United States District Court, D. Arizona
G. Campbell Senior United States District Judge
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.
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.
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).
Regarding Grounds One and Three.
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).
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.
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.
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
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).
Regarding Denial of Funds for a Defense Expert.
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 ...