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Rushing v. Ryan

United States District Court, D. Arizona

November 22, 2017

Theodore R Rushing, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          Roslyn O. Silver Senior United States District Judge

         On May 2, 2017, Magistrate Judge John Z. Boyle issued a Report and Recommendation (“R&R”) recommending the petition for writ of habeas corpus be denied. Petitioner filed objections to the R&R as well as a motion to stay further proceedings while he returned to state court to exhaust certain claims. Petitioner's objections are without merit and it would be futile for him to return to state court. Therefore, the R&R will be adopted in full and the petition dismissed with prejudice.

         The R&R recounts the background concerning Petitioner's criminal trials and his post-trial filings. Petitioner did not object to that background and the Court will adopt it in full. In brief, Petitioner shot and killed an individual during an altercation in a parking lot. Petitioner was charged with first-degree murder and five counts of aggravated assault. At the end of his original trial, the jury convicted Petitioner of three counts of aggravated assault and one count of the lesser-included offense of disorderly conduct. The jury acquitted Petitioner of one count of aggravated assault. The jury could not, however, reach a verdict on the murder charge. Petitioner was then retried on the murder charge and he was convicted of the lesser-included offense of manslaughter. Petitioner was sentenced to the presumptive sentence for the manslaughter conviction and mitigated terms on the other convictions. Because the trial court ordered the sentences to run consecutively, Petitioner's total sentence was approximately twenty-five years.

         Petitioner filed a direct appeal but his convictions and sentences were affirmed. Petitioner also filed three petitions for post-conviction relief in state court, none of which were successful. Petitioner eventually filed this federal petition, asserting seven grounds for relief. The R&R concludes a few of those grounds were not exhausted but, even if the merits could be reached on all of the grounds, none of them meet the high bar for obtaining relief. Petitioner filed objections, largely rearguing the positions he asserted in his petition. Petitioner also filed a motion seeking to stay these proceedings while he returned to state court to exhaust some of his grounds.

         I. Ground One-Juror Qualification

         Petitioner's first ground for relief involves one of the trial jurors allegedly being unqualified to sit on one of the juries. The R&R construes this claim as exhausted and analyzes it on the merits. The R&R describes Petitioner as arguing the juror was not a resident of Maricopa County and, therefore, was ineligible to sit based on Arizona law. The R&R concludes that is not a viable basis for federal habeas relief. In his objections, Petitioner explains the R&R misinterprets his argument. Petitioner explains he is not arguing the juror's presence violated Arizona law but that the juror's presence meant Petitioner was “denied the right of a 12 person jury.” (Doc. 55 at 4). Regardless of Petitioner's exact claim, he is not entitled to relief.

         The R&R correctly concludes Arizona law, not federal law, required the trial jurors be residents of Maricopa County. This argument likely is unexhausted but the Court can reject the argument on its merits notwithstanding the exhaustion issue. 28 U.S.C. § 2254(b)(2) (“An 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.”). Petitioner has not cited any federal law imposing such a residency requirement. Moreover, federal law states a potential defect in a juror's qualification to sit does not impact the validity of the verdict. Thus, even assuming the juror was not qualified to sit based on residency, that is not a basis for relief. See Kohl v. Lehlback, 160 U.S. 293, 301 (1895) (juror's lack of citizenship did not violate federal constitution).

         As for Petitioner's argument that the Sixth Amendment required a twelve-person jury, that is incorrect. Again, this argument likely is unexhausted but it is easiest to address it on the merits. “[U]nder the Sixth Amendment to the United States Constitution a defendant in a criminal case has a right to a jury trial, but that does not even mean that a state is required to use the traditional twelve-person jury. Variations are permitted.” Lambright v. Stewart, 191 F.3d 1181, 1184 (9th Cir. 1999). Provided a criminal jury consisted of at least six persons, there is no federal constitutional issue. Id. Under Petitioner's own argument, his jury had eleven persons. Therefore, even assuming Petitioner was only convicted by a jury of eleven persons, that does not establish a violation of his federal rights.

         II. Ground Two-Aggravated Sentence

         Petitioner's second ground for relief involves his belief that his sentences violated federal law because the trial court's sentencing decision was based on aggravating factors not found by the jury. In addressing this argument, the Arizona Court of Appeal explained why it was baseless: “The obvious flaw in [Petitioner's] argument is that the trial court did not impose any aggravated sentences; [Petitioner] received a presumptive prison term on the manslaughter conviction and mitigated prison terms on his other convictions.” State v. Rushing, No. 1 CA-CR 09-0601, 2011 WL 5299384, at *7 (Ariz.Ct.App. Nov. 3, 2011). The R&R believes this claim should be addressed on the merits but agrees with the Arizona Court of Appeals there was no sentencing error because Petitioner did not receive aggravated sentences.

         In his objections, Petitioner seems to make two arguments. First, he claims the trial court found aggravating circumstances that “removed the possibility of receiving the minimum sentence.” (Doc. 55 at 5). And second, the trial court impermissibly found aggravating factors to justify imposition of consecutive sentences. Neither argument is persuasive.

         On the first argument, Petitioner has not established imposition of a presumptive sentence violated his federal rights. Upon being convicted of manslaughter, Petitioner was eligible for the presumptive 10.5 year sentence. The trial court imposed that sentence and the failure to impose less than the presumptive raises no federal constitutional issue. In other words, upon being convicted of manslaughter Petitioner was exposed to a sentence of 10.5 years without the need for any additional factual findings. The fact that Petitioner received that sentence, instead of a lesser sentence, does not violate federal law. Cf. Alleyne v. United States, 133 S.Ct. 2151, 2160 (2013) (trier of fact must find “any facts that increase the prescribed range of penalties to which a criminal defendant is exposed”) (emphasis added).

         On the second argument, Petitioner claims the trial court found aggravating circumstances and then relied on that to impose consecutive, instead of concurrent, sentences. But the decision whether to impose consecutive or concurrent sentences is within the trial court's discretion. State v. Cota, 272 P.3d 1027, 1043 (Ariz. 2012). And there is no federal right to have that discretion exercised in a particular way. Thus, the decision to impose consecutive sentences is not a basis for relief.

         III. Ground ...


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