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Natzel v. Ryan

United States District Court, Ninth Circuit

January 10, 2014

Eric Joseph Natzel, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

MICHELLE H. BURNS, Magistrate Judge.

TO THE HONORABLE SUSAN R. BOLTON, UNITED STATES DISTRICT JUDGE:

Petitioner Eric Joseph Natzel, who is confined in the Arizona State Prison Complex-Lewis, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and a memorandum in support thereof (Docs. 1, 2). On April 12, 2013, Respondents filed their Answer (Doc. 12). On September 19, 2013, attorney Guy Floyd Brown filed a Notice of Appearance on behalf of Petitioner indicating that he has been retained to represent Petitioner in all further proceedings (Doc. 17). Petitioner, through counsel, filed his Reply to Respondents' Answer on November 22, 2013 (Doc. 23).

BACKGROUND[1]

The Arizona Court of Appeals set forth the following facts in its Memorandum Decision affirming Petitioner's convictions and sentences on direct appeal:

The victim of the offenses was [Petitioner]'s thirty-four month old daughter. [Petitioner]'s wife, the victim's mother ("Mother"), went to work at 1:00 p.m. on the date of the incident while [Petitioner] stayed home with the victim. Mother called home shortly after 5:00 p.m. and spoke with [Petitioner], who was playing videogames. Eventually, Mother asked to speak to the victim. [Petitioner] replied that he did not know where the victim was and he could not find her. Because the victim had a toy box that Mother had recently seen her sit in while playing, Mother suggested that [Petitioner] look in the toy box. When [Petitioner] returned to the phone, he told Mother to come home because the victim was choking and then hung up. [Petitioner] later told law enforcement personnel he found the victim inside the toy box, face down and unresponsive. It was later determined the victim died of asphyxiation while trapped inside the toy box.
The interior of the toy box measured nineteen inches long, thirteen inches wide and thirteen inches tall. Tests using the victim's body and the toy box indicated she would barely fit in the box with the lid closed. She had to be forced into a fetal position with her arms and legs curled underneath her and her head twisted forward. There was testimony it was a "very, very snug, tight fit to get her into the box, " and that the victim had to be "squeezed" into the box in order to close and latch the lid. Tests conducted on the box revealed it was possible for the lid to become latched if it fell closed while the box was empty and the latches were in a specific position. If the lid became latched with the victim inside, the victim would not have been able to push the lid open.
Before the incident, the victim had no injuries other than two small bruises on her shins and a slight bump on her head from where she bumped her head the previous night. At the time of her autopsy, the victim had twenty-one groups of bruises and/or abrasions representing several dozen individual injuries, the majority of which were minutes to hours old at the time of the victim's death. None of these injuries were life-threatening. Some of the victim's injuries were attributed to her struggling to get out of the toy box. But additional injuries to the victim's head and back, which were "nonaccidental, " were inconsistent with injuries sustained while struggling in the box, possibly caused by the use of a blunt object or a human hand.
[Petitioner] was charged with two counts of child abuse pursuant to Arizona Revised Statutes ("A.R.S.") section 13-3623(A) and (B). To prove count one, the State had to prove that in circumstances likely to produce death or serious physical injury, [Petitioner] caused the victim to suffer physical injury or, having the care or custody of the victim, caused or permitted the person or health of the victim to be injured or caused or permitted the victim to be placed in a situation where the person or health of the victim was endangered, and that he did so intentionally or knowingly. A.R.S. § 13-3623(A)(1).... To prove count two, the State had to prove that in circumstances other than those likely to produce death or serious physical injury to the victim, [Petitioner] caused the victim to suffer physical injury or abuse or, having the care or custody of the victim, caused or permitted the person or health of the victim to be injured or caused or permitted the victim to be placed in a situation where the person or health of the victim was endangered, and that he did so intentionally or knowingly. A.R.S. § 13-3623(B)(1).... Count one was charged as a dangerous crime against children because the victim was under the age of fifteen. See A.R.S. § 13-604.01(M)(1)(h).

(Exh. D.)

On February 7, 2008, Petitioner was convicted on one count each of: (1) child abuse under circumstances to produce death or serious physical injury, a class felony and a dangerous crime against children (Count 1); and (2) child abuse under circumstances likely to cause the victim to suffer physical injury or abuse other than those likely to produce death or serious physical injury, a class 4 felony and domestic violence offense (Count 2). (Exhs. A, B.) On June 20, 2008, the state trial court sentenced Petitioner to an aggravated term of 24 years' imprisonment on Count 1, and the presumptive term of 2½ years' imprisonment on Count 2. (Exh. C.) The trial court ordered that the sentences be served consecutively. (Id.)

Petitioner appealed, arguing that the trial court erred by: (1) imposing an aggravated sentence on Count 1; (2) ordering that the sentences be served consecutively; (3) admitting testimony regarding the "uncharged crime of homicide;" (4) admitting photographs of the deceased victim; and (5) instructing the jury regarding the burden of proof pursuant to State v. Portillo , 182 Ariz. 592, 898 P.2d 970 (1995). (Exh. D.)

The Arizona Court of Appeals affirmed the convictions and sentences imposed. (Id.) The court held that: (1) the trial court properly imposed an aggravated sentence; (2) because the two crimes involved separate acts, the imposition of consecutive sentences was proper; (3) neither the "homicide" testimony nor the admission of the autopsy photographs were improper; and (4) the jury was properly instructed on its burden of proof. (Id.)

On November 5, 2009, Petitioner filed a timely notice of post-conviction relief. (Exh. E.) Thereafter, Petitioner filed a petition for post-conviction relief raising the following claims: (1) trial counsel rendered ineffective assistance by, (i) "prosecuting [Petitioner], " by presenting expert testimony from a witness that had previously been noticed by the state, (ii) failing to request a lesser-included offense instruction on Count 1, (iii) not objecting to the qualifications of the state's expert, and (iv) failing to "investigate the state's medical-opinion-only' evidence and obtain readily available defense experts to testify [on his behalf];" ...


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