Reed #051903 v. Thornell et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
George M. Reed, Jr.,
Petitioner,
v.
Ryan Thornell, Attorney General of the
State of Arizona,
Respondents.
CV 25-00215 PHX DLR (CDB)
REPORT AND
RECOMMENDATION
TO THE HONORABLE DOUGLAS L. RAYES:
Petitioner George M. Reed, Jr., seeks federal habeas relief from his state court
conviction and sentence, pursuant to 28 U.S.C. § 2254.
I. Background
A Maricopa County grand jury indictment returned October 26, 2016, charged
Reed with two counts of sale of narcotic drugs, as class 2 felonies. (ECF No. 11-1 at 5).
Eddie Flores (“Flores”) was also charged with those crimes in the indictment. (Id.). On
May 9, 2017, pursuant to a plea agreement, Flores pleaded guilty to one count of sale of
narcotic drugs, as a class 2 felony, with one prior conviction. (ECF No. 11-1 at 8-9).
Reed’s jury trial began on October 16, 2019. (ECF No. 11-1 at 11). The Arizona
Court of Appeals described the evidence presented at Reed’s trial as follows:
In 2016, detectives from the Arizona Department of Public Safety
and Phoenix Police Department conducted a year-long investigation of
illegal drug activity at an apartment complex. Undercover detectives
identified and began using [] Flores, who lived at the complex, as a
“middleman” to procure drugs from others in the complex.
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In July 2016, detectives met Flores outside of the apartment he
shared with Reed and asked to buy a quarter ounce of heroin. Flores
telephoned someone to obtain the drugs, and a short time later, Reed
arrived and walked into the apartment. Flores followed Reed into the
apartment. A few minutes later, Flores returned and delivered a bag of
heroin to the detectives. The detectives gave Flores an extra $10 for
arranging the deal.
In August 2016, a detective sent a text message to Flores saying he
had a friend who wanted to purchase “a ball from OG Reed.” The detective
later testified that “ball” meant 3.5 grams of heroin and that “OG Reed”
was Reed’s nickname. Later that day, detectives met Flores at the apartment
complex, and Flores told them they could meet Reed at another location to
get the heroin. Flores then made a phone call to Reed, and the detectives
heard Flores tell him “they just picked me up,” then ask Reed if he wanted
to meet at a gas station. The detectives recorded the call.
The detectives drove Flores to the gas station and waited in the
parking lot. While they were waiting for Reed, the detectives gave Flores
$175 for the heroin. Reed eventually pulled up in a van, and Flores walked
over to the van and got in the front passenger seat. Flores then returned to
the detectives’ car with a small plastic bag containing heroin.
The State charged Reed, as a principal or an accomplice, with two
counts of sale or transportation of narcotic drugs—the first count for the
July 2016 sale and the second count for the August 2016 sale. …
State v. Reed, No. CR 19-0701, 2021 WL 1200706, at *1 (Ariz. Ct. App. Mar. 30, 2021).
Reed did not testify at his trial. (ECF No. 11-1 at 17). A motion for a judgment of
acquittal or a directed verdict was denied after defense counsel argued there was
insufficient evidence to prove Reed was involved in either drug transaction rather than
merely being present near the location where the drug sales occurred. (ECF No. 11-1
at 174). Reed’s “request for a Willits jury instruction was denied when [Reed] failed to
establish evidence on detectives’ cell phones would have been potentially exculpatory
although [a] request for a ‘mere presence’ instruction was granted.” (Id.).1
On October 22, 2019, at the conclusion of a three-day trial and approximately four
hours of deliberation, the jury acquitted Reed on the charge regarding the July 2016
1 In State v. Willits, 96 Ariz. 184 (1964), the Arizona Supreme Court held that if the state
failed to preserve evidence that is potentially exonerating, the accused may be entitled to an
instruction informing the jury it may draw an adverse inference from the state’s action.
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transaction, and found him guilty on the charge involving the August 2016 transaction.
(ECF No. 11-1 at 18, 175). During deliberations the State had agreed to waive the
aggravation phase of the proceedings, and after the verdict was returned Reed admitted to
being on release in a different criminal matter at the time of the subject crime. (ECF
No. 11-1 at 18). On December 13, 2019, Reed was sentenced to a term of 12 years’
imprisonment; his sentence was enhanced by a consecutive sentence of two-years “flat
time” because he committed the crime while on supervised release. (ECF No. 11-1 at 21).
On appeal Reed asserted the evidence was insufficient to support his conviction,
arguing “the State did not establish that he intended to sell drugs to the detectives.” Reed,
2021 WL 1200706, at *1. Reed averred “he was convicted “under a natural and probable
or reasonably foreseeable consequence theory” and that his conviction “on that basis”
violated his right to due process. Id., 2021 WL 1200706, at *3. Reed argued that “a jury
instruction on the natural and probable or reasonably foreseeable consequences doctrine
allowed the jurors to apply a lesser mens rea in convicting him as an accomplice,” and
further asserted “the language describing the reasonably foreseeable consequences
doctrine in A.R.S. § 13-303(A)(3), which the jury instruction tracked,” was
unconstitutionally vague. Id. The state appellate court denied relief on March 30, 2021.
2021 WL 1200706, at *1. The Arizona Supreme Court denied a petition for review on
August 11, 2021. (ECF No. 11-1 at 152).
Reed timely filed a state action for post-conviction relief. See State v. Reed, No.
CR 23-0323, 2024 WL 4823801 (Ariz. Ct. App. Nov. 19, 2024). Reed was appointed
post-conviction counsel, who thoroughly reviewed the record and advised the state court
they could find no meritorious claim to raise on Reed’s behalf. (ECF No. 11-1 at 169-83).
On June 2, 2022, Reed filed a pro per post-conviction petition, asserting he was
denied the effective assistance of trial counsel. (ECF No. 11-2 at 2-186; ECF No. 11-3
at 2-184). Reed argued his trial counsel was ineffective for failing to question the
detectives about Flores leaving the vehicle and entering the gas station convenience store.
(ECF No. 11-2 at 11-14). Reed also alleged counsel was ineffective for failing to impeach
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the detectives with allegedly inconsistent statements. (ECF No. 11-2 at 14-18).
Additionally, Reed asserted his counsel “failed to act as a diligent and loyal advocate”
because counsel failed to obtain a Willits instruction and because counsel failed to
adequately investigate and preclude Trial Exhibit 18 (“Exhibit 18,” the detectives’
recording of their interaction with Flores). (ECF No. 11-2 at 18-21). Reed also argued his
counsel was ineffective for failing to have Exhibit 18 analyzed. (ECF No. 11-2 at 21-24).
Additionally, Reed maintained his counsel was ineffective for failing “to force the State
to prove [Reed’s] awareness of [] Flores’ intent to sell heroin.” (ECF No. 11-2 at 24-25).
Reed further alleged he was in possession of newly-discovered material facts which
would probably have changed the verdict. (ECF No. 11-2 at 26-32). Specifically, Reed
claimed he had Exhibit 18 “enhanced” and analyzed and the analysis called the
detectives’ testimony into question. (Id.). Finally, Reed asserted his counsel’s cumulative
errors denied him a fair trial. (ECF No. 11-2 at 33-34).
The state docketed a response to the petition for post-conviction relief. (ECF
No. 11-3 at 186-470).
In an order entered April 26, 2023, the state habeas trial court denied post-
conviction relief. (ECF No. 11-3 at 503-04). The court found and concluded, inter alia:
… After carefully considering the claims made regarding ineffective
assistance of counsel, especially regarding the failure to pursue particular
questions regarding inconsistencies in how the sale of drugs proceeded, and
whether counsel was diligent and loyal, whether counsel failed to
appropriate[ly] address the Willits instruction, and whether counsel failed
to investigate and argue that exhibit 18 be precluded, the Court does not
find the defense counsel was ineffective and that the outcome would have
been different if he had advocated differently. With regard to the issue of []
Flores’ intent to sell heroin, this matter was addressed on appeal and
rejected.
(ECF No. 11-3 at 503). The state habeas trial court also “agree[d] with the State’s
argument that a trial exhibit cannot be a ‘newly discovered material fact” and thus [could
not] be the basis for a Rule 32.1(e) claim.” (ECF No. 11-3 at 504).
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Reed appealed the denial of post-conviction relief. (ECF No. 11-4 at 2-89). On
appeal Reed asserted he was denied the effective assistance of counsel; he had discovered
“material facts that probably could have changed the Judgment of conviction;” the
“totality of errors (cumulative error) did amount to a constitutional right deprivation;”
and the “Superior Court Judge [] abused [their] discretion in denying/dismissing
Petitioner’s Petition on April 27, 203, without a hearing …” (ECF No. 11-4 at 3). Reed
asserted his counsel’s “failure” to pursue a “critical line of questioning” regarding Flores
being within the detective’s “line of sight” before and after the subject transaction
constituted deficient performance. (ECF No. 11-4 at 6-7). Reed further asserted counsel
failed to impeach the detectives’ testimony as inconsistent. (ECF No. 11-4 at 7-8).
Additionally, Reed argued his counsel “failed to act as a diligent and loyal advocate.”
(ECF No. 11-4 at 10-13). Reed alleged his counsel’s failure to “investigate and argue for
the preclusion of Trial Exhibit #18 was deficient and prejudicial.” (ECF No. 11-4 at 13-
14). Reed maintained he had acquired newly discovered evidence after the trial, and the
state habeas trial court abused its discretion in failing to conduct a hearing to consider
this evidence. (ECF No. 11-4 at 15-17). Finally, Reed argued that the state habeas trial
court “ignored, refused to comment and/or address … the cumulative effect of the five
principal errors of trial counsel in this case ….” (ECF No. 11-4 at 17-18).
On November 19, 2024, the Arizona Court of Appeals denied relief. Reed, 2024
WL 4823801, at *1-3. Reed did not seek review in the Arizona Supreme Court, and the
state appellate court’s mandate issued December 26, 2024. (ECF No. 11-4 at 105).
II. Claims for Federal Habeas Relief
1. Reed contends his conviction violated his right to due process because there was
insufficient evidence to sustain his conviction, and he argues that, “alternatively,”
“Arizona’s accomplice liability scheme violates due process.” (ECF No. 1 at 8).
2. Reed maintains he was denied his right to the effective assistance of trial
counsel. (ECF No. 1 at 14). He asserts his counsel failed “to pursue a critical line of
questioning;” failed “to impeach [the detectives] with known inconsistencies;” “failed to
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act as a diligent and loyal advocate;” failed “to investigate and appropriately argue for the
preclusion of trial Exhibit #18;” failed “to have trial Exhibit #18 analyzed;” and failed “to
force the State to prove Petitioner’s awareness of [Flores’] intent to sell heroin under
A.R.S. § 13-303.” (ECF No. 1 at 14-15).
3. Reed argues that after his trial and appeal he discovered “material facts that
probably would have changed the judgment of conviction,” i.e., he acquired “newly
discovered evidence” that would have changed the outcome of his criminal proceedings.
(ECF No. 1 at 18).
4. Reed asserts “the totality of errors were cumulative and did amount to a U.S.
Constitutional violation,” referencing his specific claims of ineffective assistance of trial
counsel. (ECF No. 1 at 19).
III. Governing Law
A federal court cannot grant habeas corpus relief to a state prisoner on a claim
rejected on the merits by the state courts unless the petitioner demonstrates the state
court’s decision denying the claim “was contrary to” or an “unreasonable application” of
federal law as clearly established in the holdings of the Supreme Court at the time of the
state court decision, or “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” Harrington v. Richter, 562
U.S. 86, 97-98 (2011). See also 28 U.S.C. § 2254(d)(1). This standard is “difficult to
meet.” Harrington, 562 U.S. at 102. It is a “highly deferential standard for evaluating
state court rulings, which demands that state court decisions be given the benefit of the
doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation and internal quotation
marks omitted).
A state court’s decision is “contrary to” federal law only if it applies a rule of law
that contradicts the “controlling” or “squarely established” law set forth in Supreme
Court cases at the time of the state court’s decision, or if it confronts a set of facts that are
materially indistinguishable from a decision of the Supreme Court and arrives at a result
different from Supreme Court precedent. E.g., Mitchell v. Esparza, 540 U.S. 12, 14
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(2003). A state court decision is an “unreasonable application of” federal law if the court
identifies the correct legal rule, but unreasonably applies that rule to the facts of a
particular case. Brown v. Payton, 544 U.S. 133, 141 (2005). The state court’s decision
constitutes an unreasonable application of clearly established federal law only if it is
objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010);
Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012). An unreasonable application of
federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. “A state
court’s determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id.,
quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
IV. Analysis of Claims for Relief
A. Insufficiency of the evidence
Reed contends his conviction violated his right to due process of law, asserting the
evidence was insufficient to sustain his conviction and, “alternatively, because Arizona’s
accomplice liability scheme violates due process.” (ECF No. 1 at 8). Reed asserts “there
was no evidence whatsoever offered to establish that Mr. Reed knew [Flores] wanted the
heroin to sell to the undercover officers,” and he also contends the evidence produced at
trial “was insufficient … to establish that [Flores’] intent to sell the heroin was a natural
and probably or reasonably foreseeable consequence of Mr. Reed’s conduct.” (ECF No. 1
at 9). He also maintains his conviction was “under the natural and probable or reasonably
foreseeable consequence theory of accomplice liability” and, therefore, the “State was
required to establish Mr. Reed’s awareness of [Flores’] intent to sell the heroin in order to
obtain a conviction under A.R.S. §13-303(A)(3).” (ECF No. 1 at 9-10).
Reed raised this claim in his direct appeal, asserting:
The State’s theory of accomplice liability in this case was clearly
articulated to the jury. But Arizona’s accomplice liability scheme requires
proof that the accomplice “intended to promote or facilitate the commission
of an offense.” A.R.S. § 13-303. There was no evidence presented at trial
that Mr. Reed was aware of Eddie Flores’ intent to sell the heroin at issue in
this case. Therefore, this Court must vacate the conviction and sentence in
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this matter because his conviction was obtained in violation of the Due
Process Clause. Jackson v. Virginia, 443 U.S. 307 (1979).
(ECF No. 11-1 at 48). Reed asked the appellate court “to reverse his conviction because it
was obtained in violation of due process because it was supported by insufficient mens
rea evidence … and/or because the extension of the natural and probable consequences
under A.R.S. § 13-303(A)(3) is void for vagueness.” (ECF No. 11-1 at 37).
In denying relief on this claim the Arizona Court of Appeals found and concluded:
To convict Reed, the State had to prove that he knowingly
transported for sale, offered to transport for sale, sold, transferred, or
offered to sell or transfer a narcotic drug or was an accomplice in such a
transaction. A.R.S. §§ 13-3408(A)(7), -303(A)(3). An accomplice is
someone who intendeds to aid or counsel another person in planning or
committing an offense or “[p]rovides means or opportunity to another
person to commit the offense.” A.R.S. § 13-301(2), (3). Generally, criminal
intent is shown by circumstantial evidence because it reflects a defendant’s
“state of mind,” State v. Bearup, 221 Ariz. 163, 167 [] (2009) … and we do
not distinguish “between the probative value of direct and circumstantial
evidence” in assessing the defendant’s state of mind. See State v. Bible, 175
Ariz. 549, 560 n.1 (1993).
Reed does not challenge the State’s evidence showing that Flores
sold heroin to the detectives or that he provided heroin to Flores. He instead
argues that (1) the State did not present evidence that he knew Flores would
sell the heroin to the detectives or that he intended to aide Flores in the sale
of the heroin, and (2) his sale or transfer of drugs to Flores was a discrete
transaction different from Flores’s sale to the detectives.
Both of Reed’s arguments fail because the State proffered evidence
that Reed and Flores were accomplices selling heroin to the detectives.
First, the quantity of drugs involved in the transaction permitted the jury to
infer Reed’s knowledge of Flores’s sale to the detectives. And Flores
contacted Reed after a detective texted Flores and asked to buy drugs from
“OG Reed.” The detective testified that he told Flores he wanted to buy
heroin from Reed because Reed was someone he could trust, further
explaining at trial that he “always ask[ed] for a large quantity of heroin in
order to find out who the main dealer was in the complex.” The detective’s
requested quantity of heroin matched the amount Reed gave Flores, and the
jury could reasonably infer that Reed knew that Flores was not intending to
keep the heroin for his personal use based on the quantity involved. See,
e.g., State v. Cheramie, 218 Ariz. 447, 450, ¶ 18 (2008); State v. Arce, 107
Ariz. 156, 161-62 (1971).
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Additionally, Flores’s transactions were directly traceable to Reed.
Although each transfer was arguably a discrete event, Reed was involved in
the overall transaction with the detectives. See, e.g., State v Brown, 217
Ariz. 617, 620-21 [] (App. 2008). After Flores told the detectives they
could meet Reed somewhere else to get the heroin, Flores called Reed,
telling him that “they just picked me up,” and that they would meet him at a
convenience store. Once Reed arrived, Flores approached Reed’s van, and
Reed gave him the heroin. Flores later told the detectives that if Reed
“didn’t like something, he would have driven off,” but he did not do so, and
one of the detectives testified that he looked at Reed, the driver and only
occupant of the van, for a few seconds before Reed left the parking lot. And
finally, although the jurors acquitted Reed of the charge relating to the July
sale, they heard evidence of his involvement in that sale. The acquittal did
not prevent the jury from considering this other-act evidence because it was
properly admitted under a lesser standard of proof than that required for
conviction of the offense. Cf. State v. Yonkman, 233 Ariz. 369, 374 [] (App.
2013).
Based on this evidence, a reasonable juror could infer that Reed
promoted or facilitated the August 2016 transaction or provided the means
for its occurrence. See, e.g., Cheramie, 218 Ariz. at 450 []; see also State v.
McNair, 141 Ariz. 475, 480-81 (1984) (noting that a jury can infer criminal
intent from the relationship of the parties and their conduct before the crime
occurred). Accordingly, Reed’s conviction is supported by substantial
evidence.
Reed, 2021 WL 1200706, at *2. The appellate court further found and concluded:
Reed was not convicted under the reasonably foreseeable consequences
theory of liability. As discussed above, substantial evidence that established
Reed was Flores’s accomplice in the sale or transportation of a narcotic
drug. The prosecutor never argued to the jurors that Reed was guilty under
the reasonably foreseeable consequences doctrine, and there was no other
offense of which the sale to the detectives was a reasonably foreseeable
consequence. …
Id.
The Arizona Court of Appeals’ denial of relief on Reed’s insufficiency of the
evidence claim was not clearly contrary to nor an unreasonable application of federal law.
The fundamental fairness guarantee of the Due Process Clause requires the prosecution to
prove every element of the charged offense beyond a reasonable doubt. In re Winship,
397 U.S. 358, 364 (1970); McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986). The
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controlling federal law regarding an sufficiency of the evidence claim is stated in Jackson
v. Virginia, 443 U.S. 307 (1979).
A reviewing court may set aside the jury’s verdict on the ground of
insufficient evidence only if no rational trier of fact could have agreed with
the jury. What is more, a federal court may not overturn a state court
decision rejecting a sufficiency of the evidence challenge simply because
the federal court disagrees with the state court. The federal court instead
may do so only if the state court decision was “objectively unreasonable.”
Cavazos v. Smith, 565 U.S. 1, 2 (2011) (“The opinion of the Court in Jackson v. Virginia,
[], makes clear that it is the responsibility of the jury—not the court—to decide what
conclusions should be drawn from evidence admitted at trial”).
A federal habeas court considering an insufficiency of the evidence claim denied
by a state court must give the state court’s decision a “double dose” of deference, which
“can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). See
also Coleman v. Johnson, 566 U.S. 650, 651 (2012). Even when the evidence is “almost
entirely circumstantial and relatively weak,” it may be sufficient to support a conviction.
See Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (“Circumstantial evidence and
inferences drawn from it may be sufficient to sustain a conviction.” (citations omitted));
Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000). And in considering an insufficiency of
the evidence claim the federal habeas court must assume the trier of fact resolved any
evidentiary conflicts in favor of the prosecution and must defer to such resolution.
Jackson, 440 U.S. at 326. Furthermore, the credibility of witnesses is beyond the Court’s
review of the sufficiency of the evidence. See Schlup v. Delo, 513 U.S. 298, 330 (1995).
The “Jackson standard must be applied with explicit reference to the substantive
elements of the criminal offense as defined by state law.” Boyer, 659 F.3d at 964 (internal
quotations and citations omitted). With regard to Reed’s assertion that the language of
Arizona Revised Statutes § 13-303(A)(3) violated his right to due process as
unconstitutionally vague, the appellate court found and concluded:
For the first time on appeal, Reed argues that he was convicted
“under a natural and probable or reasonably foreseeable consequence
theory” and that his conviction on that basis violates due process. Reed
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asserts that (1) a jury instruction on the natural and probable or reasonably
foreseeable consequences doctrine allowed the jurors to apply a lesser mens
rea in convicting him as an accomplice than the mens rea required for a
principal, and (2) the language describing the reasonably foreseeable
consequences doctrine in A.R.S. § 13-303(A)(3), which the jury instruction
tracked, is unconstitutionally vague. Because Reed did not object at trial,
we review this issue only for fundamental, prejudicial error. See State v.
Escalante, 245 Ariz. 135, 140, 142, ¶¶ 12, 21 (2018).
Section 13-303(A)(3) imposes criminal liability for the actions of
another person if the defendant is an accomplice to the other’s offense, and
it extends accomplice liability to “include[] any offense that is a natural and
probable or reasonably foreseeable consequence of the offense for which
the person was an accomplice.” But here, Reed was not convicted under the
reasonably foreseeable consequences theory of liability. As discussed
above, substantial evidence that established Reed was Flores’s accomplice
in the sale or transportation of a narcotic drug. [sic] The prosecutor never
argued to the jurors that Reed was guilty under the reasonably foreseeable
consequences doctrine, and there was no other offense of which the sale to
the detectives was a reasonably foreseeable consequence. Instead, Reed’s
conduct in selling heroin to the detectives constituted “the offense for
which [Reed] was an accomplice.” See State v. Lee, 236 Ariz. 377, 382, []
(App. 2014). Because Reed was convicted as an accomplice of Flores in the
commission of the drug offense itself (not of some other offense resulting
in the drug offense, or vice versa), the challenged aspect of the statute was
not at issue, and we need not address his remaining arguments challenging
its constitutionality.
Id., 2021 WL 1200706, at *3.
In denying relief on Reed’s Jackson claim the Arizona appellate court made
explicit reference to the substantive elements of the relevant criminal offense as defined
by state law. The state court’s denial of this claim was not clearly contrary to the
controlling Supreme Court’s opinion in Jackson. Additionally, the Arizona Court of
Appeals considered the proceedings of an Arizona state court, the evidence presented at a
state criminal trial, and the lower state court’s application of an Arizona state statute with
regard to the elements of the subject crime. It is well-settled that “federal habeas corpus
relief does not lie for errors of state law” and “it is not the province of a federal habeas
court to reexamine state court determinations on state-law questions.” Estelle v. McGuire,
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502 U.S. 62, 67-68 (1991) (internal quotation marks omitted). See also Sandstrom v.
Montana, 442 U.S. 510 (1979). Accordingly, to the extent Reed’s claim challenges the
sufficiency of the evidence regarding the elements of the state crime, or the application of
state law with regard to the jury instructions, it is premised on a violation or
misapplication of state statutory law which is not cognizable in a federal habeas
proceedings. See 28 U.S.C. § 2254(a) (federal courts can grant habeas relief “only on the
ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of
the United States”) (emphasis added). See also Swarthout v. Cooke, 562 U.S. 216, 219
(2011).
B. Ineffective assistance of counsel
Reed asserts his trial counsel’s performance was unconstitutionally ineffective. He
maintains trial counsel’s “fail[ure] to raise a critical line of questioning was deficient and
prejudicial,” and that his counsel’s failure to impeach the officers’ testimony “with
known inconsistencies was deficient and prejudicial.” (ECF No. 1 at 14).
The “clearly established” federal law regarding an ineffective assistance of
counsel claim is stated in the United States Supreme Court’s opinion in Strickland v.
Washington. To establish that he was denied the effective assistance of counsel, a habeas
petitioner must show his attorney’s performance was deficient and that the deficiency
prejudiced the outcome of his criminal proceedings. See Strickland v. Washington, 466
U.S. 668, 687 (1984). It is the petitioner’s burden to demonstrate both prongs of the
Strickland test. E.g., Knowles v. Mirzayance, 556 U.S. 111, 122 (2009); Vega v. Ryan,
757 F.3d 960, 969 (9th Cir. 2014). A petitioner bears the burden of demonstrating
counsel’s choices regarding the presentation of his defense constituted both deficient
performance and were prejudicial. See Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th
Cir. 2009); Rego v. Sherman, 704 F. App’x 634, 638 (9th Cir. 2017); Lazo v. Clark, 387
F. App’x 754, 755 (9th Cir. 2010).
With regard to the performance prong of the Strickland test, the petitioner must
overcome the strong presumption that counsel’s conduct was within the range of
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reasonable professional assistance required of attorneys in that circumstance. See
Strickland, 466 U.S. at 687. Counsel’s performance will be held unconstitutionally
deficient only if the habeas petitioner proves counsel’s actions “fell below an objective
standard of reasonableness,” as measured by “prevailing professional norms.” Id. at 688.
See also Cheney v. Washington, 614 F.3d 987, 994-95 (9th Cir. 2010). It is well-settled
that “counsel’s tactical decisions at trial … are given great deference and must [] meet
only objectively reasonable standards.” Elmore v. Sinclair, 799 F.3d 1238, 1250 (9th Cir.
2015). See also Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006).
To establish prejudice, the petitioner must demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. See also, e.g., Harrington, 562 U.S. at 104. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. This standard for assessing prejudice requires a
substantial, not just “conceivable,” likelihood of a different result. Id. at 693. See also
Sanchez v. Davis, 994 F.3d 1129, 1139 (9th Cir. 2021). When considering whether a
habeas petitioner was prejudiced by his counsel’s alleged errors, “the question is whether
there is a reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. For habeas relief to be
warranted, “[c]ounsel’s errors must be ‘so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable….’” Harrington, 562 U.S. at 104, quoting Strickland,
466 U.S. at 687.
On federal habeas review a Strickland claim adjudicated on the merits by a state
court is reviewed under a “highly deferential” or “doubly deferential” standard. Atwood v.
Ryan, 870 F.3d 1033, 1057 (9th Cir. 2017); Visciotti v. Martel, 862 F.3d 749, 770 (9th
Cir. 2016). The “highly deferential” standard of review “‘requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.’” Visciotti, 862 F.3d at 770, quoting Strickland, 466 U.S. at 689. See also Bolin
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v. Davis, 13 F.4th 797, 804 (9th Cir. 2021). The “doubly deferential” standard of review
requires the habeas court applying Strickland to determine whether there is a “reasonable
argument that counsel satisfied Strickland’s deferential standard …” Harrington, 562
U.S. at 105 (emphasis added). Even if the Court could conclude on de novo review that
the petitioner might satisfy both prongs of the Strickland test, the “AEDPA requires that a
federal court find the state court’s contrary conclusion” “objectively unreasonable before
granting habeas relief.” Woods v. Sinclair, 764 F.3d 1109, 1132 (9th Cir. 2014)
(emphasis added). Relief is warranted only if no reasonable jurist could disagree that the
state court erred in its application of the Strickland analysis. See Cullen v. Pinholster, 563
U.S. 170, 188 (2011).
In denying relief on Reed’s ineffective assistance of counsel claims, the Arizona
Court of Appeals found and concluded:
Reed first argues his trial counsel was ineffective when counsel
failed to adequately cross-examine and/or impeach the two undercover
detectives who participated in the sale at the gas station. Reed alleges his
counsel’s pretrial interviews of the two detectives revealed discrepancies
regarding whether E.F. went inside the store at the gas station prior to
Reed’s arrival. Reed argues counsel could have used these alleged
discrepancies during cross-examination of the detectives to show that E.F.
could have purchased the heroin from an unidentified person in the store or
elsewhere while out of the detectives’ view prior to Reed’s arrival.
We deny relief because Reed has failed to present a colorable claim
for relief. The determination of how to cross-examine a witness is a matter
of trial strategy. See Stone, 151 Ariz. at 461. “Simply disagreeing with
strategy decisions cannot support a determination that representation was
inadequate.” State v. Pandeli, 242 Ariz. 175, 181 [] (2017). This is because
“[d]efense counsel’s determinations of trial strategy, even if later proven
unsuccessful, are not ineffective assistance of counsel.” State v. Valdez, 160
Ariz. 9, 14 (1989). Cross-examination of the detectives in a manner that did
not seek to raise the speculative proposition that E.F. purchased heroin
from an unidentified person while momentarily out of sight of the
detectives was a viable trial strategy that did not fall below objectively
reasonable standards.…
Reed next argues his trial counsel was ineffective when counsel
failed to file a motion to reconsider the trial court’s denial of Reed’s request
for an instruction under State v. Willits, 96 Ariz. 184 (1964). “A Willits
instruction is appropriate when the state destroys or loses evidence
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potentially helpful to the defendant.” State v. Lopez, 163 Ariz. 108, 113
(1990). Here, counsel sought a Willits instruction because the two cell
phones the detectives used during their undercover work, at least one of
which contained texts with E.F., were destroyed prior to trial and the
relevant texts on those phones were not otherwise preserved.
We deny relief on this issue as well. Counsel requested a instruction
and the trial court denied the request. Simply disagreeing with counsel’s
decision to not file a motion to reconsider the court’s ruling is not sufficient
to present a colorable claim that counsel’s actions fell below objectively
reasonable standards.…
Reed next argues his trial counsel was ineffective because counsel
was unsuccessful in precluding admission of the audio recording contained
in trial Exhibit 18. The recording consisted of the interactions between E.F.
and the two detectives on the day of the sale at the gas station. The
recording included all their conversations that occurred before, during, and
after the sale.
We deny relief because Reed has again failed to present a colorable
claim for relief. Reed’s counsel filed a motion to preclude the admission of
the recording. The trial court took the motion under advisement because the
court was concerned the State would not be able to establish sufficient
foundation to admit the recording at trial. When the State later moved to
admit the recording during trial, Reed’s counsel objected based on the
grounds urged in the motion to preclude. The trial court overruled counsel’s
objection. Merely asserting that counsel should have done a better job
when counsel filed the motion to preclude the recording and when counsel
later objected to the admission of the recording is insufficient to present a
colorable claim of ineffective assistance of counsel. …
Reed further argues his trial counsel was ineffective when counsel
failed to have the audio recording contained in Exhibit 18 “analyzed and
enhanced.” Reed argues counsel should have had the exhibit “analyzed and
enhanced to determine its evidentiary value for the defense.” Reed further
argues analysis would have shown the conversations were poorly recorded
and inaudible, possibly “intentionally,” throughout the recording.
We deny relief on this issue as well. The State played Exhibit 18 for
the jury. The deficiencies of the recording would have been readily
apparent to everyone at trial. Further, Reed’s counsel had no reason to
take action that risked doing nothing more than improving the quality and
impact of the State’s evidence against Reed solely to Reed’s detriment. An
attorney need not take action that might harm the defendant’s case.
Harrington v. Richter, 562 U.S. 86, 108 (2011). Counsel’s efforts to
preclude the admission of Exhibit 18 rather than attempt to enhance the
quality of the recording was a viable trial strategy. Reed has failed to
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present a colorable claim that counsel was ineffective for failing to analyze
and enhance Exhibit 18.
Reed, 2024 WL 4823801, at *2-3 (emphasis added).
The state post-conviction appellate court’s denial of Reed’s ineffective assistance
of counsel claims was not contrary to nor an unreasonable application of Strickland.
Counsel’s choice of a reasonable defense strategy, and any decisions made regarding the
implementation of that strategy, are “virtually unchallengeable.” Strickland, 466 U.S.
at 690. See also Ayala v. Chappell, 829 F.3d 1081, 1103 (9th Cir. 2016). It is well settled
that “counsel’s tactical decisions at trial ... are given great deference and must similarly
meet only objectively reasonable standards.” Elmore, 799 F.3d at 1250. See also
Reynoso, 462 F.3d at 1112 (“trial counsel is typically afforded leeway in making tactical
decisions regarding trial strategy.”). Additionally, the “doubly deferential” standard of
review requires the habeas court applying Strickland to determine whether there is a
“reasonable argument that counsel satisfied Strickland’s deferential standard ....”
Harrington, 562 U.S. at 105. “Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness under § 2254(d).
When § 2254(d) applies, the question is not whether counsel’s actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id. (emphasis added).
A petitioner’s speculation that counsel failed to adequately investigate a potential
line of defense or failed to present particular testimony rarely creates a “reasonable
probability” that a different result would have occurred absent the purportedly deficient
representation. Strickland, 466 U.S. at 694. Counsel’s choice of a sound defense strategy,
and any decisions made regarding the implementation of that strategy, are “virtually
unchallengeable.” Id. at 690. See also Ayala, 829 F.3d at 1103. “Because advocacy is an
art and not a science, and because the adversary system requires deference to counsel's
informed decisions, strategic choices must be respected in these circumstances if they are
based on professional judgment.” Matylinsky, 577 F.3d at 1091. Specifically, the decision
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to forgo the use of specific witness testimony is a matter of strategy within trial counsel’s
discretion. Id., 577 F.3d at 1092 (“[petitioner] offers only his personal opinion that
trial counsel’s decision not to pursue this line of impeachment was error. This is
insufficient.”); Raley v. Ylst, 470 F.3d 792, 802 (9th Cir. 2006). Reed fails to meet his
burden of establishing counsel’s performance was unconstitutionally deficient.
With regard to prejudice, Reed fails to meet his burden of establishing that any of
counsel’s actions prejudiced the outcome of his criminal proceedings. Most notably,
counsel achieved an acquittal on one count of the indictment. Additionally, counsel did
seek a Willits instruction but was not successful on that motion, indicating an absence of
prejudice; Reed’s allegation that counsel failed to properly argue the Willits issue rests
purely on speculation. Reed fails to meet his burden of establishing that, even if any of
the asserted “errors” constituted deficient performance, any error was prejudicial, or that
the state court’s denial of relief on Reed’s Strickland claims was an unreasonable
application of clearly established federal law.
C. Post-conviction “Discovery” of “Material” Facts
Reed asserts that “after trial and sentencing, [and] direct appeal,” he “did discover
material facts, that probably would have changed the judgment of conviction.” (ECF
No. 1 at 18). The “material facts” Reed references involve his “new” analysis of Trial
Exhibit 18. (Id.). Reed does not assert that the discovery of this “new” analysis of
“material facts” implicates any specific federal constitutional guarantee, but instead Reed
asserts the state habeas trial court violated Rule 32.1(e) of the Arizona Rules of Criminal
Procedure by failing to conduct a hearing regarding this evidence in his state post-
conviction action.
Reed raised this claim on appeal in his state post-conviction action as a claim that
he was entitled to a hearing pursuant to a state rule of criminal procedure. (ECF No. 11-4
at 15-17). In his state post-conviction action Reed did not assert that the evidence
“discovered” after his conviction established his actual innocence of the crime of
conviction, rendering his conviction in violation of his federal constitutional right to due
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process, nor did he cite to any opinion of the Ninth Circuit Court of Appeals or the
United States Supreme Court when alleging he was entitled to a hearing on this evidence.
(Id.). In his very summary briefing of this matter to the Arizona Court of Appeals in his
state post-conviction action Reed only argued:
… it was incumbent on the lower court to order a hearing, allow the
defendant to call witnesses as a colorable claim was present in two areas of
concern with merit (1) counsel’s ineffectiveness in not having Exhibit #18
analyzed prior to trial; (2) Defendant due diligence prior, during and after
trial in uncovering the present evidence which is material and questions the
integrity of the court trial process. [sic]
(ECF No. 11-4 at 16-17).
In denying relief on this claim in Reed’s state post-conviction action the Arizona
Court of Appeals found and concluded:
In a separate claim related to Exhibit 18, Reed asserts he has
obtained newly discovered material facts that would likely have altered the
verdict if admitted into evidence at trial. Specifically, Reed alleges that in
light of his trial counsel’s failure to have Exhibit 18 analyzed and
enhanced, Reed personally had the audio recording in Exhibit 18 analyzed
and enhanced. Reed does not explain how or who “analyzed and enhanced”
the recording or how the transcript resulting from these efforts accurately
identified which of three persons were speaking. Reed argues this new
transcript reveals for the first time that one of the detectives drank from a
can of beer during the sale at the gas station; that the same detective could
not see inside Reed’s van and, therefore, could not see any transaction
between E.F. and Reed; and that the second detective was not always in the
presence of the first detective while they were at the gas station.
For a defendant to obtain post-conviction relief based on newly
discovered material facts:
(1) The evidence must appear on its face to have existed at the time of
trial but be discovered after trial;
(2) The petition must allege facts from which the court could conclude
the defendant was diligent in discovering the facts and bringing them
to the court’s attention;
(3) The evidence must not simply be cumulative or impeaching;
(4) The evidence must be relevant to the case;
(5) The evidence must be such that it would likely have altered the
verdict, finding, or sentence if known at the time of trial.
State v. Bilke, 162 Ariz. 51, 52–53 (1989); see Ariz. R. Crim. P. 32.1(e).
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Here, Exhibit 18 and its contents are not newly discovered material
facts. Reed has done nothing more than have someone else prepare a new
transcript based on that unknown person’s interpretation of the recording.
Further, a review of the recording itself shows that all the “new”
information Reed identifies can be heard in Exhibit 18 as admitted at trial.
Reed , 2024 WL 4823801, at *3.
A writ of habeas corpus issued by a federal court affords relief to persons in
custody pursuant to the judgment of a state court, which custody arises from a criminal
proceeding found to have violated a right conferred by the United States Constitution or
the laws or treaties of the United States. See 28 U.S.C. § 2254(a); Williams v. Taylor, 529
U.S. 362, 375 n.7 (2000). The federal habeas statute, 28 U.S.C. § 2254, unambiguously
provides that a federal court may issue a writ of habeas corpus to a state prisoner “only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a) (emphasis added). Reed fails to identify any specific
constitutional right he believes was violated with regard to this claim for relief and,
therefore, he fails to state a cognizable § 2254 claim.
Reed alleges a violation of a state procedural rule in his state post-conviction
proceeding, but “federal habeas corpus does not lie for errors of state law.” Estelle, 502
U.S. at 67. A “mere error of state law, one that does not rise to the level of a
constitutional violation, may not be corrected on federal habeas.” Gilmore v. Taylor, 508
U.S. 333, 349 (1993). See also Swarthout, 562 U.S. at 219 (“We have stated many times
that federal habeas corpus relief does not lie for errors of state law.” (internal quotations
omitted)); Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Moreover, federal courts are
without jurisdiction to review a state court’s applications of its own procedural rules. See,
e.g., Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1998). The post-conviction review
process is not mandated by the federal Constitution. Pennsylvania v. Finley, 481 U.S.
551, 557 (1987). Accordingly, errors in that process “must be analyzed in light of the
fact” that the defendant has found guilty at a trial, and they have “only a limited interest
in postconviction relief.” District Att’y Off. for Third Jud. Dist. v. Osborne, 557
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U.S. 52, 69 (2009). The alleged error Reed complains of does not implicate his federal
constitutional rights. See Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998); Franzen v.
Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (“[A] petition alleging errors in the state post-
conviction review process is not addressable through habeas corpus proceedings.”). Reed
fails to state a cognizable claim for relief because the violation of a state criminal
procedural rule does not establish a defendant’s federal constitutional rights were
violated.
D. Cumulative Error
Reed argues that “the totality of [his counsel’s] errors were cumulative and did
amount to a U.S. Constitutional violation.” (ECF No. 1 at 19). In his state post-conviction
action Reed asserted his counsel’s cumulative errors violated his right to the effective
assistance of counsel, citing Strickland. (ECF No. 11-4 at 17-18). The Arizona Court of
Appeals found and concluded:
As the final issue on review, Reed argues the above claims constitute
cumulative error that rises to a level that entitles him to post-conviction
relief. Generally, Arizona does not recognize the doctrine of cumulative
error. State v. Hughes, 193 Ariz. 72, 78–79 ¶ 25 (1998). The only exception
is cumulative error involving prosecutorial misconduct, which is not
implicated here. Id. at 79 ¶ 27.
(ECF No. 11-4 at 102).
The Arizona Court of Appeals’ denial of this claim was not clearly contrary to nor
an unreasonable application of clearly established federal law as espoused by the United
States Supreme Court. “Clearly established” federal law consists of the holdings of the
United States Supreme Court which existed at the time the petitioner’s state court
conviction became final. See Williams, 529 U.S. at 412. See also Harrington, 562 U.S. at
102, citing Renico, 559 U.S. at 778-79. Habeas relief cannot be granted if the Supreme
Court has not “broken sufficient legal ground” on the constitutional principle advanced
by the petitioner, even if lower federal courts have decided the issue. Williams, 529 U.S.
at 381. See also Carey v. Musladin, 549 U.S. 70, 77 (2006).
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At the time of Reed’s conviction and his post-conviction proceedings there was no
clearly established Supreme Court law on this issue. Reed fails to cite any holding by the
United States Supreme Court that the requisite elements of deficient performance and
prejudice to prove a violation of the Sixth Amendment right to the effective assistance of
counsel may be established by the cumulative impact of multiple deficiencies which
individually do not rise to the level of deficient performance and where Strickland
prejudice cannot be established with respect to any particular alleged deficiency.
Although the Ninth Circuit Court of Appeals has concluded that a federal habeas
court may consider the totality of counsel’s alleged errors when assessing whether the
petitioner has established the prejudice prong of the Strickland test, the Supreme Court
has never held that the cumulative effect of specific acts which do not satisfy the deficient
performance prong of the test can establish a viable claim of ineffective assistance of
counsel. And the Supreme Court has never squarely held that multiple individually non-
prejudicial errors by trial counsel can cumulatively establish the prejudice necessary for
federal habeas relief; accordingly, the state court’s denial of this claim was not contrary
to nor an unreasonable application of the “clearly established” federal law as espoused by
the United States Supreme Court. The post-conviction court’s rejection of all of Reed’s
Strickland claims was not, as found supra, an unreasonable application of Strickland, nor
an unreasonable determination of the facts; accordingly, there are no deficient
performance nor prejudicial performance errors to accumulate. See Runningeagle, 825
F.3d at 990 n.21 (rejecting cumulative error argument because the court found all of the
alleged Strickland claims “insubstantial or unsuccessful on the merits.”). When there is
not even a single constitutional error, there is nothing to accumulate to satisfy the
prejudice prong of the Strickland test. Cf. Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir.
2011) (regarding claims of due process violations); Mancuso v. Olivarez, 292 F.3d 939,
957 (9th Cir. 2002) (same). See also Sherman v. Gittere, 2024 WL 3649032, at *4 (9th
Cir. Aug. 5, 2024).
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Because Reed has failed to cite and the magistrate judge has not located any
Supreme Court holding on point, the Court has no basis for finding that the state habeas
trial court’s rejection of Reed’s cumulative error claim was either contrary to or involved
an unreasonable application of clearly established Supreme Court law for purposes of
§ 2254(d)(1). See Knowles, 556 U.S. at 122 (holding “it is not an unreasonable
application of clearly established Federal law for a state court to decline to apply a
specific legal rule that has not been squarely established by this Court” (internal
quotations omitted)); Wright v. Van Patten, 552 U.S. 120, 126 (2008); Musladin, 549
U.S. at 77; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) (“If no Supreme Court
precedent creates clearly established federal law relating to the legal issue the habeas
petitioner raised in state court, the state court’s decision cannot be contrary to or an
unreasonable application of clearly established federal law.”).
V. Conclusion
Reed fails to establish that the Arizona Court of Appeals’ decision denying the
claims raised in his state post-conviction action and fairly presented to this Court warrant
the Court granting him federal habeas relief pursuant to § 2254. Accordingly,
IT IS RECOMMENDED that the petition at ECF No. 1 be denied.
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.
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. Thereafter, the parties have
fourteen (14) days within which to file a response to the objections. Pursuant to
Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court
for the District of Arizona, objections to the Report and Recommendation may not
exceed ten (10) pages in length. Failure to timely file objections to any factual or legal
determinations of the Magistrate Judge will be considered a waiver of a party’s right to
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de novo appellate consideration of the issues. See United States v. Reyna–Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District
Courts requires the Court to “issue or a deny a certificate of appealability when it enters a
final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned
recommends that, should the Report and Recommendation be adopted and, should Reed
seek a certificate of appealability, a certificate of appealability should be denied because
he has not made a substantial showing of the denial of a constitutional right.
Dated this 17th day of March, 2026.
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