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Brown v. Ryan

United States District Court, D. Arizona

April 17, 2017

Danny Brown, Jr., Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Honorable Bruce G. Macdonald United States Magistrate Judge.

         Currently pending before the Court is Petitioner Danny Brown's pro se Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 7).[1] Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 19). Petitioner filed a Limited Reply to Respondent's Limited Answer to Petition for Writ of Habeas Corpus (“Reply”) (Doc. 26). The Petition is ripe for adjudication. Also pending is Petitioner's Ademdum [sic] Motion to Grant Writ (Doc. 34).

         Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, [2] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Amended Petition (Doc. 7) and grant in part and deny in part the Ademdum [sic] Motion to Grant Writ (Doc. 34).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Initial Charge and Sentencing

         The Arizona Court of Appeal stated the facts[3] as follows:

At around 3:15 on a December morning, a Tucson police officer initiated a stop after observing a vehicle driven by [Petitioner] Brown exceed the posted speed limit by fifteen miles per hour. The officer activated his emergency lights and siren, but Brown did not stop the vehicle immediately. Eventually, he made a “wide turn” and pulled over, striking and running over the curb with one tire.
When the officer approached the driver's side of the vehicle, he noticed Brown had “[a] strong odor of intoxicants; watery, bloodshot eyes; [and] slurred and thick-tongued speech.” Despite repeated requests by the officer, Brown refused to provide his license, registration, or insurance, “bec[ame] increasingly irate, ” and used racial slurs toward the officer. During this “rant, ” Brown said he wanted a lawyer and told the officer “[y]ou might as well just take me to jail.” When Brown got out of the car, he “stagger[ed] and stumbl[ed]” and the officer had to “hold him up to keep him from falling over.” Brown was arrested at 3:20 a.m. for failure to identify himself.
Police officers took Brown to the police substation and at 4:10 a.m., read to him the admin per se/implied consent form.[2] After Brown refused to give consent for a blood draw, an officer obtained a telephonic search warrant for a blood sample. Because Brown remained uncooperative and violent despite having been informed that officers had a search warrant, officers placed him in leg restraints and, after Brown submitted at around 5 a.m., two vials of his blood were drawn. Officers provided him with a vial for an independent test. Officers did not follow-up with Brown about his request for an attorney, and did not provide him the opportunity or means to call one.
Brown was charged with one count each of aggravated driving with a blood alcohol concentration (BAC) of .08 or more while his license was suspended (the “BAC” charge), aggravated driving under the influence of an intoxicant with a suspended license (the “DUI” charge), fleeing from a law enforcement vehicle, and aggravated assault on a peace officer.[] Before trial, he filed a motion to dismiss with prejudice the DUI and BAC counts and to suppress evidence obtained following the alleged violation of his right to counsel. After a hearing, the trial court denied both motions. It concluded that even if Brown had been denied the opportunity to consult with an attorney, there was “no nexus between the denial of the right to counsel and the drawing of the blood in this particular case.”
Brown filed a motion for reconsideration, urging the trial court to revisit its ruling. The court, finding “good cause for further argument and reflection on [its] prior ruling, ” agreed to hear additional arguments and subsequently granted the motion to suppress evidence of Brown's refusal to submit to the blood test and the blood alcohol evidence obtained after Brown was denied an opportunity to speak with an attorney. The court denied Brown's motion to dismiss the DUI and BAC charges, concluding the violation of Brown's “right to counsel did not interfere with [his] ability to obtain exculpatory evidence because [he] had access to a separate test tube of his blood that [he] could have chosen to have independently tested.” The state moved to dismiss the BAC charge and the court granted the motion.[]

         After a jury trial, Petitioner was found guilty of aggravated driving under the influence of an intoxicant with a suspended license. Id. at 4 n.5. On August 15, 2013, Petitioner was sentenced to a presumptive term of 4.5 years of incarceration in the Arizona Department of Corrections, with credit for two hundred thirty-five (235) days time served, followed by a term of community supervision. Amended Petition (Doc. 7), Arizona Superior Court, Pima County, Case No. CR20124769-001, Minute Entry 8/15/2013 (Exh. “3”) at 2. The court advised Petitioner regarding his rights of appeal and provided him with written notice of those rights. Id. at 3.

         B. Direct Appeal

         On March 3, 2014, Petitioner filed his Opening Brief with the Arizona Court of Appeals. Answer (Doc. 19), Appellant's Opening Br. 3/3/2014 (Exh. “B”). Petitioner presented the following issues on appeal:

(1) Did the trial court abuse its discretion in not dismissing the DUI charges after finding that the police had violated Appellant's right to counsel by not accommodating his request to contact his attorney, in addition to the trial court's proper remedies of precluding the blood test results and Appellant's refusal to voluntarily be tested[;] [and]
(2) Alternatively, assuming dismissal of the DUI counts was not required, did the trial court abuse its discretion in failing to suppress the non-blood test evidence collected after the violation of Appellant's right to counsel[.]

Id., Exh. “B” at 1.

         1. Motion to Dismiss the DUI Counts

         Relying on the Arizona Rules of Criminal Procedure and Arizona state law, Petitioner asserted that “[t]he trial court correctly found here that the State did not show that allowing Appellant to consult with his attorney sometime in the 50 minutes between his arrest and the admin per se advisement would have disrupted the investigation.” Answer (Doc. 19), Appellant's Opening Br. 3/3/2014 (Exh. “B”) at 8. Petitioner argued, however, that “Officer Szelewski's refusal to permit Appellant to contact his attorney at the outset of the investigation prevented him from collecting exculpatory evidence in addition to that provided by the second blood draw.” Id. at 12. As such, Petitioner argued that “dismissal of the DUI counts was the appropriate remedy. Id. at 16.

         2. Suppression of Non-Blood Evidence

         Petitioner further asserted that even if the trial court's refusal to dismiss the DUI counts was proper, it was required to suppress “the non-blood test evidence collected after the violation of Appellant's right to counsel.” Answer (Doc. 19), Exh. “B” at 17. Petitioner argued that “[t]he trial court properly suppressed evidence both of Appellant's refusal to submit to a blood test at the station and the results of the blood test that was ultimately taken at the station[;] . . . [h]owever, the trial court failed to also suppress other ‘statements by and alleged observations of' Appellant at the station.” Id., Exh. “B” at 17-18 (citing State v. Rosengren, 199 Ariz. 112, ¶ 32, 14 P.3d 303, 313 (Ct. App. 2000)). Accordingly, Petitioner sought his Aggravated DUI conviction to be overturned, and the matter “remanded for a new trial at which all post-right-to-counsel-violation evidence will be precluded.” Id., Exh. “B” at 19.

         3. Court of Appeals Decision and Subsequent Review

         On August 27, 2014, the Arizona Court of Appeals affirmed Petitioner's conviction and sentence. Answer (Doc. 19), Ariz.Ct.App. Memorandum Decision 8/27/2014 (Exh. “A”). The court of appeals held that it “d[id] not agree that Rosengren requires dismissal of the BAC and DUI counts.” Id., Exh. “A” at 8. The court concluded that “Brown was not denied the opportunity to gather exculpatory evidence such that the possibility of a fair trial was foreclosed, and the court did not err in refusing to dismiss the charges against him.” Id. at 9 (citing State v. Rosengren, 199 Ariz. 112, ¶¶ 16, 35, 14 P.3d 303, 309, 313 (Ct. App. 2000)). The court further held that any evidence such as the arresting officer's testimony regarding Brown's demeanor while at the substation was harmless. Id. at 9-10. The court stated that “[t]o convict Brown of aggravated DUI, the state was required to demonstrate that Brown, while his driver's license was suspended, was in ‘actual physical control of a vehicle . . . [w]hile under the influence of intoxicating liquor' and ‘impaired to the slightest degree.'” Id., Exh. “A” at 10 (citing A.R.S. §§ 28-1381(A)(1) and 28-1383(A)) (alterations in original). After reviewing Petitioner's pre-stop actions and behaviors, the court of appeals held that “[t]his evidence was sufficient to support Brown's conviction for aggravated driving under the influence.” Id., Exh. “A” at 11 (citing A.R.S. §§ 28-1381(A)(1) and 28-1383(A)). Accordingly, the court “conclude[d] beyond a reasonable doubt that any error in admitting the evidence obtained following the violation of Brown's right to counsel did not contribute to or affect the verdict.” Answer (Doc. 19), Exh. “A” at 11 (citing State v. Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d 601, 607 (2005)).

         Petitioner did not seek review with the Arizona Supreme Court. On October 10, 2014, the Arizona Court of Appeals issued its Mandate. Answer (Doc. 19), Court of Appeals, State of Ariz., Mandate 10/10/2014 (Exh. “E”). . . .

         C. Post-Conviction Relief Proceeding

         On October 14, 2014, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 19), Not. of PCR 10/14/2014 (Exh. “F”). On June 1, 2015, counsel for Petitioner filed a Notice of Completion of Post Conviction Review by Counsel; Request Extension of Time for Petitioner to File Pro Per Pursuant to Rule 32.4(C) and Order. See Answer (Doc. 19), Notice of Completion of PCR by Counsel (Exh. “G”). Pursuant to Montgomery v. Sheldon (I), [4] counsel stated that there were no viable issues appropriate for Rule 32 relief.[5] Id., Exh. “G” at 1.

         On June 1, 2015, the Rule 32 court entered its Order granting Petitioner sixty (60) days to file a pro se supplemental PCR petition. Answer (Doc. 19), Superior Court of the State of Ariz., Pima County, Case No. CR20124769-001, Order 6/1/2015 (Exh. “H”). Petitioner did not file a pro se PCR petition. See Answer (Doc. 19), Superior Court of the State of Ariz., Pima County, Case No. CR20124769-001, Order 8/24/2015 (Exh. “I”). Accordingly, the Rule 32 court dismissed Petitioner's PCR petition. Id.

         Petitioner did not appeal this ruling. . . .

         D. The Instant Habeas Proceeding

         On January 22, 2016, Petitioner filed his Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 7). Petitioner claims five (5) grounds for relief. First, Petitioner alleges that he was “denied his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution when he requested and was denied the opportunity to consult in private with an attorney.” Amended Petition (Doc. 7) at 6. Petitioner further alleged that in addressing this issue, the trial court erred by suppressing the BAC blood draw evidence, rather than dismissing the aggravated DUI count. Id. Petitioner also alleged that the trial court further erred by refusing “to allow defense counsel to mention to the jury that Mr. Brown requested to speak with an attorney.” Id. Second, Petitioner alleges ineffective assistance of counsel, because his PCR counsel “failed to find a colorable claim.” Id. at 7. Petitioner further alleges that in addition to PCR counsel's alleged failure to contact witnesses, trial counsel also failed to “interview[] the witnesses that were with Mr. Brown on the night he was stopped.” Id. Third, Petitioner claims that he was “denied Due Process of law under the 5th and 14th Amendment[s] to the United States Constitution when he was found guilty by a jury for aggravated D.U.I. where the only evidence the State presented at trial was officer testimony.” Amended Petition (Doc. 7) at 8. Petitioner further alleges that “[d]uring trial, the only evidence presented by the State where [sic] the testimony of two police officers, who both testified to there [sic] interactions with Mr. Brown which were inconsistent to one another[.]” Id. Fourth, Petitioner asserts that he “was denied Due Process of law under the 5th and 14th Amendment to the United States Constitution when he was deprived of his freedom and taken into custody without being given Miranda warning [sic].” Id. at 9. Petitioner alleges that he “invoked his Miranda rights, on the night he was stopped . . . [and] officers never attempted or even read Mr. Brown his rights.” Id. Fifth, Petitioner alleges that he was “denied his right to effective assistance of counsel and Due Process which is under the Sixth, Fith [sic], and 14th Amendments to the United States Constitution when counsel failed to petition the court for an evidentiary hearing after the blood draw was suppressed.” Id. at 9A. Petitioner now seeks “an evidentiary hearing pursuant to Brady which requires the assignment of counsel which is governed by section [sic] 3006A of title [sic] 18.” Id.

         On May 3, 2016, Respondents filed their Answer (Doc. 19). Petitioner filed a Limited Reply to Respondent's Limited Answer to Petition for Writ of Habeas Corpus (“Reply”) (Doc. 26). Petitioner asserts that ineffective assistance of counsel should excuse any procedural default that may have occurred. See Reply (Doc. 26) at 3-12. Petitioner reiterates his position that the trial court admitted “evidence in violation of the exclusionary rule[;]” denied Petitioner his right to a fair trial by excluding evidence of Petitioner's request for counsel; he received ineffective assistance of PCR counsel; that the officers presented conflicting testimony at trial; his Miranda warnings were not given; and after reconsideration of his motion to suppress, Petitioner never received an evidentiary hearing, and his trial counsel never requested one. Reply (Doc. 26) at 4-12- 10-12.

         II. STANDARD OF REVIEW

         A. In General

         The federal courts shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Ultimately, “[t]he statute's design is to ‘further the principles of comity, finality, and federalism.'” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet and highly deferential “for evaluating state-court rulings, [and] which demands that state-court decisions be given the benefit of the doubt.” Pinholster, 131 S.Ct. at 1398 (citations and internal quotation marks omitted).

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013). Federal courts reviewing a petition for habeas corpus must “presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'” Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the state court's determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473, 127 S.Ct. at 1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is unreasonable where a state court properly identifies the governing legal principles delineated by the Supreme Court, but when the court applies the principles to the facts before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). “AEDPA requires ‘a state prisoner [to] show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement.'” Burt, 134 S.Ct. at 10 (quoting Harrington, 562 U.S. at 103, 131 S.Ct. at 786-87) (alterations in original).

         B. Exhaustion ...


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