim previously. So Petitioner fails to meet
the “newness factor.” Indeed, Petitioner raised the factual predicate of this claim in his
PCR proceeding. He simply failed to support it with anything other than speculation.
The motion will be denied.
/ /
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B. MOTION TO EXPAND THE RECORD
Petitioner has also filed a Motion to Expand the Record (Doc. 20) seeking to submit
“any and all documents” from a laundry list of habeas proceedings, § 1983 cases, and
California and Arizona criminal cases. Petitioner seeks these records to challenge the
California seizure of his DNA, asserting it will reveal “the government has lied and
presented fabricated evidence” concerning his California arrest.
Respondents have responded (Doc. 23) arguing that a motion to expand the record
under Rule 7(a), Rules Governing § 2254 Proceedings (2254 Rules), only applies to
records before the state court, and Petitioner fails to identify any specific records from the
state court that are relevant to his claims. They further argue that records outside that
record are precluded under 28 U.S.C. § 2254(d) and (e)(2), and the affected claims are
noncognizable and procedurally defaulted.
Petitioner has not replied.
The 1976 Advisory Committee Notes to Rule 7 recognize that “[t]he record may be
expanded to include additional material relevant to the merits of the petition.” “The
materials that may be required include letters predating the filing of the petition,
documents, exhibits, and answers under oath to written interrogatories propounded by the
judge. Affidavits may also be submitted and considered as part of the record.” 2254 Rule
7(b).
Petitioner proffers no explanation how the materials he seeks are relevant to his
only surviving claim, the portion of Ground IAC 1 regarding the Zeeman subpoena. He
continues to assert that various evidence from these records would support his version of
the facts and show Zeeman lied. But prejudice from failure to subpoena Zeeman would
only be shown by establishing Zeeman would have changed his testimony. Petitioner
offers nothing to show Zeeman would have done so.
Moreover, any such materials not before the state court would be preluded from
consideration under both 28 U.S.C. §§ 2254(d) and 2254(e)(2).
This motion will be denied.
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C. MOTION FOR DISCOVERY
Finally, Petitioner has filed a Motion for Discovery (Doc. 21) seeking additional
records to support his challenge to the California arrest and DNA collection. The records
include such things as various police reports and records, and videos, as well as various
records from the California prosecution, etc.
Respondents have responded (Doc. 22) arguing Petitioner cannot show that the
discovery would demonstrate an entitlement to relief, because he makes only broad
assertions of their relevance, and the related claims are non-cognizable and procedurally
defaulted.
Petitioner has not replied.
2254 Rule 8 permits discovery “for good cause.” There is no good cause to seek
discovery on the noncognizable, procedurally defaulted or procedurally barred claims. To
the extent that Petitioner would seek discovery to support his exhausted claim in Ground
IAC 1 regarding the Zeeman subpoena, for the reasons discussed hereinabove regarding
the Motion for Evidentiary Hearing (Doc. 17), Petitioner fails to show any discovered
evidence could be considered under 28 U.S.C. § 2254(d) and (e)(2).
This motion will be denied.
IT IS THEREFORE ORDERED:
(A) Petitioner’s Motion for Evidentiary Hearing (Doc. 17) is DENIED.
(B) Petitioner’s Motion to Expand the Record (Doc. 20) is DENIED.
(C) Petitioner’s Motion for Discovery (Doc. 21) is DENIED.
Dated: March 26, 2026
24-3231r RR 26 03 06 on HC Final.docx
James F. Metcalf
United States Magistrate Judge
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