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Spurling v. Ryan

United States District Court, D. Arizona

May 20, 2016

Robert Richard Spurling, III, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          JOHN Z. BOYLE, Magistrate Judge.

         TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:

         Petitioner Robert Richard Spurling, III has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

         I. SUMMARY OF CONCLUSION

         Petitioner raises four grounds for relief in his timely Petition. Petitioner's claims are either procedurally barred or lack merit. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

         II. BACKGROUND

         a. Facts of the Crimes

         The Arizona Court of Appeals summarized the following facts and procedural history:[1]

The evidence at the grand jury hearing was presented by Detective Larry Thomas, who was involved in the initial investigation. Count 1 was alleged to have occurred on or about May 30, 2008, and involved an incident wherein Appellant was accused of inappropriately touching S.L. at a soccer game. Count 3 was alleged to have occurred on or about June 1, 2008, and involved an incident wherein Appellant was accused of "kneeling on [S.L.'s] bed" and rubbing S.L.'s vaginal area over her clothing on at least three separate occasions. Count 5 was alleged to have occurred on or about July 1, 2008, and involved an incident wherein Appellant was accused of rubbing S.L.'s vaginal area over her clothing while they were watching a movie together on the couch. Count 6 was alleged to have occurred on or about July 21, 2008, and involved an incident wherein Appellant was accused of rubbing K.F.'s vaginal area over her clothing on two separate occasions while they were watching a movie. Count 7 was alleged to have occurred on or around July 22, 2008, and involved an incident wherein Appellant was accused of entering S.L.'s bedroom, placing a puppy on K.F.'s lap, and rubbing K.F.'s vaginal area over her clothes. Count 8 was also alleged to have occurred on or around July 22, 2008, and involved an incident wherein Appellant was accused of entering S.L.'s bedroom, placing S.L.'s baby brother on K.F.'s lap, and rubbing K.F.'s vaginal area over her clothes.
The testimony at trial differed in several respects from the detective's summary at the grand jury hearing. In regards to Count 3, S.L. testified that she had been molested while sleeping on a mattress in the living room and that the molestation occurred "every night, " not just on three occasions. In regards to Count 5, S.L. never testified that Appellant touched her on the couch while they were watching a movie, but she did testify that she had been touched on at least two other specific occasions (besides the occasion described in Count 3) while sleeping in the living room. In regards to Count 6, K.F. testified that Appellant touched her vaginal area three times during the movie. In regards to Counts 7 and 8, K.F. testified that Appellant touched her vaginal area "one, two, or three" times, but only testified to one specific act of touching that day. Appellant objected to these inconsistencies during oral argument, stating that they were at odds with the facts upon which the indictment was based. The court subsequently granted the State's motion to amend Count 7 so that it was alleged to have occurred on or about July 21, 2008, rather than July 22, 2008. Appellant testified on his own behalf, in which he repeatedly denied ever touching S.L. or K.F. inappropriately, or if he did, that such touches were unintentional.
...
The jury found Appellant guilty on Counts 3, 5, 6, 7, and 8 and not guilty on Count 1. Appellant submitted a motion for a new trial on September 4, 2009. After oral argument, the court considered Appellant's request for a new trial and allowed Appellant to file a brief concerning the issue of "additional acts not charged/but testified to at trial." The court subsequently denied the motion for new trial, finding "that the difference between testimony at the Grand Jury and the testimony of the victims at trial does not amount to grounds for a new trial." The court also held that Appellant had notice that the victims may testify to more acts than testified to before the grand jury and suggested that Appellant was not prejudiced because Appellant's defenses to all of the charges were the same. Appellant was sentenced to a total of thirty-four years' imprisonment-serving concurrent 17 year sentences for Counts 3 and 5 consecutively to concurrent 17 year sentences for Counts 6, 7, and 8.

State v. Spurling, No. 1 CA-CR 09-0939, 2011 WL 662629, at *2 (Ariz.Ct.App. Feb. 24, 2011).

         b. Direct Appeal

         On October 9, 2009, Petitioner filed a notice of appeal.[2] (Doc. 15, Ex. EEE, at 142.) On February 24, 2011, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences in Counts 3, 6, 7, and 8, but reversed the conviction for Count 5. State v. Spurling, 2011 WL 662629, at *2.

         On July 18, 2011, Petitioner filed a petition for review in the Arizona Supreme Court. (Doc. 15, Ex. AAA, at 34.) On December 7, 2011, the Arizona Supreme Court denied review. (Doc. 15, Ex. CCC, at 125.)

         c. Petitioner's Post-Conviction Relief Proceeding

         On December 11, 2011, Petitioner filed a notice of PCR relief. (Doc. 15-1, KKK, at 2.) On April 23, 2012, Petitioner, through counsel, filed a PCR petition. (Doc. 15-1, Ex. MMM, at 11.) On September 20, 2012, the trial court held an evidentiary hearing and subsequently denied Petitioner's petition for PCR on the merits. (Doc. 15-1, Ex. PPP, at 53.)

         On December 21, 2012, Petitioner filed for review with the Arizona Court of Appeals. (Doc. 15-1, Ex. RRR, at 138.) On April 7, 2015, the court granted review but denied relief. State v. Spurling, No. 1 CA-CR 12-0788 PRPC, 2015 WL 1542932, at *1 (Ariz.Ct.App. Apr. 7, 2015). On October 8, 2015, the Arizona Supreme Court denied review. (Doc. 15-1, Ex. WWW, at 209.)

         d. Petitioner's Federal Habeas Petition

         On July 24, 2015, Petitioner filed this habeas petition. (Doc. 1.) On November 23, 2015, Respondents filed an Answer to the Petition. (Doc. 14.) On January 21, 2016, Petitioner filed a Reply. (Doc. 18.) Petitioner raises four grounds for relief:

1. Petitioner "was convicted of crimes not charged by the grand jury" related to Counts 3, 5, and 7.
2. Counts 3, 6, 7, and 8 of the indictment were duplicitous, other acts were introduced at trial, and "there was no testimony relat[ed] to Count 3 at trial."
3. The State's denial of "post-conviction D.N.A. testing" was a violation of "due process."
4. Trial counsel was ineffective for failing to: investigate, play a tape-recorded jail call, and object to hearsay testimony. The prosecutor committed misconduct throughout trial. The judge improperly "explained a legal ruling and commented on Kelsey Freeman's testimony."

(Doc. 1 at 6-9.)

         III. THE PETITION

         The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. The Petition is timely.

         a. Procedural Default

         Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless a petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's "highest" court in a procedurally appropriate manner. Baldwin v. Reese,541 U.S. 27, 29 (2004) ("[t]o provide the State with the necessary opportunity, ' the prisoner must fairly ...


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