Kummer v. Ryan

          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 ...