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Bisbee v. Ryan

United States District Court, D. Arizona

February 6, 2018

Courtney Valle Bisbee, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE

         In 2006, Petitioner Courtney Valle Bisbee was convicted in state court of two counts of molestation of a child. After extensive proceedings in state court, Bisbee filed a petition for writ of habeas corpus in this court. Magistrate Judge David K. Duncan issued a Report and Recommendation concluding Bisbee was not entitled to relief. Bisbee filed objections but, having reviewed each ground for relief identified in the Amended Petition, the Court agrees she is not entitled to relief.

         FACTUAL BACKGROUND

         As of early 2004, Bisbee was in her early 30s but was spending a substantial amount of time with a group of teenagers. Bisbee was especially close to J.V., who was thirteen at the time. (Doc. 41-5 at 46). In February 2004, Bisbee, J.V., and others were in a bedroom. Bisbee and J.V. were lying on the floor, side by side, underneath a blanket. Bisbee and J.V. kissed, Bisbee touched J.V.'s penis over his underwear, and Bisbee placed J.V.'s hand inside her underwear. As a result of that touching, Bisbee was arrested and later indicted on three counts of molestation of a child and three counts of public indecency to a minor. The three molestation counts were based on Bisbee touching J.V.'s penis, Bisbee having J.V. touch her genitals, and Bisbee having J.V. “fondle” her breast. (Doc. 41-2 at 5). The public indecency charges were based on Bisbee alleging touching J.V.'s penis while three other teenagers were in the room.

         In November 2005, Bisbee elected to proceed to a bench, not jury, trial. At trial, both Bisbee and J.V. testified. The trial court credited J.V.'s version of events and found Bisbee guilty of two counts of molestation of a child based on her touching J.V.'s penis and having J.V. touch her genitals. (Doc. 41-5 at 46). The trial court determined there had been no evidence to support the other molestation count and the state had not carried its burden on the three counts of public indecency. (Docs. 41-3 at 195; 41-5 at 45). For the two counts she was convicted on, Bisbee was sentenced to eleven years of imprisonment.

         Bisbee pursued a direct appeal but raised only one issue involving the trial court's exclusion of expert testimony; her convictions were affirmed. Bisbee then pursued a petition for post-conviction relief in state court. That petition raised a variety of claims based on somewhat convoluted claims for ineffective assistance of trial counsel, “involuntary waiver of fundamental right to trial by jury, ” and newly discovered evidence involving statements by J.V. (Doc. 3-6 at 23). The trial court rejected all of those claims as did the Arizona Court of Appeals. Bisbee, acting pro se, filed a second and third petition for post-conviction relief in state court. Those later petitions also were rejected.

         In March 2012, Bisbee filed the present petition in federal court. After some initial confusion regarding the status of her state post-conviction proceedings, Bisbee filed her Amended Petition asserting thirteen allegedly distinct claims for relief. (Doc. 32). Those claims, as best as the Court can understand them, are as follows:

1. Newly discovered evidence in the form of an affidavit by one of the teenagers establishes Bisbee's innocence;
2. Newly discovered evidence establishes Bisbee's statements to the police were “coerced and involuntary” and should not have been admitted at trial;
3. Bisbee was denied effective assistance of trial counsel in twelve different ways;
4. Newly discovered evidence establishes the prosecution failed to comply with its Brady obligations to disclose the entirety of J.V.'s statement to the police;
5. Newly discovered evidence establishes the prosecution failed to comply with its Brady obligations to disclose the criminal history of J.V.'s mother;
6. Newly discovery evidence establishes J.V. and his mother “were motivated by financial considerations to lie about the alleged molestation”;
7. Bisbee's right to remain silent was violated through an “extensive interrogation” that led to her making incriminating statements;
8. Bisbee was denied due process by the police failing to obtain physical evidence or interview witnesses;
9. Bisbee was denied effective assistance of appellate counsel in three different ways;
10. Bisbee was denied due process and a fair trial because the prosecution “failed to present material inconsistencies in [J.V.'s] testimony to the grand jury”;
11. Bisbee's rights were violated by the police entering “her home to conduct a warrantless arrest and search”;
12. Bisbee was denied a fair trial by the exclusion of her proposed expert testimony; and
13. The trial court “erred” by not amending an order to correct a factual error.

(Doc. 32).

         In responding to the petition, Respondents argued the first, ninth, and twelfth claims were procedurally defaulted. Respondents also argued five of the twelve subclaims within the third claim regarding ineffective assistance of trial counsel were procedurally defaulted. (Doc. 41 at 36). This meant Respondents agreed nine of the claims had been exhausted in their entirety as well as seven subclaims involving ineffective assistance of trial counsel.

         On May 11, 2017, Magistrate Judge Duncan issued a Report and Recommendation (“R&R”) recommending the petition be denied in its entirety. The R&R attempted to group Bisbee's often-overlapping claims into categories and then analyzed the similar claims together. The R&R concluded certain claims were procedurally defaulted, including at least one claim Respondents did not argue was procedurally defaulted.[1] And for those claims not procedurally defaulted, the R&R concluded ...


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