United States District Court, D. Arizona
Honorable Bruce G. Macdonald United States Magistrate Judge
pending before the Court is Petitioner Thomas Alec
Kidwell’s pro se Petition Under 28 U.S.C.
§ 2254 for a Writ of Habeas Corpus by a Person in State
Custody (Non-Death Penalty) (Doc. 1). Respondents have filed
a Limited Answer to Petition for Writ of Habeas Corpus
(“Answer”) (Doc. 16) and Petitioner replied (Doc.
17). The Petition is ripe for adjudication.
FACTUAL AND PROCEDURAL BACKGROUND
Arizona Court of Appeal stated the facts as follows:
In June 2004, six-year-old T. told her babysitter that her
father, Kidwell, had sexually abused her. After calling
police, the babysitter, as instructed, brought T. to the
Children’s Advocacy Center. A Child Protective Services
employee and a Tucson Police Department detective then
interviewed and examined T. A medical doctor also performed
“a general physical exam and a more focused genital
exam.” The genital exam revealed an area of T.’s
vagina was “friable, which means you just barely have
to touch it [and] it would start bleeding.” The doctor
testified the abnormality was not necessarily a product of
abuse, but could have been caused by a bacterial infection or
rubbing of the area, and was not consistent with penetration.
In an interview with police, Kidwell denied molesting T.
Kidwell was charged with one count of molestation of a child
under the age of fifteen and one count of continuous sexual
abuse of a child under the age of fourteen. On the third
day of trial, the state asked the doctor who had examined T.
whether T. had made “any spontaneous statements . . .
during [the] exam.” Kidwell objected on hearsay
grounds, arguing the statement would not fall within the
hearsay exception of Rule 803(4), Ariz. R. Evid., for
statements made for purposes of medical diagnosis and
treatment. The trial court sustained the objection.
On the fourth day of trial, after the jury had begun
deliberations, it sent a note to the trial court stating that
eleven jurors had agreed on a verdict of guilty, but that
“one member does not agree & we cannot persuade her
to change & agree with us.” After recalling the
jury to the courtroom, the court told the jury it could
“offer a couple of options” to help the jury
resolve the case, including “allow[ing] the attorneys
to provide additional evidence” or “additional
closing arguments.” The jury foreperson responded that
neither he nor the other jurors who agreed with him needed
additional evidence, but that the holdout juror “may or
may not be swayed by that evidence.” The court
instructed the jury to return to the jury room and discuss
whether it felt either option the court had offered would be
helpful in resolving the impasse. After doing so, the jury
sent a note to the court containing several fact questions,
including asking what T. had said to the doctor who had
examined her at the Child Advocacy Clinic.
In response to the jury’s note, the state asked the
trial court to reconsider its ruling excluding T.’s
statement to the doctor. After some discussion, and over
Kidwell’s continuing objection, the court determined
the statement was admissible under Rule 803(4). The parties
then agreed there was no need to recall the doctor for
further testimony because T.’s statement was contained
in the doctor’s report and the court would read the
portion of the report containing T.’s statement to the
jury because the doctor had no independent recollection of
the examination. The court told the jury that although
neither it nor the parties could respond to most of the
jury’s requests for information, it had “ruled
that a portion of [the examining doctor’s] report will
be offered into evidence.” The court then read from the
report: “In addition to the history on patient, patient
stated dad would rub her private so hard she got an
owie.” After additional closing arguments concerning
the statement, the jury deliberated further and found Kidwell
guilty of child molestation.
 The trial court granted Kidwell’s motion for
judgment of acquittal on the continuous sexual abuse charge.
Answer (Doc. 16), Ariz. Ct. of Appeals, Memorandum Decision
7/31/2008 (Exh. “H”) at 1.
October 20, 2006, a jury found Petitioner guilty of
Molestation of Child, A Dangerous Crime Against Children as
alleged in Count One of the Indictment. Answer (Doc. 16),
Ariz. Superior Ct., Pima County, Minute Entry 10/20/2006
(Exh. “A”) at 2. On November 27, 2006, Petitioner
was sentenced to the presumptive term of seventeen (17) years
imprisonment with consecutive community supervision in
accordance with A.R.S. § 13-603(I). Answer (Doc. 16),
Ariz. Superior Ct., Pima County, Sentence of
Imprisonment/Defendant’s Motion for a New Trial
11/27/2006 (Exh. “C”) at 2.
November 28, 2006, Petitioner filed his Notice of Appeal.
Answer (Doc. 16), Not. of Appeal 11/28/2006 (Exh.
“D”). On February 4, 2008, Petitioner filed his
Opening Brief. Answer (Doc. 16), Appellant’s Opening
Br. 2/4/2008 (Exh. “E”). Petitioner presented two
(2) issues on appeal: 1) whether the jury verdict was
coerced, and if so, whether the trial court abused its
discretion when it failed to declare a mistrial after the
jury sent a note indicating they were at an impasse; and 2)
whether [the Victim’s] spontaneous statement to Dr.
Binkiewicz was admissible under the medical exception to the
hearsay rule, and if so, whether the trial court abused its
discretion in ruling that the statement was admissible.
Answer (Doc. 16), Exh. “E” at 1. Relying solely
on state law, Petitioner argued that “[t]here was
absolutely no testimony from the doctor that the identity of
the person who abused T[.] was relevant or ‘reasonably
necessary’ ‘to proper diagnosis and
treatment’ as required by Rule 803(4)[, Arizona Rules
of Evidence, ] and applicable case law.” Id.,
Exh. “E” at 14. As such, Petitioner asserted that
the statement “was inadmissible because it did not fall
under the medical exception to the hearsay rules.”
Id., Exh. “E” at 15. Again relying
solely on state law, Petitioner further argued that
“the totality of the circumstances clearly indicate
that the Jury’s verdict was coerced.”
Id., Exh. “E” at 18. Accordingly,
Petitioner sought “to have his conviction
31, 2008, the Arizona Court of Appeals affirmed
Petitioner’s conviction. Answer (Doc. 16), Ariz.Ct.App.
Memorandum Decision 7/31/2008 (Exh. “H”). Upon
review of state law, the court of appeals recognized that
“the identity of the victim’s assailant and other
statements attributing fault ordinarily are inadmissible
under Rule 803(4) because identity and fault usually are not
relevant to diagnosis or treatment[;] . . . however, . . .
the general rule is inapplicable in many child sexual abuse
cases because the abuser’s identity is critical to
effective diagnosis and treatment.” Answer (Doc. 16),
Exh. “H” at 5 (citing State v. Robinson,
153 Ariz. 191, 200, 735 P.2d 801, 810 (1987)) (internal
quotations marks omitted). As such, the court of appeals held
that “the trial court did not abuse its discretion in
admitting T.’s statement identifying Kidwell.”
Answer (Doc. 16), Exh. “H” at 8. Regarding jury
coercion, and again relying on state law, the court of
appeals recognized that “[w]hen a jury has advised the
trial court that it has reached an impasse . . . [the court
is permitted to, ] in the presence of counsel, inquire of the
jurors to determine whether and how court and counsel can
assist them in their deliberative process, . . . [and] the
judge may direct that further proceedings occur as
appropriate.” Answer (Doc. 16), Exh. “H” at
10 (citing Ariz. R. Crim. P. 22.4) (internal quotation marks
omitted). The Arizona Court of Appeals then held that
“to the extent Kidwell suggests the court was obligated
to declare a mistrial merely because the jury had informed
the court it was unable to reach a verdict, he is
incorrect.” Id., Exh. “H” at 10
(citing State v. Cruz, 218 Ariz. 149, ¶ 115,
181 P.3d 196, 214 (2008)). The court further held that it
found “nothing in the record suggesting the
court’s actions displaced the jury’s independent
judgment . . . [and] [t]here was no error.” Answer
(Doc. 16), Exh. “H” at 12 (citing State v.
Huerstel, 206 Ariz. 93, 101 n. 5, 75 P.3d 698, 706 n. 5
(2003)). On September 2, 2008, Petitioner filed his Petition
for Review. Answer (Doc. 16), Pet. for Review (Exh.
“I”). On January 7, 2009, the Arizona Supreme
Court denied review. See Answer (Doc. 16), Ariz.
Supreme Ct. Minute Entry 1/7/2009 (Exh. “K”).
Post-Conviction Relief Proceeding
February 4, 2009, Petitioner filed his Notice of Intent to
File for Post-Conviction Relief (“PCR”). Answer
(Doc. 16), Not. of Intent to File PCR 2/4/2009 (Exh.
“L”). On February 17, 2009, the trial court
appointed counsel to Petitioner for the Rule 32 proceeding.
Answer (Doc. 16), Ariz. Superior Ct., Pima County, Notice
2/17/2009 (Exh. “M”). After several extensions of
time, as well as a change of counsel, on April 13, 2010,
counsel for Petitioner filed a Petition for Post Conviction
Relief. See Answer (Doc. 16), Orders re: Extensions
of Time & Withdrawal of Counsel (Exh. “M”)
& Pet. for PCR 4/13/2010 (Exh. “O”).
Petitioner asserted that his conviction was based upon
insufficient evidence. See Answer (Doc. 16), Exh.
“O” at 9-13. Petitioner further asserted several
grounds of ineffective assistance of trial counsel,
including: 1) an alleged failure to move that the verdict was
contrary to the weight of the evidence pursuant to Rule
24.1(a), (c)(1), Arizona Rules of Criminal procedure; 2) an
alleged failure to properly argue in opposition to the
State’s motion to modify the date range of the
indictment; 3) an alleged failure to object to the a
duplicitous charge on the jury form; 4) an alleged failure to
object to the admissibility of T.’s statement to the
examining doctor “on the grounds that it violated Mr.
Kidwell’s right to cross-examine T[.] on the new
evidence and/or in failing to move to open evidence to allow
T[.] to be cross-examined on this new evidence[;]” and
5) an alleged failure to object to the Prosecutor’s
closing argument. Id., Exh. “O” at
October 26, 2010, the Rule 32 court, relying on Arizona law,
“summarily reject[ed] the contention that the
conviction was obtained in violation of either the United
States or the State Constitution.” Answer (Doc. 16),
Ariz. Superior Ct., Pima County, Ruling Re: Petition for
Post-Conviction Relief 10/26/2010 (Exh. “U”) at
2. Similarly, the Rule 32 court rejected Petitioner’s
claim of ineffective assistance relating to Rule 24.1(a),
(c)(1), finding that there “was ample evidence to
support the conviction.” Id., Exh.
“U” at 2. Regarding the claim of ineffective
assistance relating to amendment of the indictment, upon
review of the jury instructions submitted to the jury, the
Rule 32 court held that “[t]he claim of prejudice and
inability to prepare is unfounded and rests entirely upon an
unsupported assertion.” Id., Exh.
“U” at 3. The Rule 32 court ordered an
evidentiary hearing regarding the allegation of ineffective
assistance “for failing to object that the child
molestation charge was duplicitous and resulted in a jury
verdict which might not have been unanimous.”
Id., Exh. “U” at 3-4. Regarding the
ineffective assistance of counsel for an alleged failure to
object to the doctor’s testimony on Confrontation
Clause grounds, the Rule 32 held that Petitioner
“failed to demonstrate a colorable basis to his claim
that trial counsel’s strategy, or tactics, or
cross-examination would have been different had the statement
been introduced earlier.” Id., Exh.
“U” at 5. Finally, relying on state law, the Rule
32 court held that Petitioner’s claim regarding
ineffective assistance of trial counsel related to closing
arguments was unsupported. Answer (Doc. 16), Exh.
“U” at 5.
February 9, 2011, Petitioner moved to amend his PCR petition
in order “to add the claim that Appellate Counsel was
ineffective in failing to raise those issues on Appeal in
this matter which could have been, but were not, raised on
appeal[.]” Answer (Doc. 16), Mot. to Amend Pet. for PCR
(Exh. “V”) at 1. On March 29, 2011, and
evidentiary hearing was held before the Rule 32 court.
See Answer (Doc. 16), Ariz. Superior Ct., Pima
County, Minute Entry 3/29/2011 (Exh. “W”) &
Hr’g Tr. 3/29/2011 (Exh. “X”).
April 7, 2011, the Rule 32 court entered its Order regarding
Petitioner’s PCR petition. Answer (Doc. 16), Ariz.
Superior Ct., Pima County, Ruling Re: Petition for
Post-Conviction Relief 4/6/2011 (Exh. “Y”). The
court reiterated its prior dismissal of the majority of
claims. See id., Exh. “Y.” The Rule 32
court went on to address Petitioner’s allegation of a
duplicitous indictment. See id., Exh.
“Y” at 4. Based upon the opinion testimony at the
evidentiary hearing of Petitioner’s expert witness, the
Rule 32 court found that trial counsel had fallen
“below prevailing norms of professional conduct.”
Id., Exh. “Y” at 4 (citing
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984)). The Rule 32 court, however,
further held that Petitioner “ha[d] made an
insufficient showing to demonstrate that with different
instructions or another form of verdict that the outcome of
his trial would have been different.” Id.,
Exh. “Y” at 5. As such, the Rule 32 court denied
Petitioner’s claim. Id., Exh. “Y”
28, 2011, Petitioner filed his Petition for Review in the
Arizona Court of Appeals. See Answer (Doc. 16), Pet.
for Review 7/28/2011 (Exh. “Z”). Petitioner
reasserted three (3) grounds for relief raised in his PCR
petition, including: 1) whether “trial counsel was
ineffective for failing to properly challenge the
state’s request to amend the Indictment to modify the
date range of the molestation charge[;]” 2) whether
trial counsel was ineffective for failing to object to the
jury verdict form; and 3) whether trial counsel was
ineffective for failing to argue the Confrontation Clause
with regard to T.’s statements to the doctor.
Id., Exh. “Z” at 2, 9-19. On November 9,
2011, the Arizona Court of Appeals granted review, but denied
relief. Answer (Doc. 16), Ariz.Ct.App. Order 11/9/2011 (Exh.
“AA”). Regarding Petitioner’s claim that
trial failed to properly argue against amending the
indictment, the court of appeals noted that “trial
counsel did object, on this very ground, to the state’s
request to modify the indictment.” Id., Exh.
“AA” at 4. The court went on to hold that
Petitioner failed “to posit any other reason we should
find counsel’s objection deficient[, ] . . . [and]
fails to address the trial court’s specific finding
that he suffered no prejudice[.]” Id., Exh.
“AA” at 4. The court of appeals determined that
the trial court did not abuse its discretion as to this
claim. Id., Exh. “AA” at 5. The Arizona
Court of Appeals further affirmed the Rule 32 court’s
decision regarding a duplicitous charge. Id., Exh.
“AA” at 5-6. Despite a finding that trial and
appellate counsel fell below the prevailing norms of
professional conduct, Petitioner failed to show prejudice as
required under Strickland. Finally, the court of
appeals noted that Petitioner did not “present any
meaningful analysis relevant to an alleged violation of the