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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Tiaron Germaine Ross,

Petitioner, 

v. 

Charles L Ryan, et al., 

Respondents.

No. CV-16-00030-TUC-RCC (EJM)

REPORT AND

RECOMMENDATION 

On January 13, 20161 Petitioner Tiaron Germaine Ross filed a pro se petition for a 

Writ of Habeas Corpus (“PWHC”) pursuant to 28 U.S.C. § 2254 challenging his 

conviction for second degree murder. (Doc. 1). Petitioner raises one ground for relief, 

alleging that his Sixth Amendment right to effective assistance of counsel was violated 

when trial counsel: a) failed to prepare a defense; b) objected to a lesser included 

instruction on any theory of manslaughter; c) failed to advise Petitioner on how to 

prepare for cross examination and impeachment; and d) failed to call witnesses for the 

defense. Respondents filed an Answer contending that all of Petitioner’s claims are 

procedurally defaulted without excuse and that Petitioner has failed to show cause and 

prejudice or a fundamental miscarriage of justice to excuse the default of his claims. 

Petitioner concedes that his claims are procedurally defaulted but alleges that they are not 

 1 While the PWHC is date stamped as filed by the Court on January 15, 2016, the Court 

will assume that Petitioner deposited his PWHC in the prison mailing system on the date indicated by his signature, January 13, 2016. In order to give Petitioner the benefit of the earliest date calculations, the Court makes this same assumption for all other documents 

filed by the Petitioner and included in the record for this matter, unless otherwise noted. 
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barred from habeas review pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). 

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter 

was referred to Magistrate Judge Markovich for a Report and Recommendation. The 

undersigned finds that Petitioner’s claims are procedurally defaulted and barred from this 

Court’s review. The undersigned further finds that Petitioner does not demonstrate cause 

and prejudice or a fundamental miscarriage of justice to excuse the procedural default of 

his claims. Accordingly, the Magistrate Judge recommends that the District Court deny 

the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus. 

I. FACTUAL AND PROCEDURAL BACKGROUND

 A Pima County Superior Court jury found Petitioner guilty of second degree 

murder. (Ex. D).2 Petitioner was sentenced to 16 years imprisonment. Id. The Arizona 

COA summarized the facts of the case as follows:

In 2003, Ross and the victim, D.H., were standing in the front 

yard of the house where Ross lived. Following an argument, 

both Ross and D.H. drew their guns. Many shots were fired. 

Ross shot D.H. six times; he died at the hospital. Ross was 

not injured. 

Nearly six years later, Ross was indicted for first-degree murder. During trial, Ross moved for a judgment of acquittal. 

The trial court granted his motion as to the first-degree murder charge but allowed the trial to proceed on the lesser- included offenses. Ross asserted the justification defenses of 

self-defense and crime prevention. The jury ultimately found him guilty of second-degree murder.

(Ex. I). 

Following his conviction, Petitioner sought review in the Arizona COA. 

Appointed counsel filed a brief presenting four issues for review: 1) the court had a duty 

to sua sponte instruct the jury on the lesser included offense of manslaughter; 2) the court 

erred and abused its discretion by refusing to instruct the jury on the law of being a 

prohibited possessor; 3) the court erred and abused its discretion by denying Petitioner’s 

Rule 20 motion when the evidence supported that Petitioner acted in self-defense; and 4) 

the court erred and abused its discretion by denying Petitioner’s motion for a new trial 

 2 All exhibit numbers refer to documents attached to the Respondent’s Answer (Doc. 16).
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because the court failed to conduct extensive voir dire to determine the effect of the 

Loughner case on the jurors’ objectivity. (Ex. F). 

The COA found no reversible error and affirmed Petitioner’s conviction and 

sentence. (Ex. I). Petitioner did not file a petition for review with the Arizona Supreme 

Court. 

B. First Petition for Post-Conviction Relief

On March 15, 2011, Petitioner initiated proceedings in Pima County Superior 

Court for Rule 32 post-conviction relief (“PCR”).3 (Ex. K). Appointed counsel filed a 

notice stating that she was unable to find any colorable claims for relief to raise in a Rule 

32 petition, and requested additional time for Petitioner to file a pro se petition. (Ex. O). 

On February 14, 2013 Petitioner filed a motion to expand page limitations (Ex. R) and a 

pro se Rule 32 petition. (Ex. S). Petitioner presented three issues for review: 1) IAC at 

trial, sentencing, direct appeal, and Rule 32; 2) newly discovered evidence; and 3) 

sentencing error. (Ex. S). Petitioner specifically alleged that his trial counsel was 

ineffective for failing to impeach the State’s witnesses, failing to call witnesses for the 

defense, and failing to request a lesser included instruction on manslaughter. Id. On 

February 21, 2013 Petitioner filed a motion to supplement his newly discovered evidence 

claim. (Ex. T). On March 4, 2013 the trial court issued an order ruling that it would not 

consider Petitioner’s Rule 32 petition because it exceeded the 25-page limit, and further 

denying Petitioner’s motion to supplement his newly discovered evidence claim. (Ex. U). 

The court granted Petitioner leave to file a petition that complied with the length 

requirements by April 8, 2013.

On April 5, 20134 Petitioner filed a motion for leave to exceed the page limit (Ex. 

V) and a Rule 32 supplemental brief (Ex. W). On April 12, 2013 the trial court issued an 

 3 The trial court issued an order (Ex. L) staying Petitioner’s March 15, 2011 notice of 

PCR because Petitioner’s appeal was still pending when the notice was filed. Petitioner 

filed a second notice of PCR on June 4, 2012. (Ex. M). 4 Petitioner’s signature indicates that his motion and Rule 32 supplement brief were mailed on April 29, 2013; however, the Court assumes this is an error because the

documents are stamped as filed on April 5, 2013. This discrepancy is not material to the 

Court’s decision in this matter. 
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order denying Petitioner’s motion for leave to exceed the page limit and dismissing 

Petitioner’s June 12, 2012 notice of PCR. (Ex. X). The court noted that in its previous 

order dismissing Petitioner’s first Rule 32 petition for exceeding the page limit, the court 

clearly stated that no amendments would be permitted except by leave of the court upon a 

showing of good cause, and that Petitioner had failed to show good cause to exceed the 

page limitation. Id. 

On April 23, 2013 Petitioner filed a motion for rehearing and a new Rule 32 

petition that complied with the page limitation and asked the court to reinstate his Rule 

32 proceedings. (Exs. Y & Z). Petitioner alleged claims for: 1) IAC of trial, appellate, and 

Rule 32 counsel; 2) exclusion of African Americans on the jury; 3) denial of right to a 

public trial; 4) sentencing error; and 5) newly discovered evidence. (Ex. Z). On May 9, 

2013, the trial court summarily denied Petitioner’s motion for rehearing. (Ex. AA). The 

court noted that while Petitioner’s amended Rule 32 petition complied with the 25-page 

limit, it was filed on April 30, 2013,5 “long after” the court’s April 8, 2013 deadline, and 

Petitioner had not shown good cause for failing to file a proper amended petition in the 

allotted time. The court further noted that while Petitioner cited Coleman v. Thompson, 

501 U.S. 722, 750 (1991), in support of his claim that failure to consider the Rule 32 

petition would result in a fundamental miscarriage of justice, Coleman only applies to 

federal claims, and even if it did apply to PCR proceedings, Petitioner had failed to show 

cause and prejudice or a fundamental miscarriage of justice. 

Petitioner did not file a petition for review with the Arizona COA. 

C. Second Petition for Post-Conviction Relief

On June 4, 2013 Petitioner filed a second notice of PCR and a supporting 

memorandum. (Ex. BB). Petitioner alleged claims of IAC, newly discovered evidence, 

and abuse of discretion by the trial court. On August 9, 2013 the trial court issued a 

notice accepting the filing as a petition for PCR, denying Petitioner’s request for counsel, 

 5

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and ordering the State to respond. (Ex. CC). On November 12, 2013 the trial court issued 

an order summarily dismissing all of Petitioner’s claims, denying relief, and dismissing 

Petitioner’s second PCR proceedings. (Ex. HH). As to Petitioner’s IAC claim, the court 

specifically noted that Petitioner “failed to provide any support for his claim.” 

On December 10, 2013 Petitioner filed a petition for review with the Arizona 

COA and presented four issues for review: 1) whether Anthony St. Clair’s affidavit 

constituted newly discovered evidence; 2) whether IAC denied Petitioner the right to a 

fair trial; 3) whether the trial court abused its discretion in denying Petitioner’s motion for 

a new trial based on prosecutorial misconduct; and 4) whether the trial court abused its 

discretion when it allowed evidence of Petitioner’s prior bad acts. (Ex. II). On April 22, 

2014 the COA issued an order granting review and denying relief. (Ex. JJ). The court 

noted that the trial court correctly found that Petitioner failed to provide any support for 

his IAC claim, and further that because Petitioner did not raise the specific arguments 

below that he presented in his petition for review, the COA would not address them. 

Petitioner filed two petitions for review with the Arizona Supreme Court, which 

the court denied. (Exs. KK, LL, & MM). On March 26, 2015 the COA issued its 

mandate. (Ex. NN). Petitioner filed his PWHC in this Court on January 13, 2016. (Doc. 

1). 

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits the 

federal court’s power to grant a petition for a writ of habeas corpus on behalf of a state 

prisoner. First, the federal court may only consider petitions alleging that a person is in 

state custody “in violation of the Constitution or laws or treaties of the United States.” 28 

U.S.C. § 2254(a). Sections 2254(b) and (c) provide that the federal courts may not grant 

habeas corpus relief, with some exceptions, unless the petitioner exhausted state 

remedies. Additionally, if the petition includes a claim that was adjudicated on the merits 

in state court proceedings, federal court review is limited by § 2254(d). Finally, even if a 

constitutional error is found, a petitioner is not entitled to relief if the error was harmless. 
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Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993) (on collateral review in § 2254 

cases, court will deem an error harmless unless it had a “substantial and injurious effect 

or influence in determining the jury’s verdict”). 

A. Exhaustion

A state prisoner must exhaust his state remedies before petitioning for a writ of 

habeas corpus in federal court. 28 U.S.C. § 2254(b)(1) & (c); O’Sullivan v. Boerckel, 526 

U.S. 838, 842 (1999). To exhaust state remedies, a petitioner must afford the state courts 

the opportunity to rule upon the merits of his federal claims by fairly presenting them to 

the state’s highest court in a procedurally appropriate manner. Baldwin, 541 U.S. at 29 

(“To provide the State with the necessary opportunity, the prisoner must fairly present her 

claim in each appropriate state court . . . thereby alerting the court to the federal nature of 

the claim.”). In Arizona, unless a prisoner has been sentenced to death, the highest court 

requirement is satisfied if the petitioner has presented his federal claim to the Arizona 

COA, either through the direct appeal process or post-conviction proceedings. Crowell v. 

Knowles, 483 F. Supp. 2d 925, 931–33 (D. Ariz. 2007).

A claim is fairly presented if the petitioner describes both the operative facts and 

the federal legal theory upon which the claim is based. Kelly v. Small, 315 F.3d 1063, 

1066 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 

(9th Cir. 2007). The petitioner must have “characterized the claims he raised in state 

proceedings specifically as federal claims.” Lyons v. Crawford, 232 F.3d 666, 670 (9th 

Cir. 2000), opinion amended and superseded, 247 F.3d 904 (9th Cir. 2001). “If a 

petitioner fails to alert the state court to the fact that he is raising a federal constitutional 

claim, his federal claim is unexhausted regardless of its similarity to the issues raised in 

state court.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). “Moreover, general 

appeals to broad constitutional principles, such as due process, equal protection, and the 

right to a fair trial, are insufficient to establish exhaustion.” Hivala v. Wood, 195 F.3d 

1098, 1106 (9th Cir. 1999). 

However, “[a] habeas petitioner who [fails to properly exhaust] his federal claims 
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in state court meets the technical requirements for exhaustion” if there are no state 

remedies still available to the petitioner. Coleman v. Thompson, 501 U.S. 722, 732 

(1991). “This is often referred to as ‘technical’ exhaustion because although the claim

was not actually exhausted in state court, the petitioner no longer has an available state 

remedy.” Thomas v. Schriro, 2009 WL 775417, *4 (D. Ariz. March 23, 2009). “If no 

state remedies are currently available, a claim is technically exhausted,” but, as discussed 

below, the claim is procedurally defaulted and is only subject to federal habeas review in 

a narrow set of circumstances. Garcia v. Ryan, 2013 WL 4714370, *8 (D. Ariz. Aug. 29, 

2013). 

B. Procedural Default

If a petitioner fails to fairly present his claim to the state courts in a procedurally 

appropriate manner, the claim is procedurally defaulted and generally barred from federal 

habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802–05 (1991). There are two 

categories of procedural default. First, a claim may be procedurally defaulted in federal 

court if it was actually raised in state court but found by that court to be defaulted on state 

procedural grounds. Coleman, 501 U.S. at 729–30. Second, the claim may be 

procedurally defaulted if the petitioner failed to present the claim in a necessary state 

court 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; O’Sullivan, 526 U.S. at 848 (when time for filing state court 

petition has expired, petitioner’s failure to timely present claims to state court results in a 

procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 

2007) (failure to exhaust claims in state court resulted in procedural default of claims for 

federal habeas purposes when state’s rules for filing petition for post-conviction relief 

barred petitioner from returning to state court to exhaust his claims). 

When a petitioner has procedurally defaulted his claims, federal habeas review 

occurs only in limited circumstances. “A prisoner may obtain federal review of a 

defaulted claim by showing cause for the default and prejudice from a violation of federal 
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law.” Martinez, 566 U.S. at 10. Cause requires a showing “that some objective factor 

external to the defense impeded counsel’s efforts to comply with the State’s procedural 

rule . . . [such as] a showing that the factual or legal basis for a claim was not reasonably 

available to counsel, . . . or that some interference by officials made compliance 

impracticable.” Murray v. Carrier, 477 U.S. 478, 488 (1986) (internal quotations and 

citations omitted). Prejudice requires “showing, not merely that the errors at his trial 

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

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

States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). The court need not 

examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 

456 U.S. 107, 134 n.43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n.10 (9th Cir. 

1991). Additionally, a habeas petitioner “may also qualify for relief from his procedural 

default if he can show that the procedural default would result in a ‘fundamental 

miscarriage of justice.’” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008) (quoting

Schlup v. Delo, 513 U.S. 298, 321 (1995)). This exception to the procedural default rule 

is limited to habeas petitioners who can establish that “a constitutional violation has 

probably resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 

327; see also Murray, 477 U.S. at 496; Cook, 538 F.3d at 1028.

III. ANALYSIS

Petitioner alleges one ground for relief, stating that his Sixth Amendment right to 

the effective assistance of counsel was violated when trial counsel: a) failed to prepare a 

defense; b) objected to a lesser included instruction on any theory of manslaughter, 

whether based on sudden quarrel, heat of passion, or recklessness; c) failed to advise 

Petitioner on how to prepare for cross examination and impeachment; and d) failed to call 

witnesses for the defense. For the reasons explained below, the undersigned finds that 

Petitioner’s claims are unexhausted and procedurally defaulted and not properly before 

this Court for review. The undersigned further finds that Martinez does not apply to 

excuse the default of Petitioner’s claims. 
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In Arizona, exhaustion is satisfied if a petitioner presents the federal basis of his 

claims to the COA through either the direct appeal process or PCR proceedings. “[A]

state prisoner does not ‘fairly present’ a claim to a state court if that court must read 

beyond a petition or a brief (or a similar document) that does not alert it to the presence 

of a federal claim in order to find material, such as a lower court opinion in the case, that 

does so.” Baldwin, 541 U.S. at 32; see also Castillo, 399 F.3d at 1000 (to exhaust a claim, 

the petitioner must have presented his federal constitutional issue before the appropriate 

state court “within the four corners of his appellate briefing.”). 

Here, sub claims a and c were never presented to the state courts in any of 

Petitioner’s direct appeal or Rule 32 proceedings. Accordingly, the Court finds that these 

claims are unexhausted. While sub claims b and d were presented in several forms to the 

state courts, they were not presented in a procedurally appropriate manner and are thus 

also unexhausted. See O’Sullivan, 526 U.S. at 845 (to properly exhaust a habeas claim, a 

petitioner must “invoke[e] one complete round of the State’s established appellate review 

process”); Baldwin, 541 U.S. at 29. For example, in his first pro se Rule 32 Petition (Ex. 

S), Petitioner raised IAC claims based on counsel objecting to the manslaughter 

instruction and failing to call witnesses for the defense. However, this petition was never 

considered by the trial court because it exceeded the 25-page limit. Petitioner again 

included these claims in his amended Rule 32 petition that did comply with the page 

limitation (Ex. Z), but the court denied the petition as untimely. Thus, neither of 

Petitioner’s Rule 32 petitions in his first round of PCR proceedings were actually 

considered by the trial court, nor did Petitioner file a petition for review with the COA. 

In the memorandum Petitioner submitted with his second notice of PCR, Petitioner 

presented the issue of “whether ineffective counsel failed at every critical stage denying 

defendant Tiaron Germaine Ross constitutional guaranteed rights under the law—

cumulative errors.” (Ex. BB at 6). However, Petitioner did not elaborate on what these 

IAC claims were and instead focused his memorandum on the argument that Anthony St. 

Clair’s affidavit constituted newly discovered evidence. In his Reply to the State’s 
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Response, Petitioner did not even mention his IAC claims but again focused on the newly

discovered evidence claim, as well as his abuse of discretion/prosecutorial misconduct 

claim. (Ex. GG). Thus, Petitioner did not fairly present sub claims b and d to the trial 

court in his second round of PCR proceedings. In his petition for review to the Arizona 

COA, Petitioner alleged that trial counsel was ineffective for failing to voir dire an 

impartial jury, failing to impeach three State witnesses, failing to introduce the character 

and reputation of the victim, failing to call witnesses for the defense, and failing to 

request a lesser included instruction on manslaughter. (Ex. II at 12–13). In its order 

granting review and denying relief, the COA found that the trial court properly dismissed 

Petitioner’s IAC claim because he failed to provide any support for it. (Ex. JJ). The COA 

further noted that it would not address Petitioner’s IAC claims because Petitioner failed 

to present those specific arguments to the trial court, and the COA does not address 

arguments raised for the first time on appeal. Id. Thus, the state court applied an express 

procedural bar and this Court is precluded from addressing the merits of Petitioner’s IAC 

claims on habeas review. 

Claims not previously presented to the state courts on either direct appeal or 

collateral review are generally barred from federal review because any attempt to return 

to state court to present them would be futile unless the claims fit into a narrow range of 

exceptions. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on 

direct appeal or in prior post-conviction relief petitions), 32.4(a) (time bar), 32.9(c) 

(petition for review must be filed within thirty days of trial court’s decision). Because 

these rules have been found to be consistently and regularly followed, and because they 

are independent of federal law, either their specific application to a claim by an Arizona 

court, or their operation to preclude a return to state court to exhaust a claim, will 

procedurally bar subsequent review of the merits of such a claim by a federal habeas 

court. Stewart v. Smith, 536 U.S. 856, 860 (2002); Ortiz v. Stewart, 149 F.3d 923, 931–32 

(9th Cir. 1998) (Rule 32 is strictly followed); State v. Mata, 916 P.2d 1035, 1050–52 

(Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings). 
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Arizona Rules of Criminal Procedure regarding timeliness and preclusion prevent 

Petitioner from now exhausting his claims in state court. Accordingly, the undersigned 

finds that Petitioner’s claims in Ground One are technically exhausted and procedurally 

defaulted and thus not properly before this Court for review. See Crowell, 483 F. Supp.

2d at 931–33; Coleman, 501 U.S. at 732, 735 n.1; Garcia, 2013 WL 4714370 at * 8. 

A federal court may not consider the merits of a procedurally defaulted claim 

unless the petitioner can demonstrate cause for his noncompliance and actual prejudice, 

or establish that a miscarriage of justice would result from the lack of review. See Schlup 

v. Delo, 513 U.S. 298, 321 (1995). Petitioner has failed to show cause for, or prejudice 

arising from, his procedural default of the claim, and the Court can glean none from the 

record before it. See Martinez, 566 U.S. at 10; Murray, 477 U.S. at 488. While Petitioner 

alleges that Martinez v. Ryan applies to excuse the procedural default of his claims, that 

case is inapplicable to Petitioner’s case. In Martinez, the Supreme Court held that

“[i]nadequate assistance of counsel at initial-review collateral proceedings may establish 

cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” 566 

U.S. at 9. In Martinez, appointed counsel filed a notice stating there were no colorable 

claims to raise on PCR, and Martinez never filed a pro se petition. 

Here, Petitioner argues that Rule 32 counsel was ineffective for failing to raise his 

meritorious IAC claims, and that counsel’s ineffectiveness excuses the procedural default 

of his claims. However, as explained above, Petitioner did raise several IAC claims in 

both his original and his amended Rule 32 petitions during his first round of PCR 

proceedings. Neither petition was considered by the trial court because in the first 

instance the petition exceeded the page limit, and in the second instance the amended 

petition was untimely filed. Thus, Petitioner had two opportunities to properly present his 

IAC claims to the trial court during his first round of PCR proceedings, but in both 

instances the court declined to consider his improperly filed petitions. Furthermore, 

Petitioner never filed a petition for review with the COA after his first PCR proceedings 

were dismissed, and exhaustion requires that Petitioner present his claims to the state 
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courts in a procedurally appropriate manner. In addition, Petitioner failed to properly 

exhaust his IAC claims during his second round of PCR proceedings by only making his 

specific IAC arguments in his petition for review to the COA, but failing to make any 

specific arguments in his Rule 32 petition to the trial court. Petitioner did not have 

appointed counsel during his second PCR proceedings and thus cannot assert cause for 

his procedural default based on an alleged error of counsel. Further, the Supreme Court 

specifically held that Martinez “does not concern attorney errors in . . . appeals from 

initial-review collateral proceedings, [or] second or successive collateral proceedings[.]” 

566 U.S. at 16. 

In sum, Petitioner attempts to blame Rule 32 counsel for the procedural default of 

his claims, but it is Petitioner himself who caused the default when he did in fact raise the 

IAC claims in his pro se petitions during his first PCR proceedings, but did so improperly 

by first filing a Rule 32 petition that exceeded the page limitation, and then failing to 

timely file a compliant petition by the deadline set by the trial court. Petitioner then had a 

second chance to properly exhaust his IAC claims during his second round of PCR 

proceedings, but again caused the default when he failed to present any specific IAC 

arguments to the trial court. Martinez only provides cause for defaults that are caused by 

PCR counsel, and in this case Petitioner bears the responsibility for failing to raise his 

IAC claims in a timely, properly filed petition, and then properly exhausting those claims 

to the COA. See Castillo v. Ryan, 2013 WL 3282547 (D. Ariz. June 28, 2013) (default 

not excused under Martinez where petitioner fired his Rule 32 counsel, filed a pro se 

petition late, and claims were denied as untimely), aff’d, 603 F. App’x 598 (9th Cir. 

2015); Cook v. Smith, 2013 WL 2458531, *6 (D. Idaho June 6, 2013) (petitioner’s claims 

were defaulted because he failed to file a petition for review with the state supreme court, 

not because of ineffective assistance of PCR counsel—“the cause of the default of 

Petitioner’s claims is Petitioner’s decision to forgo filing a petition for discretionary 

review”); see also Williams v. Taylor, 529 U.S. 420, 437 (2000) (“Federal courts sitting 

in habeas are not an alternative forum for trying facts and issues which a prisoner made 
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insufficient effort to pursue in state proceedings.”).6

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 Further, for Petitioner to rely upon Martinez, Petitioner must “demonstrate[e] two 

things: (1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984),’ and (2) ‘the underlying ineffective- assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.’” Cook v. Ryan, 688 F.3d 598, 607 (9th 

Cir. 2012) (quoting Martinez, 132 S. Ct. at 1318); see also Sexton v. Cozner, 679 F.3d 

1150, 1157 (9th Cir. 2012) (“In order to show ineffectiveness of PCR counsel, [a 

petitioner] must show that PCR counsel’s failure to raise the claim that trial counsel was 

ineffective was an error ‘so serious that counsel was not functioning as the “counsel” 

guaranteed the defendant by the Sixth Amendment,’ and caused [the petitioner] prejudice.” (quoting Strickland, 466 U.S. at 687)). “Counsel is not necessarily ineffective for failing to raise even a nonfrivolous claim, Knowles v. Mirzayance, 556 U.S. 111, 127, 

129 S. Ct. 1411, 173 L.Ed.2d 251 (2009), so clearly we cannot hold counsel ineffective 

for failing to raise a claim that is meritless. Accordingly, a PCR counsel would not be 

ineffective for failure to raise an ineffective assistance of counsel claim with respect to 

trial counsel who was not constitutionally ineffective.” Sexton, 679 F.3d at 1157.

The undersigned finds that even if Martinez did apply here, Petitioner has not 

shown cause to excuse the procedural default of his IAC claims because Rule 32 counsel 

could have evaluated the merits of the claims and made a tactical decision not to pursue them. See Gustave v. U.S., 627 F.2d 901, 904 (1980) (“Mere criticism of a tactic or 

strategy is not in itself sufficient to support a charge of inadequate representation.”); Strickland, 466 U.S. at 689, 690 (acts or omissions that “might be considered sound trial strategy” do not constitute ineffective assistance of counsel, and “[s]trategic choices 

made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable”). Specifically as to Petitioner’s charge that trial counsel was ineffective for objecting to a lesser included instruction on manslaughter, the record reflects that when 

counsel made his Rule 20 motion, he argued that this was a clear case of self-defense and 

there was no evidence of premeditation supporting first degree murder. (Ex. PP at 58). The court granted the motion as to premeditated murder. Id. at 73. At the close of trial, 

the court discussed proposed jury instructions with counsel. Petitioner’s counsel objected 

to an instruction on any theory of manslaughter, while counsel for the State felt an instruction on sudden quarrel should be given because there was an issue about whether 

the jury would believe Petitioner in full, in part, or not at all. Id. at 146. The court ruled 

that:

Based on the state of the evidence, I’m going to decline to 

instruct the jury on manslaughter, sudden quarrel or heat of 

passion finding that there’s insufficient evidence to support 

the adequate provocation.

I will decline to instruct the jury on reckless second degree 

murder or reckless manslaughter finding that the evidence 

does not support reckless conduct on the part of the 

defendant, in particular that the victim was struck by six out 

of the seven shots fired. 

Id. at 149. Thus, while Petitioner argues counsel was ineffective for objecting to a manslaughter instruction, Petitioner cannot show prejudice under Strickland because the 

trial court found that the evidence did not support an instruction on any theory of manslaughter. See Strickland, 466 U.S. at 684 (a petitioner must show that his counsel’s performance was both unreasonably deficient and that the defense was actually 

prejudiced as a result of counsel’s errors). 
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Accordingly, the undersigned finds that Ground One is technically exhausted and 

procedurally defaulted, and that Petitioner has failed to show cause and prejudice for the 

default. Habeas relief on the merits of this claim should therefore be denied. 

IV. RECOMMENDATION 

In conclusion, the Magistrate Judge RECOMMENDS that the District Court 

DENY Petitioner Tiaron Germaine Ross’s Petition for Writ of Habeas Corpus. (Doc. 1). 

Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections 

within fourteen days after being served with a copy of this Report and Recommendation. 

A party may respond to another party’s objections within fourteen days after being served 

with a copy thereof. Fed. R. Civ. P. 72(b). No reply to any response shall be filed. See id. 

If objections are not timely filed, then the parties’ rights to de novo review by the District 

Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 

(9th Cir. 2003) (en banc). 

Dated this 2nd day of July, 2018.