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Sullivan v. Ryan

United States District Court, D. Arizona

February 5, 2019

Troy Lee Sullivan, Petitioner,
Charles Ryan, et al., Respondents.



         On April 21, 2017, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (“the Petition”). (Doc. 1.) On May 8, 2018, Mag istrate Judge Metcalf issued a Report and Recommendation (“R&R”) concluding the Petition should be denied and dismissed with prejudice. (Doc. 19.) Afterward, Petitioner filed objections to the R&R (Doc. 20), Respondents filed a response (Doc. 21), and Petitioner filed a reply (Doc. 22).

         As explained below, the Court will deny Petitioner's objections.

         I. Background

         In November 2013, Petitioner sold cocaine to an undercover officer from the Phoenix Police Department. (Doc. 13-1 at 8-12, 29-30; Doc. 19 at 1-2.) Afterward, the undercover officer used a law enforcement database to obtain a photo of Petitioner. (Id.) The photo was a mug shot from a prior encounter. (Id.) This photo was used to identify and arrest Petitioner, who was charged with a state-law drug trafficking offense. (Id.)

         Before trial, Petitioner moved to suppress on the ground that the identification method (i.e., use of a mug shot rather than a photo lineup) was unduly suggestive and unreliable. (Id.) The trial court denied the motion. (Id.)

         During trial, defense counsel cross-examined the undercover officer by questioning his decision to use a picture showing that Petitioner had previously “been stopped” by the police. (Id.) On redirect, the prosecutor stated the photo showed Petitioner had been previously “arrested.” (Id.) Defense counsel objected, and later moved for a mistrial, on the grounds that the prosecutor had mischaracterized the evidence and that discussing prior arrests was unfairly prejudicial. (Id.) The trial court overruled these objections, finding that defense counsel had opened the door. (Id.) The prosecution didn't mention the nature of the photograph for the remainder of the trial and Petitioner was eventually convicted and sentenced to 12.5 years' imprisonment. (Id.)

         Petitioner appealed his conviction to the Arizona Court of Appeals. The “Issue” section of his opening brief identified only one contested question: “Was the trial court's failure to grant Troy's motion for mistrial after the prosecutor misstated defense counsel's reference to his having been ‘stopped by' police as his having been previously ‘arrested' by police an abuse of discretion?” (Doc. 13-1 at 17.) In the body of his brief, Petitioner argued this evidentiary ruling was an abuse of discretion because (1) the evidence was inadmissible under Arizona Rule of Evidence 404(b), (2) the error was so harmful that a mistrial was required, (3) the prosecution's question amounted to prosecutorial misconduct, justifying a new trial, and (4) the cure of a correction of the prosecution's misstatement was not applied. (Doc. 19 at 3.)

         Petitioner's brief contained only three fleeting references to federal law. (Doc. 19 at 3.) First, in his recitation of the facts, Petitioner noted that the motion to suppress had been founded on a “6th Amendment right to due process, ” which his Table of Authorities clarified was a reference to the Sixth Amendment to the United States Constitution. (Doc. 13-1 at 6, 8; Doc. 19 at 3.) Second, in the portion of his brief addressing his prosecutorial-misconduct claim, Petitioner cited an Arizona decision, State v. Bible, 858 P.2d 1152 (Ariz. 1993), but included a parenthetical in which the Bible court had quoted from the U.S. Supreme Court's decision in Berger v. United States, 295 U.S. 78 (1935). (Doc. 13-1 at 20-21; Doc. 19 at 3.) Third, and similarly, the prosecutorial-misconduct section of Petitioner's brief contained a reference to a different Arizona case, State v. Montes, 667 P.2d 191 (Ariz. 1983), and the parenthetical from Montes contained a reference to “Miranda.” (Doc. 13-1 at 21; Doc. 19 at 3.)

         In a decision issued in August 2016, the Arizona Court of Appeals affirmed Petitioner's conviction. (Doc. 13-1 at 28-32; Doc. 19 at 3.) The court held that “any error was invited by Defendant” because “Defense counsel, not the prosecutor, raised the issue of Defendant's prior arrest during his cross-examination of [the undercover officer]” and that although defense counsel didn't use the word “arrest” during this cross-examination, “Defense counsel's questions included the following information: the police had, on a prior occasion, stopped Defendant, taken his picture, and recorded his picture in a police database. For the average juror, this line of questioning clearly implied the photograph was most likely related to a prior arrest.” (Doc. 13-1 at 31; Doc. 19 at 3.) The court also concluded that any error was harmless in light of the strength of the evidence of Petitioner's guilt. (Doc. 13-1 at 31-32; Doc. 19 at 3.)

         In April 2017, the Arizona Supreme Court summarily denied Petitioner's petition for review. (Doc. 19 at 4.)

         In April 2017, Petitioner filed the Petition. (Doc. 1.) It asserts only one ground for relief: “The trial court abuse[d] its discretion in violation of the U.S. Constitution's Sixth Amendment, by failing to grant dismissal or mistrial when the state mis[s]tated in front of the jury that Mr. Sullivan having been stopped by police was arrested, resulting in the jury being prejudiced against him.” (Doc. 1 at 6.)

         The R&R was issued in May 2018. (Doc. 19.) Although the R&R liberally construes Petitioner's claim as arising “under both the Sixth Amendment and the Due Process Clause of the 14th Amendment” (Doc. 19 at 15), it concludes the Petition should be denied for two reasons. First, the R&R concludes Petitioner didn't “fairly present” a federal claim to the Arizona Court of Appeals because (1) his arguments were premised on asserted violations of Arizona law and (2) although his citation to Bible contained a cross- reference to Berger, this was insufficient for exhaustion purposes because “Petitioner did not directly rely upon the Berger case” and, in any event, “Berger was not explicitly a constitutional case, but rather a case involving the federal courts' oversight of a federal criminal prosecution.” (Doc. 19 at 13-18.) Second, the R&R concludes the Petition should be denied for the independent reason that “even if Petitioner's federal claim was fairly presented to the state court, it was disposed of on an independent and adequate state ground, e.g., the state's invited error doctrine.” (Doc. 19 at 18-19.)

         II. L ...

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