United States District Court, D. Arizona
ORDER
Honorable Roslyn O. Silver Senior United States District
Judge.
Magistrate
Judge John Z. Boyle recommends Petitioner James Brian
Kummer's petition for writ of habeas corpus be denied and
dismissed with prejudice. (Doc. 22). Kummer filed lengthy
objections to which Respondents responded. Kummer then filed
another document, addressing Respondents' response. (Doc.
25, 29, 30). Finally, Kummer filed a “Motion to
Introduce New Evidence” requesting the Court consider a
newspaper article regarding a lab that performs DNA testing
for police agencies. (Doc. 31). The Court has reviewed all
the filings and, for the following reasons, agrees with
Magistrate Judge Boyle that Kummer is not entitled to relief.
BACKGROUND
The
Report and Recommendation (“R&R”) provides
the background regarding Kummer's various convictions.
That background is accurate and will be adopted. However, a
few portions of the background are crucial for understanding
some of Kummer's objections and those portions are forth
here.
Kummer
was convicted of one count of burglary, one count of
kidnapping, one count of violent sexual assault, one count of
attempted sexual assault, and one count of assault. Kummer
was sentenced to prison terms totaling more than 60 years.
Kummer appealed his convictions but his appellate counsel
filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating he had “searched the
record” and was unable to find any “arguable
question of law that is not frivolous.” (Doc. 13-2 at
87). Kummer then filed a pro se “supplemental
brief” presenting a variety of arguments regarding
“prosecutorial misconduct, judicial error, and
ineffective assistance of counsel.” (Doc. 13-3 at 4).
In its opinion affirming Kummer's convictions and
sentences, the Arizona Court of Appeals noted it had reviewed
Kummer's “supplemental brief, ” as well as
the entire record as required by Anders, but it was
unable to find any “reversible error.” (Doc. 13-3
at 32).
Having
failed to obtain relief on direct review, Kummer filed a
notice of post-conviction relief in state court. Kummer was
appointed counsel who reviewed his file. That counsel then
filed a notice stating she was unable to find any colorable
issues on which to seek post-conviction relief. Kummer then
filed a pro se petition that focused on claims of ineffective
assistance of counsel. (Doc. 13-3 at 66). After the superior
court denied relief Kummer filed a petition for review with
the Arizona Court of Appeals. That court granted review but
denied relief. In doing so, the Arizona Court of Appeals
described Kummer as “raising claims of ineffective
assistance of counsel, newly discovered evidence, and actual
innocence.” 2017 WL 4171877, at *1 (Ariz.Ct.App. Sept.
21, 2017). The appellate court concluded it was unnecessary
to provide a detailed analysis of Kummer's claims because
the trial court had “clearly identified and correctly
ruled upon the issues raised.” Id. Thus, the
appellate court “adopt[ed] the trial court's ruling
as to the issues raised, ” and denied relief.
Id. Kummer then filed the present federal petition.
The
Court construed Kummer's petition as presenting 23
separate claims. Respondents answered the petition and the
Magistrate Judge prepared a lengthy R&R. In analyzing the
23 claims, the R&R provided useful groupings of similar
claims. The parties have largely followed the R&R's
groupings in providing their objections and responses. Thus,
the Court will also follow the R&R's groupings with
only minor modifications.
ANALYSIS
Before
discussing particular claims, it is necessary to first point
out a central flaw in Kummer's objections. As explained
by the R&R, “[o]rdinarily, a federal court may not
grant a petition for writ of habeas corpus unless a
petitioner has exhausted available state remedies.”
(Doc. 22 at 6). To exhaust state remedies, a petitioner must
present all of his claims to the state courts in the
procedurally appropriate manner. According to the R&R,
Kummer did not exhaust many of the claims he is now
attempting to pursue. In his objections, Kummer argues
all of his claims were properly raised in state
court because the Arizona Court of Appeals had a duty,
pursuant to Anders v. California, to “conduct
a ‘full appellate review' to determine if there
were any issues with merit.” (Doc. 25 at 11). That
“full appellate review, ” according to Kummer,
must have included all the federal claims he now wishes to
pursue. In other words, Kummer argues the Arizona Court of
Appeals' performing its obligations pursuant to
Anders effectively exhausted all possible federal
claims. That is incorrect.
Before
explaining why Kummer's argument is incorrect, it is
important to note the Anders review occurred only
during the direct review of Kummer's convictions. In that
direct review proceeding, however, the Arizona Court of
Appeals did not consider any claims involving ineffective
assistance of counsel. Rather, Arizona courts only consider
ineffective assistance of counsel in the context of
post-conviction relief proceedings. Thus, the Arizona Court
of Appeals' Anders review is irrelevant to the
exhaustion of Kummer's ineffective assistance of counsel
claims.
Turning
to the claims that Kummer should have exhausted by pursuing
them in his direct appeal, Kummer cites no authority that the
Arizona court's Anders review exhausted all such
claims. The only authority the Court has located points to
the opposite conclusion. For example, in Moormann v.
Schriro the Ninth Circuit discussed the Arizona Supreme
Court's statutory obligation to review the trial record
in every capital case for “fundamental errors affecting
the judgment or sentence.” 426 F.3d 1044, 1057 (9th
Cir. 2005). In Moorman, the habeas petitioner argued
that statutory obligation meant all possible federal claims
had been exhausted, even if the petitioner did not brief
them. Id. The Ninth Circuit rejected that argument
in a single sentence: “Where the parties did not
mention an issue in their briefs [to the Arizona Supreme
Court] and where the [Arizona Supreme Court] did not mention
it was considering that issue sua sponte, there is no
evidence that the [Arizona Supreme Court] actually considered
the issue, regardless of its duty to review for fundamental
error, and the issue cannot be deemed exhausted.”
Id.
Multiple
lower court judges in the Ninth Circuit have cited this
language from Moorman and extended it to the
argument Kummer is now making in the non-capital
Anders context. In Ales v. Ryan, for
example, the court held “[t]he Arizona Court of
Appeals' review pursuant to Anders [does] not
result in exhaustion” of all possible federal claims.
No. CV-16-1840-PHX-NVW-JZB, 2017 WL 707498, at *6 (D. Ariz.
Jan. 9, 2017). In that court's view it would be a
perversion of the exhaustion requirement “[i]f
Anders review exhausted all federal claims”
while briefs raising discrete federal claims were found to
exhaust only the exact claims argued in the briefs.
Id. Similarly, in Smiley v. Ryan, the court
noted that allowing Anders review to exhaust all
possible federal claims “would effectively gut the
principles of exhaustion for many of the habeas cases
filed.” No. CV-12-2525-PHX-FJM, 2014 WL 7272474, at *13
(D. Ariz. Dec. 18, 2014).
Consistent
with existing authority, Kummer's argument that the
Arizona Court of Appeals' Anders review
exhausted all possible federal claims is incorrect. Any claim
Kummer did not raise in the procedurally appropriate manner
in state court is not exhausted and, absent special
circumstances, cannot be the basis for federal relief.
I.
Claims One, Three, Eleven, Twelve, Fourteen, and
Seventeen
All of
these claims involve DNA evidence and are best analyzed
together.
A.
Claims One and Fourteen
As
recounted in the R&R, Claim One is based on Kummer being
“denied due process when the prosecution submitted
inadmissible [DNA] evidence” in the form of test
results from a “swab of dark red stain on tape.”
Claim Fourteen is that Kummer was denied effective assistance
of counsel when his counsel did not “challenge the
[same] DNA evidence or ask for a mistrial when it was
revealed at trial that the state's key evidence was in
fact inadmissible.” (Doc. 22 at 16).
The
Court agrees with the R&R that Claim One was not
exhausted in state court. Thus, Claim One cannot be the basis
for granting relief here. But even if Claim One had been
exhausted, Kummer has not explained how the admission of the
DNA evidence constituted a denial of due process. Kummer
appears to believe Arizona law did not allow admission of the
DNA evidence but he has not cited the precise law he is
referencing. And, in any event, a violation of Arizona law
would not be sufficient to merit relief in federal court
because a violation of Arizona law does not necessarily
establish a violation of ...