Date v. Schriro (619 F. Supp. 2d 736, 2008)

United States District Court for the District of Arizona 2008-11-26

Judiciary and Judicial Procedure

Citations

Full opinion text

ORDER

MARY H. MURGUIA, District Judge.

Petitioner Tracy Dale Date (“Petitioner”), pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 20, 2007; the Petition raises 24 claims for relief. (Dkt. # 1). The Court referred the matter to United States Magistrate Judge Lawrence O. Anderson, who issued a 68-page Report and Recommendation on July 22, 2008, recommending that the Court deny all 24 claims of Petitioner’s Petition for Writ of Habeas Corpus. (Dkt. # 19). Petitioner filed a written objection to the Report and Recommendation on September 19, 2008. (Dkt. # 22).

I. STANDARD OF REVIEW

A district court must review de novo the legal analysis in a Magistrate Judge’s Report and Recommendation. See 28 U.S.C. § 636(b)(1)(C). In addition, a district court must review de novo the factual analysis in the Report and Recommendation for those facts to which objections are filed. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”). “Failure to object to a magistrate judge’s recommendation waives all objections to the judge’s findings of fact.” Jones v. Wood, 207 F.3d 557, 562 n. 2 (9th Cir.2000).

II. BACKGROUND

Petitioner is currently serving a sentence of life imprisonment with the possibility of parole after serving 25 calendar years for conspiracy to commit first degree murder, A.R.S. §§ 13-1003, 1105. (Dkt. # 19, pp. 9-12). After direct appeal and post-conviction review, Petitioner filed the instant Petition for Writ of Habeas Corpus, raising 24 claims for relief, (id., p. 15). After reviewing the Petition, Respondents’ Answer, and Petitioner’s Traverse, Magistrate Judge Anderson issued a detailed Report and Recommendation, recommending that the Court deny the Petition, (id., p. 68). Petitioner subsequently objected to the Report and Recommendation on all 24 claims for relief in his Petition. (Dkt. #22).

In his objection, Petitioner simply restates most of his claims for relief and then states that he objects to the Magistrate Judge’s denial of his claims and relies on his Traverse to the State’s Answer to his Petition for Writ of Habeas Corpus. (id.). However, Petitioner provides substantive objections with respect to two of his claims for relief: (1) that his conviction violates the Fourteenth Amendment because there was insufficient evidence to prove that he and his co-conspirators intended to cause the death of another person (Dkt. #22, pp. 2-7), and (2) that his trial counsel was ineffective in violation of the Sixth Amendment because he advised Petitioner that Petitioner could not be found guilty of conspiracy to commit first degree murder based on conditional intent (id., pp. 12-17).

III. DISCUSSION

Petitioner makes a number of objections to Magistrate Judge Anderson’s Report and Recommendation without giving any explanation as to why he believes that the Magistrate Judge’s legal or factual analysis is incorrect. Specifically, Petitioner gives no explanation for his objections to Grounds II through X and Grounds XI(B) through XXIV. After a thorough and independent review of those issues as presented, the Court finds itself in agreement with Magistrate Judge Anderson’s Report and Recommendation. As such, the Court will adopt the Report and Recommendation on those claims without further discussion and deny Petitioner’s Petition for Writ of Habeas Corpus with respect to Grounds II through X and XI(B) through XXIV.

However, Petitioner substantively objects to the Magistrate Judge Anderson’s Report and Recommendation on Grounds I and XI(A) in his Petition for Writ of Habeas Corpus. As such, the Court will now turn to those claims for relief.

A. Ground I — Fourteenth Amendment

In Ground I of his Petition for Writ of Habeas Corpus, Petitioner alleges that his conviction violates the Fourteenth Amendment because there was insufficient evidence to prove that he and his co-conspirators intended to cause the death of another person. (Dkt. # 1, p. 15). In his Report and Recommendation, Magistrate Judge Anderson found that Petitioner’s Fourteenth Amendment claim is unexhausted and procedurally barred from federal habeas review, and in the alternative fails on the merits because Petitioner has not established that the state court’s resolution of his claim was contrary to or resulted in an unreasonable application of federal law. (Dkt. # 19, pp. 27, 31).

Petitioner appears to concede that his claim is unexhausted and procedurally barred from federal habeas review absent a showing of “cause and prejudice” or “fundamental miscarriage of justice.” See Dkt. # 22, p. 2 (contending that he “meets both prongs of ‘cause and prejudice’ as well as ‘fundamental miscarriage of justice’ ”). As discussed in the Report and Recommendation, Petitioner’s mere citation to the Fourteenth Amendment on direct appeal was insufficient to exhaust the instant federal claim. See, e.g., Shumway v. Payne, 223 F.3d 982, 987 (9th Cir.2000) (insufficient for prisoner to have made “a general appeal to a constitutional guarantee”). In addition, the Court agrees with the Magistrate Judge’s finding that Petitioner’s claim is procedurally barred from federal habeas review; the Court disagrees with Petitioner’s assertion that “[i]t is a fundamental miscarriage of justice to affirm a conviction for conspiracy to commit first degree murder based on something less than the required mens rea element of specific intent in this case.” (Dkt. # 22, p. 2). However the Court will first turn to the merits of Petitioner’s claim, and specifically Petitioner’s assertion that the Arizona Court of Appeals’s use of Holloway v. United States, 526 U.S. 1, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999), was “misplaced” and the Court’s holding that conditional intent is sufficient to establish the mens rea for conspiracy to commit first degree murder violates the Fourteenth Amendment. (Id., p. 7).

At the time of Petitioner’s trial, first degree murder under A.R.S. § 13-1105 was considered a “specific intent” crime, requiring the specific intent to kill another person. See Dkt. # 19, p. 28; State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542 (1995). However, Arizona courts had not yet addressed the question of whether “conditional intent” was sufficient to satisfy the mens rea requirement of a “specific intent” crime. See id. at p. 29. The Arizona Court of Appeals considered that question on appeal and relied on Holloway and People v. Vandelinder, 192 Mich.App. 447, 481 N.W.2d 787 (Mich.1992), to hold that Petitioner’s claim failed because conditional intent was in fact sufficient under Arizona law to establish the mens rea for conspiracy to commit first degree murder. See Dkt. # 19, p. 29. Petitioner argues that Court of Appeals’s conclusion is based on an improper extension of the principle espoused in Holloway and is contrary to the Arizona Supreme Court’s ruling in Evanchyk v. Stewart, 202 Ariz. 476, 47 P.3d 1114 (2002).

As the Magistrate Judge clearly stated, the appropriate standard of review applicable to Petitioner’s request for federal habeas relief is whether the state court’s adjudication of Petitioner’s federal claim “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.” 28 U.S.C. § 2254(d)(1) (emphasis added). As such, to the extent that Petitioner challenges the Arizona Court of Appeals’s application of state law, e.g., Evanchyk, his claim is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”).

However, in rejecting Petitioner’s Fourteenth Amendment claim, the Arizona Court of Appeals also cited to the U.S. Supreme Court’s decision in Holloway for the proposition that “a defendant may not negate a proscribed intent by requiring a victim to comply with a condition he has no right to impose; an intent to kill, in the alternative, is nevertheless, an intent to kill.” 526 U.S. at 9, 119 S.Ct. 966. In Holloway, the Supreme Court found that conditional intent satisfied the intent requirement in the federal car-jacking statute, 18 U.S.C. § 2119, which required the defendant to have the requisite intent to commit the crime. Thus, because Arizona’s statute governing conspiracy to commit first-degree murder also, required the defendant to have the requisite intent to commit the crime, the Arizona Court of Appeals drew an analogy between the two statutes to find that conditional intent satisfied the intent requirement under A.R.S. § 13-1005.

Despite Petitioner’s etymological foray into the uses and misuses of the word “intent,” Petitioner offers no sufficient explanation for why the Arizona Court of Appeals’s application of the principle espoused in Holloway to Arizona’s statute governing conspiracy to commit first-degree murder was contrary to or resulted in an unreasonable application of federal law. Petitioner merely states that “Holloway is a completed offense under a federal carjacking statute (18 U.S.C. § 2119) whereas the instant case is an Arizona conspiracy (a preparatory offense governed by A.R.S. § 13-1003) (A.R.S. § 13-1105).” Dkt. # 22, p. 3. However, Petitioner appears to confuse mens rea, the intent element, with acttis reus, the objective element of a crime; the issue before the Arizona Court of Appeals was whether “conditional intent” was sufficient to satisfy the mens rea requirement of a “specific intent” crime. Petitioner cites the Court to no authority to support his contention that the Arizona Court of Appeals’s citation to the Supreme Court’s statement in Holloivay resulted in an unreasonable application of federal law. As such, the Court finds that even if Petitioner’s claim was not procedurally barred, it would fail on the merits; the Court agrees with the Report and Recommendation.

i. Procedural Bar

If a federal constitutional claim can no longer be in state court due to a failure to follow the prescribed procedure for presenting such an issue, the claim is procedurally barred and the petition must be denied. See Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir.1991). As discussed above, and in the Report and Recommendation, Petitioner did not present Ground I and most of his other federal claims to the state courts in a sufficient manner, and any attempt to now return to state court to present those claims would be futile because they would be procedurally barred pursuant to Arizona law. See Dkt. # 19, pp. 22-23, 63-68. Because Petitioner has procedurally defaulted his claim for relief in Ground I, among others, he may not obtain federal habeas review of that claim absent a showing of “cause and prejudice” or a “fundamental miscarriage of justice.” See, e.g., Cook v. Schriro, 516 F.3d 802, 827-29 (9th Cir.2008).

To establish “cause,” a petitioner must establish that some objective factor external to the defense, such as interference by state officials, a showing that the factual or legal basis for a claim was not reasonably available, or constitutionally ineffective assistance of counsel, impeded his efforts to comply with the state’s procedural rules. Id. And to establish “prejudice,” Petitioner must show actual harm resulting from a constitutional violation or error. Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir.1984). However, whether a petitioner fails to establish cause, the Court need not consider whether the petitioner has shown actual prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).

Petitioner argues that “cause” is shown here because of ineffective assistance of counsel due to his appellate counsel’s failure to raise his Fourteenth Amendment claim on direct appeal. However, before an ineffective assistance of counsel claim can be considered “cause” to excuse the procedural default of another constitutional claim, the petitioner must have fairly presented the ineffective assistance of counsel claim in state court as an independent claim. But the record reflects that Petitioner did not properly exhaust in state court a claim that appellate counsel was ineffective for failing to properly raise his claim on direct appeal, and thus any deficiency in counsel’s representation cannot excuse Petitioner’s procedural defaults on this claim. The Court agrees with the Report and Recommendation.

Petitioner also argues that he is asserting a claim of actual innocence and has satisfied the requirement to show a “fundamental miscarriage of justice.” Dkt. # 22, p. 2. To establish a “fundamental miscarriage of justice,” Petitioner must establish that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt in light of new evidence. Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). However, despite his assertions that failure to consider his claims will result in a fundamental miscarriage of justice, Petitioner points to no newly discovered evidence such that no reasonable juror would have found him guilty beyond a reasonable doubt. Petitioner merely discusses the Arizona Court of Appeals’s alleged constitutional violation, discussed above, of finding that “conditional intent” is sufficient to convict a person of the crime of conspiracy to commit first degree murder. Further, there is no evidence that the jury convicted Petitioner of conspiracy to commit first degree murder based solely on conditional intent. See Dkt. # 19, p. 63. As such, Petitioner has not established a fundamental miscarriage of justice and shown that a constitutional violation has occurred and resulted in the conviction of one who is actually innocent. The Court agrees with the Report and Recommendation.

B. Ground XI(A) — Sixth Amendment

This claim is properly before the Court on federal habeas corpus relief. See Dkt. # 19, p. 57. In Ground XI(A) of his Petition, Petitioner alleges that his trial counsel was ineffective in violation of the Sixth Amendment because counsel advised Petitioner that he could not be found guilty of conspiracy to commit first degree murder based on conditional intent. (Dkt. # 19, p. 57). Petitioner alleges that based on counsel’s erroneous advice, he rejected the State’s plea offer, and had counsel correctly interpreted the law, Petitioner “could have made a knowing, voluntary and intelligent decision whether or not to proceed to trial and avoid a life sentence.” (Dkt. # 1, p. 15).

As Magistrate Judge Anderson detailed in his Report and Recommendation, to establish ineffective assistance of counsel, Petitioner must establish that: (1) counsel’s performance fell below objective standards of reasonableness and fell “outside the wide range of professionally competent assistance,” and (2) that counsel’s performance prejudiced Petitioner by creating “a reasonable probability that absent the errors the fact finder would have had a reasonable doubt respecting guilt.” Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.”).

To establish prejudice in the context of a plea offer, Petitioner must demonstrate that “but for counsel’s error, he would have pleaded guilty and would not have insisted on going to trial.” Turner v. Calderon, 281 F.3d 851, 879 (9th Cir.2002) (citation omitted). Although Petitioner asserted in his Petition only that “[h]ad counsel correctly interpreted the law, [he] could have made a knowing, voluntary and intelligent decision whether or not to establish prejudice,” Dkt. # 1, p. 15, Petitioner now alleges in his objection to the Report and Recommendation- that he “most definitely would have signed a plea agreement for a six year sentence to avoid being sentenced to life in prison had he been properly informed by trial counsel that there was even the slightest possibility of a conviction as to Count I.” Dkt. # 22, p. 17. But Strickland requires that a petitioner establish a “reasonable probability” of prejudice, showing evidence “sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S.Ct. 2052. Here, Petitioner offers no evidence other than his own self-serving statements that but for counsel’s failure to tell him that there was some possibility that he could be found guilty of conspiracy to commit first degree murder based on conditional intent, he would have pled guilty and not insisted on going to trial.

Still, Petitioner is correct that “in cases such as this where the question turns on the motivation of the defendant — that is, what would the defendant have done if supplied with accurate information — the amount of objective evidence will quite understandably be sparse.” Lewandowski v. Makel, 949 F.2d 884, 889 (6th Cir.1991). However, in Lewandowski, the defendant had already initially entered a plea agreement, and then withdrew his plea based on his counsel’s alleged ineffective assistance. Id. at 888-89. The Sixth Circuit found that the fact that the defendant had already accepted a plea was sufficient objective evidence to support his contention that but for his counsel’s error, he would have pled guilty rather than insisted on going to trial. That is not the case here; there is no evidence other than Petitioner’s own self-serving statement that he would have accepted the plea had his counsel informed him of the possibility of conviction. In fact, as the Magistrate Judge pointed out, Petitioner, in his Petition, merely stated that had counsel informed him correctly, he could have made a knowing decision on whether or not to proceed to trial. That statement belies Petitioner’s current insistence that he “most definitely would have signed a plea agreement” but for counsel’s alleged error. As such, the Court agrees with the Report and Recommendation and finds that Petitioner has not established prejudice under Strickland v. Washington.

Moreover, it is “universally recognized” that “an attorney is not liable for an error of judgment on an unsettled proposition of law”; “giving ... legal advice that later is proven to be incorrect [ ] does not necessarily fall below the objective standard of reasonableness.” Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir.1999). At the time of Petitioner’s trial in 2001, Arizona courts had not addressed whether “conditional intent” satisfied the mens rea of a “specific intent” crime, and the States that had addressed that issue were split; Arizona law was unsettled on this issue. See Dkt. # 19, pp. 60-61. As such, counsel’s advice to Petitioner that he could not be found guilty of conspiracy to commit first degree murder based on conditional intent in Arizona at that time did not fall below an objective standard of reasonableness. See id., pp. 61-62. The Court agrees with the Report and Recommendation, see Dkt. #22, pp. 60-62, and finds the counsel’s advice to Petitioner did not fall below an objective standard of reasonableness.

Accordingly,

IT IS HEREBY ORDERED that Petitioner’s objections to Magistrate Judge Anderson’s Report and Recommendation are overruled. (Dkt. # 22).

IT IS FURTHER ORDERED that the Magistrate Judge’s Report and Recommendation is adopted in its entirety. (Dkt. #19).

IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus is DENIED. (Dkt. #1).

IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

REPORT AND RECOMMENDATION

LAWRENCE 0. ANDERSON, United States Magistrate Judge.

This matter arises on Petitioner’s Petition for Writ of Habeas Corpus by Person in State Custody Pursuant to 28 U.S.C. § 2254. (docket # 1) Respondents have filed an Answer to which Petitioner has replied, (dockets ## 13, 18, respectively)

I. Factual and Procedural Background

The following events gave rise to Petitioner’s challenged convictions and sentences.

A. Factual Background, Charges, Trial and Sentence

In May 2000, David Goldberg and Dennis Schilinski were prisoners in the Mohave County Jail. (Petitioner’s Exh. C) Robert Olsen, an inmate in the adjoining cell, befriended with Goldberg. (Respondents’ Exh. FF: Tr. 1/10/01, at 86-87, 89-91) Goldberg was a co-defendant with Eugene Cofsky and his wife Sheri Cofsky in another case. (Respondents’ Exh. GG: Tr. 1/11/06, at 139; Exh. JJ: Tr. 1/18/01, at 86; Exh. K: Tr. 1/19/01, at 67-68) The Cofskys, however, were out on bond. Olsen repeatedly overheard Goldberg discussing a plan to break out of jail. (Respondents’ Exh. FF at 91, 107) The plan involved intercepting Goldberg while he was being returned to jail following his court appearance scheduled before Judge Steven F. Conn at 11:30 a.m. on June 12, 2000 at Mojave County Superior Court in Kingman, Arizona.

According to the plan, Goldberg would be picked up in a van with sliding doors so that Goldberg, who would be chained, could “hop in.” (Id. at 103-04, 113-14,163— 64) Once inside the van, Goldberg would “cut off his chains,” “change his clothes,” and then drive to a Carl’s Jr. restaurant, where another car was “waiting,” and “switch” vehicles. (Id.) Goldberg would then drive to Lake Havasu, “hide there for a week to two weeks” at a public campground, then travel to Mexico and ultimately Australia. (Id.)

The plan included a contingency that if the guard who was escorting Goldberg attempted to block the escape, Dennis Schilinski would “kill the guard” by “shoot[ing]” him. (Id. at 93-94, 97,130) In exchange, Schilinski would receive “a large sum of money.” (Id. at 130) Goldberg also told Olsen that several others were involved in the plan, including “Gene [Cofsky], Ron [Manning], [and] Gene’s wife [Sheri Cofsky].” (Id. at 99) Goldberg told Olsen that “Gene” or “Eugene” Cofsky was his “business partner and friend.” (Id. at 99-100) Goldberg discussed his plan with Olsen on a “daily basis,” between “30 and 60 times.” (Id. at 94, 98-99, 107)

Olsen initially thought that Goldberg was “bragging,” but as “days went on” Olsen realized that the plan was “very serious.” (Id. at 94, 98) Concerned that the conspirators were “going to kill a guard” during the escape attempt, Olsen wrote a letter to his drug therapy counsel- or describing Goldberg’s plan. (Id. at 104-09, 120-24, 164) About a week before the planned escape attempt, Schilinski was transported to the Clark County Detention Center in Las Vegas, Nevada, where he had outstanding traffic warrants. (Respondents’ Exh. FF at 102; Exh. GG at 7-12) Goldberg told Olsen that “Gene” Cofsky had paid Schilinski’s fines and taken him to his ranch, where he would stay until the jailbreak. (Respondents’ Exh. FF at 103) Goldberg explained that they “didn’t want to lose track of [Schilinski] because he was a key figure in this.” (Id.)

Meanwhile, after Schilinski was transported to the Clark County Detention Center in Las Vegas, but before Cofsky had paid his fines to get him released, Schilinski told fellow inmate Daniel England about the planned escape attempt. (Respondents’ Exh. GG at 7-13) Specifically, Schilinski told England that he had to “go break somebody out of jail” on “Monday at 11:30 on the 12th of June,” just five days away, and to “watch the six o’clock news” that day. (Id. at 11, 13-15) Schilinski also told England that the person’s name was “Dave” Goldberg. (Id.) Schilinski explained that a van with “two” people in it was going to pull over and “grab” Goldberg as he was being transported “from the court back to the jail” in King-man. (Respondents’ Exh. GG at 16-19, 31, 33, 54-55, 69, 81-82, 91, 94) Schilinski was going to tell the guard, “don’t be a cowboy,” and if he did anything or “made a move,” he was going to “shoot him.” (Id. 17, 54) Then they planned to “switch cars,” and eventually travel to Australia. (Id. at 17-19) A person named “Eugene” (Cofsky) was responsible for the “placement of the vehicles.” (Id.) Schilinski told England that Goldberg was going to pay him $150,000 for his participation. (Id. at 18) England alerted Las Vegas Police about the planned escape attempt. (Id. at 21-26)

On June 8, 2000, the Las Vegas Police Department contacted the Mohave County Detention Center and advised officials there of the planned jailbreak, including the names of several of the known conspirators — (1) “Dave” (Goldberg); (2) “Schilinski”; (3) “Eugene,” with a last name that ended in a “ski-sounding word” (Eugene Cofsky); and (4) “Cheryl” (Sheri Cofsky). (Respondents’ Exh. GG at 90-93, 98, 134-41) Mohave County jail officials verified Goldberg’s status as an inmate at the jail and that he had an upcoming court appearance scheduled for June 12, 2000 at 11:30 a.m. at the Mohave County Courthouse. (Id.) They also verified Schilinski’s status as a former inmate and his relationship with Goldberg. (Respondents’ Exh. GG at 140-44) Officials discovered that Eugene and Sheri Cofsky were identified as codefendants in Goldberg’s case. (Id.) After obtaining the foregoing information, Mojave County Jail officials contacted the Mohave County Sheriffs Department. (Respondents’ Exh. GG at 134 — 41)

That weekend, the Mohave County Sheriffs Department, the Federal Bureau of Investigation, and the Arizona Department of Public Safety, set up surveillance at the Cofsky residence, approximately 13 miles outside of Kingman, and throughout Kingman’s city limits, particularly the Mohave County Courthouse and the Mohave County Detention Center. (Respondents’ Exh. GG at 173-79; Exh. HH: Tr. 1/12/01, at 6-7, 16, 125-30, 138-40; Exh. II: Tr. 1/17/01, at 17-24, 117-19, 234-37; Exh. JJ at 13-17, 49-59) At approximately 6:00 p.m. on June 11, 2000, officers saw Petitioner and co-defendant, Tawanee Barrett, arrive together at the Cofsky residence in a black Mercury Mountaineer. (Exh. HH at 130-35; Exh. KK at 56-58; Exh. LL: Tr. 1/23/01, at 4-7) Officers also noticed a silver-blue Dodge Caravan minivan parked at the residence. (Exh. JJ at 58)

The next morning, at approximately 9:00 a.m., Eugene and Sheri Cofsky arrived at the Cofsky residence in a red pickup truck. (Respondents’ Exh. GG at 180; Exh. HH at 149; Exh. LL at 21) At around 10:00 a.m., officers observed Petitioner, Barrett, and co-defendant Ronald Manning leave the Cofsky residence in the Mountaineer and drive to a Wal-Mart store in King-man. (Respondents’ Exh. HH at 143-49,-167-70; Exh. II at 245-48; Exh. JJ at 19-23; Exh. LL at 22-25) Petitioner, Barrett, and Manning purchased .38 caliber ammunition at Wal-Mart. (Respondents’ Exh. HH at 167-70; Exh. LL at 22-25) The three then drove to Auto Zone and bought a pair of 18-inch bolt cutters. (Id.) They then returned to the Cofsky residence. (Id.)

At approximately 11:00 a.m., officers observed all three vehicles — the pickup truck, the minivan, and the Mountaineer— leave the Cofsky residence and drive to Kingman. (Respondents’ Exh. GG at 185-90, 194; Exh. HH at 150-53, 177) Petitioner and Barrett were driving the Mountaineer, Manning was driving the minivan, and the Cofskys were driving the pickup truck. (Respondents’ Exh. LL at 29-30, 45-46) Officers followed the vehicles into Kingman, and watched them drive to an old warehouse parking lot. (Respondents’ Exh. HH at 154-55; Exh. LL at 30) At the warehouse parking lot, Petitioner and Manning removed the minivan’s back seat and left it behind the building. (Respondents’ Exh. GG at 195; Exh. LL at 30) Petitioner, Barrett, and Manning then drove to a parking lot at Arnold Plaza where Barrett backed the Mountaineer into a parking space and parked. (Respondents’ Exh. GG at 161-63; Exh. LL at 30-31) Barrett stayed in the Mountaineer. Petitioner and Manning left in the minivan and headed towards the courthouse. (Respondents’ Exh. II at 118-19, 125-26; Exh. JJ at 59-64;Exh. LL at 30-31) Meanwhile, the Cofskys drove to the courthouse and parked on the street in front of the courthouse. (Respondents’ Exh. HH at 30) Around this same time, officers observed Schilinski arrive in a white Pontiac Trans Am and park in a parking lot located between the courthouse and the jail. (Respondents’ Exh. II at 25-31, 238-41; Exh. JJ at 61-62) Schilinski exited the vehicle, and began “looking all about, up and down the street in all different directions” in a “paranoid fashion.” (Id.) Schilinski then walked around the courthouse, got back into the Trans Am, and drove away. (Respondents’ Exh. II at 240) Schilinski returned “[sjeveral minutes later,” parked in the same parking lot, and went inside the jail’s administration office. (Id. at 240-41) Schilinski then returned to his vehicle and left. (Id.) Shortly thereafter, officers saw Schilinski return to the courthouse, still “very, very nervous, looking around,” and “scanning the area.” (Respondents’ Exh. II at 120-24; Exh. JJ at 61-62) Schilinski entered the courthouse, “rushed through” the security checkpoint, and walked towards the elevators. (Respondents’ Exh. HH at 18-25) An undercover officer followed Schilinski and got on the elevator with him. (Id. at 19) Schilinski “blurted out ... they don’t like it when you’re late,” and stated that he was expected in court. (Id.) The officer asked Schilinski which courtroom he was looking for, and Schilinski told him, “Judge Conn’s courtroom.” (Id. at 19-21) Schilinski then asked the officer if he was a “cop.” (Respondents’ Exh. HH at 20) The officer identified himself as a police officer and asked Schilinski his name. (Id.) Schilinski replied, “Dave Hausen.” (Id.) Once at Judge Conn’s courtroom, Schilinski approached the doors, “leafed through the court calendar,” and then left. (Id. at 21-22) The undercover officer then looked at the court calendar, and noticed that Goldberg was scheduled to appear before Judge Conn at 11:30 a.m. (Id. at 22-23) Schilinski’s name was not on the calendar. (Id. at 22) After Schilinski left the courthouse, the undercover officer observed the Cofskys enter the courthouse and proceed to Judge Conn’s courtroom. (Id. at 25-29, 74-75) Several minutes later, Eugene Cofsky left the courtroom, made a brief phone call on a nearby pay phone, and then reentered the courtroom. (Respondents’ Exh. HH at 27-29) Both Eugene and Sheri Cofsky then left the courtroom, and walked out of the courthouse, where they were immediately arrested. (Id.) Police discovered $10,700 in Eugene Cofsky’s pants pocket. (Id. at 31) Police also found a day planner in Sheri Cofsky’s purse that contained Schilinski’s name, social security number, and date of birth, Manning’s name and phone number, and the name, “Tracy” (Petitioner), with a corresponding telephone number. (Id. at 31-35) Officers searched the Cofsky’s pickup truck parked outside the courthouse, and found a set of California license plates, which were not registered to the Cofskys. (Respondents’ Exh. II at 181-83, 190) Police subsequently found Schilinski and arrested him. (Respondents’ Exh. JJ at 68-69) Meanwhile, officers outside the courthouse observed the silver-blue minivan drive “right in front” of the courthouse. (Respondents’ Exh. GG at 160-61, 193-94; Exh. II at 125-29; Exh. JJ at 62-65) Believing the conspirators “were going to be carrying out their plan,” officers stopped the minivan, and ordered Petitioner and Manning to exit the vehicle. (Respondents’ Exh. GG at 160-61,167; Exh. II at 125-32, 242-43; Exh. JJ at 62-69) Manning was in the driver’s seat, and Petitioner was crouched in the “back cargo area” of the van. (Respondents’ Exh. II at 129-32, 244; Exh. JJ at 66) Petitioner was wearing “reflective sunglasses,” had seven .38 caliber rounds of ammunition in his pocket, and was holding six more rounds in his hand. (Respondents’ Exh. II at 41-42, 131; Exh. JJ at 66) Officers discovered two handguns in the van, one loaded with two .38 caliber rounds of ammunition, and a pair of worn surgical gloves. (Respondents’ Exh. II at 132-35, 172-81; Exh. JJ at 67) Police arrested Petitioner and Manning and took them into custody. (Respondents’ Exh. II at 133, 244; Exh. JJ at 11) Officers then stopped the Mountaineer that was still parked at Arnold Plaza, and arrested Barrett. (Respondents’ Exh. GG at 161-67; Exh. HH at 157) Inside the Mountaineer, officers discovered: (1) two pairs of bolt cutters; (2) five .38 caliber rounds of ammunition; (3) a pair of plastic gloves similar to the pair found in the minivan; (4) a bag containing “extra large” men’s clothing and a can of shaving cream; (5) cell phones; (6) two license plates; and (7) a court document bearing Eugene Cofsky’s name. (Respondents’ Exh. II at 143-162, 223; Exh. JJ at 70-73, 87) The Nevada license plate on the back of the Mountaineer was covered with a California license plate that was not registered to any of the conspirators. (Respondents’ Exh. II at 142,144-45, 188-191) Officers also searched the Cofsky residence and found: (1) $117,500 in cash; (2) a document bearing Eugene Cofsky’s name which included the notation, “left Fourth, end, park van, white Grand Am”; (3) .38 caliber shell casings; and (4) a receipt from Wal-Mart for .38 caliber ammunition purchased on June 12, 2000 at 10:20 a.m. (Respondents’ Exh. GG at 196-98; Exh. HH at 37-41, 161-70) A telephone calling card taken from Schilinski after his arrest indicated that he called the Cofsky residence at 8:28 a.m. on June 12, 2000. (Respondents’ Exh. HH at 166)

Following his arrest, Manning waived his Miranda rights and agreed to be interviewed by police. (Respondents’ Exh. II at 33-38) Initially, Manning denied knowledge of a plan to break Goldberg out of jail, but eventually admitted that he had “heard discussion about a plan to break Goldberg out of jail,” involving a person named “Dennis” (Schilinski). (Id.) Manning admitted removing the minivan’s back seat, but claimed that he did so because he was picking up “building supplies.” (Id.)

Petitioner also waived his Miranda rights and agreed to talk with police. (Respondents’ Exh. II at 40-47; Exh. JJ at 30-33) Petitioner told police that he had driven to Kingman with his girlfriend, Barrett, from Utah that weekend to meet Manning, whom he had known for a “couple of years.” (Respondents’ Exh. II at 40-47; Exh. JJ at 30-33) Petitioner admitted that: (1) he had been at the Cofsky’s residence earlier that morning; (2) he helped Manning remove the back seat of the minivan; (3) the ammunition found in his pocket was the same ammunition loaded in the handgun that was found in the minivan; and (4) he “handled” at least one of the two handguns found in the minivan. (Respondents’ Exh. JJ at 30-33) When asked why he and Manning removed the seat from the van, Petitioner became “upset and agitated” and “no longer wanted to speak after that.” (Id.) Petitioner denied any involvement in the conspiracy. (Id.)

Based on the foregoing events, on June 22, 2000, the State of Arizona filed an indictment in Mojave County Superior Court, charging Petitioner and each of his five codefendants (Schilinski, Eugene and Sheri Cofsky, Manning, and Barrett) with one count of conspiracy to commit first degree murder, a class 1 felony (Count 1), and one count of conspiracy to commit first degree escape, a class 4 felony (Count 2). Petitioner was also charged with one count of theft of a gun, a class 6 felony (Count IV). (Respondents’ Exh. A)

Petitioner and codefendants Eugene Cofsky, Sheri Cofsky, and Manning were tried together before the Honorable Steven F. Conn. (Respondents’ Exh. B: Minute Entry, dated 1/9/01) On the first day of trial, Petitioner filed a pro se motion for change of judge pursuant to Ariz. R.Crim.P. 10.1 claiming that “Judge Steven Conn has been mentioned by name alleging some unwilling participation.” (Petitioner’s Exh. P) The court denied the motion as untimely and noted that the motion was “so vague as to defy being able to be addressed in any way.” (Petitioner’s Exh. Q)

During trial, Petitioner testified that he and Barrett had traveled to the Cofsky residence to do construction work with Manning. (Respondents’ Exh. LL at 3-7, 47) Petitioner stated that he was going to help with a septic system and mentioned that the Cofskys were digging a pool. (Respondents’ Exh. LL at 48) Petitioner testified that around 3:00 a.m. on June 12, 2000, he and Barrett drove to Wal-Mart to steal tools by hiding them in suitcases. (Respondents’ Exh. LL at 13-17) He testified that he placed the suitcases containing tools by an emergency exit but he abandoned the tools because Barrett did not want to be involved. (Respondents’ Exh. LL at 16-18) He further testified that he covered the Nevada license plate on his Mountaineer with a California plate. (Respondents’ Exh. LL at 16-18, 36) Petitioner and Barrett returned to the Cofsky’s ranch around 7:00 a.m. (Respondents’ Exh. LL at 18-23) At around 10:00 or 11:00 a.m., Petitioner, Manning and Barrett went back to Wal-Mart to retrieve the tools. (Respondents’ Exh. LL at 22) Petitioner testified that they split up once they arrived at Wal-Mart and that Manning purchased ammunition. (Respondents’ Exh. LL at 23, 35) Petitioner testified that he did not retrieve the previously abandoned tools. (Respondents’ Exh. LL at 23) Petitioner testified that they proceeded to Auto Zone and purchased bolt cutters needed to make a fence and to “wire all the rebar” for the pool that was being installed. (Respondents’ Exh. LL at 24-25, 35) Thereafter, they returned to the Cofsky’s residence. (Respondents’ Exh. LL at 23-25)

Petitioner stated that he subsequently realized he was not going to get paid for the work he had done, so he stole two revolvers from the residence and hid them in the van. (Respondents’ Exh. LL at 10, 19-21, 26-28) He denied any knowledge of the planned escape. Petitioner acknowledged his post-arrest statement to police that he had helped remove the van’s rear seat but explained that he and Manning needed space to pick up construction materials. (Respondents’ Exh. LL at 25-28) He also explained that he was in the area of the courthouse because he and Manning were on their way to a nearby elementary school to steal bicycles to “fence.” (Id. at 11, 27-28, 30-32) He also testified that the bolt cutters would be used to steal the bikes. (Id.)

On January 26, 2001, a jury found Petitioner guilty of conspiracy to commit first degree murder (Count 1) and conspiracy to commit first degree escape (Count 2), but acquitted him of theft (Count 4). (Respondents’ Exh. C: Minute Entry, dated 1/26/01) On April 6, 2001, the trial court sentenced Petitioner to life imprisonment with the possibility of parole after serving 25 calendar years on Count 1. (Respondents’ Exh. NN: Tr. 4/6/01, at 11-12) The court also imposed an aggravated term of 7 years’ imprisonment on Count 2, but noted that one of the sentences must be vacated on appellate review, pursuant to A.R. S. § 13-1003(C). (Id. at 12-14) The court explained that, although under A.R.S. § 13-1003(0, Petitioner could not properly be sentenced for both conspiracy to commit murder and conspiracy to commit escape in this case, the court would impose appropriate sentences on each count of conviction so the Court of Appeals would not have remand for resentencing if it vacated one of Petitioner’s counts of conviction. (Respondents’ Exh. NN at 12-13)

B. Direct Appeal

Petitioner, through counsel, filed a timely notice of direct appeal. (Respondents’ Exh. D) In his opening brief, Petitioner raised the following claims:

(1) The trial judge’s failure to recuse himself violated the Arizona Rules of Criminal Procedure, the Rules of Judicial Conduct, and Petitioner’s Fourteenth Amendment rights.

(2) The admission of non-conspirator England’s testimony repeating Schilinski’s account of the conspiracy violated the Arizona Rules of Evidence and Petitioner’s Fifth, Sixth and Fourteenth Amendment rights.

(3) The trial court erred in permitting Officer Coleman to refresh his memory regarding surveillance times, pursuant to Arizona Rule of Evidence 803(5), by reading from the surveillance log because no foundation existed.

(4) The admission of the Wal-Mart (ammunition) and Auto Zone (bolt cutters) receipts violated the Arizona Rules of Evidence and Petitioner’s Fourteenth Amendment rights.

(5) The admission of England’s testimony that Goldberg was a member of the Aryan Brotherhood violated Arizona Rule of Evidence 403 and Petitioner’s Fourteenth Amendment rights.

(6) Testimony that Goldberg possessed $75,000 in unexplained currency violated Arizona Rule of Evidence 403 and Petitioner’s Fourteenth Amendment rights.

(7) The evidence was insufficient to prove beyond a reasonable doubt that Petitioner had the specific intent to kill, as required for conspiracy to commit first degree murder, in violation of Petitioner’s Fourteenth Amendment rights.

(8) The indictment was multiplicitous because it charged a single conspiracy in two counts in violation of the Fifth Amendment. [Ground V in pending petition]

(9) Sentencing Petitioner on both conspiracy to commit first-degree murder and conspiracy to commit first-degree escape violated A.R.S. 13-1003(C) and the Fifth Amendment.

(10) The trial court’s denial of Petitioner’s motion to continue trial to secure trial witnesses violated his Fifth, Sixth and Fourteenth Amendment rights.

(11) The trial court’s denial of Petitioner’s motion to vacate judgment violated his right to compulsory process guaranteed by the Fifth, Sixth and Fourteenth Amendments.

(Respondents’ Exh. E)

On January 28, 2002, Petitioner filed a motion for leave to file a supplemental brief which the appellate court granted. (Respondents’ Exhs. F, G) On February 13, 2002, Petitioner filed a supplemental brief raising the following issue, his twelfth ground for relief:

(12) The trial court erred in refusing to sever Petitioner’s trial from the trial of co-defendants Manning and Eugene Cofsky because of the admission of a letter written by Manning to Cofsky which implicated Petitioner, in violation of the Sixth and Fourteenth Amendments, and Article 2, § 24 of the Arizona Constitution.

(Respondents’ Exh. H) On April 29, 2002, Petitioner requested leave to file a second supplemental brief. (Respondents’ Exh. I) On May 3, 2002, the appellate court granted this request, and allowed Petitioner until May 20, 2002 in which to file the second supplemental brief. (Respondents’ Exh. J; Petitioner’s Exh. B) On May 20, 2002, Petitioner filed a second supplemental brief raising his thirteenth issue on appeal — the trial court abused its discretion in failing to grant Petitioner’s motion to suppress because the police lacked probable cause to arrest him. (Respondents’ Exh. K; Petitioner’s Exh. 11)

On August 15, 2002, the Arizona Court of Appeals rejected all but one of Petitioner’s claims. (Respondents’ Exh. L; Petitioner’s Exh. C) The appellate court agreed with Petitioner that the indictment was multiplicitous because it charged a single conspiracy in two counts, in violation of Arizona Revised Statute § 13-1003(C). (Id. at 18-19) The court found that there was only one conspiracy and “that the most serious offense conspired to was first-degree murder.” (Respondents’ Exh. L at 19; Petitioner’s Exh. C at 19) Accordingly, the appellate court affirmed Petitioner’s conviction and sentence for conspiracy to commit first degree murder, and vacated Petitioner’s conviction and sentence for conspiracy to commit escape, the less serious of the two convictions. (Id. at 19, 22.) The court noted that “[t]his action eliminates any prejudice defendant suffered from being convicted more than once for a single conspiracy and, consequently, this is the only relief to which defendant is entitled.” (Id. at 19)

On September 16, 2002, Petitioner filed a petition for review in the Arizona Supreme Court raising issues involving sufficiency of the evidence (specific intent), the motion to suppress (probable cause to arrest), recusal of trial judge, the motion to sever (Manning letter), the multiplicitous indictment, and admission of sales receipts from Wal-Mart and Auto Zone. (Id.) On February 11, 2003, the Arizona Supreme Court denied review without comment. (Respondents’ Exh. N; Petitioner’s Exh. E)

C. Post-Conviction Review

On March 12, 2003, Petitioner filed a notice of post-conviction relief. (Respondents’ Exh. O) The court appointed counsel and in the subsequently filed petition for post-conviction relief, Petitioner raised the following claims:

A. The holding in Evanchyck [Evanchyk ] v. Stewart, [202 Ariz. 476], 47 P.3d 1114 (Ariz.2002), that conspiracy to commit first degree murder is a specific intent crime represents a significant change in the law that, if applicable to Petitioner’s case, would probably overturn his conviction.

B. Trial counsel was ineffective based on the following grounds:

1. For failing to timely request a change of judge;

2. For failing to file a pre-trial motion to dismiss the multiplicitous indictment;

3. For failing to object to the admission of co-conspirator Schilinski’s statements elicited through the testimony of witnesses Olsen and England because there was no evidence Petitioner was a member of the conspiracy;

4. For erroneously advising Petitioner that (1) his co-conspirator’s statements could not be used to establish their contingency plan to kill a guard, and (2) that conspiracy to commit first degree murder could not be found based on conditional intent;

5. For failing to conduct adequate pretrial investigation;

6. For failing to request a proper instruction under Richardson v. Marsh, 481 U.S. 200 [107 S.Ct. 1702, 95 L.Ed.2d 176] (1987), regarding the Manning letter;

7. For failing to object to certain evidence at trial; and

8. For failing to request instructions on lesser-included offenses (conspiracy to commit aggravated assault, facilitation, or solicitation), an instruction that conspiracy to commit first degree murder requires the specific intent to commit murder, and a cautionary instruction regarding the pervasive police presence around the courthouse.

C. Appellate counsel was ineffective for the following reasons:

1. For failing to present facts, authority, and argument in the appellate brief regarding the trial judge’s failure to recuse himself;

2. For omitting from the record on appeal transcripts of the hearing on co-defendant Sheri Cofsky’s motion to preclude England’s testimony regarding co-conspirator Schilinski’s statements and for failing to argue that the condition precedent for admission of those statements did not exist;

3. For failing to present facts indicative of evidence adduced at trial that the Manning letter implicated Petitioner;

4. For failing to present facts and argument regarding why the trial court abused its discretion in denying Petitioner’s motion to continue;

5. For failing to timely raise the issue of probable cause for Petitioner’s arrest;

6. For failing to present facts and argument regarding the extent to which the multiplicitous indictment prejudiced Petitioner; and

7. For failing to file a motion to reconsider in the Court of Appeals based on Evanchyck [Evanchyk ].

(Respondents’ Exh. P)

On September 29, 2004, Petitioner filed a supplemental petition for post-conviction relief, arguing that trial counsel was ineffective for failing to obtain evidence demonstrating that Petitioner was not a member of the conspiracy and for failing to submit such evidence to the trial court before it ruled on the motion in limine to preclude Schilinski’s statements. (Respondents’ Exh. Q; Petitioner’s Exh. 6) Petitioner also argued that appellate counsel was ineffective for omitting from the record on appeal a transcript of the January, 2001 hearing in which the trial court ruled on a similar motion in limine filed by co-defendant Sheri Cofsky. (Respondents’ Exh. Q at 2-3) Petitioner argued that had the transcript been prepared, it would have been “apparent” that there was no evidence that Petitioner was a member of the conspiracy. (Id.)

On January 7, 2005, the trial court denied Petitioner’s petition for post-conviction relief finding that Petitioner “failed to present any claim raising a material issue of fact or law which would entitle him to relief under Rule 32,” and that there was “no colorable claim for relief justifying the setting of an evidentiary hearing.” (Respondents’ Exh. R)

Thereafter, Petitioner filed a petition for review from the trial court’s denial of post-conviction relief in the Arizona Court of Appeals. (Respondents’ Exh. S) Petitioner again argued that Evanchyk constituted a significant change in the law which, if applied to his case, would probably have changed the outcome. (Id.) Petitioner also argued that counsel was ineffective based on his failure (1) to timely request a change of judge under Ariz. R.Crim.P. 10.1, (2) to move to dismiss the multiplicitous indictment prior to trial, (3) to object to the admission of Schilinski’s statements, (4) to accurately advise Petitioner before rejecting the State’s plea offer that he could be convicted of conspiracy to commit first degree murder based on conditional intent, (5) to interview witnesses prior to trial, (6) to request an adequate instruction under Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), (7) to request an instruction on the lesser-included offense of conspiracy to commit aggravated assault, and (8) to object to Officer McNally’s testimony that a “7” looked like a “T” in the Manning letter. (Id.) Petitioner did not raise his previously asserted claims that trial counsel was ineffective for (1) advising him prior to rejecting the State’s plea offer that his co-conspirator’s statements could not be admitted to show their plan to kill a guard if necessary, (2) failing to request instructions on the lesser-included offenses of facilitation and solicitation, an instruction that conspiracy to commit first degree murder requires a specific intent to commit murder, and a cautionary instruction regarding" the pervasive police presence around the courthouse, and (3) failing to make any other evidentiary objections at trial. (Id.)

Petitioner also asserted claims of ineffective assistance of appellate counsel based on counsel’s failure (1) to timely raise the issue that the trial court erred in denying Petitioner’s motion to suppress because police lacked probable cause to arrest him, and (2) to include in the record on appeal a transcript of the January 3, 2001 hearing on co-defendant Sheri Oofsky’s motion to preclude Schilinski’s statements. (Respondents’ Exh. S at 2-3) Petitioner did not raise any other claims of ineffective assistance of appellate counsel. (Id.)

On November 10, 2005, the Arizona Court of Appeals denied review without comment. (Respondents’ Exh. T; Petitioner’s Exh. 13) On December 10, 2005, Petitioner filed a petition for review in the Arizona Supreme Court raising the same claims he had raised in his petition for review to the Arizona Court of Appeals. (Respondents’ Exh. U) The Arizona Supreme Court denied review without comment on May 23, 2006. (Respondents’ Exh. V; Petitioner’s Exh. 14)

D. Federal Petition for Writ of Habeas Corpus

Thereafter, Petitioner timely filed the instant Petition for Writ of Habeas Corpus raising 24 claims for relief, (docket # 1) Respondents assert that all 'but two of these claims, Grounds IV and XI(A), are procedurally defaulted and barred from federal review because (1) Petitioner did not “fairly present” the federal constitutional claims “in each appropriate state court,” and/or the state courts imposed a procedural bar to avoid reaching the merits; (2) a return to state court to present those claims would be futile because the state courts would find all of these claims procedurally barred; and (3) Petitioner has' not established either “cause and prejudice” or a “fundamental miscarriage of justice” to excuse his failure to properly present these claims to the state courts, (docket # 13 at 17) Thus, Respondents assert that the Court should deny relief. Respondents further assert that the claims raised in Grounds IV and XI(A) lack merit. Petitioner disputes these assertions, (docket # 18) The Court will discuss the law regarding exhaustion, procedural bar, and the standard of review and will then apply that law to Petitioner’s claims.

II. Exhaustion and Procedural Bar

A federal court may not grant a petition for writ of habeas corpus unless the petitioner has exhausted the state remedies available to him. 28 U.S.C. § 2254(b). When seeking habeas relief, petitioner bears the burden of showing that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir.1981) (per curiam). The exhaustion inquiry focuses on the availability of state remedies at the time the petition for writ of habeas corpus is filed in federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). The prisoner “shall not be deemed to have exhausted ... if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). In other words, proper exhaustion requires the prisoner to “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan, 526 U.S. at 845,119 S.Ct. 1728. “One complete round” includes filing a “petition[] for discretionary review when that review is part of the ordinary appellate review procedure in the State.” Id. State prisoners may skip a procedure occasionally employed by a state’s courts to provide relief only if a state law or rule precludes use of. the procedure, or the “State has identified the procedure as outside the standard review process and has plainly said that it need not be sought for purposes of exhaustion.” Id. at 848, 850, 119 S.Ct. 1728.

In this case, Respondents argue that because Petitioner, who received a sentence of life imprisonment, did not present several of his federal claims to the Arizona Supreme Court, those claims are unexhausted. Petitioner, on the other hand, argues that he properly exhausted his claims by presenting them to the Arizona Court of Appeals and that he was not required to seek review in the Arizona Supreme Court, (docket # 18) As discussed below, the Court agrees with Petitioner that he was not required to present his claims to the Arizona Supreme Court to satisfy the exhaustion requirement. Although the Court concludes that the exhaustion requirement did not require Petitioner to present his federal claims to the Arizona Supreme Court, he was still required to fairly present his claims to the Arizona Court of Appeals.

A. Proper Forum

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. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (stating that “[t]o 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.”). Contrary to Respondents’ assertion, in Arizona, unless a prisoner has been sentenced to death, the “highest court” requirement is satisfied if the petitioner has presented his federal claim to the Arizona Court of Appeals either on direct appeal or in a petition for post-conviction relief. Crowell v. Knowles, 483 F.Supp.2d 925 (D.Ariz.2007) (discussing Swoopes v. Sublett, 196 F.3d 1008,1010 (9th Cir.1999)).

Relying on Swoopes v. Sublett, 196 F.3d 1008 (9th Cir.1999) and Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004), Respondents argue that to properly exhaust federal claims, a Petitioner, who received a life sentence is required to present those claims to the Arizona Supreme Court, (docket # 13) Swoopes does not support this assertion. Although less than a life sentence had been imposed in Swoopes, the Ninth Circuit broadly stated that “Arizona state prisoners need not appeal an Arizona Court of Appeals’ denial of post-conviction relief to the Arizona Supreme Court in order to exhaust their state remedies for federal habeas corpus purposes, except in capital cases or cases involving the imposition of a life sentence.” 196 F.3d at 1008. In support of this conclusion, Swoopes included undated citations to A.R.S. §§ 12-120.21(A)(1), 12-120.24, and 13-4031, and citations to Ariz. R.Crim.P. 31, State v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984), State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989), and Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Sivoopes, 196 F.3d at 1009-10. As the court noted in Croioell v. Knowles, 483 F.Supp.2d 925, 930 (D.Ariz. 2007), “none of those authorities — either at the time of Swoopes or now — support the proposition that Arizona Supreme Court review remains part of the standard review process necessary for exhaustion in cases carrying life sentences.” Id. (emphasis in original). Rather, to the extent those authorities mentioned life imprisonment, it was in reference to outdated versions of A.R.S. § 12-120.21(A)(1) and 13-4031. In 1989, years before Swoopes was decided, A.R.S. § 12-120.21(A)(1) and § 13-4031 were amended to omit the phrase, “or life imprisonment.” “The effect of this change was to give the Arizona Court of Appeals jurisdiction over criminal convictions carrying life sentences and eliminate Supreme Court’s exclusive and mandatory jurisdiction.” 483 F.Supp.2d at 928.

The erroneous statement of the law included in dictum in Swoopes was repeated in dictum in Castillo v. McFadden, 399 F.3d 993 (9th Cir.2005) and several district cases. See, Crowell, 483 F.Supp.2d at 930 and n. 4 (compiling cases). These eases, however, “present a tale of zombie precedent. A rule definitively extinguished by statutory amendment in 1989 continues to prowl, repeatedly re-animated by mistaken citation and dicta.” Id. at 931.

Accordingly, in Crowell, the court found that “[s]ince 1989, the Arizona Supreme Court has not had exclusive appellate jurisdiction over cases carrying life sentences, and petitioners who have received a life sentence have not had a right to State Supreme Court review.” Id. The court went on to hold that:

In sum, the language of Swoopes on life sentences was dictum unnecessary for the correct disposition of that case. The subsequent repetition of that dictum as dictum in other cases does not change its character. Nor do any of the dicta undercut the clarity of the pronouncement by the Arizona Supreme Court, together with the 1989 enactments of the Arizona Legislature, that discretionary review in non-capital cases is ‘unavailable’ for purposes of federal habeas exhaustion.

Id. at 933. The Crowell court found that petitioner, who had received a life sentence, had exhausted his claims by presenting them to the Arizona Court of Appeals. Id. The court further noted that support for its conclusion could be found in Sivoopes. 483 F.Supp.2d at 933. “Applying O’Sullivan, Swoopes held that ‘Arizona has declared that its complete round [of appellate review] does not include discretionary review before the Arizona Supreme Court.’ ” 483 F.Supp.2d at 933 (quoting Swoopes, 196 F.3d at 1010). Significantly, the Crowell court concluded that “there is no longer any basis for distinguishing among non-capital sentences under 28 U.S.C. § 2254(c) in light o