Hadley v. Ryan

          ORDER

          David G. Campbell Senior United States District Judge

         Michael Wayne Hadley has filed a habeas corpus petition under 28 U.S.C. § 2254. Docs. 1, 4. Magistrate Judge Deborah M. Fine issued a report recommending the Court deny the petition (“R&R”). Doc. 19. Petitioner filed an objection, and the government responded. Docs. 20, 22. For the reasons set forth below, the Court will accept the R&R and deny the petition.

         I. Background.

         Petitioner was indicted in the Yavapi County Superior Court on a series of counts related to the sexual abuse of his stepdaughter. Doc. 19 at 2. A jury found him guilty on one count of attempted molestation of a child, three counts of sexual conduct with a minor, one count of sexual abuse, and one count of continuous sexual abuse. Id. at 3. He was sentenced to 80 years in prison. Id. at 3.

         Petitioner raises nine grounds for relief in his habeas petition. Docs. 1, 4, 19 at 7-8. Judge Fine recommends denying relief on grounds one through eight as procedurally defaulted and ground nine on the merits. Doc. 19 at 13-26. Petitioner objects to Judge Fine's recommendation to deny relief on grounds one and three and her finding that Petitioner procedurally defaulted his claims without excuse. Doc. 20. The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

         II. Discussion.

         1.Objection Regarding Grounds One and Three.

         In his objection, Petitioner alleges defects in his state court proceedings and restates the ineffective assistance of counsel (“IAC”) claims he asserted in his habeas petition. He argues that his counsel was ineffective for failing to overcome the trial court's evidentiary rulings and for failing to challenge Arizona's child molestation statute as unconstitutional. Docs. 20 at 5-6; 20-1 at 4-6. Although not entirely clear, the Court will construe Petitioner's arguments as objections to Judge Fine's recommendation to deny relief on grounds one and three. Doc. 19 at 13, 17. The Court will review these recommendations de novo. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

         Petitioner first argues that his trial counsel failed to overcome the trial court's evidentiary rulings regarding certain evidence. Doc. 20 at 5-6. This evidence was presented in ground one of his petition, and includes taped conversations that D.W., the victim in this case, had with an adult male named Brian Mick; D.W.'s Child Protective Services reports; and D.W.'s psychological reports from Kansas. Id. at 1-8; Doc. 19 at 6-7. Petitioner argues that Judge Fine “overlooked” his counsel's failure to get this evidence introduced as part of the “many errors which undermined the proper functioning of the trial.” Doc. 20 at 1.

         Based upon a review of the record, including Petitioner's pleadings on direct appeal (Doc. 15-11 at 132, 166), his first post-conviction relief petition (Doc. 15-5 at 62), his petition for review from the denial of post-conviction relief (Doc. 15-12 at 2), the Arizona Court of Appeals' memorandum decisions denying relief in both state-court proceedings (Doc. 15-11 at 183), and the Arizona Supreme Court's order summarily denying review on direct appeal (Doc. 15-11 at 181), the Court finds that Petitioner never fairly presented this IAC argument in state court. Although Petitioner challenged the trial court's rulings on the evidence at issue here, he did not argue that his counsel was ineffective in failing to overcome those rulings. See, e.g., Doc. 15-11 at 135, 168; Doc. 15-12 at 3; see Baldwin v. Reese, 541 U.S. 27, 32-33 (2004) (holding that to be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory). Accordingly, these claims were never properly presented in state court.

         Petitioner also contends that his counsel was ineffective for failing to challenge Arizona's child molestation statute as unconstitutional. Doc. 21-1 at 6. But Petitioner failed to exhaust this claim in state court. Doc. 19 at 17. Although he did raise the claim in a successive post-conviction relief petition (Doc. 15-12 at 44-49, 58-63), he withdrew the petition and moved instead to proceed with a habeas petition before this Court (Id. at 77). This claim is thus procedurally defaulted.^[1]

         Arizona's procedural rules bar review of claims not raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart v. Smith, 536 U.S. 856, 860 (2002). Because a federal court cannot grant habeas relief on claims that a state prisoner never properly presented to the state courts, the Court will accept Judge Fine's recommendation and will reject Petitioner's grounds one and three arguments as procedurally defaulted. See 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991).

         2.Argument Regarding Denial of Funds for a Defense Expert.

         Petitioner also argues that his due process rights were violated because he was denied funds for an expert witness to question D.W. and refute the state's expert. Doc. 20 at 12. But Plaintiff never requested the appointment of an expert in the trial court (Doc. 15-1 at 4-14), nor did he raise the issue on either direct appeal or his post-conviction relief proceedings (Docs. 15-11 at 132, 166; 15-5 at ...