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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Benjamin Scott Hammar, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-15-01940-PHX-DLR (BSB)

REPORT AND 

RECOMMENDATION

 Petitioner Benjamin Scott Hammer has filed a Petition for Writ of Habeas Corpus 

pursuant to 28 U.S.C. § 2254 and a supporting memorandum. (Docs. 1, 2.) In their 

answer, Respondents argue that Petitioner is not entitled to habeas corpus relief because 

his claims are either procedurally barred from federal habeas corpus review or lack merit. 

(Doc. 11.) Petitioner has not filed a reply in support of his Petition and the deadline to do 

so has passed. (See Doc. 4.) For the reasons below, the Court recommends that the 

Petition be denied. 

I. Factual and Procedural Background 

A. Charges, Trial, and Sentencing 

 In February 2008, Petitioner was indicted in the Maricopa County Superior Court 

on one count of second-degree murder.1

 (Doc. 11, Ex. A.) Before trial, Petitioner 

 

1

 Petitioner was also charged with one count of misconduct involving weapons (Count Two). (Doc. 11, Ex. A.) Count Two was severed for trial. (Doc. 11, Ex. J at 4 

n.2.) After his trial for second-degree murder, Petitioner pleaded guilty to Count Two and was sentenced to a presumptive, concurrent ten-year term of imprisonment. (Id.) 

The Petition does not challenge Petitioner’s conviction or sentence on Count Two. 

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requested a competency evaluation because he claimed a 2007 brain injury caused a 

memory impairment that rendered him unable to assist in his defense. (Doc. 11, Ex. J at 

4.) The trial court appointed two experts to evaluate Petitioner and, at a subsequent 

hearing, considered reports from the experts, testimony from defense expert Dr. Sullivan, 

and testimony from the neurosurgeon who had removed a blood clot from Petitioner’s 

brain in 2007. (Id.) The trial court found Petitioner competent to stand trial. (Id.) After 

a trial, the jury found Petitioner guilty of second-degree murder, and the trial court 

sentenced Petitioner to an aggravated term of eighteen-years’ imprisonment. (Id.) 

 Petitioner’s second-degree murder conviction was based on the following events, 

as described by the Arizona Court of Appeals.2

 On January 31, 2008, two men, Chris and 

Merritt, drove Merritt’s truck from California to Phoenix. (Doc. 11, Ex. J at 2.) In 

Phoenix, they met Petitioner at the house he shared with his girlfriend, Ellacia. (Id.) 

That evening, Petitioner became “sloppy drunk.” (Id.) Petitioner told his friend Kim that 

Merritt had guns and a nice truck and said “something about jacking [Merritt].” (Id.) 

 Kim later saw Merritt in his truck, with Petitioner standing next to the open door. 

(Id.) Petitioner put Merritt in a headlock and punched him in the face. (Id.) Merritt was 

upset that he “got hit for no reason” and left to go to Angie’s house. (Id.) Chris and 

Petitioner later went to Angie’s house. (Id.) Petitioner left Angie’s house early in the 

morning on February 1, 2008. (Id.) Later that morning, Merritt found his truck window 

broken and several items missing, including a Glock 9mm handgun that had been in a 

secure lockbox. (Id.) Merritt called his dad to get the gun’s serial number and called the 

police to report the incident. (Id.) 

 Later that day, Merritt, Chris, and Petitioner went to the house Petitioner shared 

with Ellacia. (Id. at 3.) Merritt and Petitioner were in the backyard. (Id.) Chris was in 

the front yard when he heard a gunshot that “sounded close,” and then saw Petitioner 

 

2

 The Arizona Court of Appeals’ recitation of the facts is presumed correct. See 

28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 

2012) (rejecting argument that statement of facts in state appellate court’s opinion should not be afforded the presumption of correctness). 

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walk from the backyard holding Merritt’s gun. (Id.) Petitioner also had Merritt’s cell 

phone and gun magazines. (Id.) Chris walked away, but Petitioner followed him and 

fired the gun once or twice. (Id.) 

 Chris, Petitioner and another person, David, returned to Ellacia’s house. (Id.) 

Petitioner backed Merritt’s truck up to the backyard gate and dragged Merritt’s body to 

the truck. (Id.) Chris helped him lift the body into the truck bed. (Id.) Petitioner drove 

the truck into the desert. (Id.) Chris watched Petitioner pull Merritt’s body onto the road 

and drag it into a wash. (Id.) When Ellacia got home, her gate was open and there was 

blood in the backyard. (Id.) She called police who discovered a pool of blood, Merritt’s 

wallet and identification, and a handwritten note containing the serial number of his 

handgun. (Id.) Testing revealed that the blood was Merritt’s. (Id.) 

 Petitioner was arrested at around 1:15 a.m. on February 2, 2008. (Id.) He had in 

his possession Merritt’s gun, two loaded magazines, and the key to Merritt’s truck. (Id.) 

Petitioner was wearing Merritt’s sweatshirt, which was stained with Merritt’s blood. (Id.) 

Gunshot residue testing revealed Petitioner may have “discharged a firearm, may have 

been in close proximity of a firearm discharged, or may have contacted something with 

[gunshot residue] on it.” (Id. at 3-4.) Later that day, Chris went to the police station and 

explained what had happened, omitting his involvement. (Id. at 4.) Chris later admitted 

his involvement and led police to the body. (Id.) Merritt was killed by a single gunshot 

to the back of his head with a 9mm bullet from a Glock-type handgun. (Doc. 11, Ex. J at 

4.) 

B. Direct Appeal 

 Petitioner filed a direct appeal challenging his conviction for second-degree 

murder. (Doc. 11, Exs. B, J.) Petitioner raised the following claims: (1) the trial court 

violated his due process rights by using the wrong standard to determine his competency 

to stand trial and the evidence did not support the court’s competency decision (Doc. 11, 

Ex. B at ii); (2) the trial court erred by precluding evidence related to Petitioner’s thirdparty culpability defense that Chris killed Merritt and blamed Petitioner by taking 

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advantage of his memory impairment (Id. at ii, 34); (3) the trial court violated Rule 

404(b) of the Arizona Rules of Evidence by admitting other act evidence and violated 

Petitioner’s Confrontation Clause rights by admitting Merritt’s statements about his truck 

being burglarized and his gun being stolen (Id. at ii, 49); (4) the trial court abused its 

discretion by denying Petitioner’s request for a Willits instruction regarding the police’s 

failure to preserve a lockbox cable from Merritt’s truck (Id.); and (5) the evidence was 

insufficient to support his conviction. (Id. at ii, 62.) The appellate court rejected 

Petitioner’s claims and affirmed his conviction and sentence. (Doc. 11, Ex. J.) Petitioner 

sought review in the Arizona Supreme Court, and the court denied review on December 

4, 2012. (Doc. 11, Ex. H.) 

C. Post-Conviction Proceedings 

 On December 11, 2012, Petitioner filed a notice of post-conviction relief in the 

trial court pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 11, 

Ex. K.) On February 5, 2014, Petitioner, through counsel, filed a petition for postconviction relief asserting three allegations of ineffective assistance of trial counsel. 

(Doc. 11, Ex. L.) The trial court denied relief. (Doc. 11, Ex. N.) Petitioner moved for a 

rehearing, which the court denied on September 29, 2014. (Doc. 11, Exs. O, P.) 

 On October 24, 2014, Petitioner filed a petition for review in the Arizona Court of 

Appeals. (Doc. 11, Ex. Q.) The State filed a response. (Doc. 11, Ex. R.) To date, the 

Arizona Court of Appeals has not ruled on the petition for review. (Doc. 11, Ex. S.) 

However, the status of that appeal is inconsequential because the claims of ineffective 

assistance of counsel that Petitioner raised on post-conviction review are not presented in 

the pending Petition. (Compare Docs. 1 and 2 with Doc. 11, Exs. L, Q.) 

D. Federal Petition for Writ of Habeas Corpus 

 On September 28, 2015, Petitioner filed a petition for writ of habeas corpus in this 

Court raising the following claims: (1) the trial court violated Petitioner’s federal 

constitutional right to due process by finding him competent to stand trial under the 

wrong standard, and failing to address the effect of his memory impairment on 

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competency (Ground One) (Doc. 1 at 7); (2) the trial court violated Petitioner’s federal 

due process rights by excluding evidence of third-party culpability (Ground Two) (Doc. 1 

at 25); (3)(a) the trial court violated Petitioner’s federal due process rights by admitting 

evidence of Petitioner’s physical attack against Merritt and comments about wanting to 

steal Merritt’s gun and truck the night before the incident (Ground Three (a)); (b) the trial 

court violated the Confrontation Clause by admitting testimony that Merritt claimed his 

gun had been stolen (Ground Three (b)); and (c) the trial court violated Brady v. 

Maryland, 373 U.S. 83 (1963), and California v. Trombetta, 467 U.S. 479 (1984), by 

failing to preserve the lockbox cable from Merritt’s truck, which Petitioner alleges was 

potentially exculpatory (Ground Three (c)). (Doc. 1 at 35; Doc. 2 at 7-9.) 

 Respondents argue that Grounds Two, Three (a), and Three (c) are procedurally 

barred from federal habeas corpus review. (Doc. 11 at 9-14.) Respondents state that 

Grounds One and Three (b) are properly before the Court, but argue that Petitioner is not 

entitled to relief on those claims. (Doc. 11 at 9, 18-25.) 

II. Exhaustion and Procedural Bar 

 Ordinarily, a federal court may not grant a petition for writ of habeas corpus 

unless the petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To 

exhaust state remedies, a petitioner must afford the state courts the opportunity to rule 

upon the merits of his federal claims by “fairly presenting” them to the state’s “highest” 

court in a procedurally appropriate manner.3

 Baldwin v. Reese, 541 U.S. 27, 29 (2004) 

(“[t]o provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly 

present’ his claim in each appropriate state court . . . thereby alerting that court to the 

federal nature of the claim”); Castille v. Peoples, 489 U.S. 346, 349 (1989) (same). 

 A claim has been fairly presented if the petitioner has described both the operative 

facts and the federal legal theory on which his claim is based. See Baldwin, 541 U.S. at 

 

3

 In Arizona, unless a prisoner has been sentenced to death, the “highest court” requirement is satisfied if the petitioner has presented his federal claim to the Arizona Court of Appeals either through the direct appeal process or post-conviction proceedings. Crowell v. Knowles, 483 F. Supp. 2d 925, 931-33 (D. Ariz. 2007). 

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33. A “state prisoner does not ‘fairly present’ a claim to a state court if that court must 

read beyond a petition or brief . . . that does not alert it to the presence of a federal claim 

in order to find material, such as a lower court opinion in the case, that does so.” Id. at 

31-32. Thus, “a petitioner fairly and fully presents a claim to the state court for purposes 

of satisfying the exhaustion requirement if he presents the claim: (1) to the proper 

forum . . . (2) through the proper vehicle, . . . and (3) by providing the proper factual and 

legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) 

(internal citations omitted). 

 The requirement that a petitioner exhaust available state court remedies promotes 

comity by ensuring that the state courts have the first opportunity to address alleged 

violations of a state prisoner’s federal rights. See Duncan v. Walker, 533 U.S. 167, 178 

(2001); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Principles of comity also 

require federal courts to respect state procedural bars to review of a habeas petitioner’s 

claims. See Coleman, 501 at 731-32. Pursuant to these principles, a habeas petitioner’s 

claims may be precluded from federal review in two situations. 

 First, a claim may be procedurally defaulted and barred from federal habeas 

corpus review when a petitioner failed to present his federal claims to the state court, but 

returning to state court would be “futile” because the state court’s procedural rules, such 

as waiver or preclusion, would bar consideration of the previously unraised claims. See 

Teague v. Lane, 489 U.S. 288, 297-99 (1989); Beaty v. Stewart, 303 F.3d 975, 987 (9th 

Cir. 2002). If no state remedies are currently available, a claim is technically exhausted, 

but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1. 

 Second, a claim may be procedurally barred when a petitioner raised a claim in 

state court, but the state court found the claim barred on state procedural grounds. See 

Beard v. Kindler, 558 U.S. 53 (2009). “[A] habeas petitioner who has failed to meet the 

State’s procedural requirements for presenting his federal claim has deprived the state 

courts of an opportunity to address those claims in the first instance.” Coleman, 501 U.S. 

at 731-32. In this situation, federal habeas corpus review is precluded if the state court 

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opinion relies “on a state-law ground 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). 

 A state procedural ruling is “independent” if the application of the bar does not 

depend on an antecedent ruling on the merits of the federal claim. See Stewart v. Smith, 

536 U.S. 856, 860 (2002); Ake v. Oklahoma, 470 U.S. 68, 74-75 (1985). A state court’s 

application of the procedural bar is “adequate” if it is “strictly or regularly followed.” 

See Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994). If the state court occasionally 

excuses non-compliance with a procedural rule, that does not render its procedural bar 

inadequate. See Dugger v. Adams, 489 U.S. 401, 410-12 n.6 (1989). “The independent 

and adequate state ground doctrine ensures that the States’ interest in correcting their own 

mistakes is respected in all federal habeas cases.” Coleman, 501 U.S. at 732. Although a 

procedurally barred claim has been exhausted, as a matter of comity, the federal court 

will decline to consider the merits of that claim. See id. at 729-32. 

 However, because the doctrine of procedural default is based on comity, not 

jurisdiction, federal courts retain the power to consider the merits of procedurally 

defaulted claims. See Reed v. Ross, 468 U.S. 1, 9 (1984). Generally, a federal court will 

not review the merits of a procedurally defaulted claim unless a petitioner demonstrates 

“cause” for the failure to properly exhaust the claim in state court and “prejudice” from 

the alleged constitutional violation, or shows that a “fundamental miscarriage of justice” 

would result if the claim were not heard on the merits. Coleman, 501 U.S. at 750. 

Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss plainly meritless 

claims regardless of whether the claim was properly exhausted in state court. See Rhines

v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate in federal court 

to allow claims to be raised in state court if they are subject to dismissal under 

§ 2254(b)(2) as “plainly meritless”). 

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 A. Grounds Two, Three (a), and Three (c) are Procedurally Barred 

In Ground Two, Petitioner asserts that the trial court violated his federal due 

process rights by excluding evidence of third-party culpability. (Doc. 1 at 25.) On direct 

appeal, Petitioner challenged the exclusion of the same evidence of third-party 

culpability. (Doc. 11, Ex. B at 34-49.) However, Petitioner challenged the exclusion of 

that evidence solely as a matter of state law and did not present a federal claim. (Id.) 

The appellate court resolved the claim under state law. (Doc. 11, Ex. J at 9-14.) 

Additionally, Petitioner did not present the claim asserted in Ground Two on postconviction review. (Doc. 11, Ex. L.) Accordingly, Petitioner did not present the federal 

claim asserted in Ground Two to the state appellate court. See Johnson v. Zenon, 88 F.3d 

828, 830- 31 (9th Cir. 1996) (argument raised under state law does not alert state court to 

the federal nature of a claim). 

 Similarly, Petitioner did not present Grounds Three (a) or (c) to the Arizona Court 

of Appeals either on direct appeal or post-conviction review. Ground Three (a) raises a 

federal due process claim based on the trial court’s admission of other act evidence. 

(Doc. 1 at 35.) Petitioner challenged the admission of other act evidence on direct appeal 

on the basis of state law, but did not present a federal claim. (Doc. 11, Ex. B at 57-64.) 

The appellate court resolved the claim on the basis of state law. (Doc. 11, Ex. J at 14-

16.) Petitioner did not present the federal claim asserted in Ground Three (a) on postconviction review. (Doc. 11, Ex. L.) 

 In Ground Three (c), Petitioner asserts a Brady violation based on the failure to 

preserve evidence from the victim’s truck. (Doc. 1 at 45.) On direct appeal, Petitioner 

did not present a federal claim based on the failure to preserve evidence, but instead 

argued that the trial court erred by failing to instruct the jury regarding the failure to 

preserve evidence under State v. Willits, 393 P.2d 274 (1964). (Doc. 11, Ex. B at 61-64.) 

Petitioner did not present the federal claim asserted in Ground Three (c) on postconviction review.4

 (Doc. 11, Ex. L.) 

 4

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 In summary, Petitioner did not present the federal claims asserted in Grounds 

Two, Three (a), and Three (c) to the Arizona Court of Appeals either on direct appeal or 

post-conviction review. Those claims are technically exhausted and procedurally barred 

because it would be futile for Petitioner to return to the state courts to try to exhaust those 

claims. A successive petition for post-conviction relief would be untimely under Rule 

32.4, and his claims would be precluded from Rule 32 review because they could have 

been raised on direct appeal or in Petitioner’s prior post-conviction proceeding. See

Teague, 489 U.S. at 297-99; see also Ariz. R. Crim. P. 32.2(a)(3) and 32.4(a); State v. 

Bennett, 146 P.3d 63, 67 (2006) (“As a general rule, when [claims] are raised, or could 

have been raised, in a Rule 32 post-conviction proceeding, subsequent claims [] will be 

deemed waived and precluded.”) (internal quotation omitted). Rules 32.2(a)(3) and 

32.4(a) are independent and adequate state grounds. See Simmons v. Schriro, 187 Fed. 

App’x. 753, 754 (9th Cir. 2006) (holding that Arizona’s procedural rules, including its 

timeliness rules, are “clear” and “well-established”); Ortiz v. Stewart, 149 F.3d 923, 932 

(9th Cir. 1998) (finding Rule 32.2(a)(3) regularly followed and adequate). 

 Additionally, Petitioner’s claims do not satisfy any of the exceptions to the 

timeliness or preclusion rules in Rule 32.4(a) and Rule 32.2, including being held in 

custody after the imposed sentence expired, the presentation of newly discovered material 

facts that probably would have changed the verdict or sentence, the failure to file a timely 

notice of post-conviction relief or a notice of appeal that was not the defendant’s fault, a 

change in the law, or the petitioner’s actual innocence. See Rules 32.2(b) and 32.4(a) 

(citing Rule 32.1(d), (e), (f), (g), and (h).) 

 Accordingly, Petitioner’s claims asserted in Grounds Two, Three (a), and Three 

(c) are technically exhausted and procedurally barred from federal habeas corpus review. 

See McKinney v. Ryan, 730 F.3d 903, 913 n.6 (9th Cir. 2013) (finding claims 

 habeas corpus review because it is a state law issue. See Ballesteros v. Ryan, 2014 WL 

1911443, at *7 (D. Ariz. May 13, 2014) (citing Lewis v. Jeffers, 497 U.S. 764, 780 

(1990)). 

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procedurally defaulted because petitioner was barred from exhausting his claims in the 

first instance by Rules 32.2(a)(3) and 32.4(a)). 

B. Petitioner has not Established a Basis to Overcome the Procedural Bar

 Because Petitioner’s claims asserted in Grounds Two, Three (a), and Three (c) are 

procedurally defaulted, federal habeas corpus review is unavailable unless Petitioner 

establishes a “fundamental miscarriage of justice” or “cause and prejudice” to overcome 

the procedural bar. See Coleman, 501 U.S. at 749. For the reasons below, the Court 

finds that Petitioner has not established a basis to overcome the procedural bar. 

 1. Fundamental Miscarriage of Justice

 A federal court may review the merits of a procedurally defaulted claim if the 

petitioner demonstrates that failure to consider the merits of that claim will result in a 

“fundamental miscarriage of justice.” Schlup v. Delo, 513 U.S. 298, 327 (1995). A 

“fundamental miscarriage of justice” occurs when “‘a constitutional violation has 

probably resulted in the conviction of one who is actually innocent.’” Id. (citing Murray 

v. Carrier, 477 U.S. 478, 496 (1986)). 

 To establish a fundamental miscarriage of justice, a petitioner must present “new 

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

accounts, or critical physical evidence — that was not presented at trial.” Schlup, 513 

U.S. at 324. The petitioner has the burden of demonstrating that “it is more likely than 

not that no reasonable juror would have convicted him in light of the new evidence.” Id.

at 327. Petitioner does not argue that failure to consider his defaulted claims will result 

in a fundamental miscarriage of justice. (Docs. 1, 2.) Additionally, Petitioner has not 

presented new evidence and has not shown that failure to consider his procedurally 

defaulted claims will result in a fundamental miscarriage of justice. Thus, he has not met 

Schlup’s high standard and this exception does not excuse the procedural bar. 

 2. Cause and Prejudice 

 A federal court may review the merits of a procedurally defaulted claim if a 

petitioner establishes “cause” and “prejudice.” Coleman, 501 U.S. at 750. To establish 

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“cause,” a petitioner must establish that some objective factor external to the defense 

impeded his efforts to comply with the state’s procedural rules. Teague, 489 U.S. at 298. 

A showing of “interference by officials,” constitutionally ineffective assistance of 

counsel, or “that the factual or legal basis for a claim was not reasonably available” may 

constitute cause. Murray v. Carrier, 477 U.S. 478, 488 (1986). 

 “Prejudice” is actual harm resulting from the constitutional violation or error. 

Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). To establish prejudice, a 

habeas petitioner bears the burden of demonstrating that the alleged constitutional 

violation “worked to his actual and substantial disadvantage, infecting his entire trial 

with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 

(1982) (emphasis in original); see also Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 

1991). If petitioner fails to establish cause for his procedural default, then the court need 

not consider whether petitioner has shown actual prejudice resulting from the alleged 

constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). 

 Petitioner does not allege cause to overcome the procedural bar to federal habeas 

corpus review of Grounds Two, Three (a), and Three (c). (Docs. 1, 2.) Petitioner’s status 

as an inmate, lack of legal knowledge, and limited legal resources do not establish cause 

to excuse the procedural bar to review of his claims. See Hughes v. Idaho State Bd. of 

Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner’s lack of legal 

assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 

862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner’s reliance upon jailhouse lawyers did not 

constitute cause). Accordingly, the Court does not consider whether Petitioner can 

establish prejudice. See Smith v. Murray, 477 U.S. 527, 533 (1986) (stating that the court 

does not need to consider prejudice when the petitioner does not demonstrate cause). 

Thus, Petitioner has not established a basis to overcome the procedural bar to federal 

habeas corpus review of Grounds Two, Three (a), and Three (c). Therefore, the Court 

will not further address these grounds for relief, but will consider Petitioner’s claims that 

are properly before the Court 

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III. Review of Claims Adjudicated on the Merits 

 Petitioner properly presented Grounds One and Three (b) to the Arizona Court of 

Appeals and those claims were adjudicated on the merits. (Doc. 11, Ex. B at 17-34; 53-

54, 60-61; Doc. 11, Ex. J.) Therefore, this Court reviews those claims under § 2254(d). 

 Under § 2254(d), a federal court cannot grant habeas corpus relief unless the 

petitioner shows: (1) that the state court’s decision “was contrary to” federal law as 

clearly established in the holdings of the Supreme Court at the time of the state court 

decision, Greene v. Fisher, __ U.S.__, 132 S. Ct. 38, 43 (2011); or (2) that it “involved an 

unreasonable application of” such law, § 2254(d)(1); or (3) that it “was based on an 

unreasonable determination of the facts” based on the record before the state court. 28 

U.S.C. § 2254(d)(2). This standard is “difficult to meet.” Harrington v. Richter, 562 

U.S. 86, 102 (2011). It is a “highly deferential standard for evaluating state court rulings, 

which demands that state court decisions be given the benefit of the doubt.” Woodford v. 

Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks 

omitted). When evaluating state court decisions on habeas review, federal courts look 

through summary or unexplained higher state court opinion to the last reasoned decision 

on the claim. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 

 To determine whether a state court ruling was “contrary to” or involved an 

“unreasonable application” of federal law, courts look exclusively to the holdings of the 

Supreme Court that existed at the time of the state court’s decision. Greene, 132 S. Ct. at 

44. A state court’s decision is “contrary to” federal law if it applies a rule of law “that 

contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of 

facts that are materially indistinguishable from a decision of [the Supreme Court] and 

nevertheless arrives at a result different from [Supreme Court] precedent.” Mitchell v. 

Esparza, 540 U.S 12, 14 (2003) (citations omitted). A state court decision is an 

“unreasonable application of” federal law if the court identifies the correct legal rule, but 

unreasonably applies that rule to the facts of a particular case. Brown v. Payton, 544 U.S. 

133, 141 (2005). “A state court’s determination that a claim lacks merit precludes federal 

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habeas relief so long as ‘fairminded jurists could disagree on the correctness of the state 

court’s decision.’” Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 

652, 664 (2004)). 

 Federal courts may also grant habeas corpus relief when the state court decision 

“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)(2). “Or, to put it 

conversely, a federal court may not second-guess a state court’s fact-finding process 

unless, after review of the state-court record, it determines that the state court was not 

merely wrong, but actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999 (9th 

Cir. 2004), abrogated on other grounds, Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 

2014); see also Pollard v. Galaza, 290 F.3d 1030, 1033, 1035 (9th Cir. 2002) (the 

statutory presumption of correctness applies to findings by both trial courts and appellate 

courts). Additionally, state court findings of fact are presumed to be correct. 28 U.S.C. 

§ 2254(e)(1). A petitioner may rebut this presumption with “clear and convincing 

evidence.” Id. 

 If the federal court determines, considering only the evidence before the state 

court, that the adjudication of a claim on the merits resulted in a decision that was 

contrary to or involved an unreasonable application of clearly established federal law, or 

that the state court’s decision was based on an unreasonable determination of the facts, 

the court evaluates the claim de novo, and may consider evidence properly presented for 

the first time in federal court. Cullen v. Pinholster, 536 U.S. 170, 182-84 (2011). 

 Additionally, when a state court decision is deemed to be contrary to or an 

unreasonable application of clearly established federal law or based on an unreasonable 

determination of the facts, a petitioner is not entitled to habeas corpus relief unless the 

erroneous state court ruling also resulted in actual prejudice as defined in Brecht v. 

Abrahamson, 507 U.S. 619, 637 (1993). See Benn v. Lambert, 283 F.3d 1040, 1052 n.6 

(9th Cir. 2002). “Actual prejudice” means that the constitutional error at issue had a 

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“substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 

507 U.S. at 631. 

A. Ground One — Competency Determination 

 In Ground One, Petitioner asserts that the trial court violated his rights to due 

process, effective assistance of counsel, and a fair trial by applying an incorrect standard 

to determine his competency to stand trial and by failing to address the effect of his 

memory impairments on competency. (Doc. 1 at 7; Doc. 2 at 1-4.) Before trial, the court 

held a hearing pursuant to Rule 11 of the Arizona Rules of Criminal Procedure on 

Petitioner’s competency and concluded he was competent to stand trial. (Doc. 11, Ex. T; 

Doc. 13, Ex. A.)5

 The Arizona Court of Appeals affirmed the trial court’s competency 

determination. (Doc. 11, Ex. J.) In the pending Petition, Petitioner argues that the state 

courts’ competency determinations were erroneous and that the trial court found him 

competent to stand trial under a “reasonable grounds” standard, rather than the 

“Drope/Dusky competency test.” (Doc. 1 at 7-24; Doc. 2 at 1-4.) As discussed below, 

the Court rejects Petitioner’s claims. 

 In Indiana v. Edwards, 554 U.S. 164, 170 (2008), the Supreme Court recognized 

that two of its cases set forth the mental competency standard. The first case, Dusky v. 

United States, 362 U.S. 402 (1960), defines the competency standard as including both 

“(1) whether the defendant has a rational as well as factual understanding of the 

proceedings against him and (2) whether the defendant has sufficient present ability to 

consult with his lawyer with a reasonable degree of rational understanding.” Edwards, 

554 U.S. at 170 (citing Dusky, 362 U.S. at 402). In Edwards, the Supreme Court 

 

5

 The Rule 11 hearing was conducted on two separate days. Respondents filed the transcript from the second day, July 10, 2009, with their answer. (Doc. 11, Ex. T.) In 

response to the Court’s February 24, 2016 Order (Doc. 12), on March 16, 2016, 

Respondents filed the transcript from the first day of that hearing, May 21, 2009. (Doc. 13, Ex. A.) The February 24, 2016 Order also requested copies of the reports of Dr. Segal and Dr. Mongrovejo, or an explanation why they could not be provided. (Doc. 12.) Respondents notified the Court that those reports were sealed by the Maricopa County Superior Court. (Doc. 13.) They filed a motion to unseal those records, but the 

court had not ruled on that motion by the date on which the additional evidence was due. 

(Id.) Although the reports would assist the Court’s review of the petition, they are not necessary for the Court’s resolution of Petitioner’s claims. 

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explained that the second case, Drope v. Missouri, 420 U.S. 162 (1975), “repeats that 

standard,” stating that “it has long been accepted that a person whose mental condition is 

such that he lacks the capacity to understand the nature and object of the proceedings 

against him, to consult with counsel, and to assist in preparing his defense may not be 

subjected to a trial.” Edwards, 554 U.S at 170 (emphasis in original). 

 Petitioner does not dispute that he understood the nature and the object of the 

proceedings against him. Rather, he asserts that he lacked the capacity to consult with 

counsel and assist in preparing his defense. (Doc. 1 at 7-24; Doc. 2 at 1-4.) Petitioner 

further argues that the state court failed to adequately address the effect of his memory 

impairment on competency. (Doc. 2 at 2.) Thus, Petitioner argues that the trial court 

should have found him incompetent based on the evidence presented. 

 Whether Petitioner was competent to stand trial is a factual question. See Dennis 

ex rel. Butko v. Budge, 378 F.3d 880, 891 (9th Cir. 2004). Accordingly, this Court 

considers whether the state courts’ decisions were “an unreasonable determination of the 

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. 

§ 2254(d)(2). A state court’s factual determination that a defendant is competent to stand 

trial is presumed correct. 28 U.S.C. § 2254(e)(1); see also Demosthenes v. Baal, 495 

U.S. 731, 734-35 (1990) (stating that a state court’s conclusion regarding a defendant’s 

competency is entitled to the presumption of correctness). Petitioner has the burden of 

rebutting the state courts’ factual determinations by clear and convincing evidence. 28 

U.S.C. § 2254(e)(1). Petitioner, however, does not point to any evidence in the record 

that would suggest the Arizona state courts’ determinations that he was competent to be 

tried were objectively unreasonable. Therefore, he has not overcome the presumption of 

correctness. 

 Before trial, Petitioner argued that he had brain damage the rendered him unable to 

assist defense counsel. (Doc. 11, Ex. T.) The trial court held a hearing to determine 

Petitioner’s competency to stand trial. (Doc. 11, Ex. T; Doc. 13, Ex. A.) Petitioner’s 

expert, Dr. James P. Sullivan, testified that Petitioner’s short-term memory and his ability 

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to retain and evaluate new information were “profoundly impaired” by brain trauma, that 

his “working memory” could not retain information for more than “a few seconds,” and 

that his short-term recall was “about five or six seconds.” (Doc. 11, Ex. T at 31, 33.) 

Dr. Sullivan further testified Petitioner was “extremely suggestible and extremely 

compliant,” raising concerns about his ability to consult with counsel, make his own 

decisions, or help challenge a witness’s testimony. (Doc. 11, Ex. T at 38; Doc. 13, Ex. A 

at 22.) Dr. Sullivan opined that Petitioner’s ability to assist counsel was “potentially 

. . . severely compromised by the extreme nature of his memory impairment.” (Doc. 13, 

Ex. A at 19.) 

 The court-appointed experts, Dr. Segal and Dr. Mongrovejo, completed reports 

that were submitted to the trial court and filed under seal, but they did not testify during 

the Rule 11 evidentiary hearing. (Doc. 11, Ex. T; Doc. 13 at 1; Doc. 13, Ex. A.) The 

appellate court cites to these reports in its decision. (Doc. 11, Ex. J.) Dr. Segal opined 

that Petitioner could “register and recall three out of three objects at different intervals 

throughout the interview,” “spell WORLD forward and backward,” and “follow a 

complex, three step command with no difficulty.” (Id. at 6.) Dr. Segal also reported that 

Petitioner related the “events he [was] accused of, including the location of the alleged 

crime, the time frame of the alleged crime, that the alleged victim was male, and that the 

alleged victim was shot.” (Id.) Dr. Segal believed Petitioner could recognize possible 

“distortions” in testimony and “the need to inform his attorney in such an instance.” (Id.) 

Dr. Mongrovejo concluded Petitioner’s memory “appeared intact,” that he had a “legal 

strategy,” and that he was “willing to work with his attorney in his own defense.” (Id.) 

Both court-appointed experts believed Petitioner was competent to stand trial. (Id. at 6-

7.) 

 At the conclusion of the Rule 11 hearing, the court “rejected Dr. Sullivan’s 

testimony and “accept[ed] the testimony of Dr. Segal, even in preference to 

Dr. Mongrovejo.” (Doc. 11, Ex. T at 87.) The court concluded that “Petitioner 

understood the nature and object of the proceedings and [was] able to assist his attorney, 

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and [was] therefore competent pursuant to the statute.” (Id.) The appellate court 

affirmed that ruling. (Doc. 11, Ex. J.) 

 As the appellate court noted, the trial court received conflicting expert evidence. 

It rejected Dr. Sullivan’s testimony and accepted the court-appointed experts’ opinions. 

(Doc. 11, Ext. T at 87.) The appellate court noted that reports from two court-appointed 

experts indicated that Petitioner’s memory impairment was not as severe as his expert 

claimed. (Doc. 11, Ex. J at 5-6.) Additionally, the appellate court found that evidence in 

the state court record indicated that Petitioner performed relatively well on memory tests, 

could relate details about the crime and his case, had a memory that “appeared intact,” 

and “had a legal strategy.” (Doc. 11, Ex. at 6-7.) Petitioner has not offered clear and 

convincing evidence to rebut the state court’s description of the evidence that was in the 

state court record. See 28 U.S.C. § 2254(e)(1). Accordingly, the Court defers to the facts 

contained in the state courts’ decisions. The record reflects that the Arizona trial and 

appellate courts were faced with conflicting evidence and the decision to credit the 

testimony of the court-appointed experts was not “an unreasonable determination of the 

facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. 

§ 2254(d)(2). 

 Petitioner also argues that the trial court applied the incorrect legal standard to 

determine his competency. As set forth below, this claim lacks merit. Under clearly 

established federal law, a criminal defendant is competent to stand trial if he has (i) a 

rational and factual understanding of the proceedings and (ii) sufficient present ability to 

consult with counsel “with a reasonable degree of rational understanding.” Dusky, 362 

U.S. at 403. As the Arizona Court of Appeals noted, the trial court’s competency 

determination was consistent with this standard as evidenced by its statement that 

Petitioner “understand[s] the nature and object of the proceedings and is able to assist his 

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attorney, and is therefore competent pursuant to the statute.”6 (Doc. 11, Ex. J at 7; Ex. T 

at 87.) 

 Although the trial court did not specifically apply the Dusky standard, the 

appellate court’s conclusion that the trial court applied a correct standard to determine 

Petitioner’s competency is not contrary to or an unreasonable application of Supreme 

Court precedent. The Supreme Court has described competency using language nearly 

identical to that applied by the trial court in this case. The Supreme Court has explained 

that “[r]equiring that a criminal defendant be competent has a modest aim: It seeks to 

ensure that he has the capacity to understand the proceedings and to assist counsel.” 

Godinez v. Moran, 509 U.S. 389, 402 (1993); (see Doc. 11, Ex. T at 87 (stating that 

Petitioner “underst[oo]d the nature and object of the proceedings and [was] able to assist 

his attorney, and [was] therefore competent pursuant to the statute.”).) Thus, the standard 

that the trial court used to determine Petitioner’s competency was consistent with clearly 

established federal law on the issue. Therefore, Petitioner is not entitled to habeas corpus 

relief on Ground One. 

B. Ground Three (b) — Confrontation Clause 

 In Ground Three (b), Petitioner asserts a Confrontation Clause violation based on 

the trial court’s admission of testimony regarding Merritt’s statements to his father and 

Chris about his truck being broken into and his gun being stolen. (Doc. 1 at 37.) 

Merritt’s father testified that on the morning of the murder, Merritt called and told him 

someone had broken into his truck and stolen his handgun. (Doc. 11, Ex. V at 7-9.) 

Chris testified that after discovering that Merritt’s truck had been broken into, he helped 

Merritt look through the truck to see what was missing, and Merritt said “a lockbox 

containing his gun” was missing. (Doc. 11, Ex. U at 68.) 

 

6

 The trial court apparently referred to Ariz. Rev. Stat. § 13-4501, which defines 

competency to stand trial in a manner similar to Dusky. Section 13-4501 defines 

incompetence “as a result of a mental illness, defect or disability a defendant is unable to understand the nature and object of the proceeding or to assist in the defendant’s 

defense.” 

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 The Arizona Court of Appeals rejected Petitioner’s claim that the admission of 

these statements at trial violated the Confrontation Clause. (Doc. 11, Ex. J at 16-17.) 

The court concluded that the challenged statements that Merritt made to Chris and his 

father constituted sharing information with a friend and a family member in the nature of 

“casual remark[s]” and were not testimonial under Crawford v. Washington, 541 U.S. 36 

(2004). (Id.) This Court reviews the state court’s decision to determine if it was an 

“unreasonable” application of clearly established federal law. See 28 

U.S.C. § 2254(d)(1). 

 The Sixth Amendment’s Confrontation Clause prohibits the admission of out-ofcourt testimonial statements unless: “(1) the declarant is unavailable and (2) the 

defendant ‘had a prior opportunity to cross-examine’ the declarant.” Crawford, 541 U.S. 

at 59. Generally, a statement is testimony when it is a “solemn declaration or affirmation 

made for the purpose of establishing or proving some fact.” Id. at 51. Testimonial 

statements include affidavits, custodial examinations, prior testimony, depositions, or 

confessions. Id. at 51-52. For example, “[a]n accuser who makes a formal statement to 

government officers bears testimony in a sense that a person who makes a casual remark 

to an acquaintance does not.” Id. at 51. 

 The state appellate court concluded that the circumstances surrounding Merritt’s 

statements about his gun being stolen indicate he did not make those statements for the 

purpose of establishing or proving that fact. The state court reasonably concluded that 

Merritt’s call to his father, during which he told him about the break-in and theft, was a 

“casual remark” to a family member rather than a “formal statement to government 

officers.” See id. The state court reasonably concluded that Merritt’s statement to Chris 

was also a casual remark and not testimony. See Hundley v. Montgomery, 2014 WL 

1839116, at *11 (E.D. Cal. May 8, 2014) (concluding that the petitioner’s statements to a 

friend were not formal statements to a government official, but informal statements to a 

friend and, therefore, were not testimonial and did not violate the Confrontation Clause). 

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Merritt made the challenged statement to Chris while they were looking through the truck 

to determine what was missing. 

 Petitioner argues that because Merritt called his dad for the gun’s serial number 

and took pictures of the damage to his truck, Merritt intended the statements to be used in 

the investigation and prosecution of a crime. (Doc. 1 at 43-44.) The record reflects that 

Merritt’s statements to his dad and Chris were made in the course of his gathering 

information to give to the police and were not “formal statements to government 

officers.” Crawford, 541 U.S. at 51. Therefore, the state courts reasonably concluded 

that those statements were not testimonial under Crawford. See Delgadillo v. Woodford, 

527 F.3d 919, 926-27 (9th Cir. 2008) (concluding that the state court’s conclusion that 

non-testifying declarant’s statements to coworkers that defendant abused her were not 

testimonial was reasonable under the AEDPA). 

 Even if this Court were to determine that the state court’s decision was 

unreasonable, Petitioner would not be entitled to habeas corpus relief unless that ruling 

resulted in “actual prejudice.” See Benn, 283 F.3d at 1052. Thus, any constitutional error 

would only entitle Petitioner to relief if that error had a “substantial and injurious effect 

or influence in determining the jury’s verdict.” See Brecht, 507 U.S. at 631. 

 Here, Petitioner does not establish that the admission of Merritt’s statements to his 

dad and to Chris about the break in of his truck and the stolen gun had any effect on the 

jury’s verdict. The evidence at trial indicated that Petitioner was in the backyard of 

Ellacia’s house, and Chris, who was in the front yard, heard a gunshot and then saw 

Petitioner walk from the backyard holding a gun. (Doc. 11, Ex. J at 3.) Petitioner also 

had Merritt’s cellphone and gun magazines. (Id.) Chris walked away; Petitioner 

followed Chris and fired the gun once or twice. (Id.) There was also evidence that 

Petitioner dragged Merritt’s body from the backyard and that Chris helped Petitioner put 

Merritt’s body into a truck. (Id.) Chris watched Petitioner put Merritt’s body in a wash 

in the desert. (Id.) Ellacia discovered a pool of blood, later identified as Merritt’s blood, 

and his wallet and identification in her backyard. (Id.) When arrested, Petitioner had 

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Merritt’s gun, two loaded magazines, the key to Merritt’s truck, and Petitioner and was 

wearing Merritt’s sweatshirt, which was stained with Merritt’s blood. (Id.) Gunshot 

residue testing indicated that Petitioner had fired a firearm. (Id. at 3-4.) Chris eventually 

admitted his involvement and led police to Merritt’s body. (Id. at 4.) 

 This evidence, which is not based on Merritt’s statements to his dad or Chris, 

overwhelmingly supports the jury’s verdict. Therefore, the Court finds that, even if the 

trial court erred in admitting Merritt’s statements, and the appellate court’s decision 

rejecting Petitioner’s Confrontation Clause claim was unreasonable, Petitioner’s claim 

fails because he cannot establish that the testimony of Merritt’s statements had a 

“substantial and injurious effect or influence” on the jury’s verdict. Brecht, 507 U.S. at 

631. Therefore, he cannot establish “actual prejudice” and is not entitled to habeas 

corpus relief on Ground Three (b). 

III. Conclusion

 As set forth above, Grounds Two, Three (a), and Three (c) are procedurally barred 

from federal habeas corpus review. Although Grounds One and Three (b) are properly 

before the court on habeas corpus review, Petitioner has not shown that the state court’s 

resolution of Grounds One and Three (b) is based on an unreasonable determination of 

the facts, or that it is contrary to, or based on an unreasonable application clearly 

established federal law. See 28 U.S.C. § 2254(d). Accordingly, Petitioner is not entitled 

to habeas corpus relief. 

 Accordingly, 

IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 

28 U.S.C. § 2254 (Doc. 1) be DENIED. 

IT IS FURTHER RECOMMENDED that a certificate of appealability and leave 

to proceed in forma pauperis on appeal be denied because dismissal of the Petition is 

justified by a plain procedural bar and reasonable jurists would not find the ruling 

debatable. 

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 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 have fourteen days within which to 

file a response to the 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 determinations 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 8th day of April, 2016. 

 

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