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Hipskind v. Ryan

United States District Court, D. Arizona

March 6, 2018

Dennis Alan Hipskind, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          David G. Campbell United States District Judge

         Petitioner Dennis Hipskind filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. The Court referred the petition to Magistrate Judge Michelle H. Burns. Doc. 3. Respondents filed a response (Doc. 15), and Petitioner filed a reply (Doc. 19). Judge Burns issued a report and recommendation (R&R), suggesting that the Court deny the petition. Doc. 20. Petitioner filed objections to the R&R (Doc. 23) and Respondents replied (Doc. 26). The Court will deny the objections and adopt Judge Burns's recommendation.

         I. Background.

         Petitioner was convicted by a jury in Maricopa County Superior Court of two counts of sexual abuse, three counts of molestation of a child, and four counts of sexual conduct with a minor. He was sentenced to multiple consecutive terms of imprisonment, the longest of which was life with a possibility of parole after 35 years. He appealed, raising three evidentiary issues and one alleged disclosure violation. Doc. 15-1 at 4-29, 101. On June 16, 2011, the Arizona Court of Appeals affirmed, finding no reversible error. Doc. 15-1 at 100-14. The Arizona Supreme Court denied review on February 16, 2012. Doc. 15-1 at 116-26; Doc. 15-2 at 2-3.

         While the direct appeal was pending, Petitioner filed a notice of post-conviction relief in Maricopa County Superior Court pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. Doc. 15-2 at 5-8. Petitioner's counsel in that action notified the court that he could find no claim to raise on Petitioner's behalf. Doc. 15-2 at 10-12. Petitioner filed a petition pro se, which the court denied on March 5, 2013, explaining:

The Court has reviewed and considered the petition, the State's response and the defendant's reply, and the record in this case. The Court has construed the petition liberally to account for the fact that the defendant is representing himself. Interpreted in this fashion, the petition raises the following claims: (1) newly discovered evidence exists that probably would have changed the verdict; (2) the prosecutor committed misconduct by misrepresenting the evidence in her closing argument; (3) the recorded out-of court interview of one of the victims should have been excluded at trial pursuant to A.R.S. section 13-4252(A)(8); (4) the Court erred, and the prosecutor committed misconduct, when the State called witnesses for the purpose of asking about incriminating statements by Mr. Hipskind that the State knew the witnesses would deny, intending then to impeach the denials; (5) Count 9 was duplicitous as a result of a jury instruction concerning proof of the date of the offense; and (6) the defendant received ineffective assistance of appellate counsel because appellate counsel failed to raise the duplicity issue and an issue concerning the Court's rulings on evidence surrounding the State's decision not to file charges in 1995.
There is no “newly discovered evidence” within the meaning of Rule 32. The evidence at issue relates to information conveyed by the mother of the two older children to the person who conducted the recorded interview of the younger one, concerning the stories that the older children had told some years before. Defendant concedes that this information was disclosed to the jury via impeachment of the witnesses.
The defendant has waived the prosecutorial misconduct, evidence and jury instruction issues (issues 2, 3, 4 and 5). See Ariz. R. Crim. P. 32.2(a). The issue of impeachment with Mr. Hipskind's incriminating out-of-court statements was raised on appeal. The other issues could have been raised but were not.
The ineffective assistance claims have no merit. The issue of ineffective appellate assistance was not even raised until the reply brief. In any event, the petition does not show that appellate counsel's decision not to raise the duplicity issue was anything other than a reasonable tactical choice. Even if the defendant had prevailed on this issue he would still be subject to multiple sentences of life imprisonment or the equivalent. As to the rulings on evidence of the 1995 investigation, the petition does not specify the rulings alleged to be incorrect.
Mostly the defendant's petition reargues the facts of the case. This Court cannot redetermine the facts. The jury's decision on the facts is final.

Doc. 15-2 at 42-43; Doc. 20 at 2-3. Petitioner filed a petition for review by the Arizona Court of Appeals, which granted review but denied relief. Doc. 15-2 at 87-88.

         The Court of Appeals issued its mandate on February 11, 2015. Id. at 90. Petitioner's counsel - the same attorney who found no grounds for post-conviction relief - asked the court to recall the mandate because he had not received a copy and had not advised Petitioner of his right to appeal. Id. at 92. The Court of Appeals granted the request and recalled the mandate on March 19, 2015, giving Petitioner until April 20, 2015, to file a petition for review with the Arizona Supreme Court. Id. at 97. Petitioner filed no petition for review, and the Court of Appeals issued its final mandate on June 11, 2015. Doc. 15-2 at 99. Petitioner filed his habeas corpus petition with this Court on May 31, 2016. Doc. 1.

         II. The Petition and the R&R.

         Petitioner seeks habeas relief on seven grounds: (1) violation of his due process, equal protection, and Sixth Amendment rights by the introduction of certain testimony at trial; (2) violation of his Sixth Amendment rights by the admission of a transcript of a victim's interview; (3) violation of his due process and Sixth Amendment rights by a “duplicitous cause conviction”; (4) violation of a prior decision by the State not to prosecute him; (5) violation of his Sixth Amendment rights because the jury did not decide whether one of his sexual conduct convictions was for a first- or second-degree offense; (6) ineffective assistance of counsel at the appellate and post-conviction stages of his case; and (7) violation of his due process rights by a movement among Arizona judges and justices aimed at diminishing the writ of habeas corpus “until it has been effectively eliminated as a tool for challenging convictions.” Doc. 1.

         Judge Burns found that Petitioner's claims were barred by the one-year statute of limitations under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Doc. 20. Judge Burns found that equitable tolling should not be applied and that Petitioner had not shown actual innocence. Id. Alternatively, Judge Burns concluded that each of Petitioner's ...


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