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Hayes v. Ryan

United States District Court, D. Arizona

June 1, 2018

Kasey Markeith Hayes, Petitioner,
Charles L Ryan, et al., Respondents.


          Honorable G. Murray Snow United States District Judge.

         Pending before the Court is Petitioner Kasey Markeith Hayes's Petition for Writ of Habeas Corpus. (Doc. 1). Magistrate Judge John Z. Boyle has issued a Report and Recommendation (R&R) in which he recommends that the Court deny the motion. (Doc. 19). Petitioner filed objections to the R&R. (Doc. 22). Petitioner has also filed a Motion for Summary Judgment (Doc. 18), and three Motions to Expand the Record (Docs. 24, 27, 30). Because objections have been filed, the Court will review the record on all relevant matters de novo. For the following reasons, the Court adopts the R&R and denies the motion, dismisses the Motion for Summary Judgment as moot, and denies in part and dismisses as moot in part the Motions to Expand the Record.


         On October 10, 2012, Petitioner was convicted by a jury in the Maricopa County Superior Court on two counts: one count of molestation of a child and one count of sexual conduct with a minor[1]. Petitioner was convicted of going into the room of the fourteen-year-old victim, with whom he lived, placing his fingers inside the victim's vagina, and placing the victim's hand on top of his penis and then masturbating with it. The Petitioner and the victim both testified at the trial. A sexual assault nurse examiner testified that there were injuries to the victim's vagina that were consistent with the victim's detail of the assault. A criminalist testified that semen matching the Petitioner was found on the pillow and comforter from the victim's bed. Petitioner was sentenced to twenty years on the charge of sexual conduct with a minor and ten years on the charge of molestation of a child, with the sentences to run consecutively.

         On May 7, 2013, Petitioner filed a direct appeal to the Arizona Court of Appeals.[2] The direct appeal raised three issues: (1) whether the trial court abused its discretion in granting the State's motion to amend the indictment; (2) whether the evidence provided established guilt beyond a reasonable doubt; and (3) whether Petitioner was denied a fair trial due to the prosecutor's conduct during a witness examination. The Court of Appeals affirmed the convictions and Petitioner did not file for review in the Arizona Supreme Court. On July 29, 2015, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). Petitioner's pro se PCR petition was filed on March 7, 2016. The PCR petition raised three issues: (1) due process violations due to victim perjury and Petitioner's actual innocence; (2) prosecutorial misconduct by suborning perjury; and (3) ineffective assistance of counsel. The trial court denied the PCR petition on June 16, 2016. A Motion for Rehearing was denied on November 1, 2016, and Petitioner did not file for review in the Arizona Court of Appeals.

         This federal habeas petition brought under 28 U.S.C. § 2254 was timely filed on November 14, 2016. Petitioner raises four grounds: (1) actual innocence and due process violations from the victim's perjury; (2) a Brady violation from the State failing to disclose a photo of the victim's injury; (3) a Brady violation from the State presenting inadmissible DNA evidence at trial; and (4) ineffective assistance of counsel. (Doc. 1).


         I. Legal Standard

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court may not grant habeas relief unless Petitioner has exhausted his claims in state court, there is an absence of available state corrective process to exhaust the claim, or circumstances exist which render the state process ineffective to protect Petitioner's rights. 28 U.S.C. § 2254(b)(1).[3] Nor may the Court grant habeas relief unless the state's adjudication of the claims resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d)(1); see Baldwin v. Reese, 541 U.S. 27, 27 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999). “The Supreme Court has said that § 2254(d)(1) imposes a ‘highly deferential standard for evaluating state-court rulings, ' and ‘demands that state court decisions be given the benefit of the doubt.'” Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). If a petitioner files timely objections to the magistrate judge's R&R, the district judge must make a de novo determination of those portions of the report or specified proposed findings or recommendations to which the objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

         II. Analysis

         Petitioner files four objections to the Magistrate Judge's R&R. First, the Petitioner argues that he did not procedurally default his claims because the trial court sealed an order that the Petitioner needed to go to the Arizona Court of Appeals. Second, the Petitioner argues that the record lacks any testimonial evidence from the victim to support the R&R's discussion of the possible timing of the assault. Third, Petitioner argues that the state courts did not explain their reasoning as to why Petitioner's claims regarding the photos of the victim's injuries were denied. Finally, Petitioner also argues that the state courts did not explain the reasoning as to why Petitioner's claims regarding the DNA evidence were denied.

         A. Procedural Default

         Petitioner did not appeal the trial court's decision in the PCR proceeding. To exhaust state remedies, a petitioner must afford state courts the opportunity to rule on the merits of the federal claims. Castille v. Peoples, 489 U.S. 346, 349 (1989). A petitioner who has procedurally defaulted claims may still have those claims reviewed by the federal courts if (1) the petitioner establishes “cause for the default and actual prejudice as a result of the alleged violation of federal law” or (2) that a “failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 732 (1991). “Cause is a legitimate excuse for the default; prejudice is actual harm resulting from the alleged constitutional violation.” Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). In Arizona, “claims of Arizona state prisoners are exhausted for the purpose of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). The claims raised by Petitioner in the PCR proceedings were distinct from the claims raised on Petitioner's direct appeal. As such, Petitioner's failure to seek review of the PCR ruling means that the claims are both unexhausted and procedurally defaulted. Because of filing deadlines, Petitioner cannot return to the state courts to seek review. See Ariz. R. Crim. P. 32.9(c)(1)(A) (“No later than 30 days after the entry of the trial court's final decision on a [PCR] petition or a motion for rehearing, an aggrieved party may petition the appropriate appellate court for review of the decision.”). The trial Court denied Petitioner's Motion for Rehearing on November 1, 2016; Petitioner did not seek review within the thirty day limit set by statute.

         Petitioner claims that the R&R failed to address “the fact that the trial court sealed up the last order the Petitioner needed to go to the Arizona Court of Appeals per Rule 32.9(c) in a minute entry for the record not the Petitioner.” (Doc. 22, p. 2). Petitioner's Reply to the Petition for Writ of Habeas Corpus states that he never received a copy of the minute entry in which the Motion for Rehearing was denied, and thus Petitioner did not know that that he could file an appeal. (Doc. 17, p. 2). Assuming that Petitioner could establish that he was otherwise ignorant of his right to appeal, [4] and that he has thus established cause for his default, a petitioner must also establish actual prejudice from the constitutional violations. Magby, 741 F.2d at 244. Of the four grounds raised in Petitioner's habeas petition, only Ground One (actual innocence and due process violation from victim's perjury) and Ground Four (ineffective assistance of counsel) were raised in front of the PCR trial court, and thus impacted by the Petitioner's failure to seek an appeal of the PCR ruling.[5] Petitioner cannot show actual prejudice resulting from the alleged constitutional violations. Multiple courts have reviewed Petitioner's claims of the victim's perjury and all have found that there was sufficient evidence for the jury to find the Petitioner guilty. This Court agrees. The jury was presented with testimony from the victim, the victim's family, and the Petitioner. The jury was competent to evaluate all the witnesses and their credibility. Petitioner's claim of ineffective assistance of counsel also fails to establish prejudice. Petitioner alleges that his trial counsel was unconstitutionally ineffective by failing to highlight the victim's multiple phone calls on the night of the assault. Petitioner has not demonstrated that he was prejudiced by his trial counsel's decision and that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. ...

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