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Munoz v. Ryan

United States District Court, D. Arizona

January 31, 2014

Jaime Perez Munoz, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

DAVID K. DUNCAN, Magistrate Judge.

Jaime Perez Munoz filed a timely Petition for Writ of Habeas Corpus on February 26, 2013, challenging his convictions in Maricopa County Superior Court following a jury trial for one count of kidnapping, two counts of attempted sexual assault, one count of sexual assault, and the imposition of concurrent prison terms, the longest being 7 years, followed by lifetime probation. He raises three grounds for habeas relief: (1) the prosecutor engaged in misconduct by failing to subpoena the victim for trial, by misleading counsel and the trial court as to the victim's whereabouts, and by offering false testimony; (2) Munoz received the ineffective assistance of counsel during critical stages of his trial proceedings; and (3) the trial court lacked subject matter jurisdiction when the indictment was filed, in violation of his due process rights. Respondents contend that Grounds One and Three are unexhausted and procedurally defaulted, and that Ground Two is without merit. The Court agrees and recommends that the petition be denied and dismissed with prejudice.

BACKGROUND

The facts supporting the convictions are summarized in the court of appeals memorandum decision:

The victim, a Spanish-only speaker, lived with Appellant, her adult son, in a Phoenix apartment. Sometime after 1:00 a.m. on March 23, 2008, Appellant approached his mother as she exited the shower, "gagged" her by placing his hand over her mouth, pushed her to the floor, and told her not to say anything or he would hit her. He then tried to penetrate her vagina with his penis but could not do so. He next placed his penis in her mouth, and when she tried to get up, he pushed her back down. He tried again to put his penis inside her vagina, but was incapable of getting it past her vulva because he could not get an erection. The victim ultimately escaped from the apartment by pushing a screen out of a bedroom window.
Shortly thereafter, Ernie S., who also lived in the apartment complex, was returning home when he noticed the victim attempting to communicate with a neighbor who spoke no Spanish. He could tell by the victim's face that something was wrong because she looked "terrified. She just looked very, very scared." When the victim saw him, she said "ayuda, " meaning "help" in Spanish. He told her that he spoke Spanish, and the victim "seemed to kind of cool down" or at least not get worse "because she finally found somebody to help her."
Speaking in Spanish, the victim exclaimed, "My son just raped me." She was still "unbelievably frightened" and "would like duck after she would hear any sound, and... would say, Is that him?'" Ernie S. offered to call the police or security, but the victim informed him that she did not wish to do so "because it's my son." Instead, she used his telephone to call her employer and her niece before asking Ernie S. if he would drive her to her niece's house. As he drove, the victim, who was crying hysterically, made many statements, including: "I can't believe he did this to me. He's never done anything like this before. He-I mean he's never disrespected me."
When they arrived at her niece's house, the victim requested that Ernie S. accompany her to the front door because she was afraid to walk there on her own. Her niece testified at trial that the victim was very upset, scared, and crying, but she eventually managed to "open up" and explain what had happened. The victim's niece's husband called the police.
A Phoenix police detective interviewed the victim later that morning. During the interview, the victim constantly used tissues to wipe her mouth. The detective noticed injuries on the victim's face, the side of her nose, her mouth and lip, and her right shoulder. The detective subsequently arranged a confrontation call between the victim and Appellant, using the assistance of a Spanish-speaking officer. Because the victim was still very upset, however, the confrontation call proved difficult. The victim would speak rapidly and often ask one question after the other without permitting Appellant to respond. Further, most of Appellant's responses during the telephone call were "vague." Appellant neither admitted nor denied the allegations his mother made; instead, he often responded with silence or took a long time to respond - and then only stated that he had "psychological problems" or "had too much to drink" or thought he "was dreaming." At one point, Appellant stated that he was not aware of what he was doing until he "woke up" and saw the expression on his mother's face.
During the call, the victim asked Appellant how he thought she felt. Appellant replied, "I already feel like a dog." He stated that he wanted her to call the police and he would wait for them at his apartment. When the victim asked why she should call the police, Appellant replied, "I deserve to go to jail."
After the confrontation call, Appellant called his ex-wife and informed her that he had done "something wrong" to his mother. When questioned if he had hit her, Appellant stated, "I did something worse." After Appellant hung up the phone, his ex-wife became concerned because he sounded "so depressed." She was in the midst of a conversation with a suicide line when Appellant called back and informed her that the police were there, he had a knife, and he was going to kill himself. He then hung up the phone.
Appellant was on the balcony of his apartment when police officers arrived. He then went inside the apartment and announced that he had a knife and planned to kill himself. Nonetheless, officers were able to arrest Appellant after making a forced entry into the apartment. While there, they noticed that a screen had been removed from a window and was lying on the bed.
The detective interviewed Appellant at approximately 6:50 p.m. that day. Appellant, who had scratches on his face, stated that his girlfriend had come over the previous evening and he had become "very intoxicated from drinking alcohol." He acknowledged that, in her confrontation call to him, his mother "had accused him of doing horrible things to her, " but he claimed he could not remember what had happened. However, he also told the detective that his mother was "an honest woman, " and he acknowledged that if she said "it happened, " then the police could assume what she said was true.
When asked about the scratches on his face, Appellant stated that "they were probably from the struggle" with his mother, although he agreed it was possible that they were the result of "rough sex" with his girlfriend. At one point, Appellant appeared to concede that he "put his penis in [his mother's] mouth" and forced her to perform oral sex on him, which was what his girlfriend did when he could not get an erection. Appellant also indicated that he had tried to have vaginal sex with his mother, although he qualified this by adding "if that's what she is telling you." When asked "why he thought he did it, " Appellant said it was "because of the things his mother had said to him." He stated that "he believed that he [had] done ...

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