United States District Court, D. Arizona
HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
MICHELLE H, BUMS UNITED STATES MAGISTRATE JUDGE.
On May 12, 2014, Petitioner Brian Thomas Eftenoff, who is confined in the Arizona State Prison Complex, Red Rock Unit, Eloy, Arizona, filed a pro se Petition for Writ of Habeas Corpus (hereinafter “habeas petition”) pursuant to 28 U.S.C. § 2254 (Doc. 1). On October 20, 2014, a Notice of Appearance on Petitioner’s behalf was filed by attorney Lee Phillips of the Arizona Innocence Project, along with a Motion to Amend Petition for Writ of Habeas Corpus. (Docs. 14, 15.) Respondents filed their Answer to Petitioner’s habeas petition on October 21, 2014. (Doc. 16.) This Court denied Petitioner’s motion to amend on October 27, 2014, ordering that Petitioner would be allowed to “clarify and amplify Petitioner’s habeas claims in his Reply, ” and that the Court may “permit further pleadings by the parties to address any clarification and amplification of claims.” (Doc. 21 at 3-4.) On December 22, 2014, Petitioner filed his Reply, and simultaneously, a Motion to Stay and Abey Habeas Proceedings (hereinafter “stay and abey motion”). (Docs. 24, 25.)
On February 10, 2015, this Court permitted Respondents to file a supplemental habeas answer, to address any matters newly raised in Petitioner’s Reply, within fourteen (14) days after the Court’s ruling on Petitioner’s stay and abey motion. (Docs. 32-34.) On March 10, 2015, this Court filed a Report and Recommendation, recommending that Petitioner’s stay and abey motion be denied. (Doc. 35.) On April 28, 2015, the (presiding) Court adopted the recommendation to deny the motion. (Doc. 40.) Respondents thereafter, on June 11, 2015, filed a Supplemental Answer to Petition for Habeas Corpus (“supplemental answer”) (Doc. 43), and on July 30, 2015, Petitioner filed his Supplemental Reply (“supplemental reply”) (Doc. 46).
Petitioner was indicted on one count of murder in the second degree, a class one felony for the September 23, 1999, death of his wife Judi Eftenoff and one count of transfer of narcotic drugs, a class 2 felony for sending cocaine to his in-laws on or between October 8 and 13, 1999. (Doc. 16 at 9.) Petitioner was convicted at trial on both counts. On appeal he raised the following issues: (1) failure to sever counts; (2) failure to conduct severance hearing; (3) failure to grant directed verdict; (4) failure to conduct competency of minor to testify hearing; (5) prosecutorial misconduct in implying existence of non-existent evidence; (6) failure to conduct mandatory voluntariness hearing; (7) juror misconduct; (8) failure to exclude witness; (9) improper other bad acts testimony; and, (10) failure to grant mistrial/new trial. (Doc. 1-1 at 3.) Petitioner’s conviction and sentence were later affirmed on appeal. (Doc. 17-2 at 2.) The Arizona Court of Appeals summarized the facts supporting Petitioner’s convictions and sentences as follows:
¶1 . . . The defendant was charged with second degree murder following the death of his wife. The medical examiner attributed the death to an intra-cerebral hemorrhage due to cocaine intoxication. Eftenoff was also charged with transfer of narcotic drugs after he shipped a box of the victim’s personal effects to his in-laws. Among other items, the box contained cocaine and a note which stated everything in the box had a story.
¶12 The victim died sometime during the night of September 23-24, 1999. A neighbor saw the victim returning from her mailbox between 9:00 and 10:00 p.m. on September 23 and she appeared normal. A friend came to Eftenoff’s home the evening of September at approximately 9:30 and was there one-half to one hour before he and Eftenoff left, eventually going to a casino. The friend never saw the victim when he was at the defendant’s home. Video from the casino showed Eftenoff and his friend going into the casino at 11:43 p.m. on September 23, 1999, changing a tire in the casino parking lot, and staying until approximately 5:20 a.m. that morning. Whenever his friend ran out of money, Eftenoff gave him more so they could continue to gamble. If the defendant had not continued to give him money, his friend would have asked to leave the casino. After they returned to Eftenoff’s home, his friend used the telephone in Eftenoff’s home office and left. He never saw the victim. The friend admitted that he had used cocaine with the defendant and the victim in the past and that either he or Eftenoff had supplied the cocaine used.
¶13 A live-in nanny helped take care of the Eftenoff’s two children. She was out the evening of September 23 and did not return to the residence until approximately 1:00 a.m. on September 24. She did not see the victim or Eftenoff that evening. She awoke later that morning to the sound of Eftenoff yelling and pounding on her bedroom door. Eftenoff testified that after his friend left the house after their night at the casino, he went to the master bath and found the victim on the floor. He told the nanny that the victim was injured, and asked if she heard anything or knew what was going on. Eftenoff then took his daughter to his son’s bedroom, turned on the television, and closed the door. The nanny followed him into the master bedroom, where she saw the victim on the floor of the bathroom. The defendant had already called the 911 operator, who was still on the line.
¶14 Eftenoff pointed out bruises on the victim’s thigh and arm to the nanny. He told her that someone must have come in the house and hurt the victim and that something must have happened. The defendant then attempted CPR. Later, while the nanny was speaking to a police officer at the home, Eftenoff signaled to her that the victim was dead by drawing his finger across his throat.
¶15 After the victim’s death, Eftenoff told Tascha Boychuk, his daughter’s counselor, that the victim was “the boss.” The defendant admitted that they would argue about various issues, including money. He admitted that they argued about money either the day of or the day before the victim’s death. Eftenoff also indicated that he was taught it was okay to hit tomboys and that the victim was a tomboy. At trial, he consistently denied he ever struck the victim.
¶16 The victim had been dead at least four hours when the medical personnel arrived. She had a bruise over her left cheek, a bloody nose, abrasions on her nose, a bruised lip, a laceration on her lip inside her mouth, and petechia around her right eye. She had a bruise on her right forearm, small abrasions on the back of her right hand, bruises and/or abrasions on several knuckles of both hands, and a bruise on her left thigh. The victim also had a bruise on the back of her head which went all the way through the scalp. This bruise was caused by a “significant blow, ” and could have resulted in a concussion and/or loss of consciousness, despite the lack of a skull fracture. The victim had bruising on both sides of her neck resulting from application of pressure. There was also bruising to internal tissues behind the larynx and on either side of the spinal column. The injuries to the victim’s face, hands, arms, legs, and head were typical of those seen in scuffles. Some of these injuries could have been defensive injuries. The victim had no marks or bruises on her when Eftenoff’s business assistant arrived at their home the morning of September 23 or when she saw her later that day.
¶17 Death was due to intra-cerebral hemorrhage due to cocaine intoxication. There were no findings of chronic cocaine use. Toxicological evidence indicated that, rather than multiple small doses over a long period of time, the victim had ingested one very large dose taken one to two hours before death. The dose was estimated at five hundred milligrams to one thousand milligrams. One thousand milligrams of cocaine would be fatal for a majority of people. Five hundred milligrams of cocaine would be fatal for approximately half the population, whether they had a tolerance or not. A medical expert testified that it was “extremely unlikely” that the victim died of a stroke unrelated to cocaine intoxication. An approximate time of death could not be determined.
¶18 Before the final autopsy report, toxicology report, or death certificate were made available to Eftenoff or the public, Eftenoff told various people that the victim used cocaine, had a “considerable amount” of cocaine in her system, and may have overdosed. Eftenoff also began to tell people, before any of the above reports were made available to Eftenoff or the public, that once the autopsy and toxicology reports were completed, he would be cleared of any wrongdoing. Approximately two weeks before these reports or any information within these reports were released, he told a co-worker of the victim that the autopsy report showed the victim died of a cocaine overdose and cleared him of all wrongdoing.  There was contradictory evidence as to whether Eftenoff could have learned of the presence of cocaine in the victim’s body or the contents of the various reports at any time before the reports were completed and officially made public.
¶20 After the victim’s death, Eftenoff set aside various personal effects of the victim to send to her parents. These items were placed in a box for shipment. Evidence showed that various people, including Eftenoff, helped to pack the box. Many of the items had notes with them. The nanny and Eftenoff’s assistant recognized Eftenoff’s handwriting and identified the notes in the box as written by him. The parties stipulated that the defendant wrote the “major writings” in the box. Eftenoff showed the victim’s best friend that he was sending the victim’s parents a rolled-up one dollar bill used to snort cocaine. The box remained in his house for several days. Eftenoff’s sister and assistant later took the box to a shipper.
¶21 On October 6, Eftenoff called the victim’s mother twice, told her he had shipped a box, and asked if it had arrived. A few days later, he called her again to ask if the box had arrived. When she told him it had not, Eftenoff stated that the police possibly had it. The box arrived later that day. After the box was shipped, Eftenoff also asked the victim’s brother if he knew about the box. Eftenoff asked him whether he knew if there were any drugs in the box. The brother denied any such knowledge. The defendant told the brother that someone told him drugs were in the box.
¶22 The victim’s mother waited approximately two weeks to open the box once it arrived. Among many other items, the box contained the rolled-up one dollar bill, two short plastic straws, a purple pen cap, and a small bag containing just over one gram of cocaine. The box also contained a handwritten letter to “Grandma and Grandpa.” A note in the box stated that everything in the box had a story to it. The victim’s parents believed that Eftenoff was sending them a message that the victim used cocaine.
(Id. at 2-13.)
Petitioner thereafter, through counsel, on December 15, 2003, filed a petition for post-conviction relief (“PCR”) alleging three categories of newly discovered evidence Petitioner claimed merited relief: 1) evidence that would show that the trial testimony of toxicology expert Dr. Baselt included lies or testimony that was admitted in violation of the Frye/Daubert standard; 2) biological evidence regarding the structure of the veins in the victim’s brain, and 3) evidence that the victim used excessive amounts of cocaine. (Doc. 1-2 at 57-58.) Petitioner asserted that the newly discovered evidence would “probably change the verdict, ” citing State v. Jeffers, 135 Ariz. 404; 661 P.2d 1105 (Ariz. 1983). (Id. at 67.) Petitioner also alleged ineffective assistance of trial counsel for not pursuing an interlocutory appeal of the trial court’s denial of Petitioner’s motion to remand to the grand jury, and for not demanding a Frye/Daubert hearing regarding the substance of Dr. Baselt’s testimony. (Id. at 70.)
An evidentiary hearing on the PCR petition was granted by the trial court, and commenced on June 6, 2005. (Doc. 17-2 at 96.) The hearing continued over eight (8) days, and 2 years. (Docs. 17-2 to 17-6.) During these hearings Petitioner called eight witnesses, five of whom possessed medical expertise, and were called to rebut the trial testimony of Dr. Baselt and his conclusion regarding the amount of cocaine in the victim’s system and the use of the volume of distribution formula (“VOD”) in making his calculations: Dr. Steven Karch (testified, as he had at trial, that it is not possible to accurately determine how much cocaine a person has ingested, and criticized further Dr. Baselt’s use of the VOD calculation); Dr. William Hearn (testified that small amount of cocaine was found in victim’s stomach and consistent with post-nasal drip of snorted cocaine, that there was no evidence to support the prosecution’s theory that Petitioner forced cocaine down his wife’s throat, and that the VOD formula was misapplied by Dr. Baselt); Dr. Archiaus Moseley (testified at trial and during the evidentiary hearing that the amount of cocaine in the victim’s stomach was small, and that his opinion given during trial had changed as to this quantity); Dr. Joe Dressler (testified that the total amount of cocaine in the victim’s stomach was a small amount and that it would be nearly impossible to administer cocaine orally to an unconscious person); Chief Toxicologist Norman Wade (testified at trial and during the evidentiary hearing that cocaine found in victim’s stomach was not extremely high and an amount consistent with snorting cocaine and that he disagreed with Baselt’s conclusions and methods of determining the amount of cocaine in a person’s stomach). (Docs. 17-3 at 2-4, 77-78; 17-4 at 142-144; 17-5 at 66-67, 143-44; 1-4 at 29-52; 17-6 at 137-143.) Additionally, the prosecution called Dr. Raymond Kelly to testify at the evidentiary hearing (testified that Dr. Baselt gave 35 bases of opinion at trial, only five of which were based on the VOD calculation, and that he believed that Dr. Baselt had used a scientifically valid method in reaching his opinion). (Docs. 17-5 at 226-27; 17-6 at 109-110;141-42.)
After day three of the 8-day evidentiary hearing, on June 16, 2005, Petitioner’s PCR counsel filed a motion to amend the PCR petition to add a claim, pursuant to Ariz.R.Crim.P. 32.1, that he had demonstrated by “clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found the defendant guilty of the underlying offense beyond a reasonable doubt.” (Doc. 17-6 at 112.) This one paragraph assertion was not supported by any further argument or evidence. There is no indication in the record that the trial judge ruled on the motion. After the PCR hearings were concluded, in the State’s Closing Memorandum, it argued that, “it ha[d] become clear, during the prolonged course of the post-conviction proceedings, that the Defendant has no newly discovered evidence to present, . . . and that [t]he array of witnesses that the Defendant paraded before this Court merely presented testimony on the same information presented at trial.” (Doc. 17-6 at 142-43.) In PCR counsel’s closing argument, she stated that “[r]egardless of what legal theory is applied; newly discovered evidence, ineffective assistance of counsel, or actual innocence, the fact remains that there was absolutely no evidence to support the prosecution’s theory that [Petitioner] forced his wife to swallow a single fatal dose of cocaine, ” and that Dr. Baselt’s conclusions were “completely invalid and without any supporting evidence.” (Doc. 1-4 at 39.) PCR counsel stressed that “the testimony heard throughout the rule 32 hearings are one of laudable injustice. Wrongful convictions are a perversion of Justice and an infection of evil without justification. This is most certainly a case of wrongful conviction.” (Doc. 1-4 at 52.)
The trial court ultimately ruled, on September 30, 2009, that, “for the reasons and arguments presented by the State in its Closing Memorandum , (1) Defendant’s proposed evidence does not meet the requirements of Rule 32 and therefore does not entitle Defendant to post-conviction relief, (2) Defendant’s proposed evidence does not qualify as newly-discovered evidence under Rule 32 and therefore does not entitle Defendant to post-conviction relief, (3) Defendant is not entitled to a Frye hearing, and (4) Defendant has failed to establish that he is entitled to relief on a claim of ineffective assistance of counsel.” (Doc. 1-4, at 53-54.) Petitioner, through newly appointed counsel, filed a Motion to Reconsider the court’s dismissal of his PCR petition, arguing in part that the trial court did not address Petitioner’s motion to amend his PCR petition. (Id. at 57 to Doc. 1-5 at 5.) The trial court summarily denied the motion. (Doc. 1-5 at 30.)
Petitioner filed a Petition for Review to the Arizona Supreme Court advancing three arguments: (1) the trial court abused its discretion when it refused to rule on the actual innocence claim, which meant for all practical purposes that it had denied that claim; (2) the scientific testimony offered at the post-conviction hearing constituted newly discovered evidence; and, (3) the trial court was incorrect in holding that Petitioner was not entitled to a Frye hearing. (Doc. 1-5 at 6-30.) On May 15, 2013, the Arizona Court of Appeals summarily denied review. (Id. at 31.)
Petitioner filed his pro se habeas petition on May 12, 2014, raising 19 claims. Petitioner conceded in his subsequently filed (and by then counseled) stay and abey motion that Claims 4a, 4c, 7a and 8b are unexhausted claims. (Docs. 25 at 3; 24 at 4.) The Court denied Petitioner’s stay and abey motion on April 28, 2015. (Doc. 40.) In his Reply, Petitioner maintains seven claims for habeas relief - withdrawing all other claims raised in his habeas petition. (Doc. 24 at 23-25.) Petitioner’s claims are described by Petitioner are as follows:
• Claim 4a: Presentation of false evidence in the grand jury violating Petitioner’s due process rights, when the sole witness lied to and misled the grand jury who indicted Petition on false charges. (Doc. 1, at 24; 24, at 23.) Petitioner cites Napue v. Illinois, 360 U.S. 264, 271 (1959); United States v. Young, 17 F.3d 1201, 11203 (9th Cir. 1994); United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974).
• Claim 4c: Presentation of false trial testimony of key expert witness, violating Petitioner’s due process rights. This evidence was particularly prejudicial because the disputed testimony was the only real evidentiary connection between Judi Eftenoff’s death and homicide. (Docs. 1, at 26-28; 24, at 23.) Petitioner cites Giglio v. United States, 405 U.S. 150, 154 (1972); Napue, 360 U.S. at 271; Maxwell v. Roe, 628 F.3d 486, 508 (9th Cir. 2010); Young, 17 F.3d at 1203.
• Claim 6: Unconstitutional denial of an evidentiary hearing into juror misconduct following proof that at least one juror communicated with third parties about the case during jury deliberations. (Docs. 1, at 36; 24, at 24.) Petitioner cites Remmer v. United States, 47 U.S. 227, 229 (1954); State v. Miller, 178 Ariz. 555 (1994).
• Claim 7a: Ineffective assistance of trial counsel in failing to consult an independent pathologist, a simple investigative task that would have enabled defense counsel to, consistent with his selected trial theory, conclusively prove that Judi Eftenoff was not murdered. (Docs. 1, at 37-38, 42; 24, at 24.) Petitioner cites Strickland v. Washington, 466 U.S. 668 (1984); Holsomback v. White, 133 F.3d 1382 (11th Cir. 1998).
• Claim 7d: Ineffective assistance of trial counsel in failing to adequately challenge the key expert testimony against Petitioner, including failing to request a Frye hearing and failing to adequately cross-examine the expert. (Docs. 1, at 41, 42-44; 24, at 24.) Petitioner cites Strickland; Holsomback.
• Claim 8a: Denial of procedural due process in depriving Petitioner of his protected liberty interest in proving his actual innocence, as provided by Arizona Rule of Criminal Procedure 32.1(h). (Docs. 1, at 61, 63; 24, at 24.) Petitioner cites Dist. Atty’s Office v. Osborne, 577 U.S. 52, 68 (2009).
• Claim 8b: Actual innocence sufficiently proven to render unconstitutional Petitioner’s continued physical detention. (Docs. 1, at 48, 63; 24, at 25). Petitioner cites Osborne, 577 U.S. at 68; Schlup v. Delo, 513 U.S. 298, 324-25 (1995). [Petitioner only raises this claim as to his murder conviction, not as to his transfer of narcotics conviction. See, Docs. 1 at 48-64; 24 at 34-88.]
Petitioner’s habeas petition had originally identified Claim 8 as a single claim of actual innocence. (Doc. 1 at 48-64.) In Petitioner’s Reply to Response to Habeas Petition, he asserts that Petitioner’s Claim 8 was actually divided into two claims. Petitioner claims that “[w]ithin Ground Eight of his Petition, Eftenoff makes two claims. . . .First, Eftenoff makes a procedural due process claim for deprivation of his protected liberty interest in proving his actual innocence under Arizona Rule of Criminal Procedure 32.1(h). . . . See Pet. at 62.” (Doc. 24 at 35.) Yet, no such indication appears on the cited page or anywhere within the text associated with Claim 8 in Petitioner’s habeas petition. On the basis of Petitioner’s interpretation of the scope of his own claim, he identifies his due process claim as Claim 8a, and his actual innocence Claim as 8b. (Id.)
I. Antiterrorism and Effective Death Penalty Act ...