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Amon-Ra v. Ryan

United States District Court, D. Arizona

February 14, 2018

Nubian Amon-Ra, Petitioner,
Charles L Ryan, et al., Respondents.


          Hon. Cindy K. Jorgenson, United States district Judge

         On October 24, 2016, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation (“R&R”) (Doc. 30) in which she recommended that this Court deny Nubian Amon-Ra's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1) and his motion for a writ of habeas corpus ad prosequendum (Doc. 18). After the R&R issued, Petitioner filed a twenty-seven page objection with approximately 1, 000 pages of exhibits. (Doc. 35-36.) The Government responded to the objections. (Doc. 42.) Petitioner filed a supplemental response (Doc. 38) with an additional 175 pages of exhibits (Doc. 39). Upon review, the Court will deny both the § 2254 petition and the pending motion.

         Standard of Review

         . Objections to R&R

         The standard of review applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections - the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). Nonetheless, “while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.” Thomas, 474 U.S. at 154.

         . Review of Petitioner's § 2254 Petition

         This Court must review claims consistent with the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The Court adopts the Magistrate Judge's summary of the legal and procedural requirements of the AEDPA regarding exhaustion and procedural default In addition, review of a habeas petition under § 2254(d) is limited to the record that was before the state court. Cullen v. Pinholster, 563 U.S. 170, 170 (2011). In other words, this Court reviews only “the record in existence at that same time.” Id. (emphasis added). For instance, when a petitioner raises a claim of prosecutorial misconduct in the state courts, additional facts of alleged misconduct are beyond the purview of the exhausted claim and may not be reviewed. Rose v. Lundy, 455 U.S. 509, 513 (1982).

         Factual and Procedural History

         Petitioner first objects to the Magistrate Judge's rendition of the facts of this case. After a de novo review of the record, the Court finds that the R&R accurately reflects the state court record. Furthermore, the Magistrate Judge's summary is substantiated by Petitioner's own filings and exhibits. The Court adopts the Magistrate Judge's recitation of facts and provides a brief summary for reference.

         Petitioner was convicted on March 3, 2013, of aggravated assault with a deadly weapon and aggravated assault resulting in a fracture, and was sentenced to concurrent terms, with the longest term being 7.5 years' incarceration. (Doc. 1-7 at 7-8.)

         Petitioner appealed the convictions on December 31, 2013 (Id. at 8), but appellate counsel could not find any arguable claims of error (Doc. 20 at 37). Petitioner then proceeded pro se, filing a supplemental brief that argued (1) the trial court's denial of Petitioner's motion for review of a preliminary hearing as untimely was in error and (2) the government's late disclosure of a transcript of the preliminary hearing violated his due process rights. (Doc. 1-8 at 2; Doc. 20, at 51-56.) On September 15, 2014, the Arizona Court of Appeals affirmed the conviction. (Doc. 1-8 at 4.) Petitioner did not appeal to the Arizona Supreme Court. (Doc. 1 at 5.)

         Counsel filed a Notice of Post-Conviction Relief (“PCR”) but found no colorable claims. (Doc. 1-12 at 1; Doc. 21-11 at 2-5.) Thereafter, Petitioner filed a pro se PCR petition, arguing (1) his trial counsel was ineffective for failing to present evidence of police misconduct, (2) the Sierra Vista Police Department (“SVPD”) engaged in governmental misconduct by offering money in exchange for the victim's testimony against the Petitioner, and (3) prosecutorial misconduct occurred when the state prosecuted Petitioner despite an awareness that the victim had been paid for testifying. (Doc. 1-10 at 1-4.) The trial court found that the prosecutorial and governmental conduct charges were precluded under the Arizona Criminal Rules of Procedure, Rule 32.2(a), because both could have been raised on appeal, and dismissed the claim of ineffective assistance of counsel, stating that trial counsel's choice not to raise police misconduct constituted trial strategy and not ineffective assistance. (Doc. 1-12 at 1-2.)

         The Arizona Court of Appeals granted review of Petitioner's Rule 32 appeal, but denied relief. (Doc. 1-14 at 2.)

         Petitioner's instant §2254 petition raises six grounds for relief: (1) trial counsel was ineffective for failing to pursue a police misconduct defense at trial; (2) SVPD engaged in governmental misconduct by offering money in exchange for the victim's testimony, (3) prosecutorial misconduct occurred because the state prosecuted the case despite an awareness that SVPD bribed the victim; (4) Petitioner's sentence was illegally aggravated; (5) the trial court's decision to exclude evidence of the bribe and (6) its suppression of evidence were an abuse of discretion. (Doc. 1.)

         For the reasons set forth below, the Court agrees with the recommendations in the R&R (Doc. 30) for each of Petitioner's claims.

         Petitioner's Objections

         . Ground One: Ineffective Assistance of Trial Counsel

         To prevail on a claim of ineffective assistance of counsel, Petitioner must satisfy a two-prong test, demonstrating: (1) deficient performance, such that counsel's actions were outside the wide range of professionally competent assistance, and (2) that Petitioner was prejudiced by reason of counsel's actions. Strickland v. Washington, 466 U.S. 668, 686-90, (1984); Correll v. Stewart, 137 F.3d 1404, 1411 (9th Cir. 1998). “Failure to satisfy either prong of the Strickland test obviates the need to consider the other.” Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002). “[The] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” Carrera v. Ayers, 670 F.3d 938, 943 (9th Cir. 2011) (quoting Strickland, 466 U.S. at 689). When evaluating a state ineffective assistance of counsel claim in a federal habeas petition, the standards set forth in Strickland are “doubly” deferential. Harrington, 562 U.S. at 105. “When §2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.

         In Ground One, Petitioner claims that his trial counsel was ineffective for failing to raise the issue of police misconduct at trial. Petitioner claims that counsel told him he would use (1) transcripts of the victim's testimony from a preliminary hearing, and (2) a recorded interview with the victim to demonstrate that the SVPD bribed the victim in exchange for testimony against the Petitioner. (Doc. 1 at 6.)

         The R&R concluded the Court was not permitted to review either the victim's interview or the audio and transcript of the preliminary hearing because they were not part of the state court record. (Doc. 30 at 7.) Furthermore, the Magistrate Judge indicated that even if it could be reviewed, the audio and video did not support Petitioner's theory of police misconduct. (Id. at 8-9.) She agreed with the state court's determination that trial counsel's decision amounted to trial strategy, not ineffective assistance of counsel. (Id. at 8.) After a de novo review of the record, this Court agrees with the Magistrate Judge's well-reasoned determination. Nonetheless, the Court will address Petitioner's objections and explain why they do not alter the Court's conclusion.

         Petitioner claims the Magistrate Judge's conclusions were biased because she ruled based on the record before her. (Doc. 35 at 2.) His objection states there was much that was not presented to the Magistrate Judge (Id. at 2), and attaches approximately 1, 000 pages of exhibits to his objection (Docs. 35-36, Exhs. A-U). For the first time in his objection, Petitioner asserts that Detective Mike Mitchell was engaged in a sexual relationship with two women who Petitioner was also involved with. (Doc. 35 at 8-9.) Because of this clandestine liaison, Mitchell persuaded a witness named Jamie Price to testify falsely about Petitioner assaulting the victim. (Id. at 9.) However, the admitted transcripts of Jamie Price's interviews are from a different case against Petitioner- Cochise County Superior Court Docket No. CR-201200137 (“drug case”)-and were not made part of the state court record in the instant case.

         For the instant § 2254 petition, this Court may only consider the documents in the record at the time of the state proceedings for Petitioner's conviction in Cochise County Superior Court Docket No. CR-201200268. See Cullen, 563 U.S. at 170. Therefore, the documents that were never a part of the state record and those filed in Petitioner's related drug case are not permissible for review by this Court. Based on the evidence before it, the state court's denial of the ineffective assistance of counsel claim was not “contrary to” or an “unreasonable application of clearly established federal law.” See 28 U.S.C. § 2254(d) However, for the sake of thoroughness, the Court has examined Petitioner's exhibits and finds that even if the Court were permitted to review the documents, it would not change its determination.

         o Police Misconduct: Preliminary Hearing

         Petitioner objects to the Magistrate Judge's conclusion that trial counsel's failure to obtain a transcript from Petitioner's preliminary hearing did not constitute ineffective assistance. (Doc. 35 at 3.) Petitioner claims that the poorly-recorded audio of a preliminary hearing revealed that police bribed the victim to testify against him, and that trial counsel's failure to use this evidence was not a tactical decision, but amounted to ineffective assistance of counsel. (Id. at 3, 14, 16.) During the preliminary hearing, there was no court reporter, and the microphone on the witness stand was not working properly. (Doc. 21-1, Exh. I at 3-4.) The Superior Court indicated a transcript was made of the hearing, but the witnesses' testimony was not included. (Doc. 1-5.) The R&R points out that even if the Court were permitted to review the testimony, it would not matter because the recording did not pick up the victim's testimony. (Doc. 30 at 6.)

         Petitioner argues that the Magistrate Judge was incorrect; there was never a transcript of the preliminary hearing. (Doc. 35 at 11.) The court record indicates otherwise. (Doc. 1-5.) However, whether or not a transcript was produced is inconsequential to the Court's determination. Petitioner sent the Court a copy of the audio of the preliminary hearing, which this Court listened to in its entirety. (Doc. 14.) By using a state For the Record (“FTR”) audio player and adjusting the sound input levels as suggested by Petitioner, the Court was able to discern the victim's testimony to which Petitioner references. Petitioner asserts that in the hearing, the victim testified that the police bribed him with money in exchange for making assault allegations against Petitioner. (Doc. 35 at 12.) However, the victim specifically testified that on several previous occasions before the assault, police asked him to act as a paid informant and disclose information about Petitioner's whereabouts. (Doc. 14 at 11:00 a.m.) The victim indicated he had refused the police's requests for information until Petitioner attacked him. (Id.) After that, he no longer wished to get something in return for his information, and told the police of the attack in order to get on with his life. (Id.) On redirect, the victim acknowledged that no one had given him any money or items in exchange for his testimony. (Id. at 11:11:00 a.m.)

         So, even if the Court were permitted to evaluate the audio of the victim's testimony at the preliminary hearing, it does not support Petitioner's ineffective assistance of counsel claim. Counsel's failure to use the testimony from the hearing to show police misconduct was reasonable and a competent decision given the nature of the testimony.

         o Police Misconduct: Video Interview with Victim

         Petitioner also argues that a SVPD video interview of the victim shows that police bribed him to testify that Petitioner had attacked him. (Doc. 1 at 6-7.) Because trial counsel failed to have the video transcribed, and was therefore unable to present the video at trial, Petitioner asserts his representation was ineffective. (Id.) After a de novo review of the video, this Court agrees with the Magistrate Judge that it does not contain evidence of police misconduct. (See Doc. 30 at 8.) If anything, it reiterates the victim's testimony from the preliminary hearing that prior to Petitioner's assault, he was offered money to be an informant. At most, the statement suggests that the victim is asking for financial assistance so he can get away from Petitioner, but the interviewer, Detective Tom Ransford, makes no offer of money in return for the victim's statement. It was not ineffective to fail to use this video at trial, because the statements do not demonstrate that the victim was bribed in return for his testimony that Petitioner had assaulted him. As stated at the state court level, raising this police misconduct claim could have easily backfired, and the choice not to present this evidence did not constitute ineffective assistance of counsel. (See Doc. 22-1.)

         Here-as with the preliminary hearing testimony-the Court finds that because the video interview with the victim was not properly admitted in the state court proceeding, this Court may not review it. However, even if it could, this Court finds that failing to transcribe the video or present it as impeachment evidence at trial did not constitute ineffective assistance of counsel. The excluded testimony does not demonstrate bribery on the ...

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