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Kidwell v. Ryan

United States District Court, D. Arizona

August 10, 2016

Thomas Alec Kidwell, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          Honorable Bruce G. Macdonald United States Magistrate Judge

         Currently 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The Arizona Court of Appeal stated the facts[1] 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.[1] 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.
[1] 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.

         On 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.

         A. Direct Appeal

         On 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 overturned.” Id.

         On July 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”).

         B. Post-Conviction Relief Proceeding

         On 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 13-24.

         On 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.

         On 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”).

         On 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” at 5-6.

         On July 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.[2] Finally, the court of appeals noted that Petitioner did not ‚Äúpresent any meaningful analysis relevant to an alleged violation of the Confrontation ...


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