United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, District Judge.
Pending before the Court is the Petition Under 28 U.S.C. § 2254 For a Writ of Habeas Corpus by A Person in State Custody (Non-Death Penalty) filed by Stanford Lamar Ferrell, an inmate confined in the Arizona State Prison Complex in Eloy, Arizona. (Doc. 1). Petitioner asserts claims based on trial error, newly discovered evidence, and ineffective assistance of counsel. Respondents have filed a Limited Answer (Doc. 19-21), and Petitioner has filed a Reply. (Doc. 26).
Pursuant to the Rules of Practice of the United States District Court for the District of Arizona, this matter was referred to Magistrate Judge Bowman for a report and recommendation. LRCiv 72.2(a)(2).
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the Petition. All but one of Petitioner's claims are either procedurally defaulted or not federally cognizable. The cognizable claim of ineffective assistance of counsel should be denied on the merits.
Summary of the Case
Petitioner was convicted in Cochise County Superior Court of two counts of child molestation involving separate victims under the age of fifteen. (Doc. 19, Ex. A, pp. 1-2). The state trial court sentenced Petitioner to consecutive slightly mitigated 15-year terms of imprisonment. ( Id. at p. 2).
Proceedings Relevant to Petitioner's Motion to Vacate Judgment
On February 3, 2009, Petitioner pro se filed a Motion to Vacate the Judgment - Conviction (motion to vacate judgment) under Rule 24.2, Ariz. R. Crim. P. (Doc. 19, Ex. E). Petitioner alleged the following grounds:
(1) Based on information in a police report, the presentence report, and the testimony of victim B's father at sentencing, newly discovered evidence demonstrated that victim B's father committed perjury by lying about the date victim B disclosed the molestation and whether victim B's father had financial motives to falsely accuse Petitioner.
(2) The prosecutor committed misconduct by suborning victim B's father's alleged perjury at trial.
(3) Trial counsel was ineffective in failing to interview and call witnesses, failing to present evidence at trial, and failing to move for a new trial based on perjury and newly discovered evidence.
( Id. )
On May 29, 2009, the trial court filed an Order finding that the third ground was precluded because ineffective assistance of counsel must be raised in post-conviction proceedings, not in a motion to vacate under Rule 24.2. (Doc. 19, Ex. F). The court held a three-day hearing on the other two grounds and then denied those grounds on the merits in a Decision and Order filed on July 16, 2009. (Doc. 19, Ex. G). The court found that Petitioner had not demonstrated that victim B's father committed perjury because he had not shown inconsistencies between the father's in-court statement that he learned of the alleged molestation in 2003 and the father's out-of-court statement as reported in Frank R.'s affidavit that he told Frank in March 2004 that he intended to report the incident to the police. (Doc. 19, Ex. G, pp. 2-3). The trial court noted that Kenneth R. was the victim and had testified that he reported the incident in July 2004. ( Id. ) The trial court also found no inconsistencies between Karl R.'s testimony - that he quit his job to move to Missouri but the move did not occur - and Karl R.'s statement as contained in Petitioner's presentence report - that the family was emotionally, psychologically and financially affected by Petitioner's actions, that he and his wife had quit their jobs to relocate to Missouri to take their son away from Petitioner, and that he and his wife had lost one year of salary and were seeking $90, 000 in restitution. ( Id., p. 3). The trial court determined that any inconsistencies were not so significant that impeachment evidence probably would have changed the verdict or sentence. ( Id. )
On August 17, 2009, Petitioner moved for reconsideration of the trial court's July 16, 2009 ruling. (Doc. 21, Ex. NN). Petitioner asserted the following separate claims:
(1) Based on police reports, the presentence report, testimony at trial, and testimony at the presentence hearing, victim B's father committed perjury by lying about the date victim B disclosed the molestation.
(2) Based on police reports, the presentence report, testimony at trial, and testimony at the presentence hearing, victim B's father committed perjury by lying about whether he had financial incentives to falsely accuse Petitioner.
(3) Based on testimony at trial, photographs taken at Petitioner's daughter's birthday party, and "forthcoming affidavits, " victim B committed perjury at trial by lying about the circumstances relevant to a gift (electric scooter) he received from Petitioner.
(4) Affidavits from the parents of children unrelated to the case stating that Petitioner disclosed he had been accused of molestation and excerpts from the MySpace page of victim A's mother constituted newly discovered evidence demonstrating that victim A's mother committed perjury at trial by denying Petitioner told her he had been accused of molestation in the past.
( Id. ) On August 26, 2009, the trial court denied the motion for reconsideration, finding that "[n]othing in the motion for rehearing presents a valid reason for rehearing or reconsidering" the court's July 16, 2009 ruling. (Doc. 19, Ex. I). On September 9, 2009, Petitioner moved for reconsideration of this order, but according to Respondents the file does not contain a ruling on this motion. (Doc. 19, Ex. H; see Doc. 19, p. 4, n. 2).
On September 25, 2009, Petitioner filed a petition for review of the trial court's rulings in the Arizona Court of Appeals. (Doc. 19, Ex. J). On March 3, 2010, the court of appeals dismissed the petition for review as untimely but granted Petitioner permission to file for a delayed appeal in the trial court. (Doc. 19, Ex. K). Petitioner's motion for reconsideration of this order was denied. (Doc. 19, Ex. L & Ex. M).
Petitioner filed in the trial court for a delayed appeal, the motion was granted on March 30, 2010, and Petitioner filed a notice of delayed appeal. (Doc. 19, Ex. N). On April 30, 2010, the trial court forwarded Petitioner's pleadings to the Arizona Court of Appeals. ( Id. ) On May 5, 2010, the state court of appeals reinstated the appellate proceedings and accepted the petition for review it had previously dismissed on March 3, 2010. (Doc. 19, Ex. O). Petitioner asserted the following grounds in the reinstated petition for review:
(1) The trial court erred in denying Petitioner's claims of perjury by injecting a materiality component into the perjury statute.
(2) The trial court erred by considering responsive pleadings from the State that were unsupported by affidavits, records, or other documentation;
(3) The trial court failed to properly consider evidence presented during the three-day hearing on the motion to vacate the judgment.
(4) The trial court was biased against Petitioner.
(Doc. 19, Ex. J).
On July 30, 2010, the Arizona Court of Appeals affirmed the trial court's ruling on the motion to vacate the judgment. (Doc. 19, Ex. Q, State v. Stanford Lamar Ferrell, No. 2 CA-CR XXXX-XXXX PR, Memorandum Decision). It found as to the first ground concerning perjury that, even if the trial court had not properly interpreted the perjury statute, the trial court had appropriately considered the evidence under the standard for newly discovered evidence and had not abused its discretion in denying the motion to vacate. ( Id., p. 3 ¶ 4). It denied the second ground on the merits, finding that Petitioner could have raised the issue in the trial court and had not shown fundamental error and prejudice on appeal. ( Id., p. 4 ¶¶ 5-6). It found that the third ground was not supported by the record and that Petitioner had not provided sufficient authority in support of the fourth ground. ( Id., p. 5 ¶ 7). The state court of appeals noted that it had recently considered Petitioner's separate direct appeal of his conviction and sentence and that his delayed appeal and direct appeal were not consolidated due to oversight. ( Id., p. 2, n.1).
According to Respondents, on October 20, 2010, Petitioner sought review of the court of appeals' ruling in the Arizona Supreme Court. (Doc. 19, p. 6; Doc. 19, Ex. R). Review was denied on February 17, 2011. (Doc. 19, Ex. S). Respondents have not found any record showing that Petitioner sought review of this ruling in the United States Supreme Court. (Doc. 19, p. 6).
Petitioner's Direct Appeal
On December 4, 2008, Petitioner filed a notice of appeal from his conviction and sentence. (Doc. 19, Ex. B). On January 27, 2010, appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that she could find no colorable issues to raise but noting a "potentially arguable" issue concerning Petitioner's unsuccessful pretrial motion to sever the charges as to each victim. (Doc. 19, Ex. T). On February 25, 2010, Petitioner filed a supplemental opening appellate brief asserting the following issues:
(1) Victim B's testimony at a pretrial hearing, as compared to his trial testimony, demonstrated that victim B committed perjury when he testified about the location where Petitioner gave him a gift (electric scooter).
(2) The prosecutor committed misconduct by (a) failing to correct victim B's testimony about the location of the gift which he knew was false; (b) cross-examining Petitioner using unspecified argumentative, demeaning, and improperly suggestive questions; and (c) "intentionally [trying] to demonize" Petitioner, misrepresenting the law and evidence, and improperly appealing to the jurors' emotions during closing arguments.
(Doc. 19, Ex. A, pp. 2-6 & Ex. U).
On May 14, 2010, the Arizona Court of Appeals affirmed Petitioner's conviction and sentence. (Doc. 19, Ex. A, State v. Stanford Lamar Ferrell, No. 2 CA-CR XXXX-XXXX, Memorandum Decision). It found that the trial court had not erred in denying the motion to sever. ( Id., pp. 3-4). If further found that Petitioner had not objected to the prosecutor's conduct in the trial court and that none of the grounds asserted amounted to fundamental error. ( Id., pp. 4-6).
On July 27, 2010, Petitioner filed a petition for review of the court of appeals' decision in the Arizona Supreme Court. (Doc. 21, Ex. MM). Review was denied on December 6, 2010. (Doc. 19, Ex. V). According to Respondents, Petitioner did not seek further review of that decision. (Doc. 1, p. 3; Doc. 19, p. 7).
Petitioner's First Post-Conviction Proceeding
On December 10, 2008, Petitioner filed a Notice of Post-Conviction Relief (PCR). (Doc. 19, Ex. C, First PCR Notice). On December 23, 2008, Petitioner filed a pro se Petition for Post-Conviction Relief. (Doc. 19, Ex. D). The state trial court entered an order that this pro se PCR Petition was not properly before it because Petitioner had been appointed PCR counsel and Petitioner's direct appeal remained pending. (Doc. 19, Ex. W, pp. 1-2). On March 10, 2011, appointed counsel filed a Petition for PCR relief stating that he could find no colorable issues to raise. (Doc. 19, Ex. X, pp. 1-2). PCR counsel requested leave to withdraw and an extension of time so Petitioner pro se could file a PCR petition. ( Id., p. 2). On July 27, 2011, Petitioner filed a pro se petition for post-conviction relief (First pro se PCR Petition) in which he asserted the following grounds:
(1) Trial counsel provided ineffective assistance based on the following allegations:
(a) Counsel failed to interview Allen Dome pretrial or call him as a witness even though Dome had information that allegedly ...