United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, Magistrate Judge.
Pending before the court is a petition for writ of habeas corpus filed on April 19, 2012, by James Randall Halstead, an inmate confined in the Arizona State Prison Complex in Florence, Arizona. (Doc. 1) Halstead claims numerous instances of trial error and ineffective assistance of counsel.
Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).
The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order denying the petition. Four of Halstead's claims are procedurally defaulted. His claim of ineffective assistance should be denied on the merits.
Summary of the Case
Halstead was convicted after a jury trial of "three counts of sexual conduct with a minor under the age of twelve and one count of furnishing obscene or harmful items to a minor." (Doc. 13-1, p. 3) On June 2, 2008, the trial court gave Halstead a sentence of imprisonment totaling three consecutive life terms. (Doc. 13-1, pp. 20-24)
On direct appeal, Halstead argued (1) the testimony of the counselors, Kazinski and Banks, was improper vouching and (2) the testimony of Dr. Debra Reisen violated the Confrontation Clause. (Doc. 13-1, pp. 2-11) Nevertheless, the Arizona Court of Appeals affirmed Halstead's convictions and sentences on June 1, 2009. (Doc. 13-1, p. 2) The Arizona Supreme Court denied Halstead's petition for review on December 1, 2009. (Doc. 13, p. 29)
On January 28, 2010, Halstead filed notice of post-conviction relief. (Doc. 13, p. 3) In his petition, he argued (A) trial counsel was ineffective for (1) failing to object to certain testimony given by the state's expert, Wendy Dutton, (2) failing to object to testimony about uncharged acts from the counselor, Beth Banks, (3) failing to object to Banks's improper vouching, (4) failing to object to testimony given by Rojene Drake, and (5) failing to object to testimony by Dr. Debra Reisen and (B) the prosecutor committed misconduct by eliciting improper testimony from Dutton, Banks, and Drake. (Doc. 13-5, pp. 12, 17, 18, 23, 25)
The trial court denied the petition on August 6, 2010. (Doc. 13-5, pp. 29-31) The Arizona Court of Appeals denied relief on March 8, 2011. (Doc. 13-6, p. 27) Halstead did not seek further review. (Doc. 13, p. 3)
On April 19, 2012, Halstead filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He argues (1) the testimony of the state's medical expert, Dr. Debra Reisen, violated his confrontation rights; (2) the testimony of the counselors, Diane Kazinski and Elizabeth Banks, improperly "buttressed" the victim's testimony violating his due process rights; (3) trial counsel was ineffective because he (a) failed to properly object to Reisen's testimony that the victim exhibited certain behavior typical of one who had suffered sexual abuse, (b) failed to object to the prosecutor's use of hypothetical questions designed to elicit similar testimony from the expert, Wendy Dutton, (c) failed to object to the use of uncharged acts of sexual misconduct, and (d) failed to object to questions that exceeded the court's order limiting testimony corroborating the victim's testimony; (4) the prosecutor committed misconduct during the questioning of the state's expert, Wendy Dutton; and (5) trial counsel was ineffective by failing to call certain witnesses. (Doc. 1, pp. 6, 10, 13, 16, 19)
On August 27, 2012, the respondent filed a limited answer arguing among other things that the petition is time-barred. (Doc. 13) Halstead did not file a reply.
The Magistrate Judge issued a report recommending that the petition be dismissed as time-barred on July 29, 2013. (Doc. 17) The District Court declined to adopt the recommendation in an order filed on January 8, 2014.
On February 28, 2014, the respondent filed an amended answer arguing four of Halstead's claims are procedurally defaulted and, in the alternative, all claims should be denied on the merits. (Doc. 26) Halstead did not file a reply.
The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is in custody pursuant to the judgment of a state court, the writ will not be granted unless prior adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...