FILED

NOT FOR PUBLICATION

MAY 27 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL ALEXANDER RODRIGUEZ, No. 21-16024

Petitioner-Appellant, D.C. No. 2:19-cv-04957-GMS

v.

MEMORANDUM*

STEPHEN MORRIS; ATTORNEY

GENERAL FOR THE STATE OF

ARIZONA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Arizona G. Murray Snow, Chief District Judge, Presiding

Argued and Submitted March 8, 2022 Phoenix, Arizona

Before: PAEZ, CLIFTON, and WATFORD, Circuit Judges.

Daniel A. Rodriguez appeals the district court’s denial of his petition for a

writ of habeas corpus filed under 28 U.S.C. § 2254. The narrow certified issue on

appeal is whether Rodriguez’s ineffective assistance of appellate counsel (“IAAC”)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. claim qualifies as cause to excuse the procedural default of his prosecutorial

misconduct claim.1 We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We

affirm.

Rodriguez was convicted by a jury in Arizona state court of various felonies

in connection with his role in two shootings during a dispute with his girlfriend.

On direct appeal, his counsel declined to raise the issue of prosecutorial

misconduct in favor of a Fourth Amendment issue. After the appeal was

unsuccessful, Rodriguez filed a habeas petition in state court raising ineffective

assistance of trial counsel, trial judge abuse of discretion, prosecutorial

misconduct, and IAAC. The state trial court denied habeas relief, in part because

Rodriguez had waived his prosecutorial misconduct claim by failing to raise it on

direct appeal and because any deficient performance on the part of defense counsel

did not prejudice Rodriguez. The Arizona Court of Appeals granted review but

denied relief in a short summary order, and the Arizona Supreme Court denied

review altogether.

Under Arizona law, the failure to raise an issue that could have been raised

on direct appeal is a procedural bar to habeas review on the merits. State v. Petty,

1 Rodriguez’s Opening Brief presents uncertified issues outside the scope of the district court’s Certificate of Appealability (“COA”). We decline to expand the COA to reach those issues. See 28 U.S.C. § 2253(c)(2). 2 238 P.3d 637, 640 (Ariz. Ct. App. 2010) (citing Ariz. R. Crim. P. 32.2(a)). Here,

then, Rodriguez’s failure to raise prosecutorial misconduct on direct appeal means

the issue was procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722,

729–30 (1991); Lee v. Davis, 328 F.3d 896, 899–900 (7th Cir. 2003). Rodriguez is

therefore only entitled to federal habeas review on the merits of his prosecutorial

misconduct claim if he shows that the procedural default is excused by cause and

prejudice. See Atwood v. Ryan, 870 F.3d 1033, 1059 (9th Cir. 2017).

Rodriguez argues that his IAAC claim based on appellate counsel’s failure

to raise prosecutorial misconduct on direct appeal constitutes cause to excuse the

default of the prosecutorial misconduct claim. See Murray v. Carrier, 477 U.S.

478, 488 (1986). We analyze Rodriguez’s IAAC claim in the cause-and-prejudice

context de novo.2 Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016).

2 We need not reach the question of whether Rodriguez’s IAAC claim establishes an independent substantive basis for habeas relief because that question is outside the scope of the COA. In any event, because we conclude that appellate counsel’s performance was not constitutionally ineffective, it follows that we would not disturb the state habeas court’s adjudication of that claim on the merits. See 28 U.S.C. § 2254(d) (barring relitigation of any claim “adjudicated on the merits” in state court unless the decision was contrary to or involved an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts in light of the evidence presented); Harrington v. Richter, 562 U.S. 86, 99 (2011) (a claim not dismissed for procedural reasons is presumed to be decided on the merits).

3 To establish cause, Rodriguez must show that he was deprived of his

constitutional right to effective counsel in violation of the Sixth Amendment. Id.

To do that, Rodriguez must first have presented IAAC as an independent claim in

state court. Edwards v. Carpenter, 529 U.S. 446, 452–53 (2000). Because he raised

the claim in his state habeas petition, he satisfies that threshold inquiry. He next

must establish that his appellate counsel’s performance was ineffective under

Strickland v. Washington, 466 U.S. 668 (1984). Counsel is ineffective under

Strickland if the lawyer’s performance was objectively unreasonable and “there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at 694. The “mere fact that counsel

failed to recognize the factual or legal basis for a claim, or failed to raise the claim

despite recognizing it, does not constitute cause for a procedural default.” Carrier,

477 U.S. at 486; see also Moorman v. Ryan, 628 F.3d 1102, 1106–07 (9th Cir.

2010).

Because we conclude that Rodriguez was not prejudiced by counsel’s failure

to raise prosecutorial misconduct on direct appeal, we need not decide whether

counsel’s performance was deficient. See Jackson v. Calderon, 211 F.3d 1148,

1155 n.3 (9th Cir. 2000). We conclude that Rodriguez was not prejudiced because

there is not a “reasonable probability” that the outcome of his direct appeal would

4 have been different had counsel raised prosecutorial misconduct. Cf. Strickland,

466 U.S. at 694.

To warrant reversal for prosecutorial misconduct under Arizona law, “the

conduct must have been so pronounced and persistent that it permeated the entire

trial and probably affected the outcome.” State v. Bolton, 896 P.2d 830, 847 (Ariz.

1995). Arizona courts consider whether the prosecutor’s actions were “reasonably

likely to have affected the jury’s verdict, thereby denying [the] defendant a fair

trial.” Id. (citation omitted). Courts review the “cumulative misconduct” to decide

whether the “total effect” rendered the trial unfair. State v. Hulsey, 408 P.3d 408,

429 (Ariz. 2018).

We are not convinced that there is a reasonable probability that an Arizona

court would have ordered a new trial based on the prosecutor’s conduct here. First,

the state habeas court expressly rejected Rodriguez’s claim of ineffective

assistance of trial counsel for failing to object to certain misconduct, finding that

any deficient performance did not prejudice Rodriguez’s defense or render

different trial results than would have been achieved through competent

performance. If an Arizona court was unwilling to order a new trial based on trial

counsel’s failure to object to misconduct, we see no reason to conclude that the

5 same court would have done so based on appellate counsel’s failure to raise the

same misconduct on appeal.

Second, much of the alleged misconduct was waived for lack of

contemporaneous objection at trial such that it could only be overcome on appeal

by a showing of fundamental error. State v. Hughes, 969 P.2d 1184, 1197 (Ariz.

1998) (en banc). We cannot conclude that the waived misconduct constituted

fundamental error. See id.

Third, we do not conclude that an Arizona court would have found that the

instances of misconduct were “so pronounced and persistent” to have “permeated

the entire trial and probably affected the outcome.” Bolton, 896 P.2d at 847. The

most serious allegation in our view is that the prosecutor implied that the

threatening text messages were recovered on Rodriguez’s phone, when in fact they

were not. Although we acknowledge that the prosecutor mischaracterized the

source of the threatening text messages to corroborate other witness testimony, the

record contains other evidence linking Rodriguez to those messages and

connecting him to the shootings. In our view, the evidence regarding the text

messages was cumulative of other properly presented evidence. Our conclusion is

bolstered by the state habeas court’s conclusion that any deficient performance by

trial counsel would not have rendered different results at trial. Even accepting—as

6 the district court below did—that the prosecutor engaged in some “instances of

misconduct or near misconduct, altogether it was not so prolonged or pronounced

that it affected the fairness of trial.” Hulsey, 408 P.3d at 429–30.

In summary, Rodriguez has not shown that his appellate counsel was

constitutionally ineffective under Strickland. The district court therefore properly

held that Rodriguez did not establish cause and prejudice necessary to excuse the

procedural default of the prosecutorial misconduct claim. That claim is therefore

not entitled to federal habeas review on the merits.

AFFIRMED.

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