United States District Court, D. Arizona
CINDY K. JORGENSON, District Judge.
On June 17, 2014, Magistrate Judge Jacqueline M. Rateau issued a Report and Recommendation (Doc. 24) in which she recommended that the Amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody filed by Vladimir Garcia Soza ("Soza") be denied. The magistrate judge advised the parties that written objections to the Report and Recommendation were to be filed within fourteen days of service of a copy of the Report and Recommendation pursuant to 28 U.S.C. § 636(b).
Report and Recommendation
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." The statute does not "require  some lesser review by [this Court] when no objections are filed." Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Rather, this Court is not required to conduct "any review at all... of any issue that is not the subject of an objection." Id. at 149.
The magistrate judge addressed Soza's claim that he was denied his Fifth Amendment rights to due process and a fair trial based on the trial court's ruling admitting the "snitch poem" into evidence on the merits. The magistrate judge determined there was no clearly established federal law that the admission of the evidence would constitute a due process violation sufficient to warrant the issuance of a writ of habeas corpus.
The magistrate judge determined that Soza had not exhausted his claim that he was denied his Fifth Amendment rights to due process and against self-incrimination when the trial court denied his motion for a mistrial based on a detective's testimony mentioning an interview of Soza where Soza had exercised his right to remain silent. The magistrate judge also concluded that Soza had not fairly presented the claim as a federal claim in state court. Alternatively, the magistrate judge concluded the detective's testimony did not inform the jury about the circumstances of the interview or that Soza terminated the interview upon invoking his right to remain silent and that, under these circumstances, the state court's ruling was not contrary to, or an unreasonable application of Supreme Court precedent.
Soza's Objections as to Claim 1 - Denial of Due Process and a Fair Trial Based on Admission of the Snitch Poem
Although Soza acknowledges that there is no specific holding of the U.S. Supreme Court that "admission of overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ" (R&R, p. 8, ll. 1-3), Soza asserts there exists a clear proscription against the admission of prejudicial evidence that violates fundamental concepts of justice. Further, Soza points out that there is no requirement that the "clearly established Federal law, as determined by the Supreme Court of the United States" requirement in 28 U.S.C. § 2254(d)(1), be specific.
Although the statute does not require that the federal law must be specific, the federal law must be clearly established. In arguing that the admission of the propensity evidence of the snitch letter is an extreme violation warranting relief, Soza cites to the Ninth Circuit:
[I]t seems clear that the general ban on propensity evidence has the requisit historical pedigree to qualify for constitutional status[.]
United States v. LeMay, 260 F.3d 1018, 1025 (9th Cir. 2001), citations omitted. However, in making the statement, the Ninth Circuit stated it seemed clear. In other words, the Ninth Circuit did not determine that it was clearly established. See Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) ("If no Supreme Court precedent creates clearly established federal law relating to the issue the habeas petition raised in the state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law."). The Court agrees with the magistrate judge that there is no clearly established federal law that the admission of the snitch poem would constitute a due process violation sufficient to warrant the issuance of a writ of habeas corpus.
Soza's Objections as to Claim 2 - Denial of Due Process and Right Against Self-Incrimination by Denial of Mistrial
Soza disputes the magistrate judge's conclusion that Soza had not exhausted his claim that he was denied his Fifth Amendment rights to due process and against self-incrimination when the trial court denied his motion for a mistrial based on a detective's testimony mentioning an interview of Soza where Soza had exercised his right to remain silent. Soza points out that the Opening Brief cited a state case that cited to Doyle v. Ohio, 426 U.S. 610, 617 (1976), the Opening Brief cited to the U.S. Constitution, and the state appellate decision reference the Due Process Clause in issuing its decision. The Court agrees with the magistrate judge's conclusion that Soza is not entitled to relief. However, the Court will not adopt the magistrate judge's conclusions as to whether Soza has adequately exhausted this claim.
Although Respondents argued in their Answer that Soza had made a merely passing reference to a federal constitutional principle (Answer, p. 9, ll. 9-11), Soza's Opening Brief before the Court of Appeals of Arizona cited to a state case, State v. Gilfillan, 196 Ariz. 396, 998 P.2d 1069 (App. 2000), in arguing that a defendant's due process rights were violated by admission of a statement invoking the right to silence - Gilfillan cited to Doyle v. Ohio, 426 U.S. 610 (1976) in support of that proposition. (Doc. 4, pp. 26-27 of 84) Moreover, the Opening Brief ...