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Irizarry v. Ryan

United States District Court, D. Arizona

September 8, 2016

Daimen Joseph Irizarry, Petitioner,
Charles L Ryan, et al., Respondents.


          James A. Teilbrorg Senior United States District Judge.

         Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus (“Petition”). The Magistrate Judge to whom this case was assigned issued a Report and Recommendation (R&R) recommending that this Court deny the Petition. Doc. 11. Petitioner, through counsel, filed objections to the R&R. Doc. 12.

         I. 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.”). Thus, this Court will review the portions of the R&R to which Petitioner objected de novo.

         II. Review of State Court Decision

         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).

         III. Background

         The R&R at pages 1-4 recounts the background of Petitioner's case. Petitioner makes 5 objections to this portion of the R&R. To add context to Petitioner's objections, the Court quotes this factual background in its entirety:

Irizarry was indicted on multiple counts of aggravated assault, drive by shooting, and unlawful flight from a law enforcement vehicle. (Doc. 10-3) These charges all stemmed from the January 28, 2010 death of Gilbert Police Lieutenant Eric Shuhandler. (Id.)
At trial, the jury heard evidence that while Irizarry was pulled over for a traffic violation, his passenger, Christopher Redondo, shot and killed Lt. Shuhandler. Irizarry then sped away and he was arrested after an hour-long high-speed chase and a brief shootout. (Doc. 10-8 at ¶ 2) Irizarry argued that he was under the influence of methamphetamine, panicked when he heard the gun shot, and drove off because he was scared that Redondo would kill him too. (Doc. 9, Ex. C at 60-66)
As part of the State's case-in-chief, Melissa Kingsley, a radio dispatcher, testified about her conversation with Lt. Shuhandler during the traffic stop. (Doc. 9, Ex. A at 74-83) Through her testimony, the State introduced Exhibit 121, a recording of her conversation with Lt. Shuhandler, and played it for the jury. (Id. at 80) Kingsley testified that Lt. Shuhandler had called at 10:42 and they had switched communication channels at 10:49. (Id. at 77-78) Then, the State asked her several questions about whether Exhibit 121 was complete:
Q: And does [the recording] also include everything or the clip that we have here up until the time that you no longer corresponded with him; correct?
A: Yes
Q: And does include the time on there? [sic] From your memory, does it include at least real time from the time he called at 10:49 with you until the communication ended is real time on the time; correct? [sic]
A: Yes
Q: That will give us a definite or exact time as to when things happened; correct?
A: Yes.
(Id. at 79) Irizarry's counsel did not object to the introduction of Exhibit 121 and he did not cross examine Kingsley. (Id. at 80, 83)
Irizarry recalled Kingsley to testify. (Doc. 9, Ex. B at 33-44) The second time she testified, Kingsley stated that she did not edit Exhibit 121, acknowledged that someone had edited out her contemporaneous communication with other officers, and acknowledged that Exhibit 121 would have been longer if those communications had been left in the recording. (Id. at 34-40) During cross-examination with the State, Kingsley agreed that she had “previously told us that the whole conversation took [sic] and the times are 10:47 to 10:53” and that she had previously testified that the tape was six minutes. (Id. at 41-42) On redirect, Kingsley stated that she did not remember whether she had originally testified about 10:47 and 10:53 and that she did not remember whether or not the tape should be six minutes. (Id. at 43-44)
After six days of trial, the jury found Irizarry guilty of all the charged counts and, subsequently, the Court sentenced him to 107.5 years. (Doc. 1 at 1) Irizarry moved to vacate the judgment arguing that the State had intentionally used false evidence when it introduced Exhibit 121 and that the State had intentionally used perjured evidence from Kingsley and from law enforcement officers. (Docs. 1-2, 1-3, 10-11) The Court denied the motion. (Doc. 1-11; Doc. 9, Ex. P)
On direct appeal, Irizarry argued that the Court should not have denied his motion to vacate. (Doc. 9, Exs. D, E) The Arizona Court of Appeals disagreed and affirmed his convictions and sentences. (Doc. 1-12, Doc. 9, Ex. F) Specifically, the Court of Appeals found that Kingsley's “testimony about the brief traffic stop before Redondo shot the office[r] was less prejudicial than other evidence presented during trial” and that her testimony “did not have a material effect on the ...

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