Full opinion text
ORDER PAUL G. ROSENBLATT, District Judge. Having reviewed de novo the thorough Report and Recommendation of Magistrate Judge Irwin in light of the petitioner’s Objections to the Report and Recommendation Dated May 12, 2009 (doc. # 76) and Respondents’ Response to Petitioner’s Objection to Report and Recommendation (doc. # 77) , the Court finds that the petitioner’s objections should be overruled as being without merit and that the Magistrate Judge correctly determined that the petitioner’s petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, should be denied. The Court concludes that the Magistrate Judge correctly determined (1) that Grounds 3, 4, and 12 of the habeas petition are procedurally defaulted inasmuch as the petitioner, by failing to fairly present them to the state courts as federal issues, did not properly exhaust them and is now procedurally barred from doing so, (2) that Ground 11 was properly found by the state courts to be procedurally barred based on independent and adequate state law grounds, and (3) that these four claims must be dismissed with prejudice because petitioner has failed to demonstrate any cause or prejudice sufficient to excuse his defaults, and has failed to show the existence of any actual innocence sufficient to establish that a fundamental miscarriage of justice would result from the Court not reaching the merits of these claims. The Court further concludes that the Magistrate Judge properly analyzed the merits of the petitioner’s exhausted claims, Grounds 1, 2, 5, 6, 7, 8, 9, 10 and 13, and correctly determined that they must be dismissed as being factually and/or legally meritless. Therefore, IT IS ORDERED that the petitioner’s Motion for Leave to File Reply to Respondents’ Response to Petitioner’s Objection to Report and Recommendation (doc. # 78) is denied. IT IS FURTHER ORDERED that the Magistrate Judge’s Report and Recommendation (doc. # 71) is accepted and adopted by the Court. IT IS FURTHER ORDERED that the petitioner’s Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 is denied and that this action is dismissed in its entirety with prejudice. The Clerk of the Court shall enter judgment accordingly. REPORT & RECOMMENDATION On Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 JAY R. IRWIN, United States Magistrate Judge. I. MATTER UNDER CONSIDERATION Petitioner, presently incarcerated in the Arizona State Prison Complex at Tucson, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on June 28, 2006(# 1), and a supplemental memorandum on August 23, 2006(# 9). On October 13, 2006, Respondents filed their Answer (# 12). Petitioner filed a Reply on October 5, 2007(# 30). Subsequently, Respondents filed a first Supplemental Answer on March 12, 2008(#34) and a Second Supplemental Answer on September 9, 2008(# 57). Petitioner has filed a first Supplemental Reply on June 3, 2008(# 45) and a Second Supplemental Reply on December 17, 2008(# 69). The Petitioner’s Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure. II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND In this proceeding, Petitioner challenges his incarceration resulting from his conviction in Maricopa County Superior Court case number 88-10837, primarily on charges of armed robbery. (Petition # 1 at 1.) That conviction is intertwined with Petitioner’s conviction in Maricopa County Superior Court case number 88-11481 on charges of sexual assault. Accordingly, the relevant procedural background for both convictions is addressed. Conversely, it is only the facts of the armed robbery case which are at issue, and so only those facts will be reviewed. A. FACTUAL BACKGROUND In disposing of Petitioner’s original direct appeal, the Arizona Court of Appeals summarized the facts underlying the armed robbery convictions as follows: Appellant’s armed robbery convictions arose out of holdups of two Phoenix retail establishments, both involving lone female employees. A witness to the second robbery provided police with a description of the truck and its license number. Police engaged in a high-speed chase for fifteen minutes before abandoning pursuit. Vehicle registration confirmed that appellant was the truck’s owner. The police undertook surveillance at the appellant’s address and followed as he and his girlfriend drove to a laundromat in the girlfriend’s car. Police officers then arrested appellant inside the laundromat on a California fugitive warrant. At the police station following appellant’s arrest, the girlfriend consented to a search of her car. Police seized a backpack which the girlfriend advised them belonged to appellant and a writing tablet lying next to the backpack. Inside the backpack, officers found a bank bag containing $682. The top page of the writing tablet contained the following: Store truck, [encircled] Get canopy for truck. Get paint job. Hair cut. Truck registration. A detective testified that he later went to the jail to have appellant fingerprinted and to advise him of additional charges that were being filed. Appellant initiated a conversation in which he told the detective that he had hidden the money from the robberies under a bush after the chase. (Exhibit D, Mem. Dec. 4/9/92 at 1-2.) B. PROCEEDINGS AT TRIAL On November 29, 1988, in Maricopa County case number 88-10837, Petitioner was indicted on three counts of armed robbery, one count of unlawful flight, and one count of kidnaping. (Exhibit B, Opening Brief at 4.) Petitioner was convicted by a jury on two of the counts of armed robbery and one count of unlawful flight from law enforcement, and prior to sentencing pled no contest to one count of sexual assault. (Exhibit D, Memorandum Decision at 1; Exhibit A, M.E. 8/9/89.) On December 20, 1988, Petitioner was charged in a separate indictment in Maricopa County case number 88-11481, the sexual assault case, with two counts of armed robbery and two counts of sexual assault. Petitioner eventually entered into a plea agreement whereby he pled guilty to one count of sexual assault. (Exhibit B, Opening Brief at 6.) The sentencing in both cases occurred on October 27, 1989. (Id.) In case number 88-10837, Petitioner was sentenced to 14 years on one armed robbery count, and a concurrent two and one-half years on the unlawful flight count. He was sentenced to a consecutive 21 year term on the other armed robbery. (Exhibit A, Sentence 10/27/89.) In case number 88-11481, Petitioner received an aggravated sentence of 21 years on the sexual assault charge, to run consecutively to his 21 year sentence for armed robbery in case number 88-10837. (Exhibit B, Opening Brief at 7.) C. PROCEEDINGS ON DIRECT APPEAL Petitioner filed a consolidated appeal in both cases. In the armed robbery case, he challenged the denial of a motion to suppress and admission of statements to police in the armed robbery ease, and the denial of a motion for directed verdict. In the sexual assault case, he challenged the voluntariness of Petitioner’s plea in the sexual assault case. (Exhibit B, Opening Brief at i; Exhibit C, Supplemental Brief at i.) The Arizona Court of Appeals affirmed the convictions and sentences on April 9,1992 (Exhibit D). Petitioner filed a Motion for Reconsideration (Reply, # 30, Exhibit D), which was summarily denied on November 4, 1992 (id.). Petitioner filed a Petition for Review by the Arizona Supreme Court, again attacking both convictions. (Exhibit E, PFR at 2-3.) That petition was summarily denied by an Order (Exhibit F) issued April 21, 1995. Petitioner did not seek certiorari review. D. PROCEEDINGS ON POST-CONVICTION RELIEF On February 16, 1996, Petitioner filed a Notice of Post-Conviction Relief (Exhibit G), and on September 20, 1996, he filed his Pro Per Petition for Post Conviction Relief (Exhibit I). By an Order (Exhibit L) dated July 15, 1997 and filed July 17, 1997, the PCR court summarily dismissed the petition. The denial was based in part on the Court’s intervening re-sentencing as a result of Petitioner’s successful motion to withdraw his plea in the sexual assault case, # 88-11481 (see Exhibit L at 1), as discussed hereinafter. Although the caption of the PCR Notice referenced both cases, the caption of the PCR petition referenced only the armed robbery case, # 88-10837, and the prayer for relief sought only a “new trial.” (Exhibit I at 59.) All further orders, petitions, etc. on this petition referenced only case number 88-10837. As discussed hereinafter, Petitioner simultaneously challenged case number 88-11481 through a successful Motion to Withdraw Plea (Exhibit H), resulting in the vacating of that conviction, and vacating of his sentence in the armed robbery case. (See Exhibit J, ME 9/27/96.) Petitioner filed a Petition for Review (Exhibit M), challenging the denial of his PCR petition. That petition was summarily denied by the Arizona Court of Appeals in an Order (Exhibit 0) filed September 10, 1998. Petitioner then filed a Petition for Review by the Arizona Supreme Court (Exhibit P), which was summarily denied by an Order (Exhibit R) filed February 19, 1999. E.MOTION TO WITHDRAW PLEA & RESENTENCING On March 12, 1996 (during the pendency of his first PCR proceeding), Petitioner filed a Motion to Withdraw Plea in the sexual assault case, # 88-11481, coupled with a motion for re-sentencing in both cases. (Exhibit H.) Petitioner argued that the plea agreement in the sexual assault case included a promise that his sentence in that case would be concurrent with any sentence imposed in a third case then pending in Pima County. Instead, the Pima County court issued a consecutive sentence. Petitioner further argued that because the sexual assault conviction had been relied upon to enhance his sentences in the armed robbery case, #88-10837, that sentence should be vacated. The trial court granted the motion to withdraw plea, finding that Petitioner’s plea was involuntary as a result of Petitioner’s reliance on representations concerning the Pima County case sentencing. Consequently, the conviction in the sexual assault case was vacated and the sentence in the intertwined armed robbery case, # 88-10837, was vacated and re-sentencing ordered. (Exhibit J, M.E. 9/27/96.) As a result, Petitioner was re-sentenced on April 4, 1997 in the armed robbery case, #88-10837, to the same terms of imprisonment originally imposed (i.e. 14 years and 2 1/2 years concurrent, and 21 years consecutive), but with the new proviso that all sentences were consecutive to the sentence in the Pima County case. (Exhibit K, Sentence 4/4/97.) Thereafter, Petitioner proceeded with his first PCR proceeding, discussed herein above, and instituted his second direct appeal, discussed hereinafter. F. SECOND DIRECT APPEAL Upon being re-sentenced (and during the continuation of his first PCR proceeding), Petitioner filed his second direct appeal challenging his conviction and sentence in the armed robbery case, # 88-10837. {See Exhibit Q, Opening Brief.) The Arizona Court of Appeals found challenges to Petitioner’s conviction precluded by failure to raise them in his first appeal. The Court rejected his remaining claims, and affirmed his sentences. (Exhibit T, Mem. Dec. 5/20/99.) Petitioner filed a Petition for Review (Exhibit V), seeking review by the Arizona Supreme Court. That petition was summarily denied by an Order (Exhibit X) issued March 3, 2000. In the interim, as discussed herein above, Petitioner’s petition for review on his first PCR petition had also been denied. {See Exhibit R, Order by Arizona Supreme Court, 2/19/99.) Petitioner did not seek certiorari review. G. SECOND PCR PROCEEDING On May 4, 1999 (during the pendency of his second direct appeal, but following termination of review on his first PCR proceeding), Petitioner filed his second PCR Petition (Exhibit S), asserting ineffective assistance of counsel at trial. Petitioner notes that no PCR Notice had been filed. (Petition # 1 at 2.) The PCR court summarily dismissed this petition as “either already addressed or not raised in his previous PCR proceedings.” (Exhibit U, M.E. 6/3/99.) Petitioner then filed a Petition for Review (Exhibit W), seeking review by the Arizona Court of Appeals. That Petition was summarily denied. (Exhibit Z, Order 4/19/00.) Petitioner then sought review by the Arizona Supreme Court (Exhibit AA, PFR), which was also summarily denied. (Exhibit BB, Order 12/1/00.) II. THIRD PCR PROCEEDING On March 22, 2000 (after denial of his second PCR petition, but during pendency of review therefrom), Petitioner commenced his third PCR proceeding by filing a Notice of Post Conviction Relief (Exhibit Y). He filed through counsel his Petition (Exhibit CC) on July 20, 2001, asserting that a significant change in the law concerning motions to sever, called for the vacating of his conviction. The PCR Court summarily rejected the petition, finding that the relied upon change applied only prospectively. (Exhibit DD, M.E. 12/14/01.) Petitioner sought review by the Arizona Court of Appeals (Exhibit EE, PFR 1/ 14/03), which was summarily denied (Exhibit FF, Order 8/20/03.) Petitioner then sought review by the Arizona Supreme Court (Exhibit GG, PFR 10/6/03), which was summarily denied by an Order (Exhibit HH), filed on February 17, 2004. I. FOURTH PCR PROCEEDING On July 19, 2004 (over five months after the Arizona Supreme Court’s ruling (Exhibit HH) in his third PCR proceeding), Petitioner commenced his fourth PCR proceeding by filing a Notice of Post-Conviction Relief (Exhibit II) seeking relief pursuant to Blakely v. Washington, 542 U.S. 961, 125 S.Ct. 21, 159 L.Ed.2d 851 (2004) as a significant change in the law. The PCR Court summarily dismissed the proceeding, finding that the petition was untimely, and that no exception for changes in the law applied because Blakely and related cases were not retroactively applicable to Petitioner. (Exhibit JJ, M.E. 7/27/04.) Petitioner sought review by the Arizona Court of Appeals, which was summarily denied (Exhibit KK, Order 7/19/05.) Petitioner then sought review by the Arizona Supreme Court, which was summarily denied by an Order (Exhibit LL) filed February 14, 2006. J. PRESENT FEDERAL HABEAS PROCEEDINGS Petition — Petitioner commenced the present proceeding by filing his Petition for Writ of Habeas Corpus (# 1) on June 28, 2006. The Petition reflects that it was mailed on June 26, 2006. (# 1 at 9.) The Petition asserts the following thirteen grounds for relief: (1) Illegal Search & Seizure — police conducted an unlawful search and seizure of Petitioner’s backpack, bank bag, and notebook, which were in the car in which Petitioner was riding at the time of his arrest; (2) Right to Silence — Petitioner was questioned by the police after he invoked his right to remain silent; (3) Insufficient Evidence of Weapon — there was insufficient evidence to convict Petitioner of armed robbery because there was insufficient evidence of a weapon; (4) Double Jeopardy — Petitioner was fined twice for the same offense; (5) IAC re Suppression — Petitioner received ineffective assistance of counsel because counsel failed to move to suppress statements made to the police; (6) IAC re Consent to Search — Petitioner received ineffective assistance of trial and appellate counsel because they failed to raise the issue of an unlawful consent search after Petitioner had invoked his right to counsel; (7) IAC re Illegal Search & Seizure— Petitioner received ineffective assistance of trial and appellate counsel because they failed to raise the issue of the unlawful search and seizure of Petitioner’s backpack, bank bag, and notebook from the car; (8) IAC re Seizure of Notepad — Petitioner received ineffective assistance of trial and appellate counsel because they failed to raise the issue of the unlawful search and seizure of Petitioner’s notepad in violation of the plain view doctrine; (9) IAC re Self-Incrimination — Petitioner received ineffective assistance of trial and appellate counsel because they failed to raise the issue of Petitioner’s privilege against self-incrimination; (10) IAC re Insufficient Evidence of Weapon — Petitioner received ineffective assistance of appellate counsel because counsel did not raise the insufficiency of the evidence of a weapon; (11) IAC re Prior Convictions — Petitioner received ineffective assistance of trial counsel because counsel failed to investigate the admissibility of prior convictions, and Petitioner did not testify because the attorney said the convictions would be used to impeach Petitioner; (12) Improper Joinder — the trial court improperly joined counts, which led the jury to believe that Petitioner had a propensity to commit bad acts; and (13) Right to Jury re Sentencing — the trial court enhanced the sentence based on facts not found by the jury. On August 23, 2006, Petitioner filed a Motion for Leave to File Memorandum of Law in Support of Petition (# 9). That motion was granted by an Order (# 13), filed October 16, 2006, which recognized that the proposed memorandum of law was included in the motion. Answer — Respondents filed their Answer (# 12) on October 13, 2006, arguing that Petitioner’s petition was untimely, and that his claims in Grounds 3, 4, 11, 12, and 13 were unexhausted and procedurally defaulted, and that Blakely is not retroactively applicable to Petitioner. Respondents do not otherwise address the merits of the Petition. Reply — Petitioner filed his Reply (# 30) on October 5, 2007, arguing that his Petition is timely because he had state post-conviction proceedings pending at all times other than the periods February 17, 2004 to July 19, 2004, and February 13, 2006 to June 26, 2006. (#30 at 4.) Petitioner argues: (1) as to the timeliness issue: that his fourth PCR proceeding was not plainly dismissed as untimely; he began preparing his habeas petition in February, 2004, but the inadequate law library precluded him from proceeding apace; he was faithfully trying to exhaust his Blakely claim, and it would be unfair to charge the time he spent doing so against him; (2) as to the equitable tolling issue, he was relying upon Ninth Circuit law, which at the time, would have continued statutory tolling based on his 4th PCR Petition, since the rejection of that petition as untimely was intertwined with consideration of the merits of his federal claim; (3) Arizona Rules of Criminal Procedure 32.2(b) and 32.4(a) are not independent and adequate state grounds for denying his Blakely claim; (4) as to Ground 3, he fairly presented this claim by asserting an identical state law claim and cited Arizona precedent analyzing and applying federal law; and any procedural default would have been caused by ineffective assistance of appellate counsel; and he is actually innocent of Count I based upon an intervening interpretation of the armed robbery statute; (5) as to Ground 4, he raise an identical state law claim on double jeopardy; (6) as to Ground 11, this claim of ineffective assistance re the prior convictions cannot be procedurally defaulted because it involved a fundamental right, ie. the right to testify in his own defense, requiring a voluntary and knowing waiver; and (7) as to Ground 12 (improper joinder), there was no procedural default because Petitioner asserted the claim under state law (Ives) which references and analyzes federal law, and the state courts violated Petitioner’s rights to equal protection by failing to apply that state law. First Supplemental Answer — On February 22, 2008, the Court noted a variety of issues arising under the original briefs, and provide an opportunity for the parties to supplement their arguments. (Order 2/22/08, # 32.) On March 12, 2008, Respondents filed a supplemental Response (# 34), arguing: (1) that Petitioner’s original sentence of October 27, 1989 controlled the finality issue with regard to any claim arising from Petitioner’s convictions, as opposed to claims arising from his re-sentencing; (2) that despite the consideration of the merits of Petitioner’s claims in his 4th PCR petition, the dismissal of that petition was on timeliness grounds, and thus it provided no statutory tolling, and that any such tolling would not apply to claims attacking Petitioner’s conviction; (3) that under the “last reasoned decision” standard, the silent denials of Petitioner’s petitions for review renders them as untimely petitions; and (4) Petitioner is not entitled to equitable tolling because: (a) it is not permitted under the AEDPA; (b) any deficiency in law libraries would not be an impediment to filing, and that the deficiencies decried by Petitioner would not have prevented him from timely filing; (c) the changes in law rent by Pace were not justification for tolling, in any event the overturning of circuit court precedent is not an “extraordinary circumstance”, Petitioner’s miscalculation, even though based on Ninth Circuit precedent, is not a basis for equitable tolling, and Petitioner couldn’t have relied on the erroneous Ninth Circuit precedent because he didn’t have access to a law library; and (d) Petitioner has not shown diligence. First Supplemental Reply — On June 3, 2008, Petitioner filed his Supplemental Reply (# 45). Petitioner argues: (1) that his resentencing marked the commencement of his limitations period; (2) that his fourth PCR filing was not dismissed as untimely because it raised a claim based on a change in the law; (3) that the appellate courts did not find his fourth PCR petition untimely; and (4) equitable tolling should apply. Second Supplemental Answer — On August 20, 2008, the Court advised the parties that a preliminary conclusion had been reached that the petition was not barred by the statute of limitations, and directed that Respondents address the merits of Grounds 1, 2, 5, 6, 7, 8, 9, and 10. (Order 8/20/08, # 51.) On September 9, 2008, Respondents filed their second Supplement to Answer (# 57), arguing that: (1) as to Ground 1, under the limitations adopted in Stone v. Powell, 428 U.S. 465, 494-495 [96 S.Ct. 3087, 49 L.Ed.2d 1067] (1976) Petitioner cannot rely upon the exclusionary rule on habeas, having been provided a full a fair hearing in the state courts; (2) as to Ground 2, the state courts properly found Petitioner’s incriminating statements did not result from any interrogation; Petitioner has not exhausted any claim in Ground 2 that the request for a consent to search was made afer invocation of the right to counsel; and any request for a consent to search is not an interrogation; (3) as to Ground 5, Petitioner has failed to show ineffective assistance because Petitioner’s incriminating statements were not the fruit of the disputed search; even if the fruit, it was too attenuated to require suppression; and Petitioner has failed to show prejudice because the strong evidence from the witness statements would have resulted in a conviction in any event; (4) as to Ground 6, Petitioner has failed to show ineffective assistance because a consent to search is not an interrogation prohibited by the Fifth Amendment; the disputed search yielded no incriminating evidence; and appellate counsel could have reasonably declined to argue the issue under the applicable “fundamental error” review standard; (5) as to Ground 7, Petitioner has failed to show ineffective assistance because Petitioner did not have standing to challenge the transportation of the third party’s vehicle to the impound lot; it was the search of the backpack in the vehicle which produced incriminating evidence; (6) as to Ground 8, Petitioner has failed to show ineffective assistance because the notepad was in plain view in the truck, and plainly incriminating; appellate counsel did argue the plain view issue, albeit unsuccessfully, and Petitioner fails to show the argument was inadequate; and Petitioner has not shown prejudice because the strong evidence from the witnesses would have resulted in conviction without the notepad; (7) as to Ground 9, Petitioner has failed to show ineffective assistance because counsel did argue at the voluntariness hearing that Petitioner invoked his right to counsel; Petitioner fails to show that he was prejudiced by appellate counsel’s citation of an overturned case, because counsel cited the controlling law and made the correct legal argument; Petitioner fails to show appellate counsel was ineffective for failing to distinguish the Edwards case because it was applicable to an assertion of a right to counsel even though it dealt with a right to silence; and Petitioner cannot show prejudice from the failure to suppress given the other evidence of Petitioner’s guilt; and (8) as to Ground 10, Petitioner cannot show appellate counsel was ineffective for failing to challenge one armed robbery charge on the basis of the absence of a gun, because counsel did argue the point, and there was evidence of use of a toy gun; and Petitioner fails to establish appellate counsel’s deficiency concerning the gun, because viewed in a light favorable to the prosecution, there was sufficient evidence on the point. Second Supplemental Reply — On December 17, 2008, Petitioner filed his Second Supplemental Reply (# 69). Petitioner argues that he was diligent, and thus he is entitled to equitable tolling. As to the merits of his claims, he argues: (1) as to Ground 1, evidence showed the evidence was not in “plain view” and theat there was an absence of probable cause to trigger the “plain view” doctrine; (2) as to Ground 2, police officers repeated initiated contact with him after he invoked his right to counsel, including obtaining consent to search, and thus violated his rights; (3) as to Ground 5, the authorities relied on to establish that there was insufficient relationship between the illegal search and his statements are distinguishable; that the truck owner could not validly waive Petitioner’s rights by consenting to the search of the truck; and Petitioner was not permitted to develop a factual basis to establish prejudice, and the return of on not-guilty verdict suggests a conviction was not assured; (4) as to Ground 6, Respondents ignore state precedent forbidding police from obtaining a consent to search after a right to counsel is invoked, and Petitioner is entitled (even in a federal habeas case) to rely on state precedent to show ineffective assistance; the truck photos were evidence obtained as a result of the improper obtained consent and were highly prejudicial evidence; (5) as to Ground 7, the relevant fact is that police knew Petitioner had property in the truck prior to impounding it, and thus improperly seized Petitioner’s property; and evidence suggests that the note pad was moved to plain view and the backpack tampered with; (6) as to Ground 8, there was no probable cause to support application of the “plain view” doctrine; the illegal seizure of Petitioner’s property precludes application of the doctrine; the evidence established that the notebook was not in plain view; there was insufficient evidence to establish the incriminating nature of the notepad, and case law indicates a closed notepad is not incriminating and the cases to the contrary cited by Respondents are inapposite; trial counsel failed to adequately develop the record on or pursue these issues; and appellate counsel failed to adequately support his arguments on the issue; (7) as to Ground 9, although counsel argued Edwards and Roberson, he failed to appreciate or argue the difference between invoking the right to silence and the right to counsel, and thus failed to make the correct legal argument; counsel failed to call other witnesses to establish improper contact by police officers; officer Van Meter was cognizant that his improper contact with Petitioner would likely result in incriminating statements; although appellate counsel raised the issues, he failed to argue facts which supported the assertion of a interrogation and its functional equivalent; and (8) as to Ground 10, appellate counsel failed to assail the absence of evidence on a weapon, and to counter in a reply brief the claims to the contrary; that Respondents improperly select portions of testimony to discredit to support the conviction; that the evidence fails to connect Petitioner to the toy gun, and that reasonable speculation cannot support the conviction. III. APPLICATION OF LAW TO FACTS A. STATUTE OF LIMITATIONS 1. One Year Limitations Period Respondents assert, inter alia, that Petitioner’s Petition is untimely. As part of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress provided a 1-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). In Calderon v. U.S. District Court, 128 F.3d 1283 (9th Cir.1997), overruled on other grounds, 163 F.3d 530 (9th Cir.1998) (real party-in-interest was Rodney Gene Beeler) (hereinafter “Beeler”), the court noted that prior to § 2244(d)’s enactment “state prisoners had almost unfettered discretion in deciding when to file a federal habeas petition” and that “delays of more than a decade did not necessarily bar a prisoner from seeking relief.” Beeler, 128 F.3d at 1286. The Beeler court held that the provisions of § 2244(d) “dramatically changed this landscape” and a petitioner was now “required to file his habeas petition within one year of the date his process of direct review came to an end.” Id. Petitions filed beyond the one year limitations period are barred and must be dismissed. 28 U.S.C. § 2244(d)(1). 2. Commencement of Limitations Period Pre-existing Judgments — The Beeler court, following other circuits, also held that the period of limitations “did not begin to run against any state prisoner prior to the statute’s date of enactment” of April 24, 1996. Beeler, 128 F.3d at 1287. Thus, all federal habeas corpus claims concerning state court judgments finalized prior to April 24, 1996, had to be filed by April 23, 1997, or they were barred by the statute of limitations absent a showing that the circumstances surrounding the filing of the petition fell into one of the categories listed in § 2244(d)(l)(B)-(D). Direct Review — The one-year statute of limitations on habeas petitions generally begins to run on “the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner’s original judgment (Exhibit A), issued October 27, 1989, was under direct review until April 21, 1995, when the Arizona Supreme Court denied review (Exhibit F). However, that judgement was not final until expiration of the time for Petitioner to file a petition for a writ of certiorari from the United States Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1158 (9th Cir.1999). Pursuant to Rule 13, Rules of the Supreme Court of the United States, that time expired “90 days after entry of the order denying discretionary review.” Thus, Petitioner’s original judgment became final on July 20, 1995. Because this was prior to the effective date of the AEDPA, Petitioner’s one year would not have begun running as to the original judgment until the AEDPA’s effective date, April 24,1996. However, that judgement was vacated on September 27, 1996 (Exhibit J), and Petitioner was re-sentenced on April 4, 1997 (Exhibit K). Respondents argued that because re-sentencing did not occur on direct appeal, this re-sentencing is irrelevant. (Answer, # 12 at 4, n. 1.) In the intervening decision in Burton v. Stewart, 549 U.S. 147, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007), the Court concluded that for purposes of the habeas statute of limitations, “[f]inal judgment in a criminal case means the sentence. The sentence is the judgment.” Id. at 156-157, 127 S.Ct. 793 (quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937)). Respondents argue that Burton does not apply because: (1) it was not a statute of limitations case, but a successive petition case; (2) it involved a resentencing granted as part of the direct review process, while Petitioner’s resentencing was granted on collateral review; and (3) a series of cases clarify that a resentencing does not reset the statute of limitations clock. (Supp. Resp. # 34 at 3^4.) It is true that Burton was not a statute of limitations case. However, the relevant discussion of finality in Burton was specifically directed to the habeas statute of limitations. It was intended to dispose of the defendant’s arguments that he should be permitted to file successive petitions attacking the original conviction and the subsequent resentencing, to avoid the risk that his challenges to the conviction would be time barred by the time he could challenge his resentencing. The Court’s intention that Burton impact limitations questions is illustrated by the fact that they vacated and remanded for reconsideration in light of Burton the Eleventh Circuit’s dismissal on timeliness grounds in Ferreira v. Secretary, Dept. of Corrections, 494 F.3d 1286, 1288 (11th Cir.2007). See Ferreira v. McDonough, 549 U.S. 1200, 127 S.Ct. 1256, 167 L.Ed.2d 65 (2007). With regard to the cases cited by Respondents to avoid the effect of Burton, many of them predate Burton, which was decided January 9, 2007. Others do not address the effect of a resentencing. The one relevant, post -Burton case cited by Respondents, Bachman v. Bagley, 487 F.3d 979 (6th Cir.2007), does not make reference to Burton, and thus does not distinguish it. Indeed, when Bachman returned to the district court with a subsequent petition, the district court noted that “Burton stands for the proposition that ‘a habeas petitioner who files his first or only habeas petition after a re-sentencing may properly include all claims from the underlying conviction in that petition, since his criminal case did not end, triggering the statute of limitations clock, until senteneing was completed.’ ” Bachman v. Wilson, 2007 WL 4553988 (N.D.Ohio 2007) (citing Burton, 127 S.Ct. at 798). Moreover, Bachman was based on the Sixth Circuit’s rejection of Eleventh Circuit precedent, which precedent the Ninth Circuit adopted long ago. In Bachman, the court concluded that a sexual predator designation, issued seven years after the conclusion of direct review, did not reset the statute as to any claims relating to the underlying conviction and sentence. The Sixth Circuit relied on pre-Burton, Sixth circuit precedent holding that a resentencing resets the habeas clock only as to challenges to the resentencing, not challenges to the conviction or original sentence. 487 F.3d at 982-983 (citing DiCenzi v. Rose, 452 F.3d 465 (6th Cir.2006)). In doing, so, the Sixth Circuit explicitly rejected Eleventh Circuit precedent holding “that resentencing restarts the statute of limitations period for all of the claims in a habeas petition, including those that arise from the original conviction.” Bach-man, 487 F.3d at 984 (citing Walker v. Crosby, 341 F.3d 1240, 1246 (11th Cir. 2003)). In contrast, the Ninth Circuit has adopted the rationale of the Eleventh circuit. In U.S. v. LaFromboise, 427 F.3d 680 (9th Cir.2005), the court was faced with a motion to vacate under 28 U.S.C. § 2255 filed by a defendant whose original conviction had been vacated on direct appeal, but only as to some of the charges. On remand to the district court, the government dismissed the reversed counts, and so the district court never entered an amended sentence or judgment. The defendant then filed a motion to vacate, which was dismissed as untimely because it had been filed more then a year after the Court of Appeals’ decision, which the district court reckoned as the point of finality. The Ninth Circuit reversed, finding because the original sentence had been vacated on direct appeal and no amended judgment entered, the “conviction is not yet final and the one-year limitation period has not begun to run.” 427 F.3d at 683. In so doing, the Ninth Circuit referenced the Eleventh Circuit precedent for measuring finality of the entire conviction from a resentencing, including the Walker decision rejected by the Sixth Circuit in Bachman. “Our holding here follows the Eleventh Circuit’s decision in Maharaj v. Secretary for the Department of Corrections, which noted that ‘[i]n the context of a federal habeas petition, the statute of limitations runs from the date of state resentencing and not the date of the original judgment.’ ” 427 F.3d at 686 (citing Maharaj, 304 F.3d 1345, 1348 (11th Cir. 2002) and Walker, 341 F.3d at 1246). Still, Respondents argue that this only applies where the sentence is vacated on direct review, and Petitioner’s sentence was vacated on collateral review via his motion to withdraw his plea. Indeed, Burton and LaFromboise both involved resentencing upon remand from direct review. But neither expressly conditioned their holding on that fact. However, the Eleventh Circuit was recently called on to address just such a fact pattern on remand in Ferreira v. Secretary, Dept. of Corrections. There, the Eleventh Circuit applied Burton to a 2003 resentencing issued as a result of a post-conviction proceeding. 494 F.3d 1286, 1288 (11th Cir.2007). When Ferreira filed his petition in the district court on June 10, 2003, he was “in custody pursuant to” the 2003 judgment, which was based on the December 10, 1997 conviction and the April 14, 2003 [resentencing]. Therefore, the April 14, 2003 judgment that imprisoned Ferreira controls the statute of limitations for this petition because the period begins to run when both the conviction and sentence are final. Id. at 1292-1293. See also Chew v. Hendricks, 2007 WL 2437830, 4 (D.N.J.2007) (Burton applied to determine finality from a resentencing issued on post-conviction relief); Latson v. McDonough, 2008 WL 681721, 2 (N.D.Fla.,2008) (same); U.S. v. Murphy, 2007 WL 3072411, 3 (N.D.Fla.,2007) (citing Ferreira) (certificate of appealability on question whether under Burton a sentence reduction pursuant to Fed.R.Crim.P. 35 is a resentencing which resets AEDPA clock). Nonetheless, Respondents argue that the source of resentencing is controlling because “finality” occurs when both the conviction and sentence are final, and that such finality is not upset by a subsequent resentencing on collateral review. Respondents ignore, however, the nature of a habeas proceeding. Habeas is not a review of various judgments. Rather, a habeas corpus proceeding is a challenge to the legality of the petitioner’s custody, and that custody must be determined on the basis of the validity of whatever judgment currently holds the petitioner. “Burton makes clear that the writ and AEDPA, including its limitations provisions, are specifically focused on the judgment which holds the petitioner in confinement.” Ferreira, 494 F.3d at 1293. Thus, as recognized in Burton, a petitioner is not held under two separate judgments, one determining his conviction and another setting his sentence. Rather, “[t]he sentence is the judgment.” Burton, 549 U.S. at 157, 127 S.Ct. 793. Thus, for example, a habeas petitioner who was re-sentenced upon a grant of collateral relief would not challenge two separate judgments in a subsequent habeas, one attacking the original judgment as to errors at trial, and the other attacking the propriety of the new sentence. Rather, he would have, in essence, a single claim: that his current custody was unlawful. Respondents’ approach would require two separate habeas petitions, and would result in the very type of piecemeal habeas litigation that Burton recognized the AEDPA was designed to avoid. Thus, this Court is bound to apply the rule adopted by the Ninth Circuit and expressed in Burton, that finality for limitations purposes is calculated from a re-sentencing judgment. Therefore, the undersigned concludes that the relevant judgment is Petitioner’s April 4,1997 judgment. Review of this judgment continued until conclusion of Petitioner’s direct appeal from this judgment, when the Arizona Supreme Court denied review on March 3, 2000 (Exhibit X). Petitioner’s conviction became final 90 days later, on June 1, 2000, when his time to petition for certiorari review expired. New Claims — While the finality of the conviction is the normal commencement date for the habeas limitations period, the statute does provide an exception for changes in the law. Section 2244(d)(1)(C) provides that the period can run from “the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” Petitioner’s Ground 13 arguably asserts a change in the law based upon the decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Here, Petitioner’s direct review ended on June 1, 2000. This was before both the June 26, 2000 decision in Apprendi and before the 2004 decision in Blakely. This could serve to provide a later commencement date, but only if Apprendi and/or Blakely has been “made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2244(d)(1)(C). In Rees v. Hill, 286 F.3d 1103 (9th Cir.2002), the Ninth Circuit concluded that Apprendi was not retroactively applicable on habeas review, under the retroactivity standards established by Teague v. Lane, 489 U.S. 288, 308-310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (decisions establishing new rules of criminal procedure are not to be applied retroactively on habeas review, absent certain circumstances). Similarly, in Cook v. U.S., 386 F.3d 949, 950 (9th Cir.2004), the Ninth Circuit drew upon its decision in Rees to conclude that Blakely was not retroactively applicable on habeas. Accordingly, the later decisions in Apprendi and Blakely do not delay the commencement of Petitioner’s one year limitations period. Normal Expiration of Year — Based on the foregoing, the undersigned concludes that Petitioner’s one year on all his claims began running on the expiration of his time for seeking certiorari review following his second direct appeal, on June 1, 2000. Barring any applicable tolling, Petitioner’s limitations period would have commenced running thereafter, and expired one year later on June 1, 2001. 3. Statutory Tolling The AEDPA provides for tolling of the limitations period when a “properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). The statutory tolling applies during the entire time during which the application is pending, including interludes between various stages of appeal on the application. The “AEDPA statute of limitations [is] tolled for ‘all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.’ ” Nino v. Gatazo, 183 F.3d 1003, 1006 (9th Cir.1999) (quoting Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir.1999)). See also Carey v. Saffold, 536 U.S. 214, 217, 122 S.Ct. 2134,153 L.Ed.2d 260 (2002). However, once the statute has run, a subsequent post-conviction or collateral relief filing does not reset the running of the one year statute. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir.2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). First PCR Proceeding — Petitioner’s first PCR proceeding was concluded on February 19, 1999 (Exhibit R), prior to the commencement of Petitioner’s one year on June 2, 2000. Accordingly, it is not relevant for purposes of statutory tolling. Second PCR Proceeding — Although Petitioner’s second PCR proceeding was commenced on May 4, 1999 (Exhibit S), prior to the commencement of Petitioner’s one year, it was not concluded until December 1, 2000 when the Arizona Supreme Court denied review. (Exhibit BB). Thus, Petitioner’s limitations period was tolled as a result of this proceeding from the period’s commencement on June 1, 2000 until December 1, 2000. Third PCR Proceeding — Petitioner’s third PCR proceeding commenced on March 22, 2000 upon the filing of his Notice of Post-Conviction Relief. See Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1055-56 (9th Cir.2004) (“The language and structure of the Arizona postconviction rules demonstrate that the proceedings begin with the filing of the Notice.”) This was prior to the conclusion of petitioner’s second PCR proceeding. Thus Petitioner’s limitations period was further tolled until February 17, 2004, when the Arizona Supreme Court denied review on this petition (Exhibit HH). Fourth PCR Proceeding — Petitioner commenced his fourth PCR proceeding on July 19, 2004 by filing his Notice of Post-Conviction Relief (Exhibit II) seeking relief pursuant to Blakely as a significant change in the law. Respondents argue that this application was dismissed as untimely, and therefore does not toll the running of the statute. In Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), the Court held that when a state post-conviction petition is untimely under state law, then it is not “properly filed” within the meaning of § 2244(d)(2) for purposes of statutory tolling. However, Petitioner contends that the state court’s ruling was not based on the petition’s untimeliness, but it’s lack of merit due to non-retroactivity principles. (Reply, # 30, Memorandum at 5-6.) The general timeliness requirement in Arizona is that the PCR notice “be filed within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later.” Ariz. R.Crim. P. 32.4(a). Petitioner does not argue that his fourth PCR proceeding met this deadline. Rather Petitioner argues that his fourth PCR proceeding was permissible because it asserted a claim under Rule 32.1(g) which authorizes PCR claims based on “a significant change in the law that if determined to apply to defendant’s case would probably overturn the defendant’s conviction or sentence.” Further, he notes that Arizona’s timeliness rule provides an exception for such claims. The rule provides that “[a]ny notice not timely filed may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h).” Indeed the PCR court’s order provided: Defendant filed on July 19, 2004 an untimely Notice of Post-Conviction Relief. He now seeks relief pursuant to Rule 32.1(g), Arizona Rules of Criminal Procedure, claiming that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), is a significant change of law that applies to his case. (Exhibit JJ, M.E. 7/27/04 at 1.) The PCR court proceeded to determine that Blakely was not retroactively applicable to final cases. The court concluded: His conviction is therefore final and he is not entitled to relief under Rule 32.1(g). IT IS THEREFORE ORDERED dismissing defendant’s Notice of Post-Conviction Relief. (Exhibit JJ, M.E. 7/27/04 at 2.) At first blush, the PCR court’s pronouncement that the application was “untimely” seems to resolve the matter. However, the reference to Rule 32.1(g) clarifies that the petition was not dismissed as untimely. Rather, the trial court was simply noting the application’s dependence upon the exception for delinquent claims based on changes in the law. Respondents argue that when the PCR court found that Petitioner was not entitied to relief because Blakely was not retroactively applicable, the court was then required to find that his petition was untimely. If Rule 32.1(g) described a claim based on “a significant change in the law” that is “determined to apply to defendant’s case,” then their argument would have merit. The determination of the retroactivity question would thus be a limitation on claims falling within the scope of Rule 32.1(g). The Rule does not do so. Rather, it authorizes claims based on “a significant change in the law that if determined to apply” would change the result. The cases cited by Respondents do not call for a contrary result. Respondents cite State v. Slemmer, 170 Ariz. 174, 823 P.2d 41 (1991), for the proposition that the timeliness exception in Rule 32.4 is conditioned upon the retroactivity analysis. (Supp. Resp. # 34 at 7-8.) However, Slemmer did not address timeliness or Rule 32.4. Rather, Slemmer addressed the exception to Arizona’s preclusion bar for claims arising under Rule 32.1(g). Instructive, however, is their discussion of the analysis under Rule 32.1(g): When a new principle of law is articulated, a defendant whose conviction has become final may seek relief under Rule 32. That defendant is insulated from the rules of finality and preclusion when, as the rule contemplates, there “has been a significant change in the law applied in the process which led” to conviction or sentence. Whether relief may be obtained under Rule 32 then depends on the question of retroactive application of the new principle of law. That question is to be determined by the standards contained in this opinion. Slemmer, 170 Ariz. at 184, 823 P.2d at 51 (emphasis added). Thus, Slemmer clarifies that retroactivity is not a precondition to a claim fitting within Rule 32.1(g) (or the procedural exceptions for such claims), but a precondition to relief on such a claim. The assertion of the change in the law entitled the petitioner to “seek relief’; the retroactivity merely determined whether the “relief may be obtained.” Similarly, State v. Towery, 204 Ariz. 386, 64 P.3d 828 (2003) was based upon application of Arizona’s preclusion bar, rather than its timeliness bar. The court noted the exception to preclusion for claims under Rule 32.1(g), especially highlighting the proviso that the claim could be based on new “law if determined to apply to the defendant’s case.” 204 Ariz. at 389, ¶ 5, 64 P.3d at 831 (emphasis in original, quoting Ariz. R.Crim. P. 32.1(g)). The court then stated: “Accordingly, we must first determine whether the [new law] applies retroactively to the petitioners’ sentences.” Id. Tellingly, after finding that the new law did not apply retroactively, the Towery court did not dismiss the petition as precluded, but affirmed the trial court’s “denial of post-conviction relief.” Thus, as in Slemmer, the exception for claims under Rule 32.1(g) applied, notwithstanding the non-retroactivity of the new law, and the claim was addressed on the merits, including whether the new law applied retroactively. Respondents’ reliance on Binford v. Rhode, 116 F.3d 396 (9th Cir.1997), is also misplaced. Binford merely recognized that the Arizona timeliness bar, Rule 32.4, has an exception for claims under Rule 32.1(g). However, Binford did not involve the exception for claims under Rule 32.1(g), but a claim under Rule 32.1(f), based upon “the defendant’s failure to appeal from the judgment, sentence, or both within the prescribed time was without fault on the defendant’s part.” 116 F.3d at 399 (quoting Ariz. R.Crim. P. 32.1(f)). Indeed, a review of the PCR court’s ruling shows that the approach of Slemmer and Towery was followed by the PCR court. Thus, the court characterized the Notice of Post-Conviction Relief as “untimely”, but noted that it sought relief “pursuant to Rule 32.1(g), Arizona Rules of Criminal Procedure.” It is true that the effect of a timeliness ruling is not altered because the court considers the merits of the claim as part of the application of the timeliness rule, nor because it offers an alternative basis for its ruling based on another ground. Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir. 2005) (citing Pace). Here, however, the merits determination of the claim was not merely part of the timeliness determination, nor an alternative to it. Rather, it was a subsequent determination after the finding that the claim was raised under Rule 32.1(g), and thus was not subject to the timeliness rule. Consequently, Petitioner is entitled to statutory tolling for this PCR proceeding. This PCR proceeding commenced on July 19, 2004 when Petitioner filed his Notice of Post-Conviction Relief (Exhibit II). As of that time, 153 days of Petitioner’s one year had expired since the Arizona Supreme Court’s denial of relief in his third PCR proceeding on February 17, 2004. The proceeding continued until February 14, 2006, when the Arizona Supreme Court denied review. (Exhibit LL.) With 212 days remaining, Petitioner’s one year would have expired on September 14, 2006. Thus, his current federal petition, filed June 28, 2006, was timely. 4. Summary re Statute of Limitations Petitioner’s conviction became final on June 1, 2000, on the expiration of his time for seeking certiorari review on his second direct appeal following his re-sentencing. He had state applications for post-conviction relief pending the entire time from then until the filing of the present federal petition, with the exception of the 153 days between his third and fourth PCR petitions, and the 134 days between his fourth PCR proceeding and the filing of his federal petition. Thus Petitioner had only used 287 days of his one year, and his federal petition was timely. B. PROCEDURAL DEFAULT Respondents argue in the Answer (# 12) that Grounds 3, 4, 11, 12, and 13 are procedurally defaulted. Although Respondents categorize Grounds 11 and 13 as procedurally defaulted, their arguments focus upon actual application of state procedural bar. Accordingly, those claims will be addressed in Section C (Procedural Bar), below. 1. Exhaustion Requirement Generally, a federal court has authority to review a state prisoner’s claims only if available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam). The exhaustion doctrine, first developed in case law, has been codified at 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir.1981) (per curiam), cert. denied, 455 U.S. 1023, 102 S.Ct. 1722, 72 L.Ed.2d 142 (1982). Ordinarily, “to exhaust one’s state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir.1994). Only one of these avenues of relief must be exhausted before bringing a habeas petition in federal court. This is true even where alternative avenues of reviewing constitutional issues are still available in state court. Brown v. Easter, 68 F.3d 1209, 1211 (9th Cir.1995); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert, denied, 489 U.S. 1059,109 S.Ct. 1327, 103 L.Ed.2d 595 (1989). “In cases not carrying a life sentence or the death penalty, ‘claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.’ ” Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir.2005) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.1999)). a. Fair Presentment To result in exhaustion, claims must not only be presented in the proper forum, but must be “fairly presented.” That is, the petitioner must provide the state courts with a “fair opportunity” to apply controlling legal principles to the facts bearing upon his constitutional claim. 28 U.S.C. § 2254; Picard v. Connor, 404 U.S. 270, 276-277, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). A claim has been fairly presented to the state’s highest court if the petitioner has described both the operative facts and the federal legal theory on which the claim is based. Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir.2003) (overruled on other grounds, Robbins v. Carey, 481 F.3d 1143,1149 (9th Cir.2007)). Because “state and federal courts are jointly responsible for the enforcement of federal constitutional guarantees,” “for purposes of exhaustion, a citation to a state case analyzing a federal constitutional issue serves the same purpose as a citation to a federal case analyzing such an issue.” Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir.2003). However, a “daisy chain-which depends upon a case that was cited by one of the cases that was cited by one of the cases that petitioner cited is too lengthy to meet [the] standards for proper presentation of a federal claim.” Howell v. Mississippi, 543 U.S. 440, 443-444, 125 S.Ct. 856, 160 L.Ed.2d 873 (2005). A state court’s actual consideration of a claim satisfies exhaustion. See Sandstrom v. Butterworth, 738 F.2d 1200, 1206 (11th Cir.1984) (“[t]here is no better evidence of exhaustion than a state court’s actual consideration of the relevant constitutional issue”); see also Walton v. Caspari, 916 F.2d 1352, 1356-57 (8th Cir.1990) (state court’s sua sponte consideration of an issue satisfies exhaustion). b. Application to Petitioner’s Claims Ground 3 (Insufficient Evidence of Gun)—In Ground 3, Petitioner argues that he was denied due process because there was insufficient evidence to convict Petitioner of armed robbery because there was insufficient evidence of a weapon. Petitioner argues that he presented this claim on direct appeal, (Petition, # 1 at 7), but in his Reply, he “concedes that he did not specifically label the insufficiency of the evidence claim as a Fourteenth Amendment Due Process violation.” (# 30 at 15.) He argues, however, that he asserted an identical state law claim and cited state precedent relying on federal law, i.e. State v. Garza Rodriguez, 164 Ariz. 107, 791 P.2d 633 (1990). In his Supplemental Brief on direct appeal, Petitioner simply argued that the trial court erred by failing to issue a directed verdict on Count I in the armed robbery case because “no gun, either actual or simulate, was seen by the victim.” No reference to federal law was made, and the only citation was to Garza Rodriguez. (Exhibit C, Suppl. Brief at 3.) The Arizona Court of Appeals rejected the argument, relying on Garza Rodriguez, on the basis that under state law the victim need not see the weapon, and the evidence showed Petitioner claimed possession and threatened use of a gun, satisfying the requirement of the statute. (Exhibit D, Mem. Dec. at 8.) The same argument was raised in his Petition for Review by the Arizona Supreme Court, which was summarily denied. (Exhibit E, PFR at 20-21; Exhibit F, Order 4/21/95.) Petitioner now makes a claim to a denial of due process. “The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense.” Carella v. California, 491 U.S. 263, 265, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989). However, Garza Rodriguez makes no references to the Due Process Clause nor any other federal law or authority. Rather, it was based solely upon an interpretation of the state armed robbery statute, and held that “that a mere verbal threat to use a deadly weapon, unaccompanied by the actual presence of a deadly weapon, dangerous instrument or simulated deadly weapon, does not satisfy the statutory requirement for a charge of armed robbery.” 164 Ariz. at 112, 791 P.2d at 638. Based upon that determination, they concluded that the “facts are insufficient to support a charge of armed robbery.” Id. Thus, this case did not turn upon any federal due process