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Jolly v. Ryan

United States District Court, D. Arizona

June 15, 2018

Antoinne Jolly, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          Eric J. Markovich United States Magistrate Judge

         Petitioner Antoinne Jolly filed his pro se petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for two counts of sexual assault. (Doc. 1). Petitioner raises four grounds for relief: 1) ineffective assistance of counsel (“IAC”); 2) due process violations; 3) fundamental error by the trial court; and 4) prosecutorial misconduct.[1] Respondents filed an Answer contending that all of Petitioner's claims are either procedurally barred, not cognizable on habeas review, or without merit. (Doc. 13).

         The Court finds that Ground One, Ground Four, and subclaims a, b, d, and e of Ground Two are technically exhausted and procedurally defaulted and thus not properly before this Court for review. The Court further finds that Petitioner does not demonstrate cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default of his claims. As to subclaim c of Ground Two, the Court finds that this claim is properly exhausted and not procedurally defaulted, but that Petitioner has failed to show that the state court's decision was contrary to federal law, based on an unreasonable application of such law, or based on an unreasonable determination of the facts. Finally, the Court finds that Petitioner's claims in Ground Three are not cognizable on habeas review. Accordingly, the petition will be denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Trial, Sentencing, and Appeal

         A Pima County Superior Court jury found Petitioner guilty of two counts of sexual assault. (Ex. B). Petitioner was sentenced to two consecutive prison terms totaling 10.5 years. Id. The Arizona COA summarized the facts of the case as follows:

On New Year's Eve in 2011, the victim, S., and her husband had “a few drinks” and took “Percocets” before going to a friend's house and having more to drink. They then went to a bar, where S. drank “heavily.” The two left the bar after midnight and got into an argument while waiting for a cab. S.'s husband told her to wait there for the cab and he began walking home.
Jolly and his fiancée, G., were walking through the parking lot after leaving a nearby bar and saw S. crying. Jolly told G. they should take S. home, and S. got in their car. It was apparent to G. that S. was “clearly out of it” and “ [ i ]ntoxicated.” As Jolly drove, G. asked S. for her address, but S. was “completely drunk, ” falling against the front seat, and could not provide more than a two-digit number and “southwest” before she “just went out.” Jolly and G. took her to their apartment, where she laid down on a futon in the living room and began to fall asleep. When G. went to the bedroom, Jolly told her he was going to stay up to play a video game and then come to bed. G. woke up a couple hours later, came out of the bedroom, and saw Jolly on the futon “ leaning over” S. “very close to her face” and “ rubbing her shoulders.”
S. had her face in a pillow and was crying. Jolly told G. that S. had a panic attack and he was “just trying to comfort her.” He told G. to go back to bed, which she did. Later, G. woke up to a “kissing” and “sucking sound.” When she walked into the living room, she saw S. “laying down but leaning into [Jolly's] lap” and performing oral sex. Jolly looked up and said “Oh, that was wrong.” G. told S. to leave and S. “scrambled up and took off.” S. “woke up vomiting” in a laundry room in the apartment complex. She did not know where she was or how she had gotten there, but had a vague recollection of waking up earlier to “somebody having sex with [her].” She was missing her underwear and shoes. She searched for the string of the tampon she had been wearing but “didn't feel it” and “freaked out.” Her vagina “felt sore.” She crouched under a stairway until the sun came up, found someone with a phone, and called her husband to pick her up. When he arrived, she told him she “needed to go to the hospital.” A medical examination revealed genital tears and swelling, “consistent with penetration or blunt-force trauma” within the preceding twenty-four hours. Her tampon was “tucked in a fold, ” “really tight” against her cervix, which likely caused the pelvic pain S. reported. DNA matching Jolly's profile was found on both of S.'s breasts.

(Ex. E ¶¶ 2-4).

         Following his conviction, Petitioner sought relief in the Arizona COA. Appointed counsel filed a brief presenting three issues for review: 1) insufficient evidence to support the crime of sexual assault when the State's theory was that the victim lacked the capacity to consent, but there was insufficient evidence of her lack of consent and no evidence that Petitioner knew of her lack of consent; 2) the trial court erroneously instructed the jury on the elements of sexual assault by excluding the element that Petitioner knew the sex was without consent, and by including a definition of “without consent” that relieved the State of its burden to prove that the victim did not consent; and 3) Petitioner's sentences should be concurrent under the state statute. (Ex. D).

         On April 14, 2014, the COA found no reversible error and affirmed Petitioner's conviction and sentences. (Ex. E). Petitioner filed a petition for review with the Arizona Supreme Court, which the court denied on December 2, 2014. (Ex. F).

         B. Petition for Post-Conviction Relief

         On January 28, 2015 Petitioner initiated proceedings in Pima County Superior Court for post-conviction relief (“PCR”). (Ex. H). Appointed counsel filed a notice stating that he was unable to find any claims for relief to raise in a Rule 32 petition, and requested additional time for Petitioner to file a pro se petition. (Ex. K). Petitioner filed a pro se petition and presented six issues for review: 1) IAC based on counsel's failure to object to preclusion of relevant evidence, allowing inclusion of prejudicial evidence, and lack of diligence and continuous communication with Petitioner; 2) abuse of discretion by the trial court for precluding evidence of Petitioner's military service and PTSD and denying him a defense and due process; 3) State's failure to introduce evidence that Petitioner used threats, force, or supplied drugs or drinks to the victim, thereby negating Petitioner's intent; 4) IAC where counsel failed to present facts that the victim never identified Petitioner in a lineup and told police she was assaulted by three Hispanics; 5) abuse of discretion by the trial court for denying Petitioner's Rule 20 motion for a directed verdict because there was a lack of evidence showing Petitioner's guilt; and 6) the trial court erred in not instructing the jury on intent as stated in the RAJI. (Ex. M).

         The trial court denied PCR on May 3, 2016. (Ex. N). Petitioner did not file a petition for review with the Arizona COA.

         C. Habeas Petition

         Petitioner filed his PWHC in this Court on March 18, 2016, asserting four grounds for relief. (Doc. 1). Petitioner requests that the Court overturn his convictions and vacate the case.

         II. STANDARD OF REVIEW

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits the federal court's power to grant a petition for a writ of habeas corpus on behalf of a state prisoner. First, the federal court may only consider petitions alleging that a person is in state custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Sections 2254(b) and (c) provide that the federal courts may not grant habeas corpus relief, with some exceptions, unless the petitioner exhausted state remedies. Additionally, if the petition includes a claim that was adjudicated on the merits in state court proceedings, federal court review is limited by section 2254(d).

         A. Exhaustion

         A state prisoner must exhaust his state remedies before petitioning for a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1) & (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by fairly presenting them to the state's highest court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“[t]o provide the State with the necessary opportunity, the prisoner must fairly present her claim in each appropriate state court . . . thereby alerting the court to the federal nature of the claim.”). In Arizona, unless a prisoner has been sentenced to death, the highest court requirement is satisfied if the petitioner has presented his federal claim to the Arizona COA, either through the direct appeal process or post-conviction proceedings. Crowell v. Knowles, 483 F.Supp.2d 925, 931-33 (D. Ariz. 2007).

         A claim is fairly presented if the petitioner describes both the operative facts and the federal legal theory upon which the claim is based. Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). The petitioner must have “characterized the claims he raised in state proceedings specifically as federal claims.” Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), opinion amended and superseded, 247 F.3d 904 (9th Cir. 2001). “If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). “Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion.” Hivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).

         However, “[a] habeas petitioner who [fails to properly exhaust] his federal claims in state court meets the technical requirements for exhaustion” if there are no state remedies still available to the petitioner. Coleman v. Thompson, 501 U.S. 722, 732 (1991). “This is often referred to as ‘technical' exhaustion because although the claim was not actually exhausted in state court, the petitioner no longer has an available state remedy.” Thomas v. Schriro, 2009 WL 775417, *4 (D. Ariz. March 23, 2009). “If no state remedies are currently available, a claim is technically exhausted, ” but, as discussed below, ...


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