United States District Court, D. Arizona
G. Campbell United States District Judge
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
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.
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
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.
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.
The Petition and the R&R.
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.
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 ...