United States District Court, D. Arizona
David H. Bramlett, Petitioner,
v.
Charles L. Ryan, et al., Respondents.
ORDER
Hon.
Raner C. Collins, Senior United States District Judge
On
February 22, 2019, Magistrate Judge Bruce G. Macdonald issued
a Report and Recommendation (“R&R”) in which
he recommended that this Court deny Petitioner David H.
Bramlett's Amended[] Petition Under 28 U.S.C. § 2254
for a Writ of Habeas Corpus by a Person in State Custody
(Doc. 13). (Doc. 33.) Petitioner filed an objection (Doc.
24.) The Court finds a response is unnecessary for a fair
adjudication of this matter. LRCiv 7.2(c). Upon review, the
Court will deny the § 2254 Habeas Petition.
I.
Report and Recommendation: Standard of Review
The
standard the District Court uses when reviewing a magistrate
judge's R&R is dependent upon whether or not a party
objects: where there is no objection to a magistrate's
factual or legal determinations, the district court need not
review the decision “under a de novo or any
other standard.” Thomas v. Arn, 474 U.S. 140,
150 (1985). However, when a party objects, the district court
must “determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with
instructions.” Fed.R.Civ.P. 72(b)(3); see also
28 U.S.C. § 636(b)(1). Moreover, “while the
statute does not require the judge to review an issue de
novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or
at the request of a party, under a de novo or any
other standard.” Thomas, 474 U.S. at 154.
II.
Petitioner's Objections
Petitioner
states that he “objects generally to all of the
conclusions of the Magistrate Judge and hereby incorporates
his Reply to the State's Limited Answer.” (Doc. 40
at 2.) This is an unacceptable basis for objection, and
requires the Court to formulate Petitioner's arguments
for him and search throughout various filings to find his
previous arguments. Fed.R.Civ.P. 72(b) (objections must be
specific); see Indep. Towers of Wash. v. Wash., 350
F.3d 925, 929 (9th Cir. 2003) (“Judges are not like
pigs, hunting for truffles buried in briefs.”) (quoting
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991)).
Petitioner's
only specific argument is against Judge Macdonald's
conclusion that the Petition is untimely. Petitioner claims
he is entitled to equitable tolling because the video taken
of him inappropriately touching his granddaughter, when shown
in full, demonstrates he is actually innocent of sexual
molestation. (Doc. 40 at 2.) Since this video was not
reviewed by counsel until his state appeal, it is new
evidence that should permit his untimely § 2254
Petition.
III.
Statute of Limitations for Habeas Relief
A
petitioner has one year from the time that his conviction
becomes final to file a § 2254 habeas petition. 28
U.S.C. § 2244(d)(1). An untimely habeas petition is
unreviewable by this Court unless Petitioner can demonstrate
cause for the default and prejudice. Teague v. Lane,
489 U.S. 288, 298 (1989). Cause must be something outside of
Petitioner's control. Murray v. Carrier, 477
U.S. 478, 488 (1986). Prejudice may only be shown if a
petitioner can demonstrate that the alleged errors
“worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions, ” Murray, 477 U.S. at 494, or
where a court's failure to consider the § 2254
habeas would result in a “fundamental miscarriage of
justice.” Herrera v. Collins, 506 U.S. 390,
404 (1993). A fundamental miscarriage may occur with a
demonstration of actual innocence. Id.
IV.
Discussion
Petitioner
does not dispute his § 2254 Habeas Petition is untimely.
However, he claims he is entitled to equitable tolling
because the full video was not reviewed until appeal, and the
content shows that he is actually innocent of sexual
molestation. This “new evidence” permits him to
file an untimely § 2254 Petition and allows the Court to
consider the merits.
The
Court need not go into the merits because Petitioner's
argument establishes neither innocence nor prejudice. The
Court notes that not only was the jury provided with the full
transcript of everything that transpired on the video
footage, they were also given the full video and encouraged
by defense counsel “to watch the entire Webcam because
all of the context in which everything is being done is
within that hour and a half of what's going on.”
(Doc. 33 at 2 (quoting Az. Ct. App. Mem. Decision, Ex. A,
Doc. 17 at 4-5).) Because defense counsel argued that the
jurors should take the incident in context and look at the
full video, the video and argument were before the jury when
the jury determined he was guilty of the offense. Petitioner
even acknowledges that the jurors were in possession of this
evidence and counsel's arguments during deliberations.
(Doc. 40 at 7 (arguing error because counsel never presented
the full video during trial).
Furthermore,
the basis for Petitioner's claim of actual innocence is
faulty. Petitioner argues that the full video shows that his
granddaughter asked Petitioner to put a diaper on her and to
“role play” and because of this he is actually
innocent of molestation. (Doc. 40 at 4.) But, it was the
inappropriate touching while putting on a diaper that
resulted in his conviction for two counts of child
molestation, not that his granddaughter asked for a diaper.
He has not met the high standard for habeas requiring that he
demonstrated “by clear and convincing evidence”
that if the full video showing the granddaughter's desire
to wear a diaper was played for the jury that “no
reasonable factfinder would have found [him] guilty of the
underlying offense.” See 28 U.S.C. §
2254(e)(2)(B).
Moreover,
Petitioner cannot show prejudice because the full video
offered more incriminating evidence against Petitioner, not
less. As the the Arizona Court of Appeals' observed,
“[a] detective testified that the unredacted version
also showed Bramlett changing the diaper of one of J.D.'s
younger brothers and “utter[ing], I like wiping girls,
I don't like wiping boys. Feels good.” ...