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Jon M. Sands 

Federal Public Defender 

District of Arizona 

Dale A. Baich (OH No. 0025070) 

Alexandra Hicks LeClair (AZ No. 026269) 

Assistant Federal Public Defenders 

850 West Adams Street, Suite 201 

Phoenix, Arizona 85007 

dale_baich@fd.org 

alexandra_leclair@fd.org 

602.382.2816 Telephone 

602.889.3960 Facsimile 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Fernando Segoviano Almanza, 

Petitioner, 

vs. 

Charles L. Ryan, et al., 

Respondents. 

No. CV-15-02064-PHX-DLR (JFM) 

AMENDED PETITION FOR WRIT OF HABEAS CORPUS 

28 U.S.C. § 2254 

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Table of Contents 

Table of Contents ...................................................................................................... i

Introduction .............................................................................................................. 1

I. Facts and Procedural History ........................................................................... 1

A. Personal History ....................................................................................... 1

B. Facts of the Case ...................................................................................... 3

C. Procedural History ................................................................................... 4

II. State Court Presumption of Correctness .......................................................... 7

III. Exhaustion ........................................................................................................ 8

IV. The AEDPA Is Unconstitutional ...................................................................... 8

A. AEDPA Suspends the Writ of Habeas Corpus ........................................ 9

B. AEDPA Violates the Separation of Powers Doctrine ............................ 10

C. Conclusion .............................................................................................. 11

V. Federal Constitutional Claims ........................................................................ 11

Claim One .............................................................................................................. 12

Trial counsel provided ineffective assistance during Almanza’s trial, violating 

Almanza’s rights under the Sixth and Fourteenth Amendments to the United 

States Constitution. ........................................................................................ 12

A. Trial counsel provided ineffective assistance when he failed to thoroughly 

investigate the case. ....................................................................................... 16

B. Trial counsel provided ineffective assistance when he failed to thoroughly 

investigate Almanza’s mental health and IQ. ................................................ 22

C. Trial counsel provided ineffective assistance when he failed to object to 

the numerous instances of prosecutorial misconduct. ................................... 23

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D. Trial counsel provided ineffective assistance when he failed to adequately 

prepare for the suppression hearing and failed to adequately pursue the 

suppression of Almanza’s statements. ........................................................... 26

E. Trial counsel provided ineffective assistance when he elicited testimony 

regarding Almanza’s prior bad acts, failed to object to the testimony, and failed 

to request a limiting instruction. .................................................................... 29

F. Trial counsel provided ineffective assistance when he failed to ask the 

trial court to instruct the jury that they could find the lesser included crime of 

Molestation. ................................................................................................... 32

G. Trial counsel provided ineffective assistance by failing to meaningfully 

cross-examine A.W. ....................................................................................... 33

H. The cumulative prejudicial impact of trial counsel’s deficient 

performance denied Almanza’s rights under the Sixth and Fourteenth 

Amendments. ................................................................................................. 35

Claim Two .............................................................................................................. 36

Almanza’s Sixth Amendment right to the effective assistance of counsel was 

violated by his direct appeal counsel’s failure to raise meritorious claims on 

direct appeal. .................................................................................................. 36

A. Appellate counsel failed to challenge the prosecutorial misconduct that 

occurred during Almanza’s trial proceedings. ............................................... 38

B. Appellate counsel failed to challenge the reasonable doubt jury instruction 

that shifted the burden to Almanza. ............................................................... 39

C. Appellate counsel failed to argue the appropriate standard for review, 

thereby waiving Almanza’s meritorious claims regarding the admission of 

404(b) and (c) evidence and the admission of jailhouse informant testimony. . 

 ................................................................................................................ 40

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D. Appellate counsel failed to argue about the correct offense in the Opening 

Brief. .............................................................................................................. 42

E. Appellate counsel failed to communicate with Almanza. ..................... 43

Claim Three ............................................................................................................ 44

Almanza was denied effective assistance of counsel during his state postconviction proceedings in violation of the Fifth, Sixth, Eighth and Fourteenth 

Amendments to the United States Constitution. ............................................ 44

A. Deficient Performance ........................................................................... 48

B. Prejudice ................................................................................................. 53

Claim Four ............................................................................................................. 54

The trial court erred by failing to suppress Almanza’s statements in violation 

of his constitutional rights to due process and against self-incrimination under 

Miranda v. Arizona and the Fifth, Sixth, and Fourteenth Amendments to the 

United States Constitution. ............................................................................ 54

Claim Five .............................................................................................................. 62

The trial court violated Almanza’s due process rights under the Fifth, Sixth, 

and Fourteenth Amendments to the United States Constitution by admitting 

irrelevant, prejudicial, and inflammatory testimony about his alleged prior bad 

acts. ................................................................................................................ 62

Claim Six ................................................................................................................ 70

The State failed to present sufficient evidence to prove beyond a reasonable 

doubt that Almanza committed Sexual Conduct with a Minor; thus, the trial 

court erred in denying Almanza’s motion for directed verdict, in violation of 

Almanza’s rights under the Fifth, Eighth, and Fourteenth Amendments to the 

United States Constitution. ............................................................................ 70

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Claim Seven ........................................................................................................... 76

Almanza’s Fifth and Sixth Amendment rights were violated by the admission 

of the jailhouse informant testimony of Johnny Boggs. ................................ 76

Claim Eight ............................................................................................................ 82

The trial prosecutor engaged in repeated and pervasive misconduct, violating 

Almanza’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments 

to the United States Constitution. .................................................................. 82

A. Introduction ............................................................................................ 83

B. Prosecutorial Misconduct ....................................................................... 83

C. Conclusion .............................................................................................. 93

Claim Nine ............................................................................................................. 94

The Arizona Court of Appeals erred in finding that Almanza’s late Notice of 

Post-Conviction Relief barred review of his claims. ..................................... 94

Claim Ten ............................................................................................................... 98

The admission at trial of scientifically unreliable victimology evidence 

violated Almanza’s constitutional rights to due process and a fair trial. ....... 98

A. The trial court erred procedurally and substantively in admitting 

Moncher’s “expert” testimony. .................................................................... 100

B. Moncher’s proffered opinions do not satisfy the Daubert standard. ... 102

C. Moncher has a reputation for dishonesty and fraud. ............................ 109

Claim Eleven ........................................................................................................ 109

The reasonable-doubt instruction given to the jury impermissibly lowered the 

State’s standard of proof and shifted the burden to Almanza, in violation of the 

Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States 

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Constitution. ................................................................................................. 109

Claim Twelve ....................................................................................................... 111

Almanza is actually and legally innocent of the offense of Sexual Conduct with 

a Minor. ........................................................................................................ 111

Claim Thirteen ..................................................................................................... 115

Almanza’s conviction and sentence must be vacated due to the cumulative 

prejudicial effect of the errors in this case. .................................................. 115

Prayer for Relief ................................................................................................... 117

Certificate of Service ........................................................................................... 119

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INTRODUCTION 

Pursuant to 28 U.S.C. § 2254, Fernando Segoviano Almanza, through 

counsel, respectfully petitions this Court for a writ of habeas corpus freeing him 

from the custody of Respondents, pursuant to the judgment and sentence of an 

Arizona state court, on the grounds that the judgment and sentence were obtained 

and affirmed in violation of his rights under the United States Constitution. 

Almanza is in the custody of the Arizona Department of Corrections 

(“ADC”) because he was convicted of one count of Sexual Conduct with a Minor 

in 2013. He was sentenced to life imprisonment. 

For the reasons alleged herein, this Court should grant the writ and any other 

appropriate relief. 

I. FACTS AND PROCEDURAL HISTORY 

A. Personal History 

Fernando Segoviano Almanza (hereinafter “Almanza”) was born in Irapuato, 

Guanajuato, Mexico, the second of four children. (Ariz. Ct. App. PFR, Mot. to Stay 

Pet. for Review, June 5, 2017, Ex. C at 2; Ariz. Ct. App. PFR, Pet. for Review, Feb. 

21, 2017, Ex. B at 2.) 1 His mother, Jesusa Segoviano-Ceballos, died when he was 

 

1

 Trial proceedings in the Pinal County Superior Court are docketed as case number 

CR2011-03026. Reporter’s transcripts are designated “Tr.” followed by the relevant 

date and page number. Indexed documents from the record on appeal are designated 

“ROA” followed by the docket number and relevant page number. Trial exhibits 

are designated “Trial Ex.” followed by the exhibit number. 

Direct appeal proceedings in the Arizona Court of Appeals Division Two are 

docketed as case number 2CA-CR 2014-0034. Documents from the court’s record 

are designated “DA” followed by the title of the document, the relevant date and 

page number. 

Post-conviction proceedings in the Pinal County Superior Court are docketed as 

case number CR2011-03026. Documents from the court’s record are designated 

“PCR,” followed by the title of the document, the relevant date, page number and 

docket number. 

Petition for review proceedings in the Arizona Court of Appeals are docketed as 

case number 2CA-CR 2017-0064-PR. Documents from the court’s record are 

designated “Ariz. Ct. App. PFR” followed by the title of the document, the relevant 

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10 years old and he mostly grew up alone after coming to the United States that 

same year. (Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 2017, Ex. B at 2.) When 

Almanza was 10 years old, he and his brother, Antonio Segoviano Almanza, moved 

to Mammoth, Arizona and were homeless. (Ariz. Ct. App. PFR, Mot. to Stay Pet. 

for Review, June 5, 2017, Ex. C at 2.) He remembers that he and his brother lived 

“by the river.” (Ariz. Ct. App. PFR, Mot. to Stay Pet. for Review, June 5, 2017, Ex. 

C at 2.) When Almanza was about 17 years old, his father Lázaro was killed in 

Flagstaff, Arizona. (Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 2017, Ex. B at 

2.) 

Almanza hardly attended any school in his childhood, completing only one 

year of formal education in Mexico and instead spending most of his time from a 

young age working. (Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 2017, Ex. B at 

2.) As a result, Almanza is illiterate in both English and Spanish and speaks very 

little English. Furthermore, Almanza has intellectual limitations due to both his lack 

of formal education and cognitive dysfunction. (Ariz. Ct. App. PFR, Pet. for 

Review, Feb. 21, 2017, Ex. B at 5; Ariz. Ct. App. PFR, Mot. to Stay Pet. for Review, 

June 5, 2017, Ex. C at 5.) Consequently, he is easily confused and coerced. (Ariz. 

Ct. App. PFR, Mot. to Stay Pet. for Review, June 5, 2017, Ex. C at 5.) 

Almanza moved back to Mammoth approximately 15 years ago. (Ariz. Ct. 

App. PFR, Mot. to Stay Pet. for Review, June 5, 2017, Ex. C at 2.) Almanza lived 

in Dudleyville, Arizona where he owned his own small farm. Prior to his arrest, he 

split his time between working on his own land and working for the Schwennesens, 

who owned the Double Check Ranch. 

Prior to his arrest, on October 5, 2011, Almanza had hernia surgery. It was 

 

date and page number. 

Petition for review proceedings in the Arizona Supreme Court are docketed as case 

number CR-17-0383-PR. Documents from the court’s record are designated “Ariz. 

S. Ct. PFR” followed by the docket number and relevant page number.

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his second hernia surgery and he was still recovering at the time of the alleged 

offense. (Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 2017, Ex. C.) In fact, the 

doctor noted that Almanza would limp for several weeks after the surgery and 

advised him not to engage in any strenuous activity. (Ariz. Ct. App. PFR, Pet. for 

Review, Feb. 21, 2017, Ex. C at 3-4.) 

B. Facts of the Case 

This is a case of wrongful conviction. A.W., the four-year old daughter of 

another ranch worker, Kathryn Quinn (“Quinn”), and her family lived at the Double 

Check Ranch. (Tr. Oct. 1, 2013 at 103.) A.W. alleged that on October 22, 2011, 

Almanza penetrated her vulva with his finger and that his long fingernails scratched 

her. (Tr. Oct. 1, 2013 at 105, 147.) She claimed that he then hit her on the back with 

a shovel. (Trial Ex. 113 at 11.) She alleged that this occurred while she was alone 

with Almanza, who had been helping her and her older brother feed their mother’s 

pigs. (Tr. Oct. 1, 2013 at 106.) 

There was no DNA evidence connecting Almanza with the crime. However, 

on October 23, 2011, Almanza was stopped at gunpoint and arrested by the Pinal 

County Sheriff’s Office. Almanza was detained in a holding cell for more than four 

and a half hours prior to his interrogation. (Trial Ex. 116 at 3.) Almanza was 

interrogated predominantly in English, despite the fact that he explained to the 

detectives that he did not speak English fluently. (Tr. Oct. 2, 2013 at 83.) During 

the interrogation, he was told that his DNA had been found on A.W., which was 

not true. (Tr. Oct. 2, 2013 at 91.) When he explained that he could not afford an 

attorney, the detectives told Almanza that he could get one at a later time and 

continued the interrogation. (Trial Ex. 116 at 23.) Throughout the interrogation, 

despite expressing significant confusion about what was going on, Almanza 

adamantly denied his guilt. (See, e.g., Trial Ex. 116 at 34, 35, 37, 41, 51, 53, 54, 59, 

61, 62, 64, 66, 68, 70, 71, 74, 77, 78, 84.) 

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C. Procedural History 

On November 30, 2011, a Pinal County grand jury indicted Almanza on one 

count of Sexual Conduct with a Minor. (ROA 1.) On December 2, 2011, he was 

assigned an attorney from the Pinal County Public Defender’s Office to represent 

him. (ROA 6.) Shortly thereafter, on April 30, 2012, the Pinal County Public 

Defender withdrew from Almanza’s case due to a conflict. (ROA 27.) On May 22, 

2012, Bret Huggins (“Huggins”) became Almanza’s attorney. (ROA 31.) 

Unfortunately, Huggins also had a conflict of interest and on March 1, 2013, 

Matthew Lara of Cooper & Rueter, L.L.P., entered an appearance as Almanza’s 

attorney. (ROA 72.) Nonetheless, on April 1, 2013, Paul Green (“Green”) of Cooper 

& Rueter appeared on Almanza’s behalf and, without filing a formal Notice of 

Appearance, represented Almanza for the remainder of his trial court proceedings. 

(ROA 77.) 

Six months later, Almanza’s case proceeded to trial with Green representing 

him. (ROA 96.) On October 7, 2013, the jury found Almanza guilty of one count 

of Sexual Conduct with a Minor. (ROA 116.) On January 10, 2014, in the Pinal 

County Superior Court, Almanza was sentenced to life in prison without the 

possibility of parole until after he had served 35 years. (ROA 131 at 3.) 

On direct appeal, Almanza was represented by Lynn Hamilton (“Hamilton”). 

(ROA 134 at 2.) The Arizona Court of Appeals, Division Two, affirmed Almanza’s 

sentence and conviction in an unpublished decision on August 29, 2014. (DA, Mem. 

Decision, Aug. 29, 2014 at 12.) Hamilton did not file a Notice of Post-Conviction 

Relief on Almanza’s behalf. 

Due to the fact that Almanza is a Spanish speaker and is illiterate in both 

Spanish and English, he could not read the Mandate issued by the Court of Appeals 

himself. (See DA, Mandate, Oct. 9, 2014; PCR, Notice of Post-Conviction Relief, 

Mar. 19, 2015 at 3 (Dkt. 2).) As Almanza explained in his pro per Notice of PostConviction Relief, Hamilton did not inform him of the Court’s Mandate in person 

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or over the telephone, but instead sent him a letter, despite knowing that he was 

illiterate. (PCR, Notice of Post-Conviction Relief, Mar. 19, 2015 at 3 (Dkt. 2).) 

Thus, because he is illiterate, Almanza only became aware of the issuance of the 

mandate and the filing deadline for the Notice when he was able to get another 

prisoner to read the letter from Hamilton to him. (PCR, Notice of Post-Conviction 

Relief, Mar. 19, 2015 at 3 (Dkt. 2).) Almanza explained as much in his Notice of 

Post-Conviction Relief, which was filed on March 19, 2015. (PCR, Notice of PostConviction Relief, Mar. 19, 2015 at 3 (Dkt. 2).) Almanza also specifically pointed 

out to the trial court that his Notice was untimely and the meritorious reasons why, 

as required by Arizona Rules of Criminal Procedure 32.2(b) and Rule 32.1(f). (PCR, 

Notice of Post-Conviction Relief, Mar. 19, 2015 at 2-3 (Dkt. 2).) Accordingly, the 

trial court did not summarily dismiss the notice. 

Instead, the trial court appointed post-conviction counsel to represented 

Almanza in his post-conviction proceedings. (PCR, Min. Entry, Apr. 6, 2015 (Dkt. 

5).) Additionally, on October 15, 2015, after initial post-conviction counsel failed 

to contact Almanza and upon Almanza’s pro per motion, the trial court appointed 

new post-conviction counsel, Harriette Levitt (“Levitt”), and gave Almanza until 

December 31, 2015, to file his post-conviction petition. (PCR, Min. Entry, Oct. 15, 

2015 (Dkt. 7).) 

On February 29, 2016, Levitt filed a Notice Pursuant to Rule 32.4(c) of the 

Arizona Rules of Criminal Procedure. (PCR, Notice Pursuant to Rule 32.4(c), Ariz. 

R. Crim. P., Feb. 29, 2016 (Dkt. 11).) In that Notice, Levitt represented to the 

Superior Court that, based on her review of the file, there were no colorable claims 

for post-conviction relief. (PCR, Notice Pursuant to Rule 32.4(c), Ariz. R. Crim. P., 

Feb. 29, 2016 at 1 (Dkt. 11).) However, during her representation, Levitt never met 

with Almanza in person to discuss the case—she only spoke to him a couple of 

times on the telephone through an interpreter. She also never conducted any 

investigation into the case, including failing to obtain and review any of the trial 

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transcripts prior to filing her Rule 32.4(c) Notice. (See Ariz. S. Ct. PFR Dkt. 3 Ex. 

G at 2.) In response to her allegations that there were no colorable claims for relief, 

the Court gave Almanza until May 31, 2016 to file a pro per Petition. (PCR, 

Notice/Order, Mar. 14, 2016 (Dkt. 12).) Almanza filed a pro per Petition for PostConviction Relief in the Pinal County Superior Court on May 19, 2016. (PCR, Pet. 

for Post-Conviction Relief, May 19, 2016 (Dkt. 13).) In his Petition, Almanza 

alleged claims of ineffective assistance of counsel and infringement of the right 

against self-incrimination. (PCR, Pet. for Post-Conviction Relief, May 19, 2016 at 

2 (Dkt. 13).) The trial court denied Almanza’s pro per Petition on August 5, 2016. 

(PCR, Ruling on Motions/Issues, Aug. 5, 2016 (Dkt. 16).) 

On October 15, 2015, Almanza filed a pro per Petition for Writ of Habeas 

Corpus. (ECF No. 1.) However, because he was in custody and filing pro per, he 

neglected to pay the filing fee and this Court ordered him to pay it by November 

26, 2015 or to submit an Application to Proceed in Forma Pauperis by that date. 

(ECF No. 4.) On November 19, 2015, Almanza filed a Motion for Appointment of 

Counsel and the Office of the Federal Public Defender was appointed to represent 

him on June 1, 2016. (ECF No. 5; ECF No. 19.) Subsequently, undersigned counsel 

was assigned to the case, the filing fee was paid, and it was determined that 

Almanza’s state court proceedings had not yet been completed. (ECF No. 20; ECF 

No. 23.) As a result, this Court granted Almanza’s request for the Office of the 

Federal Public Defender to appear in state court on his behalf for the remainder of 

his state court post-conviction proceedings and stayed consideration of his Petition 

for Writ of Habeas Corpus pending the resolution of his post-conviction 

proceedings. (ECF No. 27; ECF No. 28.) 

Almanza filed his Petition for Review with the Arizona Court of Appeals on 

February 21, 2017. (Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 2017.) On June 

5, 2017, upon undersigned counsel’s further review of the case, Almanza filed a 

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Conviction Relief. (Ariz. Ct. App. PFR, Mot. to Stay Pet. for Review and Req. to 

File Am. Pet. for Post-Conviction Relief, June 5, 2017.) The Court of Appeals 

denied that request. (Ariz. Ct. App. PFR, Order, June 29, 2017.) The Court of 

Appeals then denied Almanza’s Petition for Review based exclusively on the fact 

that he failed to file his notice of post-conviction relief within 30 days of the 

issuance of the mandate. (Ariz. Ct. App. PFR, Mem. Decision, July 25, 2017.) 

Almanza filed a Motion for Reconsideration, which was denied by the Court of 

Appeals on August 11, 2017. (Ariz. Ct. App. PFR, Mot. for Recons., Aug. 9, 2017.) 

Almanza filed his Petition for Review with the Arizona Supreme Court on August 

25, 2017, which was also denied. (Ariz. S. Ct. PFR Dkt. 1; Ariz. S. Ct. PFR Dkt. 

4.) 

II. STATE COURT PRESUMPTION OF CORRECTNESS 

Almanza hereby provides notice of his intention to challenge the presumption 

of correctness of specific findings of fact made by the state court in his case. Certain 

factual findings of the state court in Almanza’s case, if any are found to exist, are 

not entitled to the presumption of correctness under 28 U.S.C. § 2254(e)(1). These 

include, but are not limited to, factual findings made by the trial court in Almanza’s 

trial and sentencing, and the opinion by the Arizona Court of Appeals on direct 

appeal. Pursuant to 28 U.S.C. § 2254(e)(1), Almanza asserts that certain findings of 

fact by the state court at trial or on direct appeal, if any are found to exist, are not 

fairly supported by the record. Almanza also asserts other exceptions to the 

presumption of correctness, including, but not limited to: that the procedures 

employed by the state courts in making findings of fact were not adequate to afford 

him a full and fair hearing of his claims; that material facts were not adequately 

developed in state court proceedings; that Almanza did not receive a full, fair, and 

adequate hearing of his claims in the state court proceedings; and that Almanza was 

otherwise denied due process of law in the state court proceedings. 

In addition, Almanza asserts that certain findings of fact by the state court in 

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regard to his state post-conviction proceedings, if any are found to exist, are not 

entitled to the presumption of correctness under 28 U.S.C. § 2254(e)(1). These 

include, but are not limited to: any and all factual findings made by the trial court 

in regard to Almanza’s state post-conviction proceeding, as well as the decision of 

the Arizona Court of Appeals and Arizona Supreme Court on petitions for review. 

Pursuant to 28 U.S.C. § 2254(e)(1), Almanza asserts that certain findings of fact by 

the state court, concerning his state post-conviction proceedings, if any are found 

to exist, are not fairly supported by the record. 

III. EXHAUSTION 

Many of the federal constitutional claims alleged herein have been exhausted 

in proceedings before the Arizona state courts. Some claims, however, were not 

fully presented to the state court, were not ripe for review, or could only be raised 

in this forum. 

Almanza expressly reserves his right to amend this Petition. In McCleskey v. 

Zant, 499 U.S. 467, 498 (1991), the Supreme Court reaffirmed the “principle that 

[a] petitioner must conduct a reasonable and diligent investigation aimed at 

including all relevant claims and grounds for relief in the first federal habeas 

petition.” Referring to Habeas Rule 6 (discovery), Habeas Rule 7 (expansion of the 

record) and Habeas Rule 8 (evidentiary hearing), the Supreme Court held that a 

habeas petitioner has to have reasonable means and the ability to investigate to form 

a sufficient basis to allege a claim in the first petition. Id. Almanza believes 

additional claims may be identified following a thorough review of the record, 

through investigation, after discovery is conducted and completed, or after an 

evidentiary hearing is held. At the appropriate time during these proceedings, 

Almanza will present any additional claims through amendments to the petition. 

IV. THE AEDPA IS UNCONSTITUTIONAL 

Almanza’s case is governed by the Antiterrorism and Effective Death Penalty 

Act (“AEDPA”). 28 U.S.C. § 2254. However, AEDPA is unconstitutional and its 

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strictures should not apply here. Central to fundamental fairness and the integrity 

of the United States’ justice system is that every prisoner must have all of his 

constitutional claims heard by a court. See Bounds v. Smith, 430 U.S. 817, 822-23 

(1977). One method of ensuring that a prisoner’s constitutional claims are heard is 

through the writ of habeas corpus. However, the passage of AEDPA substantially 

changed the law that governs habeas petitions. See Felker v. Turpin, 518 U.S. 651, 

654 (1996). AEDPA’s restrictions suspend the writ of habeas corpus and violate the 

separation of powers, which results in prisoners remaining in prison without review 

of alleged constitutional defects of their convictions and sentences. 

A. AEDPA Suspends the Writ of Habeas Corpus 

Congress cannot define prisoners’ habeas rights so narrowly that Congress, 

in effect, suspends the writ. The writ of habeas corpus is guaranteed by the United 

States Constitution in the Suspension Clause, which provides that “[t]he Privilege 

of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of 

Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. 

The Suspension Clause is a structural limitation on the power of Congress. Like 

bills of attainder and ex post facto laws, which are also prohibited in Article I, 

section 9, the suspension of habeas (except in cases of rebellion or invasion) belongs 

to a “category of Congressional actions which the Constitution barred.” United 

States v. Lovett, 328 U.S. 303, 315 (1946). The writ “can be preserved in practice 

no other way than through the medium of the courts of justice; whose duty it must 

be to declare all acts contrary to the manifest tenor of the Constitution void.” Id. at 

314 (quoting The Federalist No. 78 (Alexander Hamilton)). 

Because AEDPA prevents federal courts in certain circumstances from 

granting relief when it is undisputed that the conviction or sentence was 

unconstitutional, it suspends the writ of habeas corpus. See 28 U.S.C. § 2254. Under 

the tenets of AEDPA, the federal court must determine whether a federal 

constitutional violation, in a non-capital case, was a “reasonable” or “unreasonable” 

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constitutional violation. 

B. AEDPA Violates the Separation of Powers Doctrine 

Congress cannot impinge on the courts’ duty to say what the law is, but 

Congress does so when it requires Article III courts to ignore any part of the 

Constitution and to instead give effect to a contrary law. See Marbury v. Madison, 

5 U.S. (1 Cranch) 137, 178 (1803). 

Congress has the power to constrain courts’ authority. See Keene Corp. v. 

United States, 508 U.S. 200, 207 (1993). “The judicial Power of the United States, 

shall be vested in one supreme Court, and in such inferior Courts as the Congress 

may from time to time ordain and establish.” U.S. Const. art. III, § 1. However, 

Congress must not manipulate the “test for determining the scope of [habeas 

corpus]” because the writ “is designed to restrain” Congress, and because the writ 

is “an indispensable mechanism for monitoring the separation of powers.” 

Boumediene v. Bush, 553 U.S. 723, 765-66 (2008). 

The separation of powers doctrine found in Article III “serves both to protect 

the role of the independent judiciary within the constitutional scheme of tripartite 

government . . . and to safeguard litigants’ right to have claims decided before 

judges who are free from potential domination by other branches of government.” 

Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848 (1986) (internal 

citations and quotation marks omitted). When it was confronted with an 

unconstitutional provision, the Supreme Court in Marbury asked whether courts are 

bound by “an act of the legislature” that is “repugnant to the constitution;” the Court 

answered that “[i]t is emphatically the province and duty of the judicial department 

to say what the law is.” 5 U.S. at 177. 

“[I]f Congress does provide for habeas in the federal courts, Congress 

cannot . . . instruct the federal courts, whether acting in a federal or in a state case, 

how to think, how to ascertain law, how to judge.” Irons v. Carey, 505 F.3d 846, 

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855 (9th Cir. 2007) (Noonan, J., concurring), overruled on other grounds by 

Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010). Because AEDPA requires 

courts to ignore unlawful detentions if the prisoner does not meet certain provisions, 

it unconstitutionally violates the separation of powers doctrine. The question before 

the federal court should simply be whether Almanza’s constitutional rights were 

violated in such a way that he is entitled to habeas relief. Adding the gloss of 

“unreasonable” versus “reasonable” constitutional violations robs the courts of their 

ability to remedy constitutional wrongs. 

C. Conclusion 

AEDPA suspends the writ of habeas corpus and violates the separation of 

powers doctrine because it dictates that courts must not “grant relief to citizens who 

are being held in prison in violation of their constitutional rights unless the 

constitutional error that led to their unlawful conviction or sentence is one that could 

not have been made by a reasonable jurist.” Irons, 505 F.3d at 859 (Reinhardt, J., 

concurring). Also, AEDPA does not allow an appellate judge to correct an unlawful 

detention if a lower court’s “error is understandable,” which is inconsistent with a 

judge’s duty “to enforce the laws and protect the rights of our citizens against 

arbitrary state action.” Id. Therefore, AEDPA is unconstitutional, and this Court 

should review Almanza’s claims de novo. 

V. FEDERAL CONSTITUTIONAL CLAIMS 

Almanza petitions this Court pursuant to 28 U.S.C. § 2254 for a writ of 

habeas corpus freeing him from the custody of Respondents pursuant to the 

judgment and sentence of the state courts of Arizona, on the grounds that the 

judgment and sentence were obtained and affirmed in violation of his rights under 

the Constitution of the United States. In support of this request, Almanza offers the 

following: 

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Claim One 

Trial counsel provided ineffective assistance during Almanza’s 

trial, violating Almanza’s rights under the Sixth and Fourteenth 

Amendments to the United States Constitution. 

Almanza raised this claim in his post-conviction proceedings. (PCR, Pet. for 

Post-Conviction Relief, May 19, 2016 at 2 (Dkt. 13); Ariz. Ct. App. PFR, Pet. for 

Review, Feb. 21, 2017 at 11-18; Ariz. S. Ct. PFR Dkt. 1 at 12.) None of the Arizona 

state courts addressed the merits of this claim. (PCR, Ruling on Motions/Issues, 

Aug. 5, 2016 at 1 (Dkt. 16); Ariz. Ct. App. PFR, Mem. Decision, July 25, 2017 at 

3; Ariz. S. Ct. PFR Dkt. 4 at 1.) Because this claim has not been adjudicated by the 

Arizona state courts on the merits, the limitations on relief imposed by 28 U.S.C. 

§ 2254(d) do not apply to this Court’s review of the claim and this Court may 

consider the merits of this claim de novo. If this Court deems this claim 

unexhausted, Almanza alleges he can overcome any default of this claim by 

showing cause and prejudice, including because of the ineffective assistance of state 

post-conviction counsel. See Martinez v. Ryan, 566 U.S. 1, 9 (2012); Murray v. 

Carrier, 477 U.S. 478, 488-89 (1986); Strickland v. Washington, 466 U.S. 668, 687-

88 (1984). Almanza will demonstrate at an evidentiary hearing that post-conviction 

counsel fell below the standards of minimally competent attorneys and that those 

failures prejudiced him. Almanza incorporates by specific reference all facts, 

allegations, and arguments made elsewhere in this Petition. 

Almanza’s trial counsel committed multiple serious errors during his trial, 

and consequently, the result of those proceedings is unreliable. This claim is subject 

to the two-prong standard established in Strickland: counsel’s performance must be 

deficient, and such deficient performance must have prejudiced the defense. 

Strickland, 466 U.S. at 687. First, the inquiry under the deficiency prong is “whether 

counsel’s assistance was reasonable considering all the circumstances.” Id. at 688. 

Performance is deficient when the attorney renders objectively unreasonable 

assistance. Id. at 687-88. Although defense counsel has broad discretion when

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making strategic decisions, those decisions must be reasonable and informed. Id. at 

691; see also Correll v. Ryan, 539 F.3d 938, 949 (9th Cir. 2008) (holding that an 

“uninformed strategy” is “no strategy at all”). In assessing counsel’s performance, 

this Court should look to guides, such as the American Bar Association standards 

at the time of trial, Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (per curiam), as well 

as the standards of practice in the defense community in Arizona, Cullen v. 

Pinholster, 563 U.S. 170, 196 (2011). “[C]ounsel’s function, as elaborated in 

prevailing professional norms, is to make the adversarial testing process work in 

the particular case.” Strickland, 466 U.S. at 690. Moreover, “[t]rial lawyers have a 

‘duty to bring to bear such skill and knowledge as will render the trial a reliable 

adversarial testing process.’” Connick v. Thompson, 563 U.S. 51, 65 (2011) 

(quoting Strickland, 466 U.S. at 688). 

The reasonableness of counsel’s decisions is measured by the reasonableness 

of the investigation done in making such a decision. Cf. Wiggins v. Smith, 539 U.S. 

510, 523 (2003) (focusing on “whether the investigation supporting counsel’s 

decision not to introduce mitigating evidence of Wiggins’ background was itself 

reasonable.”). “[S]trategic choices made after less than complete investigation are 

reasonable precisely to the extent that reasonable professional judgments support 

the limitations on investigation.” Strickland, 466 U.S. at 690-91. In other words, 

any strategic decision made by counsel must be “reasonable and informed.” 

Jennings v Woodford, 290 F.3d 1006, 1014 (9th Cir. 2002). 

When assessing the second prong, a court must decide whether “counsel’s 

errors were so serious as to deprive the defendant of a fair trial, a trial whose result 

is reliable.” Strickland, 466 U.S. at 687. A petitioner does not have to demonstrate 

by a preponderance of the evidence that “the result in his case would have been 

different but for counsel’s errors,” but only that there was a reasonable probability 

that the errors undermined confidence in the outcome of his trial. Brown v. Myers, 

137 F.3d 1154, 1157 (9th Cir. 1998) (citing Strickland, 466 U.S. at 694); see also 

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Jennings, 290 F.3d at 1016 (quoting Strickland, 466 U.S. at 694 (rejecting explicitly 

the preponderance standard)); Lord v. Wood, 184 F.3d 1083, 1085 (9th Cir. 1999). 

And “despite the strong presumption of reliability,” the question to be asked is 

whether “the result of the particular proceeding is unreliable because of a 

breakdown in the adversarial process that our system counts on to produce just 

results.” Strickland, 466 U.S. at 696. Moreover, “deficient performance and 

prejudice questions may be closely related.” Correll, 539 F.3d at 951 (citations 

omitted). Indeed, counsel’s performance in and of itself could undermine a court’s 

confidence in the outcome of the trial. Id. 

“In making this [prejudice] determination, a court hearing an ineffectiveness 

claim must consider the totality of the evidence before the judge or jury.” 

Strickland, 466 U.S. at 695; see also Williams (Terry) v. Taylor, 529 U.S. 362, 397-

98 (2000); Alcala v. Woodford, 334 F.3d 862, 882-83 (9th Cir. 2003) (granting relief 

on basis of cumulative impact of multiple errors by counsel); Harris ex rel. 

Ramseyer v. Wood, 64 F.3d 1432, 1439 (9th Cir. 1995) (holding that the cumulative 

impact of numerous deficiencies in defense counsel’s performance was prejudicial 

to the defense, rendering the proceedings improper and warranting habeas relief). 

Even if this Court finds that no single error amounts to prejudice, it, nonetheless, 

should apply cumulative error principles to grant relief. See Boyde v. Brown, 404 

F.3d 1159, 1176 (9th Cir. 2005) (quoting Cooper v. Fitzharris, 586 F.2d 1325, 1333 

(9th Cir. 1978) (en banc)). 

A critical aspect in assessing prejudice under Strickland is to consider 

whether the combined errors by trial counsel impacted the trial in a manner that 

violated the Sixth Amendment. The Supreme Court did not instruct that each 

individual error should be reviewed for prejudice, but rather that the totality of the 

errors by counsel should be reviewed collectively for prejudice. In fact, Strickland

established that assessing prejudice resulting from an ineffective assistance of 

counsel claim is identical to assessing materiality for a suppression-of-evidence 

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claim under United States v. Agurs, 427 U.S. 97, 104, 112-13 (1976). Strickland, 

466 U.S. at 694. And the Supreme Court has continually explained that when 

assessing materiality, the suppressed evidence must be “considered collectively, not 

item by item.” Kyles v. Whitley, 514 U.S. 419, 436 (1995); see also Strickland, 466 

U.S. at 695 (“In making this [prejudice] determination, a court hearing an 

ineffectiveness claim must consider the totality of the evidence before the judge or 

jury.”); Williams (Terry), 529 U.S. at 397 (holding that when assessing prejudice, 

reviewing court must consider “the totality of the available mitigation evidence—

both that adduced at trial, and the evidence adduced in the [post-conviction] 

proceeding”); Alcala, 334 F.3d at 882-83 (granting relief on basis of cumulative 

impact of multiple errors by counsel); Martin v. Grosshans, 424 F.3d 588, 592 (7th 

Cir. 2005) (“[E]ven if [trial counsel’s] errors, in isolation, were not sufficiently 

prejudicial, their cumulative effect prejudiced Martin’s defense.”); Lindstadt v. 

Keane, 239 F.3d 191, 194, 205 (2d Cir. 2001) (granting relief where petitioner was 

prejudiced by cumulative effect of errors committed by trial counsel). Accordingly, 

“[s]eparate errors by counsel at trial and at sentencing should be analyzed together 

to see whether their cumulative effect deprived the defendant of his right to 

effective assistance.” Sanders v. Ryder, 342 F.3d 991, 1001 (9th Cir. 2003) (citation 

omitted). “They are, in other words, not separate claims, but rather different aspects 

of a single claim of ineffective assistance of trial counsel.” Id. Even if prejudice 

does not result from an individual error, it may nevertheless result from cumulative 

errors. See Boyde, 404 F.3d at 1176 (quoting Cooper, 586 F.2d at 1333). 

Paul Green of Cooper & Rueter first appeared on Almanza’s behalf on April 

1, 2013. (ROA 77.) He was the fourth attorney to appear for Almanza in his trial 

proceedings. (See ROA 6; ROA 31; ROA 72; ROA 77.) Green believes that 

Almanza’s case was the first sex case he handled. Six months after Green’s first 

court appearance, Almanza’s case proceeded to trial with Green representing him. 

(ROA 96.) Despite the short amount of time between his appointment and the 

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beginning of trial, Green did not ask for any continuances. 

The following sections of this claim detail the ways in which Almanza’s trial 

counsel, Green, rendered constitutionally ineffective assistance of counsel 

throughout Almanza’s trial. These errors individually and in the aggregate “were 

so serious as to deprive [Almanza] of a fair trial, a trial whose result is reliable.” 

Strickland, 466 U.S. at 687. 

A. Trial counsel provided ineffective assistance when he failed to 

thoroughly investigate the case. 

Trial counsel failed to sufficiently investigate Almanza’s defenses and thus 

failed to present any evidence at trial on Almanza’s behalf. Almanza’s defense 

offered no witnesses or exhibits for the jury to consider. Furthermore, trial counsel 

offered only minimal challenges to the witnesses called by the State.

1. Trial counsel failed to investigate possible lay witnesses. 

Because there were no witnesses to the alleged offense, this case hinged on 

credibility. But, Green failed to investigate or to call any witnesses to testify who 

could have lent credibility to Almanza or who could have discredited Quinn or 

A.W. One possible witness, Jaime Kame (“Kame”), another employee of the 

Double Check Ranch who worked with both Almanza and Quinn, was contacted by 

Patrick Cote (“Cote”), the defense’s investigator, prior to the trial. (Ariz. Ct. App. 

PFR, Pet. for Review, Feb. 21, 2017, Ex. D at 3.) Cote asked if Kame was working 

at the Ranch on October 22, 2011, but when he said he was not, Cote did not ask 

him any additional questions or contact him again. (Ariz. Ct. App. PFR, Pet. for 

Review, Feb. 21, 2017, Ex. D at 3.) If Kame had been interviewed more thoroughly, 

he would have provided additional information and been willing to testify on 

Almanza’s behalf. (Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 2017, Ex. D at 3.) 

Specifically, Kame would have testified that Quinn has a reputation for dishonesty 

and being manipulative. (Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 2017, Ex. 

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D at 2.) He would also have testified that, prior to Almanza’s trial, he heard Quinn 

tell her children that they would own the Double Check Ranch someday because 

she planned to sue the owner, which she did after Almanza was charged with this 

crime. (Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 2017, Ex. D at 1.) Kame also 

is aware that Quinn has a history of lying to police and attempting to manipulate 

the legal system to her advantage.2

 (Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 

2017, Ex. D at 2.) These statements are relevant to Quinn’s motive and bias for the 

testimony that she offered and would have been admissible to undermine her 

credibility. Additionally, Kame was aware that during the course of the 

investigation and trial, Quinn began dating a Pinal County sheriff’s deputy, which 

was the agency investigating the case. (Ariz. Ct. App. PFR, Pet. for Review, Feb. 

21, 2017, Ex. D at 2.) Finally, Kame would have testified that, prior to Almanza’s 

arrest, Kame urged him to flee to Mexico to avoid prosecution, but Almanza 

refused, adamant that he was innocent. (Ariz. Ct. App. PFR, Pet. for Review, Feb. 

21, 2017, Ex. D at 2.) 

Another possible witness that the defense team could have called to testify is 

Paul Schwennesen (“Paul”). The Schwennesens were the owners of the Double 

Check Ranch. In addition, Paul is a graduate of the Air Force Academy, has a 

master’s degree in history from Harvard University, and is currently working on a 

Ph.D. in 16th Century Spanish history. He would have made a credible witness at 

trial. Paul would have testified that Quinn uses and abuses the legal system to her 

personal advantage, that he was skeptical that Almanza had molested A.W. and 

thought the whole thing was a set up, and that he believed Quinn likely used and 

 

2

 This history includes an incident that occurred in April 2016, after Almanza’s trial, 

where Quinn called the police to report that her then-husband had assaulted her. 

After a brief investigation, the police determined that Quinn had rolled around on 

the ground and staged the incident in an attempt to get her husband arrested after 

he had confronted her about a possible affair with another man. No charges were 

ever filed against her then-husband. 

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abused drugs. Paul also believed that Quinn neglected her children and that they 

would do anything to get her attention. This testimony not only would have 

undermined the veracity of both A.W. and Quinn’s testimony, but also would have 

provided a basis for the impeachment of Quinn that Green had pushed for and been 

denied by the trial court. (Tr. Sept. 30, 2013 a.m. at 44) (“The only information you 

have is what your client has told you? No corroboration of any kind? . . . motion in 

limine is [to preclude impeachment of Quinn] granted.”) 

The foundation for this impeachment testimony would have been further 

developed if Green had investigated or presented the testimony of the Morales 

family. A. Morales is the 16 year old boy who was rumored to be engaging in an 

affair with Quinn. According to Green, “we have searched and been unable to find 

the young man.” (Tr. Sept. 30, 2013 a.m. at 44.) If the defense team had tried harder 

to located Morales and his family, they would have been able to learn that A. 

Morales’s mother was also Quinn’s babysitter. Felicia Morales loved Quinn’s 

children, but found Quinn to be unreliable about picking her kids up and paying 

Felicia for watching them. Felicia also recalls being surprised by how calm Quinn 

was when she told her about the alleged sexual assault of A.W. and believes that 

there were “good odds” that A.W. was manipulated and coached by Quinn. Michael 

Morales, A. Morales’s father, believes Quinn is a narcissist and manipulator whose 

word cannot be trusted. He reports that she is now a heavy drug user. 

Paul’s wife, Sarah Schwennesen (“Sarah”), also would have been willing to 

testify about Quinn’s veracity and reliability, but no one from Almanza’s trial 

defense team ever contacted her. Sarah, now a lieutenant colonel in the Air Force 

Reserve, is a graduate of the Air Force Academy and holds a master’s degree in 

history from Harvard. She would have testified that Quinn lived on the ranch and 

was the senior employee there. Sarah was “skeptical” about the accusations leveled 

against Almanza because Quinn was “prone to histrionics.” Sarah did not believe 

anything she said was truthful. She believes that Almanza was set up and that he is 

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innocent. Sarah would also have testified that Paul received two calls from Quinn 

complaining about Almanza. During the first call, she demanded Almanza be fired 

because he was sexually harassing her, a claim Quinn repeated at trial. However, 

the next time Sarah saw Quinn, Quinn told her that she was willingly working in 

proximity to Almanza, in fact, that he was helping her in the packing house at her 

behest. When Sarah expressed surprise at this, Quinn told her that she was “fine 

with him.” During the second call, Quinn told the Schwennesens that Almanza had 

assaulted her daughter, but then admitted that she had not bothered to contact law 

enforcement about the alleged assault. Sarah also would have testified that when 

the Schwennesens fired Quinn, she refused to leave the ranch an attempted to extort 

money from them, threatening to divulge secrets about the ranch if they did not pay 

her. 

Similarly, Johnny Ink (“Ink”), Quinn’s oldest son, J.I.’s, father, would have 

been willing to testify about Quinn and her reputation for dishonesty if he had been 

contacted by defense counsel prior to trial. Ink would have been able to testify that, 

when he met Quinn in Washington, she was a call girl and a drug addict. At that 

time, she would cook methamphetamine in her apartment. Their brief fling led to 

her pregnancy and, the day after J.I. was born, Quinn abruptly left both J.I. and Ink 

behind. Ink did not see or hear from her again for more than a year. For the first 

year of J.I.’s life, Ink was J.I.’s primary caregiver and raised him alone. However, 

not long after J.I.’s first birthday, two Seattle police officers came to Ink’s business 

and asked about the baby. They explained that Quinn was alleging that Ink was an 

unfit parent and that he had threatened to kill her at gun point, despite the fact that 

he did not even own a gun. The police officers observed J.I. and Ink together and 

determined that Ink was telling the truth. Ink was served with custody papers the 

next day. Quinn’s parents paid for a better lawyer than Ink could afford and Quinn 

was awarded primary custody of J.I., taking him to Arizona after the custody 

proceedings were over. During the custody proceedings, Quinn’s father apologized 

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to Ink for what was happening. Based on Ink’s experiences with Quinn, he has grave 

doubts about the veracity of any report she made to law enforcement. He knows her 

to be manipulative and a liar because she falsely accused him of abusing and 

endangering his son whom she had, in fact, abandoned. 

2. Trial counsel failed to consult with and investigate possible 

expert witnesses. 

Trial counsel also failed to consult with and call a medical expert to testify 

about A.W.’s injuries. As is discussed in Claim 6 infra, there were issues with some 

of the medical testimony and certainly with the colposcope photographs that were 

admitted. Furthermore, A.W.’s injuries were inconsistent with a barbed wire scrape, 

which was the main defense employed by Green in Almanza’s case. (Tr. Oct. 2, 

2013 at 228.) If Green had consulted with a qualified medical expert, that expert 

could have explained to him that the barbed wire defense was medically 

inconsistent with the facts of this case and therefore, that it was a flawed defense. 

A medical expert also could have explained the problems with the medical 

examination, the colposcope photographs, and could have advised Green on how to 

appropriately and effectively cross-examine the State’s medical experts. A qualified 

medical expert could have testified that Sharon Welch’s expert testimony was 

unreliable and that the measured size of the abrasion that was testified to was 

nonsense. A medical expert could also have discredited Dr. Julie Klein’s testimony 

that A.W.’s injury was unlikely to have been caused by something other than digital 

penetration. (Tr. Oct. 2, 2013 at 241-42.) In fact, a defense medical expert could 

have testified that this abrasion very likely could have been caused by a variety of 

other things, specifically, that it was more likely caused by rubbing up against 

something, like a bicycle seat or tree branch. 

Additionally, a medical expert called by the defense would have testified that 

the injury does not appear to be within the vulva and therefore, that the elements of 

the crime were not proved. Finally, the medical expert would have testified that if 

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Almanza had actually hit A.W. in the back with a shovel, as she reported numerous 

times, there should have been some evidence of something on her back, which 

would have contradicted Dr. Klein’s testimony that it was normal to see no signs of 

blunt trauma there. (See Tr. Oct. 2, 2013 at 226.) 

Trial counsel also failed to consult with and present the testimony of a false 

confession expert. A false confession expert would have explained that Almanza’s 

statements to the police during the interrogation were not a confession and that the 

coercive atmosphere of his interrogation, coupled with his inability to speak 

English, this cognitive dysfunction, and his limited education, make all of his 

statements unreliable. (See Claim 4 infra.) A false confession expert would have 

testified that Almanza was easily manipulated and coerced and that, coupled with 

the language barrier, he was likely to just agree or go along with someone like 

Detective Randall Snyder or Johnny Boggs (“Boggs”), despite not really 

understanding what was going on. (See Claims 4 and 7 infra.) 

Similarly, trial counsel failed to investigate and present evidence 

corroborating Almanza’s story about his recent hernia surgery. Almanza’s medical 

records confirm that on October 5, 2011, Almanza had hernia surgery. (Ariz. Ct. 

App. PFR, Pet. for Review, Feb. 21, 2017, Ex. C.) It was his second hernia surgery 

and he was still recovering at the time of the alleged offense. (Ariz. Ct. App. PFR, 

Pet. for Review, Feb. 21, 2017, Ex. C.) The doctor noted that Almanza would limp 

for several weeks after the surgery and advised him not to engage in any strenuous 

activity. (Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 2017, Ex. C at 3-4.) This 

confirmed injury and its resulting limitations cast doubt on Almanza’s ability to lift 

up and carry A.W. some distance to the pigpen on the day of the offense, which is 

what Almanza told police. (Trial Ex. 116 at 55-56.) Detective Snyder also testified 

to the jury that during the interrogation, Almanza “admitted that one hand had been 

on her butt when he was carrying her.” (Tr. Oct. 2, 2013 at 94.) Had Green called 

Almanza’s doctor to testify and offered these medical records as exhibits, he could 

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have called into question the testimony about the course of events that day, as well 

as Detective Snyder’s characterization of Almanza’s interrogation as a confession 

because it was inconsistent with what he would have physically been able to do. 

Any reasonably effective trial lawyer would conduct a thorough investigation 

of all possible expert and lay witnesses to try to be able to present the best case 

possible in their client’s defense, especially when the client himself is not testifying. 

In particular, it is essential in cases that rest on the credibility of witnesses to search 

for any witnesses who will be able to bolster your client’s credibility and undermine 

that of the State’s witnesses. Consulting with your own medical expert is also 

essential to understanding cases involving injuries, to being prepared to 

appropriately and effectively cross-examine the State’s medical experts, and to 

presenting testimony contradicting the State’s experts. Green failed to conduct any 

of this basic investigation. 

By failing to conduct this investigation to determine what information was 

available and what the best and most persuasive defense would be, Green’s failures 

were not the result of strategic decisions because, even if Green believed they were 

so, they were not reasoned and informed. Furthermore, Almanza was clearly biased 

by Green’s deficient representation. Because of Green’s failure to investigate, no 

witnesses were presented in Almanza’s defense and Green pursued an impossibly 

flawed defense that A.W. had been injured by a barbed wire fence, despite the fact 

that A.W.’s injury was inconsistent with that theory. Had Almanza’s been able to 

present a more complete and meaningful defense, including undermining the 

credibility of Quinn, the outcome of his trial would likely have been different. Thus, 

Green’s errors undermine confidence in the outcome of Almanza’s trial and he is 

entitled to relief. 

B. Trial counsel provided ineffective assistance when he failed to 

thoroughly investigate Almanza’s mental health and IQ. 

Although he was aware of Almanza’s cognitive defects, trial counsel retained 

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no experts to evaluate Almanza or to determine whether he suffered from any 

cognitive limitations until after he was found guilty. (ROA 118.) This type of 

investigation was especially pertinent in light of Almanza’s alleged incriminatory 

statements both to the police and to his fellow inmate, Boggs. 

Recently, Almanza was evaluated by a psychologist retained by the Office of 

the Federal Public Defender, who discovered not only that Almanza’s “cognitive 

functions have been impaired since an early age,” making his test results 

comparable to that of an eleven-year-old, but who also expressed concerns 

regarding organic, neuropsychological impairments. (Ariz. Ct. App. PFR, Pet. for 

Review, Feb. 21, 2017, Ex. B at 5.) Additionally, the Office of the Federal Public 

Defender commissioned a post-trial neuropsychological evaluation which revealed 

that Almanza’s “language deficits, his relatively low estimated intellectual 

functioning, and his borderline cognitive processing speed are most likely 

attributable to his poor early developmental experiences and his lack of formal 

education.” (Ariz. Ct. App. PFR, Mot. to Stay Pet. for Review, June 5, 2017, Ex. C 

at 5.) This information would have been relevant in questioning the reliability and 

veracity of Almanza’s alleged confessions and in explaining Almanza’s 

susceptibility to manipulation and misunderstanding. Thus, had trial counsel 

consulted these types of experts and had Almanza evaluated, counsel would have 

been able to present testimony at trial on Almanza’s behalf that would undermine 

the authenticity and appearance of confession described by both Boggs’s and 

Detective Snyder’s testimonies. This error undermines the confidence in the 

outcome of Almanza’s trial and he is entitled to relief. 

C. Trial counsel provided ineffective assistance when he failed to 

object to the numerous instances of prosecutorial misconduct. 

Throughout Almanza’s trial, Matt Long (“Long”) continuously made 

statements that violated Almanza’s right to due process. These statements were 

improper because the State is not permitted to inflame the jury and appeal to their 

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emotions. “The evil lurking in such prosecutorial appeals is that the defendant will 

be convicted for reasons wholly irrelevant to his own guilt or innocence.” United 

States v. Koon, 34 F.3d 1416, 1443 (9th Cir. 1994) (quoting United States v. 

Monaghan, 741 F.2d 1434, 1441 (D.C. Cir. 1984)), aff’d in part, rev’d in part on 

other grounds, 518 U.S. 81 (1996); see also United States v. Nobari, 574 F.3d 1065, 

1076 (9th Cir. 2009) (finding error when the prosecutor’s arguments “appear 

designed to encourage the jury to view the government’s case more favorably by 

appealing to positive emotion for the law enforcement officers involved in the drug 

bust. This was improper commentary and should have been struck from the record, 

as a prosecutor may not ‘tell[] the jury it had any obligation other than weighing the 

evidence’”(citation omitted)). 

The rampant prosecutorial misconduct that occurred during Almanza’s trial 

is discussed more fully in Claim 8 infra. Nonetheless, Almanza’s trial counsel failed 

to object to the prosecutorial misconduct, allowing it to continue and to 

inappropriately influence the jury’s consideration of the case, rendering his 

assistance ineffective. See Zapata v. Vasquez, 788 F.3d 1106, 1123-24 (9th Cir. 

2015) (finding ineffective assistance of trial counsel for failing to object to 

prosecutor’s misconduct). 

During Almanza’s trial, Long made twenty-four improper references in his 

opening statement to Almanza being a “poacher,” a “hunter,” a “fox,” a “fox in a 

henhouse,” and to A.W. being “prey” who was “selected” and “snatched up.” 

(Tr. Oct. 1, 2013 at 4-6, 8-10, 18.) These comments are not only inappropriate and 

inflammatory, but they are also not supported by the facts that were introduced at 

trial. This proposition and the effect of dehumanizing Almanza to the jury was 

bolstered by many additional references in the prosecutor’s closing argument to 

Almanza being a “hunter” or a “poacher” and A.W. being his “prey.” (Tr. Oct. 7, 

2013 p.m. at 4, 7, 30.) Moreover, these comments included references to Almanza’s 

“hunting grounds, to his trap, the trap that he had laid.” (Tr. Oct. 7, 2013 p.m. at 7.) 

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These characterizations of Almanza were even more improper given the racial 

undertones and the fact that Almanza is Hispanic. Long’s remarks thus constituted 

a coded racial appeal to Almanza’s jury as well.3

 However, Green did not object to 

any of these characterizations of his client. 

In Almanza’s trial, the prosecutor also engaged in impermissible vouching 

by vouching for A.W.’s credibility and for the minimal physical evidence in the 

case. During his opening statement, Long made at least eleven references to the 

“truth” spoken by A.W. and by her body. (Tr. Oct. 1, 2013 at 4, 5, 10, 12-13, 16-

18.) Furthermore, during closing argument, the prosecutor continued this thread of 

statements, but heightened their impact by characterizing A.W.’s body as 

“scream[ing]” the truth. (Tr. Oct. 7, 2013 p.m. at 8-11, 13, 18, 23, 26, 44.) This 

statement was made at least ten times during the closing argument. Nonetheless, 

Green did not object once. 

Long also disingenuously vouched for Boggs during his closing argument. 

During his closing argument, Long commented that Boggs had “absolutely nothing 

to gain by speaking his truth.” (Tr. Oct. 7, 2013 p.m. at 22.) Although it is unclear 

whether Boggs received a better plea in exchange for testifying against Almanza, 

his plea agreement did specifically specify that he would testify at Almanza’s trial. 

(Trial Ex. 128 at 3.) As a result, if he had refused to testify, the State could have 

invalidated his plea agreement and he could have been imprisoned. Green was 

aware of the plea agreement, but, nevertheless, failed to meaningfully cross-

 

3

 Scholar and University of California, Berkeley law professor Ian Haney López 

describes a claim which, on the surface, appears to “have nothing to do with race, 

yet [] nevertheless powerfully communicate[s] messages about threatening 

nonwhites”. Ian Haney López, Dog Whistle Politics: How Coded Racial Appeals 

Have Reinvented Racism and Wrecked the Middle Class ix (2015); see also Eduardo 

Bonilla-Silva, Racism without Racists: Color-blind Racism and the Persistence of 

Racial Inequality in America (4th ed. 2014) (discussing coded language that masks 

racial prejudice as the product of the post-1960s rise in color blind ideology). López 

explains that such references are in reality racial entreaties that “operate like a dog 

whistle” that is, “racial pandering [that] [ ] operates on two levels: inaudible and 

easily denied in one range, yet stimulating strong reactions in another.” Id. at 3. 

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examine Boggs or to object to the prosecutor’s incorrect and impermissible 

assertion regarding Boggs’s motives. Additionally, the characterization of Boggs’s 

testimony as the “truth” is a prime example of impermissible vouching for a 

witness, but Green failed to object to that as well. (Tr. Oct. 7, 2013 p.m. at 22.) 

In his final closing argument, Long also impermissibly commented on 

Almanza’s failure to testify, emphasizing, “[t]here are two people who know what 

happened, and the defendant is the other.” (Tr. Oct. 7, 2013 p.m. at 40.) He then 

went even further in his comments, ultimately shifting the burden of proof to 

Almanza through several statements, including “there’s no evidence of [A.W. being 

coached]. Where is the evidence of that? There isn’t any” (Tr. Oct. 7, 2013 p.m. at 

43) and “why didn’t [defense counsel] ask the expert in this case, is that reasonable. 

In this case, could that have happened. Because he [sic] rather have an argument 

than the facts because in this case there is no evidence that [A.W.] was impacted” 

(Tr. Oct. 7, 2013 p.m. at 43). Again, Green did not object. 

Green’s unreasonable failure to object to the continued instances of 

prosecutorial misconduct unduly prejudiced Almanza and amounted to 

constitutionally deficient performance. Almanza was prejudiced because the State 

was allowed to make numerous inappropriate and inflammatory statements to the 

jury and to make appeals to the jury’s sense of community and safety that are 

impermissible. The prosecutor’s inappropriate statements pervaded and infected the 

entirety of the proceedings and served to continually debase and dehumanize 

Almanza while praising and vouching for the virtues of Boggs, the jailhouse 

informant, and A.W.’s mother, Quinn. Green’s ineffectiveness deprived Almanza 

of a fair trial because it is likely that without this misconduct, the outcome of 

Almanza’s trial would have been different. 

D. Trial counsel provided ineffective assistance when he failed to 

adequately prepare for the suppression hearing and failed to 

adequately pursue the suppression of Almanza’s statements. 

In a pretrial motion, Almanza’s previous defense attorney, Bret Huggins 

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(“Huggins”), moved to suppress the warrantless arrest and the involuntary 

statements given to the police during their October 23, 2011 interrogation of 

Almanza. (ROA 42; ROA 43.) Huggins argued that due to Almanza’s language 

barrier and confusion about what was going on, in addition to his statements that he 

did not want to answer questions and about whether he needed an attorney, all of 

the statements that he made were involuntary and should be suppressed. (ROA 42 

at 3-4.) When Green became Almanza’s trial lawyer, he did not file any reply in 

support of these motions. (Tr. Sept. 30, 2013 a.m. at 6.) 

On the morning of trial, prior to jury selection, the trial court raised the fact 

that the suppression motion had not yet been ruled upon. (Tr. Sept. 30, 2013 a.m. at 

5-6.) The trial court also asserted that it needed to rule on this motion prior to the 

commencement of the trial. (Tr. Sept. 30, 2013 a.m. at 5-6.) The trial court held an 

impromptu and cursory voluntariness hearing. (Tr. Sept. 30, 2013 a.m. at 49-83.) 

Green clearly was not prepared for the suppression hearing. He had not filed the 

motion and had not re-urged it for a ruling prior to the date of trial. As a result, he 

was caught off-guard when the trial court raised the suppression issue and engaged 

in a pretrial hearing to make a determination. 

During a recess prior to the voluntariness hearing, the judge reviewed the 

transcript of Almanza’s interrogation and listened “to the recorded conversations 

from the beginning through advisement of Miranda and about 15 minutes into the 

discussion, [his] thoughts being that the issues that are before [him] really are 

limited up to the time of the Miranda, the beginning of the questioning.” (Tr. Sept. 

30, 2013 a.m. at 49-50.) The State called Detective Snyder as a witness and Green 

did not call any witnesses. (Tr. Sept. 30, 2013 a.m. at 51-76.) At the conclusion of 

the hearing, the trial court ruled that the arrest was legal, although the trial court 

indicated that it did not believe Almanza was under arrest, that Miranda

advisements were properly given, that Almanza appeared to understand what was 

going on, and that the statements Almanza made were voluntary. (Tr. Sept. 30, 2013 

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a.m. at 81-83.) 

The Supreme Court has clearly established rules that police must follow 

when interrogating a person in custody to ensure that the state does not violate the 

“basic” and “precious” rights of the Fifth Amendment. Miranda v. Arizona, 384 

U.S. 436, 442 (1966). Miranda mandates that when questioning an in-custody 

suspect about criminal activity, police officers must inform the suspect of his right 

to remain silent and his right to the presence of an attorney. Id. at 444. One of the 

most important prongs of the Miranda analysis is whether the person is in custody 

or free to leave and speaking to police voluntarily. The trial court emphasized the 

importance of this consideration during its ruling, indicating that “I’m not going to 

characterize it as an arrest. . . . He was told he was free to go.” (Tr. Sept. 30, 2013 

a.m. at 81.) This statement is not correct; Almanza was not told he was free to go 

prior to or during the questioning. (See generally, Trial Ex. 116.) He was only 

released and told that he could leave after the interrogation had concluded. (Trial 

Ex. 116 at 103-04.) 

The trial court’s confusion about whether Almanza was actually placed under 

arrest is exclusively attributable to Green’s failure to establish that fact during the 

hearing, as any reasonably competent attorney would have. In fact, Green even 

alerted the trial court to his deficiency in his closing argument on the suppression 

issue, explaining that “[w]e don’t have testimony yet as to whether he was 

handcuffed or not. I’m not sure whether he was or not.” (Tr. Sept. 30, 2013 a.m. at 

78.) Green could have easily established the fact that Almanza was in custody by 

calling witnesses who, unlike Detective Snyder, had actually been present when 

Almanza was stopped and arrested. Specifically, Deputy Parry and Deputy Foster 

of the Pinal County Sherriff’s Office, the two officers who stopped Almanza, 

explicitly acknowledge in their report that Almanza was placed under arrest. Green 

also failed to introduce testimony through Detective Snyder that Almanza had been 

placed in a holding cell for more than four and a half hours prior to the beginning 

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of the interrogation, which then lasted over two hours. (Trial Ex. 116 at 3, 107.)4 In 

addition to establishing that Almanza was “in custody” for the purposes of Miranda, 

these facts also establish the coercive atmosphere in which Almanza’s interrogation 

was conducted. These external, influential factors, as well as Almanza’s inability to 

read and also to speak English, are all relevant and persuasive facts that indicate 

that his statements were involuntary. 

Nonetheless, Green failed to sufficiently address and advocate for the 

suppression of Almanza’s statements, which were admitted at trial. The admission 

of these statements is clearly prejudicial because the State and Detective Snyder 

framed them as a confession and acknowledgement by that Almanza had digitally 

penetrated A.W., which they were not. This alleged confession persuaded the jury 

to determine his guilt. If these statements had not been admitted, the outcome of the 

trial would undoubtedly have been different. Therefore, Almanza is entitled to 

relief.

E. Trial counsel provided ineffective assistance when he elicited 

testimony regarding Almanza’s prior bad acts, failed to object to 

the testimony, and failed to request a limiting instruction. 

As discussed further in Claim 5, infra, during Almanza’s trial, defense 

counsel elicited the following testimony on cross-examination of Quinn: 

Q: Do you ever remember punching Fernando in the 

face? 

A: Yes, I do. 

Q: Can you tell me about that. 

A: He behaved inappropriately with me, and I turned 

around instinctively and I punched him. 

 

4

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for the pages that transcribe and translate Almanza’s Spanish communications with 

Sergeant Vargas. To avoid confusion, Almanza will pincite to the page numbers of 

the document as a whole and not the page numbers that appear on the actual 

transcript. 

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. . . 

Q: Were there other incidents where you and he did not 

get along? I mean, punching in the face seems like you 

didn’t— 

A: Yeah, that we – I just – I had bad feelings about him 

and I just didn’t want him near me. 

Q: And yet you would work with him and he would help 

you out occasionally? 

A: Not once I got those bad feelings. I would not let him 

around me or my children. 

(Tr. Oct. 1, 2013 at 171-72.) The State seized upon this line of testimony and 

followed up on redirect, asking Quinn to explain the instance when Almanza was 

inappropriate with her. Quinn responded that, “[h]e came up behind me and he 

pressed his body against me. He was clothed, I was clothed. . . . And he pressed 

himself up against me and I felt him in a way I did not want to feel, so I turned 

around and I punched him.” (Tr. Oct. 1, 2013 at 176.) She also elaborated that 

another time, “he came up behind me and grabbed me from my side, like this, and 

pushed himself against me. I screamed.” (Tr. Oct. 1, 2013 at 177.) Quinn further 

testified that Almanza had asked her out “at least six” times, but that she had turned 

him down (Tr. Oct. 1, 2013 at 177), that she saw him looking into her house at night 

(Tr. Oct. 1, 2013 at 178-79), and that, on two occasions, he came into her bedroom 

uninvited at 6 a.m. (Tr. Oct. 1, 2013 at 178). Defense counsel did not object to this 

line of questioning until the prosecutor asked, “Well, then certainly, Ms. Quinn, 

because of this animosity, you must have put your daughter up to accusing him of 

touching her?” (Tr. Oct. 1, 2013 at 179.) Defense counsel also did not ask for a 

limiting jury instruction regarding this prejudicial and irrelevant evidence. 

An effective trial attorney would never have elicited this testimony in the first 

place. There is no trial strategy where testimony about a defendant allegedly being 

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inappropriately physical and flirtatious with the mother of the victim would be 

beneficial or would endear him to the jury in any way. Green opened the door for 

the State to paint Almanza as a creepy and aggressive sexual predator, which 

suggested to the jury that he was therefore more likely guilty of this offense. 

Furthermore, Green failed to object to the additional testimony elicited by the State. 

Under 404(b) this testimony was not relevant and was certainly prejudicial. Green 

should have objected and attempted to prevent its admission. 

Even if evidence objected to under Rule 404(b) is ruled admissible as 

relevant for a proper purpose and not unfairly prejudicial, “the trial court is required 

to give a limiting instruction on its use if so requested.” State v. VanWinkle, 285 

P.3d 308, 314 (Ariz. 2012); see also State v. Mott, 931 P.2d 1046, 1055 (Ariz. 

1997). Due to the nature of the charges in this case and the nature of the 404(b) 

testimony presented, the need for a limiting instruction should have been apparent. 

See Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir. 2007) (finding deficient 

performance for failing to request limiting instruction when evidence of prior bad 

acts “was not briefly or fleetingly presented, but instead was a substantial portion 

of the Commonwealth’s case”). Nonetheless, despite this incident being one of the 

main focuses of Quinn’s testimony, Green did not ask the trial court for a limiting 

instruction. 

Furthermore, in his closing argument, Long returned to this testimony, 

commenting that 

It is a fact that her mother was divorced. He thought she 

might be easy, easy prey. Maybe it was the fact that the 

defendant pursued her mother and had been rebuffed by her 

mother. 

. . . 

But he knew this was his target. 

(Tr. Oct. 7, 2013 p.m. at 5.) Because Long focused on this evidence and asked the 

jury to draw inferences about Almanza’s character because of it, at the very least 

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the Long’s closing argument should have alerted Green of the need for an 

instruction telling the jury the limited purposes for which this evidence could 

properly be considered. See Musladin v. Lamarque, 555 F.3d 830, 846 (9th Cir. 

2009) (finding counsel performed deficiently by failing to ask for limiting 

instruction after prosecutor in closing argument “drew the jury’s attention to the 

damaging statement and invited them to draw the precise inference that limiting 

instruction would have forbidden”); Albrecht, 485 F.3d at 128 (“[T]he need for a 

limiting instruction was not hypothetical. In closing, the prosecutor improperly 

related the evidence of spousal abuse to [the defendant’s] character . . . In doing so, 

the prosecutor did not limit his use of the bad acts evidence to proving motive. 

Instead, he explicitly called upon the jury, by asking ‘what type of man is [the 

defendant],’ to view the evidence of prior bad acts as evidence of [the defendant’s] 

bad character and propensity to commit this crime.”). 

A reasonable and effective trial attorney would have avoided eliciting this 

prejudicial 404(b) testimony in the first place, but, would have objected to it. There 

can be no strategy involved in presenting the jury with testimony that a defendant 

charged with a deviant sexual offense has committed various degrees of sexual 

assault on previous occasions. At a minimum, a reasonable and effective attorney 

would have recognized the prejudice inherent in this testimony and asked the trial 

court to give a limiting instruction to the jury. Almanza’s trial counsel did not do 

any of these things and, given the nature of the charges, Almanza was undoubtedly 

prejudiced by the jury’s perception of him as overly sexually aggressive in 

situations where his affections are not reciprocated. Thus, Almanza has satisfied 

both prongs of the Strickland test and he is entitled to relief. 

F. Trial counsel provided ineffective assistance when he failed to ask 

the trial court to instruct the jury that they could find the lesser 

included crime of Molestation. 

Almanza was charged with Sexual Conduct with a Minor pursuant to A.R.S. 

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§ 13-1405.5 Molestation is a lesser included offense of Sexual Conduct that requires 

only that the defendant engaged in “sexual contact” with a child, whereas Sexual 

Conduct requires penetration. A.R.S. § 13-1410 (2011); see also A.R.S. § 13-

1401(3) (2011). Molestation of a child carries a maximum sentence of 24 years and 

a minimum of 10 years. A.R.S. § 13-705(D). The only possible sentence for Sexual 

Conduct with a Minor at the time of Almanza’s conviction was a life sentence. 

Given the nature of the accusations in this case and the reluctance of Arizona juries 

to disbelieve child victims, Green should have asked that the jury also be given an 

instruction and verdict form on the lesser included of Molestation. In actuality, the 

alleged facts of the case are much more consistent with the elements of Molestation 

than those of Sexual Conduct with a Minor. Furthermore, if the jury had been given 

this option, it would have enabled them to find Almanza guilty of something, if they 

believed that he was, but also would have enabled him to be released after a 

maximum of 24 years, instead of being sentenced to life in prison. By depriving the 

jury of this option, Green deprived his client of the chance to avoid a sentence of 

life in prison. As a result, Almanza was clearly prejudiced by this failure and is 

entitled to relief.

G. Trial counsel provided ineffective assistance by failing to 

meaningfully cross-examine A.W. 

A.W. was the most important witness against Almanza because she was the 

one who was accusing him of a crime. Nonetheless, Green’s cross-examination of 

A.W. did nothing to undermine her credibility or to poke holes in her story. Instead, 

Green treated her like a victim who was recounting a painful story, which merely 

served to make the jury more sympathetic toward her and to bolster her credibility 

by suggesting that Green too believed that she was a victim. Green began his cross-

 

5

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the time of Almanza’s trial. With regard to these statutes, Almanza will cite to the 

statutes that were in effect at the time of his conviction, which was the 2011-2012 

version that took effect on October 15, 2011. 

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examination of A.W. by apologizing and saying, “I’m sorry that I’m making you 

talk about it, but it’s really important.” (Tr. Oct. 1, 2013 at 117.) Green also 

apologized at the conclusion of his cross-examination, saying “I’m sorry we had to 

ask you all these questions. You’ve been a really good witness, though. You’ve 

done a good job.” (Tr. Oct. 1, 2013 at 127.) These apologies presuppose that A.W.’s 

account of the events of October 22, 2011 are true and that it was a difficult day and 

therefore, painful to her to recall. By approaching the cross-examination of A.W. 

this way, Green completely betrayed Almanza’s version of the day and made 

A.W.’s testimony appear more truthful. 

Green further abandoned his client in his closing argument, vouching for 

A.W. by informing the jury that “there’s only one person who truly knows what 

happened or didn’t happen here beyond a reasonable doubt, only one, and that’s 

[A.W.]” (Tr. Oct. 7, 2013 p.m. at 40.) In making this statement, Green is further 

undercut the credibility of Almanza’s insistence on his innocence because clearly 

Almanza also would know what happened that day and whether or not he actually 

committed this offense. 

Additionally, during A.W.’s initial interview by both the emergency room 

doctor and the Sexual Assault Nurse Examiner, she mentions that Almanza 

“whacked me with a shovel on my back.” (Trial Ex. 113 at 11.) However, there was 

no injury to A.W.’s back observed by any of the medical professionals who 

examined her. During her trial testimony, A.W. did not mention being hit with a 

shovel at all. This portion of her story, coupled with the complete lack of injury, 

seems illogical and unlikely. As a result, it undermines A.W.’s credibility and her 

account of the events of that day. Nonetheless, Green did not mention it at all during 

his cross-examination of A.W. He did not question her about when or why or how 

Almanza hit her with a shovel. He also did not question or impeach either A.W. or 

Quinn about the fact that, although initially telling the police in their witness 

statement that A.W. told her mother that Almanza had “tickled her,” they both 

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denied any tickling during their testimony, instead relaying that he “hurt” her. (See

Tr. Oct. 1, 2013 at 107; Tr. Oct. 1, 2013 at 168-69.) Further, he did not mention any 

of these inconsistencies in his closing argument. Instead of highlighting the 

inconsistencies and flaws in A.W.’s story, Green argued that A.W. is the “one 

person who truly knows what happened or didn’t happen here.” (Tr. Oct. 7, 2013 

p.m. at 40.) 

Almanza was prejudiced by Green’s deficient performance in his crossexamination of A.W. Instead of trying to undermine A.W.’s reliability and 

testimony, Green bolstered it, treating her like a victim and commenting that she 

knew the truth. By bolstering Almanza’s accuser in front of the jury, Green 

prejudiced Almanza and his trial proceedings. If Green had done a more effective 

job of cross-examination, as a reasonably competent attorney would have, the 

outcome of Almanza’s trial would likely have been different. Almanza is entitled 

to relief. 

H. The cumulative prejudicial impact of trial counsel’s deficient 

performance denied Almanza’s rights under the Sixth and 

Fourteenth Amendments. 

Even if this Court finds that no single error of deficient performance in the 

trial alone amounts to prejudice, it must also apply cumulative error principles to 

determine whether to grant relief. See Strickland, 466 U.S. at 695 (the question is 

whether, “absent the errors,” there would have been reasonable doubt); see also 

Boyde, 404 F.3d at 1176 (quoting Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th 

Cir. 1978) (en banc)). “[E]rrors that might not be so prejudicial as to amount to a 

deprivation of due process when considered alone, may cumulatively produce a trial 

setting that is fundamentally unfair.” Alcala, 334 F.3d at 883 (internal quotation 

marks and citation omitted); Harris, 64 F.3d at 1439 (cumulative impact of 

numerous deficiencies in defense counsel’s performance was prejudicial to the 

defense, rendering the proceedings improper and warranting habeas relief); Mak v. 

Blodgett, 970 F.2d 614, 622 (9th Cir. 1992) (finding counsel’s deficiencies taken in 

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combination with two other errors constituted a denial of petitioner’s due process 

rights). The multiple errors create a level of prejudice that renders a trial 

fundamentally unfair, which “constitutes a separate and independent basis for 

granting [relief].” Alcala, 334 F.3d at 883. 

In this case, Green rendered deficient performance throughout Almanza’s 

trial and it impacted the reliability of the entire proceeding. The cumulative 

prejudicial impact of Green’s deficient performance produced a trial setting that 

was fundamentally unfair and denied Almanza’s Sixth and Fourteenth Amendment 

rights. Almanza is therefore entitled to relief. 

Claim Two 

Almanza’s Sixth Amendment right to the effective assistance of 

counsel was violated by his direct appeal counsel’s failure to raise 

meritorious claims on direct appeal. 

Almanza incorporates by specific reference all facts, allegations, and 

arguments made elsewhere in this Petition. Almanza raised this claim in his postconviction proceedings. (PCR, Pet. for Post-Conviction Relief, May 19, 2016 at 2 

(Dkt. 13); Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 2017 at 18-19; Ariz. S. Ct. 

PFR Dkt. 1 at 12-13.) None of the Arizona state courts addressed the merits of this 

claim. (PCR, Ruling on Motions/Issues, Aug. 5, 2016 at 1 (Dkt. 16); Ariz. Ct. App. 

PFR, Mem. Decision, July 25, 2017 at 3; Ariz. S. Ct. PFR Dkt. 4 at 1.) Because this 

claim has not been adjudicated by the Arizona state courts on the merits, the 

limitations on relief imposed by 28 U.S.C. § 2254(d) do not apply to this Court’s 

review of the claim and this Court may consider the merits of this claim de novo. If 

this Court deems this claim unexhausted, Almanza can overcome any default of this 

claim by showing cause and prejudice, including because of the ineffective 

assistance of state post-conviction counsel. See Martinez, 566 U.S. at 9; Carrier, 

477 U.S. at 488-89; Strickland, 466 U.S. at 687-88; Nguyen v. Curry, 736 F.3d 1287 

(9th Cir. 2013); but see Davila v. Davis, 137 S. Ct. 2058. Almanza will demonstrate 

at an evidentiary hearing that post-conviction counsel fell below the standards of 

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minimally competent attorneys and that those failures prejudiced him. 

The effective assistance of appellate counsel is guaranteed by the Due 

Process Clause of the Fourteenth Amendment. See Evitts v. Lucey, 469 U.S. 387, 

396 (1985) (“A first appeal as of right . . . is not adjudicated in accord with due 

process of law if the appellant does not have the effective assistance of an 

attorney.”); id. at 395 (“Because the right to counsel is so fundamental to a fair trial, 

the Constitution cannot tolerate trials in which counsel, though present in name, is 

unable to assist the defendant to obtain a fair decision on the merits.”). As such, 

“nominal representation” during an appeal “does not suffice to render the 

proceedings constitutionally adequate.” Id. at 396. 

Ineffective assistance of appellate counsel claims are governed by the 

standard of review set forth in Strickland, 466 U.S. at 686-87. See Smith v. Robbins, 

528 U.S. 259, 285 (2000). Accordingly, Almanza must show that appellate 

counsel’s representation “fell below an objective standard of reasonableness,” and 

that “there is a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 

694. In addition, the ABA Guidelines are instructive in evaluating the 

reasonableness of counsel’s conduct. See Rompilla v. Beard, 545 U.S. 374, 387 

(2005). Regarding appellate counsel’s performance, the Guidelines indicate that 

“counsel should seek to litigate all issues . . . that are arguably meritorious” 2003 

ABA Guidelines § 10.15.1(C). Therefore, when appellate counsel fails to raise 

meritorious issues that could have resulted in a reversal of a conviction or sentence, 

counsel has necessarily caused prejudice to the defendant. See, e.g., Strickland, 466 

U.S. at 694; see also Nguyen, 736 F.3d 1287; Martinez, 566 U.S. 1. 

“In making this [prejudice] determination, a court hearing an ineffectiveness 

claim must consider the totality of the evidence before the judge or jury.” 

Strickland, 466 U.S. at 695; see also Williams (Terry) v. Taylor, 529 U.S. 362, 397-

98 (2000); Alcala v. Woodford, 334 F.3d 862, 882-83 (9th Cir. 2003) (granting relief 

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on basis of cumulative impact of multiple errors by counsel); Harris ex rel. 

Ramseyer v. Wood, 64 F.3d 1432, 1439 (9th Cir. 1995) (holding that the cumulative 

impact of numerous deficiencies in defense counsel’s performance was prejudicial 

to the defense, rendering the proceedings improper and warranting habeas relief). 

Even if this Court finds that no single error amounts to prejudice, it, nonetheless, 

should apply cumulative error principles to grant relief. See Boyde v. Brown, 404 

F.3d 1159, 1176 as amended by 421 F.3d. 1154 (9th Cir. 2005) (quoting Cooper v. 

Fitzharris, 586 F.2d 1325, 1333 (9th Cir. 1978) (en banc)). 

Individually and cumulatively, the deficiencies raised below constitute 

ineffective assistance of appellate counsel. See Strickland, 466 U.S. at 690 

(allegations of ineffectiveness must be examined in light of all the circumstances); 

Rompilla, 545 U.S. at 393 (evaluating prejudice based on the evidence “taken as a 

whole”). Appellate counsel’s deficient performance was prejudicial. Thus, 

Almanza is entitled to relief. 

A. Appellate counsel failed to challenge the prosecutorial misconduct 

that occurred during Almanza’s trial proceedings. 

Almanza received ineffective assistance because his attorney, Lynn 

Hamilton (“Hamilton”), failed to raise all relevant issues on appeal. Specifically, 

she failed to raise a claim regarding the prosecutorial misconduct discussed in 

Claim 8 infra. 

Hamilton’s actions were plainly deficient. Even if Hamilton’s actions could 

somehow be deemed strategic, that strategy was unreasonable and cannot be 

deferred to here. Most importantly, Hamilton should have known at the time of 

Almanza’s appeal that meritorious prosecutorial misconduct claims did win in 

Arizona. The Arizona Supreme Court had taken drastic actions in several cases in 

the years prior to Almanza’s appeal. In 2002, the Arizona Supreme Court reversed 

the defendant’s conviction and sentence in a capital appeal involving three murders, 

and barred retrial due to the extreme misconduct by the trial prosecutor. State v. 

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Minnitt, 55 P.3d 774, 776 (Ariz. 2002); see also id. at 781 (“Prosecutorial 

misconduct that permeates the process and intentionally destroys the ability of the 

tribunal to reach a fair verdict must necessarily be remedied.”). This decision was 

based on other Arizona cases that reached similar results on the basis of 

prosecutorial misconduct. See Pool v. Super. Ct. In and For Cty. of Pima, 677 P.2d 

261, 271-72 (Ariz. 1984); State v. Hughes, 969 P.2d 1184, 1186 (Ariz. 1998); see 

also State v. Jorgenson, 10 P.3d 1177 (Ariz. 2000). Further, the Arizona Supreme 

Court had recently ordered disbarment of the capital prosecutor whose conduct was 

at issue in Minnitt. In re Peasley, 90 P.3d 764, 779 (Ariz. 2004). 

Based on the evidence of pervasive and outrageous misconduct in this case 

and others prosecuted by Matt Long, as discussed in Claim 8 infra, Almanza was 

prejudiced by Hamilton’s failure to raise this issue on appeal. The Arizona Supreme 

Court has a history of reversing cases based on prosecutorial misconduct, and 

Almanza’s claim is meritorious. Long is an experienced prosecutor. Based on 

Long’s history and experience, he should know not to make improper and 

unsupported arguments. Long’s misconduct can only be seen as intentional conduct 

aimed to secure a guilty verdict, and the cumulative effect was undeniably 

prejudicial to Almanza, ultimately denying his right to a fair trial. Consequently, 

Almanza was prejudiced by counsel’s failure to raise this claim on direct appeal 

and he is entitled to evidentiary development and habeas relief. See Strickland, 466 

U.S. at 694. 

B. Appellate counsel failed to challenge the reasonable doubt jury 

instruction that shifted the burden to Almanza. 

Almanza received ineffective assistance because Hamilton failed to 

challenge the reasonable doubt jury instruction, discussed in Claim 11 infra, which 

impermissibly shifted the burden to Almanza to prove that he was innocent. A 

competent appellate attorney would have raised this claim to provide the Court with 

a chance to remedy the trial court error that rendered Almanza’s conviction and 

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sentence unconstitutional. See In re Winship, 397 U.S. 358, 364 (1970); see also

Holland v. United States, 348 U.S. 121, 140 (1954) (quoting Miles v. United States, 

103 U.S. 304, 312 (1880)); United States v. Walton, 207 F.3d 694, 705 (4th Cir. 

2000) (King, J., dissenting) (discussing criticism of such instructions and citing 

United States v. Porter, 821 F.2d 968, 973 (4th Cir. 1987), and Lawrence M. Solan, 

Refocusing the Burden of Proof in Criminal Cases: Some Doubt About Reasonable 

Doubt, 78 Tex. L. Rev. 105 (1999)); State v. Perez, 976 P.2d 427, 442 (Haw. Ct. 

App. 1998), aff’d in part, rev’d in part on other grounds, 976 P.2d 379 (Haw. 1999). 

There is a reasonable probability that, but for appellate counsel’s unprofessional 

error, the Arizona Court of Appeals would have determined that the trial court’s 

error rendered Almanza’s conviction and sentencing unconstitutional and granted 

relief. Consequently, Almanza was prejudiced by counsel’s failure to raise this 

claim on direct appeal. See Strickland, 466 U.S. at 694. 

C. Appellate counsel failed to argue the appropriate standard for 

review, thereby waiving Almanza’s meritorious claims regarding 

the admission of 404(b) and (c) evidence and the admission of 

jailhouse informant testimony. 

In his direct appeal, Almanza received ineffective assistance of counsel 

because, even in raising meritorious claims for appeal, Hamilton neglected to argue 

the appropriate legal standard for review of those claim. In the Opening Brief, 

Hamilton raised the issue that it was fundamental error for the trial court to admit 

testimony regarding prior bad acts pursuant to Arizona Rules of Evidence 404(b) 

and (c). (DA, Opening Br., May 1, 2014 at 19.) However, in raising this claim, 

Hamilton did not sufficiently argue or explain that the error was fundamental or that 

the error prejudiced Almanza—mentioning the prejudice arising in Almanza’s case 

in only one sentence at the conclusion of the claim. Instead, she focused the majority 

of the claim on the analysis that this error was not harmless and that the burden was 

on the State to prove that it was. (DA, Opening Br., May 1, 2014 at 25.) 

Consequently, in reviewing this claim, the Arizona Court of Appeals found that 

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Almanza had waived the argument, stating, “Although Almanza correctly identified 

fundamental error as the proper standard of review, he does not argue that the 

alleged error was fundamental or caused him prejudice. Instead, Almanza 

erroneously states that ‘[t]he State bears the burden of showing error was harmless.’ 

Therefore, the argument . . . is waived.” (DA, Mem. Decision, Aug. 29, 2014 at 11.) 

Additionally, in the Opening Brief, Hamilton raised the issue that the 

testimony of the jailhouse informant, Boggs, violated Almanza’s Fifth and Sixth 

Amendment rights. (DA, Opening Br., May 1, 2014 at 31-36.) Again, in raising this 

claim, Hamilton, although acknowledging that trial counsel made no objections at 

trial to this testimony, neglected to argue that the correct standard was fundamental 

error, instead citing de novo review and arguing harmless error. (See DA, Opening 

Br., May 1, 2014 at 31, 33, 35-36.) As a result, the Arizona Court of Appeals again 

ignored the claim, determining that “Almanza does not argue that the trial court 

committed fundamental error when it admitted J.B.’s testimony. Therefore, the 

issue is waived.” (DA, Mem. Decision, Aug. 29, 2014 at 11.) 

Because trial counsel failed to object to the prejudicial testimony at trial, the 

appropriate standard for appellate review is fundamental error, not harmless error. 

See State v. Henderson, 115 P.3d 601, 608 (Ariz. 2005). In the Opening Brief, 

Hamilton raised the incorrect standard for both claims, arguing that the burden was 

harmless error and attempting to shift the burden to the State. (DA, Opening Br., 

May 1, 2014 at 25, 35-36.) She furthermore failed to address and satisfy the burden 

for fundamental error review that is placed on the defendant: to prove both that the 

error exists and that the error caused him prejudice, see Henderson, 115 P.3d at 607. 

By failing to make these arguments and failing to cite the appropriate burden, 

the Court of Appeals determined that Hamilton effectively waived these 

meritorious claims and thereby prevented the Arizona Court of Appeals from 

considering them in their review of Almanza’s appeal. There is a reasonable 

probability that, but for appellate counsel’s unprofessional error, the Arizona Court 

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of Appeals would have determined that the trial court’s errors rendered Almanza’s 

conviction and sentencing unconstitutional and granted relief. Consequently, 

Almanza was prejudiced by counsel’s failure in raising these claims on direct 

appeal. See Strickland, 466 U.S. at 694. 

D. Appellate counsel failed to argue about the correct offense in the 

Opening Brief. 

In the third claim of the Opening Brief, Hamilton argued that the trial court 

erred by denying Almanza’s motion for a directed verdict and contended that the 

State failed to prove all elements of “child molestation.” (DA, Opening Br., May 1, 

2014 at 28.) However, this argument is deeply flawed because Sexual Conduct with 

a Minor, which is what Almanza was actually convicted of, is an entirely different 

and separate legal offense from Molestation of a Child. See A.R.S. § 13-1405 

(2011-2012) and A.R.S. § 13-1410 (2011). In the legal context, these terms cannot 

be used interchangeably because they do not describe the same conduct and 

constitute different crimes. Molestation requires that the defendant engaged only in 

“sexual contact” with a child, whereas Sexual Conduct requires penetration. 

A.R.S. § 13-1410 (2011); see also A.R.S. § 13-1401(3) (2011). These different 

crimes also carry different punishments. In fact, as described in Claim 1(F), trial 

counsel erred in failing to argue for Molestation of a Child to be included in the jury 

instructions and verdict forms as an alternative option for the jury, since it carries a 

lower sentence. The fact that Hamilton clearly did not know or understand what 

Almanza was actually convicted of and spent an entire claim arguing about the 

incorrect offense with different elements demonstrates her ineffectiveness and 

inattentiveness to Almanza’s case. There is a reasonable probability that, but for 

appellate counsel’s unprofessional error, the Arizona Court of Appeals would have 

determined that the trial court’s error rendered Almanza’s conviction and 

sentencing unconstitutional and granted relief. Consequently, Almanza was 

prejudiced by counsel’s failure in correctly litigating his claim on direct appeal. See 

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Strickland, 466 U.S. at 694. 

E. Appellate counsel failed to communicate with Almanza. 

In his direct appeal, Almanza received ineffective assistance because in 

addition to failing to raise all relevant issues on appeal, Hamilton also failed to 

adequately explain and discuss the issuance of the Mandate and the subsequent 

deadlines to file a Notice of Post-Conviction Relief with Almanza, thereby 

preventing him from timely filing. Because Almanza has no formal educational 

background, is illiterate in both Spanish and English, and does not speak English, 

it is difficult for him to navigate his appeals process without the assistance of an 

attorney. Upon the completion of his direct appeal, a competent appellate attorney 

would have filed or assisted Almanza in filing a Notice of Post-Conviction Relief 

to begin his post-conviction proceedings. However, Hamilton did not advise 

Almanza of the need to do this nor assist him with filing the Notice. In fact, she 

never met with Almanza once in person throughout her representation of him. 

Instead, she abandoned her client. As a result of this abandonment, Almanza’s 

Notice of Post-Conviction Relief was untimely and that untimely filing was the 

basis for the Arizona Court of Appeals’ rejection of the review of all of Almanza’s 

post-conviction claims. There is a reasonable probability that, but for appellate 

counsel’s unprofessional error, the Arizona state courts would have determined that 

Almanza’s post-conviction claims rendered his conviction and sentencing 

unconstitutional and granted relief. Because the state court refused to consider any 

of Almanza’s post-conviction claims on the basis of this untimely filing, Almanza 

was prejudiced by his counsel’s failure. See Strickland, 466 U.S. at 694. 

Accordingly, Almanza’s right to the effective assistance of counsel on appeal was 

violated and he is entitled to relief. 

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Claim Three 

Almanza was denied effective assistance of counsel during his state 

post-conviction proceedings in violation of the Fifth, Sixth, Eighth 

and Fourteenth Amendments to the United States Constitution. 

Almanza incorporates by specific reference all facts, allegations, and 

arguments made elsewhere in this Petition. Almanza raised this claim in his postconviction proceedings. (PCR, Pet. for Post-Conviction Relief, May 19, 2016 at 2 

(Dkt. 13); Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 2017 at 18-19; Ariz. S. Ct. 

PFR Dkt. 1 at 12-13.) None of the Arizona state courts addressed the merits of this 

claim. (PCR, Ruling on Motions/Issues, Aug. 5, 2016 at 1 (Dkt. 16); Ariz. Ct. App. 

PFR, Mem. Decision, July 25, 2017 at 3; Ariz. S. Ct. PFR Dkt. 4 at 1.) Because this 

claim has not been adjudicated by the Arizona state courts on the merits, the 

limitations of relief imposed by 28 U.S.C. § 2254(d) do not apply to this Court’s 

review of the claim and this Court may consider the merits of this claim de novo. 

Alternatively, there is no available state court corrective process. See 28 

U.S.C. § 2254(b)(1)(B)(i). Accordingly, AEDPA’s limitations on relief do not 

apply and this Court’s review is de novo. Dickens v. Ryan, 740 F.3d 1302, 1320 

(9th Cir. 2014) (en banc). 

Almanza was entitled the effective assistance of post-conviction counsel. 

Arizona’s post-conviction process was inadequate and ineffective to protect 

Almanza’s constitutional right to counsel, and his post-conviction counsel 

performed deficiently and prejudiced him. As explained in Martinez, Arizona 

prisoners must raise claims regarding the ineffectiveness of trial counsel in a 

petition for post-conviction relief, not on direct appeal. 566 U.S. at 4 (“The State of 

Arizona does not permit a convicted person alleging ineffective assistance of trial 

counsel to raise that claim on direct review.”); see also State v. Spreitz, 39 P.3d 525, 

527 (Ariz. 2002). The same is also true of any other claims that are supported by 

evidence outside the trial record, even if not raised as an ineffectiveness of counsel 

claim. Almanza’s post-conviction proceedings were his only opportunity to pursue 

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any claims that relied on extra-record evidence. Additionally, “‘defendants 

pursuing first-tier review . . . are generally ill equipped to represent themselves’ 

because they do not have a brief from counsel or an opinion of the court addressing 

their claim of error.” Martinez, 566 U.S. at 11 (quoting Halbert v. Michigan, 545 

U.S. 605, 617 (2005)); see also Douglas v. California, 372 U.S. 353 (1963). As 

such, to “present a claim of ineffective assistance at trial in accordance with the 

State’s procedures, . . . a prisoner likely needs an effective attorney.” Martinez, 566 

U.S. at 12. 

In Arizona, post-conviction review is an extension of a defendant’s direct 

appeal, particularly post-conviction review of ineffective assistance of counsel 

claims. See Ariz. R. Crim. P. 32.3 (explaining that the post-conviction proceeding 

“is part of the original criminal action and not a separate action.”). Also, because 

those proceedings are a defendant’s sole opportunity to present constitutional 

claims, particularly claims regarding ineffective assistance of trial and appellate 

counsel, Rule 32 proceedings are appeals “as of right” for such claims. In first 

appeals as of right, due process requires that defendants have the effective 

assistance of an attorney. Lucey, 469 U.S. at 396 (“A first appeal as of right 

therefore is not adjudicated in accord with due process of law if the appellant does 

not have the effective assistance of an attorney.”). Thus, Almanza’s post-conviction 

proceedings were a “first appeal as of right” as to those claims, and he had a 

constitutional right to the effective assistance of counsel in those proceedings. Id.; 

see also Strickland, 466 U.S. 668; Nguyen, 736 F.3d 1287; Martinez, 566 U.S. 1. 

While the Supreme Court initially entertained the argument on this issue as part of 

the Martinez litigation, the Court eventually declined to decide this issue because 

the case could be resolved on equitable grounds instead. 566 U.S. at 9 (“This is not 

the case, however, to resolve whether that exception exists as a constitutional 

matter.”). 

Furthermore, to satisfy the due process guarantee of fundamental fairness, 

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the state must provide an indigent criminal defendant meaningful access to justice. 

Ake v. Oklahoma, 470 U.S. 68, 76 (1985) (“Justice cannot be equal where, simply 

as a result of his poverty, a defendant is denied the opportunity to participate 

meaningfully in a judicial proceeding in which his liberty is at stake.”) In Arizona, 

Rule 32 mandates the appointment of an attorney in noncapital post-conviction 

proceedings when requested. See Ariz. R. Crim. P. 32.4(b)(2) (stating “No later than 

15 days after the filing of a notice of a defendant’s timely or first Rule 32 

proceeding, the presiding judge must appoint counsel for the defendant if: (A) the 

defendant requests it; and (B) the judge has previously determined that the 

defendant is indigent or the defendant has completed an affidavit of indigency. 

Upon the filing of all other notices in a noncapital case, the presiding judge may 

appoint counsel for an indigent defendant if requested.”). 

Accordingly, implementation of this state-provided right must comport with 

due process: “when a State opts to act in a field where its action has significant 

discretionary elements, it must nonetheless act in accord with the dictates of the 

Constitution—and, in particular, in accord with the Due Process Clause.” Lucey, 

469 U.S. at 401; see also Jackson v. Weber, 637 N.W.2d 19, 24-25 (S.D. 2001) (“If 

the defense attorney was ineffective in the original criminal proceeding and habeas 

counsel was thereafter ineffective in ferreting out the invalidity of the conviction, 

we may never know if the convicted person had a fair trial or, God forbid, was 

actually innocent.”). Therefore, due process demands that when a statutory right to 

counsel is established, the concomitant right to effective assistance of counsel must 

also be recognized; otherwise, the statutory right would be meaningless. See Lucey, 

469 U.S. at 396 (“[A] party whose counsel is unable to provide effective 

representation is in no better position than one who has no counsel at all.”); but see 

Pennsylvania v. Finley, 481 U.S. 551 (1987) (finding no general right to the 

effective assistance of counsel in state post-conviction proceedings); Murray v. 

Giarratano, 492 U.S. 1 (1989). 

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Although Finley and Giarratano suggest that indigent defendants do not have 

a right to effective assistance of state post-conviction counsel, Coleman v. 

Thompson, 501 U.S. 722 (1991), left open a possible “exception to the rule of Finley

and Giarrantano in those cases where state collateral review is the first place a 

prisoner can present a challenge to his conviction.” Id. at 755. Nonetheless, the 

Ninth Circuit has recognized that post-conviction counsel’s failure to raise a claim 

of ineffective assistance of appellate counsel can establish cause to excuse the 

procedural default of a habeas claim in an extension of the holding in Martinez. See

Nguyen, 736 F.3d 1287. In this case, Almanza raises the issue left unresolved in 

Coleman: the ineffectiveness of his appointed counsel in filing his initial petition 

for state post-conviction relief. That issue has yet to be definitively resolved by this 

Court or the United States Supreme Court. 

The right to effective assistance of counsel recognized in Lucey and upon 

which Almanza relies, is guaranteed by the Due Process Clause of the Fourteenth 

Amendment, not the Sixth Amendment. See Lucey, 469 U.S. 387, 396 (1985) (“A 

first appeal as of right therefore is not adjudicated in accord with due process of law 

if the appellant does not have the effective assistance of an attorney.”). Moreover, 

for two reasons, 28 U.S.C. § 2254(i) does not preclude a federal court from 

recognizing a right to the effective assistance of post-conviction counsel under the 

facts presented here. Section 2254(i) provides only that “[t]he ineffectiveness or 

incompetence of counsel during Federal or State collateral post-conviction 

proceedings shall not be a ground for relief in a proceeding arising under section 

2254.” First, as Almanza explained above, in Arizona cases, the presentation of 

claims of ineffective assistance of trial and direct appeal counsel are not “collateral” 

proceedings, but are in reality first appeals as of right as to those claims. Second, 

and more importantly, Almanza is not asserting the ineffectiveness of his postconviction counsel as “grounds for relief” from his conviction and sentence, which 

is all that § 2254(i) prohibits. If this Court recognizes Almanza’s due process right 

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to the effective assistance of his post-conviction attorney, the remedy is to 

acknowledge post-conviction counsel’s constitutional ineffectiveness as cause for 

Almanza’s failure to raise any claims in his state post-conviction proceedings that 

the Court may deem procedurally barred and not eligible under the narrower 

holding of Martinez. See Martinez, 566 U.S. at 17 (“Section 2254(i) provides that 

‘the ineffectiveness or incompetence of counsel during Federal or State collateral 

post-conviction proceedings shall not be a ground for relief.’ ‘Cause,’ however, is 

not synonymous with ‘a ground for relief.’ A finding of cause and prejudice does 

not entitle the prisoner to habeas relief. It merely allows a federal court to consider 

the merits of a claim that otherwise would have been procedurally defaulted.”). 

Almanza had a right to the effective assistance of counsel in his post-conviction 

proceedings, and his state appointed counsel failed to meet this standard. 

A. Deficient Performance 

The Supreme Court promulgated a two-part test for determining ineffective 

assistance of counsel in Strickland. 466 U.S. at 687. First, the defendant must 

demonstrate that counsel’s performance was “deficient,” meaning that counsel’s 

errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed 

. . . by the Sixth Amendment.” Id. While the Court found that specific requirements 

for counsel were not appropriate and that “[t]he proper measure of attorney 

performance remains simply reasonableness under prevailing professional norms,” 

id. at 688 (explaining that prevailing norms of practice as reflected in the ABA 

standards and the like are guides to determining what is reasonable), the Court also 

explained that counsel has a duty to make reasonable investigations and that 

strategic choices made after less than complete investigation are only reasonable to 

the extent that professional judgment would support such limits to investigation, id.

at 691. 

Almanza’s post-conviction counsel Harriette Levitt (“Levitt”) did not meet 

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these standards. The fact that Levitt did not uncover or raise any meritorious claims 

of ineffective assistance of counsel, or any claims at all, shows that her 

representation “fell below an objective standard of reasonableness,” and that “there 

is a reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694. 

Almanza filed a pro per Notice of Post-Conviction Relief and an Application 

to Proceed In Forma Pauperis on March 19, 2015. (PCR, App. to Proceed in Forma 

Pauperis, Mar. 19, 2015 (Dkt. 3); PCR, Notice of Post-Conviction Relief, Mar. 19, 

2015 (Dkt. 2).) The Notice included the information that Almanza is not only 

indigent, but that he also does not read English and was previously unaware of his 

ability to file for post-conviction relief. (PCR, Notice of Post-Conviction Relief, 

Mar. 19, 2015 at 3 (Dkt. 3).) In response, on April 6, 2015, the Pinal County 

Superior Court appointed Richard Luff (“Luff”) to represent Almanza for his postconviction proceedings. (PCR, Notice, Apr. 6, 2015 at 1 (Dkt. 5).) 

On September 22, 2015, Almanza filed a pro per Motion Requesting 

Appointment of Counsel and Extended Time to File Rule 32, explaining that Luff 

had, at that point, made no contact with Almanza, nor had he filed any pleadings. 

(PCR, Mot. Requesting Appt. of Counsel and Extended Time to File Rule 32, Sept. 

22, 2015 at 1 (Dkt. 6).) As a result, on October 15, 2015, the Pinal County Superior 

Court rescinded the appointment of Luff and appointed Levitt to represent Almanza. 

(PCR, Notice/Order, Oct. 15, 2015 at 1 (Dkt. 7).) The court also gave Almanza until 

December 31, 2015 to file a Petition for Post-Conviction Relief. (PCR, 

Notice/Order, Oct. 15, 2015 at 1 (Dkt. 7).) 

On February 29, 2016, Levitt filed a Notice Pursuant to Rule 32.4(c) of the 

Arizona Rules of Criminal Procedure. (PCR, Notice Pursuant to Rule 32.4(c), Ariz. 

R. Crim. P., Feb. 29, 2016 (Dkt. 11).) In that Notice, she represented to the court 

that, based on her review of the file, there were no colorable claims for postconviction relief. (PCR, Notice Pursuant to Rule 32.4(c), Ariz. R. Crim. P., Feb. 29, 

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2016 at 1 (Dkt. 11).) In response to her allegations that there were no colorable 

claims for relief, the court gave Almanza until May 31, 2016 to file a pro per 

Petition. (PCR, Notice/Order, Mar. 14, 2016 (Dkt. 12).) 

Levitt has a long track record of finding no colorable Rule 32 issues in postconviction cases to which she is appointed.6

 She often files Notices similar to the 

one that she filed in this case. See Martinez, 566 U.S. at 6, 18 (holding—in a case 

where Levitt represented the defendant and filed a virtually identical Notice on 

Martinez’s behalf to the one that she filed in Almanza’s case—that ineffective 

assistance of post-conviction counsel excuses the default of ineffective assistance 

 

6

 Levitt is an attorney who, despite being qualified for appointment to capital cases 

under Rule 6.8(c), was excluded from appointments as a result of the work of the 

Committee on the Appointment of Counsel for Indigent Defendants in Capital 

Cases. Levitt had extensive experience in capital trial, appellate, and postconviction representations, and she met the purely quantitative criteria of Rule 

6.8(c). Levitt’s history of poor performance, however, resulted in the screening 

committee recommending against her appointment. In a prior case, Levitt had 

submitted a capital post-conviction review petition that the Ninth Circuit later 

characterized as “cursory.” Stokley v. Ryan, 659 F.3d 802, 810 (9th Cir. 2011). In 

another capital post-conviction case, Levitt filed a petition that was barely 13-pages 

long and contained no extra-record evidence. Pet. for Post-Conviction Relief, State 

v. Walden, No. CR-34752, (Pima Cty. Super. Ct. Jan. 9, 1998). Despite her 

performance, the Supreme Court appointed Levitt in 1998 to represent another 

death-row prisoner in post-conviction proceedings—resulting in another cursory 

petition. Orders, Arizona v. Kemp, No. CR-93-0332-AP (Ariz. July 14, 1997, Aug. 

27, 1998, and Sept. 11, 1998); Pet. for Post-Conviction Relief, State v. Kemp, Jr., No CR-38826 (Pima Cty. Super. Ct. Feb. 12, 1999). 

After these post-conviction appointments, the Committee on Appointment of 

Counsel for Indigent Defendants in Capital Cases found Levitt technically qualified 

under Rule 6.8 and Arizona Revised Statute § 13-4041, but the Committee agreed 

by consensus that Levitt should not be appointed in a future case, with several 

committee members “express[ing] strong opinions” that she should not be 

appointed based on their evaluations of her work. (See Ariz. Ct. App. PFR, Mot. to 

Stay Pet. for Review and Req. to File Am. Pet. for Post-Conviction Relief, June 5, 

2017, Ex. A at 3; see also Ariz. Sup. Ct. PFR, Dkt. 3 Ex. F at 3.) The Committee 

recommended that the Arizona Supreme Court not appoint Levitt even when no 

other qualified counsel are available, stating that despite her technical 

qualifications, the “Committee doesn’t recommend her in any way.” Notes, Comm. 

On the Appointment of Counsel for Indigent Defendants in Capital Cases (Sept. 25, 

1998) (emphasis in original). 

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of trial counsel claims in federal habeas review)7. In fact, Levitt’s practice of finding 

no colorable issues is so widely recognized that as early as 1998 the Arizona 

Supreme Court’s hand-picked Committee on the Appointment of Counsel for 

Indigent Defendants in Capital Cases strongly opposed appointing Levitt to 

represent capital post-conviction defendants even when no other counsel are 

available. (See Ariz. Ct. App. PFR, Mot. to Stay Pet. for Review and Req. to File 

Am. Pet. for Post-Conviction Relief, June 5, 2017, Ex. A at 3; see also Ariz. S. Ct. 

PFR, Dkt. 3 Ex. F at 3.) 

By itself, the fact that Levitt did not uncover or raise the meritorious 

ineffective assistance of trial counsel claims, much less raise any claims at all, 

shows that her representation “fell below an objective standard of reasonableness,” 

and that “there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. 

at 668, 688, 694. However, Levitt’s ineffectiveness in this case is even more 

egregious and obvious due to her failure to visit and communicate with her client 

and failure to conduct any investigation prior to alleging that there were no 

colorable claims. 

Levitt acknowledged to Almanza (albeit not to the court in her Notice) that 

she was “not able to fully examine the record” because she did not obtain the 

transcripts of the trial proceedings. (See Ariz. S. Ct. PFR Dkt. 3 Ex. G at 2; see also 

PCR, Notice Pursuant to Rule 32.4(C), Ariz. Rules of Crim. P., Feb. 29, 2016 at 1 

(Dkt. 11).) As a result, Levitt based her analysis regarding ineffectiveness of prior 

counsel on the opinion of Almanza’s appellate counsel Hamilton, who likewise, 

failed to raise certain meritorious issues on direct appeal. (See Ariz. S. Ct. PFR Dkt. 

 

7

 In Martinez, Levitt similarly made no claims of ineffectiveness of trial counsel 

and, instead, filed a statement with the court that Martinez lacked any meritorious 

claims. See Martinez, 566 U.S. at 6, 18. The Supreme Court reversed the court’s 

decision holding that ineffective assistance of post-conviction counsel does excuse 

the default of ineffective assistance of trial counsel claims. See id. at 17. 

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3 Ex. G at 2; see also Claim 2 supra.) Levitt did not contact trial counsel, nor did 

she retain any experts, contact any witnesses, or conduct any investigation in her 

review of this case, including failing to obtain and review all relevant transcripts 

and records prior to filing her Rule 32.4(c) Notice. Obviously, post-conviction 

counsel cannot competently evaluate the effectiveness of trial counsel, especially 

with regard to pretrial preparation, by simply reviewing the trial file and not even 

reading the trial transcripts. 

Levitt’s ineffectiveness and abandonment of her client is also clear from her 

minimal communication with him. Despite not fully examining the record, Levitt 

failed to meet with Almanza in person. Instead, she opted to establish the attorneyclient relationship through a couple of telephone calls with the assistance of an 

interpreter. Furthermore, once she determined that she would not raise any postconviction issues, she only sent a letter to Almanza informing him of the fact that 

she had filed the Rule 32.4 Notice and telling him the time frame within which he 

would need to file a pro se petition. (See Ariz. S. Ct. PFR Dkt. 3 Ex. G at 2.) Levitt 

was aware that Almanza was a Spanish speaker and that he is illiterate in both 

Spanish and English and, thus, unable to read the letter. Nonetheless, instead of 

meeting with Almanza in person or at least calling him to explain what was going 

on and the important deadline for filing his pro per petition, she sent him a letter 

written in English (not even in Spanish) that she knew he would not be able to read 

or understand. 

The functional denial of appointed counsel in Almanza’s first state postconviction proceeding was a denial of due process and fundamental fairness. 

Almanza never desired to represent himself in his post-conviction proceedings and 

specifically requested that the court appoint an attorney to represent him. (PCR, 

Notice of Post-Conviction Relief, Mar. 19, 2015 at 2 (Dkt. 2).) Instead, the court 

appointed two attorneys, one of whom never even contacted Almanza, and the other 

who did not even read the entire file, much less conduct any investigation, prior to 

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filing a notice that there were no colorable claims in his case. 

B. Prejudice 

Due to the failure of his appointed counsel to present any arguments to the 

court, Almanza filed a pro per Petition for Post-Conviction Relief in the Pinal 

County Superior Court on May 19, 2016. (PCR, Pet. for Post-Conviction Relief, 

May 19, 2016 (Dkt. 13).) In his Petition, Almanza alleged claims of ineffective 

assistance of counsel and infringement of the right against self-incrimination. (PCR, 

Pet. for Post-Conviction Relief, May 19, 2016 at 2 (Dkt. 13).) However, Almanza 

has intellectual limitations as a result of both his lack of formal education and also 

cognitive dysfunction. (See Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 2017, Ex. 

B; see also Ariz. Ct. App. PFR, Mot. to Stay Pet. for Review, June 5, 2017, Ex. C; 

Ariz. S. Ct. PFR Dkt. 3 Ex. C.) Therefore, since Almanza is not an attorney and, in 

fact, has no formal education, is a Spanish speaker and is illiterate in English and 

Spanish, he did little to substantiate and develop his legal claims in his Petition for 

Post-Conviction Relief. 

Moreover, undersigned counsel filed a Motion to Stay Petition for Review 

and Request to File Amended Petition for Post-Conviction Relief with the Court of 

Appeals in order to attempt to address any deficiencies in Almanza’s pro per 

Petition. (Ariz. Ct. App. PFR, Mot. to Stay Pet. for Review and Req. to File Am. 

Pet. for Post-Conviction Relief, June 5, 2017.) That Motion was denied. (Ariz. Ct. 

App. PFR, Order, June 29, 2017.) Consequently, Almanza was denied any 

meaningful review or relief during his post-conviction proceedings. 

As a result of Levitt’s ineffective post-conviction representation, this Court 

should excuse any procedural defaults or other errors with the pro per Petition for 

Post-Conviction Relief and consider the defaulted claims de novo. See Martinez, 

566 U.S. at 8. Many of the claims that Levitt failed to raise are meritorious claims 

that, if she had raised them, may well have changed the outcome of Almanza’s postCase 2:15-cv-02064-DLR Document 41 Filed 07/26/18 Page 59 of 125
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conviction proceedings. Specifically, if she had raised the trial counsel 

ineffectiveness claims with supporting evidence, Almanza would likely have 

received a new trial. This undermines confidence in the outcome of the state-court 

proceedings. Levitt’s failures constituted deficient performance that prejudiced 

Almanza. 

Claim Four 

The trial court erred by failing to suppress Almanza’s statements in 

violation of his constitutional rights to due process and against selfincrimination under Miranda v. Arizona and the Fifth, Sixth, and 

Fourteenth Amendments to the United States Constitution. 

Almanza incorporates by specific reference all facts, allegations, and 

arguments made elsewhere in this Petition. Almanza raised this claim on direct 

appeal. (DA, Opening Br., May 1, 2014 at 8-18.) The Arizona Court of Appeals 

denied the claim on the merits. (DA, Mem. Decision, Aug. 29, 2014 at 3-10.) 

Almanza also raised this claim in his post-conviction proceedings. (PCR, Pet. for 

Post-Conviction Relief, May 19, 2016 at 2 (Dkt. 13).) In his post-conviction 

proceedings, the court did not specifically address the underlying merits of the 

claim, holding that the issues in the Petition had all been “previously ruled upon or 

untimely filed or the Petition lacks sufficient basis in law and fact to warrant further 

proceedings.” (PCR, Ruling on Motions/Issues, Aug. 5, 2016 at 1 (Dkt. 16).) The 

state courts’ rejection of this claim was contrary to, or involved an unreasonable 

application of clearly established federal law, as determined by the United States 

Supreme Court. 28 U.S.C. § 2254(d)(1). Additionally, it constituted an 

unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. 

§ 2254(d)(2). 

The Fifth and Fourteenth Amendments “secure[] against state invasion . . . 

the right of a person to remain silent unless he chooses to speak in the unfettered 

exercise of his own will, and to suffer no penalty . . . for such silence.” Malloy v. 

Hogan, 378 U.S. 1, 8 (1964); see also U.S. Const. amend. V. Thus, for a statement 

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to be admissible, it must be “free and voluntary.” Bram v. United States, 168 U.S. 

532, 542 (1897); Malloy, 378 U.S. 1. The Supreme Court has clearly established 

rules that police must follow when interrogating a person in custody to ensure that 

the state does not violate the “basic” and “precious” rights of the Fifth Amendment. 

Miranda v. Arizona, 384 U.S. 436, 442 (1966). Miranda mandates that when 

questioning an in-custody suspect about criminal activity, police officers must 

inform the suspect of his right to remain silent and his right to the presence of an 

attorney. Id. at 444. “If the individual indicates in any manner, at any time prior to 

or during questioning, that he wishes to remain silent, the interrogation must cease.” 

Id. at 473-74; see also Edwards v. Arizona, 451 U.S. 477, 482 (1981) (quoting 

Miranda, 384 U.S. at 474). Similarly, if an individual “indicates in any manner and 

at any stage of the process that he wishes to consult with an attorney before speaking 

there can be no questioning.” Id. at 444-45. 

No purported statement is admissible against an accused unless he has given 

it voluntarily. A statement is voluntary only when it is “the product of a rational 

intellect and a free will.” Blackburn v. Alabama, 361 U.S. 199, 208 (1960). “‘[T]he 

coercion inherent in custodial interrogation blurs the line between voluntary and 

involuntary statements, and thus heightens the risk’ that the privilege against selfincrimination will not be observed.” Missouri v. Seibert, 542 U.S. 600, 608 (2004) 

(quoting Dickerson v. United States, 530 U.S. 428, 435 (2000)). Determination of 

the involuntary nature of a statement requires consideration of the “characteristics 

of the accused and the details of the interrogation” as part of the complex of 

circumstances that courts should evaluate when determining whether a suspect’s 

statement is voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); see 

also Edwards, 451 U.S. at 482 (voluntariness of a statement requires assessment of 

“the particular facts and circumstances surrounding that case, including the 

background, experience, and conduct of the accused.” (internal quotation marks and 

citation omitted)). 

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In this case, Almanza was arrested on October 23, 2011, at 7:50 a.m. while 

riding his bicycle to work. Police officers determined there was probable cause to 

arrest him based on A.W.’s statements and were waiting for him on his route to 

work. He was arrested, placed in a patrol car, and transported to the police station 

where he was placed in a holding cell awaiting his interrogation. The police did not 

begin to question Almanza until 12:32 p.m. and their questioning lasted over two 

hours, ending at 2:30 p.m. (Trial Ex. 116 at 3, 107.) During the over four and a half 

hours he waited prior to his interrogation, no one advised Almanza about why he 

had been arrested nor did they advise him of his rights. He was also not given any 

opportunity to contact family or counsel. 

Prior to beginning the interrogation, the police served a warrant on Almanza 

to collect fingernail clippings and other physical, biological evidence. Since 

Almanza is illiterate, which he told the detectives, he could not read the warrant 

that they presented to him. Unsurprisingly, he acquiesced to their demands. (Trial 

Ex. 116 at 6.) Almanza was told only that they had a warrant to collect fingernail 

clippings and that he had to comply with this order and had to permit them to take 

whatever samples they wanted. Specifically, he was told that he had no choice and 

could not refuse. (Trial Ex. 116 at 17.) Despite only informing him that the order 

allowed them to take clippings of his fingernails, the detectives also proceeded to 

take saliva samples for DNA testing and took several photographs. (Trial Ex. 116 

at 20.) The confusion related to this partially-explained warrant caused Almanza to 

speculate that he was being stopped about a traffic ticket that was outstanding. (Trial 

Ex. 116 at 9.) 

Prior to the interview and the enforcement of the search warrant, Almanza 

made the detectives aware that he could not read and also that he did not speak very 

much English. (Trial Ex. 116 at 6.) Nonetheless, Detective Snyder continued to 

speak to Almanza in English. (See Trial Ex. 116.) A Spanish speaking police officer 

was brought in to assist Almanza with translation, but the majority of the 

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interrogation was still conducted in English. (Trial Ex. 116 at 16.) Though Almanza 

never actually confessed, he made multiple seemingly incriminating statements 

during the interrogation. Specifically, he confirmed benign details of the events of 

that day as described by A.W. and offered that if he had inserted a finger into A.W.’s 

vagina, it would have been his middle finger. (See Trial Ex. 116 at 88.) 

Before trial, Huggins moved to suppress the warrantless arrest and the 

involuntary statements given to the police during their October 23, 2011 

interrogation of Almanza. (ROA 42; ROA 43.) Huggins argued that all of the 

statements that Almanza made were involuntary and should be suppressed. (ROA 

42 at 3-4.) This argument was based on Almanza’s language barrier and lack of 

understanding about what was going on, in addition to his statements about whether 

he needed an attorney and his indications that he did not want to answer the 

detectives’’ questions. (ROA 42 at 3-4.) On the morning of trial, prior to jury 

selection, the court held a voluntariness hearing where Detective Snyder was called 

as a witness. During a recess prior to the voluntariness hearing, the judge reviewed 

the transcript of Almanza’s interrogation and listened “to the recorded 

conversations from the beginning through advisement of Miranda and about 15 

minutes into the discussion, my thoughts being that the issues that are before me 

really are limited up to the time of the Miranda, the beginning of the questioning.” 

(Tr. Sept. 30, 2013 a.m. at 49-50.) The trial court ruled that the arrest was legal, 

although the trial court indicated that it did not believe Almanza was under arrest, 

that Miranda advisements were properly given, that Almanza appeared to 

understand what was going on, and that the statements Almanza made were 

voluntary. (Tr. Sept. 30, 2013 a.m. at 81-83.) 

The trial court’s admission of these involuntary statements was improper. 

The context in which Almanza agreed to waive his rights and speak to the detectives 

was highly coercive, calling into question the voluntariness of the proceedings. 

First, Almanza was stopped at gun point, placed in a police car, and placed in a 

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holding cell for several hours prior to the commencement of the interrogation. 

These factors alone make the interrogation unduly coercive. Second, the 

interrogation and the Miranda warnings themselves were in the context of a stern 

admonishment that Almanza had to comply with a judge’s order that he could not 

read or understand and that he could not say no. Third, he was not informed about 

the nature of the questioning or why he was there until after the DNA samples had 

been taken and until he had already been talking to the detectives for a significant 

amount of time. Fourth, Almanza was clearly confused about his need for a lawyer 

and the detectives misled him, coercively intending to entice him to continue the 

conversation instead of invoking his rights. Finally, Almanza was misled into 

believing that his DNA had been found on A.W. and that, therefore, the detectives 

already had proof of his guilt. 

Despite the fact that Almanza never explicitly asked for the interrogation to 

be conducted in Spanish and answered questions in English, the detectives were 

required to ensure that Almanza fully understood what they were talking about and 

that they fully understood his statements. Language barriers played a significant 

role in this interview, making ambiguous or confusing statements by Almanza 

appear in Detective Snyder’s perception to be a partial confession. For example, 

Detective Snyder asked Almanza, “Did you look for blood on your hands?” and 

Almanza responded, “Yeah. And no – no blood on my hands.” (Trial Ex. 116 at 

66.) Detective Snyder perceive this as a confession that Almanza was concerned 

because of what he had done and, as a result, that he checked his hands for blood 

and ask, “Why would you look for blood on your hands?” (Trial Ex. 116 at 66.) 

Almanza respond, “I never – I never – I never look for blood – for blood on my 

hands because I know I no got nothing.” (Trial Ex. 116 at 66.) Detective Snyder 

clearly inferred this ambiguous exchange as a confession of guilt, noting in his 

report that “[w]hen I asked him why he would check for blood if he had no prior 

knowledge of blood and had not injured or penetrated [A.W.], he was unable to 

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answer.” 

Almanza’s concerns about needing a lawyer seemed to be focused on his 

confusion because he had done nothing wrong and his inability to pay for an 

attorney. In response to his concerns that he could not afford a lawyer, the detectives 

did not explain to Almanza that he was entitled to have a court-appointed lawyer 

present for all of his proceedings free of charge, including his interrogation, instead, 

Detective Snyder told him, “[w]ell, and if you want one and you can’t afford one, 

then the court can appoint one at a – at a later time.” (Trial Ex. 116 at 23.) This 

statement is intentionally misleading in order to confuse Almanza and to 

misrepresent to him that he could not have and did not need an attorney prior to 

questioning. Additionally, after he was read his rights in English and Spanish, 

Almanza was asked if he understood those rights and his response was “No no,” 

but when pressed about whether he wants to answer their questions, he says, “I want 

to answer, but . . . .” (Trial Ex. 116 at 24.) Almanza did not understand what was 

going on and did not want to answer questions, but wanted to know why he was 

arrested and the detectives implied that they would not tell him what was going on 

unless he agreed to answer their questions, so he ultimately acquiesced. (Trial Ex. 

116 at 23 (“they have a few questions for you. They can’t begin with these questions 

or explain everything that is happening, ugh, if you don’t want to.”).) The detectives 

should have ended the interrogation when Almanza indicated that he did not 

understand and did not want to answer the questions. However, Almanza’s overall 

confusion and the belief that he was not free to leave caused him to continue his 

interaction with the detectives. Although the detectives did tell him, “[y]ou 

understand that as we go through, if you decide you want to stop answering 

questions, you can,” it is unclear whether he actually understood this instruction 

because it was only explained to him in English. (Trial Ex. 116 at 25.) 

Furthermore, the detectives lied to Almanza, telling him that his DNA had 

been found on A.W., proving his guilt. (Trial Ex. 116 at 52.) These 

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misrepresentations enhanced the already coercive atmosphere of the interrogation 

and caused Almanza to confabulate and offer illogical versions of events in an 

attempt to explain how his DNA could be found on A.W. when he knew that he 

was innocent. Due to the language barrier and the confusing nature of the versions 

of events that Almanza provided, the detectives mistook these statements as further 

proof of his guilt. 

The trial court’s improper admission of the interrogation resulted in actual 

prejudice. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citing United States v. 

Lane, 474 U.S. 438, 449 (1986)). The interview was played to the jury several times 

and Detective Snyder also testified about Almanza’s interrogation. Despite the fact 

that the audio recording and transcript of the interview confirm that Almanza never 

actually confessed to sexually touching a child, the State and the detectives 

theorized and argued to the jury that Almanza’s statements confirmed “many parts 

of the event described to the sex assault nurse and to [A.W.’s] mother” because he 

agreed about some of the innocent details of A.W.’s timeline of events. Thus, the 

State took Almanza’s statements as confirmation of A.W.’s account of what 

happened that day and, therefore, confirmation that she was telling the truth about 

the entire incident. In this context, the State makes it appear as if there was some 

sort of confession, despite the fact that there is none. In fact, Almanza adamantly 

denied digitally penetrating A.W. throughout the interview. (See, e.g., Trial Ex. 116 

at 34, 35, 37, 41, 51, 53, 54, 59, 61, 62, 64, 66, 68, 70, 71, 74, 77, 78, 84.) 

Nonetheless, the State focused more on the statements that overlapped with and 

seemingly corroborated A.W.’s story, ignoring and downplaying Almanza’s 

continued and adamant denial of guilt. The State’s argument that Almanza 

confirmed A.W.’s story was undoubtedly very powerful, albeit misleading, 

testimony for the jury. (Tr. Oct. 7, 2013 p.m. at 7, 11-12 (explaining that the 

information provided by Almanza in his interrogation were “[c]orroborating, 

confirming what [A.W.] said.”).) 

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The Arizona Court of Appeals did not correct the trial court’s prejudicial 

error. (DA, Mem. Decision, Aug. 29, 2014 at 3-10.) In addressing the apparent 

voluntariness of the interview, the Court of Appeals ignored Almanza’s educational 

and language limitations and simply determined that “Almanza never asked that the 

interview be conducted in Spanish, and, as the [trial] court found, he answered 

Snyder’s questions appropriately in English.” (DA, Mem. Decision, Aug. 29, 2014 

at 6.) Both Almanza’s compliance with the search warrant and his general 

acquiescence with the detective’s statements during the interview are unsurprising 

given his educational and cognitive limitations and the language barrier. People 

with enhanced vulnerabilities, like cognitive impairments and language 

deficiencies, tend to be more suggestible in aversive contexts. As a result, they may 

agree with things they are told, even if they do not understand the specifics of the 

complex language that they are exposed to. A close look at the interview in this case 

demonstrates that the detective proactively and suggestively provided much of the 

details of the accusation to Almanza, including A.W.’s account of what happened 

that day, and that Almanza merely went along with the detectives. Additionally, 

when Almanza did attempt to tell a story, his versions were frequently confusing 

and incoherent. As a result, the truthfulness and accuracy of his statements must be 

considered within the context of his psychological and intellectual vulnerabilities. 

Furthermore, in its analysis, the trial court explained that it did not believe 

that Almanza’s interrogation was as the result of an arrest, which would require a 

different analysis than that in Miranda. (Tr. Sept. 30, 2013 a.m. at 81 (“[i]f in fact 

you characterize it as an arrest, and I’m not sure that I would . . . But I’m not going 

to characterize it as an arrest.”).) However, the trial court misinterpreted the facts 

in this case in its decision because, expressly state in the Pinal County police report 

that this stop was in fact an arrest. The report explains that, “[w]e confronted 

Fernando who verbally identified himself as Fernando Almanza and placed him 

under arrest.” Despite the fact that the trial court ignored the fact that Almanza was 

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actually placed under arrest and, thus, applied an incorrect standard in considering 

the voluntariness of his statements, the Arizona Court of Appeals did not correct 

this error or investigate further, but instead, rubber stamped the trial court’s 

analysis. 

Given Almanza’s limited educational background and his limited ability to 

speak and understand English, as well as the coercive techniques employed by the 

detectives, all of his statements to the police should have been suppressed. Almanza 

was not in a position to voluntarily waive his rights when he was attempting to 

communicate in a language that he does not speak, cannot read a warrant that he is 

being compelled to honor, and does not know the reason for his detention. Despite 

his obvious limitations, Almanza invoked his right to remain silent, which the 

detectives ignored and asked about his need for an attorney, which the detectives 

misleadingly told him he could not get until later. For the reasons discussed above, 

the trial court’s admission of Almanza’s involuntary and unreliable statements 

prejudiced Almanza and the Arizona Court of Appeal’s conclusion otherwise was 

unreasonable. Consequently, Almanza’s rights under the Fifth, Sixth, and 

Fourteenth Amendments were violated, and he is entitled to relief. 

Claim Five 

The trial court violated Almanza’s due process rights under the

Fifth, Sixth, and Fourteenth Amendments to the United States 

Constitution by admitting irrelevant, prejudicial, and inflammatory 

testimony about his alleged prior bad acts. 

Almanza incorporates by specific reference all facts, allegations, and 

arguments made elsewhere in this Petition. Almanza raised this claim on direct 

appeal. (DA, Opening Br., May 1, 2014 at 19-27.) The Arizona Court of Appeals 

court denied the claim on the merits, stating that he “[did] not argue that the alleged 

error was fundamental or caused him prejudice.” (DA, Mem. Decision, Aug. 29, 

2014 at 10-11.) The state court’s rejection of this claim was contrary to, or involved 

an unreasonable application of, clearly established federal law, as determined by 

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the Supreme Court. See 28 U.S.C. § 2254(d)(1). In addition, it constituted an 

unreasonable determination of the facts in light of the evidence presented. See id. 

§ 2254(d)(2). 

Alternatively, the state court did not address the merits of the underlying 

claim itself, but determined that this claim had been waived due to Almanza’s 

erroneous statement that the “State bears the burden of showing error was 

harmless,” when in fact the standard was fundamental error. (DA, Mem. Decision, 

Aug. 29, 2014 at 11.) If this Court determines that the state court did not address 

the merits of the underlying claim, procedural default is no bar to merits review in 

the federal court where the state court has not regularly followed its forfeiture rule 

and applied it similarly in cases. See Hathorn v. Lovorn, 457 U.S. 255, 263 (1982) 

(“State courts may not avoid deciding federal issues by invoking procedural rules 

that they do not apply evenhandedly to all similar claims.”); Dugger v. Adams, 489 

U.S. 401, 410 n.6 (1989) (citing Johnson v. Mississippi, 486 U.S. 578, 589 (1988) 

and recognizing that a state procedural default rule that is not “consistently or 

regularly applied” by state courts is not an adequate state ground and may not 

supply basis for denying federal habeas relief). In this case, the Arizona Court of 

Appeals acknowledged that Almanza correctly identified fundamental error as the 

proper standard for review, but then the Arizona Court of Appeals cited State v. 

Moreno-Medrano, 185 P.3d 135, 140 (Ariz. Ct. App. 2008) for the proposition that 

Almanza had waived this claim by arguing the incorrect burden, namely, that the 

State could not show that the error was harmless. (DA, Mem. Decision, Aug. 29, 

2014 at 11.) However, in the Moreno-Medrano case, the court determined that 

because the defendant did “not argue the alleged error was fundamental. . . . That 

argument is therefore waived.” Moreno-Medrano, 185 P.3d at 140. That was not 

the case here. In this case, the state court concedes that Almanza argued that the 

error was fundamental, the problem was that Almanza’s petition did not actually 

elaborate on this argument, but instead focused on why the error was not harmless. 

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Thus, the state court decision illustrates the irregularity with which the Arizona 

Court of Appeals applies the forfeiture rule it applied here. 

Finally, Almanza can demonstrate cause and prejudice. See Martinez, 566 

U.S. at 10 (“A prisoner may obtain federal review of a defaulted claim by showing 

cause for the default and prejudice from a violation of federal law.”). To the extent 

that appellate counsel failed to raise the correct burden and, therefore, according to 

the Arizona Court of Appeals, failed to preserve the claim for review, this 

performance was deficient under the test established in Strickland, and therefore 

constitutes “cause” to excuse a procedural default. See Martinez, 566 U.S. at 9; 

Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Strickland, 466 U.S. at 687-88; 

but see Davila v. Davis, 137 S. Ct. 2058 (2017). Furthermore, as discussed below, 

had the Arizona Court of Appeals not found this claim waived, Almanza would 

have been entitled to relief. He therefore has demonstrated “a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Strickland, 466 U.S. at 694. In sum, the Arizona Court of Appeals’ 

conclusion that this claim was waived does not bar federal review of the merits. 

During Almanza’s trial, on cross-examination, A.W.’s mother, Quinn, 

testified that she had previously punched Almanza in the face for behaving 

“inappropriately” with her. (Tr. Oct. 1, 2013 at 171.) Prior to the trial, the State 

never filed any notice of its intent to introduce prior bad act or sexual propensity 

evidence under Rule 404 of the Arizona Rules of Criminal Procedure. Additionally, 

defense counsel filed no motions in limine seeking to preclude the introduction of 

Quinn’s story that Almanza had previously been flirtatious and inappropriate with 

her and made no objection to this testimony during trial. (Tr. Oct. 1, 2013 at 171-

72, 176-78.) No limiting instruction was offered. (ROA 113.) 

The admission of evidence of Almanza’s character and prior bad acts violated 

his rights to due process and a fair trial. See U.S. Const. amends. V, VI, XIV. One 

of the fundamental principles of American law is that evidence of other bad acts is 

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not admissible to show a defendant’s bad character. See McKinney v. Rees, 993 F.2d 

1378, 1380-81 (9th Cir. 1993); David P. Leonard, In Defense of the Character 

Evidence Prohibition: Foundations of the Rule Against Trial by Character, 73 Ind. 

L.J. 1161, 1162 (1998). This principle recognizes that character evidence would 

have a highly prejudicial effect on a defendant’s case because the jury can use the 

character evidence to improperly conclude that the defendant is a bad person, and 

is thus more likely to have engaged in the charged offense. See State v. Aguilar, 97 

P.3d 865, 867-68 (Ariz. 2004). 

The Supreme Court has acknowledged that the impermissible admission of 

evidence can so infect a trial proceeding as to render the jury’s verdict a denial of 

due process. See Romano v. Oklahoma, 512 U.S. 1, 12 (1994). Arizona state courts 

have also recognized in other contexts the value of eliminating irrelevant or 

inflammatory details and limiting evidence to its probative core. See State v. Castro, 

788 P.2d 1216, 1225 (Ariz. 1989) (remanding for “balanced exclusionary 

application of Rule 403” to permit admission of probative evidence excluding 

prejudicial details). Thus, the discretion of the trial judge under Evidence Rule 403 

to exclude otherwise relevant evidence because of the risk of prejudice should find 

its most frequent application in this area. See State v. Taylor, 817 P.2d 488, 492 

(Ariz. 1991). 

In Arizona, “evidence of other crimes, wrongs, or acts is not admissible to 

prove the character of a person in order to show action in conformity therewith,” 

but it may be admissible to show “motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident.” Ariz. R. Evid. 404(b); see 

State v. Terrazas, 944 P.2d 1194, 1196 (Ariz. 1997) (“Evidence of prior bad acts

committed by a defendant is usually inadmissible at trial.”). Arizona Rule of 

Evidence 404(b) mirrors its federal counterpart. See State v. Steinle (Moran), 372 

P.3d 939, 941 (Ariz. 2016) (“Our interpretation is guided, but not determined, by 

federal court decisions when our evidence rules mirror the federal rules.” (citation 

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omitted)). This Court has held that “[w]hen [other] bad act evidence has minimal 

probative value in contrast to its unfairly prejudicial impact it should be excluded.” 

State v. Elmer, 815 F. Supp. 319, 321 (D. Ariz. 1993) (citing United States v. 

Bettencourt, 614 F.2d 214, 219 (9th Cir. 1980)). 

Even if evidence is admissible under Rule 404(b), it must still be relevant, 

and all evidence is subject to Rule 403, which requires the exclusion of relevant 

evidence “if its probative value is substantially outweighed by the danger of unfair 

prejudice.” State v. Fernane, 914 P.2d 1314, 1318 (Ariz. Ct. App. 1995) (internal 

quotation marks and citation omitted). “Unfair prejudice means an undue tendency 

to suggest decision on an improper basis, . . . such as emotion, sympathy or horror.” 

State v. Schurz, 859 P.2d 156, 162 (Ariz. 1993) (internal quotation marks and 

citation omitted). 

Although “‘federal habeas corpus relief does not lie for errors of state law,’” 

relief is available if the error deprived the petitioner of a fundamentally fair trial 

and therefore rose to the level of a violation of due process. See Estelle v. McGuire, 

502 U.S. 62, 67-68 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). The 

introduction of character or propensity evidence violates due process if the evidence 

“is of no relevance, or if its potential for prejudice far outweighs what little 

relevance it might have.” United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 

2001). Further, the erroneous admission of prejudicial and cumulative evidence 

violates a defendant’s Fourteenth Amendment due process rights if the admission 

results in the denial of fundamental fairness. See, e.g., Dudley v. Duckworth, 854 

F.2d 967, 972 (7th Cir. 1988); see also Duncan v. Henry, 513 U.S. 364, 366 (1995) 

(per curiam). Because evidence related to Almanza’s prior acts “served only to prey 

on the emotions of the jury,” Almanza’s constitutional rights were violated. 

McKinney, 993 F.2d at 1385. 

During Almanza’s trial, defense counsel elicited the following testimony on 

cross-examination of Quinn: 

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Q: Do you ever remember punching Fernando in the 

face? 

A: Yes, I do. 

Q: Can you tell me about that. 

A: He behaved inappropriately with me, and I turned 

around instinctively and I punched him. . . . 

Q: Were there other incidents where you and he did not 

get along? I mean, punching in the face seems like you 

didn’t— 

A: Yeah, that we – I just – I had bad feelings about him 

and I just didn’t want him near me. 

Q: And yet you would work with him and he would help 

you out occasionally? 

A: Not once I got those bad feelings. I would not let him 

around me or my children. 

(Tr. Oct. 1, 2013 at 171-72.) The State seized upon this line of testimony and 

followed up redirect, asking Quinn to explain the instance when Almanza was 

inappropriate with her. Quinn responded that, “[h]e came up behind me and he 

pressed his body against me. He was clothed, I was clothed. . . . And he pressed 

himself up against me and I felt him in a way I did not want to feel, so I turned 

around and I punched him.” (Tr. Oct. 1, 2013 at 176.) She also elaborated that 

another time, “he came up behind me and grabbed me from my side, like this, and 

pushed himself against me. I screamed.” (Tr. Oct. 1, 2013 at 177.) Quinn further 

testified that Almanza had asked her out “at least six” times, but that she had turned 

him down (Tr. Oct. 1, 2013 at 177), that she saw him looking into her house at night 

(Tr. Oct. 1, 2013 at 178-79), and that on two occasions, he came into her bedroom 

uninvited at 6 a.m. (Tr. Oct. 1, 2013 at 178). Defense counsel did not object to this 

line of questioning until the prosecutor asked, “Well, then certainly, Ms. Quinn, 

because of this animosity, you must have put your daughter up to accusing him of 

touching her?” (Tr. Oct. 1, 2013 at 179.) 

This testimony was inappropriate and inadmissible. The State gave no prior 

notice that it would present this testimony to the jury. Nonetheless, even if the State 

had given notice, this type of testimony was inadmissible under the Arizona Rules 

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of Evidence. The fact that Almanza had allegedly previously asked Quinn, an adult 

woman, out and been overly flirtatious with her, does not satisfy Rule 404(b) by 

establishing “the character of a person in order to show action in conformity 

therewith” because it is not indicative of a sexual or romantic interest in young 

children, like A.W. It is absurd to think that just because Almanza was interested in 

pursuing a romantic relationship with Quinn, that he would be similarly 

romantically or sexually interested in A.W. Similarly, it is absurd to think that 

Almanza would digitally penetrate a young child’s vagina in order to seek revenge 

for Quinn’s rebuff of his attentions. As a result, this testimony would not be 

admissible under 404(b). 

However, even if this testimony was admissible under 404(b), it would 

clearly be inadmissible under Rule 403, because its very limited probative value 

would certainly not outweigh the potential for unfair prejudice based on the jury’s 

emotional reaction to this information. As discussed in Claim 1(E), supra, defense 

counsel’s failure to take any corrective measures with respect to the testimony 

constituted deficient performance that prejudiced Almanza. And the trial court did 

not, on its own accord, give the jury a curative instruction. Consequently, no action 

was taken to ensure that the jury did not consider prejudicial evidence in its 

deliberations. 

Here, Almanza was already fighting an uphill battle against the deficient 

defense that Quinn was framing Almanza due to her dislike of him or that A.W. had 

been injured by a barbed wire fence. Quinn’s prejudicial statements were totally 

irrelevant to the issue of whether Almanza had demonstrated previous sexual 

desires toward children and also as to whether he committed the alleged offense—

they serve only to impugn Almanza’s character and make the jury dislike him. As 

such, even though defense counsel did not object to the questioning, the trial court 

should have stricken the statements, and instructed the jury to disregard them. See, 

e.g., Dudley, 854 F.2d at 972. 

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Furthermore, the Arizona Court of Appeals’ opinion that Almanza

erroneously argued that the burden fell on the State to prove harmlessness of the 

error resulted in the waiver of the claim was an unreasonable determination of the 

facts. In this case, although spending significantly more of the argument discussing 

the fact that the trial court’s error was not harmless, the Court of Appeals 

acknowledged that “Almanza correctly identifies fundamental error as the proper 

standard of review.” (DA, Mem. Decision, Aug. 29, 2014 at 11.) Although 

inartfully, Almanza’s appellate counsel did raise the issue and preserve the 

argument on appeal. Therefore, the Court of Appeals should have considered it. 

Almanza’s arguments as to why the error was not harmless also served as arguments 

for why it was prejudicial and fundamental error. 

The United States Supreme Court has held that “‘federal habeas corpus relief 

does not lie for errors of state law.’” McGuire, 502 U.S. at 67 (quoting Jeffers, 497 

U.S. at 780). Habeas relief is available, however, if the error deprived the petitioner 

of a fundamentally fair trial and therefore rises to the level of a violation of due 

process. Id. at 68; see also LeMay, 260 F.3d at 1026-27; McKinney, 993 F.2d at 

1384. The bad act evidence here deprived Almanza of a fundamentally fair trial. 

And, it was not harmless, because it “had substantial and injurious effect or 

influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623 (quoting 

Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Almanza’s Fifth, Sixth, and 

Fourteenth Amendment rights were violated and the state court’s decision was an 

unreasonable application of clearly established law and constituted an unreasonable 

determination of the facts. See 28 U.S.C. § 2254(d). 

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Claim Six 

The State failed to present sufficient evidence to prove beyond a 

reasonable doubt that Almanza committed Sexual Conduct with a 

Minor; thus, the trial court erred in denying Almanza’s motion for 

directed verdict, in violation of Almanza’s rights under the Fifth, 

Eighth, and Fourteenth Amendments to the United States 

Constitution. 

Almanza incorporates by specific reference all facts, allegations, and 

arguments made elsewhere in this Petition. Almanza raised this claim on direct 

appeal. (DA, Opening Br., May 1, 2014 at 28-30.) The Arizona Court of Appeals 

denied the claim on the merits. (DA, Mem. Decision, Aug. 29, 2014 at 11-12.) The 

state court’s rejection of this claim was contrary to, or involved an unreasonable 

application of, clearly established federal law, as determined by the Supreme Court. 

See 28 U.S.C. § 2254(d)(1). In addition, it constituted an unreasonable 

determination of the facts in light of the evidence presented. See id. § 2254(d)(2). 

“[T]he Due Process Clause protects the accused against conviction except 

upon proof beyond a reasonable doubt of every fact necessary to constitute the 

crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). If the 

State fails to present substantial evidence on any one element of an offense 

necessary for a conviction on a specific charge, the court must, consistent with due 

process, enter a judgement of acquittal on that charge. State v. Guerra, 778 P.2d 

1185 (Ariz. 1989). When reviewing the sufficiency of the evidence, the inquiry 

demanded by due process and the Fourteenth Amendment is “whether, after 

viewing the evidence in the light more favorable to the prosecution, any rational 

trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Habeas relief is 

appropriate where the state court’s denial of a sufficiency of the evidence claim is 

objectively unreasonable. Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam); 

Boyer v. Belleque, 659 F.3d 957, 964-65 (9th Cir. 2011). 

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At the conclusion of the state’s case, defense counsel moved the trial court 

for a judgement of acquittal, contending there was insufficient evidence from which 

a jury could reasonably conclude that Almanza committed sexual conduct with a 

minor. (Tr. Oct. 7, 2013 a.m. at 59); Ariz. R. Crim. P. 20(a). The trial court denied 

the motion. (Tr. Oct. 7, 2013 a.m. at 60.) 

Pursuant to Arizona law, to prove sexual conduct with a minor, the State was 

required to show that Almanza “intentionally or knowingly engag[ed] in sexual 

intercourse . . . with any person who is under eighteen years of age.” A.R.S. § 13-

1405(A) (2011). Specifically, that Almanza engaged in “penetration into the penis, 

vulva or anus by any part of the body or by any object . . .” A.R.S. § 13-1401(4) 

(2011). Under Arizona law, the State was required to prove each of these elements 

in order for there to be sufficient evidence for the trial court to deny Almanza’s 

request for a directed verdict. However, the State failed to present sufficient 

evidence to prove beyond a reasonable doubt that Almanza committed Sexual 

Conduct with a Minor and the trial court erred in denying the motion for a directed 

verdict. 

First, as explained in Claim 2(D), both Almanza’s appellate attorney and the 

Arizona Court of Appeals erred in considering this claim because they analyzed it 

in the context of the “elements of child molestation.” (DA, Mem. Decision, Aug. 

29, 2014 at 11.) However, this argument is deeply flawed because Sexual Conduct 

with a Minor, which is what Almanza was actually convicted of, is an entirely 

different and legally separate offense from Molestation of a Child. See A.R.S. 

§§ 13-1405 and 13-1410 (2011). In the legal context, these terms cannot be used 

interchangeably because they do not describe the same conduct and constitute 

different crimes. Molestation requires that the defendant engaged only in “sexual 

contact” with a child, whereas Sexual Conduct requires penetration. A.R.S. § 13-

1410 (2011); see also A.R.S. § 13-1401(3) (2011). As a result, Molestation is a 

much lower burden than Sexual Conduct for the State to have to prove to survive a 

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directed verdict because it merely describes any type of sexual touching, except for 

“sexual contact with the female breast.” A.R.S. § 13-1410(A) (2011). Therefore, by 

evaluating this claim in the context of whether the State proved the elements of 

molestation, the Arizona Court of Appeals misapplied both the law and the relevant 

facts of Almanza’s case. 

Second, the Arizona Court of Appeals’ Decision demonstrated an 

unreasonable determination of the facts. The Arizona Court of Appeals held that 

“[t]here was ample evidence of Almanza’s guilt” because the “doctor and nurse 

who examined A.W. both observed an abrasion on her genital area that was 

consistent with someone scratching her, and they both testified that A.W. told them 

Almanza had put his finger in her.” (DA, Mem. Decision, Aug. 29, 2014 at 12.) 

While this is technically accurate, the Arizona Court of Appeals failed to take into 

consideration the fact that it is unclear whether the actual location of the injury is 

within the vulva and penetration of the vulva is a necessary element of the offense 

of Sexual Conduct with a Minor. During A.W.’s initial interview, she was asked 

“was it on the inside of your part that pees, or the outside part that pees?” and her 

response was “[o]n the side.” (Trial Ex. 113 at 9.) This information does not indicate 

penetration of the vulva, but instead touching near the genitalia. 

A.W.’s initial report of the location of the injury is similar to the medical 

testimony presented at trial. During the trial, Dr. Julie Klein testified that A.W. “had 

an abrasion just at the base of her left labia minora, inside the labia majora, but not 

involving the hymen” and later, “at the base of the left labia minora. . . . it didn’t go 

into the hymen, but it was within the labia majora and it was affecting the base of 

the labia minora.” (Tr. Oct. 2, 2013 at 224, 232.) However, because the vulva of a 

prepubescent female are thin and flat, and not, as Dr. Klein testifies “fairly well 

protected,” the abrasion being located at the base of the labia suggests that it was 

likely not within the vulva. (Tr. Oct. 2, 2013 at 230.) Additionally, both the doctor 

and the nurse identified the location of the abrasion in diagrams at the time of their 

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evaluations and neither diagram appears to reflect an injury within the vulva. (Trial 

Ex. 102 at 2; Trial Ex. 110 at 7.) Both injuries appear to be just outside the vulva, 

in the perineum region. (Trial Ex. 102 at 2; Trial Ex. 110 at 7.) The colposcope 

photographs, although incredibly blurry and insufficient to definitively diagnose or 

display the full extent of the injury, also appear to depict an abrasion on the 

perineum, which is outside of the vulva. (Trial Ex. 123; see also Tr. Oct. 3, 2013 at 

88-89.) However, even if this injury was inside the vulva, Dr. Klein acknowledged 

that the injury she observed also could have been caused by something else. (Tr. 

Oct. 2, 2013 at 238.) 

Third, A.W. is not a reliable witness. She was four years old at the time of 

the alleged offense and six years old at the time of trial. (Trial Ex. 113 at 2; Tr. Oct. 

1, 2013 a.m. at 97.) Despite the fact that children are very impressionable witnesses 

and it is very important to interview them in an open-ended question manner to 

avoid any undue suggestion, during the initial interview with A.W., Kathy Bodwell, 

the forensic interviewer, asked almost exclusively leading questions where the 

answers were offered as part of the question. (See Trial Ex. 113.) These types of 

interviews do not traditionally lead to reliable testimony about what actually 

happened to a child because, in fact, the child is volunteering information based on 

either intentional or inadvertent coaching from the interviewer about what the 

correct answer to their question is.8

 The nature of this interview itself calls into 

question A.W.’s statements. 

Additionally, A.W. told both Bodwell and Dr. Klein that, after digitally 

penetrating her, Almanza “whacked me with a shovel on my back.” (Trial Ex. 113 

 

8

 Debra A. Poole & D. Stephen Lindsay, Interviewing Preschoolers: Effects of 

Nonsuggestive Techniques, Parental Coaching, and Leading Questions on Reports 

of Nonexperienced Events, Journal of Experimental Child Psychology, 129-154 

(1995); Colin Murray, Child Witness Examination, American Bar Association GP 

Solo Mag. (Spring 2005), http://www.americanbar.org/newsletter/publications/gp

_solo_magazine_home/gp_solo_magazine_index/childwitness.html.

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at 11; Tr. Oct. 2, 2013 at 220.) During the interview with Bodwell, it is first 

described as a shovel and it then changes from a shovel to a stick. (Trial Ex. 113 at 

11, 20.) A.W. also volunteers that her brother slapped her as well. (Trial Ex. 113 at 

20.) Nonetheless, there were no injuries or any markings on A.W.’s back from this 

alleged shovel attack. (Tr. Oct. 2, 2013 at 226.) In fact, by the time of trial, A.W. 

makes no mention during her testimony of being hit by a shovel—only Dr. Klein 

mentions this. (Tr. Oct. 2, 2013 at 220, 226.) Despite the fact that Dr. Klein attempts 

to explain that it would be normal to have no marks after being hit with a shovel, it 

is unreasonable to believe that a child who has been hit by a shovel or any object 

would not have any marks on her back at all reflecting this act. It is also 

unreasonable to believe that a child who has not only been digitally penetrated, but 

also hit with a shovel would report the incident in such a matter of fact way without 

any crying or complaining. None of the witnesses report that A.W. was crying when 

she told them or that she was complaining of being hurt. Instead, she merely 

reported that Almanza “has really sharp fingernails.” (Tr. Oct. 1, 2013 at 168.) 

Finally, the Arizona Court of Appeals ignored Almanza’s principle argument 

in his Direct Appeal Opening Brief, namely, that the State failed to demonstrate the 

requisite mens rea to prove him guilty of Sexual Conduct with a Minor. In order to 

prove every element of Sexual Conduct with a Minor, the State was obliged to prove 

that Almanza intentionally or knowingly penetrated A.W.’s vulva. However, the 

State did not prove that this was Almanza’s intention. The testimony presented by 

the State suggests that A.W. sustained a very small scrape near her vulva, which 

could or could not have been caused by a fingernail scratch, and that, based on the 

accounts of the detectives and Boggs, whose testimony regarding Almanza’s 

statements are deeply flawed (as explained in Claims 4 and 7), Almanza’s finger 

may have scratched A.W. or even possibly entered her vulva. However, none of the 

testimony demonstrates that this act was done intentionally or knowingly. 

At most, based on Almanza’s own statements to the detectives after a 

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coercive and intimidating interrogation, if Almanza’s finger did enter A.W.’s vulva, 

it was done accidentally. During the police interrogation, Almanza was adamant 

that he did not commit this act and, if he did, he did not do it intentionally. (Trial 

Ex. 116 at 71 (“I not put a finger in – I not put a fingers . . . maybe an accident, I 

don’t know, but I no do that. I no do that . . .”; see also Trial Ex. 116 at 89-91 

(continually denying committing this act despite Detective Snyder’s repeated 

insistence that he did).) Even if Almanza’s alleged confession to Boggs that he 

“only put his finger in her” is to be believed, this statement does not demonstrate 

that Almanza did this intentionally, only that he acknowledges that it happened, 

which is completely consistent with his acknowledgement to the Detective that it 

was possible that his hand may have slipped while he was holding A.W. (Tr. Oct. 

2, 2013 at 197.) At no point does Boggs testify that Almanza told him that he 

intentionally penetrated A.W. with his finger. (Tr. Oct. 2, 2013 at 189-213.) All of 

the testimony by the witnesses against Almanza is consistent with an accidental 

touching. As a result, the State failed to satisfy its burden of proving that Almanza 

knowingly or intentionally digitally penetrated A.W. and the Arizona Court of 

Appeals unreasonably interpreted the facts and testimony presented in holding that 

the burden had been satisfied. 

The State failed to prove beyond a reasonable doubt every element of Sexual 

Conduct with a Minor. Thus, the trial court should have granted Almanza’s motion 

for acquittal of Sexual Conduct with a Minor. Instead, the trial court unreasonably 

denied his motion, and Almanza was subsequently convicted of that charge. The 

Arizona Court of Appeals did not correct the trial court’s error. Consequently, 

Almanza’s Fifth, Eighth, and Fourteenth Amendment rights were violated, and 

accordingly, he is entitled to relief. 

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Claim Seven 

Almanza’s Fifth and Sixth Amendment rights were violated by the

admission of the jailhouse informant testimony of Johnny Boggs.

Almanza incorporates by specific reference all facts, allegations, and 

arguments made elsewhere in this Petition. Almanza raised this claim on direct 

appeal. (DA, Opening Br., May 1, 2014 at 31-36.) The state court did not address 

the merits of the underlying claim itself, but determined that this claim had been 

waived due to Almanza’s failure to argue fundamental error with regard to this 

testimony. (DA, Mem. Decision, Aug. 29, 2014 at 11.) Because this claim has not 

been adjudicated by the Arizona state courts on the merits, the limitations on relief 

imposed by 28 U.S.C. § 2254(d) do not apply to this Court’s review of the claim. If 

this instead constituted a decision on the merits, then the state court’s rejection of 

the claim was contrary to, or involved an unreasonable application of, clearly 

established federal law, as determined by the United States Supreme Court. See 28 

U.S.C. § 2254(d)(1). In addition, it constituted an unreasonable determination of 

the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(2). 

Furthermore, Almanza can demonstrate cause and prejudice. See Martinez, 

566 U.S. at 10 (“A prisoner may obtain federal review of a defaulted claim by 

showing cause for the default and prejudice from a violation of federal law.”) To 

the extent that appellate counsel failed to raise the correct burden and, therefore, 

according to the Arizona Court of Appeals, failed to preserve the claim for review, 

this performance was deficient under the test established in Strickland, and 

therefore constitutes “cause” to excuse a procedural default. See Martinez, 566 U.S. 

at 9; Carpenter, 529 U.S. at 453; Strickland, 466 U.S. at 687-88 (1984); but see

Davila, 137 S. Ct. 2058. Furthermore, as discussed below, had the Arizona Court 

of Appeals not found this claim waived, Almanza would have been entitled to relief. 

He therefore has demonstrated “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

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Strickland, 466 U.S. at 694. In sum, the Arizona Court of Appeals’ conclusion that 

this claim was waived does not bar federal review of the merits. 

Presumably some of the most incriminating testimony during Almanza’s trial 

was the testimony of Boggs. Boggs had been in pre-trial custody in the county jail 

with Almanza. According to Boggs, he was introduced to Almanza because 

Almanza needed someone to help him understand what was going on with his case 

and Boggs spoke both Spanish and English. (Tr. Oct. 2, 2013 at 195.) Because 

Almanza told Boggs that he did not know why he was in jail, Boggs apparently 

asked a Pinal County Sheriff, Detective Rushing, who told Boggs what Almanza 

had been charged with. (Tr. Oct. 2, 2013 at 195-96.) Boggs also filed motions on 

Almanza’s behalf because Almanza cannot read or write. (Tr. Oct. 2, 2013 at 196-

97; see also ROA 14, 15, 17, 18.) Most importantly, Boggs claimed that Almanza 

told him about his case and that “[h]e didn’t understand how he was being charged 

for sexual assault if he didn’t put his penis in her, that he just put his finger in her.” 

(Tr. Oct. 2, 2013 at 197.) Allegedly, according to Boggs, after hearing this statement 

Boggs offered to testify against Almanza out of the goodness of his heart and with 

no expectation of any benefit because he thought what Almanza did was “messed 

up.” (Tr. Oct. 2, 2013 at 198.) 

While Boggs had already received a plea offer that did not change after he 

offered to testify in Almanza’s case, it is clear that he was hoping to receive a benefit 

by talking to police about Almanza. (See Trial Ex. 114 at 21-22) (“I’m trying to get 

back out there as quick as I can for my family and kids. That’s why, you know, if I 

could get my sentence mitigated, where they bring it down to a year, nine months, 

like I said, it would put me out a lot quicker.”).) Boggs’s plea offer was 

subsequently altered to be contingent upon him testifying against Almanza in 

accordance with his statements to the police. (Trial Ex. 127; Trial Ex. 128.) His 

hopes for some benefit by snitching to the police are apparent because, after offering 

information about Almanza, he also tried to offer information about several other 

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people. (Trial Ex. 114 at 20-34.) 

On June 13, 2012, Almanza’s first trial counsel, Huggins, filed a Motion for 

Disclosure of Information Regarding Cooperating Jailhouse Witness. (ROA 33.) In 

the motion, Huggins asked the trial court to order disclosure of all documents 

related to Boggs’s credibility and Boggs’s testimony or statements against Almanza 

and anyone else, including any plea bargains made to Boggs, Boggs’s criminal 

record, information suggesting motive for Boggs to testify falsely, any promises or 

benefits provided to Boggs or his family, all documents reflecting any investigation 

arising from Boggs’s statements to police, any statements made to any law 

enforcement agency, including information relating to other potential defendants, 

and any prior contrary statements. (ROA 33 at 2-6.) Green never re-urged the 

motion and it does not appear that the trial court ever ruled on it. Accordingly, Green 

never received the requested information and was unable to challenge Boggs’s 

credibility or impeach his statements with the information. 

Boggs’s testimony was incredibly important at trial because it was deemed 

to be a confession that Almanza had actually digitally penetrated A.W., which was 

the missing piece in the police investigation. As a result, this testimony was likely 

essential to the jury returning a guilty verdict. 

It is well-settled law that it is a violation of the Sixth Amendment right to 

counsel for a government agent to “deliberately elicit” incriminating statements 

after an accused has been indicted and without an attorney present. Massiah v. 

United States, 377 U.S. 201, 206 (1964) (finding a Sixth Amendment violation

when the police listened in on conversation between defendant and co-defendant on 

a radio placed in co-defendant’s car). In United States v. Henry, a defendant 

awaiting trial made incriminating statements to a fellow inmate, who was acting as 

a paid government informant, and who testified against the defendant at trial. 447 

U.S. 264 (1980). The Court held that the informant’s statements were inadmissible 

because the government violated the defendant’s Sixth Amendment right to counsel 

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by intentionally creating a situation likely to induce Henry to make incriminating 

statements without the assistance of counsel. Id. at 274. The Court particularly 

focused on the fact that Henry was unaware that the informant was acting for the 

Government when he made his statements and that Henry was incarcerated at the 

time that the statements were made. Id. at 273-74 (“[w]hile the concern in Miranda

was limited to custodial police interrogation, the mere fact of custody imposes 

pressures on the accused; confinement may bring into play subtle influences that 

will make him particularly susceptible to the ploys of undercover Government 

agents.”). However, the “defendant must demonstrate that the police and their 

informant took some action, beyond merely listening, that was designed 

deliberately to elicit incriminating remarks.” Kuhlmann v. Wilson, 477 U.S. 436, 

459 (1986). 

The situation here is very similar to that in the Henry case. At the time of his 

communications with Boggs, Almanza was in custody, had already been indicted, 

and had been appointed a lawyer. Almanza did not know that Boggs was working 

with the police and, as a fellow inmate who could speak both Spanish and English, 

Almanza was particularly susceptible to Boggs’s influence because he needed his 

assistance to understand what was going on. Additionally, Boggs was not a mere 

listener or sounding board for Almanza, but instead, took action to involve himself 

in Almanza’s case. When Almanza expressed confusion about his charges, Boggs 

sought out the deputies to tell him what Almanza had been charged with and then 

relayed that information to Almanza. (Tr. Oct. 2, 2013 at 195-96.) By learning about 

Almanza’s charges and discussing them with Almanza, Boggs initiated a 

conversation that was unavoidably designed to elicit incriminating remarks. Then, 

Boggs learned more about Almanza’s case by assisting him in preparing motions to 

file in court. (Tr. Oct. 2, 2013 at 196-97.) By seeking out and expressly having 

conversations with Almanza about the facts of his case, the charges, and the status 

of the court proceedings, Boggs’s actions squarely constituted the type of 

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government informant behavior that has been renounced by the United States 

Supreme Court. Boggs’s conversations were clearly intended to bait Almanza into 

making incriminating remarks that Boggs could use to attempt to induce the State 

to give him a better plea offer. 

“The use of informers, accessories, accomplices, false friends, or any of the 

other betrayals which are ‘dirty business’ may raise serious questions of credibility. 

On Lee v. United States, 343 U.S. 747, 757 (1952); see also United States v. BernalObeso, 989 F.2d 331, 333 (9th Cir. 1993) (criminal informant testimony “is a matter 

‘capable of accurate and ready determination by resort to sources whose accuracy 

cannot be reasonably questioned’ and thus of which we can take judicial notice.”) 

(internal citation omitted). Also, a conviction obtained using knowingly perjured 

testimony violates due process. See Mooney v. Holohan, 294 U.S. 103, 112 (1935) 

(per curiam). A defendant’s due process rights are violated when the state, even if 

it does not solicit false evidence, allows it to go uncorrected when it appears. See 

Alcorta v. Texas, 355 U.S. 28, 313-32 (1957) (per curiam). This prohibition applies 

even when the testimony in question is relevant only to the witness’s credibility. 

See Napue v. Illinois, 360 U.S. 264, 269 (1959). 

Boggs’s testimony lacks credibility. Boggs was a fellow inmate with access 

to Almanza’s discovery and the ability to learn a large amount of information about 

Almanza’s case due to the fact that he could speak and read English and Almanza 

could not. Similarly, it seems highly coincidental that the only piece of evidence 

that was clearly missing from the police reports and the police investigation in the 

case was an inculpatory statement from Almanza, and that is exactly what Boggs 

got. Boggs’s only testimony at trial was that Almanza had admitted to digitally 

penetrating A.W. He did not offer any additional details that could confirm the 

veracity of his testimony. He did not offer Almanza’s version of the events of the 

day with any sort of timeline or facts that the police were not privy to. He simply 

testified that Almanza told him he had “put his finger in her.” (Tr. Oct. 2, 2013 at 

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197.) This lack of details and limited amount of information makes the credibility 

of Boggs’s testimony highly convenient and highly questionable. Even the State 

has generally acknowledged the unreliability of Boggs, due to his lengthy history 

of felony convictions, and has repeatedly informed the state courts of his 

untrustworthiness and its desire to impeach his credibility should he testify in his 

own defense.9

 

Although Boggs’s plea offer did not dramatically change with regard to the 

proposed sentence after he agreed to testify against Almanza, that fact does not 

bolster his credibility with regard to that testimony. It is clear that at the time Boggs 

spoke to Detective Snyder, he was anticipating that he would receive a benefit in 

exchange for his testimony. Boggs clearly was doing and saying anything he could 

think of to try to reduce his expected sentence and to get out of custody “as quick 

as I can for my family and kids.” (Trial Ex. 114 at 22.) The fact that afterwards, 

prior to his trial testimony, the sentence in his plea agreement did not change does 

not change the dubiousness of his credibility. In fact, although the sentence did not 

change, the plea that he had previously received did change because it then became 

contingent upon him testifying in Almanza’s case. Boggs had already spoken to 

Detective Snyder and told them his story about Almanza’s supposed confession. If, 

after receiving no meaningful benefit for his plea offer, he had refused to testify, 

the State could have refused to honor that plea and his plea offer would have gotten 

worse, or he could have been offered no subsequent plea at all. Once he spoke to 

Detective Snyder, he was locked in to his story and obligated to testify to preserve 

the status quo. The fact that Boggs did not receive any actual benefit does not 

change the questionable nature of this alleged confession and Boggs’s motives for 

speaking to the detectives. 

 

9 See, e.g., State’s Req. for Rule 609 Hr’g, State v. Boggs, CR201503115 (Pinal 

Cty. Super. Ct. Oct. 14, 2015); Mot. to Allow Impeachment by Prior Felony 

Convictions, State v. Boggs, CR17963 (Pinal Cty. Super. Ct. Dec. 3, 1992). 

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Nonetheless, despite the fact that Boggs’s conversations with Almanza were 

clearly designed to elicit incriminating statements and that Boggs lacked credibility, 

the trial court allowed this testimony to be presented to the jury and Almanza’s trial 

counsel failed to object to it. Boggs’s testimony was highly prejudicial and very 

likely hugely important in the jury finding Almanza guilty. Boggs’s testimony 

provided the missing piece of information that the State needed to prove its case—

Almanza’s alleged confession to digital penetration. The admission of Boggs’s 

prejudicial testimony violated Almanza’s rights under the Fifth and Sixth 

Amendments to the United States Constitution. Therefore, he is entitled to relief. 

Claim Eight 

The trial prosecutor engaged in repeated and pervasive misconduct, 

violating Almanza’s rights under the Fifth, Sixth, Eighth, and 

Fourteenth Amendments to the United States Constitution. 

Almanza raised this claim in his post-conviction proceedings. (Ariz. Ct. App. 

PFR, Pet. for Review, Feb. 21, 2017 at 6-11; Ariz. S. Ct. PFR Dkt. 1 at 10-12.) 

None of the Arizona state courts addressed the merits of this claim. (Ariz. Ct. App. 

PFR, Mem. Decision, July 25, 2017 at 3; Ariz. S. Ct. PFR Dkt. 4 at 1.) Because this 

claim has not been adjudicated by the Arizona state courts on the merits, the 

limitations on relief imposed by 28 U.S.C. § 2254(d) do not apply to this Court’s 

review of the claim and this Court may consider the merits of this claim de novo. 

Alternatively, if this Court deems this claim unexhausted, Almanza can overcome 

any default of this claim by showing cause and prejudice, including because of the 

ineffective assistance of appellate and state post-conviction counsel. See Martinez, 

566 U.S. at 9; Carpenter, 529 U.S. at 453; Strickland, 466 U.S. at 687-88; but see

Davila, 137 S. Ct. 2058. Almanza will demonstrate at an evidentiary hearing that 

appellate and post-conviction counsel fell below the standards of minimally 

competent attorneys and that those failures prejudiced him. Alternatively, he alleges 

that any procedural bar is not adequate or independent or that imposing default 

would be a miscarriage of justice. Almanza incorporates by specific reference all 

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facts, allegations, and arguments made elsewhere in this Petition. 

A. Introduction 

A prosecutor occupies a unique position in the Bar, and is subject to uniquely 

rigorous standards. “[W]hile he may strike hard blows, he is not at liberty to strike 

foul ones. It is as much his duty to refrain from improper methods calculated to 

produce a wrongful conviction as it is to use every legitimate means to bring about 

a just one.” Berger v. United States, 295 U.S. 78, 88 (1935). “Prosecutors are 

subject to constraints and responsibilities that don’t apply to other lawyers. . . . [t]he 

prosecutor’s job isn’t just to win, but to win fairly, staying well within the rules.” 

United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993) (internal citations 

omitted). 

To succeed on a claim of prosecutorial misconduct, Almanza must meet one 

of two standards. Almanza must demonstrate either that the prosecutor’s 

misconduct prejudiced a substantive right, see Donnelly v. DeChristoforo, 416 U.S. 

637, 644 (1974) (internal citations omitted), or that the prosecutor’s misconduct 

rendered the trial fundamentally unfair, see Berger, 295 U.S. 78. When evaluating 

various instances of prosecutorial misconduct, the reviewing court must consider 

the cumulative effect of the harm. See Berger, 295 U.S. at 89 (awarding a new trial 

because of “probable cumulative effect” of instances of prosecutorial misconduct). 

Almanza will show that the prosecutor’s conduct both prejudiced his substantive 

rights and rendered the trial fundamentally unfair. The prosecutor in Almanza’s 

case has a history of violating ethical duties and flouting the law to obtain a 

conviction at all costs. This misconduct pervaded Almanza’s trial and rendered it 

fundamentally unfair. 

B. Prosecutorial Misconduct 

Prosecutorial misconduct may “so infect[] the trial with unfairness as to make 

the resulting conviction a denial of due process.” See Donnelly, 416 U.S. at 643. 

Prosecutorial misconduct is not evaluated from isolated instances alone; rather, the 

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reviewing court must consider the cumulative effect of the harm. Berger, 295 U.S. 

at 89. In Almanza’s case, the State’s misconduct was not confined to a single 

instance but was persistent. Almanza was already facing an uphill battle as an 

illiterate, Spanish speaker, accused of a crime against a child, whose trial counsel 

was unprepared for his defense. (See Claim 1 supra.) His right to a fair trial was 

eviscerated by the prosecutor’s repeated instances of misconduct. 

Both federal and Arizona courts recognize that whether a prosecutor’s 

misconduct is isolated or a consistent pattern is relevant to analysis of such a claim. 

See Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987); State v. Minnitt, 55 P.3d 

774, 782 (Ariz. 2002) (“Like the misdeeds in Pool [v. Super. Ct. In and For Cty. of 

Pima, 677 P.2d 261, 271 (Ariz. 1984)], Peasley’s misdeeds were not isolated events 

but became a consistent pattern of prosecutorial misconduct that began in 1993 and 

continued through retrial in 1997.”); State v. Jorgenson, 10 P.3d 1177, 1180 (Ariz. 

2000) (“This is perhaps the third or fourth time that the conduct of this same 

prosecutor has raised the same type of problem. It is unfortunate that he was 

permitted to try so serious a case and, without proper supervision, permitted to try 

it in such an improper manner.”). 

The experience level of the prosecutor is also relevant. See Minnitt, 55 P.3d 

at 782 (reversing a conviction for prosecutorial misconduct, which permeated the 

trials in question, and noting, “Peasley is not an inexperienced prosecutor, but rather 

a veteran homicide prosecutor.”). In disciplinary cases involving prosecutorial 

misconduct, the experience of the prosecutor renders conduct more egregious. In re 

Peasley, 90 P.3d 764, 774 (Ariz. 2004) (“[W]hen a lawyer’s substantial experience 

places that lawyer in a position that would be unavailable to a less experienced 

lawyer, and that lawyer’s experience also affords, or should afford, a greater 

appreciation of the advantages of eliciting false testimony, substantial experience 

may be considered a relevant aggravating factor.”); In re Zawada, 92 P.3d 862, 869 

(Ariz. 2004) (citation omitted) (“Peasley’s extensive experience as a prosecutor 

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helped him understand how a jury would react to unfavorable evidence. 

Accordingly, he suborned perjured testimony to destroy the negative inference the 

jury would otherwise have drawn.”). 

Long, the prosecutor in Almanza’s case, was experienced and has a welldocumented history of crossing ethical lines. Long was admitted to the Arizona 

State Bar in 2003 and practiced as a prosecutor at the Maricopa County Attorney’s 

Office and then Pinal County Attorney’s Office for the next twelve years, including 

serving as Chief of the Pinal County Major Crimes Bureau. He had been a 

prosecutor for ten years and was already a supervisor when he tried Almanza’s case 

in October 2013. 

Despite his experience, and while a supervising attorney at the Pinal County 

Attorney’s Office in 2014, Long was implicated in two different ethics scandals that 

occurred at the office. First, the Pinal County Attorney’s Office was disqualified 

from prosecuting a death-penalty case after several of its lawyers violated a court 

order by accessing and reviewing medical records that had been filed ex-parte and 

under seal. See Sean Holstege, Pinal County Attorney’s Office rebuked by Judge, 

Arizona Republic (July 16, 2014), http://www.azcentral.com/story/news/arizona/p

olitics/2014/07/17/pinal-county-attorneys-office-rebuked-judge/12769315; see 

also Sean Holstege, Ethics concerns in Pinal death- penalty cases, Arizona 

Republic (Aug. 4, 2014), https://www.azcentral.com/story/news/arizona/politics/2

014/08/05/pinal-county-prosecutors-hit-barrage-ethics-concerns/13611183.

Specifically, in July 2013, a paralegal at the Pinal County Attorney’s Office logged 

into Pinal County Superior Court Clerk’s Office computer system and accessed 

records that had been filed under seal records. This paralegal notified an attorney in 

the office and printed the records. Long was the supervisor of the attorney and was 

made aware of the office’s access to sealed records maintained by the clerk’s office. 

News coverage regarding the sealed records also alludes to Ronald 

Thompson’s case, which took place only nine months after Almanza’s trial. This 

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case resulted in a mistrial when Long not only mislead the court, but also appeared 

to have unduly influenced a defense witness by waiting for him to arrive at the 

courthouse and then escorting him into a private interview with prosecutors without 

his attorney present. Sean Holstege, Ethics concerns in Pinal death-penalty cases, 

Arizona Republic (Aug. 4, 2014), https://www.azcentral.com/story/news/arizona/

politics/2014/08/05/pinal-county-prosecutors-hit-barrage-ethicsconcerns/13611183. In the Ronald Thompson case, Long had not previously 

interviewed a defense witness, so he had someone from the Pinal County Attorney’s 

Office intercept that witness after he had entered the courthouse and escort him to 

a room in the County Attorney’s office. At the time, Long was in court for the 

Thompson matter and informed the judge that he had to step out briefly for 

“administrative matters.” (Jury Trial Tr. at 38, 40-41, State v. Thompson, CR2009-

00270 (Pinal Cty. Super. Ct. July 24, 2014)). The court later learned that Long had 

been interrogating the defense witness, who also had pending felony charges, 

without that witness’s attorney or Thompson’s defense attorney present. The 

subsequent testimony revealed to the judge that the witness’s testimony may have 

been tainted by Long’s interactions with the witness and that he had no choice but 

to declare a mistrial. (Jury Trial Tr. at 45, State v. Thompson, CR2009-00270 (Pinal 

Cty. Super. Ct. July 24, 2014); Min. Entry at 2, State v. Thompson, CR2009-00270 

(Pinal Cty. Super. Ct. July 28, 2014)). The judge accused Long of unprofessional 

conduct for misleading him when he said he had to take care of “administrative 

matters.” (Jury Trial Tr. at 40-41, State v. Thompson, CR2009-00270 (Pinal Cty. 

Super. Ct. July 24, 2014)).

In addition to these larger ethical scandals involving the Pinal County 

Attorney’s Office, within the office, Long’s personnel records reflect that he was 

the subject of several investigations resulting in verbal and written censures due to 

inappropriate conduct and statements in the workplace. These infractions included 

inappropriate comments about co-workers who were of the Church of Latter Day 

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Saints and demeaning comments to his colleagues. Overall, Long was considered 

to be functionally third in command within the office and the accounts of several 

former colleagues suggested that he created a very hostile work environment as a 

supervisor. 

1. The prosecutor impermissibly used insulting and 

inflammatory language. 

It is inappropriate for a prosecutor to make inflammatory or misleading 

arguments or arguments that are intended to invoke inappropriate prejudice. See 

Darden v. Wainwright, 477 U.S. 168, 180-81 (1986); United States v. Young, 470 

U.S. 1, 18 (1985); see also ABA Standards for Criminal Justice § 3-6.8(c) (4th ed. 

2015) (“prosecutor should not make arguments calculated to appeal to improper 

prejudices”). In Arizona, there are two factors to consider in determining 

prosecutorial misconduct, “(1) whether the prosecutor’s statements called to the 

jury’s attention matters it should not have considered in reaching its decision and 

(2) the probability that the jurors were in fact influenced by the remarks.” State v. 

Nelson, 273 P.3d 632, 641 (Ariz. 2012). As a result, the court also analyzes the 

“context in which the statements were made as well as ‘the entire record and [] the 

totality of the circumstances.’” Id. (quoting State v. Rutledge, 66 P.3d 50, 56 (Ariz. 

2003)). It is not sufficient for the prosecutor’s statements to be “undesirable or even 

universally condemned.” Darden, 477 U.S. at 181. The relevant question is whether 

the prosecutors’ comments “so infected the trial with unfairness as to make the 

resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643. Because, 

as Berger made clear, when a prosecutor makes “improper insinuations and

assertions calculated to mislead the jury,” reversal is required. 295 U.S. at 85. 

During Almanza’s trial, the prosecutor made twenty-four improper 

references in his opening statement to Almanza being a “poacher,” a “hunter,” a 

“fox,” a “fox in a henhouse,” and to A.W. being “prey” who was “selected” and 

“snatched up.” (Tr. Oct. 1, 2013 at 4-6, 8-10, 18.) These comments are not only 

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inappropriate and inflammatory, but they are also not supported by the facts that 

were introduced at trial. There was no evidence to support any inference that 

Almanza had previously strategized or planned the alleged misconduct. There was 

no evidence that Almanza “snatched” A.W. up by kidnapping her or taking her to 

any location against her will. There was also no evidence that he was lying in wait 

for her. 

Instead, Long’s arguments served only to inflame the jury. Because there was 

minimal physical corroborating evidence in this case, due to the type of allegation, 

and because the facts hinged largely on the testimony of a young child, the 

prosecutor’s derogatory comments undermined any credibility that Almanza had 

from the beginning of trial, painting him as a monster or an animal, and ensured 

that the jury would approach all of the evidence with a bias against him. 

In addition to the federal case law condemning the use of inflammatory 

language by prosecutors, the Arizona Supreme Court has specifically held that it is 

improper for the prosecutor during his opening statement to refer to a defendant as 

a “predator” or a “wolf” or to use similarly insulting and inflammatory language. 

State v. Goudeau, 372 P.3d 945, 960-61, as amended on denial of reconsideration

(July 5, 2016), cert. denied, 137 S. Ct. 223 (Ariz. 2016). These types of comments 

are inappropriate because “[o]pening statement is counsel’s opportunity to tell the 

jury what evidence they intend to introduce . . . [It] is not a time to argue the 

inferences and conclusions that may be drawn from evidence not yet admitted.” 

State v. Bible, 858 P.2d 1152, 1205 (Ariz. 1993). 

This proposition and the effect of demonizing Almanza was bolstered by 

many additional references in the prosecutor’s closing argument to Almanza being 

a “hunter” or a “poacher” and A.W. being his “prey.” (Tr. Oct. 7, 2013 p.m. at 4, 7, 

30.) These comments included references to Almanza’s “hunting grounds, to his 

trap, the trap that he had laid.” (Tr. Oct. 7, 2013 p.m. at 7.) The purpose of a closing 

argument “is to explain to the jury what it has to decide and what evidence is 

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relevant to its decision.” Sandoval v. Calderon, 241 F.3d 765, 776 (9th Cir. 2000). 

The constitutional guarantee of due process is violated by the admission of evidence 

that is not relevant to an element of the crime charged and is so inflammatory as to 

prevent a fair trial. See, e.g., Duncan v. Henry, 513 U.S. 364, 366 (1995) (per 

curiam); Romano v. Oklahoma, 512 U.S. 1, 12-13 (1994) (holding that admission 

of irrelevant evidence violates due process if it so infected proceedings as to render 

jury’s determination a violation of due process); Estelle v. McGuire, 502 U.S. 62, 

70 (1991). 

While closing arguments, unlike opening statements, are permitted to 

comment on the evidence that had been presented and to draw inferences, there was 

no testimony about Almanza planning this alleged conduct in advance or that he 

“laid” a “trap.” (Tr. Oct. 7, 2013 p.m. at 7.) There was also no evidence presented 

at trial that he had committed any similar offenses against anyone else. As a result, 

these comments are baseless in the facts of the case and are merely inflammatory 

comments, intended to make the jurors perceive Almanza as an evil predator. 

These characterizations of Almanza as an animalistic predator amounted to 

a coded racial appeal to Almanza’s jury as well. Almanza is Hispanic and does not 

speak English. Undoubtedly, given the political atmosphere surrounding illegal 

immigration for the last decade, the jurors were also wondering whether he was 

undocumented. Long’s statements racialized Almanza by appealing to deeply 

entrenched and stereotypical associations of the dangerousness of undocumented, 

Hispanic immigrants.10 In describing Almanza as a “predator,” Long painted 

Almanza as a continuing threat to the community, despite the fact that at the time 

of the prosecution of this case, Almanza had no prior felony convictions involving 

 

10 Cf. Br. for the Nat’l Black Law Students Ass’n as Amicus Curiae in Supp. of 

Pet’rs’ at 2, Buck v. Davis, 137 S. Ct. 759 (2017) (No. 15-8049) (“[P]resented with 

a criminal defendant, even well-meaning people fall prey to the stereotype that, 

whether for reason of biology or culture, Black people are inherently violent and 

dangerous.”) 

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crimes of violence or sexual offenses. In essence, Long urged jurors to convict 

Almanza based, in part, on an appeal to a vicious and degrading racial stereotype.11

Conversely, the prosecutor also engaged in misconduct in his opening 

statement by making complimentary statements about A.W. and her family, thereby 

appealing to the community and the juror’s community ties. Specifically, he 

commented on the ranch itself and on A.W.’s mother’s job there, explaining several 

times that Quinn does “what’s necessary to provide food on our community’s 

table.” (Tr. Oct. 1, 2013 at 5.) These statements were irrelevant to any of the 

evidence that would be presented at trial. The only purpose of these statements was 

to endear A.W. and her mother to the jurors and to raise them up as essential and 

productive pillars of the community. This type of appeal to the jury’s sympathies is 

improper. 

2. The prosecutor impermissibly vouched for State’s 

witnesses. 

Long’s inappropriate comments in his opening and closing statements went 

farther. It is well-settled law that it is improper for a prosecutor to vouch for a 

witness. See Young, 470 U.S. at 18-19 (“The prosecutor’s vouching for the 

credibility of witnesses and expressing his personal opinion concerning the guilt of 

the accused pose two dangers: such comments can convey the impression that 

evidence not presented to the jury, but known to the prosecutor, supports the 

charges against the defendant and can thus jeopardize the defendant’s right to be 

 

11 See generally Ian Haney López, Dog Whistle Politics: How Coded Racial 

Appeals Have Reinvented Racism and Wrecked the Middle Class ix (2015) 

(explaining that such references are in reality racial entreaties that “operate like a 

dog whistle” –that amounts to “racial pandering [that] [ ] operates on two levels: 

inaudible and easily denied in one range, yet stimulating strong reactions in 

another.”); see also Eduardo Bonilla-Silva, Racism without Racists: Color-blind 

Racism and the Persistence of Racial Inequality in America (4th ed. 2014) 

(discussing coded language that masks racial prejudice as the product of the post1960s rise in color blind ideology). 

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tried solely on the basis of the evidence presented to the jury; and the prosecutor’s 

opinion carries with it the imprimatur of the Government and may induce the jury 

to trust the Government’s judgment rather than its own view of the evidence.”); see 

also Berger, 295 U.S. at 88-89; Bible, 858 P.2d at 1204; State v. Newell, 132 P.3d 

833, 846 (Ariz. 2006). There are two forms of impermissible prosecutorial 

vouching: “(1) when the prosecutor places the prestige of the government behind 

its witness, and (2) where the prosecutor suggests that information not presented to 

the jury supports the witness’s testimony.” Bible, 858 P.2d at 1204. 

In Almanza’s trial, Long engaged in the first type by vouching for A.W. and 

for the minimal physical evidence in the case. During his opening statement, Long 

made at least eleven references to the “truth” spoken by A.W. and by her body. (Tr. 

Oct. 1, 2013 at 4, 5, 10, 12-13, 16-18.) Furthermore, during closing argument, the 

prosecutor continued this thread of statements, but heightened their impact by 

characterizing A.W.’s body as “scream[ing]” the truth. (Tr. Oct. 7, 2013 p.m. at 8-

11, 13, 18, 23, 26, 44-45.) This statement was made at least ten times during the 

closing argument. These statements by Long lent credibility to the statements of 

A.W. and the allegations for which Almanza was being tried. By proclaiming that 

A.W. and her body speak the “truth,” the prosecutor is not asking the jury to make 

a determination about what is true and whether Almanza is guilty, but instead using 

the weight of the government to confirm to the jury that this information is true. 

Thus, any alternative information is presumptively false. 

Long also disingenuously vouched for Boggs during his closing argument. 

During his closing argument, Long commented that Boggs had “absolutely nothing 

to gain by speaking his truth.” (Tr. Oct. 7, 2013 p.m. at 22.) Although it is unclear 

whether Boggs received a better plea in exchange for testifying against Almanza, 

his plea agreement did specifically specify that he would testify at Almanza’s trial. 

(Trial Ex. 128 at 3.) As a result, if he had refused to testify, the State could have 

invalidated his plea agreement and he could have found himself back in custody. 

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3. The prosecutor improperly commented on Almanza’s 

failure to testify. 

Prosecutorial comment on “the refusal to testify at trial violates a defendant’s 

Fifth Amendment right against self-incrimination.” Cook v. Schriro, 538 F.3d 1000, 

1019 (9th Cir. 2008) (citing Griffin v. California, 380 U.S. 609, 615 (1965)). Where 

the “prosecutor’s reference to the defendant’s opportunity to testify is a fair 

response to a claim made by defendant or his counsel, . . . there is no violation of 

the privilege.” United States v. Robinson, 485 U.S. 25, 32 (1988). But “how-doeshe-explain” arguments are disfavored for two reasons—the Griffin violation, and 

the apparent shift of the burden of proof to the defendant. See United States v. 

Skandier, 758 F.2d 43, 45 (1st Cir. 1985) (finding that prosecutor’s statements in 

closing argument that, “at the close of [defense’s counsel’s] testimony, (sic) I will 

have a chance to speak with you one more time and see if he can explain the story 

that would be any different with regard to the responsibility of the defendant in this 

case,” impermissibly shifted the burden of proof to the defendant); see also United 

States v. Cox, 752 F.2d 741, 745 (1st Cir. 1985) (finding prosecutor’s repeated 

statements during closing argument, asking “how does [defendant] explain” certain 

evidence, “a fairly severe violation of the Griffin rule); United States v. Wilkins, 

659 F.2d 769, 773-74 (7th Cir. 1981) (finding prosecutor’s statements that the 

government’s theory was the “only explanation” and “[s]ee if [the defendant’s] 

attorney explains . . .” improper comment on the defendant’s failure to testify). 

Here, Long impermissibly commented on Almanza’s failure to testify in his 

final closing argument, emphasizing, “[t]here are two people who know what 

happened, and the defendant is the other.” (Tr. Oct. 7, 2013 p.m. at 40.) He 

continued this theme, commenting that “what defense has asked you to do is guess 

about facts.” (Tr. Oct. 7, 2013 p.m. at 41.) He then went even further in his 

comments, ultimately shifting the burden of proof to Almanza through several 

statements, including “there’s no evidence of [A.W. being influenced]. Where is 

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the evidence of that? There isn’t any” (Tr. Oct. 7, 2013 p.m. at 43) and “why didn’t 

[defense counsel] ask the expert in this case, is that reasonable. In this case, could 

that have happened. Because he [sic] rather have an argument than the facts because 

in this case there is no evidence that [A.W.] was impacted” (Tr. Oct. 7, 2013 p.m. 

at 43). Long’s statements therefore prejudiced Almanza’s substantive rights under 

the Fifth and Fourteenth Amendments and rendered his trial fundamentally unfair. 

4. The cumulative effect of the prosecutorial misconduct 

violated Almanza’s due process rights. 

Prosecutorial misconduct does not rise from one act of misconduct alone; 

rather, the reviewing court must consider the cumulative effect of the harm. See 

Berger, 295 U.S. at 89. In Almanza’s case, Long’s misconduct was not confined to 

a single instance, but was persistent. And all of these instances of misconduct, 

considered singly and collectively, involved improper and deceptive methods of 

persuasion, which rendered Almanza’s trial fundamentally unfair and in violation 

of due process. See Wood v. Ryan, 693 F.3d 1104, 1116 (9th Cir. 2012) (explaining 

that “[e]ven when separately alleged incidents of prosecutorial misconduct do not 

independently rise to the level of reversible error, ‘[t]he cumulative effect of 

multiple errors can violate due process.’” (quoting United States v. Nobari, 574 

F.3d 1065, 1082 (9th Cir. 2009))). 

C. Conclusion 

The Arizona Supreme Court has a history of reversing cases based on 

prosecutorial misconduct, and Almanza’s claim is meritorious. Long’s history and 

experience demonstrate that he should know that he should not make improper and 

unsupported arguments or misstate the evidence, but also that he is willing to 

engage in unprofessional behavior in order to obtain a conviction. Long’s 

misconduct in this case can only be seen as intentional conduct aimed to secure a 

conviction and the cumulative effect was undeniably prejudicial to Almanza, 

ultimately denying him of a fair trial. 

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Based on the evidence of pervasive and outrageous misconduct in this case 

and others prosecuted by Long, Almanza was prejudiced. Each of the prosecutor’s 

inappropriate comments constituted misconduct, as they were clearly intended to 

inflame the passions of the jurors. Each comment continually denigrated and 

dehumanized Almanza to the jury while simultaneously lending credibility to and 

elevating the testimony of A.W. and her mother. Moreover, taken as a whole, 

Long’s statements unfairly infected the trial proceedings, poisoning the jurors 

against Almanza, and denied his rights under the Fifth, Sixth, Eighth, and 

Fourteenth Amendments to the United States Constitution. Accordingly, he is 

entitled to evidentiary development and habeas relief. 

Claim Nine 

The Arizona Court of Appeals erred in finding that Almanza’s late 

Notice of Post-Conviction Relief barred review of his claims. 

Almanza incorporates by specific reference all facts, allegations, and 

arguments made elsewhere in this Petition. Almanza raised this claim in his postconviction proceedings. (Ariz. S. Ct. PFR Dkt. 1 at 7-9.) The Arizona Supreme 

Court issued a summary denial of Almanza’s Petition for Review without any 

analysis of the merits of his claims. (Ariz. S. Ct. PFR Dkt. 4 at 1.) Because this 

claim has not been adjudicated by the Arizona state courts on the merits, the 

limitations of relief imposed by 28 U.S.C. § 2254(d) do not apply to this Court’s 

review of the claim and this Court may consider the merits of this claim de novo. If 

this instead constituted a decision on the merits, then the state court’s rejection of 

the claim was contrary to, or involved an unreasonable application of, clearly 

established federal law, as determined by the United States Supreme Court. See 28 

U.S.C. § 2254(d)(1). In addition, it constituted an unreasonable determination of 

the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(2). 

Rule 32 proceedings are intended to ensure that every defendant receives due 

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process of law. See U.S. Const. amends. V, XIV; see also Ariz. R. Crim. P. 32. Rule 

32 also specifies that when a defendant files a timely notice of post-conviction 

relief, the trial court shall appoint counsel upon defendant’s request. Ariz. R. Crim. 

P. 32.4(c)(2). However, pursuant to Rule 32.2(b), a claim raised in an “untimely 

post-conviction notice must include the specific exception to preclusion and explain 

the reasons for not raising the claim in a previous notice or petition, or for not raising 

the claim in a timely manner.” Ariz. R. Crim. P. 32.2(b); see also A.R.S. § 13-

4232(B). Furthermore, if “the specific exception and meritorious reasons do not 

appear substantiating the claim and indicating why the claim was not stated . . . in 

a timely manner, the notice shall be summarily dismissed.” Id. However, Rule 

32.1(f) provides that an untimely notice may be considered timely if the “failure to 

file a notice of post-conviction relief of-right or a notice of appeal within the 

required time was not the defendant’s fault.” Ariz. R. Crim. P. 32.1(f). With regard 

to Rule 32, preclusion rules “exist to prevent multiple post-conviction reviews, not 

to prevent review entirely.” State v. Rosales, 66 P.3d 1263, 1267 (Ariz. Ct. App. 

2003); see also State v. Petty, 238 P.3d 637 (Ariz. Ct. App. 2010). 

Here, the Arizona Court of Appeals issued its Memorandum Decision on 

Almanza’s direct appeal on August 29, 2014 and Mandate on October 9, 2014. (See 

DA, Mem. Decision, Aug. 29, 2014; DA, Mandate, Oct. 9, 2014.) Thus, pursuant 

to Rule 32, Almanza’s Notice of Post-Conviction Relief was due November 10, 

2014. Ariz. R. Crim. P. 32.4(a)(2)(D). However, Almanza did not file his Notice 

until March 19, 2015. (PCR, Notice of Post-Conviction Relief, Mar. 19, 2015 (Dkt. 

2).) 

Hamilton was appointed to represent Almanza in his direct appeal. Almanza 

is illiterate, a Spanish speaker, and has no formal education, which makes 

navigating the American legal system without assistance very difficult for him. 

Hamilton knew this. Nonetheless, as discussed in Claim 2 supra, Hamilton 

provided ineffective assistance to Almanza and after the decision was issued in 

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Almanza’s direct appeal, Hamilton did not advise Almanza or take the necessary 

steps to assist Almanza in filing his Notice of Post-Conviction Relief. Not knowing 

that the clock was running on his time to initiate his post-conviction relief 

proceedings, Almanza did not file his Notice until he received assistance from 

another inmate, which was unfortunately after the time to file his Notice had 

expired. As such, the untimely notice was without fault of Almanza who, once he 

realized he needed to file something to initiate his post-conviction proceedings, did 

so immediately. Instead, it was the result of ineffective assistance of counsel. 

During these ongoing proceedings, the trial court made no mention of 

Almanza’s Notice being untimely and did not preclude any further post-conviction 

litigation on that basis. Similarly, the State, in its Response to Almanza’s postconviction petition, made no mention of Almanza’s untimely notice or the need for 

summary dismissal. (PCR, State’s Resp. to Pet. for Post-Conviction Relief, June 

20, 2016.) Instead, the State addressed the merits of the arguments that Almanza 

had raised and the relevant procedural issues. 

In reviewing Almanza’s Petition for Post-Conviction Relief, the trial court 

did not specifically find the untimeliness of the Notice as the basis for its dismissal 

of the Petition, nor did the trial court assert that it lacked jurisdiction based on the 

untimely notice. Instead, in its Ruling on Motions/Issues, the trial court denied the 

Petition, finding that all claims raised were “precluded as having been previously 

ruled upon or untimely filed or the Petition lacks sufficient basis in law and fact to 

warrant further proceedings herein and no useful purpose would be served by 

further proceedings . . . ” (PCR, Ruling on Motions/Issues, Aug. 5, 2016 at 1 (Dkt. 

16).) Nonetheless, in considering Almanza’s Petition for Review, the Arizona Court 

of Appeals determined that it did not need to address any of the claims raised in the 

Petition for Review, instead asserting that by failing to abide by the jurisdictional 

time limit for filing the notice of post-conviction relief, Almanza forfeited the 

review of his claims. (Ariz. Ct. App. PFR, Mem. Decision, July 25, 2017 at 3.) The 

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Court of Appeals also claimed that Almanza had not identified any claims that may 

be raised untimely. (Ariz. Ct. App. PFR, Mem. Decision, July 25, 2017 at 3.) 

The Court of Appeals’ determination violated Almanza’s right to due process 

and to have his case reviewed by the appellate courts in Arizona. As the Arizona 

case law makes clear, the purpose of the time limit is not to prevent review entirely, 

which is exactly what happened here. Almanza received ineffective assistance of 

counsel at every step of his legal proceedings and therefore, continually has been 

denied any meaningful review of his case. One unfortunate result of the ineffective 

assistance of his direct appeal counsel was his failure to file a timely notice of postconviction relief. However, this was not Almanza’s fault, but the result of his 

attorney’s ineffectiveness. Furthermore, Almanza’s post-conviction claims were 

“sufficient to establish that no reasonable fact-finder would find the defendant 

guilty beyond a reasonable doubt . . . ” because he raised several claims throughout 

both his post conviction proceedings and in this habeas petition that undermine the 

reliability of his conviction and suggest the strong likelihood that he is actually 

innocent of these charges. See Ariz. R. Crim. P. 32.1(h). 

Furthermore, the Court of Appeals erred because Almanza did identify that 

his claims were untimely and the excuse as required by Rule 32.2(b) and Rule 

32.1(f). In his Notice, Almanza explained that he does not read English and “did 

not know the court of appeal [sic] had reached it’s verdic [sic].” (PCR, Notice of 

Post-Conviction Relief, Mar. 19, 2015 at 3 (Dkt. 2).) He explained that he was not 

informed of the deadlines or the verdict by his attorney and that he had to have 

someone else read the letter to him. (PCR, Notice of Post-Conviction Relief, Mar. 

19, 2015 at 3 (Dkt. 2).) He then requested the court permit him to “file this untimely 

notice of post conviction relief” because he asserts his innocence. (PCR, Notice of 

Post-Conviction Relief, Mar. 19, 2015 at 3 (Dkt. 2).) 

Therefore, because the trial court afforded Almanza the right to proceed with 

his post-conviction proceedings pursuant to Rules 32.2(b) and 32.1(f) and (h) and 

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considered his Petition for Post-Conviction Relief, the Arizona Court of Appeals 

should similarly have considered the merits of Almanza’s claims and not summarily 

dismiss them as time-barred. By failing to review the claims, the state court violated 

Almanza’s due process rights and he is entitled to relief. 

Claim Ten 

The admission at trial of scientifically unreliable victimology

evidence violated Almanza’s constitutional rights to due process 

and a fair trial. 

This claim was not raised in state court. Almanza can overcome any default 

of this claim by showing cause and prejudice, including because of ineffective 

assistance of appellate and state post-conviction counsel. See Martinez, 566 U.S. at 

9; Carpenter, 529 U.S. at 453; Strickland, 466 U.S. at 687-88; but see Davila, 137 

S. Ct. 2058. Almanza will demonstrate at an evidentiary hearing that appellate and 

post-conviction counsel fell below the standards of minimally competent attorneys 

and that those failures prejudiced him. Alternatively, he alleges that any procedural 

bar is not adequate or independent or that imposing default would be a miscarriage 

of justice. Because this claim has not been adjudicated by the Arizona state courts, 

the limitations on relief imposed by 28 U.S.C. § 2254(d) do not apply to this Court’s 

review, and the Court may consider the merits of the claim de novo. Dickens v. 

Ryan, 740 F.3d 1302, 1320 (9th Cir. 2014) (en banc). Almanza incorporates by 

specific reference all facts, allegations, and arguments made elsewhere in this 

Petition. 

At Almanza’s trial, the state presented “victimology” testimony through 

Carli Moncher (“Moncher”), a blind expert who was unfamiliar with the particular 

facts of Almanza’s case. (Tr. Oct. 1, 2013 at 14-87.) The testimony provided by 

Moncher was scientifically unreliable and highly prejudicial, andshould have been 

excluded. Because it was not excluded and the jury was allowed to rely on it when 

determining guilt, Almanza’s conviction fails under Jackson v. Virginia, 443 U.S. 

307, 324 n.16 (1979) (requiring sufficient proof to convict a defendant of every 

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element of the crime charged); see also In re Winship, 397 U.S. 358, 361 (1970). 

“Unlike an ordinary witness . . . an expert is permitted wide latitude to offer 

opinions, including those that are not based on firsthand knowledge or observation.” 

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993). Rule 702 

accordingly permits a witness to present expert testimony only under strictly limited 

conditions, specifying that such testimony must be “based on sufficient facts or 

data,” must be “the product of reliable principles and methods,” and must involve 

the “reliabl[e]” application of those principles and methods to the facts of the case. 

Ariz. R. Evid. 702. In Daubert, which is the standard for expert testimony that has 

also been adopted by Arizona trial courts12, the Supreme Court held that Federal 

Evidence Rule 702 (upon which Arizona Evidence Rule 702 is modeled) imposes 

a “gatekeeping role” upon trial courts reviewing requests to admit expert testimony. 

509 U.S. at 597; see also State ex rel. Montgomery v. Miller, 321 P.3d 454, 463 

(Ariz. Ct. App. 2014); State v. Salazar-Mercado, 325 P.3d 996, 1001 (Ariz. Ct. 

App. 2014); State v. Steinle (Moran), 372 P.3d 939, 941 (Ariz. 2016) (“Our 

interpretation is guided, but not determined, by federal court decisions when our 

evidence rules mirror the federal rules.” (citation omitted)). To discharge this duty, 

the trial court “must ensure that any and all scientific testimony or evidence 

admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589. The burden 

falls upon the party putting forth the expert testimony to prove, by a preponderance 

of the evidence, that the testimony meets the requirements to be admissible. 

Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995); see also 

Fed. R. Evid. 702 Advisory Committee Notes (2000 Amendments); Ariz. R. Evid. 

702 cmt. (2012 Amendment); Gaston v. Hunter, 588 P.2d 326 (Ariz. Ct. App. 

1978). Furthermore, the Supreme Court has held that Daubert’s basic gatekeeping 

obligation applies to all expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 

 

12 See, e.g., Lear v. Fields, 245 P.3d 911, 917 (Ariz. Ct. App. 2011). 

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137 (1999). Thus, the Daubert restrictions and analysis applied fully to Moncher’s 

expert testimony. 

A. The trial court erred procedurally and substantively in admitting 

Moncher’s “expert” testimony. 

The inquiry regarding Moncher’s expert testimony began on the first day of 

trial before jury selection began. In discussing the expected witnesses, Almanza’s 

counsel raised concerns about the science of Moncher’s testimony and expressed a 

belief that Moncher’s testimony would be “based on research that I believe is 

questionable at best.” (Tr. Sept. 30, 2013 a.m. at 45.) As a result of his concerns, he 

requested to voir dire Moncher prior to her trial testimony, “to allow the Court to 

make a determination whether . . . first of all, whether she is an expert; second of 

all, whether the information that she is going to provide to the Court is good science, 

. . . and third of all, whether it’s relevant to the matter at hand.” (Tr. Sept. 30, 2013 

a.m. at 46.) Although Green did not specifically invoke the Daubert standard, it is 

clear based on his request that he intended for the trial court to conduct a Daubert

hearing and the requisite analysis that accompanies it. 

The trial court allowed the voir dire, however, while Green was attempting 

to voir dire Moncher regarding her training, the studies upon which her testimony 

is based, and her previous testimony in other cases, the trial court continually 

interrupted and restricted his examination—either of its own accord or based on 

sustained objections from the State. (Tr. Oct. 1, 2013 at 18-21.) As a result, trial 

counsel was unable to develop anything more than a very cursory and superficial 

background of Moncher’s alleged expertise. (Tr. Oct. 1, 2013 at 18-21.) 

Indeed, the trial court failed to undertake any inquiry into the reliability or 

relevance of Moncher’s opinions. Instead, the trial court admitted Moncher’s 

testimony on the basis of two questions by the State, neither of which addressed the 

reliability of the science upon which she based her opinions: 

Q: Ms. Moncher, have you testified in the Pinal County 

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Superior Court before? 

A: Yes, I have. 

Q: Have you testified and been found to be qualified as 

an expert to testify about what you anticipate testifying to 

today? 

A: Yes, I have. 

(Tr. Oct. 1, 2013 at 20.) Then, after preventing any in depth inquiry into Moncher’s 

qualifications, based on her answers to these two questions, the trial court ruled the 

testimony admissible. 

This examination was not “the careful examination that Daubert and Kumho 

Tire require.” United States v. Williams, 506 F.3d 151, 162 (2d. Cir. 2007). 

Almanza’s trial counsel’s main challenge to the admissibility of Moncher’s 

opinions was to the reliability of the methods and studies upon which she arrived at 

these opinions. But, not once during the cursory discussion that comprised the trial 

court’s Daubert review did the court even address or acknowledge the question of 

reliability. Instead, the trial court simply took this important and complex question 

as a given, assuming that because Moncher had testified before, her methods were 

reliable and skipping over this inquiry. 

The trial court also conducted absolutely no inquiry into the relevance of 

Moncher’s testimony to the facts of Almanza’s case. Moncher’s testimony is 

usually sought in cases where there is delayed disclosure of sexual abuse by child 

victims. In those cases, the State believes that Moncher’s testimony is necessary to 

help the jury understand why a child would not disclose sexual abuse immediately. 

However, that is not what happened here. In this case, A.W. told her mother and 

brother about the alleged incident and the mother called the police that same day. 

As a result, this testimony is not relevant to the facts in this case. 

A trial court has wide discretion regarding its chosen method of inquiring 

into the reliability of a proffered expert’s opinions. Kumho Tire, 526 U.S. at 152. 

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But, “the trial court’s broad latitude to make the reliability determination does not 

include the discretion to abdicate completely its responsibility to do so.” Mukhtar 

v. Cal. State Univ., 299 F.3d 1053, 1064 (9th Cir. 2002), amended, 319 F.3d 1073 

(9th Cir. 2003), overruled in part on other grounds by Estate of Barabin v. 

AstenJohnson, Inc., 740 F.3d 457, 467 (2014); accord Estate of Barabin, 740 F.3d 

at 464 (“The district court abused its discretion by admitting the expert testimony 

without first finding it to be relevant and reliable under Daubert.” (emphasis 

added)). The trial court here abdicated its duty by failing to conduct a meaningful 

inquiry into the reliability of Moncher’s proffered expert opinions. 

B. Moncher’s proffered opinions do not satisfy the Daubert standard. 

1. The proffered foundation for Moncher’s “expert” opinions 

did not provide a sufficient basis for the admission of her 

testimony under Daubert. 

The trial court’s decision to admit Moncher’s “expert” opinions was flawed 

substantively, as well as procedurally, because those opinions could not have 

satisfied an attentive Daubert gatekeeper. The State offered Moncher as an expert 

qualified to testify about the experiences and behaviors of “victims of [child sexual] 

abuse,” (Tr. Oct. 1, 2013 at 33; see also Tr. Oct. 1, 2013 at 63-64), and the “study 

of child victims of crimes” (Tr. Oct. 1, 2013 at 15). However, the State failed to 

meet its burden of showing by a preponderance of the evidence that she could 

reliably opine on that subject. See Fed. R. Evid. 702 Advisory Committee Notes 

(2000 Amendments); Ariz. R. Evid. 702 cmt. (2012 Amendment); Gaston v. 

Hunter, 588 P.2d 326 (Ariz. Ct. App. 1978). In fact, during the pre-trial voir dire of 

Moncher to determine her qualifications as an expert, the State asked only two 

questions, which did not sufficiently lay the foundation to satisfy the Daubert

gatekeeping standards. The trial court did not conduct a formal hearing or ask any 

questions to determine the reliability of the scientific evidence that Moncher 

intended to present. Furthermore, the trial court and the State actively prevented 

Almanza’s counsel in his attempts to elicit this type of information. (Tr. Oct. 1, 

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2013 at 18-21.) The fact that Moncher had previously testified is not sufficient to 

satisfy this standard since scientific evidence presented at trial—for example bite 

mark evidence,13 hair sample analysis,14 and forensic firearm or toolmark 

identification15—is often debunked as scientific knowledge develops. These 

examples show that, just because a certain type of science or expert testimony has 

been permitted or deemed sufficiently reliable once, does not mean that it can be 

taken for granted that it is always sufficiently reliable. A Daubert analysis is always 

required to ensure the continuing reliability and accuracy of the science and studies 

behind any expert’s testimony. 

The purported foundation for Moncher’s opinions elicited during her actual 

trial testimony consisted of her education, training, experience, and the literature 

that she has reviewed. (Tr. Oct. 1, 2013 at 14-19, 27-29, 64-66.) But none of these 

foundations satisfy the standards under Daubert, Kumho Tire, or the applicable 

rules of evidence either. 

 

13 See Jordan Smith, White House Report Concludes That Bite-Mark Analysis is 

JunkScience, The Intercept (Sept. 7, 2016), https://theintercept.com/2016/09/07/w

hite-house-report-concludes-that-bite-mark-analysis-is-junk-science; see also

Radley Balko, How the flawed ‘science’ of bite mark analysis has sent innocent 

people to prison, The Washington Post (Feb. 13, 2015), https://www.washingtonp

ost.com/news/the-watch/wp/2015/02/13/how-the-flawed-science-of-bite-markanalysis-has-sent-innocent-people-to-jail/ 

14 See Spencer S. Hsu, FBI admits flaws in hair analysis over decades, The 

Washington Post (Apr. 18, 2015), https://www.washingtonpost.com/local/crime/f

bi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-fordecades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html 

15 See David P. Baldwin, Stanley J. Bajic, Max Morris, and Daniel Zamzow, A Study 

of False-Positive and False-Negative Error Rates in Cartridge Case Comparisons, (Apr. 7, 2014), https://afte.org/uploads/documents/swggun-false-postive-falsenegative-usdoe.pdf; see also Clifford Spiegelman and William Tobin, 12 Law, 

Probability & Risk 115-133 (2013), https://doi:10.1093/lpr/mgs028; and “Absence 

of Statistical and Scientific Ethos: The Common Denominator in Deficient 

Forensic Practices,” Journal of Statistics and Public Policy, https://tandfonline.co

m/doi/full/10.1080/2330443X.2016.1270175. 

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i. Education 

Moncher testified that her education consists of a Bachelor’s of Science 

degree in Criminal Justice and a Master’s degree in Psychology. (Tr. Oct. 1, 2013 

at 14-15.) The State did not explain how this education could provide a basis for 

Moncher to reach reliable conclusions about the experiences and behaviors of child 

sexual abuse victims, and it is not self-evident that it could. Moncher’s education 

thus provided no sound basis for a Daubert reliability finding. 

ii. Training 

The majority of the trainings attended by Moncher, according to her CV, 

were provided by prosecution and law-enforcement entities, and the focus was on 

investigation and prosecution of sex offenses. This Court has observed that “a 

scientist’s normal workplace is the lab or the field, not the courtroom or the lawyer’s 

office.” Daubert, 43 F.3d at 1317. It follows that a very significant fact to be 

considered in Daubert analysis is whether the expert “propos[es] to testify about 

matters growing naturally and directly out of research they have conducted 

independent of the litigation, or whether they have developed their opinions 

expressly for the purposes of testifying.” Id. This insight applies with particular 

force here, because the bulk of Moncher’s training was provided by the same 

interested parties that routinely call her to the stand to testify. Training in the art of 

testifying for the prosecution does not constitute a reliable basis for expressing 

expert opinions. See Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 800 (4th 

Cir. 1989) (“it would be absurd to conclude that one can become an expert simply 

by accumulating experience in testifying”). But, when Almanza’s trial counsel 

attempted to ascertain how often Moncher testified for the defense versus for the 

State, the State objected and the trial court sustained the objection. (Tr. Oct. 1, 2013 

at 19.) Neither during her testimony at trial, and certainly not during her pre-trial 

voir dire, did the State nor Moncher explain how the training she had received 

provided a reliable basis for her proffered expert opinions. 

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iii. Literature 

Moncher and the State also made references to her knowledge of “the 

literature” and vaguely-described “studies.” (Tr. Oct. 1, 2013 at 16-18, 28-29, 34, 

49, 66.) However, neither the State nor Moncher ever drew a connection between a 

particular opinion that she expressed and a specifically-identified study or piece of 

literature. In fact, there was no testimony at all naming any particular studies or 

literature on this topic. This fact belies any suggestion that “the literature” 

vindicated the trial court’s admission of Moncher’s expert testimony. The Supreme 

Court and the Ninth Circuit Court have found expert opinions inadmissible where 

close analysis of the literature purportedly supporting them failed to render them 

reliable. See, e.g., Gen. Elect. Co. v. Joiner, 522 U.S. 136, 144-45 (1997) (“The 

studies [upon which the experts purported to rely] were so dissimilar to the facts 

presented in this litigation that is was not an abuse of discretion for the District 

Court to have rejected the experts’ reliance on them.”); Domingo ex rel. Domingo 

v. T.K., 289 F.3d 600, 606 (9th Cir. 2002) (“the studies that were cited do not 

provide support for every necessary link in [the expert’s] theory of causation.”); 

United States v. Rincon, 28 F.3d 921, 924-25 (9th Cir. 1994) (party that proffered 

only insufficiently detailed article and general references to additional literature 

failed to establish admissibility of expert testimony). With no details about the 

“literature” and “studies” upon which Moncher purported to rely, the trial court had 

no basis upon which to conduct any analysis. 

In this respect, Moncher’s testimony violated Rule 702 as well as Rule 703, 

which “provides that expert opinions based on otherwise inadmissible hearsay are 

to be admitted only if the facts or data are ‘of a type reasonably relied upon by 

experts in the particular field in forming opinions or inferences upon the subject.’” 

Daubert, 509 U.S. at 595 (quoting Fed. R. Evid. 703); see also id. (“a judge 

assessing a proffer of expert scientific testimony under Rule 702 should also be 

mindful of other applicable rules”); see also Ariz. R. Evid. 703. As such, the 

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“literature” and “studies” vaguely referenced, did not provide a valid or sufficient 

basis for the trial court to admit Moncher’s testimony and did not satisfy the 

Daubert standards. 

iv. Experience 

The final proffered foundation for Moncher’s expert testimony was her 

experience, which consisted of “[j]ust over 1,700” forensic interviews of children 

who claimed to have been sexually abused. (Tr. Oct. 1, 2013 at 65.) But Moncher’s 

experience interviewing children who claimed to have been abused provides no 

basis for her to reliably opine on the experiences and behavior of child sexual abuse 

victims because she does not know whether these children actually were sexually 

abused. The state did not show and Moncher did not testify that she had made any 

effort to determine whether the people she interviewed actually were “sexual abuse 

victims.” Moncher’s job as a forensic interviewer does not require her to determine 

whether or not something is truthful and does not require her to conduct any followup investigation to determine whether any of the children that she has interviewed 

were actually abused. Moncher has previously acknowledged that she does not 

make any effort to substantiate her interviewees’ claims of abuse. Jury Trial Tr., 

United States v. Young, No. 3:13-cr-08084-SMM (D. Ariz. Jan. 10, 2014), ECF No. 

224 at 757:5-10; Appellant’s Opening Br., United States v. Young, No. 14-10160 

(9th Cir. Dec. 4, 2014), ECF No. 10 at 18 & nn. 87, 88. 

This fact invalidates any suggestion that Moncher’s interviewing experience 

established the reliability of her expert opinions. The State did not proffer Moncher 

as an expert on accusers; it proffered her as an expert on victims. That was the 

capacity in which she testified and that was the premise underlying her testimony’s 

purported relevance to the issues in Almanza’s trial. But this theory of relevance 

was premised on the mere supposition that the individuals Moncher interviewed 

had actually been abused and mere supposition is not a proper basis for the 

admission of expert testimony. Daubert, 509 U.S. at 590. This missing link is 

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especially troubling in light of the fact that false reporting of child sexual abuse is 

a commonplace, and in some instances epidemic, phenomenon.16 In fact, this Court 

has previously acknowledged that 

Moncher’s testimony in particular may be insufficiently 

reliable to warrant admission. There is no indication from 

the Government’s briefing that her knowledge of the 

“process of disclosure” is based on the behavior of known 

child sexual abuse victims, rather than merely on the 

behaviors of children who have alleged sexual abuse. Nor 

is there a valid basis for distinguishing those behaviors 

from those of children who have not been sexually abused. 

United States v. Woody, No. CR-13-08093-PCT-NVW, 2018 WL 1851125, at *3 

(D. Ariz. Apr. 22, 2015) (finding the government’s argument that Moncher’s 

testimony is exempt from Daubert standard is “without merit” in light of Kumho 

Tire). 

2. Moncher’s testimony invaded the province of the jury. 

It is established that “expert testimony should not invade[] the province of 

the jury,” and that “expert testimony to bolster or impugn the credibility of a witness 

is properly excluded.” United States v. Rahm, 993 F.2d 1405, 1413 (9th Cir. 1993) 

(internal quotation marks omitted). As the district court observed in United States 

v. Woody, the government’s “principal purpose” in presenting Moncher’s expert 

testimony is “plainly” to shore up the credibility of the alleged victims. The court 

specifically noted that, “[f]earing the victims will appear confused, inconsistent, or 

dishonest on the witness stand, the Government hopes to combat that perception 

through ‘expert’ testimony purporting to show that signs of disorientation are in 

fact compatible with telling the truth.” Woody, 2015 WL 1851125, at *2. The court 

 

16 See, e.g., David N. King, Ph.D. & Maureen Drost, B.A., Recantations and False 

Allegations of Child Abuse: A Bibliography (National Children’s Advocacy Center 

2005), https://icmec.org.wp-content/uploads/2015/10/Recantation-and-FalseAllegations-Bibliography.pdf; see also Chris French, False memories of 

sexual abuse lead to terrible miscarriages of justice, The Guardian, Nov. 25, 2010, 

http://www.theguardian.com/science/2010/nov/24/false-memories-abuse-convictinnocent (last visited July 17, 2018). 

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continued to comment that “Federal Rules of Evidence 403 and 702 do not permit 

vouching of this kind.” Id. This insight applies equally to Almanza’s case. 

Moreover, even if such vouching were permissible, the jurors do not need 

Moncher’s expertise with respect to many of the matters about which she testified. 

Factors such as discomfort, exhaustion, guilt, or shame which may affect a young 

person’s disclosure of sexual abuse are “easily understood by lay people and do not 

require expert analysis.” Commonwealth v. Dunkle, 602 A.2d 830, 836 (Pa. 1992). 

Indeed, this is not a delayed disclosure case where an explanation of unusual or 

unexpected behavior by the victim needs to be explained to a jury. Instead, the jury, 

who should serve as the sole “lie detector in the courtroom,” was perfectly capable 

of assessing the credibility, or lack thereof, of A.W.’s testimony. United States v. 

Barnard, 490 F.2d 907, 912 (9th Cir. 1973); cf. United States v. Brewer, 783 F.2d 

841, 843 (9th Cir. 1986) (expert testimony regarding deficiencies in eyewitness 

identifications are unnecessary where “jury could determine from observing the 

witnesses and from hearing their testimony on direct and cross-examination 

whether or not the witnesses were accurate in their perceptions” of the perpetrator). 

However, the jury’s “lie detector” function was usurped by Moncher’s testimony, 

which thus, invaded the province of the jury. 

3. Moncher’s testimony violated Rule 403. 

The admission of Moncher’s “expert” testimony violated Arizona Rule of 

Evidence 403, which also follows Federal Rule of Evidence 403 and “permits the 

exclusion of relevant evidence ‘if its probative value is substantially outweighed by 

the danger of unfair prejudice, confusion of the issues, or misleading the jury....’” 

Daubert, 509 U.S. at 595 (quoting Fed. R. Evid. 403); see also Ariz. R. Evid. 403. 

“Expert evidence can be both powerful and quite misleading because of the 

difficulty in evaluating it,” and trial courts should accordingly “exercise[] more 

control over experts than over lay witnesses” when applying Rule 403. Id. (internal 

quotation marks omitted). Moncher’s “expert” testimony fundamentally lacked the 

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type of probative value that Daubert and Rule 702 require. But even if her testimony 

carried a measure of legitimate probative value, its potential to unfairly prejudice 

Almanza was severe, and substantially outweighed whatever probative value it may 

have had. 

C. Moncher has a reputation for dishonesty and fraud. 

In 2017, the Arizona Department of Public Safety (“DPS”) conducted an 

investigation of Moncher and her billing practices. The investigation focused on the 

period of time from March 23, 2014 through February 1, 2017, which includes the 

time period of Almanza’s trial. The conclusion of the investigation was that during 

this time period, Moncher received compensation from various counties on thirtytwo different dates for her expert witness assistance, while simultaneously claiming 

compensation from her employer, Safe Child Center. The DPS investigation 

revealed a total of 199 hours of compensation for private work with various county 

attorney offices while claiming a total of 288.51 hours of compensation from Safe 

Child Center for the same time period. As such, DPS recommended that Moncher 

be charged with several felonies related to her falsified billing practices for expert 

testimony for the State, including: Fraudulent Schemes and Artifices, Forgery, and 

Theft. Moncher’s continued and criminal dishonesty with regard to her work as an 

expert witness undermines the credibility of her testimony. 

The admission of unreliable and unsupported evidence, as well as the trial 

court’s failure to serve its gatekeeping function, renders Almanza’s conviction 

unconstitutional and he is entitled to relief. 

Claim Eleven 

The reasonable-doubt instruction given to the jury impermissibly 

lowered the State’s standard of proof and shifted the burden to

Almanza, in violation of the Fifth, Sixth, Eighth, and Fourteenth 

Amendments to the United States Constitution. 

This claim was not raised in state court. Almanza he can overcome any 

default of this claim by showing cause and prejudice, including because of 

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ineffective assistance of appellate and state post-conviction counsel. See Martinez, 

566 U.S. at 9; Carpenter, 529 U.S. at 453; Strickland, 466 U.S. at 687-88; but see 

Davila, 137 S. Ct. 2058. Almanza will demonstrate at an evidentiary hearing that 

appellate and post-conviction counsel fell below the standards of minimally 

competent attorneys and that those failures prejudiced him. Alternatively, he alleges 

that any procedural bar is not adequate or independent or that imposing default 

would be a miscarriage of justice. Because this claim has not been adjudicated by 

the Arizona state courts, the limitations on relief imposed by 28 U.S.C. § 2254(d) 

do not apply to this Court’s review, and the Court may consider the merits of the 

claim de novo. Dickens v. Ryan, 740 F.3d 1302, 1320 (9th Cir. 2014) (en banc). 

Almanza incorporates by specific reference all facts, allegations, and arguments 

made elsewhere in this Petition. 

In the final jury instructions for Almanza’s trial, the court defined the 

reasonable-doubt standard using the Arizona Supreme Court’s articulation in State 

v. Portillo, 898 P.2d 970, 974 (Ariz. 1995). The court instructed: 

The State has the burden of proving the defendant guilty 

beyond a reasonable doubt. This means the State must 

prove each element of each charge beyond a reasonable 

doubt. In civil cases, it is only necessary to prove that a fact 

is more likely true than not or that its truth is highly 

probable. In criminal cases such as this, the State’s proof 

must be more powerful than that. It must be beyond a 

reasonable doubt. 

Proof beyond a reasonable doubt is proof that leaves you 

firmly convinced of the defendant’s guilt. There are very 

few things in this world that we know with absolute 

certainty, and in criminal cases the law does not require 

proof that overcomes every doubt. If, based on your 

consideration of the evidence, you are firmly convinced 

that the defendant is guilty of the offense charged, you must 

find him guilty of that charge. If, on the other hand, you 

think there is a real possibility that he is not guilty of the 

offense charged, you must give him the benefit of the doubt 

and find him not guilty of that charge. 

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(ROA 113 at 2.) The phrase “firmly convinced” reduced the State’s standard of 

proof to something less than reasonable doubt. It is akin to “clear and convincing.” 

See, e.g., State v. Perez, 976 P.2d 427, 442 (Haw. Ct. App. 1998), aff’d in part, 

rev’d in part on other grounds, 976 P.2d 379 (Haw. 1999). The instructions further 

shifted the burden of proof, requiring Almanza to prove that there is a “real 

possibility that he is not guilty.” See, e.g., United States v. Walton, 207 F.3d 694, 

705 (4th Cir. 2000) (King, J., dissenting) (per curiam) (discussing criticism of such 

instructions and citing United States v. Porter, 821 F.2d 968, 973 (4th Cir. 1987), 

and Lawrence M. Solan, Refocusing the Burden of Proof in Criminal Cases: Some 

Doubt About Reasonable Doubt, 78 Tex. L. Rev. 105 (1999)). 

The reasonable-doubt standard “is indispensable to command the respect and 

confidence of the community in applications of the criminal law.” In re Winship, 

397 U.S. 358, 364 (1970). “It is critical that the moral force of the criminal law not 

be diluted by a standard of proof that leaves people in doubt whether innocent men 

are being condemned.” Id. A lesser standard of proof, such as “firmly convinced,” 

violates a defendant’s rights to due process. See id. As the Supreme Court has 

explained, “‘[a]ttempts to explain the term ‘reasonable doubt’ do not usually result 

in making it any clearer to the minds of the jury.’” Holland v. United States, 348 

U.S. 121, 140 (1954) (quoting Miles v. United States, 103 U.S. 304, 312 (1880)). 

Here, the instructions were more than confusing. They lowered the State’s standard 

of proof and shifted the burden of proof to Almanza. As such, the instructions 

violated Almanza’s rights to a jury trial and due process and he is entitled to relief. 

Claim Twelve 

Almanza is actually and legally innocent of the offense of Sexual 

Conduct with a Minor. 

This claim was not raised in state court. Almanza can overcome any default 

of this claim by showing cause and prejudice, including because of ineffective 

assistance of appellate and state post-conviction counsel. See Martinez, 566 U.S. at 

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9; Carpenter, 529 U.S. at 453; Strickland, 466 U.S. at 687-88; but see Davila, 137 

S. Ct. 2058. Almanza will demonstrate at an evidentiary hearing that appellate and 

post-conviction counsel fell below the standards of minimally competent attorneys 

and that those failures prejudiced him. Alternatively, he alleges that any procedural 

bar is not adequate or independent or that imposing default would be a miscarriage 

of justice. Because this claim has not been adjudicated by the Arizona state courts, 

the limitations on relief imposed by 28 U.S.C. § 2254(d) do not apply to this Court’s 

review, and the Court may consider the merits of the claim de novo. Dickens, 740 

F.3d at 1320. Almanza incorporates by specific reference all facts, allegations, and 

arguments made elsewhere in this Petition. 

Almanza is actually innocent of the offense of Sexual Conduct with a Minor 

under Schlup v. Delo, 513 U.S. 298, 319-22 (1995) House v. Bell, 547 U.S. 518 

(2006), and Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997). The Schlup standard 

requires that a petitioner demonstrate that “more likely than not, in light of the new 

evidence, no reasonable juror would find him guilty beyond a reasonable doubt—

or, . . . that more likely than not any reasonable juror would have reasonable doubt.” 

House, 547 U.S. at 538. Schlup also permits the federal court to consider how 

reasonable jurors “would react to the overall, newly supplemented record,” 

including “consideration of ‘the credibility of the witnesses presented at trial.’” Id. 

at 538-39 (quoting Schlup, 513 U.S. at 330); see also Del Prete v. Thompson, No. 

10 C 5070, 2014 WL 296094, at *44 (N.D. Ill. Jan. 27, 2014) (in the application of 

Schlup the Court need not accept the credibility of the prosecution’s witnesses at 

the underlying trial). Furthermore, in determining if a colorable showing has been 

sufficiently made, the Court must accept the allegations of the petition as true. See 

Wolfe v. Johnson, 565 F.3d 140, 169-70 (4th Cir. 2009) (when assessing a request 

for evidentiary hearing to prove gateway innocence claim under Schlup, the court 

must assume pleaded fact allegations to be true). 

As is discussed throughout this Petition, there was a significant amount of 

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relevant evidence regarding Almanza’s innocence that was not presented at trial.17

Almanza has adamantly maintained his innocence since before his arrest. (Ariz. Ct. 

App. PFR, Pet. for Review, Feb. 21, 2017, Ex. D at 2.) There is no physical or DNA 

evidence that ties Almanza to this offense. In fact, even the medical evidence that 

allegedly shows that this offense was committed is not definitive and conclusive on 

that issue and leaves open room for other causes of injury or, in the very least, the 

distinct possibility that there was no penetration of the vulva, which is a required 

element of this offense. (See Claim 6 supra.) 

Furthermore, there is ample evidence undermining the credibility of the 

State’s main witnesses. Quinn has a reputation for dishonesty, drug use, and 

manipulation. (Ariz. Ct. App. PFR, Pet. for Review, Feb. 21, 2017, Ex. D at 2.) It 

is widely believed that she manipulates the legal system for her advantage. (See

Claim 1(A).) It is also believed that her children would do anything to get her 

attention. This information suggests that A.W. either fabricated this story to get her 

mother’s attention or that her mother coached A.W. that this offense had happened 

in order to turn Almanza’s arrest and conviction to her advantage. Quinn did not 

like Almanza and he was aware that she was engaged in an affair with an underage 

boy. She was concerned that he would report that and some of her other activities 

related to poor job performance to their boss and she would lose her job. Having 

Almanza arrested and imprisoned not only prevented him from using her actions 

against her, but also enabled her to collect a financial settlement from the Double 

Check Ranch. 

A.W.’s continually changing account of the sequence of events of the day of 

the offense also calls her credibility into question. A.W.’s assertion that Almanza 

hit her on the back with a shovel, despite the fact that she had no marks or injuries 

 

17Almanza anticipates including and disclosing additional evidence that is not 

currently in the court record as part of his Motion for Evidentiary Development, 

which he requests this Court’s permission to file following the briefing of his 

claims. 

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on her back, also undermines the credibility of her story. This incident is also 

completely illogical. Why would Almanza hit A.W. on the back with a shovel? If 

Almanza actually had committed this offense, it is much more likely that Almanza 

would be nice to A.W. in an effort to prevent her from disclosing the incident than 

that he would hit her, potentially causing injury and physical evidence of the 

encounter that might draw questions from her mother. 

Boggs’s credibility regarding his account that Almanza confessed to him is 

similarly unreliable. As a result of Almanza’s illiteracy, inability to speak English, 

and general lack of education, he was and continues to be very confused about these 

legal proceedings. He did not understand what he was charged with or why he was 

arrested. He also could not read any of the discovery or legal paperwork that was 

provided to him. However, Boggs had access to Almanza’s paperwork and the 

ability to read it. Boggs also was facing prison time on his own case and had every 

incentive to take advantage of Almanza’s confusion and to invent a confession in 

order to obtain a reduced sentence for himself. Although his sentence does not 

appear to have actually changed, it is clear from the transcript of his conversation 

with the police that he was hoping to receive some kind of benefit from providing 

them with the information. (See Trial Ex. 114 at 21-22 (“I’m trying to get back out 

there as quick as I can for my family and kids. That’s why, you know, if I could get 

my sentence mitigated, where they bring it down to a year, nine months, like I said, 

it would put me out a lot quicker.”).) Additionally, once Boggs had spoken with the 

police and his plea had been updated, if he had not testified against Almanza and 

continued to tell the same story, he would have lost that original plea and been 

subject to a worse plea offer or no plea offer in the future. (Trial Ex. 127; Trial Ex. 

128.) 

Finally, as explained more fully in Claim 6 supra, the State did not and cannot 

prove the elements of this offense in this case. Both the medical expert testimony 

and the testimony of A.W. are unclear about whether the actual location of the 

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injury is within the vulva and whether the vulva was actually penetrated. (See Trial 

Ex. 113 at 9; Tr. Oct. 2, 2013 at 224, 232; Tr. Oct. 2, 2013 at 230; Trial Ex. 102 at 

2; Trial Ex. 110 at 7.) This penetration is an essential element of the offense of 

Sexual Conduct with a Minor. 

In order to prove every element of Sexual Conduct with a Minor, the State 

was obliged to prove that Almanza intentionally or knowingly penetrated A.W.’s 

vulva. However, the State did not prove that this was Almanza’s intention. The 

testimony presented by the State suggested that A.W. sustained a very small scrape 

near her vulva, which could or could not have been caused by a fingernail scratch, 

and that, based on the accounts of the Detectives and Boggs, Almanza’s finger may 

have scratched A.W. or even possibly entered her vulva. However, none of the 

testimony demonstrates that this act was done intentionally or knowingly. At most, 

based on Almanza’s own statements to the Detectives after a coercive and 

intimidating interrogation, if Almanza’s finger did enter A.W.’s vulva, it was done 

accidentally. (Trial Ex. 116 at 71 (“I not put a finger in – I not put a 

fingers . . . maybe an accident, I don’t know, but I no do that. I no do that . . .”); see 

also Trial Ex. 116 at 89-91 (continually denying committing this act despite 

Detective Randall Snyder’s repeated insistence that he did it).) 

Almanza is actually innocent of Sexual Conduct with a Minor. See generally

Schlup, 513 U.S. at 319-22; House, 547 U.S. at 536-37; Carriger, 132 F.3d at 476-

77. Based on the substantial amount of evidence that was and was not presented at 

trial, it is more likely than not that, if presented with all of this evidence, any 

reasonable juror would have reasonable doubt about what really happened in this 

case. Accordingly, Almanza is entitled to relief. 

Claim Thirteen 

Almanza’s conviction and sentence must be vacated due to the 

cumulative prejudicial effect of the errors in this case. 

The combination of errors in this case deprived Almanza of his fundamental 

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constitutional rights including his right to a fair trial, trial by jury, due process, 

effective assistance of counsel, presentation of a defense, reliable determination of 

guilt and penalty, and fundamental fairness. See Taylor v. Kentucky, 436 U.S. 478, 

487 n.15 (1978). As a result of the cumulative effect of the errors in the trial against 

Almanza, his conviction and sentence are unlawfully and unconstitutionally 

imposed, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to 

the United States Constitution. When evaluating cumulative error, “all errors are 

relevant to the sentence.” Darks v. Mullin, 327 F.3d 1001, 1018 (10th Cir. 2003) 

(emphasis added). Almanza incorporates by specific reference all facts, allegations, 

and arguments made elsewhere in this Petition. In addition, he re-urges all 

objections, arguments, and claims of error made at trial and during direct appeal 

and post-conviction proceedings, and incorporates by reference herein those prior 

objections, arguments, and claims of error. 

The Ninth Circuit Court of Appeals recognizes that, even in cases where no 

single trial error examined in isolation is sufficiently prejudicial to warrant reversal, 

the cumulative effect of multiple errors may still prejudice a defendant. See Parle 

v. Runnels, 505 F.3d 922, 934 (9th Cir. 2007) (finding habeas relief warranted when 

combined effect of multiple trial errors resulted in injurious effect on jury’s verdict); 

Alcala v. Woodford, 334 F.3d 862, 894-95 (9th Cir. 2003) (affirming grant of habeas 

relief where multiple errors by court and counsel deprived defendant of a 

fundamentally fair trial); Killian v. Poole, 282 F.3d 1204, 1211 (9th Cir. 2002) 

(stating that the cumulative effect of errors may be so prejudicial as to require 

reversal); Harris ex rel. Ramseyer v. Wood, 64 F.3d 1432, 1438-39 (9th Cir. 1995) 

(holding that the cumulative impact of numerous deficiencies in defense counsel’s 

performance was prejudicial to the defense, rendering the proceedings improper and 

warranting habeas relief); Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992) (per 

curiam) (finding that counsel’s deficiencies taken in combination with two other 

errors constituted a denial of petitioner’s due process rights). 

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As the preceding claims illustrate, multiple grievous errors were committed 

during Almanza’s trial proceedings. Even if the above errors are deemed harmless 

when viewed individually, their cumulative effect substantially prejudiced 

Almanza, and when viewed cumulatively in the totality of the circumstances, 

Almanza did not receive a fair trial or sentencing. “[T]he cumulative effect of two 

or more individually harmless errors has the potential to prejudice a defendant to 

the same extent as a single reversible error.” Darks, 327 F.3d at 1018 (internal 

quotation marks and citations omitted). 

Here, the cumulative effect of the errors in this case resulted in an abridgment 

of the fundamental fairness of the trial process during all phases. Each of these 

errors deprived Almanza of important constitutional rights including, but not 

limited to, his right to due process, equal protection, effective counsel, to present a 

defense and confront the witnesses against him, an impartial jury, and to be free of 

cruel and unusual punishment. 

The aggregate harm of these constitutional violations warrants the granting 

of this Petition without any determination of whether these violations substantially 

affected or influenced the jury’s verdict. Brecht, 507 U.S. at 638 n.9. Furthermore, 

these constitutional violations so infected the integrity of the proceedings that the 

errors cannot be deemed harmless. In any event, these violations of Almanza’s 

rights had a substantial and injurious effect or influence on both the guilt and 

penalty judgments, rendering them fundamentally unfair. Considering all the errors 

above, this Court must conclude that Almanza was denied a fair trial and that he is 

entitled to relief. 

PRAYER FOR RELIEF 

WHEREFORE, Almanza respectfully prays this Court to: 

1. Order that Almanza be granted leave to conduct discovery pursuant to Rule 

6 of the Rules Governing § 2254 Cases and permit Almanza to utilize the processes 

of discovery set forth in Federal Rules of Civil Procedure 26-37, to the extent 

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necessary to fully develop and identify the facts supporting his Petition, and any 

defenses thereto raised by Respondents’ Answer; 

2. Order that upon completion of discovery, Almanza be granted leave to amend 

his Petition to include any additional claims or allegations not presently known to 

him or his counsel, which are identified or uncovered in the course of discovery and 

that Almanza be granted leave to expand the record pursuant to Rule 7 of the Rules 

Governing § 2254 Cases to include additional materials related to the Petition; 

3. Grant an evidentiary hearing pursuant to Rule 8 of the Rules Governing § 

2254 Cases at which proof may be offered concerning the allegations of this 

Petition; 

4. Issue a writ of habeas corpus to have Almanza brought before this Court to 

the end that he may be discharged from his unconstitutional confinement and 

restraint; 

5. In the alternative to the relief requested in Paragraph 4, if this Court should 

deny the relief as requested in Paragraph 4, issue a writ of habeas corpus to have 

Almanza brought before it to the end that he may be relieved of his unconstitutional 

sentence; 

6. Grant such other relief as may be appropriate and dispose of the matter as 

law and justice require. 

Respectfully submitted this 26th day of July, 2018. 

 

Jon M. Sands 

Federal Public Defender 

District of Arizona 

 Dale A. Baich 

 Alexandra Hicks LeClair 

 Assistant Federal Public Defenders 

 s/ Alexandra H. LeClair 

 Counsel for Petitioner 

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Certificate of Service 

I hereby certify that on July 26, 2018, I electronically filed the foregoing 

Petition for Writ of Habeas Corpus with the Clerk’s Office by using the CM/ECF 

system. I certify that all participants in the case are registered CM/ECF users and 

that service will be accomplished by the CM/ECF system. 

s/ Jacci Lastra 

Assistant Paralegal 

Capital Habeas Unit 

Case 2:15-cv-02064-DLR Document 41 Filed 07/26/18 Page 125 of 125