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Duncan v. Ryan

United States District Court, D. Arizona

January 26, 2016

William Westley Duncan, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE

Pending before the Court is the Report and Recommendation (“R&R”) issued by the Magistrate Judge to whom this case was assigned recommending that Petitioner’s Petition for Writ of Habeas Corpus (“Petition”) be denied. (Doc. 89). Both sides have filed objections to the R&R (Docs. 93 and 96). Petitioner filed a reply to Respondent’s objections. (Doc. 97). Also pending are three motions of Petitioner: a motion for evidentiary hearing (Doc. 82); a motion for appointment of counsel (Doc. 83); and a motion for a certificate of appealability (Doc. 94).

Preliminarily, the Court notes Petitioner also filed a notice of appeal (Doc. 95). However, because the issuance of an R&R is not an immediately appealable order, the Court of Appeals dismissed the appeal. See (Doc. 100)

I. Review

A. Review of R&R

This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that the district judge must review the magistrate judge’s findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge’s] recommendations to which the parties object.”). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.”).

In this case, both parties have filed numerous objections. The Court will review all issues to which there is an objection de novo.

B. Review of State Court Decisions

The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is incarcerated based on a state conviction. With respect to any claims that Petitioner exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must deny the Petition on those claims unless “a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law”[1] or was based on an unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). Further, this Court must presume the correctness of the state court’s factual findings regarding a petitioner’s claims. 28 U.S.C. § 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923, 936 (9th Cir. 1998). Additionally, “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2).

II. Factual Background

At pages 2-20, the R&R recounts the factual and procedural background of this case. Other than in the context of specific legal arguments discussed below, neither party objects generally to this recounting; accordingly, the Court accepts and adopts it.

III. Petition

The Petition in this case raises 20 claims.[2] (Doc. 1). The supplemental petition raises an additional 14 claims. (Doc. 78). The Court will address each claim in turn, and will follow the numbering system used by the parties.

Claim 1 (original Petition)

In this claim, Petitioner argues his confrontation clause rights were violated because of limitations placed on alleged impeachment evidence by the state court. The R&R concludes that the state court’s decision on this issue was not contrary to nor an unreasonable application of federal law. (R&R at 229). Further, the R&R concludes that the state court’s decision on a matter of state law was not such a “gross abuse of discretion” that it rose to the level of a due process violation under the constitution. (R&R at 223, 227-28).

Petitioner’s objection that the state court decision is “so wrong” (Doc. 93 at 9) does not dissuade this Court from agreeing with the findings and conclusions in the R&R. Accordingly, the objections are overruled, the R&R is accepted and adopted on Claim 1 and relief is denied on this claim.

Claim 2 (original Petition)

Petitioner claims there was a due process violation due to the failure of the state court to give a Willits instruction regarding lost evidence. The R&R concludes that this claim was not exhausted before the state courts (R&R at 104) and that Petitioner cannot overcome this failure to exhaust (R&R at 214).[3] The Court agrees and denies habeas relief based on this procedural bar.

Alternatively, the R&R concludes that this claim also fails on the merits because there was no allegation by Petitioner of bad faith at the state court level; and bad faith is required to justify a Willits instruction. (R&R at 233). In his Objections, Petitioner makes a global assertion that losing evidence simply is bad faith. (Doc. 93 at 9). The Court overrules this objection; not every lost piece of evidence automatically rises to the level of bad faith. Accordingly, the R&R is accepted and adopted on Claim 2 and relief is denied on this claim.

Claim 3 (original Petition)

Petitioner claims that the prosecutor committed prosecutorial misconduct that rose to the level of a due process violation. More specifically Petitioner claims the prosecutor made inappropriate arguments about the lost evidence. The R&R concludes that the state court’s determination that the prosecutor did not make arguments about the lost evidence was not contrary to nor an unreasonable application of federal law, nor an unreasonable determination of the facts. (R&R at 239). Therefore, this Court must defer to the state court’s conclusion.

Petitioner objects and factually disputes the prosecutor’s theory of the case. (Doc. 93 at 9). Such objection does not show that the state court’s determination was unreasonable and is overruled. Thus, the R&R is accepted and adopted on Claim 3 and relief is denied on this claim.

Claim 4 (original Petition)

Petitioner claims that the line-up identification procedures were suggestive. This claim was exhausted with the state court and the court found the procedures were not unduly suggestive. (See R&R at 246). The state court’s decision was not contrary to nor an unreasonable application of federal law, nor an unreasonable determination of the facts. (Id.) Thus, the Court will defer to the state court’s decision on this claim.

Petitioner objects by stating the legal conclusion that the line-up was unduly suggestive. (Doc. 93 at 10). This legal conclusion is not a basis to set aside the state court decision. Thus, the R&R is accepted and adopted on Claim 4 and relief is denied on this claim.

Claim 5 (original Petition)

Petitioner claims that the prosecution suggesting that it would impeach Petitioner with his prior felonies if he chose to testify was a due process violation. This claim is barred on state law procedural grounds. (R&R at 126-27, 247).

Petitioner’s only objection on this claim is that he is actually innocent. (Doc. 93 at 10). The Court will address Petitioner’s actual innocence claim below. As to Claim 5, the R&R is accepted and adopted and relief is denied on this claim.

Claim 6 (original Petition)

In Claim 6, Petitioner argues that there was insufficient evidence to convict him.

This claim was presented to the state court, which denied relief on the claim. (R&R at 251). The state court’s decision was not contrary to nor an unreasonable application of federal law, nor was it an unreasonable determination of the facts. (Id.)

Petitioner objects and points out what he claims to be various conflicting testimony from his trial. (Doc. 93 at 10). Assuming conflicting testimony was admitted, that does not mean the evidence, as a whole, was insufficient to support the jury’s verdict. Therefore, this objection does not overcome the state court’s determination. Thus, the R&R is accepted and adopted on Claim 6 and relief is denied on this claim.

Claim 7 (original Petition)

Petitioner claims his Fifth Amendment, Sixth Amendment and Fourteenth Amendment rights were violated when the state court failed to allow cross-examination on what Petitioner argues would have been exculpatory evidence. Petitioner exhausted this as a state law hearsay claim. (R&R at 254). Habeas relief is not available for errors of state law (assuming one occurred). Estelle v. McGuire, 502 U.S. 62, 67 (1991). As to the merits of the state law theory, Petitioner has failed to show that the state court’s evidentiary ruling was in error, must less that it was arbitrary and fundamentally unfair such that it would violate the due process clause of the constitution. (R&R at 256). Accordingly, relief is denied on this basis as to the state law theory.

To the extent Petitioner also asserts this claim on habeas as a federal constitutional violation, Petitioner failed to exhaust this claim in state court (R&R at 106) and cannot overcome this failure to exhaust such that this Court could reach the merits of this claim (R&R at 214); see also footnote 3 above. Thus, any federal version of Claim 7 is denied for this reason.

Petitioner objects by stating the legal conclusion that this claim is exhausted. (Doc. 93 at 10). This objection does not overcome either of the conclusions above regarding why Claim 7 is denied. Accordingly, the R&R is accepted and adopted on Claim 7 and relief is denied on this claim.

Claim 8 (original Petition)

Petitioner argues that his rights were violated when the state court denied him funding for an investigator in his first post-conviction relief proceeding. Petitioner attempted to take a special action of this denial of funds, which the Arizona Court of Appeals denied. There is no habeas relief for the denial of a special action. (R&R at 271).

Petitioner failed to exhaust the denial of funding claim in state court (R&R at 108), and cannot overcome this failure to exhaust such that this Court could reach the merits of this claim. (R&R at 214); see also footnote 3 above. Accordingly, relief on this claim is denied.

Alternatively, on the merits, the R&R concludes that there was no constitutional violation for the failure of the state court to appoint an investigator in this initial post-conviction relief proceeding. (R&R at 271). Notably, on appeal the Arizona Court of Appeals ordered the superior court to appoint an investigator for Petitioner. (R&R at 267). Thus, Petitioner ultimately received this relief. This Court agrees with the R&R that the initial failure to provide funding for an investigator was not constitutional violation which would justify habeas relief.

Both parties object to the R&R as to this claim. Petitioner argues that he did not receive funding for an investigator. (Doc 93 at 11.) However, he ultimately did. (R&R at 267). Accordingly, this objection is without merit. Respondents argue that states are not required to provide any sort of post-conviction relief to convicted defendants; thus no alleged error in the post-conviction relief process could ever provide the basis for habeas relief. (Doc. 96 at 15.) Because this Court is denying relief on this claim, the Court need not reach the merits of this objection.

Based on the foregoing, the R&R is accepted and adopted on Claim 8 and relief is denied on this claim.

Claim 9 (original Petition)

Claim 9 encompasses nine theories of ineffective assistance of counsel. The Court will consider each theory separately.

Claim 9A

Petitioner argues that his trial counsel failed to make a reasonable investigation. The R&R concludes that this claim was exhausted in state court as part of Petitioner’s post-conviction relief petition. (R&R at 277) (quoting the state court’s ruling). The holding of the state court was not contrary to nor an unreasonable application of federal law.[4] Accordingly, Petitioner is not entitled to habeas relief on this claim.

Alternatively, the R&R reached the merits of this claim and determined that trial counsel was not ineffective. (R&R at 282). For the reasons stated in the R&R, this Court concludes that on the merits trial counsel was not ineffective on this theory.

Petitioner objects and argues that counsel has a duty to make a reasonable investigation. (Doc. 93 at 12). While Petitioner may be correct as to this general proposition, Petitioner fails to show that either counsel failed to make a reasonable investigation in this case, or that Petitioner was prejudiced. Thus, this objection is overruled. Accordingly, the R&R is accepted, rejected or modified on Claim 9A as set forth above, and relief is denied on this claim.

Claim 9B

Next Petitioner argues that his counsel was ineffective in selecting a jury. The R&R concludes that Petitioner exhausted this claim in state court in his post-conviction relief proceeding. (R&R at 285) (quoting the state court’s ruling). The holding of the state court was not contrary to nor an unreasonable application of federal law. Accordingly, Petitioner is not entitled to habeas relief on this claim. See footnote 4 herein.

Alternatively, the R&R reaches the merits of this claim and determined that trial counsel was not ineffective in selecting a jury. (R&R at 299). Both sides object to the R&R on this point.

Petitioner objects and argues that he had a conviction-prone jury. (Doc. 93 at 12). For the reasons stated in the R&R (at 282-299), this Court finds that, on the merits, the voir dire process and qualification of the jury did not rise to the level of a constitutional violation. Thus, counsel was not ineffective and relief on this claim will be denied.

Respondents object and argue that counsel cannot be ineffective for failing to raise issues that were unsettled at the time of trial. (Doc. 96 at 16). For this further alternative reason, the Court agrees that trial counsel was not ineffective in selecting a jury in Petitioner’s trial.

Based on the foregoing, Respondents’ objection is sustained and Petitioner’s objection is overruled. Further, the R&R is accepted, modified or rejected on Claim 9B as set forth above and relief is denied on this claim.

Claim 9C

Petitioner claims that his counsel was ineffective for not more thoroughly impeaching the testimony of witness Hernandez. The R&R concludes that to the extent witness Hernandez’s testimony could have been contradicted by the testimony of the Cox sisters, this Court must give deference under AEDPA to the state court’s determination that the Cox sisters were not credible. (R&R at 304, 306). The R&R also concludes that that this Court must give AEDPA deference to the state court’s determination that the conflicting evidence of the amount of drug and alcohol use would not have impacted the effect of Hernandez’s testimony on the jury. (R&R at 306-07). Thus, the R&R concludes that this Court must give AEDPA deference to the state court’s determination that all potential conflicting evidence would not have impacted the outcome of this case because the state court’s determination was not contrary to nor an unreasonable application of federal law. (R&R at 313). This Court agrees.

Petitioner objects and argues that witness Hernandez himself made inconsistent statements to various people and statements that were inconsistent with other witnesses’ accounts. (Doc. 93 at 13). Alternative to the application of AEDPA deference to this theory of ineffective assistance of counsel, the R&R considered the merits of all of Petitioner’s alleged inconsistency arguments. (R&R at 307-313). The R&R concluded that these claims failed on the merits. The Court has reviewed the R&R’s conclusions on this theory and agrees that even considering Petitioner’s merits objections, he has failed to show deficient performance by counsel, nor prejudice. Accordingly, the objection is overruled, the R&R is accepted and adopted on Claim 9C, and relief is denied on this claim.

Claim 9D

Petitioner argues his trial counsel was ineffective for failing to impeach witness Franz with his prior inconsistent statements. Petitioner exhausted this claim in the state court, and the state post-conviction relief court rejected this claim. (R&R at 313; 316) (quoting the state court’s decision). The Court finds that the state court decision was not contrary to nor an unreasonable ...


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