Villalobos v. Attorney Gen.

• Decision Date: 10 February 2022
• Docket Number: CV-17-00633-PHX-DJH
• Parties: Joshua Idlefonso Villalobos, Petitioner, v. Attorney General of the State of Arizona, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Joshua Idlefonso Villalobos, Petitioner, v. Attorney General of the State of Arizona, et al., Respondents.

No. CV-17-00633-PHX-DJH

United States District Court, D. Arizona

February 10, 2022

ORDER

Diane J. Humetewa United States District Judge

This matter is before the Court on Petitioner Joshua Idelfonso Villalobos's (“Petitioner”) pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C § 2254 (Doc. 1) (“Petition”), filed on March 3, 2017. (Id. at 26). On May 20, 2021, United States Magistrate Judge Camille D. Bibles issued a Report and Recommendation (“R&R”) in which she recommended that the Petition be denied (Doc. 68). Represented by appointed counsel, Mr. Villalobos filed Objections (Doc. 73), to which Respondents Replied (Doc. 76).

I. Background^[1]

In an order affirming Petitioner's convictions and sentence the Arizona Supreme Court set forth the facts of Petitioner's case as follows:

Villalobos lived with Annette Verdugo, five-year-old Ashley Molina (Verdugo's daughter), and the couple's two-year-old daughter. On January 3, 2004, Villalobos and the children picked Verdugo up at work and took her to dinner. Ashley did not eat and complained about stomach pains. Villalobos and the children again picked Verdugo up from work after her shift ended in the early morning of January 4. When Verdugo noted an odd smell, Villalobos claimed he had vomited in the car.

When they arrived home, Villalobos carried Ashley upstairs and put her to bed. At approximately 7 a.m., Villalobos told Verdugo that Ashley was unresponsive. Ashley's body was cold and hard. Villalobos told Verdugo “they're going to think it's me, I was the only one with her.”

After some delay, Villalobos and Verdugo took Ashley to the hospital. The emergency room physician recognized immediately that Ashley was dead; she found “somewhere between 150 to 200 bruises” on Ashley's body. After Villalobos told the physician that the bruises were from a fall in the shower, Phoenix police were summoned. Villalobos was taken to the police station and given Miranda warnings. Villalobos denied hitting Ashley, and a detective asked him to take a polygraph examination. Villalobos agreed. During the examination, Villalobos initially denied injuring Ashley. When the polygrapher accused him of lying, Villalobos admitted that he had punched Ashley.

After the polygraph, a second detective resumed the interrogation. Villalobos admitted that, before Verdugo's dinner break, he had grabbed Ashley by the arm and hit her several times with a closed fist. Villalobos also said that Ashley had passed out in the car and then vomited on him while he was picking Verdugo up from work.

The medical examiner who conducted the autopsy later concluded that Ashley had died of blunt force trauma to the abdomen. He opined that Ashley could have survived for no more than four hours after the fatal injuries and had died between five and eight hours before being taken to the hospital. The autopsy also revealed other internal injuries that predated the fatal injuries.

A grand jury indicted Villalobos for child abuse and first degree murder. Verdugo was indicted for second degree murder and child abuse. She later pleaded guilty to attempted child abuse and testified at Villalobo's trial.

A superior court jury found Villalobos guilty on both counts . . . After the penalty phase, the jury concluded that any mitigating circumstances were not sufficiently substantial to call for leniency and death was the appropriate sentence.

(Doc. 14-1 at 2-4). The Arizona Supreme Court affirmed Petitioner's convictions and sentences on appeal. (Id. at 25). The United States Supreme Court subsequently denied Petitioner's writ of certiorari. (Doc. 14-4).

Petitioner filed a notice of post-conviction relief in Arizona state court on January 20, 2011. (Doc. 14-5). The postconviction court granted an evidentiary hearing on four of Petitioner's claims and denied the remaining claims on the briefing, including Petitioner's arguments that his appellate counsel was ineffective for failing to argue that the trial court improperly limited his cross-examination of Verdugo, and that the cumulative errors by counsel unconstitutionally prejudiced the guilt phase of his trial. (Doc. 18-2 at 5-6).^[2] Two of the claims the court granted an evidentiary hearing on-trial counsel's ineffectiveness in failing to hire a pathologist to challenge the medical examiner's testimony; and appellate counsel's ineffectiveness in failing to argue on direct appeal that the trial court erred in denying Petitioner's request for a lesser-included instruction on the felony murder child abuse charge-are at issue in Petitioner's federal habeas petition. (Id.; Doc. 1). Following the July 14 and 15, 2014, evidentiary hearing, the state PCR court denied these remaining claims. (Doc. 19). Petitioner appealed to the Arizona Supreme Court; on September 22, 2015, the Arizona Supreme Court summarily denied review. (Doc. 20-3).

Petitioner filed the instant habeas petition on March 1, 2017. (Doc. 1).

II. The Petition

Petitioner raises four grounds for relief in his federal habeas petition, which he filed pro se. First, he claims that his trial counsel was ineffective for failing to retain a pathologist who would have helped him prove that he “did not cause the fatal injury” and would have assisted in the cross-examination of the state's pathology expert (“Ground One”). (Doc. 1 at 6). Second, Petitioner says that he was denied effective assistance of appellate counsel when his counsel failed to argue on appeal that the trial court erred by refusing to give a lesser-included instruction for reckless child abuse (“Ground Two”). (Id. at 7). Third, Petitioner claims he was denied effective assistance of appellate counsel when appellate counsel failed to argue the trial court erred in refusing Petitioner the right to cross-examine his “co-defendant Verdugo about bias and a motive to lie” (“Ground Three”). (Id. at 8). Finally, Petitioner argues that he is entitled to habeas relief because the cumulative effect of his trial and appellate counsels' deficient performance has deprived him of the effective assistance of counsel (“Ground Four”). (Id. at 9). Respondents filed a Response (Docs. 11-21). Petitioner was subsequently appointed counsel (Doc. 24). After requesting multiple extensions of time, ^[3] and after several changes in appointed counsel (Docs. 24; 39; 47), Petitioner filed a 65-page counseled Reply in support of his Petition (Doc. 63).

III. The R&R

In reviewing Petitioner's federal habeas claims, Magistrate Judge Bibles noted that each Ground had been raised and resolved on the merits in the state courts. She found reason to defer to the state court decision on each claim under 28 U.S.C. § 2254(d). (See Doc. 68 at 12, 14, 16-17, 19). She therefore recommends denial of the Petition. She also recommends denying a certificate of appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. (Id. at 26).

IV. Standards of Review

This Court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which” a Petitioner objects. 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (same). Further, this Court “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)(1)(C); Fed.R.Civ.P. 72(b)(3). At the same time, however, the relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any review at all. . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1989); see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) (“Of course, de novo review of a R&R is only required when an objection is made to the R&R”).

V. Petitioner's Objections to the R&R

As noted, Magistrate Judge Bibles found that each of Petitioner's ineffective assistance of counsel habeas claims had been resolved on their merits by the state court; with one exception, Petitioner does not assert otherwise. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal habeas relief is foreclosed for “any claim that was adjudicated on the merits in State court” unless the state court's decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “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).

The “clearly established federal law” for an ineffective assistance of counsel claim under the Sixth Amendment derives from Strickland v. Washington, 466 U.S. 668 (1984). Cullen v. Pinholster, 563 U.S. 170 189 (2011) (noting that “[t]here is no dispute” that Strickland is clearly established federal law). Strickland sets out a two-part test for courts to consider when determining if trial counsel has been unconstitutionally ineffective. First, “the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Second, “the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose...