United States District Court, D. Arizona
Bernardo P. Velasco United States Magistrate Judge
October 11, 2017, Petitioner Marc Adam Hall, through counsel,
filed an Amended Petition for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254. (Doc. 12.) Respondents filed a
limited answer. (Doc. 13.) Petitioner submitted a reply (Doc.
36) and a supplemental reply (Doc. 40). The parties have
consented to Magistrate Judge Bernardo P. Velasco's
jurisdiction over all proceedings in this matter, including
entry of final judgment. (Doc. 35.) For the reasons stated
herein, the Court denies Petitioner's § 2254
Petition in its entirety.
Factual and Procedural History
in November 2009, Petitioner's wife, Jennifer Bennett,
caught him watching what she thought was child
pornography. (Ex. A, Doc. 14 at ¶¶2-3.) After
searching the Windows Media Player on his computer, Mrs.
Bennett discovered a history log that also appeared to
contain child pornography. Id. When she attempted to
open the files, however, the computer displayed an error
message indicating “file does not exist.”
Id. Upset, Mrs. Bennett called two friends who
helped her and her children move out. Id. In the
meantime, Petitioner reinstalled Windows on his computer.
Id. Mrs. Bennett subsequently left the house and
called the police. Id. Thereafter, a forensic
examiner inspected Petitioner's computer and found
several images determined to be images of child sexual abuse.
September 11, 2012, Petitioner was indicted on ten counts of
Sexual Exploitation of a Minor, a Class Two felony, in
violation of A.R.S. § 13-3553(A)(2). (Ex. B, Doc. 14 at
18-20.) A jury convicted Petitioner on three of these counts,
but acquitted him of the other seven. (Ex. C, Doc. 14 at
22-24). On July 8, 2013, Petitioner was sentenced to ten
years' incarceration for each, the minimum sentence under
A.R.S. § 13-70(D). (Ex. D, Doc. 14 at 26-27.) All three
sentences were to run consecutively. Id.
filed a direct appeal challenging his sentence on four
grounds. (Ex. F, Doc. 15 at 4.) First, he claimed there was
not sufficient evidence that he knowingly possessed the
images on his computer. Id. Second, Petitioner
contended that the trial court erroneously admitted 192
uncharged images of child pornography without evidence that
he knowingly possessed such images and despite the likelihood
of prejudice. Id. Third, he asserted the trial court
erred when it precluded Mrs. Bennett's prior encounters
with Child Protective Services. Id. Finally,
Petitioner posited that the sentencing statute for sexual
exploitation of a minor as applied to possession of child
pornography was a violation of Petitioner's Eighth
Amendment and equal protection rights. Id.
Arizona Court of Appeals affirmed Petitioner's
convictions and sentences in a memorandum decision on June 3,
2014. (Ex. A, Doc. 14.) The appellate court first found there
was substantial evidence that Petitioner knew he possessed
child pornography. Id. at 6. Second, it found that
the trial court's admission of uncharged images found on
Plaintiff's computer was within the trial court's
discretion because it was used for the proper purpose of
demonstrating knowledge and the court appropriately weighed
its probative value against possible prejudice. Id.
at 10-12. Third, the appellate court stated that the trial
court had not abused its discretion when it prevented inquiry
into Mrs. Bennett's involvement with Child Protective
Services because it was irrelevant, there was sufficient
evidence demonstrating the wife's ulterior motives, and
Petitioner had not demonstrated prejudice. Id. at
15. Finally, the appellate court stated that the Arizona
Supreme Court found the statute for which Petitioner was
sentenced under was constitutional, and the appellate court
had no authority to overturn the Arizona Supreme Court
decision. Id. at 18. Nevertheless, even if the court
had authority, Petitioner had not provided a compelling
reason for overturning precedential law. Id. at 16.
Petitioner did not file a petition for review to the state
supreme court, and the mandate issued on August 11, 2014.
(Ex. I, Doc. 16.)
Petition for Post-Conviction Relief
filed a Petition for Post-conviction Relief (“PCR
Petition”) with the trial court on October 23, 2015,
arguing that trial counsel rendered ineffective assistance of
counsel (“IAC”) for the following reasons:
1. Counsel was unable to advise Petitioner about a plea
agreement. Because of this, Petitioner erroneously believed
that if he rejected the plea, he would either receive a
better plea agreement, or his attorney would win at trial.
(Ex. Q, Doc. 17 at 22-23.)
2. Counsel was ineffective during jury selection because she
did not submit written voir dire questions, did not utilize
her strikes efficiently, and did not ask to have a juror
removed for cause when it was discovered the juror knew
Petitioner's former wife. Id. at 23-26.
3. Counsel did not effectively cross-examine witnesses
because she failed to object to leading questions and
hearsay. Id. at 27-31.
4. Counsel failed to impeach Petitioner's ex-wife
effectively because she did not question why Mrs. Bennett
stated she never used Petitioner's computer and then
contradicted herself by stating she used it when hers was not
5. Counsel forced Plaintiff to waive his constitutional right
to testify because counsel told Plaintiff she could either
prepare him to testify or prepare for trial. Id. at
6. Counsel erred when she did not request a limiting
instruction on evidence of 192 images of sexual abuse which
were not charged. Id. at 34-35.
7. Counsel failed to object when the prosecutor engaged in
vouching and prosecutorial misconduct during closing
arguments. Id. at 35-37.
8. Counsel failed to challenge the constitutionality of the
sentencing statute as applied to the facts of
Petitioner's case. Id.at 37-38.
9. Counsel's failures resulted in cumulative error.
Id. at 39.
each ground, the trial court denied Petitioner's PCR
Petition on April 20, 2016. (Ex. T, Doc. 18.) The trial court
stated that Petitioner had not demonstrated prejudice from
counsel's actions. It explained that counsel was not
1. Petitioner admitted there were many other reasons he
relied on when rejecting the plea, not just counsel's
advice. Therefore, Petitioner could not demonstrate
prejudice. Id. at 13-14.
2. Petitioner could not demonstrate he was prejudiced by the
selected jurors, and their impartiality was demonstrated by
the fact that they acquitted Petitioner of seven charges.
Further, the juror who knew Petitioner's ex-wife
explained she was sure she could remain impartial despite
knowing Mrs. Bennett. The trial court was satisfied that her
response demonstrated she could be impartial. Therefore, any
argument of prejudice was merely speculative. Id. at
3. Objecting to leading and hearsay statements during
cross-examination would not have changed the outcome of the
trial because the statements were already in evidence.
Id. at 15-16.
4. Counsel presented a great deal of impeachment evidence
against Petitioner's former wife and any further
impeachment was speculative, cumulative, and did not result
in prejudice. Id.
5. Petitioner's argument that counsel violated his
constitutional rights by forcing him not to testify was
waived because this issue was not brought up on direct
appeal, as necessary under Arizona Rule of Criminal Procedure
32.2. Also, Petitioner's contention that counsel's
action was ineffective failed because Petitioner could not
prove prejudice. Id. at 19-20.
6. Petitioner suffered no prejudice by the admission of the
uncharged images of child abuse because defense counsel made
it clear which images were charged and which were additional
images. Furthermore, Petitioner was only convicted of three
of the ten charges, which showed that the uncharged images
did not prejudice the jury. Id. at 17.
7. The trial court found the prosecutor's closing
arguments were “relevant, permissible, and thus not
prosecutorial misconduct” and Petitioner could not show
he was prejudiced by them. Id. at 17-18.
8. Counsel's failure to challenge the constitutionality
of Arizona's sentencing scheme under A.R.S. §
13-3553 did not cause prejudice because Arizona Supreme Court
case law determined the statute is constitutional, and the
trial court could not overturn the higher court's
decision. Id. at 18-19.
9. Cumulative error was not recognized by the Arizona courts.
Regardless, because the trial court did not find any of
counsel's actions were ineffective as a whole
counsel's actions could not then constitute cumulative
error. Id. at 20-21.
4, 2016, Petitioner filed a Motion for Reconsideration
arguing he had not waived his right to testify. (Ex. U, Doc.
18.) The trial court denied the motion on June 15, 2016,
stating it was not convinced Petitioner was forced not to
testify, and so much evidence was presented against him that
his testimony could not have affected the result of the
proceedings. (Ex. Y, Doc. 18, at 44.)
Arizona Court of Appeals ...