2:25-cv-00215•Reed #051903 v. Thornell et al
Texte intégral
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 1 of 23
- 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 2 of 23
- 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 3 of 23
- 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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). Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 4 of 23
- 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 5 of 23
- 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 6 of 23
- 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 7 of 23
- 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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). Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 8 of 23
- 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 9 of 23
- 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 10 of 23
- 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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, Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 11 of 23
- 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 502 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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 12 of 23
- 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 13 of 23
- 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 14 of 23
- 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 15 of 23
- 16 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 16 of 23
- 17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 17 of 23
- 18 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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). Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 18 of 23
- 19 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 19 of 23
- 20 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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). Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 20 of 23
- 21 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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). Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 21 of 23
- 22 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 22 of 23
- 23 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. Case 2:25-cv-00215-DLR Document 18 Filed 03/17/26 Page 23 of 23
Vous vous demandez comment ce texte s’applique à votre situation ?
Consultation gratuite, sans engagement
Décrivez votre situation. Notre équipe vous recontactera par e-mail pour votre consultation.
Poursuivez vos recherches dans ChatGPT ou Claude
Connectez Omnilex pour rechercher dans le corpus juridique depuis votre assistant IA.