Petition for Writ of Certiorari — Gary Lane Eisenmann, Petitioner v. Ryan Thornell, Director, Arizona Department of Corrections, et al.

Supreme Court briefMar 23, 2026

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Case: 25-3713, 12/04/2025, DktEntry: 18.1, Page 1 of 1

FILED

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY LANE EISENMANN, named as

Gary Eisenmann and Gary L Eisenmann,

Petitioner - Appellant,

No. 25-3713

DEC 4 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

D.C. No. 2:23-cv-02285-ROS

District of Arizona,

Phoenix

ORDER

RYAN THORNELL, Director of the

Arizona Department of Corrections,

Rehabilitation and ATTORNEY

GENERAL OF THE STATE OF

ARIZONA,

Respondents - Appellees.

Before:

HURWITZ and BRESS, Circuit Judges.

The court has considered all filings submitted by appellant in support of his

request for a certificate of appealability (“COA”). The request for a COA (Docket

Entry No. 7) is denied because appellant has not shown that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.

473,484 (2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S.

134? 140-41 (2012); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

All pending motions and requests are denied as moot.

DENIED.

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Gary Lane Eisenmann,

Petitioner,

Ryan Thomell, et al.,

No. CV-23-02285-PHX-ROS

ORDER

Respondents.

Petitioner Gary Lane Eisenmann filed a petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. (Doc. 1). Magistrate Judge Deborah M. Fine filed a Report and

Recommendation (“R&R”) finding the petition should be denied. (Doc. 25). Petitioner

filed objections (Doc. 28), and Respondents responded (Doc. 32). The Court will adopt

the recommendation of Magistrate Judge Fine as set forth below.

Factual Background

On November 28,2016, after a 29-day trial in the Maricopa County Superior Court,

a jury convicted Petitioner of one count of conspiracy, one count of illegal control of an

enterprise, one count of participation in a criminal syndicate, one count of money

laundering in the first degree, one count of fraudulent schemes and artifices, seven counts

of burglary in the first degree, seven counts of discharge of a firearm at a structure, five

counts of theft, three counts of theft of means of transportation, six counts of burglary in

the second degree, two counts of fraudulent use of a credit card, four counts of theft of a

credit card or obtaining a credit card by fraudulent means, two counts of receipt of anything

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of value obtained by fraudulent use of a credit card, three counts of theft, one count of

fraudulent use of a credit card, one count of receipt of anything of value obtained by

fraudulent use of a credit card, four counts of taking identity of another, four counts of

theft, one count of theft, one count of receipt of anything of value obtained by fraudulent

use of a credit card, one count of aggravated taking the identity of another, one count of

fraudulent use of a credit card, three counts of use of wire communication or electronic

communication in drug related transactions, and six counts of theft. (Doc. 19, Ex. KK, at

4—15). And on November 29, 2016, after waiving a jury trial, the trial judge found

Petitioner guilty of 19 counts of misconduct involving weapons. (Exs. LL; NN at 86).

At sentencing, the trial court imposed several concurrent prison terms, the longest

of which was 25 years with 1,656 days of presentence incarceration credit. (Exs. PP; QQ;

RR). On March 3, 2017, Petitioner filed a timely notice of appeal in both matters. (Ex.

SS). In his jury trial, Petitioner filed an opening brief asserting his convictions for theft,

theft of means of transportation, taking the identity of another, and aggravated taking the

identify of another violated the prohibition against double jeopardy. (Ex. W). In his

bench trial case, Petitioner’s counsel filed an Anders brief, (Ex. YY), and Petitioner

subsequently filed a pro per supplemental brief where he raised the following issues: (1)

whether the trial court erred in denying Petitioner’s motion to suppress/dismiss regarding

no judicial order; (2) whether the affidavit for a court-ordered wiretap complied with the

necessity requirement of A.R.S. § 13-3010(B)(3); (3) whether the Deputy County

Attorney’s application for a wiretap complied with A.R.S. § 13-3010(B)(2); (4) whether

search warrant number “2012-008515” particularly described the place to be searched and

established probable cause; (5) whether search warrant number “2012-007841” established

probable cause; (6) whether the search of vehicles not described on a warrant were legally

searched; (7) whether substantial evidence was presented to prove guilt beyond a

reasonable doubt; (8) whether counts 2 through 10 in the indictment in case number

CR2014-001133-001 were “multiplicitous”; (9) whether counts 11 through 19 in the

indictment in case number CR2012-0093 81-001 fairly informed Petitioner of the charges

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against him; and (10) whether the dangerous offense definition was properly submitted to

the jury (Id. Ex. ZZ at 8-55).

On October 18, 2018, the Arizona Court of Appeals issued a consolidated

memorandum decision regarding both cases rejecting Petitioner’s pro se arguments. (Id. at

3). In considering the arguments raised by Petitioner’s appellate counsel, the court of

appeals modified Petitioner’s convictions and sentences in case number CR2012-009381-

001 by (1) merging the counts for theft and for theft of means of transportation, (2) vacating

Petitioner’s convictions and sentences for theft of means of transportation, (3) merging the

counts for taking the identity of another with the count for aggravated taking the identity

of another, and (4) vacating Petitioner’s convictions and sentences for taking the identity

of another.

convictions and sentences in both cases. (Id.). Petitioner did not file a motion for

reconsideration in the court of appeals or a petition for review to the Arizona Supreme

Court. (Id. at 15). With regard to his bench trial convictions, the court of appeals denied

his claim that the trial court erroneously denied his suppression motion. (Id. at 9-10).

(Id.).

The court of appeals otherwise affirmed Petitioner’s remaining

On October 25, 2018, Petitioner initiated his first post-conviction proceeding, and

the Maricopa County Superior Court granted his request to file an additional supplemental

petition in addition to his counsel’s PCR Petition. (See Exs. EEE; FFF). In the PCR

Petition, Petitioner’s defense counsel argued (1) Petitioner’s appellate counsel was

ineffective for failing to raise a deficiency in the wiretap application that violated his Fourth

Amendment rights; and (2) Petitioner’s appellate counsel was ineffective for failing to

preserve a Carpenter issue.1 Additionally, Petitioner filed his own pro per PCR petition,

alleging the following issues:

3(a).

The trial court violated his right to counsel because he was

forced to choose between incompetent counsel or no counsel.

Maricopa County was the incorrect venue for his convictions on

Counts 48, 50, 56 and 59.

The use of a court order approving the interception/search of

1 Carpenter v. United States, 585 U.S. 296 (2018).

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3(b).

4(a).

4(b).

4(c).

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the stolen cell phone that led to the discovery of his identity

was fundamental error because no court order existed.

His appellate counsel was ineffective for failing to challenge

that the court order approving the interception/search of the

stolen cell phone that led to the discovery of his identity was

missing.

The State’s use of cell site data location was fundamental error

because it lacked foundation.

The State violated his Sixth Amendment right to confront the

author of the warrants by intentionally suppressing the

evidence.

His appellate counsel was ineffective for failing to challenge

that the warrant lacked foundation.

The State and Arizona department of corrections entered into a

contractual agreement to convict him for profit.

The trial court lacked subject-matter jurisdiction based on its

pecuniary interest in convicting him.

(Ex. HHH, at 3-28). The Maricopa County Superior Court dismissed Petitioner’s

PCR proceeding. (Ex. OOO). First, the court found that Petitioner was precluded from

reliefunder Ariz. R. Crim. P. 32.2 on all of his supplemental claims except the subject-

matter jurisdiction and ineffective assistance of appellate counsel arguments because he

could have raised those other claims on direct appeal. (Id. at 2). The court then denied his

subject-matter jurisdiction claim finding it was conveyed to the superior court in felony

matters by the Arizona Constitution. (Id. at 3). The court further rejected his IAC of

appellate counsel on the cell site location maps claim, finding he was given the opportunity

to file a supplemental brief in his appeal and did so, but failed to raised the issue on appeal.

(Id.).

admitted without foundation.”

counsel on the wiretap authorization and affidavit claim, finding no prejudice. (Id. at 3-4).

The court rejected his motion for reconsideration, see Ex. QQQ, and Petitioner filed

Preclusion aside, the court found he “failed to establish that the evidence was

(Id.). Finally, the court rejected his IAC of appellate

a petition for review to the Arizona Court of Appeals, raising the following issues:

Whether the trial court erred by allowing evidence at trial that

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the State obtained through an unlawful search without judicial

approval.

Whether the trial court erred by admitting cell site location data

without foundation.

Whether the wiretap application violated his Fourth Amendment

rights.

Whether the trial court err in denying his suppression motion

when the wiretap application was insufficient.

The trial court violated his right to counsel of choice.

The PCR court erred by denying his venue claim.

Appellate counsel was ineffective for failing to preserve the

Carpenter issue.

The PCR court erred by denying his subject-matter jurisdiction

claim that the trial court had a pecuniary interest in his

conviction.

(Ex. RRR at 1-2). The Arizona Court of Appeals granted review but denied relief

finding no abuse of discretion. (Ex. UUU). The Arizona Supreme Court then denied

Petitioner’s petition for review. (Exs. VW; WWW).

On November 2, 2023, Petitioner filed his federal habeas petition, raising nine

grounds and sub-grounds for relief. (Docs. 1,2).

II.

Analysis

The Magistrate Judge’s R&R recommends the Court deny Petitioner’s habeas

petition. (Doc. 25). A district judge “may accept, reject, or modify, in whole or in part,

the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). The

district court must review de novo the portions to which an objection is made. Id. The

district court need not, however, review the portions to which no objection is made, see

Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003), or where an objection

merely repeats arguments raised in the habeas petition, see Scott v. Shinn, 2021 WL

5833270, at *4 (D. Ariz. Dec. 9, 2021) (“Petitioner’s objections largely amount to his

repeating the same arguments he raised in his habeas petition and reply... . This approach

is impermissible—at this stage of the proceedings, Petition must identify specific flaws in

the R&R’s reasoning, not simply repeat his earlier arguments.”). Further, “[i]ssues raised

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for the first time in objections to the magistrate judge’s recommendation are deemed

waived.” Williams v. Ryan, 2019 WL 4750235, at *5 (D. Ariz. Sept. 30, 2019). Petitioner

filed an objection to the R&R. (Doc. 28). Respondents filed a response to the objection.

(Doc. 30). For the reasons set forth below, the R&R will be adopted in full.

A. Procedural Default

The R&R concluded Grounds (1), (2)(b), (4)(b) and (c), and (6) are procedurally

r 7

defaulted without excuse for the following reasons. As to Ground (1), the R&R found

because Petitioner failed to present his claim to the Arizona Court of Appeals on direct

appeal, the Ground (1) claim was not exhausted. As to Grounds (2)(b), (4)(b) and (c), and

(6), the R&R found because Petitioner failed to present his claims to the Arizona Court of

Appeals in his PCR proceedings where he was required to raise such claims, the Grounds

(2)(b), (4)(b) and (c), and (6) claims were not properly exhausted. The Court considers

each objection below.

ft/

>{y

Ground (1)

In Ground (1) of the Petition, Petitioner argues the state and trial court tried

Petitioner in the wrong venue and deprived Petitioner of his Sixth Amendment right to be

tried in the district where the crime was committed. (Doc. 1 at 6; Doc. 2 at 5-9). The R&R

found Petitioner failed to present his Ground (1) to the Arizona Court of Appeals in a

procedurally appropriate manner on direct appeal. (Doc. 25 at 20). In his objection,

Petitioner argues he presented his Ground (1) claim during direct appeal when he asked the

Arizona Court of Appeals in the conclusion section of his pro per supplemental brief—

which was in his misconduct-involving-weapons appeal—to “review the issue of Yavapai

burglaries being tried in Maricopa County.” (Doc. 28 at 5; Doc. 19-7 at 147).

But this brief reference on direct appeal did not sufficiently present the federal legal

or constitutional basis for his objection presented herein. Castillo v. McFadden, 399 F.3d

993, 999 (requiring a description of “both the operative facts and the federal legal theory

on which [a] claim is based so that the state courts [could] have a ‘fair opportunity’ to apply

controlling legal principles to the facts bearing upon [the] constitutional claim’) (quoting

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Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003) (first alteration in original)).

Additionally, Petitioner attempts to preserve Ground (1) by presenting this venue claim as

one of subject-matter jurisdiction, which could be raised at any time. (Doc. 28 at 6—10).

But as the United States Supreme Court has found, venue and subject-matter jurisdiction

are not the same:

[V]enue and subject-matter jurisdiction are not concepts of the same order.

Venue, largely a matter of litigation convenience, is waived if not timely

raised. Subject-matter jurisdiction, on the other hand, concerns a court s

competence to adjudicate a particular category of cases; a matter far

weightier than venue, subject-matter jurisdiction must be considered by the

court on its own motion, even if no party raises an objection.

Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006) (internal citations omitted);

see also Mohave Cnty. v. James R. Brathovde Fam. Tr., 928 P.2d 1247, 1250 (Ariz. Ct.

App. 1996) (“Venue is not jurisdictional, but is a privilege which is personal and can be

waived if not asserted.”). In lower court proceedings, Petitioner presented a separate

subject-matter jurisdiction claim based on whether Arizona judges had jurisdiction over

him because of a pecuniary interest. (Doc. 19-10, at 28; 19-12 at 78). He has not presented

that claim to this Court. Thus, Ground (1) is procedurally defaulted.

ii.

Ground (2)(b)

In Ground (2)(b) of the Petition, Petitioner asserts that his appellate counsel was

ineffective for failing to discover that a court order was missing that approved an

“interception/search” that led investigators to Petitioner. (Doc. 2 at 13-14). The R&R

found Petitioner’s Ground (2)(b) claim was not properly exhausted because he failed to

present his claim to the Arizona Court of Appeals in his PCR proceedings. (Doc. 25 at 21).

In his objection, Petitioner seemingly generally objects to the R&R’s finding, concluding

that he raised these specific federal claims several times in state court. (Doc. 28 at 13).

But he does not present any substantive argument or citation to the record to support this

conclusion, rendering his objection meaningless. See Warling v. Ryan, 2013 WL 5276367,

*2 (D. Ariz. 2013) (“Because de novo review of an entire R&R would defeat the

efficiencies intended by Congress, a general objection ‘has the same effect as would a

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failure to object.’”) (citations omitted); Haley v. Stewart, 2006 WL 1980649, *2 (D. Ariz.

2006) (“[G]eneral objections to an R&R are tantamount to no objection at all.”). Thus,

Ground (2)(b) is procedurally defaulted.

iii.

^5*^*5

Grounds (4)(b) and (6)

In Ground Four (b) of the Petition, Petitioner asserts that he was denied his Sixth

Amendment rights to confrontation and compulsory process, such that he could not

establish the state’s Fourth Amendment violations.

Relatedly, in Ground (6), Petitioner asserts he “was deprived of his Sixth Amendment right

to an impartial jury of the relevant district” because the state and state court provided

“improper and prejudicial jury instructions that diminished the State’s burden.” (Doc. 1 at

11; Doc. 2 at 35-37). The R&R found Petitioner failed to present both his Ground (4)(b)

and (6) claims to the Arizona Court of Appeals in his PCR and thus both claims are

procedurally defaulted. (Doc. 25 at 22-23). In his objection, Petitioner attempts to

challenge the R&R findings that he did not sufficiently present these claims by asserting

he cited to ample federal law, including the Fourteenth Amendment, to preserve the claim.

(Doc. 28 at 20, 28-29). But the R&R rejected this argument, finding on both Grounds

(4)(b) and 6 that neither Petitioner’s general appeals to due process nor his citation of state

law cases established the specific federal legal or constitutional basis for Grounds (4)(b)

and (6). (Doc. 25 at 21-23). Thus, Grounds (4)(b) and (6) are procedurally defaulted.

(Doc. 1 at 9; Doc. 2 at 27-29).

B. Non-Cognizability

In Ground (2)(a0, Petitioner argues that his Fourth Amendment right against

unreasonable searches and seizures was violated “with the requirements of actual stated

‘probable cause’ with ‘particularity’ by the State intentionally violating Tittle [sic] III and

State laws.” (Doc. 1 at 7; Doc. 2 at 9-20). In Ground (3), Petitioner argues the state

violated Article I, Section 1 of the Constitution by unconstitutionally delegating authority

to unelected officials, illegally used a wiretap, and used the data obtained from an illegal

wiretap to obtain additional warrants. (Doc. 1 at 8; Doc. 2 at 20-24). In Ground (4)(a),

Petitioner asserts that the state failed to establish the foundation for cell site location data

Cell yTe.

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introduced in Petitioner’s case. (Doc. 2 at 24—27, 30—31). In Ground (4)(b), Petitioner

asserts he was deprived of his Sixth Amendment right to confrontation and compulsory

process, such that he was prevented from establishing the state’s Fourth Amendment

violations. (Doc. 1 at 9; Doc. 2 at 27-31). In Ground (5), Petitioner asserts that he was

deprived of procedural due process. (Doc. 1 at 10; Doc. 2 at 31-34).

A'Z4’

The R&R found that Petition Grounds (2)(a), (3), (4)(a) and (b), and (5) are barred

by Stone v. Powell, 428 U.S. 465 (1976), which held that “where the State has provided an

opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may

not be granted federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.” 428 U.S. at 494-95. (Doc.

25 at 28-32). The R&R found Petitioner failed to demonstrate he was, not afforded an

adequate hearing on his Fourth Amendment claims in Grounds (2)(a), (3), and (4)(a) (Doc.

25 at 29), and Grounds (4)(b) and (5) were merely recharacterizations of the

aforementioned claims (Doc. 25 at 31).

s>eX5^’

eeMt

In his objection, Petitioner challenges these findings on the basis that he did not

have a full and fair opportunity to litigate his claims. (Doc. 28 at 11, 15—18, 19—20, 24—

27). But the R&R correctly rejected these arguments when he presented them in his reply,

finding that “the record supports a finding that Petitioner did have ‘the opportunity to

litigate his claim[s]’ and that ‘he did in fact do so.’” (feoc. 25 at 31-32). And, as the R&R

recognized, Ninth Circuit precedent dictates the proper inquiry is “‘whether petitioner had

the opportunity to litigate his claim, not whether he did in fact do so or even whether the

claim was correctly decided.’” (Doc. 25 at 29-30) (quoting Newman v. Wengler, 790 F.3d

876, 880 (9th Cir. 2015)). A defendant has that opportunity when state law provides the

ability to move to suppress evidence on the basis that it was obtained in violation of the

Fourth Amendment. Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990). Thus, because

Petitioner had the opportunity to litigate his claim and did in fact file motions to suppress

evidence in the trial court, his claims are non-cognizable. (Doc. 25 at 30).

C. Merits

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Tn Ground (2)(b), Petitioner asserts his appellate counsel provided ineffective

assistance by failing to search the record and find “that the court order approving the

interception/search that led investigators to the Petitioner’s identity was missing.” (Doc. 2

at 13-14). In Ground (3)(c), Petitioner asserts his appellate counsel provided ineffective

assistance by failing to raise an issue regarding the foundation of cell site data evidence.

(Doc. 2 at 29-30).

The R&R found that Petition Grounds (2)(b) and (4)(c) fail on the merits. (Doc. 25

at 32). To the extent Petitioner objects to the R&R’s merit finding on Grounds 2(b) and

4(c), he is incorrect. (Doc. 28 at 11-14, 19). The record shows Petitioner had not met his

burden of proving that his appellate counsel was ineffective or that he had suffered

prejudice in either instance. (Doc. 25 at 36—37). And Petitioner has failed to identify

anything in the record to refute the R&R’s finding that Appellate counsel s decision to

pursue stronger, and ultimately more successful, arguments over weaker ones [did] not

constitute deficient performance” under Strickland v. Washington, 466 U.S. 668 (1984).

(Doc. 25 at 37).

Accordingly,

IT IS ORDERED the R&R (Doc. 25) is adopted in full.

IT IS FURTHER ORDERED the Petition (Doc. 1) is DENIED and DISMISSED

WITH PREJUDICE.

IT IS FURTHER ORDERED Petitioner’s Motion for Certificate of Appealability

(Doc. 29) is DENIED because dismissal of the Petition is justified by a plain procedural

bar and reasonable jurists would not find the ruling debatable.

IT IS FURTHER ORDERED Petitioner’s Motion for Sanctions (Doc. 33) is

DENIED.

IT IS FURTHER ORDERED Petitioner’s Motion for Release on Own

Recognizance Due to Exceptional Circumstances (Doc. 36) is DENIED.

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IT IS FUTHER ORDERED the Clerk of Court shall enter judgment in

Respondent’s favor and close this case.

Dated this 6th day of June, 2025.

Senior United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Gary Lane Eisenmann,

Petitioner,

Ryan Thornell, et al.,

No. CV-23-02285-PHX-ROS (DMF)

REPORT AND RECOMMENDATION

Respondents.

TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES

DISTRICT JUDGE:

This matter is on referral to the undersigned for further proceedings and a report and

recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure

(Doc. 9 at 5).1

On November 1, 2023,2 Petitioner Gary Lane Eisenmann (“Petitioner”), who is

1 Citation to the record indicates documents as displayed in the official Court electronic

document filing system maintained by the District of Arizona under Case No. CV-2302285-PHX-ROS (DMF).

2 The Petition was docketed by the Clerk of Court on November 2, 2023 (Doc. 1). The

Petition was signed by Petitioner on November 1, 2023 (Id. at 13). This Report and

Recommendation uses November 1, 2023, as the operative filing date of the Petition.

Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (;‘A petition is considered to be filed

on the date a prisoner hands thepetition to prison officials for mailing.”); Melville v. Shinn,

68 F.4th 1154, 1159 (9th Cir. 2023) (affirming that the prison mailbox rule “applies to pro

se federal habeas petitions” on the date a petitioner signs, dates, and attests the petition was

S.laced in the prison mailing system); see also Rule 3, Rules Governing Section 2254 Cases

holding that petition is timely if deposited in prison mailing system on or before last day

or filing, which may be shown by “declaration in compliance with 28 U.S.C. § 1746 or by

a notarized statement”).

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confined in the Red Rock Correctional Center in Eloy, Arizona, filed a pro se Petition

under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non

Death Penalty) (“Petition”) (Doc. 1). With his Petition, Petitioner filed a Memorandum of

Points and Authorities (Doc. 2). On the same date, Petitioner filed a motion to appoint

counsel, a motion for evidentiary hearing, and a motion for discovery (Docs. 3, 4, 8).

On March 28,2024, the Court denied Petitioner’s motion to appoint counsel, motion

for evidentiary hearing, and motion for discovery, and ordered Respondents to answer the

Petition (Doc. 9 at 3-4). On June 20, 2024, Respondents filed their Answer to the Petition

(Doc. 19). On July 15, 2024, Petitioner filed a reply (Doci 20). Later in July 2024,

Petitioner filed a “Supplemental to Citation Trump v. United States, 2024 U.S. LEXIS (U.S.

July 1st, 2024)” (Doc. 21) and a “Second Supplemental to Citation, State of Oregon v.

Harris" (Doc. 22).

On October 15, 2024, Petitioner filed a second request for appointment of counsel

in a “Motion for Appointment of Counsel Due to Extraordinary Circumstances,” citing

serious health concerns that could interfere with his ability to represent himself in these

proceedings (Doc. 23). Despite the serious health concerns, Petitioner was able to file the

motion, which was organized and cogent (ZZ). Observing that the Petition was fully

briefed, the Court denied the motion without prejudice and noted that if “a hearing in front

of the District Judge is warranted, counsel will be appointed in accordance with Rule 8(c)

of the Rules Governing Section 2254 Proceedings” (Doc. 25).

For the reasons set forth below, it is recommended that the Petition be dismissed

and denied with prejudice without an evidentiary hearing, that the Clerk of Court be

directed to terminate this matter, and that a certificate of appealability be denied.

BACKGROUND

A. Charges, Convictions, and Sentences in Maricopa County Superior Court

Case Numbers CR2012-009381-001 and CR2014-001133-001

In its memorandum decision affirming Petitioner’s convictions and sentences as

modified in Maricopa County Superior Court case numbers CR2012-009381-001 and

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CR2014-001133-001, the Arizona Court of Appeals summarized the events leading to the

charges against Petitioner:

From May 2012 through August 2012, [Petitioner] and his codefendant

committea multiple burglaries at different residences. [Petitioner] broke into

these residences and stole property including guns, credit cards, and vehicles.

In one burglary, [Petitionerlstole a Toyota [4]runner, and in a later burglary,

he stole a 2008 Infiniti. [Petitioner] gave the stolen credit cards to his

codefendant who then usea them to purchase items in the respective victims’

names. During one of the burglaries, [Petitioner] stole a cellphone and used

it to call a phone belonging to him. The police tracked this phone call,

suspected [Petitioner] of the burglaries, and surveilled him. On August 21,

2012, the police pulled over a vehicle in which [Petitioner] was a passenger

and arrested him.

(Doc. 19-8 at 17-18).3

In case number CR2012-0093 81-001, a grand jury indicted Petitioner with 71

crimes: one count of conspiracy, a class 3 felony; one count of illegal control of an

enterprise, a class 3 felony; one count of participation in a criminal syndicate, a class 2

felony; one count of money laundering in the first degree, a class 2 felony; one count of

fraudulent schemes and artifices, a class 2 felony; seven counts of burglary in the first

degree, a class 2 dangerous felony; seven counts of discharge of a firearm at a structure, a

class 2 dangerous felony; fourteen counts of theft; three counts of theft of means of

transportation, a class 3 felony; nine counts of misconduct involving weapons, a class 4

felony; six counts of burglary in the second degree, a class 3 felony; four counts of

fraudulent use of a credit card, a class 1 misdemeanor; four counts of theft of a credit card

or obtaining a credit card by fraudulent means, a class 5 felony; four counts of receipt of

anything of value obtained by fraudulent use of a credit card, a class 1 misdemeanor; four

counts of taking identity of another, a class 4 felony; one count of aggravated taking

identity of another, a class 3 felony; and three counts of use of wire or electronic

communication in drug related transactions, a class 4 felony (Doc. 19-1 at 55-80).

In case number CR-2014-001133-001, a grand jury indicted Petitioner with fifteen

3 The state court’s stated facts are entitled to the presumption of correctness. See 28 U.S.C.

§ 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“In habeas

proceedings in federal courts, the factual findings of state courts are presumed to be

correct.”); Runningeagle v. Ryan, 686 F.3d 758,763 n. 1 (9th Cir. 2012) (rejecting argument

that the statement of facts in an Arizona Supreme Court opinion should not be afforded the

presumption of correctness).

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additional crimes: ten counts of misconduct involving weapons, a class 4 felony; and five

counts of theft, a class 6 felony (Id. at 82-89).

After initially consolidating case numbers CR2012-0093 81-001 and CR2014-

001133-001, the trial court severed Petitioner’s charges of misconduct involving weapons

under the indictment for case number CR2014-001133-001 (Id. at 91-92, 94-97, 122-27).

All of Petitioner’s remaining charges initially brought in both cases were included under

case number CR2012-009381-001 (Id. at 95, 99-120).

During pretrial proceedings through the trials in case numbers CR2012-0093 81-001

and CR2014-001133-001, Petitioner proceeded pro per with advisory counsel Milo

Iniguez (“advisory trial counsel”) (See, e.g., Doc. 19-1 at 94, 130, 263, 332,480; Doc. 19-

2 at 3,129, 1584). During sentencing proceedings in both cases, Petitioner was represented

by Milo Iniguez (“trial counsel”) (See id. at 1739).

Following a 29-day jury trial in case number CR2012-0093 81-001, Petitioner was

convicted of one count of conspiracy, one count of illegal control of an enterprise, one

count of participation in a criminal syndicate, one count of money laundering in the first

degree, one count of fraudulent schemes and artifices, seven counts of burglary in the first

degree, seven counts of discharge of a firearm at a structure, fourteen counts of theft, three

counts of theft of means of transportation, six counts of burglary in the second degree, four

counts of fraudulent use of a credit card, four counts of theft of a credit card or obtaining a

credit card by fraudulent means, four counts of receipt of anything of value obtained by

fraudulent use of a credit card, four counts of taking the identity of another, one count of

aggravated taking the identity of another, and three counts of use of wire or electronic

communication in drug related transactions (Doc. 19-2 at 1514-26).

For the charges against Petitioner of misconduct involving weapons in case number

CR2014-001133-001, Petitioner waived a jury trial (Id. at 1574). Following a bench trial,

the trial court found Petitioner guilty of 19 counts of misconduct involving weapons (Id. at

1583-1674).

On March 3, 2017, for the charges of conviction in both case numbers CR2012-

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009381-001 and CR2014-001133-001, the trial court sentenced Petitioner to concurrent

imprisonment sentences, the longest of which was 25 years with 1,656 days of presentence

incarceration credit (Id. at 1738-69; Doc. 19-3; Doc. 19-4; Doc. 19-5).

B. Direct Appeal

Petitioner timely appealed in case numbers CR2012-0093 81-001 and CR2014-

001133-001 (Doc. 19-7 at 2-5). On January 22, 2018, in case number CR2012-009381-

001, Petitioner’s appointed appellate counsel Kyle T. Green (“appellate counsel”) filed an

opening brief in the Arizona Court of Appeals (Id. at 20-39). Petitioner asserted that his

convictions for theft, theft of means of transportation, taking the identity of another, and

aggravated taking the identity of another violated double jeopardy (Id. at 27). A response

(Id. at 41-75) was filed conceding some of the issues raised, and a reply (Id. at 77-83) was

filed through Petitioner’s counsel.

On January 22, 2018, when Petitioner’s appellate counsel filed a substantive brief

in case number CR2012-009381-001, Petitioner’s appellate counsel also filed a brief in

case number CR2014-001133-001 pursuant to Anders v. California, 386 U.S. 738 (1967),

and State v. Leon, 104 Ariz. 297 (1969); (Id. at 85-90). In case number CR2014-001133-

001, Petitioner’s appellate counsel asserted that upon review of the record and applicable

law, communications with Petitioner, and communications with Petitioner’s advisory trial

counsel/trial counsel, counsel found no arguable issue for appeal (Id. at 89). Petitioner’s

appellate counsel requested leave for Petitioner to file a pro se supplemental brief in case

number CR2014-001133-001 and that the court of appeals search the record for

fundamental error (Id.).

On April 16,2018, Petitioner filed a pro se supplemental brief and raised ten issues,

which included issues relating to case number CR2012-0093 81-001: (1) whether the trial

court erred in denying Petitioner’s motion to suppress/dismiss regarding no judicial order;

(2) whether the affidavit for a court-ordered wiretap complied with the necessity

requirement of A.R.S. § 13-3010(B)(3); (3) whether the Deputy County Attorney’s

application for a wiretap complied with A.R.S. § 13-3010(B)(2); (4) whether search

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warrant number “2012-008515” particularly described the place to be searched and

established probable cause; (5) whether search warrant number “2012-007841” established

probable cause; (6) whether the search of vehicles not described on a warrant were legally

searched; (7) whether substantial evidence was presented to prove guilt beyond a

reasonable doubt; (8) whether counts 2 through 10 in the indictment in case number

CR2014-001133-001 were “multiplicitous”; (9) whether counts 11 through 19 in the

indictment in case number CR2012-0093 81-001 fairly informed Petitioner of the charges

against him; and (10) whether the dangerous offense definition was properly submitted to

the jury (Id. at 92-148). On July 16,2018 and August 7, 2018, Petitioner filed two motions

to supplement his pro se supplemental brief with additional case authority (Doc. 19-8 at 2-

11). On August 31, 2018, the court of appeals granted Petitioner’s request to supplement

his briefing with additional case authority (Id. at 13).

On October 18, 2018, the Arizona Court of Appeals issued a consolidated

memorandum decision regarding both cases in which the court of appeals rejected

Petitioner’s pro se arguments (Id. at 16-27). In considering the arguments raised by

Petitioner’s appellate counsel, the court of appeals modified Petitioner’s convictions and

sentences in case number CR2012-0093 81-001 by (1) merging the counts for theft and for

theft of means of transportation, (2) vacating Petitioner’s convictions and sentences for

theft of means of transportation, (3) merging the counts for taking the identity of another

with the count for aggravated taking the identity of another, and (4) vacating Petitioner’s

convictions and sentences for taking the identity of another (Id.). The court of appeals

otherwise affirmed Petitioner’s remaining convictions and sentences in both cases (Id.).

About Petitioner’s arguments relating to the information from the victim’s phone records,

the Arizona Court of Appeals stated:

[Petitioner] first argues that the superior court erred in denying his motion to

suppress evidence found through law enforcement's request to search the

phone records of one of the victims. He argues that he was an aggrieved

person under A.R.S. § 13-3015(c) and 18 U.S.C. § 2518(10)(a)(iii). “We

review a trial court's ruling on a motion to suppress for an abuse of

discretion.” State v. Peterson, 228 Ariz. 405, 407-08, 6 (App. 2011).

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If 24 Here, the superior court did not err in denying [Petitioner’s motion. In

the minute entry regarding the motion, the court noted that Petitioner

concedes in his motion that the request made by law

enforcement, which ultimately led police to [his] phone

number, was based on the victim's stolen cell phone. Since law

enforcement was using the victim's phone number to obtain

information and [Petitioner] did not own that phone or have

any legal right to that phone, he has no standing to object to

any information not properly or legally obtained.

Tf 25 We agree. [Petitioner] does not have standing to raise a legal objection

regarding the privacy rights of someone else's phone. See State v. Gortarez,

141 Ariz. 254, 259 (1984) (“[W]e note that appellant has no standing to

challenge the validity of tapes of telephone calls to which he was not a

party.”).

^f 26 [Petitioner] also makes several arguments that an affidavit for a courtordered wiretap, as well as an application for a wiretap, on the victim's phone

did not meet certain statutory requirements. The same legal reasoning applies

to [Petitioner]'s first argument: he has no standing to make legal arguments

regarding the victim's phone because he did not own that phone. Thus, the

court did not abuse its discretion in denying his motion.

(Doc. 19-8 at 23-24).

Petitioner did not file a motion for reconsideration in the court of appeals or a

petition for review to the Arizona Supreme Court (Id. at 15). On December 5, 2018, the

Arizona Court of Appeals issued its mandate (Id.).

C. Post-Conviction Relief (“PCR”) Proceedings

On October 21, 2018,4 Petitioner filed a pro se PCR notice in the superior court in

and requested the

case numbers CR2012-009381-001 and CR2014-001133-001

appointment of PCR counsel (Id. at 29-31).

appointed PCR counsel Mark Heath (“PCR counsel”) to file a PCR petition by May 14,

2021, and ordered that Petitioner would have until June 14, 2021, to file a pro se

4 The prison mailbox rule applies to Petitioner’s PCR notice. Melville, 68 F.4th at 1159

(“We assume that [Melville] turned his petition over to prison authorities on the same day

he signed it and apply the mailbox rule.’5 (quoting Butler v. Long, 752 F.3d 1177,1178 n.l

(9th Cir. 2014) (per curiam))).

The superior court ordered Petitioner’s

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supplemental brief (Id. at 33-34).

In Petitioner’s PCR petition filed through his PCR counsel (Doc. 19-9 at 2-127),

Petitioner argued that his appellate counsel was ineffective (1) for failing to raise a

deficiency in the wiretap applications that violated 18 U.S.C. § 2516(2) of Title III and

violated Petitioner’s Fourth Amendment rights as fundamental error as it was not raised in

the lower court (Id. at 15-22), and (2) for failing to raise and therefore preserve the issue in

Carpenter v. United States, 558 U.S. 296 (2018), which was decided while Petitioner’s

appeal was pending in the Arizona Court of Appeals (Id. at 22-24). Even so, on the second

claimed issue of ineffective assistance of appellate counsel, Petitioner’s counsel conceded

that it was unlikely that Petitioner’s conviction could be overturned due to the good faith

exception regarding the lack of a search warrant in the prz-Carpenter investigation of

Petitioner leading to Petitioner’s convictions (Id. at 23-24).

The state filed a response on September 2,2021 (Doc. 19-11 at 15-41), and Petitioner

filed a reply through his appointed PCR counsel October 27, 2021 (Id. at 43-48).

On June 24,2021, Petitioner also filed a pro se PCR petition and argued that (1) the

trial court violated Petitioner’s Sixth Amendment right to counsel, (2) that Maricopa

County was not the correct venue for four counts of crimes committed in Yavapai County,

(3) that no court order existed that authorized the interception of phone data that led to

Petitioner’s identity, and the use of the intercepted phone data and subsequent evidence

was fundamental error, (4) that Petitioner’s appellate counsel was ineffective for failing to

raise an issue that no court order approving the interception of phone data was in the record,

(5) that the state’s use of intercepted phone data without establishing foundation was

fundamental error, (6) that the state intentionally suppressed “pertinent evidence of who,

what, where, when, how, and/or why the ‘warrant(s)’ were obtained” and violated

Petitioner’s Sixth Amendment Confrontation Clause rights, (7) that his appellate counsel

was ineffective in failing to challenge the foundation of the phone data, (8) that the state

and the Arizona Department of Corrections unlawfully contracted with private prisons and

convicted Petitioner for profit, and that state judges and prosecutors had a financial interest

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in Petitioner’s conviction, and (9) that because the Arizona retirement plan for elected

officials was invested in private prisons, the Arizona state judges were extrajudicially

compensated for Petitioner’s convictions and had the potential for bias (Doc. 19-10 at 2-

224).

On August 10, 2021, Petitioner filed a supplemental pro se brief (Doc. 19-11 at 2-

13). The state filed a response in opposition (Id. at 50-64), and Petitioner filed a pro se

reply (Id. at 66-81), as well as a pro se addendum (Doc. 19-12 at 2-74).

On September 28, 2022,5 the superior court dismissed Petitioner’s PCR petitions,

finding that Petitioner had not raised any colorable claim for relief (Id. at 76-79). In doing

so, the superior court stated:

[PETITIONER’S] SUPPLEMENTAL PETITIONS

[Petitioner] raises several issues in his Pro-Per PCR that could have been

raised on appeal. Rule 32.2 precludes relief on claims that have been waived

on appeal. Except for his subject matter jurisdiction argument, and the

ineffective assistance of counsel arguments, [Petitioner] is precluded from

relief pursuant to Ariz. R. Crim. P. 32.2.

[Petitioner] asserts that this Court did not have subject matter jurisdiction

based upon his belief that judicial pensions create a pecuniary interest in

cases. [Petitioner] errs, subject matter jurisdiction is conveyed to this court

in felony matters pursuant to Article IV, Section 14 of the Arizona

constitution.

[Petitioner] assets [sic] that appellate counsel was ineffective for failing to

challenge the State use of cell site location maps without adequate

foundation. [Petitioner] represented himself at trial and had the opportunity

to object to the admission of evidence. Additionally, he was given the

opportunity to file a supplemental brief in his appeal and did so. He failed to

raise this issue on appeal and is therefore precluded from raising it now.

Preclusion aside, [Petitioner] has failed to establish that the evidence was

admitted without foundation.

To the extent [Petitioner] is challenging the emergency subpoena for records

from the victim’s phone, the Court of Appeals affirmed the trial court’s order

finding that [Petitioner] has “no standing to make legal arguments regarding

the victim’s phone...” State v. Eisenmann, 1CA-CR 17-0144 and 1 CA-CR

17-0155.

WIRETAP ISSUES

Both the [Petitioner] and his PCR attorney alleged ineffective assistance of

trial counsel for failing to challenge alleged deficiencies in the wiretap

5 The filing date is the operative date of the superior court’s ruling. See Ariz. R. Crim. P.

1.10(c) (See former Ariz. R. Crim. P. 1.3(c)).

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authorization and affidavit. In his first argument [Petitioner] asserted that the

State had not filed required authorizations. In nis Reply the [Petitioner’s]

attorney conceded that a review of the records established that the State did

file the required authorizations, therefore the issue was moot.

Next, [Petitioner] contends that the Arizona wiretap application process

followed here violated Federal law citing Villa v. Maricopa County, 865 F.3d

1442 (9th Cir. 2017), and that appellate counsel was ineffective for failing to

raise the issue on appeal. Villa was decided during the pendency of the

appeal. Villa requires that the principal prosecuting attorney must indicate as

part of the process, that he or she is personally familiar with the case and

believes that a wiretap is justified and should be issued. The issue before this

court is would a post hoc affidavit from the elected official indicating that he

personally reviewed and authorized every wiretap application satisfy the

Federal requirements.

The Arizona Court of Appeals addressed this issue in State v. Parise, IV,

1CR-CR 21-0333, a memorandum decision filed August 18, 2022. Although

Parise is a memorandum decision and not precedential, it is directly on point

to the issue raised here, and this court could find no other opinion that

adequately addresses the issue. Ariz. Sup. Ct. R. 111(c). In Parise the Court

of Appeals held that “[b]ecause the County Attorney’s ‘after-the-fact

affidavit confirming that he personally reviewed and approved the wiretap

application before submission meets the substantive requirement even

though the certification did not appear on the face of the application’, the

superior court properly found the Affidavit cured the Application’s facial

defect.” Parise citing Ferguson, 1 CA-CR 20-0117 at 5 (Ariz.App. June 22.

2021)(mem. decision). As the State notes, had appellate counsel raised a

Villa claim, the State would have provided an affidavit, indicating that the

County Attorney at the time personally reviewed every wiretap application

before submission, thus curing any error.

(Id. at 77-79).

Petitioner filed a motion for reconsideration (See id. at 88). On October 19, 2022,

the superior court denied Petitioner’s motion for reconsideration (Id.).

On November 2,2022, Petitioner filed a petition for review in the Arizona Court of

Appeals (Doc. 19-13 at 2-140; Doc. 19-14 at 2-152). In his petition for review, Petitioner

raised eight issues for review: (1) whether the trial court abused its discretion by admitting

evidence that the state obtained through an unlawful search and without judicial approval,

(2) whether the trial court abused its discretion in admitting cell site location data without

allowing effective cross-examination “of the author who sought” the cell site location data,

(3) whether the wiretap application violated Title III and the Fourth Amendment, (4)

whether the trial court abused its discretion in denying Petitioner’s challenge to the wiretap

application if the trial court knew that the wiretap application was insufficient, (5) whether

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the trial court abused its discretion in denying Petitioner relief regarding his right to counsel

of his choice, (6) whether the PCR court abused its discretion in allowing Petitioner to be

tried and convicted on Yavapai County crimes, (7) whether Petitioner’s appellate counsel

was ineffective in failing to preserve the Carpenter issue, and (8) whether the PCR court

abused its discretion in denying Petitioner’s claim that the trial court had a pecuniary

interest in Petitioner’s conviction (Doc. 19-13 at 12-13).

The state filed a response (Doc. 19-15 at 2-6), and Petitioner filed a reply (Id. at 8-

17). On May 11, 2023, the Arizona Court of Appeals granted review but denied relief,

finding that Petitioner had not established that the superior court abused its discretion in

denying Petitioner’s PCR petition (Id. at 20-21).

On May 30, 2023, Petitioner filed a petition for review in the Arizona Supreme

Court (Id. at 23-39). Petitioner argued that (1) phone data was illegally obtained and used;

(2) the application for wiretap was insufficient and the trial court denied Petitioner’s motion

to suppress; (3) elected officials unconstitutionally delegated authority to non-elected

officials; (4) the cell site location data was improperly obtained; (5) Petitioner’s appellate

counsel was ineffective for failing to preserve the Carpenter issue; (6) Petitioner’s Sixth

Amendment right to confrontation was denied; (7) Petitioner’s Fourth Amendment rights

were violated and the good faith exception to the exclusionary rule did not apply; (8) a

Hobson’s choice issue existed; and (9) venue in Maricopa County was improper for

Yavapai County crimes (Id. at 25-34).

On September 18,2023, the Arizona Supreme Court denied Petitioner’s petition for

review (Id. at 41). On October 18, 2023, the court of appeals issued its mandate to the

superior court (Id. at 19).

II.

PETITIONER’S HABEAS CLAIMS

In his November 2023 Petition and memorandum in support, Petitioner raises six

grounds for relief (Docs. 1,2). In Ground One, Petitioner asserts that his Sixth Amendment

right to be tried in the district where the crime was committed was violated because he was

tried in the wrong venue (Doc. 1 at 6; Doc. 2 at 5-9). Petitioner asserts that he was tried in

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Maricopa County for crimes committed in Yavapai County and that the state improperly

joined charges by alleging that the Yavapai County crimes were part of a Maricopa County

conspiracy (AZ.).

In Ground Two (a), Petitioner asserts that his Fourth Amendment right against

unreasonable searches and seizures was violated “with the requirements of actual stated

‘probable cause’ with ‘particularity’ by the State intentionally violating Tittle [szc] III and

State laws” (Doc. 1 at 7; Doc. 2 at 9-20). Petitioner argues that the state maliciously and

illegally obtained information from “one Carrier” and used the illegally-obtained

information as pretext to obtain warrants (Id.). Petitioner argues that the state courts abused

their discretion and unreasonably applied or directly contradicted relevant federal law (Id.).

In Ground Two (b), Petitioner asserts that his appellate counsel provided ineffective

assistance by failing to search the record and find “that the court order approving the

interception/search that led investigators to the Petitioner’s identity was missing” (Doc. 2

at 13-14).

In Ground Three, Petitioner argues that the state violated Article I, Section 1 of the

Constitution by unconstitutionally delegating authority to unelected officials, illegally used

a wiretap, and used the data obtained from an illegal wiretap to obtain additional warrants

(Doc. 1 at 8; Doc. 2 at 20-24). Petitioner argues that the state also used unsupported

affidavits to illegally obtain warrants and to conduct illegal searches and seizures (Id.)

In Ground Four (a), Petitioner asserts that the state failed to establish the foundation

for cell site location data introduced in Petitioner’s case (Doc. 2 at 24-27, 30-31). In

Ground Four (b), Petitioner asserts that he was deprived of his Sixth Amendment right to

confrontation and compulsory process, such that he was prevented from establishing the

state’s Fourth Amendment violations (Doc. 1 at 9; Doc. 2 at 27-31). Petitioner argues that

the trial court deprived him of “opportunities to adequately present arguments and evidence

of the State’s purposeful deprivation of Petitioner’s” constitutional rights (Id.). In Ground

Four (c), Petitioner asserts that his appellate counsel provided ineffective assistance by

failing to raise an issue regarding the foundation of cell site data evidence (Doc. 2 at 29-

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30).

Tn Ground Five, Petitioner argues that he was deprived of procedural due process

(Doc. 1 at 10; Doc. 2 at 31-34). Petitioner asserts that the state “knowingly, intelligently,

willfully, and purposefully, with malicious and criminal intent, violated the known and

relevant stare decisis concerning probable cause, warrants, exigent circumstances, etc. to

obtain ‘evidence’ illegally” (Id.). Petitioner asserts that the state court abused its discretion

and “ruled to allow the State, it’s case, to profit from the unconstitutional acts” (Id.).

Petitioner asserts that he had no opportunity for the state courts to review his Ground Five

claim on the merits (Id.).

In Ground Six, Petitioner asserts that he was deprived of his Sixth Amendment right

to an impartial jury of the relevant district because the state and state court provided

improper and prejudicial jury instructions and decreased the state’s burden, shifting the

“onus probandi” from the state to Petitioner (Doc. 1 at 11; Doc. 2 at 35-37). Petitioner

asserts that the court “purposefully misinformed the jury as to Arizona law relevant to

‘dangerous offenses’” (Id.).

deliberated about charges from a separate district and on the state court’s “mendacious

misrepresentation of Arizona law” (Id.).

Petitioner also argues that the jury unconstitutionally

In their Answer, Respondents argue that Grounds Two (a), Three, Four (a) and (b),

and Five of the Petition are barred by Stone v. Powell, 428 U.S. 465 (1976) (Doc. 19 at 17-

19). Respondents also argue that Grounds One, Two (b), Four (b) and (c), and Six are

procedurally defaulted without excuse and that Grounds Two (b) and Four (c) fail on the

merits (Id. at 19-39). Respondents request that a certificate of appealability be denied (Id.

at 39).

In reply, Petitioner asserts that the state courts failed to address Petitioner’s claims

regarding venue and subject matter jurisdiction and therefore violated due process (Doc.

20 at 1-3). Citing Trump v. United States, 144 S.Ct. 2312, 603 U.S.

argues that the state courts prejudicially refused to uphold state and federal statutes (Id. at

3). Petitioner argues that no subpoena was issued to Verizon or Sprint, only an “exigent

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circumstance” form; that the state misrepresented that no subpoena was issued; that the

court abused its discretion by ruling that Petitioner did not have standing to challenge data

from a victim’s phone; and that the unlawfully obtained phone data evidence was not

suppressed, in violation of Petitioner’s Fourth Amendment rights (Id. at 4-8). Petitioner

asserts that his claims are not precluded or procedurally defaulted because the state courts

failed to address Petitioner’s claims on the merits (Id. at 7-20). Petitioner asserts that his

Fourth Amendment claims are cognizable, that Petitioner’s appellate counsel refused to

present Petitioner’s Fourth Amendment claims, and that the state did not provide full and

fair litigation of Petitioner’s Fourth Amendment claims (Id. at 7). Petitioner reasserts that

the Maricopa County Superior Court was the improper venue for crimes committed in

Yavapai County, that Petitioner was deprived of his right to confrontation, that the state

had no good faith exception to the improper search and seizure of cell phone data, that

there was no judicial authorization or probable cause for the search and seizure of cell data,

and that evidence obtained unlawfully should have been suppressed (Id.). Petitioner asserts

that Grounds One and Six are not procedurally defaulted; that Grounds Two and Four are

not procedurally defaulted or barred by Stone v. Powell', that Respondents misrepresent the

facts by dividing Petitioner’s Grounds Two and Four claims into subparts; and that

Grounds Three and Five are not barred by Stone v. Powell (Id. at 21-49). Petitioner further

requests an evidentiary hearing on each ground of the Petition (Doc. 20-1 at 3).

On July 25, 2024, Petitioner filed a “Supplemental to Citation Trump v. United

States 2024 U.S. LEXIS (U.S. July 1st, 2024),” in which Petitioner argues that Trump v.

United States, 603 U.S.

were violated by the trial court’s failure to suppress “fruit of the poisonous tree” (Doc. 21).

On July 29, 2024, Petitioner also filed “Second Supplemental to Citation, State of Oregon

vs. Harris,” in relation to Petitioner’s Ground Three claim in the Petition (Doc. 22).

Petitioner asserts that pursuant to State v. Harris, 509 P.3d 83 (2022), and United States v.

Giordano, 416 U.S. 505 (1974), state officials may not delegate elected duties, such as an

application for a wiretap, to an unelected official (Id. at 1-2).

(2024), supports that Petitioner’s Fourth Amendment rights

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PROCEDURAL DEFAULT

In their Answer to the Petition, Respondents assert that Petition Grounds One, Two

(b), Four (b) and (c), and Six are procedurally defaulted without excuse. As discussed

below, Respondents are correct.

A. Legal Framework of Procedural Default

1. Exhaustion

A state prisoner must properly exhaust all state court remedies before this Court

may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan

v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991).

Arizona prisoners properly exhaust state remedies by fairly presenting claims to the

Arizona Court of Appeals in a procedurally appropriate manner. See O’Sullivan v.

Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.

1999). To be fairly presented, a claim must include a statement of the operative facts and

the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v.

Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.

1999) (“The mere similarity between a claim of state and federal error is insufficient to

establish exhaustion.”).

In Arizona, a petitioner must fairly present his claims to the Arizona Court of

Appeals by properly pursuing them through the state’s direct appeal process or through

appropriate post-conviction relief. See Swoopes, 196 F.3d at 1010; Roettgen v. Copeland,

33 F.3d 36, 38 (9th Cir. 1994); Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir.

2005). Fair presentment of claims to the Arizona Court of Appeals requires a description

of “both the operative facts and the federal legal theory on which [a] claim is based so that

the state courts [could] have a ‘fair opportunity’ to apply controlling legal principles to the

facts bearing upon [the] constitutional claim.” Castillo, 399 F.3d at 999 (quoting Kelly v.

Small, 315 F.3d 1063, 1066 (9th Cir. 2003) (first alteration in original)).

It is not fair presentment, for example, that “all the facts necessary to support the

federal claim were before the state courts ... or that a somewhat similar state-law claim

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was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation

omitted). It is also not enough to rely on a “general appeal to a constitutional guarantee as

broad as due process to present the ‘substance’ of such a claim to a state court.”

Netherland, 518 U.S. at 163; see also Castillo, 399 F.3d at 1002-03 (finding habeas

petitioner did not give the state appellate court a fair opportunity to rule on a federal due

process claim because “[e]xhaustion demands more than drive-by citation, detached from

any articulation of an underlying federal legal theory,” and the petitioner’s claim in state

court was a “conclusory, scattershot citation of federal constitutional provisions, divorced

from any articulated federal legal theory”).

Fair presentment is not achieved by raising the claim for “the first and only time in

a procedural context in which its merits will not be considered,” unless there are special

circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989). As example, raising a claim

for the first time in a discretionary petition for review to the Arizona Supreme Court or in

a special action petition is not sufficient to achieve fair presentment. See Casey v. Moore,

386 F.3d 896, 918 (9th Cir. 2004) (“Because we conclude that Casey raised his federal

constitutional claims for the first and only time to the state’s highest court on discretionary

review, he did not fairly present them.”) (footnote omitted).

2. Procedural Default

A corollary to the exhaustion requirement is the “procedural default doctrine.” The

procedural default doctrine limits a petitioner from proceeding in federal court where his

claim is procedurally barred in state court and “has its roots in the general principle that

federal courts will not disturb state court judgments based on adequate and independent

state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). If a petitioner

fails to fairly present his claim to the state courts in a procedurally appropriate manner, the

claim is procedurally defaulted and generally barred from federal habeas review. Ylst v.

Nunnemaker, 501 U.S. 797, 802-05 (1991). There are two categories ofprocedural default.

First, a claim may be procedurally defaulted in federal court if it was actually raised

in state court but found by that court to be defaulted on state procedural grounds. Coleman,

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501 U.S. at 729-30. This is called an express procedural bar. An express procedural bar

exists if the state court denies or dismisses a claim based on a procedural bar “that is both

‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s

decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860

(2002) (Arizona’s “Rule 32.2(a)(3) determinations are independent of federal law because

they do not depend upon a federal constitutional ruling on the merits”); Johnson v.

Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state strictly or

regularly follows its procedural rule).

Moreover, if a state court applies a procedural bar, but goes on to alternatively

address the merits of the federal claim, the claim is still barred from federal review. See

Harris, 489 U.S. at 264 n. 10 (“[A] state court need not fear reaching the merits of a federal

claim in an alternative holding. By its very definition, the adequate and independent state

ground doctrine requires the federal court to honor a state holding that is a sufficient basis

for the state court’s judgment, even when the state court also relies on federal law. ... In

this way, a state court may reach a federal question without sacrificing its interests in

finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573,

580 (9th Cir. 2003) (“A state court’s application of a procedural rule is not undermined

where, as here, the state court simultaneously rejects the merits of the claim.”) (citing

Harris, 489 U.S. at 264 n.10).

Second, the claim may be procedurally defaulted if the petitioner failed to present

the claim in a necessary state court and “the court to which the petitioner would be required

to present his claims in order to meet the exhaustion requirement would now find the claims

procedurally barred.” Coleman, 501 U.S. at 735 n.l; Boerckel, 526 U.S. at 848 (holding

that upon expiration of time for filing state court petition, petitioner’s failure to timely

present claims to state court results in a procedural default of those claims); Smith v.

Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (holding that failure to exhaust claims in

state court resulted in procedural default of claims for federal habeas purposes when state’s

rules for filing petition for post-conviction relief barred petitioner from returning to state

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court to exhaust his claims). This is called an implied procedural bar. Robinson v. Schriro,

595 F.3d 1086, 1100 (9th Cir. 2010). This type of procedural default is often referred to

as “technical” exhaustion because although the claim was not actually exhausted in state

court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A

habeas petitioner who has defaulted his federal claims in state court meets the technical

requirements for exhaustion; there are no state remedies any longer ‘available’ to him.”).

In Arizona, claims not properly presented to the state courts are generally barred

from federal review because an attempt to return to state court to present them is futile

unless the claims fit in a narrow category of claims for which a successive petition is

permitted. See former rules Ariz. R. Crim. P. 32.2(a) (precluding claims not raised on

appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.1(d)-(h),

32.9(c) (requiring petition for review to be filed within thirty days of trial court’s decision);

see also current rules Ariz. R. Crim. P. 32.4(b)(3) (time bar); Ariz. R. Crim. P. 32.1(b)

through (h) and 32.2(b) (permitting successive PCR proceedings on certain grounds and

specified circumstances); 32.16(a)(1) (petition for review must be filed within thirty days

of trial court’s decision).6

Arizona courts have consistently applied Arizona’s procedural rules to bar further

review of claims that were not properly raised on direct appeal or in prior Rule 32 post

conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (holding that determinations

made under Arizona’s procedural default rule are “independent” of federal law); Smith v.

Stewart, 241 F.3d 1191,1195 n.2 (9th Cir. 2000) (“We have held that Arizona’s procedural

default rule is regularly followed [or “adequate”] in several cases.”) (citations omitted),

6 Effective January 1,2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and

33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court

Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided

among the two new rules based on whether a defendant was convicted at trial (new Rule

32) or had pled guilty or no contest (new Rule 33). See id.', Pet. to Amend (Jan. 10, 2019),

at 4-5. New Rule 32 thus encompasses the rules applicable to a defendant’s right to seek

post-conviction relief when the defendant is convicted by trial. New Rule 32 and new Rule

33 apply to “all actions filed on or after January 1,2020,” and to “all other actions pending

on January 1,2020, except to the extent that the court in an affected action determines that

applying the rule or amendment would be infeasible or work an injustice, in which event

tne former rule or procedure applies.” Arizona Supreme Court Order No. R-19-0012.

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rev’d on other grounds, Stewart, 536 U.S. 856; State v. Mata, 916 P.2d 1035, 1050-52

(Ariz. 1996) (strictly applying waiver and preclusion rules in post-conviction proceedings).

A petitioner who fails to follow a state’s procedural requirements for presenting a valid

claim deprives the state court of an opportunity to address the claim in much the same

manner as a petitioner who completely fails to attempt to exhaust his state remedies. In

Arizona, “ineffective assistance of counsel claims should be raised in post-conviction relief

proceedings pursuant to rule 32, Arizona Rules of Criminal Procedure.” Lambright v.

Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001) (quoting State v. Atwood, 832 P.2d 593, 616

(Ariz. 1992)) (finding that failure to raise ineffective assistance of counsel claims on direct

appeal did not bar federal habeas review).

3. Excuse for Procedural Default

The Court may review a procedurally defaulted claim if the petitioner can

demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or

(2) a miscarriage of justice/actual innocence. Schlup v. Delo, 513 U.S. 298, 321 (1995);

Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). “Cause” is

something that “cannot be fairly attributable” to a petitioner, and a petitioner must show

that this “objective factor external to the defense impeded [his] efforts to comply with the

State’s procedural rule.” Coleman, 501 U.S. at 753 (citation and internal quotation marks

omitted). To establish prejudice a “habeas petitioner must show ‘not merely that the errors

at... trial created a possibility of prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional dimensions.’” Murray,

477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in

original)).

constitute anything other than a showing that the prisoner was denied ‘fundamental

fairness’ at trial.” Id.

“Such a showing of pervasive actual prejudice can hardly be thought to

The miscarriage of justice exception to procedural default “is limited to those

extraordinary cases where the petitioner asserts his [actual] innocence and establishes that

the court cannot have confidence in the contrary finding of guilt.” Johnson v. Knowles,

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541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual

innocenceAS'cA/i^ gateway, a petitioner must establish his or her factual innocence of the

crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623

(1998); Jaramillo, 340 F.3d at 882-83. Significantly, “[t]o be credible, [a claim of actual

innocence] requires petitioner to support his allegations of constitutional error with new

reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence.” Schlup, 513 U.S. at 324; see also Lee v. Lampert,

653 F.3d 929, 945 (9th Cir. 2011); McQuiggin v. Perkins, 569 U.S. 383, 399 (2013)

(explaining the significance of an “[u]nexplained delay in presenting new evidence”). A

petitioner “must show that it is more likely than not that no reasonable juror would have

convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting

Schlup, 513 U.S. at 327)). Because of “the rarity of such evidence, in virtually every case,

the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223

F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).

B. Exhaustion of Petitioner’s Claims

1. Ground One

In Ground One of the Petition, Petitioner argues that the state and trial court tried

Petitioner in the wrong venue and deprived Petitioner of his Sixth Amendment right to be

tried in the district where the crime was committed (Doc. 1 at 6; Doc. 2 at 5-9). Petitioner

asserts that crimes committed in Yavapai County should not have been tried in Maricopa

County Superior Court (Id.). Petitioner did not raise his Ground One claim in his direct

appeal of his convictions and sentences in the court of appeals, where he was required to

raise such. Swoopes, .196 F.3d at 1010. Although Petitioner raised his Ground One claim

in his PCR petition in the superior court, the superior court determined that Petitioner’s

Ground One claim was precluded for failure to be raised in his direct appeal, pursuant to

Ariz. R. Crim. P. 32.2 (Doc. 19-12 at 77). The court of appeals determined that the superior

court had not abused its discretion in denying Petitioner’s Ground One claim (Doc. 19-15

at 21). Because Petitioner failed to present his Ground One claim to the court of appeals

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in a procedurally appropriate manner during his direct appeal, Petitioner’s Ground One

claim was not exhausted. Swoopes, 196 F.3d at 1010.

2. Ground Two (b)

In Ground Two (b) of the Petition, Petitioner asserts that his appellate counsel was

ineffective for failing to discover that a court order was missing that approved an

“interception/search” that led investigators to Petitioner (Doc. 2 at 13-14). Petitioner did

not raise his Ground Tw?(bJ claim in his supplemental brief in his direct appeal of his

■

convictions and sentences in the court of appeals. Petitioner raised his Ground Two (b)

claim in his PCR petition in the superior court (Doc. 19-10 at 10-11). Petitioner did not

raise his Ground Two (b) claim in his PCR petition for review in the court of appeals,

where he was required to raise such. Swoopes, 196F.3datl010. Because Petitioner failed

to present his Ground Two (b) claim to the state court of appeals in his PCR proceedings,

Petitioner’s Ground Two (b) claim was not properly exhausted.

3. Ground Four (b)

In Ground Four (b) of the Petition, Petitioner asserts that he was denied his Sixth

Amendment rights to confrontation and compulsory process, such that he could not

establish the state’s Fourth Amendment violations (Doc. 1 at 9; Doc. 2 at 27-29). Petitioner

did not raise his Ground Four (b) claim in his direct appeal of his convictions and sentences

in the court of appeals. Although Petitioner asserted Fourth Amendment violations in his

direct appeal (see Doc. 19-7 at 106-38), Petitioner did not argue that he was denied his

Sixth Amendment rights to establish such Fourth Amendment violations. Petitioner argued

that various state misconduct deprived Petitioner “of Due Process of law, subsequently

leaving [Petitioner] to defend against illegally obtained evidence in violation of Statue and

Constitutional rights, both State and federal” (Id. at 116-17), but a “general appeal to a

constitutional guarantee as broad as due process” does not “present the ‘substance’ of such

a claim to a state court.” Netherland, 518 U.S. at 163. Because Petitioner failed to present

the federal legal or constitutional basis for his Ground Four (b) claim to the court of

appeals, Petitioner did not fairly present his Ground Four (b) claim to the court of appeals

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in his direct appeal, where he was required to raise such. McFadden, 399 F.3d at 999.

Further, although Petitioner raised his Ground Four (b) claim in his PCR petition in the

superior court (Doc. 19-10 at 16-20), the superior court determined that Petitioner’s

Ground Four (b) claim was precluded for failure to be raised in his direct appeal, pursuant

to Ariz. R. Crim. P. 32.2 (Doc. 19-12 at 77). Petitioner did not raise his Ground Four (b)

claim in his petition for review to the court of appeals.

Because Petitioner did not fairly present his Ground Four (b) claim to the court of

appeals in a procedurally appropriate manner, Petitioner’s Ground Four (b) claim was not

exhausted.

4. Ground Four (c)'X

In Ground Four (c) of the Petition, Petitioner asserts that his appellate counsel was

ineffective for failing to raise an issue regarding the lack of foundation for the cell site data

introduced at trial (Doc. 2 at 29-30). Petitioner raised his Ground Four (c) claim in his

PCR petition in the superior court (Doc. 19-10 at 18). The superior court determined that

Petitioner was precluded from raising his Ground Four (c) issue because Petitioner

“represented himself at trial and had the opportunity to object to the admission of

evidence^]” “was given the opportunity to file a supplemental brief in his appeal and did

so[,J” and failed to raise his Ground Four (c) issue in his direct appeal (Doc. 19-12 at 78).

Petitioner did not raise his Ground Four (c) claim in his PCR petition for review in the

court of appeals, where he was required to raise such. Swoopes, 196 F.3d at 1010. Because

Petitioner failed to present his Ground Four (c) claim to the state court of appeals as

required, Petitioner’s Ground Four (c) claim was not properly exhausted.

5. Ground Six

In Ground Six of the Petition, Petitioner asserts that he “was deprived of his Sixth

Amendment right to an impartial jury of the relevant district” because the state and state

court provided “improper and prejudicial jury instructions that diminished the State’s

burden” (Doc. 1 at 11; Doc. 2 at 35-37). Petitioner asserted in his direct appeal in the court

of appeals that the trial court provided improper instructions to the jury regarding a

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dangerous offense and that the failure to instruct the jury was prejudicial, deprived

Petitioner of a fair trial, and constituted fundamental error (Doc. 19-7 at 145-46). However,

Petitioner did not assert a federal legal or constitutional violation in his direct appeal, nor

do Petitioner’s cited state law cases address the federal constitutional basis of Petitioner’s

Ground Six claim. See State v. Schrock, 149 Ariz. 433, 440 (1986); State v. Hasson, 217

Ariz. 559, 559 (App. 2008); State v. Para, 120 Ariz. 26, 26 (App. 1978). Petitioner also

did not raise his Ground Six claim in his PCR petition in the superior court or in his petition

for review in the court of appeals. Because Petitioner did not fairly present the federal

legal or constitutional basis for his Ground Six claim to the court of appeals, where he was

required to raise_s.uch,. Petitioner’s Ground Six claim was not properly exhausted. See

McFadden, 399 F.3d at 999 (holding that fair presentment requires factual and legal bases

for claim).

C. Grounds One, Two (b), Four (b) and (c), and Six Are Procedurally

Defaulted Without Excuse

As set forth above, Grounds One, Two (b), Four (b) and (c), and Six are

unexhausted. Petitioner’s Grounds Two (b) and Six claims are implicitly procedurally

defaulted because it is too late under Arizona procedure for Petitioner to return to state

court to properly exhaust his claims. See Ariz. R. Crim. P. 32.2(a)(3)7 (defendant is

precluded from relief pursuant to Rule 32.1(a) that was waived on appeal or in previous

PCR proceedings); Ariz. R. Crim. P. 32.4(b)(3)(A) (claims filed pursuant to Rule 32.1(a)

must be filed within 90 days after oral pronouncement of sentence or 30 days after issuance

of mandate in direct appeal, whichever is later); Ariz. R. Crim. P. 32.1(b)-(h), 32.2(b)(1),

7 Arizona Rule of Criminal Procedure 32.2(a)(3) provides that PCR relief is precluded on

any claim “waived at trial or on appeal, or in any previous post-conviction proceeding,

except when the claim raises a violation of a constitutional right that can only be waived

knowingly, voluntarily, and personally by the defendant.” (emphasis supplied). The

italicized language was added to the rules in January 2020, but even under tne prior rule,

Arizona courts limited an exception to preclusion only in circumstances where “an asserted

claim is of sufficient constitutional magnitude.’’ Stewart v. Smith, 202 Ariz. 446, 449

(2002). The Arizona Supreme Court has instructed that examples encompassed by this

phrase include the right to counsel, the right to a jury trial, and the right to a twelve-person

jury. See id. Petitioner’s Grounds Two (b) and Six claims do not allege a violation of a

constitutional right that can only be waived knowingly, voluntarily, or personally by a

defendant.

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32.4(b)(3)(B) (allowing defendant to assert claims identified in Rule 32.1(b) through (h)

“within a reasonable time after discovering the basis for the claim”). Petitioner does not

argue that he is able to return to state court to present his unexhausted Grounds Two (b)

and Six claims, nor does the record support such an argument.

Further, Petitioner’s Grounds One, Four (b), and Four (c) claims are expressly

procedurally defaulted because the superior court applied a plain procedural bar (Doc. 19-

12 at 77). In Petitioner’s PCR proceedings, the superior court determined that ^‘[e]xcept

for his subject matter jurisdiction argument, and the ineffective assistance of counsel

arguments, [Petitioner] is precluded from relief pursuant to Ariz. R. Crim. P. 32.2” (Id.).

Ariz. R. Crim. P. 32.2 is “both ‘independent’ of the merits of the federal claim and an

‘adequate’ basis for the court’s decision.” Harris, 489 U.S. at 260; Murray v. Schriro, 745

F.3d 984,1016 (9th Cir. 2014) (finding Rule 32.2 both independent and adequate); Stewart,

536 U.S. at 859-60 (holding that Arizona’s Rule 32 determinations are independent of

federal law because they do not require evaluation of federal constitutional ruling).

Accordingly, Grounds One, Two (b), Four (b) and (c), and Six of the Petition are

unexhausted and procedurally defaulted.

D. Petitioner Fails to Establish Cause and Prejudice or Miscarriage of

Justice/Actual Innocence to Excuse the Procedural Default of Grounds One,

Two (b), Four (b) and (c), and Six

To excuse the procedural defaults of Grounds One, Two (b), Four (b) and (c), and

Six, Petitioner bears the burden of establishing either: (1) both cause and actual prejudice,

or (2) a miscarriage of justice/actual innocence. Coleman, 501 U.S. at 750.

1. Cause and Prejudice

In his Petition, Petitioner does not argue that any “objective factor external to the

defense” prevented him from asserting his Grounds One, Two (b), Four (b) and (c), and

Six claims in a procedurally appropriate manner in the court of appeals. Id. at 753. In his

reply in support of the Petition, Petitioner argues that his appellate counsel was ineffective

in failing to raise his Ground Six claim during Petitioner’s direct appeal of his convictions

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and sentences (Doc. 20 at 47-48). Petitioner asserts that he was prejudiced by appellate

counsel’s failure to present his Ground Six claim because the Court shifted the burden from

the state to Petitioner to disprove each element of A.R.S. § 13-105(13), a dangerous offense

conviction placed Petitioner in a new sentencing category, and Petitioner was precluded

from certain prison jobs, parole classes, and release categories due to being categorized as

a dangerous criminal (Id. at 48). Although the ineffective assistance of counsel in initial

collateral review proceedings can excuse the failure to present a claim of ineffective

assistance of trial counsel, Martinez v. Ryan, 566 U.S. 1, 9 (2012), Petitioner’s Ground Six

claim does not assert ineffective assistance of trial counsel. (See Doc. 1 at 11).

Furthermore, Martinez does not permit federal courts to consider procedurally defaulted

claims of ineffective assistance of appellate counsel absent a showing of cause and

prejudice. Davila v. Davis, 582 U.S. 521, 525 (2017); Richter v. Shinn, No. CV-20-00205-

TUC-CKJ (EJM), 2024 WL 863712, at *25 (D. Ariz. Feb. 29, 2024).

? 14

_Petitioner does not sufficiently explain his failure to properly present his Grounds

jQne^Two (b), Four (b) and (c), and Six claims during his direct appeal or during his state

' \Z

16,

/court PCRproceedings, Petitioner does not show that he could not raise his Grounds One,

Four (b), and Four (c) claims during his direct appeal, or that he could not raise his Grounds

Two (b) and Six claims during his PCR proceedings. The factual bases for Petitioner’s

Grounds One and Four (b) claims existed prior to Petitioner’s sentencing and prior to

Petitioner’s direct appeal, and the factual bases for Petitioner’s Grounds Two (b) and Four

the federal legal basis for Petitioner’s Grounds Four (b) and Six claims existed prior to

Petitioner’s sentencing and direct appeal. Although Petitioner asserted the factual bases

for his Grounds Four (b) and Six claims in the state court, Petitioner did not assert that his

Sixth Amendment rights were violated regarding either claim. Petitioner had the

opportunity to fairly present his claims in the state court of appeals in a procedurally

appropriate manner but did not do so.

Even if Petitioner could establish cause to excuse his procedural default of Grounds

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One, Two (b), Four (b) and (c), and Six, Petitioner has not shown that he suffered prejudice

or that any alleged constitutional violation “worked to his actual and substantial

disadvantage^]” Frady, 456 U.S. at 170. Accordingly, Petitioner has not established cause

and prejudice to excuse his procedural default of Grounds One, Two (b), Four (b) and (c),

and Six of the Petition.

2. Miscarriage ofJustice/Actual Innocence

As set forth above, the miscarriage of justice exception to procedural default “is

limited to those extraordinary cases where the petitioner asserts his [actual] innocence and

establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson,

541 F.3d at 937. To meet this exception to procedural default, Petitioner must “support his

allegations of constitutional error with new reliable evidencef,]” Schlup, 513 U.S. at 324,

and “must show that it is more likely than not that no reasonable juror would have convicted

him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513

U.S. at 327).

To his Petition, Petitioner attached his March 7, 2017, order of confinement (Doc.

1-1 at 3-10); the superior court’s March 10, 2017, sentencing order (Id. at 11-41); the court

of appeals’ October 18, 2018, memorandum decision in Petitioner’s direct appeal (Id. at

43-54); the superior court’s September 28, 2022, order dismissing Petitioner’s PCR

petition (Id. at 56-59); the superior court’s October 19, 2022, order denying Petitioner’s

objection and motion for reconsideration of the superior court’s dismissal of Petitioner’s

PCR petition (Id. at 61); the court of appeals’ May 11, 2023, memorandum decision

affirming the superior court’s dismissal of Petitioner’s PCR petition (Id. at 63-64); the

Arizona Supreme Court’s September 15, 2023, order denying Petitioner’s petition for

review (Id. at 66); the Arizona Supreme Court’s October 10, 2023, denying Petitioner’s

motion for reconsideration of Petitioner’s petition for review (Id. at 68-69); a transcript

excerpt from Petitioner’s jury trial on October 3, 2016 (Id. at 71-74); an August 3, 2012,

emergency information request to Verizon Wireless and associated cell data (Id. at 76-77,

79); an August 7, 2012, exigent circumstance requests form to Sprint (Id. at 81); a March

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3, 2016, certificate of records from Verizon Wireless (Id. at 83); Petitioner’s January 2016

motion to suppress superior court (Id. at 85-92); a transcript excerpt from a January 15,

2016, status conference in the superior court (Doc. 1-2 at 2-10); the superior court’s

February 3, 2016, order denying Petitioner’s motion to suppress and request for an

evidentiary hearing (Id. at 12-13); an excerpt from the state’s September 2,2021, response

to Petitioner’s PCR petition (Id. at 15-17); an August 21, 2012, affidavit for search warrant

number 2012-008515 (Id. at 19-38); an August 22, 2012, affidavit for search warrant

number 2012-007837 (Id. at 40-68); an August 22, 2023, affidavit for search warrant

number 2012-007841 (Id. at 70-93); an August 2, 2012, “Property Lists All DR’s” from

the Scottsdale Police (Id. at 93); and a transcript excerpt from Petitioner’s jury

trial/aggravating circumstances proceedings on November 29,2016 (Id. at 95-100). To his

reply in support of the Petition, Petitioner attached a July 20,2018, letter from his appellate

counsel (Doc. 20-1 at 6); a July 6, 2018, letter from Petitioner to his appellate counsel (Id.

at 7-9); photocopied excerpts of pages of definitions of jurisdiction and venue (Id. at 11,

13); excerpts from the Arizona Revised Statutes and Arizona Constitution, including

A.R.S. §§ 13-109, 21-401, and 21-407 (Id. at 15-16); a highlighted excerpt of the superior

court’s order dismissing Petitioner’s PCR petition (Id. at 18); a transcript excerpt from

Petitioner’s jury trial on October 3,2016 (Id. at 20-23); excerpts from the court of appeals’

decision in State v. Agnew, 132 Ariz. 567 (1982) (Id. at 25-29); July 23, 2015, annotated

emails from Sprint and Brandon Petermann (Id. at 31); a March 2016 certificate of records

from Verizon Wireless (Id. at 33); an August 3, 2012, emergency information request to

Verizon Wireless (Id. at 35-36); an August 7, 2012, form for exigent circumstances

requests (Id. at 38); a declaration from defense forensic cellular expert Michael O’Kelly in

support of Petitioner’s motion to suppress cell data evidence (Doc. 20-2 at 2-19); A.R.S. §

13-3015 (Id. at 21); an excerpt of 18 U.S.C. § 2518 (Id. at 23); an annotated copy of the

superior court’s February 2016 order denying Petitioner’s motion to suppress (Id. at 25-

26); an August 9,2012, application for search warrant number 2012-007399 (Id. at 28-33);

a December 2022 supplemental filing by Petitioner in the court of appeals (Doc. 20-3 at 2-

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4); Petitioner’s March 2018 motion for new counsel in the court of appeals (Id. at 6-14);

the court of appeals’ March 12, 2018, order denying Petitioner’s motion for new counsel

(Id. at 15-16); an excerpt from the superior court’s January 30, 2015, minute entry (Id. at

18); and the superior court’s January 2016, February 2015, and October 2015 orders

denying several of Petitioner’s motions (Id. at 19-22).

Petitioner does not allege, nor is it apparent from Petitioner’s attachments to the

Petition or the grounds in the Petition, that Petitioner is actually innocent. The state court

orders, minute entries, filings, and briefing attached to the Petition are not “new reliable

evidence” that would more likely than not prevent reasonable jurors from convicting

Petitioner. Schlup, 513 U.S. at 324. Petitioner’s attachments regarding search warrants

and emergency information and exigent circumstance requests existed prior to Petitioner’s

trial, sentencing, and direct appeal. Petitioner’s July 2018 letters to and from his appellate

counsel are not new evidence and existed prior to Petitioner’s state court PCR proceedings.

Moreover, Petitioner’s attachments of legal definitions and statutory excerpts are not new,

reliable evidence.

Petitioner argues in the Petition that evidence in his case was improperly obtained

and that the trial court lacked jurisdiction over the charges related to crimes committed in

Yavapai County, but Petitioner’s arguments are insufficient to establish actual innocence

that would excuse Petitioner’s procedural default of Grounds One, Two (b), Four (b) and

(c), and Six. See Bousley, 523 U.S. at 623-24 (requiring petitioner to establish factual

innocence, not mere legal insufficiency). Accordingly, Petitioner has not met his burden

to establish actual innocence that would excuse his procedural default of Grounds One,

Two (b), Four (b) and (c), and Six of the Petition.

IV.

NON-COGNIZABILITY

In their Answer to the Petition, Respondents assert that Petition Grounds Two (a),

Three, Four (a) and (b), and Five are barred by Stone v. Powell, 428 U.S. 465 (1976) (Doc.

19 at 17-19). Respondents assert that Petitioner had a full and fair opportunity to litigate

his Grounds Two (a), Three, Four (a) and (b), and Five claims in state court (Id.).

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A. Grounds Two (a), Three, and Four (a)

2 rel'MO In Ground Two (a), Petitioner argues that his Fourth Amendment right against

unreasonable searches and seizures was violated “with the requirements of actual stated

‘probable cause’ with ‘particularity’ by the State intentionally violating Tittle [vzc] III and

State laws” (Doc. 1 at 7; Doc. 2 at 9-20). Petitioner argues that the state maliciously and

illegally obtained information from “one Carrier” and used the information as pretext to

obtain future warrants (Id.). Petitioner argues that the state courts abused their discretion

and unreasonably applied or directly contradicted relevant federal law (Id.).

In Ground Three, Petitioner argues that the state violated Article I, Section 1 of the

Constitution by unconstitutionally delegating authority to unelected officials, illegally used

a wiretap, and used the data obtained from an illegal wiretap to obtain additional warrants

(Doc. 1 at 8; Doc. 2 at 20-24). Petitioner argues that the state also used unsupported

affidavits to illegally obtain warrants and to conduct illegal searches and seizures (Id.).

14 £<>1^ In Ground Four (a), Petitioner asserts that the state failed to establish the foundation

for cell site location data introduced in Petitioner’s case (Doc. 2 at 24-27,30-31). Petitioner

also argues that the state violated “Article I § 1 as a means to violate the Fourth

Amendment, so the state could persuade the trial court to abuse its discretion and rule to

violate the Fifth, Sixth, and Fourteenth Amendment protections[,]” including Petitioner’s

rights against unlawful search and seizure, to confrontation, to compulsory process, to due

process, to remain silent, to assistance of counsel, to privileges and immunities, and to

equal protection (Doc. 1 at 9).

In Stone v. Powell, the United States Supreme Court held that “where the State has

provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state

prisoner may not be granted federal habeas corpus relief on the ground that evidence

obtained in an unconstitutional search or seizure was introduced at his trial.” 428 U.S. at

494-95. A reviewing court must only consider “whether petitioner had the opportunity to

litigate his claim, not whether he did in fact do so or even whether the claim wasj;orrectly

decided.” Newman v. Wengler, 790 F.3d 876, 880 (9th Cir. 2015) (quoting Ortiz-Sandoval

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v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996)). The burden is on a petitioner to demonstrate

that “the state court did not afford him an adequate hearing on his Fourth Amendment

claim.” Woolery v. Arave, 8 F.3d 1325, 1328 (9th Cir. 1993).

„__ 4- —-^>^Petitionerha”s not demonstrated that he was'nofaffofded'an adequate hearing on his^

■■■■!

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Fourth Amendment claims in Grounds Two (a), Three, and Four (a). In Petitioner’s

Ue ---------------------6 / Ground Two (a), Three, and Four (a) claims, Petitioner challenges cell phone carrier and

cell site data, wiretaps, and warrants used in Petitioner’s case. Petitioner filed motions to

suppress evidence in the trial court, and the trial court denied Petitioner’s motions to'

suppress (See, e.g., Doc. 20-3 at 18-21).

—--------- — '~~

In support of his Ground Three arguinentTpetitioner filed a brief titled

“Supplemental to Citation Trump v. United States, 2024 U.S. LEXIS (U.S. July 1st, 2024)”

(Doc. 21). Petitioner also attached as an exhibit the cover page and pages 41-43 of Trump

v. United States, 603 U.S.

his argument from “pgs. 20-24 of Petitioner’s Habeas Brief’ and “ pgs. 35-37 of

Petitioner’s Reply Brief’ (Doc. 21 at 1; see Docs. 2,22). Trump stands for the proposition

that the President of the United States is immune from criminal prosecution for official acts

taken through constitutional authority. 144 S.Ct. at 2328. While this holding does bear on

the principle of separation of powers, it does not directly relate to Petitioner! sJhabeas

petition. Furthermore, Petitioner cites this case in support of his Fourth Amendment claim,

which, as discussed above, is non-cognizable (See Doc. 21 at 2). Therefore, Trump does

not grant Petitioner immunity, and it does not warrant a grant of his writ.

, 144 S.Ct. 2312 (2024). In this filing, Petitioner incorporates

Also supporting Petitioner’s Ground Three argument that “elected official’s

unconstitutionally delegated authority to un-elected officials” (Doc. 2 at 20-24), Petitioner

filed a “Second Supplemental to Citation, State of Oregon v. Harris” (Doc. 22). Although

the Harris court does address the federal wiretap statute 18 U.S.C. § 2516(2), the Oregon

Supreme Court’s interpretation of federal law is not mandatory authority over this or any

federal court. The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) only

allows petitioners relief on adjudicated claims that “resulted in a decision that was contrary

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to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme, Court of the Unitejd-S,taies_.” 28 U.S.C. § 2254(d)(1). As such,

this supplement does not move the Court’s analysis of Petitioner’s Ground Three argument.

Therefore, the record supports a finding that Petitioner did have “the opportunity to

litigate his claim[s]” and that “he did in fact do so.” Newman, 790 F.3d at 880. Because

Petitioner has not met his burden of showing that “the state court did not afford him an

adequate hearing,” this Court may not grant habeas relief based on his non-cognizable

Fourth Amendment claims. Woolery, 8 F.3d at 1328.

B. Grounds Four (b) and Five

In Ground Four (b), Petitioner asserts that he was deprived of his Sixth Amendment

right to confrontation and compulsory process, such that he was prevented from

establishing the state’s Fourth Amendment violations (Doc. 1 at 9; Doc. 2 at 27-31).

Petitioner argues that the trial court deprived him of “opportunities to adequately present

arguments and evidence of the State’s purposeful deprivation of Petitioner’s” constitutional

rights (Id.).

In Ground Five, Petitioner asserts that he was deprived of procedural due process

(Doc. 1 at 10; Doc. 2 at 31-34). Petitioner asserts that the state “knowingly, intelligently,

willfully, and purposefully, with malicious and criminal intent, violated the known and

relevant stare decisis concerning probable cause, warrants, exigent circumstances, etc. to

obtain ‘evidence’ illegally” (Id.). Petitioner asserts that the state court abused its discretion

and “ruled to allow the State, it’s case, to profit from the unconstitutional acts” (Id.).

Petitioner asserts that he had no opportunity for the state courts to review his Ground Five

claim on the merits (Id.).

-"S

recharacterizations of Petitioner’s non-cognizable Fourth Amendment claims (Doc. 19 at

17-18). In their response, Respondents argue:

Respondents assert that both Grounds Four (b) and Five are simply

But “[w]here a particular Amendment ‘provides an explicit textual source of

constitutional protection” against a particular sort of government behavior,

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js that evidence obtained in violation of the Fourth Amendment should have been

by the trial court. Petitioner’s invocation of both the Sixth Amendment and

1 due process cannot make cognizable otherwise non-cognizable Fourth

Page 32 of 42

. 19 at 18). Respondents are correct. In both Grounds Four (b) and Five, Petitioner

Filed 12/11/24

“that Amendment, not the more generalized notion of ‘substantive due

process,’ must be the guide for analyzing these claims.’” Albright v. Oliver,

510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395

(1989)). [Petitioner], therefore, cannot evade Stone by the mere expedient of

labeling a suppression claim as another claim. See Tarabochia v. Adkins, 766

F.3d 1115, 1129 (9th Cir. 2014) (stating that because “the stop” complained

of constitutes a “seizure,” it was proper to analyze the claim under the Fourth

Amendment “and not under the broader concept of substantive due process”).

Indeed, the substance of both of [Petitioner’s grounds make clear that at the

heart of his claim is a Fourth Amendment violation. Accordingly, these

grounds are also barred by Stone. Gilmore v. Marks, 799 F.2d 51, 57 (3d Cir.

1986) (stating that a habeas “petitioner may not cloak his or her Fourth

Amendment claim in due process clothing to circumvent Stone v. Powell”);

Ferron v. Goord, 255 F.Supp. 2d 127, 133 (W.D.N.Y. 2003) (rejecting

habeas petitioner’s “attempt to seek an end-run around Stone’s barrier to

habeas review by “‘transmogrifying’ his barred Fourth Amendment claim

" into a due process claim”) (internal quotation marks omitted).

Document 25

mt claims.

Petitioner has not met his burden of showing that “the state court did not afford him

Woolery, 8 F.3d at 1328.

adequate hearing on his Fourth Amendment claim.”

;refore, Petitioner’s Grounds Four (b) and Five are non-cognizable under Stone v.

veil, 428 U.S. at 465.

MERITS

Respondents assert that Grounds Two (b) and Four (c) fail on the merits (Doc. 19 at

7). As discussed below, Respondents are correct.

28 U.S.C. § 2254 - Legal Standard of Review

On habeas review of claims adjudicated on the merits in a state court proceeding,

is Court can only grant relief if Petitioner demonstrates that the state court’s adjudication

■ the claim either “(1) resulted in a decision that was contrary to, or involved an

treasonable application of, clearly established Federal law, as determined by the Supreme

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Court of the United States; or (2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d). This is a ‘“highly deferential standard for evaluating state-court

rulings’ which demands that state-court decisions be given the benefit of the doubt.”

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation omitted) (quoting

Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). A federal court “look[s] to the last

reasoned state court decision” to make a determination on a claim pursuant to Section

2254(d). White v. Ryan, 895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v. Sellers, 584

U.S. 122, 125-126 (2018)).

Under the “unreasonable application” prong of Section 2254(d)(1), a federal habeas

court may grant relief where a state court “identifies the correct governing legal rule from

[the Supreme] Court’s cases but unreasonably applies it to the facts of the particular . . .

case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new

context where it should not apply or unreasonably refuses to extend that principle to a new

context where it should apply.” Williams v. Taylor, 529 U.S. 362,407 (2000). For a federal

court to find a state court’s application of Supreme Court precedent “unreasonable” under

---- tS5

Section 2254(d)(1), the petitioner must show that the state court’s decision was not merely

incorrect or erroneous, JiutJlobiectively.unreasonable.” Id. at 409.

To make a determination pursuant to Section 2254(d)(1), the Court first identifies

the “clearly established Federal law,” if any, that governs the sufficiency of the claims on

habeas review. “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. Id. at 412. The Supreme Court has emphasized that “an unreasonable

application of federal law is different from an incorrect or erroneous application of federal

law.” Id. (emphasis in original). Under AEDPA, “[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.” Richter, 562 U.S. at 101.

Accordingly, to obtain habeas relief from this Court, Petitioner “must show that the state

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court’s ruling on the claim being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Id. at 103.

Regarding Section 2254(d)(2), a state court decision “based on a factual

determination will not be overturned on factual grounds unless objectively unreasonable in

light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537

U.S. 322, 340 (2003). A “state-court factual determination is not unreasonable merely

because the federal habeas court would have reached a different conclusion in the first

instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). As the Ninth Circuit has explained,

to find that a factual determination is unreasonable under Section 2254(d)(2), the court

must be “convinced that an appellate panel, applying the normal standards of appellate

review, could not reasonably conclude that the finding is supported by the record.” Taylor

v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogated on other grounds by Murray v.

Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). “This is a daunting standard—one that will

be satisfied in relatively few cases.” Id.

-16-

The petitioner bears the burden of rebutting the state court’s factual findings “by

clear and convincing evidence.” Section 2254(e)(1). The Supreme Court has not defined

the precise relationship between Section 2254(d)(2) and Section 2254(e)(1) but has

clarified “that a state-court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in the first instance.” See

Burt v. Titlow, 571 U.S. 12, 18 (2013) (citing Wood, 558 U.S. at 293, 301).

To prevail on an ineffective assistance of counsel (“IAC”) claim under clearly

established federal law, a petitioner must show that his counsel’s performance (1) was

objectively deficient, and (2) caused him prejudice. Strickland v. Washington, 466 U.S.

668, 687 (1984); Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (“There is no dispute that

the clearly established federal law here is Strickland v. Washington.”). In federal habeas

corpus review, this results in a “doubly deferential” review of counsel’s performance.

Applicable Law - Ineffective Assistance of Appellate Counsel (“IAAC”)

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Pinholster, 563 U.S. at 190 (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 an IAC claim 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. Relief is warranted only

if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746

F.3d 418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted). Moreover,

“[a] court must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Strickland, 466 U.S. at 669. When review

of the Strickland test is under § 2254(d), “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.” Richter, 562 U.S. at 105. The Court has

discretion to determine which Strickland prong to apply first, and the failure to satisfy

either prong of the Strickland test obviates the need to consider the other prong. Strickland,

466 US. at 697.

This clearly established federal law extends to habeas claims where the petitioner

alleges IAAC. “Ineffective assistance of appellate counsel claims are evaluated under the

standard set forth in Strickland." Hurles v. Ryan, 188 F.Supp.3d 907, 921 (D. Ariz. 2016)

(citing Smith v. Robbins, 528 U.S. 259, 285 (2000)). The Ninth Circuit has iterated this

“familiar standard” as it applies to appellate counsel:

First, the petitioner must show that counsel's performance was objectively

unreasonable, which in the appellate context requires the petitioner to

demonstrate that counsel acted unreasonably in failing to discover and brief

a merit-worthy issue. Smith, 528 U.S. at 285, 120 S.Ct. 746; Wildman v.

Johnson, 261 F.3d 832, 841-42 (9th Cir.2001). Second, the petitioner must

show prejudice, which in this context means that the petitioner must

demonstrate a reasonable probability that, but for appellate counsel's failure

to raise the issue, the petitioner would have prevailed in his appeal. Smith,

528 U.S. at 285-86, 120 S.Ct. 746.

Moormann v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010).

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-0^

In Ground Two (b), Petitioner asserts that his appellate counsel provided ineffective

assistance by failing to search the record and find “that the court order approving the

interception/search that led investigators to the Petitioner’s identity was missing” (Doc. 2

at 13-14). In Ground Four (c), Petitioner asserts that his appellate counsel provided

ineffective assistance by failing to raise an issue regarding the foundation of cell site data

evidence (Doc. 2 at 29-30). Respondents assert that these grounds for habeas relief are

meritless because Petitioner failed to establish “that the state court’s rejection of these

claims was contrary to, nor involved an unreasonable application of, established Supreme

Court precedent, nor did it involve any unreasonable determination of facts” (Doc. 19 at

34), which the Petitioner disputes (Doc. 20 at 31, 38). As discussed below, Respondents

are correct.

Grounds Two (b) and Four (c) Fail on the Merits

Regarding the Ground Two (b) IAAC claim, Petitioner asserts:

Petitioner’s appellate attorney was ineffective by not raising this ground and

rel[y]ing on the Superior Court’s unreasonable determination of the facts.

Appellate attorney kept stating almost verbatim of the lower Courts order as

to why he could not challenge this ground. The Superior Court’s

unreasonable determination of the facts has had a domino effect throughout

Petitioner’s State appellate proceedings. Appellate attorney was ineffective

for not raising ground two for abuse of discretion.

(Doc. 20 at 31). However, Arizona appellate courts give “great deference” to trial courts’

factual determinations.

Acknowledging this deference by declining to bring a claim asking for a redetermination

of the facts as determined by the trial court “falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 669. Furthermore, Petitioner raised his

Two (a) claim in his pro se opening brief on direct appeal (Doc. 19-7 at 101). The court of

appeals specifically rejected this argument for lack of standing (Id. at 23-24). Therefore,

it cannot be said that Petitioner suffered any pre.iu.dike as a result of appellate counsel ’ s

decision to notraise this claim.

State v. Blackmore, 925 P.2d 1347, 1349 (Ariz. 1996).

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Regarding the Four (c) IAAC claim, Petitioner states, “Ground four was presented

to Petitioner’s direct appeal attorney, Kyle T. Green. Mr. Green would not address or argue

the issue. Mr. Green stated that he is not trying to deny me any rights, but stressed that he

is ethically allowed to file on issues that are colorable” (Doc. 20 at 38). Appellate counsel

is “under an ethical obligation to refuse to prosecute a frivolous appeal.” McCoy v. Ct. of

Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 436 (1988). The record undercuts the merits

of Petitioner’s claim that the state did not lay the foundation of cell site data evidence (See

Doc. 19-2 at 156-60, 167, 211-212). Specifically, the state presented evidence in the form

of a crime analyst’s testimony about the process of cell site extraction and a Sprint

engineer’s testimony about the Petitioner’s call records (Id.f. Appellate counsel’s decision

to pursue stronger, and ultimately more successful, arguments over weaker ones do not

constitute deficient performance.

To prevail on an IAAC claim, Strickland requires that Petitioner show that his

counsel’s performance was objectively deficient and also caused Petitioner prejudice. 466

U.S. at 687. Because Petitioner has failed to show that appellate counsel’s performance

was deficient or that he suffered any prejudice, he cannot show that appellate counsel fell

below the deferential standard set forth in Strickland. Therefore, Petitioner’s IAAC claims

do not show that the state court’s decision “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law” or “resulted in a

decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

VI.

EVIDENTIARY HEARING

In his memorandum in support of the Petition, Petitioner requests an evidentiary

hearing (Doc. 2 at 34). When Petitioner filed his Petition (Doc. 1) and memorandum in

support (Doc. 2), Petitioner also filed a motion for evidentiary hearing (Doc. 4) and a

motion for discovery (Doc. 8). In the Order directing service of the Petition, the Court

8 Notably, although he represented himself at the time, Petitioner offered no objection at

trial to the admission of the maps created by the crime analyst based on cell site data (Doc.

19-2 at 214). Nor did he object to the admission of the Sprint billing records associated

with his phone number (Id. at 160).

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found that Petitioner’s motions were premature, stating:

Petitioner should be aware that should any part of the record need to be

produced as part of resolving the Petition, the State is obligated to produce

those parts of the record relevant to their answer. Rule 5 of the Rules

Governing Habeas Corpus Cases. If Petitioner believes that additional

records will be necessary, he can move to have those portions added as part

of any reply in support of his Petition that he may file, or move for discovery

or a hearing at that time to supplement his claims for relief. Id.; see also Rules

6 and 7 of the Rules Governing Habeas Corpus Cases. In the meantime,

Petitioner’s Motions for Evidentiary Hearing and for Discovery will be

denied.

(Doc. 9 at 3). In a later filing urging the Court to deny an extension of time for Respondents

to answer the Petition, Petitioner stated that “(t]he record itself is enough to adjudicate

Petitioner’s case” (Doc. 16 at 1). In his reply, Petitioner repeatedly asserts that he has never

had a merits review of his claims (Doc. 20). Petitioner also repeatedly requests a hearing

regarding law enforcement’s having obtained cell phone records and data without a warrant

(AZ.).

AEDPA imposes “an express limitation on the power of a federal court to grant an

evidentiary hearing and [has] reduced considerably the degree of the district court’s

discretion.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999) (internal quotation

marks and citation omitted). Insofar as a petitioner requests an evidentiary hearing on

claims that were adjudicated on the merits in state court, “review under § 2254(d)(1) is

limited to the record that was before the state court that adjudicated the claim on the

merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011); see also Gulbrandson v. Ryan,

738 F.3d 976, 993 n.6 (9th Cir. 2013) (noting that the holding of Pinholster is also

applicable to § 2254(d)(2) claims). Because review under Section 2254(d)(1) “requires an

examination of the state-court decision at the time it was made[,] . . . the record under

review is limited to the record in existence at that same time i.e., the record before the state

court.” Id. at 182. Such a limitation “ensures that the ‘state trial on the merits’ is the ‘main

event, so to speak, rather than a tryout on the road for what will later be the determinative

federal habeas hearing.’”

Shoop v. Twyford, 596 U.S. 811, 819 (2022) (quoting

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Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (internal quotation marks omitted)).

Further, Title 28, section 2254(e)(2) of the United States Code “restricts the

discretion of federal habeas courts to consider new evidence when deciding claims that

were not adjudicated on the merits in state court.” Pinholster, 563 U.S. at 186 (citing

Williams v. Taylor, 529 U.S. 420, 427-29 (2000)). Section 2254(e)(2) provides that if a

habeas petitioner:

has failed to develop the factual basis of a claim in State court proceedings,

no evidentiary hearing will be held in federal court unless the petitioner

shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by

clear and convincing evidence that, but for constitutional error, no

reasonable fact-finder would have found the applicant guilty of the

underlying offense.

28 U.S.C. § 2254(e)(2); see also Shinn v. Ramirez, 596 U.S. 366, 389 (2022) (“[W]hen a

federal habeas court convenes an evidentiary hearing for any purpose, or otherwise admits

or reviews new evidence for any purpose, it may not consider that evidence on the merits

of a negligent prisoner’s defaulted claim unless the exceptions in § 2254(e)(2) are

satisfied.”).

Under applicable law and on the record before the Court, Petitioner is not entitled

to an evidentiary hearing. Petitioner has not demonstrated that his procedurally defaulted,

non-cognizable, and/or meritless claims meet the requirements of 28 U.S.C. § 2254(e)(2),

as he does not show that his claims rely on “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable” pursuant to 28 U.S.C. § 2254(e)(2)(A)(i). Nor does Petitioner present facts

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“that could not have been previously discovered through the exercise of due diligencef.]”

28 U.S.C. § 2254(e)(2)(A)(ii).

Petitioner asks specifically for “an evidentiary hearing to examine if the sufficiency

of probable cause support these three search warrants” (Doc. 2 at 34). In doing so,

Petitioner relies on Franks v. Delaware, 438 U.S. 154 (1978) and United State\s\ v.

Chesher, 678 F.2d 1353 (9th Cir. 1982). However, these cases address whether a criminal

defendant is entitled to a pretrial evidentiary hearing, not an evidentiary hearing to develop

facts during § 2254 habeas proceedings. Furthermore, both cases Petitioner cites were

decided before AEDPA and before the Supreme Court decided Shinn v. Ramirez, 596 U.S.

at 389.

“A federal court may never needlessly prolong a habeas case, particularly given the

essential need to promote the finality of state convictions, so a court must, before

facilitating the development of new evidence, determine that it could be legally considered

in the prisoner's case.” Shoop, 596 U.S. at 820 (internal quotation marks and citation

omitted)). As previously discussed in Section 11(C), supra, Petitioner’s Grounds One, Two

(b), Four (b) and (c), and Six are procedurally defaulted without excuse. Therefore, this

Court may not consider evidence on the merits of these claims. Id. Further, as discussed

in Section IV, Grounds Two (a), Three, Four (a), Four (b) and Five are non-cognizable in

habeas proceedings. Therefore, an evidentiary hearing to establish the facts of those claims

would be fruitless.

Petitioner’s Two (b) and Four (c) arguments, which fail on the merits, do not warrant

an evidentiary hearing. These IAAC claims allege no new rule of constitutional law, and

the factual predicates underlying these claims were completely known to Petitioner before

the filing of his PCR petition. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998)

(“It is axiomatic that when issues can be resolved with reference to the state court record,

an evidentiary hearing becomes nothing more than a futile exercise”); Schriro v.

Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant's factual

allegations or otherwise precludes habeas relief, a district court is not required to hold an

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evidentiary hearing”).

Petitioner has not met the requirements of 28 U.S.C. § 2254(e)(2), and the state

court record otherwise sufficiently resolves Petitioner’s habeas claims. An evidentiary

hearing in this matter is not appropriate.

VII.

CONCLUSION

For the reasons set forth above: Petitioner’s Grounds One, Two (b), Four (b) and

(c), and Six claims are procedurally defaulted without excuse; Petitioner’s Grounds Two

(a), Three, Four (a), Four (b), and Five are non-cognizable under Stone v. Powell', and

Petitioner’s Grounds Two (b) and Four (c) fail on the merits. Therefore, it is recommended

that the Petition be denied and dismissed with prejudice and that this matter be terminated.

Assuming the recommendations herein are followed in the District Judge’s

judgment, the undersigned recommends that a certificate of appealability be denied

because dismissal of Petitioner’s claims as set forth above is justified by a plain procedural

bar and reasonable jurists would not find the procedural ruling debatable, because

Petitioner has not “made a substantial showing of the denial of a constitutional right[,]”

and because jurists of reason would not find the Court’s rejection on constitutional grounds

of Petitioner’s claims to be “debatable or wrong.” 28 U.S.C. § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

IT IS THEREFORE RECOMMENDED that the Petition (Doc. 1) be dismissed

and denied with prejudice and that the Clerk of Court be directed to terminate this matter.

IT IS FURTHER RECOMMENDED that a Certificate of Appealability 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) of the Federal

Rules of Appellate Procedure should not be filed until entry of the District Court’s

judgment. The parties shall have fourteen days from the date of service of a copy of this

recommendation within which to file specific written objections with the Court. See 28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 6,72. The parties shall have fourteen days within which

-41 -

Case 2:23-cv-02285-ROS

Document 25

Filed 12/11/24

Page 42 of 42

to file responses to any objections. Failure to file timely 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 file timely objections to any factual

determination of the Magistrate Judge may be considered a waiver of a party’s right to

appellate review of the findings of fact in an order or judgment entered pursuant to the

Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72.

Dated this 10th day of December, 2024.

Honorable Deborah M. Fitie

United States MagistfateJudge

-42-

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

JAN 28 2026

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

GARY LANE EISENMANN, named as

Gary Eisenmann and Gary L Eisenmann,

Petitioner - Appellant,

No. 25-3713

D.C. No. 2:23-cv-02285-ROS

District of Arizona,

Phoenix

ORDER

RYAN THORNELL, Director of the

Arizona Department of Corrections,

Rehabilitation and ATTORNEY

GENERAL OF THE STATE OF

ARIZONA,

Respondents - Appellees.

Before:

GRABER and BRESS, Circuit Judges.

The motion (Docket Entry No. 19) for reconsideration en banc is denied. See

9th Cir. R. 27-10; 9th Cir. Gen. Ord. 6.11.

No further filings will be entertained in this closed case.

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.