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Terry v. Ryan

United States District Court, Ninth Circuit

July 15, 2013

Brandon Scott Terry, Petitioner
v.
Charles L. Ryan, et al., Respondents.

Report & Recommendation on Petition for Writ of Habeas Corpus

JAMES F. METCALF, 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 April 27, 2012 (Doc. 1). On September 12, 2012, Respondents filed their Response (Doc. 13). Petitioner filed a Reply ("Affidavit in Response") on November 16, 2012 (Doc. 14). Since, the parties have filed a Supplemental Answer (Doc. 20), a Supplemental Reply (Doc. 24), a Second Supplemental Answer (Doc. 28), and a Second Supplemental Reply (Doc. 31).

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

A. FACTUAL BACKGROUND

In resolving Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:

... after an argument with the victim, Terry approached her with two knives as she sat in her car, repeatedly stabbed the car and slashed one tire. As he did so, Terry threatened to kill the victim.

(Exhibit I, Mem. Dec. at.) (Exhibits to the Answer, Doc. 13, are referenced herein as "Exhibit ___"; exhibits to the first Supplemental Answer, Doc. 20, are referenced hereinafter as "Exhibit S1-___"; exhibits to the Second Supplemental Answer, Doc. 28, are referenced hereinafter as "Exhibit S2-___.")[1]

B. PROCEEDINGS AT TRIAL

Petitioner was indicted in Maricopa County Superior Court on one count of aggravated assault. (Exhibit B, Indictment.) After completing a competency evaluation, the Court found Petitioner competent to stand trial, subject to his being medicated. Petitioner was ordered to take his medication. (Exhibit S2-D, M.E. 1/15/9.) He proceeded to trial with counsel.) (Exhibit C, M.E. 4/2/9; Exhibit S1-A, R.T. 4/2/09.)

The defense called Petitioner's girlfriend, Raycita Haycock to testify. (Exhibit S1-A, R.T. 4/2/09 at 54 et seq. ) She related an incident prior to the assault on the victim, when the victim came to her home, banged and kicked on the door, and when Petitioner answered the door, she attempted to enter and called for Haycock to come outside. Haycock related that she threatened to, and then did call the police. ( Id. at 57-59.)

On cross-examination, the prosecution referred to that call:

Q. You tell us that you - the night before which I guess is really the early morning hours, like 1:30 or so when Jessica was at your apartment, you told us that you that called 911, right?
A. Yes, I did.
Q. And didn't you tell the 911 operator that -
MS. MILLER: Objection, hearsay.
MS. LECKRONE: Impeachment, your Honor.
THE COURT: Could counsel approach, please. (Bench conference out of the hearing of the court reporter and jury.)
THE COURT: I will sustain the objection, but I will allow you to lay the foundation.

( Id. at 67.) After further questioning, the prosecution returned to the issue:

Q. Didn't you tell the 911 operator that you were asleep during all of this?
A. No. I was asleep and I heard the bang on the door. That's when I got up. That's what I told the 911 operator because she - when I was talking to that person, they didn't understand what I was trying to say because I was scared that she - I didn't know what she wanted but she, you know, she was kicking in the door and banging on it. So I was scared.
* * *
Q. Let's get back to what you told the 911 operator. You told the operator that his temper gets bad. That's what you told the 911 operator, didn't you?
A. I said that - I didn't say it does. I said he might get mad. Like you know - I said he might get mad. I mean anybody would get mad if someone's banging on their door.
Q. But didn't you say specifically to the operator
MS. MILLER: Objection-
MS. LECKRONE: - in talking about the defendant-
THE COURT: Overruled.

BY MS. LECKRONE:

Q. Did you say specifically to the 911 operator when talking about the defendant that his temper gets bad?
MS. MILLER: Your Honor, I'm sorry. I'm going to object. May I make a record, please, regarding the hearsay objection?
THE COURT: I'll allow you to make a record when we're on a break, so just make a note.
MS. MILLER: Okay.

BY MS. LECKRONE:

Q. Isn't that what you told the 911 operator?
A. Yeah, but it's not -
Q. That's all I need to know, ma'am.

( Id. at 68-70.)

Counsel subsequently put the objection on the record:

MS. MILLER: Okay. All right. Your Honor, it was a hearsay objection to the 911 operator, actually, because the 911 operator is not here. There is not - it's an out of court statement used - I think because I can't remember exactly what the statements were or what the question was. But the line of questioning was basically in response to a 911 call. And since the 911 operator isn't here, we don't have an opportunity to cross examine them. I don't think there's an exception that was noted for the record. And so that would be my standing objection to any 911 statements.
THE COURT: Right. No. And I understand. But in this particular case the reason that the Court denied the objection is because the prosecutor had laid a foundation with regard to testimony that she had given on the stand today during the trial. And laid a foundation on how that contradicted. And the question simply asked for, isn't it true that you made different statements to the 911 operator. And so I don't think that - although I think you properly preserved your argument on appeal - I just don't think that it was a violation of the hearsay rules. So there you go, you have a record.

( Id. at 91-92.)

Petitioner was convicted by the jury on the sole count. (Exhibit C, M.E. 4/2/9; Exhibit D, Verdict.)[2]

Prior to sentencing, Petitioner admitted two prior convictions and that he committed the instant offense while on release. (Exhibit K, PCR Pet. at 2.) Petitioner was sentenced to 11.25 years in prison. (Exhibit E, Sentence.)

C. PROCEEDINGS ON DIRECT APPEAL

Petitioner filed a Notice of Appeal (Exhibit F), counsel was appointed, and Petitioner filed an Opening Brief (Exhibit G), raising the following issues for appeal:

(1) The trial court erred when it failed to admonish the victim for coaching witnesses while they testified.
(2) The trial court erred when it admitted testimony related to a conversation with a 911 operator who was not available for cross-examination.

The Arizona Court of Appeals rejected both issues, and affirmed Petitioner's conviction and sentence. (Exhibit I, Mem. Dec.) Petitioner did not seek further review. (Exhibit I, Order and Mandate.)

D. PROCEEDINGS ON POST-CONVICTION RELIEF

Petitioner then filed a Notice of Post-Conviction Relief (Exhibit J). Counsel was appointed and filed a Petition (Exhibit K) arguing that appellate counsel was ineffective for failing to argue on appeal that the trial court failed to properly advise Petitioner of his rights prior to accepting his admissions of prior felony convictions and his on release status, and that trial counsel was ineffective for failing to arrange a settlement conference. The PCR court rejected both claims on the merits. Petitioner did not seek further review. (Exhibit A, Docket; Petition, Doc. 1 at 5.)

E. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 27, 2012 (Doc. 1). Petitioner's Petition asserts the following six grounds for relief:

(1) a violation of his federal constitutional right to a fair trial when the trial court failed to find that the victim was "coaching" witnesses;
(2) violation of his federal constitutional right to a fair trial and to confront witnesses where the trial court permitted the prosecutor to impeach a defense witness with her prior statement to a 911 operator, although the operator was not available for cross-examination;
(3) violation of his federal due process and equal protection rights where the trial court failed to inform him of his rights under Boykin v. Alabama, 395 U.S. 238 (1969), at sentencing;
(4) he received ineffective assistance of counsel at trial, direct appeal, and post-conviction proceedings in violation of the Sixth Amendment;
(5) violation of his federal due process rights when his competency was not evaluated and he was not receiving medication for his mental illness; and
(6) violation of his federal due process rights in connection with jury selection where no black jurors served on his jury and the court failed to strike certain jurors for cause.

Petitioner further argues that any failure to pursue his state remedies was because his attorney refused to help him appeal to the Arizona Supreme Court and he filed a State Bar complaint against counsel, because he was advised that presentation to the Arizona Supreme Court was no longer required under Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999), and because proper assistance was not available at the prison. (Petition, Doc. 1 at 5.)

Response - On September 12, 2012 Respondents filed their Response ("Answer") (Doc. 13). Respondents argue that Petitioner's state remedies were not properly exhausted, and his claims are now procedurally defaulted and barred from habeas review.

Reply - On November 16, 2012, Petitioner filed a Reply ("Affidavits in Support of Petitioners Writ of Habeas Corpus Claims") (Doc. 14). Petitioner argues that he was advised by PCR counsel that he had "exhausted all of his remedies, " and that such advice was ineffective assistance of counsel.

Order for Supplements - On December 17, 2012, the Court observed that "despite any deficiencies in Petitioner's presentation of the claim, the Arizona Court of Appeals actually addressed Petitioner's Confrontation Clause claim, " and directed the parties to supplement their briefing to address the merits of Ground Two regarding the witness's statements to the 911 operator. (Order 12/17/12, Doc. 15.)

First Supplemental Answer - On February 28, 2013, Respondents filed their first Supplemental Answer (Doc. 20) arguing that Petitioner's confrontation clause claim in Ground Two is without merit because the disputed testimony was not hearsay because it was not offered ...


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