United States District Court, D. Arizona
HONORABLE JOHN J. TUCHI UNITED STATES DISTRICT JUDGE
the Court is Petitioner's Motion to Amend/Correct
Petition for Habeas Corpus (Doc. 19), which United States
Magistrate Judge John Z. Boyle has recommended this Court
grant (Doc. 22) and to which Respondents have not objected.
The Court will grant the motion and Order the lodged Proposed
Amended Petition (Doc. 20) filed.
before the Court is Judge Boyle's Report and
Recommendation (“R&R”) (Doc. 22) recommending
that the Court deny and dismiss with prejudice the Amended
Petition for Writ of Habeas Corpus 2254 (Doc. 20). Petitioner
timely filed an Objection to the R&R (Doc. 23), and
Respondents filed a Reply in agreement with the R&R (Doc.
24). Upon consideration of each of these submissions, the
Court will adopt the R&R in whole, including its
reasoning, and will deny and dismiss with prejudice the
Boyle thoroughly and exhaustively analyzed both the
procedural impediments to jurisdiction and the shortcomings
on the merits of each of the four grounds on which the
Amended Petition lay. As Judge Boyle recommended for purposes
of addressing the Amended Petition, as a matter of judicial
economy the Court will analyze the first three of the four
grounds on the merits, even though several or all of those
grounds likely would not survive procedural bars to federal
habeas review. Upon a review on the merits, Judge Boyle
correctly concluded that Grounds One, Two and Three fail. The
Court also agrees with Judge Boyle and finds that Ground Four
is technically exhausted but procedurally defaulted, and that
Petitioner presents no showing of cause and prejudice that
would excuse such default.
One of the Amended Petition posits that trial counsel
provided ineffective assistance within the meaning of
Strickland v. Washington, 466 U.S. 688, 684 (1984),
when counsel failed to “establish and maintain”
an adequate relationship with Petitioner, investigate
Petitioner's case and discuss strategy with Petitioner.
Petitioner fails in Ground One to overcome the strong
presumption in the law of adequate assistance. The Arizona
trial court found an adequate relationship between attorney
and client based on objective criteria cited in the record,
as Judge Boyle identified expressly in the R&R. Once the
state court made such finding, the burden is on Petitioner to
prove that decision incorrect by showing-not merely
alleging-what trial counsel was required to do but failed to
do. Petitioner makes no such showing. Ground One fails.
Ground Two, Petitioner argues that trial counsel was
ineffective in not moving for suppression of the computer at
the heart of the case against Petitioner and not arguing an
inadequate chain of custody as to the resulting evidence.
These arguments fail as well. Petitioner's voluntary
grant of access to his computer by a non-government actor
does not implicate state action or the Fourth Amendment. And
a defect in the chain of custody goes only to the weight of
evidence, not its admissibility. Neither decision constituted
urged in Ground Three that trial counsel should have moved
for acquittal pursuant to Ariz. R. Cr. P. 20 after the close
of all evidence, and that the trial court on Post Conviction
Relief (“PCR”) review unreasonably determined
facts in denying a claim of ineffective assistance for this
decision. Ground Three has no merit. A Rule 20 motion for
acquittal is properly filed at or after the conclusion of the
state's evidence, and as the trial court on PCR review
noted, Petitioner's trial counsel so moved at the
conclusion of the state's case in chief. A Rule 20 motion
by definition tests the adequacy of the state's evidence
before any presentation of evidence by the
defendant. Once the state has rested its case in chief,
the trial court, in deciding a Rule 20 motion, takes into
account no other information; it does not consider any
evidence a defendant may later adduce. The court's sole
test is whether, standing alone, the evidence put forth by
the state in its case in chief, whenever evaluated, was
“substantial evidence to warrant the allegation.”
Ariz. R. Cr. P. 20(b). For this reason, once trial counsel
moved for acquittal pursuant to Rule 20, moving for acquittal
again after the conclusion of Petitioner's own case would
have had no effect.
in Ground Four, Petitioner argues that that counsel for the
PCR was ineffective because that counsel failed to argue
multiple separate irregularities before the grand jury and
trial jury. Petitioner's Ground Four fails both on the
merits and because most or all of the errors Petitioner now
urges are defaulted. Petitioner never raised to the PCR court
three of the actions he now charges as error, including trial
counsel's failure to: 1) strike certain
veniremen from the jury panel; 2) challenge the
reading of the indictment to the trial jury; and 3) notify
the trial court that the state withheld exculpatory evidence.
Those errors, if they be errors, are procedurally defaulted
without excuse for cause and prejudice. As for
Petitioner's claims that a grand juror had a conflict of
interest, PCR counsel did raise these issues to the state
court, who correctly decided to pursuant to state law, as
Judge Boyle set forth in the R&R. In any event,
Petitioner showed no prejudice from any such conflict of
interest. Ground Four fails.
Objections (Doc. 23) state no additional information, law or
arguments against the R&R. Petitioner merely repeats
prior contentions without support and cites very general
propositions of law. The Objections fail to dissuade the
Court on any of Judge Boyle's recommended conclusions, or
any of the reasoning behind them.
ORDERED granting Petitioner's Motion to Amend/Correct
Petition for Habeas Corpus (Doc. 19). The Clerk shall file in
the Proposed Amended Petition lodged at Doc. 20.
FURTHER ORDERED adopting in whole the R&R prepared by
Judge Boyle in this matter (Doc. 22).
FURTHER ORDERED denying and dismissing with prejudice the
Amended Petition (Doc. 20) in this matter, for the reasons
set forth above and in more fulsome detail in the R&R.
The Clerk shall close this matter.
FURTHER ORDERED denying a Certificate of Appealability and
leave to proceed in forma pauperis on appeal because
the dismissal of the Petition is justified by a plain
procedural bar and reasonable jurists would not find the
ruling debatable, and because ...