Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Merrick v. Ryan

United States District Court, D. Arizona

July 14, 2017

Anthony James Merrick, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

         The Court has before it Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and a supporting memorandum (Docs. 1, 3), Respondents' Response (Doc. 12), and Petitioner's reply (Doc. 19). We also have before us the Report and Recommendation of the United States Magistrate Judge (Doc. 20), recommending denial of the Petition, and Petitioner's timely Objections (Doc. 23).

         Petitioner was found guilty by a jury of two counts of conspiracy to commit tampering with a witness, conspiracy to commit perjury, and obstructing criminal investigations or prosecutions. He was sentenced to a 4.5 year prison term for each conviction for conspiracy to tamper with witnesses, a 12 year prison term for conspiracy to commit perjury, and a 6 year prison term for obstructing an investigation or prosecution. The court ordered concurrent sentencing, but consecutive as to his sentences in another case (Doc. 12, Ex. A, Ex. Q at 3).

         The Petitioner raises nineteen grounds for relief in his Petition for Writ of Habeas Corpus. In Ground One, the Petitioner argues the trial court erred by denying his motion to dismiss the case for lack of jurisdiction based on the State's presentation of privileged religious communications to the grand jury, which he believed violated clearly established federal law as determined by the United States Supreme Court. In Ground Two, the Petitioner argues the trial court violated clearly established federal law by denying his motion to preclude evidence of his communications with Reverend McFarland, including letters and telephone calls, which Petitioner claimed were privileged religious communications. In Ground Three, the Petitioner argues the trial court erred by denying his motion for appointment of an expert witness/neuropsychologist to assist his defense. In Ground Four, the Petitioner argues the trial court erred by denying his motion for constitutional seating in the courtroom as required by clearly established federal law. In Ground Five, the Petitioner argues the trial court violated clearly established federal law by precluding him from presenting evidence of his religion and a defense under Ariz. Rev. Stat. § 41-1493.01.

         The Petitioner argues in Ground Six, the trial court erred by denying his motion in limine to preclude the introduction into evidence of phone calls. In Ground Seven, the Petitioner argues the trial court violated clearly established federal law by denying his motion for a new trial based on his assertion that insufficient evidence supported his convictions. In Ground Eight, the Petitioner argues the trial court violated clearly established federal law by precluding a defense witness. In Ground Nine, the Petitioner argues the trial court violated clearly established federal law by denying him the right to confront a witness. In Ground Ten, the Petitioner argues the trial court violated his state and federal rights to due process and a fair trial by denying his motion for a new trial and by denying him “the opportunity to include evidence.” In Ground Eleven, the Petitioner argues the trial court erred by denying his motion for a new trial on the ground that the state presented privileged legal communications at trial in violation of his state and federal constitutional rights.

         In Ground Twelve, the Petitioner argues the trial court erred by denying his motion for a new trial on the grounds that the trial court had failed to give a Willits instruction. In Ground Thirteen, the Petitioner argues the trial court erred by denying his motion for a new trial based on his assertion that the State introduced evidence at trial that it did not disclose to the defense. In Ground Fourteen, the Petitioner argues the trial court erred by denying his motion for a new trial based on his assertion that the prosecution misled the jury and committed misconduct in violation of his state and federal constitutional rights to due process and a fair trial. In Ground Fifteen, the Petitioner argues that the State's use of privileged material prevented him from exercising his state and federal constitutional rights to testify and present evidence in his defense. In Ground Sixteen, the Petitioner argues the trial court erred by denying his motion for a mistrial based on the prosecution informing the jury that he had been convicted of eleven felonies. In Ground Seventeen, the Petitioner argues he was denied effective assistance of counsel on appeal. In Ground Eighteen, the Petitioner argues the State committed prosecutorial misconduct and deprived him of his state and federal constitutional rights to due process and a fair trial. In Ground Nineteen, the Petitioner argues the trial court violated his state and federal rights to due process by not allowing him to include an illegal sentencing claim in his petition for post-conviction relief (Doc. 1 at 7-38).

         The Magistrate Judge concluded that Ground Eighteen is procedurally barred from federal habeas corpus review and further concluded that the Petitioner has not established a basis to overcome that bar. The Magistrate Judge further stated in the R&R that Grounds Two, Four, Five, Six, Ten, Twelve, Thirteen, Sixteen, and Nineteen are not cognizable on federal habeas corpus review or lack merit. Additionally, the Magistrate Judge held the Petitioner has not shown that he is entitled to habeas corpus relief on his remaining claims.

         A district judge “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). When a party files a timely objection to an R&R, the district judge reviews de novo those portions of the R&R that have been “properly objected to.” Fed.R.Civ.P. 72(b). A proper objection requires specific written objections to the findings and recommendations in the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b)(1). It follows that the Court need not conduct any review of portions to which no specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial economy). Further, a party is not entitled as of right to de novo review of evidence or arguments which are raised for the first time in an objection to the R&R, and the Court's decision to consider them is discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000).

         In his Objections to the Report and Recommendation, Petitioner challenges the Magistrate Judge's following conclusions:

(1) the Magistrate Judge incorrectly concluded that Ground One is not cognizable on Federal Habeas Corpus, because it is a matter of state law;
(2) the Magistrate Judge incorrectly concluded that Ground Two is not cognizable on Federal Habeas Corpus, because Respondents prevented Petitioner from citing proper law, and did not allow the Petitioner to have it or receive it;
(3) the Magistrate Judge recognized Ground Four is a cognizable claim but erred in stating that there is no Supreme Court precedence on the issue;
(4) the Magistrate Judge incorrectly concluded in Ground Five that the resolution of his claim turns on the application of state law and that the Arizona Court of Appeals decision is the correct interpretation of state law;
(5) the Magistrate Judge incorrectly concluded in Ground Six that Habeas Corpus review is not available for claims under 42 U.S.C. § 2000 CC-1;
(6) the Magistrate Judge incorrectly concluded in Ground Ten that Petitioner's conclusory allegations failed to explain how the ruling of the trial court ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.