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Tibbetts v. Ryan

United States District Court, D. Arizona

March 12, 2018

Jason Earl Tibbetts, Petitioner,
v.
Charles Ryan, et al., Respondents.

          HONORABLE ROSLYN O. SILVER, SENIOR U.S. DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          David K. Duncan United States Magistrate Judge.

         Jason Earl Tibbetts timely filed a Petition for Writ of Habeas Corpus (“Petition”) in this Court. Respondents argue that Tibbetts' claims are either unexhausted, subject to a procedural bar, or without merit. As described below, the Court agrees with Respondents and recommends that Tibbetts' Petition be denied and dismissed with prejudice.

         I. Background.

         In June 2014, Tibbetts was indicted by a Pinal County Grand Jury on one count of luring a minor for sexual exploitation, a class 3 felony, and one count of sexual exploitation of a minor, a class 2 felony. (Doc. 7, Ex. A) In November 2014, a detective in the Apache Junction police department swore an affidavit for a second search warrant of Tibbetts' cell phone to be conducted with newly released forensic technology that could obtain deleted content. (Doc. 9, Ex. R at 12).

         At the conclusion of a jury trial in Pinal County Superior Court, Tibbetts was found guilty of both counts in the indictment. (Doc. 7, Ex. B) Tibbetts was sentenced to concurrent terms, the longest of which was 12 years. (Doc. 7, Ex. B) Tibbetts, through counsel, initiated a direct appeal and argued that he was prejudiced when the Superior Court denied his trial counsel's line of questioning based on Ariz. Rev. Stat. §13-1421, commonly known as the rape shield law. (Doc. 7, Exs. C, D) At the conclusion of briefing, the Arizona Court of Appeals affirmed Tibbetts' convictions and sentences. (Doc. 7, Exs. E, F)

         Tibbetts then filed a Notice of Post-Conviction Relief. (Doc. 7, Ex. G) After his counsel informed the Superior Court that he could find no meritorious or colorable claims for relief, he requested an extension of time for Tibbetts to file a pro per petition. (Doc. 7, Ex. H) It appears that the Court granted that request and Tibbetts filed a pro per petition where he alleged various ways he received ineffective assistance of counsel and was subjected to errors by the trial judge. (Doc. 7, Ex. I) At the conclusion of briefing, the Superior Court ruled that the arguments in the Petition were “precluded as having been previously ruled upon or untimely filed or the Petition lack[ed] sufficient basis in law and fact to warrant further proceedings herein and no useful purpose would be served by further proceedings.” (Doc. 7, Ex. J; Doc. 8, Exs. K, L at 1)

         Tibbetts then appealed the Superior Court's denial of his petition to the Arizona Court of Appeals. (Doc. 8, Ex. M) At the conclusion of briefing, the Court of Appeals granted review and denied relief. (Doc. 8, Exs. N, O, P) The Court of Appeals first concluded that Tibbetts' claims of trial error were precluded under Arizona Rule of Criminal Procedure 32.2(a)(3) “because they could have been raised on appeal but were not.” (Doc. 8, Ex. P at ¶ 4) The Court also summarily rejected the “bulk of Tibbetts's claims of ineffective assistance of trial counsel” because he had “not provided supporting evidence or citations to the record, nor ha[d] he shown that, had counsel acted as Tibbetts believed he should have, the result of the case would have been different.” (Doc. 8, Ex. P at ¶ 6) Similarly, the Court of Appeals concluded that he was not entitled to relief for any of his ineffective assistance of appellate counsel claims “[b]ecause he ha[d] not established that any of these arguments would warrant relief on appeal.” (Doc. 8, Ex. P at ¶ 8) The Court also declined to address several of Tibbetts' claims because he had not provided any supporting evidence. (Doc. 8, Ex. P at ¶¶ 9, 12, n.4)

         Tibbetts then filed his Petition in this Court where he argues he is entitled to relief because of ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and trial court errors. (Doc. 1) Respondents argue that most of Tibbetts' claims cannot be reviewed by this Court and the ones that can be reviewed are without merit. (Doc. 6)

         II. Ineffective Assistance of Counsel Claims.

         a. Claims in the Petition that were not presented to the Court of Appeals.

         A state prisoner must properly exhaust all state court remedies before this Court can grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). To fairly present a claim, a petitioner must support it with a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Duncan, 513 U.S. at 365-66. General appeals to broad constitutional principles, “such as due process, equal protection, and the right to a fair trial, ” do not establish exhaustion. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).

         An implied procedural bar exists if a petitioner does not fairly present his claim in state court and no state remedies remain available. Teague v. Lane, 489 U.S. 288, 298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Poland v. Stewart, 169 F.3d 573, 586 (9th Cir. 1999); White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989).

         It is undisputed that several of Tibbetts' claims of ineffective assistance of trial counsel were raised for the first time in the Petition. Specifically, his claims that trial counsel failed to: object to irrelevant witnesses; provide discovery documents to Tibbetts, including police reports and the Grand Jury indictment; waived time without Tibbetts' presence or permission; and object to prosecutorial misconduct. (Doc. 1 at 6; Doc. 7, Ex. I; Doc. 8, Ex. M) In addition, several of Tibbetts' claims of ineffective assistance of appellate counsel were raised in the Petition for the first time. Specifically, his claims that appellate counsel failed to argue that: trial counsel should have interviewed witnesses before trial; the trial court should not have allowed certain witnesses to testify; the trial court should have conducted an evidentiary hearing; trial counsel failed to communicate with Tibbetts; trial counsel failed to provide discovery documents to ...


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