United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Z. BOYLE, Magistrate Judge.
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
Robert Richard Spurling, III has filed a pro se
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Â§
2254. (Doc. 1.)
SUMMARY OF CONCLUSION
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.
Facts of the Crimes
Arizona Court of Appeals summarized the following facts and
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
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).
October 9, 2009, Petitioner filed a notice of
appeal. (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.
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.)
Petitioner's Post-Conviction Relief Proceeding
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.)
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.)
Petitioner's Federal Habeas Petition
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.)
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. Â§Â§ 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. Â§ 2244. The Petition is
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. Â§ 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