United States District Court, D. Arizona
AMENDED ORDER (AMENDED AS TO FIRST LINE ONLY)
Currently pending before the Court is Petitioner Oliver Michael Pryor’s pro se First Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“First Amended Petition”) (Doc. 11). Respondents have filed an Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 17). Petitioner filed a Reply (Doc. 21). The First Amended Petition is ripe for adjudication.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Arizona Court of Appeals stated the facts as follows:
The victims, M. and K., were the granddaughters of Pryor’s wife, Gail. Gail often watched the girls for her daughter Michelle while Michelle worked. Gail also worked, and at times, Pryor took care of the girls when both Gail and Michelle were working. During the summer of 2004, when school was not in session, the girls would spend a few days each week at Pryor and Gail’s home, sleeping there some of the nights. Once school started in August, the girls would spend the night with Pryor and Gail if Michelle was on call at work and they could not stay with their father. Michelle testified that at one point during the summer, the girls no longer wanted to go to Gail’s home. Over Pryor’s objection, Michelle testified that in February 2006, the children had told her Pryor had touched them without their clothes on. The girls had told two of their cousins what had happened, and the cousins urged the girls to tell their mother. Michelle called the Pima County Sheriff’s office, and Tucson Police Department Detective Katherine Kragnes subsequently responded. The girls were interviewed by a person qualified to conduct a forensic interview of children.
K. testified she had been eight or nine years old when the detective had interviewed her. She stated her grandpa more than once had put his mouth on her vagina. A drawing she had provided police was admitted as an exhibit; she explained the drawing depicted M. and Pryor in bed and showed his penis, which she explained had some “[l]ittle hairs.” She also admitted telling the detective Pryor had “rubb[ed]” her “butt” with his hand. She recalled telling the detective about one incident in which Pryor had kissed her and her sister “in the wrong places” and about how she had seen “white stuff c[o]me out” of his penis. She admitted telling the prosecutor and defense counsel during an interview that “white stuff . . . went in [her] mouth sometimes.” She also testified she and her sister had seen a videotape at Pryor’s house that showed a man putting his mouth on and rubbing a girl’s private parts and a woman putting her mouth on a man’s private parts.
M. testified about a number of incidents during which Pryor had touched her on her “chest, . . . bottom, . . . [and] private area.” She described how Pryor squeezed her breasts under her clothes and how, on many occasions, he had gone into the room where she and her sister K. were sleeping and told her to lick his penis. He also made her “[p]ut [her]mouth around it.” She and K. licked his penis and “white stuff” came out. He also twice touched her inside her private parts with his hand. She described a game in which she and K. would take turns to see who could make him “happy fastest, ” which she said meant ejaculate. Pryor once paid K. $20 for making him happy fastest.
Michelle’s husband Jeff, the children’s stepfather, confronted Pryor at Gail’s house after the children told Michelle what had been happening. Pryor denied molesting them. Detective Kragnes confronted Pryor and asked him if he would talk to her. She met with him and took a statement from him, which she recorded.
Answer (Doc. 17), Ariz. Ct. of Appeals Mem. Decision (Exh. “G”) at ¶¶ 2-5 (alterations in original).
Petitioner was charged with two counts of continuous sexual abuse of a child, dangerous crimes against children, and two counts of furnishing obscene or harmful items to minors. Id., Exh. “G” at ¶ 1. On September 15, 2008, a jury found Petitioner guilty of all counts. Id., Ariz. Superior Ct., Pima County, Minute Entry 9/15/2008 (Exh. “A”) at 1-2. On October 23, 2008, Petitioner was sentenced to the presumptive term of twenty (20) years imprisonment for each count of continuous sexual abuse of a child, to run consecutively. Id., Ariz. Superior Ct., Pima County, Order 10/23/2008 (Exh. “B”) at 2-3. Petitioner was also sentenced to the presumptive term of 2.5 years for each count of furnishing harmful items to a minor, to run concurrently with each other, but consecutively from the second twenty (20) year term. Id., Exh. “B” at 3-4.
A. Direct Appeal
On October 23, 2008, Petitioner filed his Notice of Appeal. Answer (Doc. 17), Notice of Appeal 10/23/2008 (Exh. “C”). On April 7, 2009, Petitioner filed his Opening Brief. Id., Appellant’s Opening Br. 4/7/2009 (Exh. “D”). Petitioner alleged three (3)claims for relief, including that (1) the trial court “abused its discretion in denying the motion in limine to preclude evidence of Appellant’s arrest in Mexico[, ] [and] giving a flight instruction unsupported by the facts[;]” (2) the trial court “erred in denying [Appellant’s] Rule 20 motion challenging that the state had not proved continuous sexual abuse per statute in counts one and two[;]” and (3) the trial court erred in “admit[ting] the testimony of Michelle Wright regarding what the girls told her, it being inadmissible hearsay and not within any proper exception[.]” Id., Exh. “D” at 25-39.
On October 21, 2009, the Arizona Court of Appeals affirmed Petitioner’s convictions. See Answer (Doc. 17), Ariz.Ct.App. Mem. Decision 10/21/2009 (Exh. “G”). In assessing Petitioner’s claim regarding the trial court’s admission of evidence regarding Petitioner’s move to Mexico prior to being charged, the court of appeals recognized that “[t]he mere fact that Pryor had an explanation for why he left the country did not render the evidence irrelevant.” Id., Exh. “G” at 7. Relying on Arizona state case law and procedural rules, the court of appeals determined that the “alternative explanation for flight goes to weight not admissibility of evidence and does not preclude instruction.” Id. (citing State v. Hunter, 136 Ariz. 45, 49, 664 P.2d 195, 199 (Ariz. 1983)). Again relying on state case law, the court of appeals further found that the evidence was not unduly prejudicial. Answer (Doc. 17), Exh. “G” at 8. As such, the court of appeals found that the trial court did not abuse its discretion. Id., Exh. “G” at 7- 8.
The Arizona Court of Appeals also rejected Petitioner’s contention “that the trial court erred when it instructed the jury it could infer guilt from evidence of flight.” Id., Exh. “G” at 8. The court of appeals noted that although Petitioner objected to the evidence of flight, he did not expressly object to the instruction. Id., Exh. “G” at 9. As such, Petitioner’s only ground for relief in the appellate court was one for fundamental error. Id. (citing State v. Dann, 220 Ariz. 351, ¶ 51, 207 P.3d 604, 617 (Ariz. 2009)). Again relying on state law, the court of appeals went on to hold that in light of the evidence, the jury had been properly instructed, and even if the instruction were fundamental error, Petitioner had not met his burden of establishing prejudice. Id., Exh. “G” at 9-10.
Regarding Petitioner’s Rule 20 motion, the Arizona Court of Appeals recognized that “[a] Rule 20 motion should only be granted if there is no substantial evidence to support the conviction.” Answer (Doc. 17), Exh. “G” at 10 (citing Ariz. R. Crim. P. 20(a)). The court defined “substantial evidence” as “more than a mere scintilla and is such proof that ‘reasonable persons could accept as adequate and sufficient to support a conclusion of defendant’s guilt beyond a reasonable doubt.’” Id., Exh. “G” at 10-11 (quoting State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (Ariz. 1990)). Upon review of the evidence presented at trial, the court of appeals held that “reasonable jurors readily could find beyond a reasonable doubt that Pryor had engaged in at least three sexual acts with the victims for a period of three months or longer[, ]” and as such the trial court did not abuse its discretion in denying Petitioner’s Rule 20 motion. Id., Exh. “G” at 11-12.
Concerning Petitioner’s contention that “the trial court erred in admitting the statements the victims had made to their mother over his [hearsay] objection[, ]” the court of appeals held that “[t]o the extent the testimony . . . was presented for the truth of the matter asserted it was cumulative.” Answer (Doc. 17), Exh. “G” at 12-13. The court further held that “[a]ny error in its admission was therefore harmless beyond a reasonable doubt.” Id., Exh. “G” at 13 (citing State v. Dickens, 187 Ariz. 1, 19, 926 P.2d 468, 486 (Ariz. 1996); State v. Eastlack, 180 Ariz. 243, 256-57, 883 P.2d 999, 1012-13 (Ariz. 1994)).
Petitioner did not seek review of this decision with the Arizona Supreme Court. Answer (Doc. 17), Ariz.Ct.App. Mandate 12/2/2009 (Exh. “H”); Petition (Doc. 1) at 3.
B. Initial Post-Conviction Relief Proceeding
On February 3, 2010, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 17), Not. of PCR 2/3/2010 (Exh. “I”). On September 10, 2010, Petitioner filed his Petition for Post Conviction Relief. Answer (Doc. 17), Pet. for PCR (Exh. “L”). Petitioner claimed that his trial counsel was ineffective for “failing to challenge the prosecutor’s use of peremptory strikes based on gender.” Id., Exh. “L” at 5. In furtherance of this argument, Petitioner alleged that trial counsel’s failure to challenge the prosecution’s peremptory challenges “fell below prevailing norms” and that Petitioner was prejudiced by the “structural error” resulting from the alleged deprivation of having an impartial jury decide his case. Id., Exh. “L” at 9.
On November 3, 2010, the trial court denied Petitioner’s PCR petition. See Answer (Doc. 17), Exh. “O.” The trial court recognized that “[t]o state a colorable claim for ineffective assistance of counsel claim, a petitioner must satisfy a two-part test: (1) a petitioner must show that his or her counsel’s performance fell below an objective standard of reasonableness; and (2) a petitioner must show that the deficient performance resulted in actual prejudice to his case.” Id., Exh. “O” at 1-2 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The Rule 32 court found that it need not decide whether trial counsel was ineffective for failing to make a Batson challenge, because the Petitioner had “failed to allege sufficient facts to establish that his case was in fact prejudiced.” Answer (Doc. 17), Exh. “O” at 2. The Rule 32 court noted that “a defendant is not constitutionally entitled to [a] balanced jury, nor a jury comprised of the same proportions of genders as exist in the community generally.” Id., Exh. “O” at 2 (citing State v. Williams, 111 Ariz. 175, 178, (Ariz. 1976)). The Rule 32 court further noted that “[a]n examination of the jury roster . . . reveal[ed] that of the fifty-four jurors questioned in voir dire, only nineteen were men[, ] [and] [o]f these, eleven were struck for cause.” Id., Exh. “O” at 2. The Rule 32 court held that “nothing about this factual scenario indicates that the prosecutor intentionally used her strikes to remove men from the panel[, ] . . . [and] Petitioner has offered no evidence that his conviction was, in fact, the result of gender bias.” Id., Exh. “O” at 2. As such, the Rule 32 court determined that “Petitioner ha[d] failed to show that he was actually prejudiced in this case, and thus ha[d] failed to satisfy the second prong of the Strickland test[, ]” and denied relief Id., Exh. “O” at 2.
On December 27, 2010, Petitioner filed his Petition for Review from Denial of Rule 32 Petitioner for Post-Conviction Relief in the Arizona Court of Appeals. See Answer (Doc. 17), Pet. for Review from Denial of Rule 32 Pet. For PCR 12/27/2010 (Exh. “Q”). On April 7, 2011, the Arizona Court of Appeals granted review, but denied relief. Answer (Doc. 17), Ariz.Ct.App. Mem. Decision 4/7/2011 (Exh. “R”). The court of appeals considered Petitioner’s claims of ineffective assistance of counsel due to an alleged failure “to raise a claim based on Batson v. Kentucky, 476 U.S. 79 (1986), that the state had improperly used its peremptory strikes to remove several male jurors.” Id., Exh. “R” at 2. The court of appeals found that “[e]ven assuming . . . that Pryor ha[d] demonstrated his counsel should have raised a Batson challenge, that alone is not sufficient to show prejudice.” Id., Exh. “R” at 3. The court of appeals stated that Petitioner must also “show a reasonable probability a Batson challenge would have resulted in a different jury[.]” Id., Exh. “R” at 3 (quoting Strickland, 466 U.S. at 694). The court of appeals held Petitioner failed to make “a colorable showing of such a probability.” Id., Exh. “R” at 3.
On April 11, 2011, Petitioner filed a Motion for Reconsideration, which was summarily denied eight (8) days later. See Answer (Doc. 17), Pet.’s Mot. for Recon. (Exh. “S”) & Ariz. Ct. of Appeals Order 4/19/2011 (Exh. “T”). On April 21, 2011, Petitioner sought review of the denial of his PCR petition by the Arizona Supreme Court. See Answer (Doc. 17), Pet. for Review to Ariz. Supreme Ct. 4/19/2011 (Exh. “U”). On September 27, 2011, the Arizona Supreme Court denied review without comment. Answer (Doc. 17), Ariz. Supreme Ct. ME 9/27/2011 (Exh. “V”).
C. Second Post-Conviction Relief Proceeding
On October 27, 2011, Petitioner filed his Notice of Post-Conviction Relief. See Answer (Doc. 17), Not. of PCR 10/27/2011 (Exh. “W”). Petitioner argues that “[b]ecause Arizona law prohibits raising ineffective assistance of counsel claims within a direct appeal, to deprive Pryor of effective counsel in a Post-Conviction Proceeding . . . [violates] Article 2 § 24 of the Arizona Constitution and the Sixth Amendment of the United States Constitution.” Answer (Doc. 17), Def.’s (Subsequent) Petition for PCR 10/27/2011 (Exh. “X”) at 5. Petitioner further argued that “[b]oth Appellate [c]ounsel and Post-Conviction counsel were ineffective for failing to previously present th[e] issue [of Petitioner’s competency] to the [c]ourt for consideration.” Id., Exh. “X” at 5. Petitioner argues that his sleep deprivation due to sleep apnea was such that a competency hearing was required to assess whether he could “knowingly and intelligently” reject a plea, stand trial. Id., Exh. “X” at 5-8. Petitioner further asserts that this failure violated his Due Process rights. Id., Exh. “X” at 8.
On May 17, 2012, the trial court denied Petitioner second PCR petition. See Answer (Doc. 17), In Chambers Ruling, Re: Pet. for PCR 5/17/2012 (Exh. “AA”). The trial court analyzed whether Petitioner’s claim regarding his alleged incompetency because he was not permitted to use his Continuous Positive Air Pressure (“CPAP”) machine while incarcerated at the Pima County Jail could be raised under Rule 32.2, Arizona Rules of Criminal Procedure. Id., Exh. “AA” at 2. The trial court observed that “Petitioner’s claim that he was not competent does not fall under any of the exceptions listed in Rule 32.2(b)[, ] . . . [and] could have been raised on direct appeal[.]” Id., Exh. “AA” at 2. The trial court further noted that although Petitioner outlined this claim to the court of appeals, it was not properly presented for review. Id., Exh. “AA” at 2-3. The trial court found that “Petitioner’s failure to fully raise the issue on direct appeal constitutes a waiver, and Rule 32.2(a) precludes Petitioner from raising the issue in this subsequent Petitioner for Post Conviction Relief.” Id., Exh. “AA” at 3.
In analyzing Petitioner’s claim regarding allegedly ineffective assistance of appellate counsel, the trial court again looked to the state procedural rules. Answer (Doc. 17), Exh. “AA” at 3. The trial court found that “Petitioner’s argument . . . [did] not fall under any of the exceptions listed in Rule 32.2(b)[, Arizona Rules of Criminal Procedure] . . . [and] Petitioner could have argued that he received ineffective assistance of appellate counsel in his first Petition for Post Conviction Relief.” Id., Exh. “AA” at 3. As such, the trial court deemed Petitioner’s claim regarding ineffective assistance of appellate counsel waived, and precluded from review. Id., Exh. “AA” at 3.
Concerning Petitioner’s allegation that he received ineffective assistance of PCR counsel due to the latter’s failure to argue ineffective assistance of appellate counsel, the trial court held that this claim was without merit. Id., Exh. “AA” at 3. Relying on Arizona state law, the court recognized that “non-pleading defendants have no right to effective PCR counsel.” Id., Exh. “AA” at 3.
On May 30, 2012, Petitioner filed a Motion for Rehearing of the Court’s May 16th [sic], 2012 Order, which was denied without comment on June 7, 2012. Answer (Doc. 17), Mot. for Rehr’g of the Court’s May 16th [sic], 2012 Order (Exh. “BB”) & Ariz. Superior Ct. Order 6/7/2012 (Exh. “CC”). Subsequently, on June 27, 2012, Petitioner filed a pro se Petition for Review. Answer (Doc. 17), Pet. For Review (Exh. “DD”). Relying on Martinez v. Ryan, 132 S.Ct. 1309 (2012), Petitioner argued that the trial court erred (1) by holding that the “Petitioner was not entitled to effective assistance of counsel in his first Rule 32 Petition[;]” and (2) “by failing to address the issues of competency when it relied on State case law for ‘preclusion[.]’” Answer (Doc. 17), Exh. “DD” at 4. Petitioner further asserted that “under new federal law, Arizona defendants, who go to trial, are now constitutionally guaranteed the 6th Amendment right to effective counsel in a collateral proceeding, attacking the ineffectiveness of all previous counsel.” Id., Exh. “DD” at 5. Additionally, Petitioner framed the issue of competency as whether he “was coherent and competent enough to weight those very benefits and consequences [of a plea agreement], and make a knowing and intelligent refusal of that plea agreement.” Id., Exh. “DD” at 7. Petitioner asserts that his sleep deprivation made him incompetent, and that the trial courts denial of a competency hearing deprived him of his right to a fair trial, as did his prior counsel’s failure to raise the issue for review. Id., Exh. “DD” at 8-9.
On October 12, 2012, the Arizona Court of Appeals granted review, but denied relief. See Answer (Doc. 17) Ariz.Ct.App. Mem. Decision 10/12/2012 (Exh. “EE”). As an initial matter, the court of appeals corrected Petitioner’s misapprehension of the Supreme Court of the United States’ decision in Martinez, recognizing that “the Court did not ground its decision in a constitutional right, instead determining that defendants had an ‘equitable’ right to the effective assistance of initial post-conviction counsel and limited [this] decision to the application of procedural default in federal habeas review.” Id., Exh. “EE” at 3 (citing Martinez v. Ryan, - U.S. -, 132 S.Ct. at 1319-20). The court of appeals held that nothing in Martinez altered Arizona law that “a claim that Rule 32 counsel ...