Libman #327694 v. Thornell et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Matthew Garrett Libman,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-25-02363-PHX-GMS (JZB)
REPORT & RECOMMENDATION
TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:
Petitioner Matthew Garrett Libman has filed pro se a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
Petitioner raised seven grounds for relief in his Petition. Petitioner is not entitled to
relief because those grounds are procedurally defaulted, without merit, or non-cognizable.
Therefore, the Court will recommend the petition be denied and dismissed.
II. Background.
a. Facts of the Case.
The Arizona Court of Appeals described the following facts as true:1 “After killing
his adoptive father, [Petitioner] pled guilty to second-degree murder and kidnapping. The
court sentenced [Petitioner] to a stipulated term of 25 years’ imprisonment and probation
1 The Arizona Court of Appeals’ recitation of the facts is presumed correct. See 28
U.S.C. § 2254(d)(2), (e)(1); see also Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir.
2012) (rejecting argument that statement of facts in state appellate court’s opinion should
not be afforded the presumption of correctness).
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upon release.” (Doc. 11-2, Ex. Q, at 192.)
The presentence investigation report further described the case:
On December 14, 2016, Scottsdale Police responded to a domestic
disturbance call. The defendant called the police and stated that he had been
in a fight with his father and victim, Kip Libman, age seventy-three. He stated
that his father pulled a knife and the defendant punched him. He said his
father was deceased and waited outside the residence for police. He complied
with all their directives and stated, “It was an accident. I did not mean for it
to happen.” Police asked about the weapon. He said that he cleaned the knife
and put it away in the kitchen. He was placed into the back of a squad car.
Police entered the residence and found the victim deceased. There was a
cluster of stab wounds and blood on his chest. The victim had a white plastic
bag over his head and his upper body was covered with white linen. The
victim’s nose and mouth appeared sunken in as if he was attempting to
breath[e] with the bag over his head. Police then arrested the defendant for
murder . . . .
Post-Miranda, the defendant asked to speak to his attorney.
The autopsy showed the victim had four stab wounds to the chest, two to the
heart and two to the left lung. He also had a fractured left orbital socket and
nose. Contusions around this area were consistent with blunt force trauma.
His hyoid bone was fractured which was consistent with strangulation.2 The
victim’s death was ruled a homicide.
(Doc. 11-11, Ex. EE, at 79.)
b. Petitioner’s Direct Appeal.
By entering a plea of guilty, and by the terms of his plea agreement, Petitioner
waived his right to a direct appeal. The plea agreement, signed by petitioner, states:
[T]he Defendant hereby waives and gives up any and all motions, defenses,
objections or requests which he has made or raised, or could asset hereafter,
to the court’s entry of judgment against him and the imposition of a sentence
upon him consistent with this agreement. By entering this agreement, the
Defendant further waives and gives up the right to appeal.
(Doc. 11-1, Ex. A, at 4); see also (doc. 11-1, Ex. B, at 15–16.)
c. Petitioner’s Post-Conviction Relief Proceedings.
1. Petitioner’s First Post-Conviction Relief Proceeding.
On August 17, 2018, Petitioner filed a pro se Notice of Post-Conviction Relief
2 Contrary to this report, the Medical Examiner’s report indicated that the hyoid bone
appeared intact, although the victim’s thyroid cartilage was fractured. (Doc. 11-11, Ex. EE,
at 62.)
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(“PCR”). (Doc. 11-1, Ex. E, at 33–36.) The Maricopa County Superior Court issued an
order on September 13, 2018, appointing Barbara Hull to represent Petitioner in the PCR
proceeding. (Doc. 11-1, Ex. F, at 39.) On February 28, 2019, Hull filed a notice of no
colorable claims and request to withdraw as counsel. (Doc. 11-1, Ex. G, at 42–44.) On or
about May 19, 2019, Petitioner filed his pro se Petition for PCR. (Doc. 11-1, Ex. I, at 51.)
Petitioner subsequently retained private counsel, Courtney Sullivan, who filed a
Supplemental Petition for PCR on or about January 27, 2021. See (doc. 11-1, Ex. J, at 129.)
The trial court reviewed these two petitions and granted an evidentiary hearing to
determine: (1) whether Petitioner’s trial counsel was ineffective; and (2) whether
Petitioner’s first PCR attorney, Hull, was ineffective. See (doc. 11-1, Ex. L, at 150–51.)
Following the evidentiary hearing, the trial court denied relief, finding neither
attorney acted below reasonable standards of care and that no prejudice resulted from either
attorney’s conduct. (Doc. 11-2, Ex. N, at 168.) On July 18, 2024, the Arizona Court of
Appeals granted review of Petitioner’s claims and denied relief. (Doc. 11-2, Ex. Q, at 191–
96.) On August 26, 2024, the mandate issued. (Doc. 11-2, Ex. R, at 198.)
2. Petitioner’s Second Post-Conviction Relief Proceeding.
On March 20, 2024, Petitioner filed his second pro se Notice of PCR. (Doc. 11-2,
Ex. S, at 206.) The Superior Court issued an order on March 27, 2024, appointing the Office
of the Legal Advocate (“OLA”) to represent Petitioner in this second PCR proceeding.
(Doc. 11-2, Ex. T, at 212.) On July 26, 2024, the OLA filed a notice of no colorable claims,
request to withdraw as counsel, and request to allow Petitioner to file his second PCR
petition pro se. (Doc. 11-2, Ex. U, at 215–20.) On or about September 16, 2024, Petitioner
filed his second pro se Petition for PCR. (Doc. 11-3, Ex. W, at 3.) In this PCR petition,
Petitioner argued that his PCR counsel Sullivan was ineffective. See (id. at 10–21.)
On April 11, 2025, the Superior Court dismissed this PCR petition. (Doc. 11-11,
Ex. BB, at 3–4.) On May 9, 2025, Petitioner filed a Petition for Review in the Arizona
Court of Appeals. (Doc. 11-11, Ex. CC, at 6.) It appears that review was granted but relief
denied on or about December 22, 2025. State v. Libman, 2025 WL 3708717 (Ariz. App.
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Dec. 22, 2025); see (doc. 11 at 3.) It further appears that the mandate issued on or about
February 20, 2026. See (doc. 11 at 3.)
3. Petitioner’s Third Post-Conviction Relief Proceeding.
On or about June 10, 2025, Petitioner filed his third pro se Notice of PCR and third
pro se Petition for PCR. (Doc. 11-11, Ex. DD, at 24); (doc. 11-11, Ex. EE, at 29.) In this
PCR petition, Petitioner argued that his guilty plea was involuntary, and that trial counsel
and PCR counsel were ineffective. See (id. at 35–39.)
On August 22, 2025, the Superior Court dismissed this PCR petition without
prejudice. (Doc. 11-11, Ex. FF, at 130–31.) The court called this petition a “nullity”
because his pending appeal in the Court of Appeals addressed the same issues. (Id. at
131.) Petitioner did not request review of this dismissal and the time for doing so has
passed. See Ariz. R. Crim. P. 33.16(a)(1).
III. Petitioner’s Habeas Petition.
On July 7, 2025, Petitioner mailed the instant, timely Petition. (Doc. 1.) The Court
summarized Petitioner’s claims as follows:
(1) “The guilty plea was involuntary and unconstitutional because it was
induced by materially false evidence”;
(2) “Trial counsel rendered ineffective assistance by failing to challenge
materially false evidence and failing to order a psychiatric evaluation”;
(3) “First PCR counsel rendered ineffective assistance by failing to raise the
involuntary plea and false evidence claims, an[d] by failing to present mental
health mitigation”;
(4) “Appellate PCR counsel rendered ineffective assistance by failing to
exhaust Supreme Court review”;
(5) “Second PCR counsel rendered ineffective assistance by failing to
investigate and present the newly discovered evidence of false state claims”;
(6) Petitioner’s petition is timely; and
(7) Petitioner is actually innocent under Schlup v. Delo, 513 U.S. 298 (1995).
(Doc. 7 at 2) (quoting doc. 1.)
Petitioner concurrently filed a Motion to Appoint Counsel (doc. 2) and a Motion for
Stay and Abeyance (doc. 3). The Court denied both motions. (Docs. 7, 24.)
On November 11, 2025, Respondents filed a Response to the Petition. (Doc. 11.)
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On December 22, 2025, Petitioner filed a Reply to that Response. (Doc. 20.) Petitioner
separately filed a Motion requesting this Court allow him to continue receiving all mail
relating to this matter physically, despite a new policy from the Arizona Department of
Corrections, Rehabilitation, and Reentry mandating all mail be scanned and received in
digital form. (Doc. 16.) After receiving Response and Reply briefs, the Court denied that
Motion. (Doc. 23.)
The writ of habeas corpus affords relief to persons in custody pursuant to the
judgment of a state court in violation of the Constitution, laws, or treaties of the United
States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for habeas corpus are governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244.
a. Ground One: Guilty Plea Was Involuntary and Unconstitutional.
In Ground One, Petitioner argues that his guilty plea was involuntary and
unconstitutional because it was “induced by materially false evidence.” (Doc. 1 at 13.) He
asserts that the State advanced two false narratives during the grand jury, plea negotiation,
and sentencing proceedings. (Id.) First, he argues the State repeated that the victim’s hyoid
bone was fractured, indicating strangulation, despite evidence to the contrary in the
Medical Examiner’s report. (Id.) Second, he argues the State repeated that his uncle, the
victim’s brother, told police Petitioner received $13,000/month from the victim. (Id.)
However, the transcript of the uncle’s interview with police shows he said Petitioner
received $1,500/month from the victim. (Id.)
These claims were raised in Petitioner’s Third Petition for PCR. (Doc. 11-11, Ex.
EE, at 35–36.) The Superior Court dismissed that petition without prejudice, declaring it a
“nullity” because of the pending appeal for his second PCR Petition. (Doc. 20 at 15–16.)
The Superior Court pointed out that Petitioner could later raise issues unresolved by the
appeal pursuant to the timeline in Ariz. R. Crim. P. 33.4(b)(3)(C). (Id. at 16.)
Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless
a petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state
remedies, a petitioner must afford the state courts the opportunity to rule upon the merits
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of his federal claims by “fairly presenting” them to the state’s “highest” court in a
procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004). If a petitioner
does not exhaust available state remedies, they are typically barred from federal habeas
relief. See Harris v. Reed, 489 U.S. 255, 262 (1989).
Accordingly, a habeas petitioner’s claims may be precluded from federal review in
a few situations. Relevant here, a claim may be procedurally defaulted and barred when a
petitioner failed to present his federal claims to the state court, but returning to state court
would be “futile” because the state court’s procedural rules—such as waiver or
preclusion—would bar consideration of the previously unraised claims. See Teague v.
Lane, 489 U.S. 288, 297–98 (1989) (finding petitioner’s claims were procedurally
defaulted because petitioner forfeited review of the claims in state court); see also Beaty v.
Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (holding that even if a habeas petitioner has
unexhausted claims, those claims will be procedurally defaulted if the petitioner is “time-
barred under Arizona law from going back to state court”).
Petitioner argues that this claim is not procedurally defaulted because his third PCR
Petition was dismissed without prejudice. (Doc. 20 at 3.) As such, he states that he could
refile his petition in state court pending resolution of his second PCR Petition. (Id.)
Petitioner then argues that if the claim is procedurally defaulted, the default should be
excused under Martinez v. Ryan, 566 U.S. 1 (2012), or Schlup v. Delo, 513 U.S. 298 (1995).
(Id. at 3–7.)
Regardless of whether the claim is procedurally defaulted, it nevertheless fails on
the merits. See Lambrix v. Singletary, 520 U.S. 518, 524–25 (1997) (explaining that a court
may bypass a procedural default issue in the interest of judicial economy when the merits
are clear but the procedural default issues are not). Because the merits of the claim are
clear, the Court chooses not to address the procedural default and recommends the claim
be denied on the merits. See id.
Ground One is a claim against the nature of the plea itself, not a claim against
counsel (which is raised in Ground Two). (Doc 1 at 14–15.) Petitioner relied on the advice
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of counsel in pleading guilty. See (doc. 11-1, Ex. B, at 10–11); see also (doc. 11-2, Ex. M,
at 59–61, 92–93). However, when a defendant is represented by counsel during plea
negotiations and accepts the plea upon the advice of counsel, he can only attack the plea
by showing counsel’s advice was deficient. Hill v. Lockhart, 474 U.S. 52, 56–57 (1985);
Tollett v. Henderson, 411 U.S. 258, 267 (1973). In other words, there is no independent
ground for relief against the character of the plea. See United States v. Calhoun, 2026 WL
657745, at *2 (S.D. Cal. Mar. 9, 2026) (“A defendant who pleads guilty upon the advice
of counsel may only attack the voluntary and intelligent character of the guilty plea by
showing that the advice he received from counsel was ineffective.”) (cleaned up and
quoting Lambert v. Blodgett, 393 F.3d 943, 979 (9th Cir. 2004)); Reel v. Ryan, 2013 WL
2284988, at *6 (D. Ariz. May 22, 2013) (“[T]his Court cannot consider a direct claim that
the plea was not voluntarily and intelligently entered when such a claim is not brought as
an ineffective assistance of counsel claim.”); Lambert, 393 F.3d at 979 (“Because [the
petitioner] pled guilty upon the advice of counsel, he is limited to challenging his plea by
demonstrating that the advice he received from counsel did not constitute effective
representation.”).
Because Petitioner accepted his plea on the advice of counsel, he is precluded from
independently attacking the plea on the grounds of involuntariness and lack of knowledge.
Therefore, Ground One fails on the merits.
b. Ground Two: Ineffective Assistance of Trial Counsel.
Claims of ineffective assistance of counsel are governed by the principles set forth
in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a petitioner
must show that: (1) counsel’s representation fell below an objective standard of
reasonableness; and (2) the deficiency prejudiced the defense. Strickland, 466 U.S. at 687–
88. The inquiry under Strickland is highly deferential, and “every effort [must] 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.”
Id. at 689. Regarding Strickland’s second element, a petitioner must affirmatively prove
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prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.
1. Ground 2(a): Trial Counsel’s Failure to Challenge False Forensic and
Financial Claims.
In Ground 2(a), Petitioner claims that his trial counsel was ineffective for failing to
challenge materially false evidence, namely, the statements about the hyoid
bone/strangulation, and the money he was receiving from the victim. (Doc. 1 at 12, 14.)
Much like Ground One, Petitioner raised this claim in his Third Petition for PCR. (Doc.
11-11, Ex. EE, at 37.) This Petition was rejected by the Superior Court as a “nullity” for
the same reason explained above. (Doc. 20 at 15–16.) Petitioner argues that this claim is
not procedurally defaulted, and that if it is the default should be excused under Martinez
or Schlup. (Id. at 3–7.)
As with Ground One, the merits of Ground 2(a) do not warrant relief regardless of
any potential procedural default. Accordingly, this Court elects to address only the merits
of the claim and recommends the claim be denied on that basis. See Lambrix, 520 U.S. at
524–25.
“[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas
based on ineffective assistance of counsel.” Hill, 474 U.S. at 58. To satisfy the prejudice
element, Petitioner “must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.
“[W]here the alleged error of counsel is a failure to investigate or discover potentially
exculpatory evidence, the determination whether the error ‘prejudiced’ the defendant by
causing him to plead guilty rather than go to trial will depend on the likelihood that
discovery of the evidence would have led counsel to change his recommendation as to the
plea.” Id. “This assessment, in turn, will depend in large part on a prediction whether the
evidence likely would have changed the outcome of a trial.” Id.; accord Lambert, 393 F.3d
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at 982–83 (“Where the alleged error is counsel’s failure to investigate a potential defense,
the salient inquiry is whether discovery of the evidence would have led counsel to change
his recommendation as to the plea. . . . [T]he result of this inquiry may depend on whether
the defense would have likely succeeded at trial.”) (cleaned up).
Regardless of whether trial counsel was deficient in failing to challenge the
statements about the hyoid bone or financial gains, Petitioner fails to show that he was
prejudiced. See United States v. Botelho, 453 F. App’x 744, 745 (9th Cir. 2011) (“The court
need only consider one of the[] requirements [of cause and prejudice] if it is dispositive of
the claim.”). Petitioner asserts that “had counsel fully investigated and presented this
evidence, [he] would have proceeded to trial on a viable self-defense theory or obtained a
more favorable plea offer.” (Doc. 1 at 15.) He claims that the statements advanced the
state’s theory of premeditated murder, by showing a motive of financial gain and proof of
multiple killing methods. (Id. at 10, 12.)
The record does not support Petitioner’s assertions of prejudice. First, although the
Medical Examiner found the “hyoid bone appears intact,” there was extensive evidence of
blunt force trauma to the victim’s neck. (Doc. 11-11, Ex. EE, at 56.) The Medical Examiner
clearly listed a finding of “Possible Asphyxia” owing to the trauma and plastic garbage
bags that had been placed over the victim’s head and “‘sucked’ into the mouth.” (Id.) This
directly contradicts Petitioner’s assertions that there was “no evidence of strangulation of
asphyxiation.” (Doc. 1 at 13.) Indeed, it shows that even if counsel had discovered and
corrected the statements regarding the hyoid bone, there was other evidence of multiple
killing methods. Thus, it is unlikely that any error regarding this piece of evidence impacted
counsel’s advice regarding the plea, Petitioner’s decision to plead guilty, or his chance of
success at trial. See United States v. Silveira, 997 F.3d 911, 915–16 (9th Cir. 2021) (finding
no prejudice where petitioner failed to establish that counsel overlooked a viable defense,
and as such there was no reasonable probability that petitioner would have rejected the
plea).
Similarly, the intact hyoid bone does not prove Petitioner’s theory of self-defense
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as he suggests. As explained above, there was other, perhaps stronger evidence of multiple
killing methods, including the garbage bags that had been sucked into the victim’s mouth.
(Doc. 11-11, Ex. EE, at 56.) Petitioner claims that the victim’s two small dogs were
disturbing the victim’s body, as corroborated by a police report indicating the same, and
that was why he covered the victim’s head with the garbage bags.3 See (id. at 94–95); see
also (doc. 20-1 at 25.) But this does not negate the other evidence indicating asphyxiation,
including the findings of trauma to the victim’s neck, or the other evidence disproving self-
defense. See Lambert, 393 F.3d at 984 (“Given the overwhelming evidence of guilt and the
conclusions of the mental health experts, there was little chance that a defense [based on
the uninvestigated evidence] would have succeeded.”). Considering all the evidence
against him, counsel’s failure to correct statements about the hyoid bone was not
prejudicial.
As to the statements regarding the money he was receiving from the victim, any
potential error was similarly unprejudicial. Petitioner states that the theory of financial
motivation was used to show premeditation. See (doc. 1 at 10.) But as explained to
Petitioner during his settlement conference, premeditation can arise quickly. (Doc. 11-11,
Ex. GG, at 143–45.) And the state explained during the settlement conference that it had
two ways to show premeditation: financial motive and the multiple killing methods. (Id. at
146–48.) Additionally, there was evidence regarding previous threats Petitioner had made
towards his family.4 (Id. at 142–43.) The trial judge explained during the settlement
3 Petitioner included in his Third Petition for PCR a written statement he gave to PCR
counsel Sullivan. (Doc. 11-11, Ex. EE, at 93.) There he wrote that after he killed the victim,
“[o]ur two small dogs began pestering [the victim’s body]. Afraid they might, as I’ve heard
can happen, try to eat his body, I took measures to protect him. First I covered him with
trash bags and a foam tarp.” (Id. at 94.)
4 In his Motion to Amend his First Petition for PCR, Petitioner explained that in 2011
he “began harassing and threatening his parents with such severity that police intervention
was required despite Petitioner and his parents living several states away from each other.”
(Doc. 11-3, Ex. W, at 93–94.) These threats included severely antisemitic rhetoric, as
Petitioner explained he “became obsessed with the irrational belief that his adoptive parents
mistreated him as a child as part of a wider Jewish conspiracy.” (Id. at 93.) One email he
wrote to his parents included statements such as “I hate you,” “I only want to kill,” “I only
want to hurt you,” “I will finally, for the last time, exterminate all of your people,” and
“Holocaust revisited. Die all Jews. Die Kip and Dinah Libman.” (Id. at 94.) Petitioner
indicates that this behavior continued for several years. See (doc. 11-4, Ex. W2, at 3).
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conference that this could be used to show premeditation and motive as well. (Id.); see also
(id. at 161.) Thus, any potential error as to this claim alone was not likely to have impacted
either the decision to accept the plea, or the potential outcome of the trial. See Silveira, 997
F.3d at 915–16.
Even if counsel had discovered and corrected both the statements about the hyoid
bone and about Petitioner’s monthly allowance, there still is no evidence that, had
Petitioner gone to trial, he would have obtained a more favorable result. See Strickland,
466 U.S. at 694 (holding that to succeed on a claim of ineffective assistance of counsel, a
defendant must show a reasonable likelihood that the result of the proceeding would have
been different); Gurule v. Kernan, 1994 WL 443685, at *2 (N.D. Cal. Aug. 5, 1994) (“As
to the requirement of prejudice, petitioner must show that it is reasonably probable he
would have received a determination more favorable but for counsel’s unprofessional
error.”), aff’d, 60 F.3d 833 (9th Cir. 1995). As the trial judge explained to Petitioner during
his settlement conference, he was facing substantial prison time had he proceeded to trial.
(Doc. 11-11, Ex. GG, at 137–39.) Petitioner recognizes he accepted the plea because he
was “fearing a first-degree murder conviction with a natural life sentence.” (Doc. 1 at 11.)
He nevertheless claims that he would have rejected the plea or received a more favorable
plea offer if counsel had investigated this evidence. (Id. at 15.) But these bare assertions do
not amount to prejudice because it is unlikely, even with the corrections, that Petitioner
would have proceeded to trial and been successful. See Waldrep v. Ryan, 2019 WL
9240297, at *20 (D. Ariz. Dec. 20, 2019) (“The Court must assess the circumstances
surrounding the case to determine if the petitioner’s allegation that he would have
proceeded to trial is plausible.”), report and recommendation adopted, 2020 WL 2079191
(D. Ariz. Apr. 30, 2020).
Further, counsel’s alleged errors do not prove Petitioner’s theory of self-defense
because of the weight of the rest of the evidence and relative insignificance of these two
details. Thus, it is unlikely Petitioner would have rejected the plea because his proposed
defense would have been unlikely to succeed. See Weaver v. Palmateer, 455 F.3d 958,
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970–71 (9th Cir. 2006) (finding no prejudice where the proposed defense would have been
unlikely to succeed). Similarly, even if Petitioner had rejected the plea, it is not probable
he would have obtained favorable result.
Finally, there is no evidence suggesting Petitioner would have received a more
favorable plea had his counsel corrected these misstatements. As explained by the state
during the settlement conference, there were multiple ways to show premeditation separate
from any alleged error. (Doc. 11-11, Ex. GG, at 146–47.) The state could have shown
premeditation through the threats Petitioner made toward his family, the multiple killing
methods, the fact that the victim was likely already on the ground when Petitioner stabbed
him, and the potential financial motive. (Id. at 142, 146–47.) Indeed, the state had evidence
of a financial motive separate from the monthly allowance. (Id. at 146–47.) According to
the victim’s brother’s interview with police, the victim told Petitioner he was updating his
estate plan and planning on selling the house where he and Petitioner lived. (Doc. 11-10,
Ex. AA2, at 10–16.) This concerned Petitioner, who became increasingly concerned with
not having any place to live. (Id.) The state explained they could use this evidence to show
Petitioner was worried about the changing financial circumstances. (Doc. 11-11, Ex. GG,
at 146–47.) Thus, it is not reasonably probable Petitioner would have received a more
favorable plea based on statements about the hyoid bone or the allowance. See Strickland,
466 U.S. at 694.
Because Petitioner has failed to establish prejudice, his claim under Ground 2(a)
fails on the merits.
2. Ground 2(b): Trial Counsel’s Failure to Order a Psychiatric Evaluation.
In Ground 2(b), Petitioner claims that his trial counsel was ineffective for failing to
order a full psychiatric evaluation for Petitioner. (Doc. 1 at 12, 14.) This claim was raised
by Petitioner’s private PCR counsel in the Supplemental Petition for PCR during the first
set of PCR proceedings. (Doc. 11-4, Ex. W2, at 17–21); see (doc. 11-1, Ex. L, at 151, 157.)
The Superior Court held an evidentiary hearing to address this claim to determine if
Petitioner’s trial counsel or first PCR counsel were ineffective. (Doc. 11-1, Ex. L, at 151);
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(doc. 11-2, Ex. M, at 8.)
Following the evidentiary hearing, the Superior Court found that neither trial
counsel nor PCR counsel Hull acted below the standards of care, nor that any prejudice
ensued. (Doc. 11-2, Ex. M, at 162–63); (doc. 11-2, Ex. N, at 168.) The Arizona Court of
Appeals granted review but denied relief. (Doc. 11-2, Ex. Q, at 191–96.) The court found
that “the evidence shows that [Petitioner]’s trial counsel sought relevant information and
made a reasoned, strategic decision not to obtain a full mental health evaluation.” (Id. at
195.)
This court’s review of a § 2254 claim asserting ineffective assistance of counsel is
doubly deferential. See Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (explaining that in
a 28 U.S.C. § 2254 case, deference is due both to defense counsel’s performance and to the
state court’s ruling). A habeas court reviewing a claim of ineffective assistance of counsel
must determine “whether there is a reasonable argument that counsel satisfied Strickland’s
deferential standard, such that the state court’s rejection of the IAC claim was not an
unreasonable application of Strickland.” Murray v. Schriro, 746 F.3d 418, 465–66 (9th Cir.
2014) (cleaned up). “Relief is warranted only if no reasonable jurist could disagree that the
state court erred.” Id. at 466.
Petitioner does not argue that either state court made an unreasonable decision.
Rather, he restates his assertion that trial counsel’s conduct “fell below prevailing
professional norms,” thereby prejudicing Petitioner. (Doc. 1 at 15.) But for this Court to
grant relief, Petitioner must show that the state court was unreasonable in rejecting his
claim. Murray, 746 F.3d at 465. Petitioner makes no such argument.
Regardless, the Court finds that the Court of Appeals was not objectively
unreasonable in upholding the trial court’s dismissal of Petitioner’s ineffective assistance
of counsel claims. Trial counsel arranged for a psychologist to meet with Petitioner while
he was in jail as part of a preliminary investigation. See (doc. 11-2, Ex. M, at 56, 109, 137.)
Petitioner relies on trial counsel’s handwritten notes from his phone call with that
psychologist, in which trial counsel wrote, “pull records and then get full evaluation b/c.”
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(Doc. 1-1 at 33.) Trial counsel clarified these notes during the evidentiary hearing,
testifying that the preliminary psychologist instructed him to gather all of Petitioner’s
mental health records before proceeding with a full mental health evaluation. (Doc. 11-2,
Ex. M, at 139–40.) Counsel further explained, “[The psychologist] didn’t specifically tell
me you absolutely should pursue a [guilty except insane] evaluation here.” (Id. at 140.)
“Strickland recognized that an attorney’s duty to provide reasonably effective
assistance includes the ‘duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.’” Howard v. Clark, 608 F.3d
563, 569 (9th Cir. 2010) (quoting Strickland, 466 U.S. at 691). Following a reasonable
investigation, counsel’s decision not to investigate further is tactical and generally left to
their discretion. See Hendricks v. Calderon, 70 F.3d 1032, 1039 (9th Cir. 1995) (finding
counsel was not ineffective for failing to further investigate defendant’s mental health after
experts who evaluated the defendant found no grounds for a mental health defense);
Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable[.]”).
The Arizona Court of Appeals found trial counsel’s performance was not deficient.
(Doc. 11-2, Ex. Q, at 195.) Citing Strickland, the Court of Appeals explained that counsel
was not required to make a “complete investigation.” (Id. at 194.) By hiring the initial
psychologist and reviewing Petitioner’s mental health records, the Court of Appeals found
that trial counsel reasonably investigated Petitioner’s mental health and thus did not fall
below the standard of care. (Id. at 195.) This was a reasonable application of Strickland,
which requires reasonable investigation into a defendant’s mental health when there is
evidence of impairment. See Hendricks, 70 F.3d at 1039; cf. Evans v. Lewis, 855 F.2d 631,
636 (9th Cir. 1988) (finding counsel was ineffective for failing to investigate the
defendant’s mental health at all when there was evidence of impairment).
The Court of Appeals further found that counsel did not fall below the standard of
care when he did not obtain a full mental health evaluation of Petitioner. (Doc. 11-2, Ex.
Q, at 195.) Trial counsel explained during the evidentiary hearing that the psychologist
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who conducted the initial evaluation did not say clearly that a full evaluation was necessary.
See (doc. 11-2, Ex. M, at 140.) Additionally, counsel explained that he believed further
investigation could ultimately harm, not aid, Petitioner’s case, and might foreclose a self-
defense argument that he and Petitioner wanted to raise. See (doc. 11-2, Ex. Q, at 193); see
also (doc. 11-2, Ex. M, at 148.) Thus, the Court of appeals found that the decision not to
obtain a complete evaluation was a “reasoned, strategic decision.” (Doc. 11-2, Ex. Q, at
195.) This was not an unreasonable application of Strickland. See, e.g., Rompilla v. Beard,
545 U.S. 374, 383 (2005) (“[R]easonably diligent counsel may draw a line when they have
good reason to think further investigation would be a waste.”); Dixon v. Ayers, 627 F.
App’x 598, 600–01 (9th Cir. 2015) (finding counsel was not ineffective for not further
investigating defendant’s mental health after receiving reports indicating that the defendant
was incompetent but potentially faking his mental illness, and believing that a mental
health defense was unlikely to succeed).
Because trial counsel acted reasonably, the state courts were not unreasonable in
their application of Strickland. As such, Petitioner is not entitled to relief on this claim.
c. Grounds Three, Four, and Five: Ineffective PCR Counsel.
In Ground Three, Petitioner argues PCR counsel Sullivan was ineffective for
“failing to raise the involuntary plea and false evidence claims, and by failing to present
mental health mitigation.” (Doc. 1 at 15.) Petitioner does not specify his allegation that
PCR counsel Sullivan was ineffective or what he believes she should have done differently.
Petitioner claims PCR counsel Sullivan should have brought up the alleged misstatements
he raised in Ground One, namely, the statements about the hyoid bone and monthly
allowance. See (id.) He also asserts that Sullivan should have objected further to both
evidence that was introduced and evidence that was excluded during the evidentiary
hearing regarding Petitioner’s mental health. See (id. at 12.)
In Ground Four, Petitioner argues PCR counsel Zhivago was ineffective for failing
“to file a petition for review to the Arizona Supreme Court after relief was denied . . .
despite promis[ing]” to do so. (Id. at 16.)
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In Ground Five, Petitioner argues PCR counsel Stearns, the attorney who
represented Petitioner from the OLA, was ineffective for “failing to investigate and present
the newly discovered evidence of false state claims.” (Id.) (cleaned up.) Petitioner seems
to suggest that he wrote letters to Stearns outlining claims to raise against his trial counsel
in a PCR petition. (Id.) Nevertheless, Stearns proceeded to file a Notice of No Colorable
Claims. (Id.)
Ineffective assistance of PCR counsel is not a ground for relief in a federal habeas
proceeding. 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254.”). Because “[t]here is no constitutional right to an
attorney in state post-conviction proceedings . . . a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings.” Coleman, 501 U.S. at 752 (internal
citations omitted); accord Martinez, 566 U.S. at 17 (“[Section] 2254(i) precludes
[petitioner] from relying on the ineffectiveness of his postconviction attorney as a ground
for relief.”) (cleaned up); Speer v. Thornell, 2023 WL 2503733, at *82 (D. Ariz. Mar. 14,
2023) (“The ineffective assistance of PCR counsel is not cognizable as an independent
constitutional claim.”), appeal dismissed on other grounds.
Because Grounds Three, Four, and Five all argue ineffective assistance of PCR
counsel, which is not a ground for relief in a federal habeas proceeding, these claims all
fail.
d. Ground Six: Timeliness.
In Ground Six, Petitioner asserts that his habeas petition is timely as it was filed
within one year of the state court mandate. (Doc. 1 at 16.) The mandate issued on August
26, 2024. See (id.); see also (doc. 11-2, Ex. R, at 198.) Respondents do not dispute that the
present habeas petition is timely. (Doc. 11 at 5–6.) Further, the Court agrees that the habeas
petition, filed on July 7, 2025, was filed within one year of the mandate. Therefore, the
petition is timely.
//
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e. Ground Seven: Actual Innocence.
In Ground Seven, Petitioner asserts that he is actually innocent under the standard
set forth in Schlup v. Delo, 513 U.S. 298 (1995), and thus qualifies for the actual-innocence
gateway. (Doc. 1 at 17.) Specifically, he asserts that the alleged new evidence regarding
the hyoid bone and financial motivation would make it such that no reasonable juror would
convict him. (Doc. 1 at 17); see (doc. 20 at 7.)
To avoid a miscarriage of justice, the habeas statute of limitations does not preclude
“a court from entertaining an untimely first federal habeas petition raising a convincing
claim of actual innocence.” 28 U.S.C. § 2244(d)(1). To establish a “credible” claim of
actual innocence, a petitioner must present “new reliable evidence” and “show that it is
more likely than not that no reasonable juror would have convicted him in the light of the
new evidence.” Schlup, 513 U.S. at 324, 327; see also Jones v. Taylor, 763 F.3d 1242,
1247 (9th Cir. 2014) (“In order to pass through the Schlup actual innocence gateway, a
petitioner must demonstrate that in light of new evidence, it is more likely than not that no
reasonable juror would have found the petitioner guilty beyond a reasonable doubt.”)
(cleaned up).
A guilty plea does not, by itself, preclude a finding of actual innocence under
Schlup. See Bousley v. United States, 523 U.S. 614, 623–24 (1998) (applying the actual
innocence test to a defendant who pleaded guilty); Vosgien v. Persson, 742 F.3d 1131,
1134–37 (9th Cir. 2014) (same). However, it does make such a finding more difficult. See
Chestang v. Sisto, 522 F. App’x 389, 390 (9th Cir. 2013) (finding petitioner’s guilty plea
“seriously undermine[d]” a claim of actual innocence).
Here, Petitioner has not established that “no reasonable juror would have convicted
him in the light of the new evidence.” Schlup, 513 U.S. at 327. Even considering the
evidence regarding the hyoid bone and financial motivation, there was other evidence to
establish guilt of second-degree murder. There was other evidence of multiple killing
methods, such as the bags placed over the victim’s head and the threats Petitioner made
against his family. See (doc. 11-11, Ex. GG, at 142–47.) This evidence could have been
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used to show premeditation. Nor is it likely that this new evidence would have proven that
Petitioner acted in self-defense, again because of the rest of the evidence against him
(including that of multiple killing methods, and the evidence that the victim was on the
ground when Petitioner stabbed him). See (id. at 142–48.). Because there was sufficient
evidence for a guilty verdict, and it is unlikely his self-defense theory would have
succeeded, it is possible a reasonable juror would have convinced Petitioner regardless of
the “new” evidence. See Schlup, 513 U.S. at 327. Accordingly, Petitioner fails to qualify
for the actual-innocence gateway.
In any case, as explained above, the Court finds that Petitioner’s claims fail on the
merits regardless of whether they are procedurally defaulted. Thus, even if Petitioner did
qualify for the actual-innocence gateway under Schlup, his claims still fail.
IV. Conclusion.
The record is sufficiently developed and the Court does not find that an evidentiary
hearing is necessary to resolve this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041
(9th Cir. 2011). The Court finds that Petitioner’s claims are procedurally defaulted, without
merit, or non-cognizable. The Court will therefore recommend that the Petition for Writ of
Habeas Corpus (doc. 1) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (doc. 1) be DENIED and DISMISSED WITH
PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave
to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a
substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2);
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
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. The
parties shall have 14 days from the date of service of a copy of this Report and
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Recommendation within which to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days
within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report
and Recommendation. See Fed. R. Civ. P. 72.
Dated this 2nd day of April, 2026.
Honorable John Z. Boyle
United States Magistrate Judge
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