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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Camaro Sue Sim-Reisewitz,

Petitioner,

v. 

Charles L. Ryan, et al.,

Respondents.

No. CV-15-08146-PCT-DJH (ESW)

REPORT AND 

RECOMMENDATION

TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT 

JUDGE:

Pending before the Court is Camaro Sue Sim-Reisewitz’s (“Petitioner”) Petition 

under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1) (the “Petition”). 

Respondents have answered (Doc. 9), and Petitioner has replied (Doc. 12). The matter is 

deemed ripe for consideration. 

Respondents do not raise any affirmative defenses in their Answer (Doc. 9). The 

undersigned finds that all four grounds for relief are meritless. It is therefore 

recommended that the Court deny and dismiss the Petition with prejudice. 

I. BACKGROUND 

A. Facts Underlying Petitioner’s Convictions

Petitioner is currently serving an eight-year prison term for convictions on four 

counts following a February 2010 jury trial in Mohave County Superior Court: (i) two 

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counts of child abuse, class 4 felonies; (ii) possession of dangerous drugs for sale 

(methamphetamine), class 2 felony; and (iii) possession of drug paraphernalia 

(methamphetamine), class 6 felony. (Doc. 9-5 at 4-6, 27, 55). Petitioner was tried with 

co-defendant Michael Reisewitz (“Reisewitz”), with whom she was living on the date of 

her arrest. Petitioner and Reisewitz were married on May 2, 2009 while they were 

awaiting trial. (Doc. 9-1 at 4).

The following is a summary of the facts underlying Petitioner’s convictions as 

recounted by the Arizona Court of Appeals in its April 2011 decision.1

 In the summer of 

2008, drug task force officers in Kingman, Arizona received information that Petitioner 

was selling and using methamphetamine in her residence. (Doc. 9-5 at 66). On March 

20, 2009, Child Protective Services (“CPS”) requested an officer’s assistance in 

removing Petitioner’s two children from her residence.2

 A CPS worker interviewed 

Petitioner’s children, who indicated that Petitioner was using drugs.3

 (Id.). The officer 

assisting the CPS worker was given permission to search Petitioner’s residence.4 (Id.). 

Petitioner and Reisewitz were present while the officer conducted his search. During the 

search, the officer observed a safe in the master bedroom and requested the combination. 

(Id.). Petitioner and Reisewitz each denied knowing the safe’s combination and claimed 

that the safe belonged to the other. (Id.). Reisewitz later told an officer that the safe and 

all of its contents were his. (Doc. 9-3 at 117, 217).

1 A state court’s factual determinations are presumed correct. 28 U.S.C. § 2254(e)(1).

2 CPS became involved after receiving a complaint alleging the abuse of one of Petitioner’s daughters who ran away. (Doc. 9-2 at 215). 

3 The two children interviewed made the following statements to the CPS case worker: “The drugs mommy uses look like sugar crystals”; “Mommy keeps bad tobacco in the safe”; Mommy sells drugs because I saw her meth and dope”; “Mike changes the 

combination to the safe every week”; “Santana blows marijuana smoke in my face.” One 

of the children indicated to the CPS case worker that “bad tobacco” is marijuana. (Doc. 

9-5 at 68 n.1). Santana is the daughter who ran away. (Doc. 9-2 at 213-15).

4 The Arizona Court of Appeals noted that “[t]he transcript of the suppression hearing did not indicate who gave the officer permission to search the home.” (Doc. 9-5 

at 69 n.2).

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While the children were being removed from the residence, Petitioner asked an 

officer to retrieve her medication from a drawer in the bathroom. (Id. at 66-67). The 

officer agreed and saw a syringe in the same drawer as the medication. (Id. at 67).

A search warrant was obtained on March 20, 2009 based on all of the above 

information. (Id.). Through the search, officers discovered a needle with a spoon, a 

syringe with a spoon, tin foil and a piece of plastic, surveillance equipment, and a bag of 

trash. (Id.). Officers also seized the safe, which was later opened. (Doc. 9-3 at 203). 

Items in the safe included a (i) zippered bag containing syringes, small plastic bags, a 

digital scale, two silver spoons, and eight sandwich sized plastic bags and (ii) a black 

wallet containing Petitioner’s identification, money, and individually packaged bags of 

methamphetamine. (Id. at 205-08). 

B. Motion to Suppress, Direct Appeal, and Post-Conviction Relief

On August 7, 2009, the trial court held a hearing on a motion to suppress filed by 

Petitioner’s trial counsel. (Doc. 9-1 at 6-73). Petitioner’s trial counsel argued that the 

March 20, 2009 search warrant lacked probable cause and that all evidence collected

during the search should be suppressed. The trial court denied the motion. (Id. at 58-69).

On direct appeal, Petitioner argued that the trial court abused its discretion in 

denying the motion to suppress. (Doc. 1-1 at 2-39). In its April 21, 2011 decision, the 

Arizona Court of Appeals found that probable cause existed for the issuance of the search 

warrant and affirmed Petitioner’s convictions and sentences. (Doc. 9-5 at 66-69). On 

September 20, 2011, the Arizona Supreme Court denied Petitioner’s request for further 

review. (Doc. 1-1 at 70). In Ground One of the Petition, Petitioner continues to assert

that the search warrant lacked probable cause and that the good faith exception does not 

apply. (Doc. 1 at 6).

On October 6, 2011, Petitioner filed a Petition for Post-Conviction Relief 

(“PCR”). (Doc. 9-5 at 71-76). On January 12, 2012, Petitioner’s PCR counsel filed a 

brief that raised the same grounds that Petitioner has raised in Grounds Two, Three, and 

Four of the Petition: (i) trial counsel was ineffective for failing to file a motion to 

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suppress based upon an allegedly illegal arrest/detention of Petitioner and involuntary 

consent search (Grounds Two and Four); and (ii) trial counsel was ineffective for failing 

to file a motion to sever Petitioner’s trial from Reisewitz’s trial (Ground Three). (Doc. 1-

3 at 34-53).

On May 8, 2012, the trial court set an evidentiary hearing on Petitioner’s claim 

pertaining to trial counsel’s failure to seek a trial severance. (Doc. 1-3 at 20). The 

hearing was held on October 26, 2012 and continued to April 5, 2013. (Doc. 9-5 at 82-

168; Doc. 16-1 at 2-60). On April 18, 2013, the trial court denied the PCR Petition.5

 

(Doc. 1-3 at 23-26). On January 6, 2015, the Arizona Court of Appeals granted 

Petitioner’s request for review, but denied relief. (Doc. 9-5 at 170-72). The Arizona 

Supreme Court denied review on July 1, 2015. (Doc. 1-4 at 31). On August 20, 2015, 

Petitioner initiated this habeas proceeding. (Doc. 1).

II. LEGAL STANDARDS

A. Reviewing Habeas Claims on the Merits

In reviewing the merits of a habeas petitioner’s claims, the Anti-Terrorism and 

Effective Death Penalty Act (“AEDPA”) requires federal courts to defer to the last 

reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); 

Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state 

prisoner must show that the state court’s adjudication of his or her claims either:

1. [R]esulted in a decision that was contrary to, or 

involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme 

Court of the United States; or

5 In denying the PCR Petition, the trial court explicitly discussed Petitioner’s claim that trial counsel was ineffective for failing to file a motion to suppress based on her 

alleged illegal detention. (Doc. 1-3 at 19-20). The trial court did not explicitly address Petitioner’s claim that trial counsel was ineffective for failing to file a motion to suppress based on the alleged involuntary consent search. The undersigned presumes the claim 

was adjudicated on the merits and does not find any evidence in the record that would rebut that presumption. See Richter, 562 U.S. at 99 (when a state court summarily denies without discussion all the claims raised by a defendant, the federal habeas court must 

presume that the federal claim was adjudicated on the merits); Johnson v. Williams, 133 

S.Ct. 1088, 1096 (2013) (Richter presumption applies when a state court’s decision denying relief discusses some claims, but is silent as to other claims). 

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2. [R]esulted 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)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 

132 S. Ct. 2148, 2151 (2010); Richter, 562 U.S. at 99. 

As to the first entitlement to habeas relief as set forth in 28 U.S.C. § 2254(d)(1) 

above, “clearly established federal law” refers to the holdings of the U.S. Supreme 

Court’s decisions applicable at the time of the relevant state court decision. Carey v. 

Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state 

court decision is “contrary to” such clearly established federal law if the state court (i) 

“applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] 

cases” or (ii) “confronts a set of facts that are materially indistinguishable from a decision 

of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. 

Supreme Court] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting 

Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). 

As to the second entitlement to habeas relief as set forth in 28 U.S.C. § 2254(d)(2) 

above, factual determinations by state courts are presumed correct unless the petitioner 

can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see 

also Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Davis v. Woodford, 384 F.3d 

628, 638 (9th Cir. 2004). That is, a state court’s determination that a claim lacks merit 

precludes federal habeas relief so long as “fair-minded jurists could disagree” on the 

correctness of the state court’s decision. Richter, 562 U.S. at 101; Yarborough v. 

Alvarado, 541 U.S. 652, 664 (2004). 

B. Proving Ineffective Assistance of Counsel Under Strickland v. Washington, 

466 U.S. 668 (1984)

The “clearly established federal law” for an ineffective assistance of counsel 

(“IAC”) claim is the two-part test articulated in Strickland v. Washington, 466 U.S. 668 

(1984). Under Strickland, a petitioner arguing an IAC claim must establish that his or her 

counsel’s performance was (i) objectively deficient and (ii) prejudiced the petitioner. 

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Strickland, 466 U.S. at 687. This is a deferential standard, and “[s]urmounting 

Strickland’s high bar is never an easy task.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 

2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). 

In assessing the performance factor of Strickland’s two-part test, judicial review 

“must be highly deferential” and the court must try not “to second-guess counsel’s 

assistance after conviction.” Clark, 769 F.3d at 725 (internal quotation marks and 

citation omitted). To be constitutionally deficient, counsel’s representation must fall 

below an objective standard of reasonableness such that it was outside the range of 

competence demanded of attorneys in criminal cases. Id. A reviewing court considers

“whether there is any reasonable argument” that counsel was effective. Rogovich v. 

Ryan, 694 F.3d 1094, 1105 (9th Cir. 2012). 

To establish the prejudice factor of Strickland’s two-part test, a petitioner must 

demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 

694. In other words, it must be shown that the “likelihood of a different result [is] 

substantial, not just conceivable.” Richter, 562 U.S. at 112.

Although the performance factor is listed first in Strickland’s two-part test, a court 

may consider the prejudice factor first. In addition, a court need not consider both factors 

if the court determines that a petitioner has failed to meet one factor. Strickland, 466 

U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of 

sufficient prejudice, which we expect will often be so, that course should be followed.”); 

LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both 

deficiency and prejudice if the habeas petitioner cannot establish one or the other). 

Finally, on federal habeas review, the “pivotal question is whether the state court’s 

application of the Strickland standard was unreasonable.” Richter, 131 S.Ct.at 785. And 

“it is the habeas applicant’s burden to show that the state court applied Strickland to the 

facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 

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19, 25 (2002) (per curium). “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 quotation marks and citation omitted).

III. DISCUSSION

Respondents do not argue that the Petition is untimely or that Petitioner’s grounds 

for habeas relief are procedurally barred or defaulted. However, as discussed below, 

none of Petitioner’s claims have merit. 

A. Ground One: Challenge to the March 20, 2009 Search Warrant 

In Ground One, Petitioner argues that the March 20, 2009 search warrant was 

invalid. (Doc. 1 at 6). 

The Fourth Amendment prohibits unreasonable searches and seizures. Under a 

judicially created doctrine known as the “exclusionary rule,” evidence obtained by police 

officers in violation of the Fourth Amendment is excluded at trial. Stone v. Powell, 428 

U.S. 465, 482 (1976). The exclusionary rule does not apply “when an officer acting with 

objective good faith has obtained a search warrant from a judge or magistrate and acted 

within its scope.” United States v. Leon, 468 U.S. 897, 920 (1984). That is because the 

“exclusionary rule was adopted to deter unlawful searches by police, not to punish the 

errors of magistrates and judges.” Massachusetts v. Sheppard, 468 U.S. 981, 990 (1984). 

In Stone, 428 U.S. at 494, the 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 relief on the ground that evidence obtained in 

an unconstitutional search or seizure was introduced at his trial.” The Court did not find 

that the exclusionary rule’s deterrent effect would be materially diminished if Fourth 

Amendment claims could not be raised in a federal habeas proceeding. Id. The Court 

further found that even if there was an additional incremental deterrent effect, it would be 

outweighed by “costs to other values vital to a rational system of criminal justice.” Id. 

Thus, in reviewing a federal habeas petitioner’s Fourth Amendment claim, “[t]he relevant 

inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did 

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in fact do so or even whether the claim was correctly decided.” Ortiz–Sandoval v. 

Gomez, 81 F.3d 891, 899 (9th Cir. 1996). 

Here, Petitioner filed a pretrial motion to suppress the evidence collected during 

the March 2009 search, and the trial court held a hearing on the motion. (Doc. 9-1 at 6-

73). Petitioner’s trial counsel argued that the search warrant was invalid because the 

supporting affidavit did not establish probable cause and that the good faith exception to 

the exclusionary rule did not apply. (Id. at 41). The trial court rejected counsel’s 

arguments and held that even if there was not probable cause, the officers acted in good 

faith in serving and executing the search warrant. (Doc. 9-1 at 58-69). 

In her direct appeal, Petitioner argued that the trial court abused its discretion in 

denying the motion to suppress. (Doc. 1-1 at 17-37). Petitioner sought further review by 

the Arizona Court of Appeals. In a well-reasoned decision, the Arizona Court of Appeals 

found that the search warrant was supported by probable cause and that the trial court did 

not abuse its discretion in refusing to suppress the collected evidence. (Doc. 9-5 at 66-

69).

Petitioner does not argue that she was denied a full and fair opportunity to litigate 

her claim that the search warrant was invalid under the Fourth Amendment. Indeed, as 

shown above, Petitioner received a full and fair opportunity to litigate her claim. See 

Caldwell v. Cupp, 781 F.2d 714, 715 (9th Cir. 1986) (“All Stone v. Powell requires is the 

initial opportunity for a fair hearing. . . . Such an opportunity for a fair hearing forecloses 

this court’s inquiry, upon habeas corpus petition, into the trial court's subsequent course 

of action, . . . including whether or not the trial court has made express findings of fact.”) 

(citations omitted). Because a “Fourth Amendment claim is not cognizable in federal 

habeas proceedings if a petitioner has had a full and fair opportunity to litigate the claim 

in state court,” it is recommended that the Court dismiss Ground One. Ortiz–Sandoval,

81 F.3d at 899.

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B. Grounds Two and Four: Alleged IAC for Trial Counsel’s Failure to File a 

Motion to Suppress Based on (i) Petitioner’s Initial, Allegedly Involuntary 

Consent to the Search of Her Home on March 20, 2009 and (ii) the 

Allegedly Illegal Arrest/Detention of Petitioner on March 20, 2009

In Ground Two, Petitioner argues that her trial counsel was ineffective for failing 

to file a motion to suppress on the basis that she involuntarily consented to officers 

searching her home on March 20, 2009. (Doc. 1 at 7). Petitioner asserts that she initially 

denied an officer’s request to search her home, and “at that point he got very angry, but 

he did offer me a lesser penalty or if I still refused he would come back w/ guns drawn, 

kick my doors in, in front of my kids. This scared me . . . . So at that point I reluctantly 

said yes.” (Id.). 

In Ground Four, Petitioner states that “[a]fter the ‘involuntary’ concent [sic] 

search where there was nothing found but a 6” horse syringe, I was placed in handcuffs & 

taken outside & sat in a chair” while an officer left to obtain a search warrant. (Id. at 9). 

Petitioner argues that this constituted an illegal arrest/detention. Ground Four references 

Petitioner’s brief filed in the Arizona Court of Appeals, in which she argued that her trial 

counsel was ineffective for failing to challenge Petitioner’s allegedly illegal 

arrest/detention by filing a motion to suppress under the “fruit of the poisonous tree” 

doctrine.6

 (Id.; Doc. 1-2 at 32-36). 

Liberally construed, the Court finds that Grounds Two and Four present the claim 

that Petitioner’s trial counsel was ineffective for failing to file a motion to suppress on the 

bases that the consent to search her home was involuntary and she was illegally 

arrested/detained. As discussed below, this claim is without merit.

First, “[m]ere criticism of a tactic or strategy is not in itself sufficient to support a 

charge of inadequate representation.” Gustave v. United States, 627 F.2d 901, 904 (9th 

Cir. 1980). The Arizona Court of Appeals reasonably concluded that trial counsel’s 

6 The doctrine excludes both the “primary evidence obtained as a direct result of 

an illegal search or seizure” as well as “evidence later discovered and found to be 

derivative of an illegality.” Segura v. United States, 468 U.S. 796, 804 (1984); see also 

United States v. Ramirez–Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989). 

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decision to “seek suppression on one ground instead of others was anything other than a 

tactical decision” that fell within prevailing professional norms. (Doc. 9-5 at 171). 

Petitioner has failed to satisfy the performance prong of the Strickland test. 

Second, “[w]hen the Sixth Amendment ineffective assistance of counsel claim is 

rooted in defense counsel’s failure to litigate a Fourth Amendment issue, as it is here, 

petitioner must show that (1) the overlooked motion to suppress would have been 

meritorious and (2) there is a reasonable probability that the jury would have reached a 

different verdict absent the introduction of the unlawful evidence.” Ortiz–Sandoval v. 

Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003) (citing Kimmelman v. Morrison, 477 U.S. 

365, 375 (1986)); Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999). 

Here, the Arizona Court of Appeals found that the statements by Petitioner’s 

children that “clearly [described] drug activity” and “drug use by [Petitioner]” alone

supported a probable cause finding. (Doc. 9-5 at 67-68). Thus, the March 20, 2009 

search warrant would have been supported by probable cause even if the evidence from 

the consent search and arrest/detention was suppressed.7

 

Further, the trial court determined that even if there was not probable cause for the 

issuance of the search warrant, the officers acted in good faith in serving and executing it. 

(Doc. 9-1 at 69). Thus, the exclusionary rule would not have applied even if 

“suppression of the fruits” of the consent search and arrest/detention abrograted the 

probable cause finding. Accordingly, the Arizona Court of Appeals did not unreasonably 

conclude that Petitioner has failed to show prejudice in advancing the IAC claims 

presented in Grounds Two and Four. (Doc. 9-5 at 171); see Bailey v. Newland, 263 F.3d 

1022, 1029 (9th Cir. 2001) (“in order to show prejudice when a suppression issue 

provides the basis for an ineffectiveness claim, the petitioner must show that he would 

have prevailed on the suppression motion, and that there is a reasonable probability that 

the successful motion would have affected the outcome”); see also Kimmelman v. 

7 To the extent that Grounds Two and Four challenge the State courts’ rulings regarding the March 20, 2009 search warrant, the challenge is precluded from habeas 

review for the reasons set forth in the preceding section. 

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Morrison, 477 U.S. 365, 375 (1986) (an omitted action must be shown to be meritorious 

to support an ineffective assistance of counsel claim); James v. Borg, 24 F.3d 20, 27 (9th 

Cir. 1994) (“Counsel’s failure to make a futile motion does not constitute ineffective

assistance of counsel.”); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (failure to 

take futile action can never be deficient performance); Boag v. Raines, 769 F.2d 1341, 

1344 (9th Cir. 1985) (the “[f]ailure to raise a meritless argument does not constitute 

ineffective assistance”); Hernandez v. Harrington, 720 F.Supp.2d 1161, 1171–72 (C.D. 

Cal. 2010) (trial counsel held not to be ineffective for failing to make a motion to sever 

when it was “highly unlikely” that the motion would have been granted). 

For the above reasons, the undersigned does not find that the State courts’ denial 

of Petitioner’s claims presented in Grounds Two and Four was contrary to, or involved an 

unreasonable application of, Strickland or based on an unreasonable determination of the 

facts. It is therefore recommended that the Court dismiss Grounds Two and Four. 

C. Ground Three: Alleged IAC for Trial Counsel’s Failure to File a Motion 

to Sever Petitioner’s Trial from Reisewitz’s Trial

As mentioned, Petitioner married co-defendant Reisewitz on May 2, 2009 while 

on pretrial release. (Doc. 9-1 at 4). In her third ground for habeas relief, Petitioner 

asserts that her trial counsel was ineffective for failing to file a motion to sever 

Petitioner’s trial from Reisewitz’s trial. (Doc. 1 at 8). Petitioner states that:

[Reisewitz] was suppose [sic] to testify in [sic] my behalf at 

our trial. But 9 days befor [sic] our trial he beat me severly 

[sic] & left me in a ditch on the side of the road. I contacted 

my attorney the following morning . . . . I did ask him at that 

time if we could sever the cases. He said no because we had 

to do it 20 days befor [sic] trial. . . . [Reisewitz’] attorney 

slammed me at trial. My attorney did nothing. Not even on 

the domestic violence issue. [Reisewitz] did not testify. 

Instead he left the courtroom. As I told my attorney this was 

going to happen when [Reisewitz] beat me up.

(Id.).

1. Performance Prong of the Strickland Test

Petitioner’s trial counsel testified at the October 26, 2012 evidentiary hearing. 

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(Doc. 16-1 at 12-53). In its decision denying the PCR Petition, the trial court correctly 

noted that:8

This is not a case where it is being asserted that trial counsel 

was ineffective because he failed to recognize a potential 

issue that he could and should have raised. It was obvious 

from the testimony that trial counsel recognized the severance 

issue, discussed it with his client on numerous occasions, 

discussed it with counsel for [Reisewitz], and made a 

conscious decision to not seek a severance. 

(Doc. 1-3 at 24). The trial court also correctly stated that “[w]hether the decision not to 

sever fell below acceptable standards of professionalism must be judged based on the 

circumstances at the time, not based on the ability to look back with hindsight at what 

actually happened at trial.” (Id. at 24); see also Strickland, 466 U.S. at 689 (a reviewing 

court must resist the temptation “to conclude that a particular act or omission was 

unreasonable” simply because it “proved unsuccessful” at trial). Based on trial counsel’s 

testimony and the totality of the circumstances, the trial court found that trial counsel’s 

tactical choice not to move for a severance fell within the standards of prevailing 

professional norms. (Id. at 26). The Arizona Court of Appeals found that the trial court’s 

ruling was supported by evidence presented at the hearing, “including extensive 

testimony by trial counsel about why he had decided not to seek severance.” (Doc. 9-5 at 

172). The Court of Appeals held that the trial court did not abuse its discretion in 

rejecting Petitioner’s IAC claim. (Id. at 171-72). 

Petitioner has not offered any reason why the trial court’s ruling, as adopted by the 

Arizona Court of Appeals, is not an objectively reasonable application of Strickland. A 

federal habeas petitioner “must do more than show that he would have satisfied 

Strickland’s test if his claim were being analyzed in the first instance . . . .” Bell v. Cone,

8 The Arizona Court of Appeals affirmed the trial court’s decision and substantially adopted its reasoning. (Doc. 9-5 at 171-72). The Court may therefore review the trial court’s decision as part of its review of the Arizona Court of Appeals’ 

decision. See, e.g., Lewis v. Lewis, 321 F.3d 824, 829 (9th Cir. 2003) (“Because [the 

state appellate court's] decision affirmed the trial court and adopted one of the reasons 

cited by the trial court, . . . our analysis will necessarily include discussion of the trial 

court's decision as well.”).

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535 U.S. 685, 698-699 (2002). Petitioner has the burden of showing that the State courts 

unreasonably applied Strickland to the facts of her case. Visciotti, 537 U.S. at 25. While 

it is clear that Petitioner believes the State court’s denial of her claim is incorrect, 

“an unreasonable application of federal law is different from an incorrect application of 

federal law.” Williams, 529 U.S. at 410 (emphasis in original). A district court “may not 

issue the writ simply because that court concludes in its independent judgment that the 

relevant state-court decision applied clearly established federal law erroneously or 

incorrectly.” Id. at 411. 

The trial court’s decision makes the implicit finding that the court found trial 

counsel’s testimony credible.9

 The Court cannot redetermine that finding. See Marshall 

v. Lonberger, 459 U.S. 422, 434 (1983) (“Federal habeas courts [have] no license to 

redetermine credibility of witnesses whose demeanor has been observed by the state trial 

court. . . .”) (citing 28 U.S.C. § 2254(d)). The undersigned has reviewed the transcript of 

the October 26, 2012 hearing, and recounts the following relevant excerpts:

1. Petitioner’s trial counsel testified that it was Reisewitz’s “intention at every 

moment in preparation for the trial [] to take the stand and fall on his sword, if you will, 

and claim the entire ownership” of the safe and drugs. (Doc. 16-1 at 19). 

2. Petitioner’s PCR counsel asked trial counsel whether he was concerned that 

Reisewitz would not claim ownership of the safe and drugs after the alleged domestic 

violence incident. (Id. at 21). Trial counsel explained that he “never counted on the fact 

that [Reisewitz] . . . would do that for [Petitioner],” but Petitioner “certainly believed 

that he would, even believed that he would after that domestic violence incident. The 

more important aspect was that his admission was still going to come in, whether or not 

he took the witness stand.” (Id. at 21-22). 

3. Trial counsel further testified that Petitioner “had zero chance of winning if she 

went to trial by herself, without his admission; because the only issue would be whether 

9 The trial court’s rejection of Petitioner’s IAC claim relied in part on a recitation of trial counsel’s testimony. (Doc. 1-3 at 24). The trial court gave no indication that it found trial counsel’s testimony less than fully credible. 

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or not she had access to the safe in her bedroom, in her house, and her wallet with the 

drugs in it.” (Id. at 23). Trial counsel’s chosen defense strategy was to argue that 

Reisewitz was controlling of Petitioner and that Reisewitz took Petitioner’s wallet and 

placed it in the safe without her consent as a means furthering that control. (See, e.g.,

Doc. 9-2 at 222). Trial counsel emphasized to the jury that Reisewitz admitted that the 

safe and its contents were his and that he buys, uses, and sells methamphetamine. (Id. at 

223; Doc. 9-4 at 179, 181-82; see also Doc. 9-3 at 240-41). Based on the record, the 

undersigned finds that trial counsel’s decision not to file a motion to sever was based on a 

“carefully considered, deliberately undertaken strategy, the likes of which [a court] 

cannot second-guess on federal habeas review.” Ayala v. Chappell, --- F.3d ----, 2016 

WL 3913446, at *10 (9th Cir. July 20, 2016). As discussed below, the weight of the 

evidence against Petitioner was great. “Absent any defense that could have promised a 

greater chance of success, [the Court] cannot conclude that [trial counsel] was deficient 

for choosing the one he did.” Gallegos v. Ryan, 820 F.3d 1013, 1029 (9th Cir. 2016); see 

also Bemore v. Chapell, 788 F.3d 1151, 1163 (9th Cir. 2015) (“a tactical decision may 

constitute constitutionally adequate representation even if, in hindsight, a different 

defense might have fared better”). 

Petitioner has failed to show that the State courts unreasonably concluded that her 

trial counsel made a tactical choice that fell within objective standards of competence. 

2. Prejudice Prong of the Strickland Test

As the trial court noted, there were several “critical factors” that remained 

regardless of whether Petitioner and Reisewitz’s trial was severed or not. (Doc. 1-3 at 

26). For instance, one of the items found in the safe was a wallet containing Petitioner’s 

identification and bags of methamphetamine. (Doc. 9-3 at 208). Petitioner admitted to 

an officer that she purchased approximately 3.5 grams (an “eightball”) of 

methamphetamine “a day or two” before the March 20, 2009 search. (Id. at 215). 

Petitioner also admitted to the CPS worker that she has a twenty-year history of 

methamphetamine use and had been selling methamphetamine. (Id. at 98). In addition, 

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an officer testified that surveillance equipment was installed at Petitioner’s home and 

stated that it is “extremely common” for people who sell drugs to have such surveillance. 

(Id. at 201-02). Petitioner’s son testified that “sometimes” Petitioner would make drugs 

with another individual at the house. (Id. at 65). The CPS worker testified that one of 

Petitioner’s daughters stated that Petitioner “used meth and dope” and that she saw 

Petitioner “eat it, put it in her nose, and . . . would put a needle into her arm.” (Id. at 94). 

That daughter also testified at trial that she saw “scary people” coming in and out of 

Petitioner’s room, stating that about two or three of them would go into the room at a 

time for about ten or fifteen minutes and that some of them had guns. (Id. at 16-17).

While the closing argument given by Reisewitz’s attorney highlighted the 

evidence showing Petitioner’s guilt and attempted to convince the jury that Reisewitz lied 

about owning the safe and its contents in an effort to protect Petitioner (Doc. 9-4 at 136-

56), the trial court observed that:

[T]his case was tried by a very experienced trial prosecutor. 

The Court seriously doubts that arguments regarding 

[Petitioner’s] culpability made by [Reisewitz’s] attorney were 

so arcane or sophisticated that they never would have 

occurred to the prosecutor. The Court is certain that the 

circumstances suggesting [Petitioner’s] guilt were going to be 

pointed out to the jury by the prosecutor whether someone 

else did so or not. 

(Doc. 1-3 at 25-26). Further, the trial court instructed the jury that opening statements 

and closing arguments are not evidence. (Doc. 9-4 at 70). Petitioner’s trial counsel 

reminded the jury of that instruction during his closing argument. (Id. at 159). Courts 

presume that a jury follows a trial court’s instructions. See Francis v. Franklin, 471 U.S. 

307, 324 n.9 (1985) (“The Court presumes that jurors, conscious of the gravity of their 

task, attend closely the particular language of the trial court's instructions in a criminal 

case and strive to understand, make sense of, and follow the instructions given them.”). 

In addition, the State asserted in its rebuttal argument that there is no evidence to support 

the contention that Reisewitz took the blame to protect Petitioner. (Doc. 9-4 at 191). The 

State argued that Petitioner and Reisewitz “are selling drugs together. They are doing 

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exactly the same thing, out of the same room . . . . They are drug dealers. It’s what they 

do. It’s both their drugs.” (Id. at 190). The State’s rebuttal argument counterbalances 

the statements made in the closing argument of Reisewitz’s attorney.

Finally, the trial court observed that Reisewitz’s “erratic conduct while present and 

his unexplained absences that could be seen by the jury reflected poorly on himself and 

could have further [Petitioner’s] claim that she was not the one to have engaged in 

criminal conduct.” (Doc. 1-3 at 25). Indeed, the record reflects that Reisewitz failed to 

return to the courtroom following recess just as his attorney was about to deliver his 

closing argument. (Doc. 9-4 at 135). 

Given the strength of the state’s case against Petitioner, Petitioner has not 

established a “substantial, not just conceivable” likelihood of a different result if the trial 

had been severed. See Richter, 562 U.S. at 112. The State courts’ conclusion that 

Petitioner has failed to satisfy the prejudice prong of the Strickland test is reasonable.

For the above reasons, the undersigned does not find that the State courts’ denial 

of her IAC claim presented in Ground Three was contrary to, or involved an 

unreasonable application of, Strickland or based on an unreasonable determination of the 

facts. The undersigned therefore recommends that the Court deny Ground Three.

IV. CONCLUSION

Based on the foregoing, the undersigned recommends that the Court deny and 

dismiss the Petition (Doc. 1) with prejudice.

Accordingly,

IT IS RECOMMENDED that the Petition (Doc. 1) be DENIED and 

DISMISSED WITH PREJUDICE.

IT IS FURTHER RECOMMENDED that a certificate of appealability and leave

to proceed in forma pauperis on appeal be denied because Petitioner has not made a 

substantial showing of the denial of a constitutional right in his claims for relief.

This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 

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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. Thereafter, 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. 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 United States v. Reyna-Tapia, 328 F.3d 1114, 

1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). 

Dated this 3rd day of August, 2016. 

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