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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Eduardo Martinez,

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents. 

No. CV-15-0521-TUC-BGM 

ORDER 

 Currently pending before the Court is Petitioner Eduardo Martinez’s pro se

Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State 

Custody (Non-Death Penalty) (“Petition”) (Doc. 1). Respondents have filed a Limited 

Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 16). No reply was filed. 

The Petition is ripe for adjudication. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

A. Initial Charge and Sentencing 

 The Arizona Court of Appeals stated the facts1

 as follows: 

 On the night of January 7, 2012, Martinez drove a friend’s car to a 

 1

 As these state court findings are entitled to a presumption of correctness and Petitioner 

has failed to show by clear and convincing evidence that the findings are erroneous, the Court 

hereby adopts these factual findings. 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 

465, 473–74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007); Wainwright v. Witt, 469 U.S. 412, 

426, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985); Cf. Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 

1198, 1204, 71 L.Ed.2d 379 (1982). 
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drug store, where he picked up two cases of beer and presented them to the 

cashier at the front of the store, as if for payment. As the cashier began to 

ring up the purchase, however, Martinez pulled the beer off the counter and 

ran out the front door into the parking lot. As he neared the driver’s side of 

a parked vehicle, the store manager, who had been outside, ran towards the 

car and Martinez threw one of the cases of beer at her, hitting her in the 

stomach. He then picked up the other case of beer, which he had set down 

on the pavement, and put it in the car. Upon hurriedly backing out of the 

parking space, Martinez nearly struck the manager and a bystander. He 

was apprehended several months later, and in a police interview admitted 

taking the cases of beer without paying for them. 

Answer (Doc. 16), Ariz. Ct. of Appeals, Case No. 2 CA-CR 2013-0043, Memorandum 

Decision 10/29/2013 (Exh. “A”) (Doc. 17) at 4.2

 Following a jury trial, Petitioner was 

found guilty of one count of robbery and two counts of endangerment. Answer (Doc. 

16), Ariz. Superior Ct., Pima County, Case No. CR20121612-001, Minute Entry 

12/6/2012 (Exh. “B”) (Doc. 17) at 14. On January 22, 2013, Petitioner was sentenced to 

a presumptive ten (10) year term of imprisonment for the robbery charge, as well as two 

presumptive two and one half (2.5) year sentences for the endangerment counts. Answer 

(Doc. 16), Ariz. Superior Ct., Pima County, Case No. CR20121612-001, Minute Entry 

1/22/2013 (Exh. “C”) (Doc. 17) at 18–19. Petitioner’s terms of imprisonment were 

ordered to run concurrently. Id., Exh. “C” at 18–19. 

B. Direct Appeal 

 On January 29, 2013, counsel for the Petitioner filed a Notice of Appeal from the 

judgment and sentence. See Answer (Doc. 16), Ariz. Superior Ct., Pima County, Case 

No. CR20121612-001, Def.’s Not. of Appeal 1/29/2013 (Exh. “D”) (Doc. 17). On May 

13, 2013, counsel for Petitioner filed an Opening Brief asserting a single issue for review. 

Answer (Doc. 16), Ariz. Ct. of Appeals, Case No. 2 CA-CR 2013-0043, Appellant’s 

Opening Br. 5/13/2013 (Exh. “E”) (Doc. 17). Petitioner argued that the trial court’s 

alleged failure to instruct the jury on the lesser included offenses of Theft and Attempted 

Robbery denied him due process and his constitutional right to a fair trial. Id., Exh. “E” 

 

2

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at 29–32. 

 On October 29, 2013, the Arizona Court of Appeals issued its decision affirming 

Petitioner’s conviction and sentences but vacating the criminal restitution order (“CRO”) 

entered by the trial court against Petitioner. See Answer (Doc. 16) Ariz. Ct. of Appeals, 

Case No. 2 CA-CR 2013-0043, Mem. Decision 10/29/2013 (Exh. “A”) (Doc. 17). 

Reviewing for fundamental error, the appellate court stated that “[a] court must instruct 

the jury on a lesser-included offense of the crime charged if the evidence supports the 

requested instruction[;] . . . [h]owever, a lesser-included instruction is not required merely 

because a jury could disbelieve all the evidence of the greater charge except the elements 

of the lesser.” Id., Exh. “A” at 5 (citing State v. Vickers, 159 Ariz. 532, 542, 768 P.2d 

1177, 1187 (1989); then citing Ariz. R. Crim. P. 23.3; then citing State v. Bolton, 182 

Ariz. 290, 309, 896 P.2d 830, 849 (1995)). The appellate court further stated that “[s]uch 

an instruction is necessary only where a jury could ‘rationally fail to find the 

distinguishing element of the greater offense.’” Answer (Doc. 16), Exh. “A” at 5–6 

(citing State v. Krone, 182 Ariz. 319, 323, 897 P.2d 621, 625 (1995)). Based on Arizona 

law, the appellate court posited that Petitioner “was entitled to an instruction on theft if a 

jury could reasonably find from the evidence in the record that his conceded use of 

force[] was not an attempt to retain control of the beer he had in his arms when he exited 

the store.” Answer (Doc. 16), Exh. “A” at 6–7 (footnote omitted). The appellate court 

considered the record and concluded that “because Martinez’s conduct was inconsistent 

with a reasonable finding that he lacked any motive ‘to coerce surrender of property or to 

prevent resistance to [his] taking or retaining property by his use of force, § 13-1902(A), 

a theft instruction was not required.” Id., Exh. “A” at 10 (citing State v. Routhier, 137 

Ariz. 90, 99, 669 P.2d 68, 77 (1983)) (alterations in original). As such, the appellate 

court upheld the trial court’s denial of Petitioner’s request for a theft instruction. Answer 

(Doc. 16), Exh. “A” at 11. The appellate court further held that the trial court did not err 

by refusing to give an attempted robbery instruction. Id., Exh. “A” at 11–12. The 

appellate court did find fundamental error in the trial court’s CRO, because it was 
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imposed prior to the expiration of Petitioner’s sentence. Id., Exh. “A” at 12 (citing State 

v. Lopez, 231 Ariz. 561 ¶ 2, 298 P.3d 909, 910 (Ct. App. 2013)). As such, the court of 

appeals vacated the CRO, but “affirm[ed] Martinez’s convictions and sentences in all 

other respects.” Answer (Doc. 16), Exh. “A” at 12. On January 9, 2014, the court of 

appeals issued its mandate indicating that Petitioner had not filed a motion for 

reconsideration or sought review with the Arizona Supreme Court. Answer (Doc. 16), 

Ariz. Ct. of Appeals, Case No. 2 CA-CR 2013-0043, Mandate 1/9/2014 (Exh. “G”) (Doc. 

17). 

C. Post-Conviction Relief Proceeding 

 On November 18, 2013, Petitioner filed his Notice of Post-Conviction Relief 

(“PCR”). Answer (Doc. 16), Ariz. Superior Ct., Pima County, Case No. CR20121612-

001, Def.’s Notice of PCR 11/18/2013 (Exh. “H”) (Doc. 17). On December 16, 2013, the 

trial court appointed counsel to Petitioner for the Rule 32 proceeding. See Answer (Doc. 

16), Ariz. Superior Ct., Pima County, Case No. CR20121612-001, Notice 12/16/2013 

(Exh. “I”) (Doc. 17). On August 7, 2014, Petitioner timely filed his Petition for PostConviction Relief. Answer (Doc. 16), Ariz. Superior Ct., Pima County, Case No. 

CR20121612-001, Pet.’s Pet. for PCR (Exh. “K”) (Doc. 17); see also Answer (Doc. 16), 

Ariz. Superior Ct., Pima County, Case No. CR20121612-001, Order 2/18/2014 & 

3/21/2014 & 6/2/2014 & 7/10/2014 (Exh. “J”) (Doc. 17). 

 Petitioner asserted two (2) claims of ineffective assistance of trial counsel 1) for 

failing to have a court interpreter assist Petitioner during trial and “other critical junctures 

of the case”; and 2) for failing to request a jury instruction for the lesser included offense 

as to the endangerment counts. See Answer (Doc. 16), Ariz. Superior Ct., Pima County, 

Case No. CR20121612-001, Pet.’s Pet. for PCR (Exh. “K”) (Doc. 17). Petitioner also 

asserted a single claim of ineffective assistance of appellate counsel for an alleged failure 

to raise the lesser included jury instruction as to endangerment on appeal. See id., Exh. 

“K.” 

 On October 28, 2014, the Rule 32 court denied relief and dismissed Petitioner’s 
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petition. See Answer (Doc. 16), Ariz. Superior Ct., Pima County, Case No. 

CR20121612, Ruling, In Chambers Re: Petition for Post Conviction Relief 10/28/2014 

(Exh. “N”) (Doc. 18). The Rule 32 court delineated the test for ineffective assistance of 

counsel, stating “[t]o state a colorable claim of ineffective assistance of counsel, 

Petitioner must show 1) that counsel’s performance fell below objectively reasonable 

standards, and 2) that this performance prejudiced the defendant.” Id., Exh. “N” at 18 

(citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); 

then citing State v. Jackson, 209 Ariz. 13, 14, 97 P.3d 113, 114 (Ct. App. 2004)). 

 Regarding Petitioner’s claimed need for an interpreter, the Rule 32 court noted 

that “[t]he trial court is in the best position to determine whether a defendant ‘possesses 

the requisite degree of fluency in the English language so that his right to confront 

witnesses, right to cross-examine those witnesses and right to competent counsel will not 

be abridged.’” Answer (Doc. 16), Exh. “N” at 19 (quoting State v. Natividad, 111 Ariz. 

191, 194, 526 P.2d 730, 733 (1974); then citing Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 

1065, 13 L.Ed.2d 923 (1965)). The Rule 32 court highlighted that “Petitioner interacted 

with pre-trial services, two English speaking attorneys, two different Divisions in this 

court[], and the probation department in the creation of the pre-sentence report[,] . . . 

[and] wrote an articulate, largely grammatically correct Change Plan while awaiting 

sentencing and a letter of similar skill and proficiency in this Rule 32 process.” Answer 

(Doc. 16), Exh. “N” at 20. The Rule 32 court further noted no one that Petitioner came in 

contact with indicated the need for an interpreter, nor did Petitioner request “an 

interpreter of the Court, even though he was directly addressed during hearings, and 

although he requested (and received) a new attorney[,] . . . rejected two pleas and made 

two Donald records[,] . . . and fully participated in his pre-sentence report.” Id., Exh. 

“N” at 20. The Rule 32 court “[c]onsider[ed] Petitioner’s experience with the justice 

system and the procedural history of this case, . . . [and] d[id] not question Petitioner’s 

ability to understand the proceedings; [and found that] he was present and a full 

participation.” Id., Exh. “N” at 21. As such, the Rule 32 court held that counsel did not 
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fall below “objectively reasonable standards” regarding Petitioner’s alleged need for an 

interpreter. Id., Exh. “N” at 21. 

 Next, the Rule 32 court considered the jury instructions provided at trial regarding 

endangerment. Answer (Doc. 16), Exh. “N” at 21–22. The Rule 32 court noted “that the 

Jury was given the option of imminent death or physical injury as the two ways that 

endangerment could have been committed[,] [and] [b]ecause there was an issue of 

whether there was a risk of imminent death, the court used a special verdict pursuant to 

State v. Carpenter, 141 Ariz. 29, 684 P.2d 910 (App. 1984).” Answer (Doc. 16), Exh. 

“N” at 21 (emphasis in original). The Rule 32 court further noted that “[h]ad the jury not 

unanimously found the Petitioner endangered each victim with a substantial risk of 

imminent death, they would have convicted him of only the lower class of 

endangerment[.]” Id., Exh. “N” at 22 (emphasis in original). In light of the jury 

instructions and special interrogatory, the Rule 32 court held that neither trial nor 

appellate counsel were ineffective regarding the endangerment instruction. Id., Exh. “N” 

at 22–23. 

 On December 22, 2014, Petitioner sought review by the Arizona Court of Appeals 

of the denial of his PCR petition. See Answer (Doc. 16), Ariz. Ct. of Appeals, Case No. 

2 CA-Cr 2014-0429-PR, Pet.’s Pet. for Review (Exh. “P”) (Doc. 18). Petitioner asserted 

that “[t]he court’s ruling [regarding Petitioner’s need for an interpreter] [wa]s contrary to 

all evidence [sic] presented in Mr. Martinez’[s] petition for post conviction relief[.]” Id., 

Exh. “P” at 29. Petitioner further asserted that “[t]he court’s reliance on State v. 

Natividad [wa]s totally misplaced.” Id., Exh. “P” at 29. Petitioner reiterated the 

evidence presented to the Rule 32 court in support of his alleged need for an interpreter 

and argued that the Natividad decision required a hearing to establish whether Petitioner 

is entitled to the relief sought. Id., Exh. “P” at 30–34. Petitioner did not raise any other 

issues for review. See Answer (Doc. 16), Exh. “P.” 

 On March 12, 2015, the Arizona Court of Appeals granted review, but denied 

relief. See Answer (Doc. 16), Ariz. Ct. of Appeals, Case No. 2 CA-CR 2014-0429-PR, 
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Mem. Decision 3/12/2015 (Exh. “Q”) (Doc. 18). The appellate court reviewed 

Petitioner’s initial PCR petition and the Rule 32 court’s decision. Id., Exh. “Q” at 77–79. 

The appellate court noted “that this case is readily distinguishable from Natividad, which 

Martinez relies on for the proposition that he is entitled to an evidentiary hearing.” Id., 

Exh. “Q” at 80. The appellate court explained that “[i]n Natividad, our supreme court 

remanded for such a hearing, in part, because the record was ‘barren of a reliable 

indication as to the defendant’s ability to comprehend’ or speak English.” Id., Exh. “Q” 

at 80 (quoting State v. Natividad, 111 Ariz. 191, 193, 526 P.2d 730, 732 (1974)). The 

appellate court reviewed the record regarding the evidence supporting Petitioner’s 

English abilities, noting: 

By way of further example of his proficiency in English, when the trial 

court asked Martinez at sentencing if he wanted to say anything, he 

responded as follows: 

Yeah, Your Honor. I just want to apologize to the victim 

here. That night I was on drugs that did bad stuff to me. I 

was, I know I was acting — some parts I barely remember, 

but, since I’ve seen the video and everything, that wasn’t 

really me. I[t] was some other person. I wouldn’t act like 

that. I just want to apologize to the victim. That’s it. 

Answer (Doc. 16), Exh. “Q” at 80 n.4 (alterations in original). The appellate court also 

remarked that “the record before us does not suggest that at any point Martinez indicated 

in any way that he did not understand the proceedings” and pointed out that “Martinez 

was aware of [the option to have an interpreter], yet he did not ask the trial court to 

appoint one when, according to him, his attorney had denied his request.” Id., Exh. “Q” 

at 81. The appellate court held that “the trial court correctly concluded Martinez did not 

sustain a claim of ineffective assistance of counsel.” Id., Exh. “Q” at 81 (citing State v. 

McDaniel, 136, Ariz. 188, 198, 665 P.2d 70, 80 (1983)). 

 On April 9, 2015, Petitioner filed his Petition for Review to the Arizona Supreme 

Court. See Answer (Doc. 16), Arizona Supreme Court, Case No. CR-15-0123-PR, Pet.’s 

Pet. for Review (Exh. “R”) (Doc. 18). On September 22, 2015, the Arizona Supreme 
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Court denied review. See Answer (Doc. 16), Arizona Supreme Court, Case No. CR-15-

0123-PR, Memorandum 9/22/2015 (Exh. “S”) (Doc. 18). On October 8, 2015, the 

Arizona Court of Appeals issued its mandate. See Answer (Doc. 16), Ariz. Ct. of 

Appeals, Case No. 2 CA-CR 2014-0429-PR, Mandate 10/8/2015 (Exh. “T”) (Doc. 18). 

D. The Instant Habeas Proceeding 

 On November 6, 2015, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a 

Writ of Habeas Corpus by a Person in State Custody (Doc. 1). Petitioner claims three (3) 

grounds for relief. First, Petitioner alleges a “[v]iolation of the 14th Amend[ment] of the 

U.S. Constitution; Defendant was denied the basic right to Due Process by his counsel’s 

failure to make the appropriate legal motions, etc. to obtain a Court Interpeter [sic] after 

Defendant informed him he needed one[.]” Petition (Doc. 1) at 6. Petitioner asserts that 

this “depriv[ed] him to interact [sic] in his Court Proceedings in a knowing [and] 

informed manner, . . . [and did not] allow[] him to be an active participant in his pre-trial, 

trial, [and] sentencing proceedings.” Id. Petitioner notes that “[i]n previous Court cases 

the Defendant had a court interpreter assigned to him but in others he did not[;]” 

however, “[d]ue to the lack of this interpreter the Defendant didn’t understand what was 

going on during Court proceedings in a knowing [and] intelligent manner.” Id. Second, 

Petitioner alleges a “[v]iolation of the 14th Amend[ment] of the U.S. Constitution[,] 

[because] [t]rial counsel was ineffective in failing to request lesser included offense 

instructions to the endangerment counts.” Petition (Doc. 1) at 7. Third, Petitioner further 

asserts that appellate counsel was ineffective for the same failure to request a lesser 

included offense instruction. Id. 

 On April 6, 2016, Respondents filed their Limited Answer (Doc. 16) asserting that 

Petitioner had only advanced unexhausted claims in his federal habeas petition. 

Respondents argue that Petitioner’s first claim regarding a court interpreter was only 

presented in the state court as an alleged Sixth Amendment violation, with only passing 

reference to due process. Answer (Doc. 16) at 8–9. Respondents further argue that 

Petitioner’s second claim regarding the lesser-included-offense jury instruction was never 
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referred to as a Fourteenth Amendment violation in the state courts, nor was it ever 

presented to the Arizona Court of Appeals. Id. at 9–10. Petitioner did not file a reply. 

II. STANDARD OF REVIEW 

A. In General

 The federal courts shall “entertain an application for a writ of habeas corpus in 

behalf of a person in custody pursuant to the judgment of a State court only on the ground 

that he is in custody in violation of the Constitution or laws of treaties of the United 

States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus 

by a person in state custody 

shall not be granted with respect to any claim that was adjudicated on the 

merits in State court proceedings unless the adjudication of the claim – (1) 

resulted in a decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by the 

Supreme Court of the United States; or (2) resulted in a decision that was 

based on an unreasonable determination of the facts in light of the evidence 

presented in the State court proceeding. 

28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398, 

179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal 

habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 

L.Ed.2d 385 (1991). Ultimately, “[t]he statute’s design is to ‘further the principles of 

comity, finality, and federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 

2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 

123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet 

and highly deferential “for evaluating state-court rulings, [and] which demands that statecourt decisions be given the benefit of the doubt.” Pinholster, 131 S.Ct. at 1398 

(citations and internal quotation marks omitted). 

 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 

1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The 

“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims 
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have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19, 134 S.Ct. 10, 16, 

187 L.Ed.2d 348 (2013). Federal courts reviewing a petition for habeas corpus must 

“presume the correctness of state courts’ factual findings unless applicants rebut this 

presumption with ‘clear and convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465, 

473–74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)). 

Moreover, on habeas review, the federal courts must consider whether the state court’s 

determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473, 127 S.Ct. at 

1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is 

unreasonable where a state court properly identifies the governing legal principles 

delineated by the Supreme Court, but when the court applies the principles to the facts 

before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 

770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 

L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). 

“AEDPA requires ‘a state prisoner [to] show that the state court’s ruling on the claim 

being presented in federal court was so lacking in justification that there was an error . . . 

beyond any possibility for fairminded disagreement.’” Burt, 571 U.S. at 19–20, 134 S.Ct. 

at 16 (quoting Harrington, 562 U.S. at 103, 131 S.Ct. at 786–87) (alterations in original). 

B. Exhaustion of State Remedies 

 Prior to application for a writ of habeas corpus, a person in state custody must 

exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This 

“provides a simple and clear instruction to potential litigants: before you bring any claims 

to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, 

455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). As such, the 

exhaustion doctrine gives the State “the opportunity to pass upon and correct alleged 

violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 

1347, 1349, 158 L.Ed.2d 64 (2004) (internal quotations omitted). Moreover, “[t]he 

exhaustion doctrine is principally designed to protect the state courts’ role in the 

enforcement of federal law and prevent disruption of state judicial proceedings.” Rose, 
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455 U.S. at 518, 102 S.Ct. at 1203 (internal citations omitted). This upholds the doctrine 

of comity which “teaches that one court should defer action on causes properly within its 

jurisdiction until the courts of another sovereignty with concurrent powers, and already 

cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. (quoting 

Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)). 

 Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long 

as the applicant “has the right under the law of the State to raise, by any available 

procedure the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has 

been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard 

v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair 

presentation requirement mandates that a state prisoner must alert the state court “to the 

presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting 

the state court to read beyond the four corners of the petition is insufficient. Baldwin v. 

Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting 

petitioner’s assertion that his claim had been “fairly presented” because his brief in the 

state appeals court did not indicate that “he was complaining about a violation of federal 

law” and the justices having the opportunity to read a lower court decision addressing the 

federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) 

(holding that petitioner failed to exhaust federal due process issue in state court because 

petitioner presented claim in state court only on state grounds). Furthermore, in order to 

“fairly present” one’s claims, the prisoner must do so “in each appropriate state court.” 

Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349. “Generally, a petitioner satisfies the 

exhaustion requirement if he properly pursues a claim (1) throughout the entire direct 

appellate process of the state, or (2) throughout one entire judicial postconviction process 

available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting 

Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 

1998)). 
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 In Arizona, however, for non-capital cases “review need not be sought before the 

Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 

1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 

2007); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the 

Supreme Court has further interpreted § 2254(c) to recognize that once the state courts 

have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for 

the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346, 

350, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989). 

C. Procedural Default 

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

technical requirements for exhaustion; there are no state remedies any longer ‘available’ 

to him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 

650 (1991). Moreover, federal courts “will not review a question of federal law decided 

by a state court if the decision of that court rests on a state law ground that is independent 

of the federal question and adequate to support the judgment.” Id., 501 U.S. at 728, 111 

S.Ct. at 2254. This is true whether the state law basis is substantive or procedural. Id.

(citations omitted). Such claims are considered procedurally barred from review. See 

Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). 

 The Ninth Circuit Court of Appeals explained the difference between exhaustion 

and procedural default as follows: 

The exhaustion doctrine applies when the state court has never been 

presented with an opportunity to consider a petitioner’s claims and that 

opportunity may still be available to the petitioner under state law. In 

contrast, the procedural default rule barring consideration of a federal claim 

applies only when a state court has been presented with the federal claim, 

but declined to reach the issue for procedural reasons, or if it is clear that 

the state court would hold the claim procedurally barred. Franklin v. 

Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and 

citations omitted). Thus, in some circumstances, a petitioner’s failure to 

exhaust a federal claim in state court may cause a procedural default. See 

Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, 

303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if 
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the petitioner failed to exhaust state remedies and the court to which the 

petitioner would be required to present his claims in order to meet the 

exhaustion requirement would now find the claims procedurally barred.’”) 

(quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 

115 L.Ed.2d 640 (1991)). 

Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005). Thus, a prisoner’s habeas 

petition may be precluded from federal review due to procedural default in two ways. 

First, where the petitioner presented his claims to the state court, which denied relief 

based on independent and adequate state grounds. Coleman, 501 U.S. at 728, 111 S.Ct. 

at 2254. Federal courts are prohibited from review in such cases because they have “no 

power to review a state law determination that is sufficient to support the judgment, 

resolution of any independent federal ground for the decision could not affect the 

judgment and would therefore be advisory.” Id. Second, where a “petitioner failed to 

exhaust state remedies and the court to which the petitioner would be required to present 

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

procedurally barred.” Id. at 735 n.1, 111 S.Ct. at 2557 n.1 (citations omitted). Thus, the 

federal court “must consider whether the claim could be pursued by any presently 

available state remedy.” Cassett, 406 F.3d at 621 n.6 (quoting Ortiz v. Stewart, 149 F.3d 

923, 931 (9th Cir. 1998)) (emphasis in original). 

 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 

courts are prohibited from subsequent review unless the petitioner can show cause and 

actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 

103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding 

barred federal habeas review unless petitioner demonstrated cause and prejudice); see 

also Smith v. Murray, 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986) 

(recognizing “that a federal habeas court must evaluate appellate defaults under the same 

standards that apply when a defendant fails to preserve a claim at trial.”). “[T]he 

existence of cause for a procedural default must ordinarily turn on whether the prisoner 

can show that some objective factor external to the defense impeded counsel’s efforts to 
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comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 

S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d 

1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally 

defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on 

which to address the merits of his claims.”). In addition to cause, a habeas petitioner 

must show actual prejudice, meaning that he “must show not merely that the errors . . . 

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

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

477 U.S. at 494, 106 S.Ct. at 2648 (emphasis in original) (internal quotations omitted). 

Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the 

procedural default and gain review by the federal courts. Id., 106 S.Ct. at 2649. 

 The Supreme Court has recognized, however, that “the cause and prejudice 

standard will be met in those cases where review of a state prisoner’s claim is necessary 

to correct ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722, 

111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 

S.Ct. 1558, 1572–73, 71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice 

exception is available ‘only where the prisoner supplements his constitutional claim with 

a colorable showing of factual innocence.’” Herrera v. Collins, 506 U.S. 390, 404, 113 

S.Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v. 

Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)). Thus, “‘actual 

innocence’ is not itself a constitutional claim, but instead a gateway through which a 

habeas petitioner must pass to have his otherwise barred constitutional claim considered 

on the merits.” Herrera, 506 U.S. at 404, 113 S.Ct. at 862. Further, in order to 

demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by 

clear and convincing evidence that but for the constitutional error, no reasonable 

factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 

2254(e)(2)(B). 
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 In Arizona, a petitioner’s claim may be procedurally defaulted where he has 

waived his right to present his claim to the state court “at trial, on appeal or in any 

previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3). “If an asserted claim is of 

sufficient constitutional magnitude, the state must show that the defendant ‘knowingly, 

voluntarily and intelligently’ waived the claim.” Id., 2002 cmt. Neither Rule 32.2 nor 

the Arizona Supreme Court has defined claims of “sufficient constitutional magnitude” 

requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 202 Ariz. 

446, 46 P.3d 1067 (2002). The Ninth Circuit Court of Appeals recognized that this 

assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are 

better suited to make these determinations.” Cassett, 406 F.3d at 622. 

III. STATUTE OF LIMITATIONS 

 As a threshold matter, the Court must consider whether Petitioner’s petition is 

barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921–22 (9th Cir. 

2002). The AEDPA mandates that a one-year statute of limitations applies to 

applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 

2244(d)(1). Section 2244(d)(1) provides that the limitations period shall run from the 

latest of: 

(A) the date on which the judgment became final by the conclusion of 

direct review or the expiration of the time for seeking such review; 

(B) the date on which the impediment to filing an application created by 

the State action in violation of the Constitution or laws of the United States 

is removed, if the applicant was prevented from filing by such State action; 

(C) the date on which the constitutional right asserted was initially 

recognized by the Supreme Court, if the right has been newly recognized 

by the Supreme Court and made retroactively applicable to cases on 

collateral review; or 

(D) the date on which the factual predicate of the claim or claims 

presented could have been discovered through the exercise of due diligence. 

28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time 

during which a properly filed application for State post-conviction or other collateral 
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review with respect to the pertinent judgment or claim is pending shall not be counted 

toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). 

Respondents do not dispute the timeliness of Martinez’s petition. The Court has 

independently reviewed the record and finds that the Petition (Doc. 1) is timely pursuant 

to 28 U.S.C. § 2244(d)(1)(A). 

IV. ANALYSIS 

A. Ground One: Court Interpreter 

 Petitioner asserts that his due process rights, guaranteed under the Fourteenth 

Amendment to the United States Constitution, were violated because trial counsel 

allegedly failed to obtain a court interpreter for court proceedings. Petition (Doc. 1) at 6. 

Respondents assert that “[i]n his PCR petition, Martinez asserted that he was denied his 

right to the effective assistance of counsel because his counsel failed to obtain an 

interpreter for him during the trial court proceedings[;] [however,] [t]he petition contains 

a single . . . passing reference to due process . . . [and] does not refer to the federal 

constitution or law[.]” Answer (Doc. 16) at 8. Respondents further argue that this was 

“insufficient to constitute fair presentation of a Fourteenth Amendment due process 

violation claim to the state court.” Id. (citations omitted). The Court agrees with 

Respondents. 

1. Failure to Exhaust 

 In Petitioner’s PCR petition, he framed the issue as “trial counsel was ineffective 

in failing to ensure that defendant was assisted by a court interpreter during trial and 

other critical junctures of the case.” Answer (Doc. 16), Ariz. Superior Ct., Pima County, 

Case No. CR-20121612-001, Pet.’ Pet. for PCR (Exh. “K”) at 69. Petitioner asserted that 

“[t]here is long standing authority in Arizona courts that a defendant’s inability to 

spontaneously understand testimony being given would undoubtedly limit his attorney’s 

effectiveness, especially on cross examination.” Id., Exh. “K” at 71 (citing State v. 

Natividad, 111 Ariz. 191, 526 P.2d 730 (1974)). Petitioner further noted that “[t]hese 
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cases make it clear that in such a case the lack of interpretation possibly infringes on the 

right to be present in the courtroom at every state of the trial.” Answer (Doc. 16), Exh. 

“K” at 71. As such, Petitioner argued that an evidentiary hearing was required and “[t]his 

issue[] go[es] to the heart of defendant’s ability to understand the courtroom proceedings, 

goes to the heart of a due process and a fair hearing.” Id., Exh. “K” at 71. Although 

Petitioner cited a Pennsylvania district court case, as well as a New Mexico state court 

case, his petition is devoid of reference to the United States Constitution or Supreme 

Court of the United States’ precedent. In light of this deficiency, Respondents argue that 

Petitioner did not “fair[ly] present[] . . . a Fourteenth Amendment due process violation 

claim to the state court.” Answer (Doc. 16) at 9. Furthermore, on appeal, Petitioner 

raised this claim solely as a Sixth Amendment right to the effective assistance of counsel 

violation. Answer (Doc. 16), Arizona Court of Appeals, Case No. 2 CA-CR 2014-0429-

PR, Pet.’s Pet. for Review (Exh. “P”) (Doc. 18) at 31–32. 

 The Court agrees with Respondents’ characterization. As such, Petitioner cannot 

be said to have exhausted this claim. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 

2004) (citations omitted) (exhaustion requires pursuing a claim throughout an entire 

direct appellate or post-conviction process in the state). Moreover, Petitioner’s claim 

would now be precluded by the Arizona courts. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a)(3), 

32.4; see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 

(2004) (in order to “fairly present” one’s claims, the prisoner must do so “in each 

appropriate state court”). Therefore, Petitioner’s claim is procedurally defaulted. 

Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 2557 n.1, 115 L.Ed.2d 640 

(1991) (“petitioner failed to exhaust state remedies and the court to which the petitioner 

would be required to present his claims in order to meet the exhaustion requirement 

would now find the claims procedurally barred”). 

 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 

courts are prohibited from subsequent review unless the petitioner can show cause and 

actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 
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103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding 

barred federal habeas review unless petitioner demonstrated cause and prejudice). 

Petitioner has not met his burden to show either cause or actual prejudice. Murray v. 

Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner 

“must show not merely that the errors . . . created a possibility of prejudice, but that they 

worked to his actual and substantial disadvantage, infecting his entire trial with error of 

constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also 

Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer 

any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on 

which to address the merits of his claims.”). Accordingly, Petitioner’s claim that 

counsel’s alleged failure to obtain a court interpreter violated his Fourteenth Amendment 

due process rights cannot stand. 

2. Ineffective Assistance of Counsel 

 Even if the Court construes Petitioner’s habeas claim as one for ineffective 

assistance of counsel in violation of the Sixth Amendment, as well as accepts that he 

“fairly presented” it to the state courts, the claim is without merit. See 28 U.S.C. 

§2254(b)(2); Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005) (a federal court 

may deny an unexhausted petition on the merits when the petition does not raise a 

colorable federal claim). 

 a. Legal Standards 

 For cases which have been fairly presented to the State court, the Supreme Court 

elucidated a two-part test for determining whether a defendant could prevail on a claim of 

ineffective assistance of counsel sufficient to overturn his conviction. See Strickland v. 

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Petitioner must 

show that counsel’s performance was deficient. Id. at 687, 104 S.Ct. at 2064. “This 

requires showing that counsel made errors so serious that counsel was not functioning as 

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, Petitioner 

must show that this performance prejudiced his defense. Id. Prejudice “requires showing 
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that counsel’s errors were so serious as to deprive the defendant of a fair trial whose 

result is reliable.” Id. Ultimately, whether or not counsel’s performance was effective 

hinges on its reasonableness under prevailing professional norms. Strickland, 466 U.S. at 

688, 104 S.Ct. at 2065; see also State v. Carver, 160 Ariz. 167, 771 P.2d 1382 (1989) 

(adopting Strickland two-part test for ineffective assistance of counsel claims). The Sixth 

Amendment’s guarantee of effective assistance is not meant to “improve the quality of 

legal representation,” rather it is to ensure the fairness of trial. Strickland, 466 U.S. at 

689, 104 S.Ct. at 2065. “Thus, ‘[t]he benchmark for judging any claim of ineffectiveness 

must be whether counsel’s conduct so undermined the proper functioning of the 

adversarial process that the trial cannot be relied on as having produced a just result.’” 

Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) 

(quoting Strickland, 466 at 686) (emphasis and alteration in original). 

 “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ . 

. . and when the two apply in tandem, review is ‘doubly’ so[.]” Harrington v. Richter, 

562 U.S. 86, 105, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (citations omitted). 

Judging counsel’s performance must be made without the influence of hindsight. See 

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. As such, “the defendant must overcome 

the presumption that, under the circumstances, the challenged action ‘might be 

considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 

S.Ct. 158, 164, 100 L.Ed. 83 (1955)). Without the requisite showing of either “deficient 

performance” or “sufficient prejudice,” Petitioner cannot prevail on his ineffectiveness 

claim. Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. “[T]he question is not whether 

counsel’s actions were reasonable. The question is whether there is any reasonable 

argument that counsel satisfied Strickland’s deferential standard.” Gentry v. Sinclair, 705 

F.3d 884, 899 (9th Cir. 2013) (quoting Harrington, 562 U.S. at 105, 131 S.Ct. at 788) 

(alterations in original). “The challenger’s burden is to show ‘that counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 

Sixth Amendment.’” Harrington, 562 U.S. at 104, 131 S.Ct. at 787 (quoting Strickland, 
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466 U.S. at 689, 104 S.Ct. 2052). Accordingly, “[w]e apply the doubly deferential 

standard to review the state court’s ‘last reasoned decision.’” Vega v. Ryan, 757 F.3d 

960, 966 (9th Cir. 2014) (citations omitted). “By its terms § 2254(d) bars relitigation of 

any claim ‘adjudicated on the merits’ in state court, subject only to the exceptions in 

2254(d)(1) and (d)(2).” Harrington, 131 U.S. at 98, 131 S.Ct. at 784. As such, Petitioner 

also bears the burden of showing that the state court applied Strickland to the facts of his 

case in an objectively unreasonable manner. See Bell v. Cone, 535 U.S. 685, 698–99, 122 

S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002); see also 28 U.S.C. § 2254(d). 

 Additionally, “[a]s a general matter, each ‘unrelated alleged instance [ ] of 

counsel’s ineffectiveness’ is a separate claim for purposes of exhaustion.” Gulbrandson 

v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d 

1044, 1056 (9th Cir. 2005)) (alterations in original). This means “all operative facts to an 

ineffective assistance claim must be presented to the state courts in order for a petitioner 

to exhaust his remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). 

This is “[b]ecause ineffective assistance claims are not fungible, but are instead highly 

fact-dependent, [requiring] some baseline explication of the facts relating to it[.]” Id. As 

such, “a petitioner who presented any ineffective assistance of counsel claim below 

can[not] later add unrelated instances of counsel’s ineffectiveness to that claim.” Id.

(citations and internal quotations omitted); see also Date v. Schriro, 619 F.Supp.2d 736, 

788 (D. Ariz. 2008) (“Petitioner’s assertion of a claim of ineffective assistance of counsel 

based on one set of facts, does not exhaust other claims of ineffective assistance based on 

different facts”). 

b. Prejudice 

 Petitioner cannot demonstrate prejudice. The Arizona Court of Appeals described 

Petitioner’s participation in the court proceedings as follows: 

[A]s the trial court noted, Martinez meaningfully participated in two 

Donald hearings.[4] State v. Donald, 198 Ariz. 406, 526 P.3d 1193 (App. 

2000). Importantly, the minute entry from the second of those hearings 

provides that not only did Martinez respond to questions about the plea, but 

he satisfied the court that he had “knowingly, intelligently and voluntarily 
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reject[ed]” it. See State v. Gourdin, 156 Ariz. 337, 338-39, 751 P.2d 997, 

998-99 (App. 1988) (appellant’s contention he could not understand 

proceeding without interpreter undercut by participation in court and 

answering questions including whether he read, signed, and understood 

plea agreement). 

 Moreover, the record before us does not suggest that at any point 

Martinez indicated in any way that he did not understand the proceedings. 

Additionally, having been provided or offered an interpreter in many of his 

prior cases, Martinez was aware of that option, yet he did not ask the trial 

court to appoint one when, according to him, his attorney had denied his 

request. 

 

[4] By way of further example of his proficiency in English, when 

the trial court asked Martinez at sentencing if he wanted to say anything, he 

responded as follows: 

 Yeah, Your Honor. I just want to apologize to the 

victim here. That night I was on drugs that did bad stuff to 

me. I was, I know I was acting – some parts I barely 

remember, but, since I’ve seen the video and everything, that 

wasn’t really me. I[t] was some other person. I wouldn’t act 

like that. I just want to apologize to the victim. That’s it. 

Answer (Doc. 16), Ariz. Court of Appeals, Case No. 2 CA-CR 2014-0429-PR, Mem. 

Decision 3/12/2015 (Exh. “Q”) at 80–81. The record reflects that Petitioner participated 

in his court proceedings, and he does not present any evidence to suggest that he was 

actually prejudiced by the lack of an interpreter. Petitioner has also failed to present any 

evidence to show that the Arizona courts’ decisions regarding his ineffective assistance 

claim are contrary to or an unreasonable application of clearly established Supreme Court 

law or based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); see 

also Bell v. Cone, 535 U.S. 685, 698–99, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002). 

Accordingly, this Court finds that the Arizona courts did not unreasonably apply clearly 

established Federal law or unreasonably determine the facts in light of the evidence 

presented, and Petitioner cannot meet his burden to show prejudice. See Gulbrandson, 

738 F.3d at 991. Petitioner’s ineffective assistance of counsel claim regarding the alleged 

failure to procure a court interpreter is without merit. 
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B. Grounds Two and Three: Lesser Included Instruction 

Regarding Endangerment 

 Petitioner asserts that his due process rights, guaranteed under the Fourteenth 

Amendment of the United States Constitution were violated because trial counsel was 

ineffective for failing to request a lesser included offense jury instruction to the 

endangerment counts. Petition (Doc. 1) at 7. Similarly, Petitioner alleges that appellate 

counsel was ineffective for failing to raise this issue on direct appeal. Id. Respondents 

assert that these claims were not presented as due process or Fourteenth Amendment 

violations in his PCR petition, nor were they presented to the court of appeals. Answer 

(Doc. 16) at 9–10. 

 Whether the Court considers Petitioner’s claims before the state court as alleging a 

Fourteenth Amendment violation or a Sixth Amendment violation does not matter. The 

record is clear that neither claim, as to trial counsel or appellate counsel, was presented to 

the Arizona Court of Appeals. See Answer (Doc. 16), Ariz. Court of Appeals, Case No. 2 

CA-CR 2014-0429-PR, Pet.’s Pet. for Review (Exh. “R”). As such, Petitioner cannot be 

said to have exhausted this claim. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) 

(citations omitted) (exhaustion requires pursuing a claim throughout an entire direct 

appellate or post-conviction process in the state). Moreover, Petitioner’s claim would 

now be precluded by the Arizona courts. Ariz. R. Crim. P. 32.1(d)–(h), 32.2(a)(3), 32.4; 

see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) 

(in order to “fairly present” one’s claims, the prisoner must do so “in each appropriate 

state court”). Therefore, Petitioner’s claim is procedurally defaulted. Coleman v. 

Thompson, 501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 2557 n.1, 115 L.Ed.2d 640 (1991) 

(“petitioner failed to exhaust state remedies and the court to which the petitioner would 

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

find the claims procedurally barred”). 

 Where a habeas petitioner’s claims have been procedurally defaulted, the federal 

courts are prohibited from subsequent review unless the petitioner can show cause and 

actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 
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103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding 

barred federal habeas review unless petitioner demonstrated cause and prejudice). 

Petitioner has not met his burden to show either cause or actual prejudice. Murray v. 

Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner 

“must show not merely that the errors . . . created a possibility of prejudice, but that they 

worked to his actual and substantial disadvantage, infecting his entire trial with error of 

constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also 

Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer 

any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on 

which to address the merits of his claims.”). Accordingly, Petitioner’s claims that either 

trial counsel or appellate counsel were ineffective regarding the lesser included offense 

jury instruction as to endangerment are without merit. 

V. CONCLUSION 

 Based on the foregoing, the Court finds that Petitioner’s habeas claims are without 

merit, and IT IS HEREBY ORDERED that: 

1) Petitioner Eduardo Martinez’s pro se Petition Under 28 U.S.C. § 2254 for a 

Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1) is 

DENIED. 

2) A certificate of appealability is DENIED, because reasonable jurists would 

not find the Court’s ruling debatable. See 28 U.S.C. § 2253; 

3) The Clerk of the Court shall send a copy of the docket sheet in this case to 

Petitioner; 

4) This matter is DISMISSED with prejudice; and 

5) The Clerk of the Court shall enter judgment and close its file in this matter. 

 Dated this 25th day of February, 2019.