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Valdez v. Ryan

United States District Court, D. Arizona

November 1, 2019

German B Valdez, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Honorable D. Thomas Fetraro, United States Magistrate Judge

         German M. Valdez (“Valdez” or “Petitioner”), presently incarcerated at the Arizona State Prison Complex-Central Arizona Correction Facility in Florence, Arizona filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). (Doc. 1.) Before this Court are the Petition, Petitioner's memorandum in support of his Petition, Respondent's limited answer, and Petitioner's reply. (Doc. 1, 1-1, 7, 20.) This matter was referred to Magistrate Judge Ferraro for Report and Recommendation. (Doc. 4.) As more fully set forth below, the Magistrate Judge recommends that the District Court, after its independent review of the record, dismiss the Petition.

         BACKGROUND

         The Arizona Court of Appeals described the facts of Petitioner's case as follows:

Between mid-August and early September 2010, Valdez had sexual intercourse with A.U., a fourteen-year-old girl, four times. A.U. subsequently learned she was pregnant and when Valdez failed to ‘take responsibility' for the baby, A.U.'s parents called the police. Following the birth of the child, DNA testing indicated Valdez was the father.

(Doc. 8 at 4, ¶ 2.) Following a jury trial, Petitioner was convicted of one count of sexual conduct with a minor under fifteen years of age, a class two felony, in violation of A.R.S. § 13-405. The trial court sentenced him to a mitigated thirteen-year prison term and later modified the sentence to require sex offender registration. (Doc. 8 at 4, ¶¶ 1, 3.)

         Direct Appeal

         Petitioner timely appealed his conviction to the Arizona Court of Appeals. Id. at 43. Petitioner claimed:

(1) the trial court abused its discretion in denying his motion in limine to require the state to prove scienter as to A.U.'s age thus preventing Petitioner from asserting a full and complete defense;
(2) the trial court abused its discretion in granting the State's request to admit evidence of Valdez's aberrant sexual propensity;
(3) the trial court erred in preventing Petitioner from presenting evidence challenging A.U.'s credibility; and
(4) the trial court erred in denying Petitioner's motion to suppress the DNA evidence.

(Doc. 9 at 9.)

         The court of appeals held that scienter regarding the victim's age is not a necessary element in a conviction for statutory rape under Arizona and federal law. The appeals court held that Arizona's statutory rape law did not impermissibly interfere with Petitioner's right to engage in a constitutionally protected relationship. The appellate court determined that the trial court did not misinterpret the elements of A.R.S. § 13-1405 (Arizona's statutory rape statute), the other act evidence was properly admitted under the Arizona Rules of Evidence given the similarity and proximity to the charged act and evidence of A.U.'s sexual history was properly excluded under A.R.S. § 13-1421. The court of appeals determined that Arizona's rape shield law did not unconstitutionally violate Petitioner's right to confront witnesses against him nor did it violate his right to present a complete defense. Finally, the court of appeals determined the trial court did not abuse its discretion in denying Petitioner's motion to suppress the DNA evidence because probable cause existed to believe that Petitioner's DNA profile would provide evidence that he either did or did not commit the offense. (Doc. 8 at 4-17.)

         Petition for Review

         Petitioner timely filed a petition for review in the Arizona Supreme Court. (Doc. 10 at 3-20.) The sole issue presented for review was whether the trial court erred in denying Petitioner's motion in limine requiring the state to prove scienter as to A.U.'s age. Id. at 4. The Arizona Supreme Court denied the petition for review and the mandate issued on September 5, 2015. Id. at 22, 24.

         Post-Conviction Relief Proceedings

         On December 28, 2015, Petitioner filed his Petition for Post-Conviction Relief (PCR). Id. at 28-48. As grounds for relief, Petitioner claimed that his trial counsel was ineffective because:

(1) trial counsel did not prepare Petitioner for testimony and waived his right to testify without informed consent; (2) trial counsel failed to effectively object to the improper admission of 404(b) and 404(c) evidence; (3) trial counsel neglected to argue that all three elements of A.R.S. § 13-3905 must be satisfied in order to allow [Petitioner] to be detained to obtain his DNA for identifying physical characteristics; and (4) trial counsel failed to present what specific evidence of A.U.'s prior sexual conduct he wished to introduce as an exception to the Arizona Rape Shield statute, A.R.S. § 13-1421, or why.

Id. at 29. On July 21, 2016, the trial court summarily dismissed the PCR petition determining:

Underlying the entire case is the overwhelming evidence against [Petitioner]; and, it is this evidence which effects (sic) the fact that the outcome would have been the same and there was no prejudice to [Petitioner]. A.U. testified she had sexual intercourse with [Petitioner] on four occasions within the charged timeframe. A.U. became pregnant. A.U. had a child. The conception of the child falls within the charged timeframe and the dates A.U. testified that she had sexual intercourse with [Petitioner]. Finally, the DNA established that [Petitioner] is the father of the child born to A.U. Nonetheless, the court will address each issue.
[Petitioner] waived his right to testify at trial. … Here, there was never a time that [Petitioner] indicated he wanted to testify.
Trial counsel objected to Rule 404(b) and (c) [evidence] and his objections were reasonable. All four acts of sexual intercourse with A.U. occurred while she was 14 years old. A fourteen-year-old is deemed by law incapable of consent. See A.R.S. § 13-1405. Counsel filed a motion objecting to the admission of the 404(b) and (c) evidence and a hearing was held. At the evidentiary hearing, Defendant's counsel made arguments, examined witnesses and filed the appropriate motions. Counsel was effective in his representation of [Petitioner] but did not prevail on the issues. The fact he did not prevail does not prove his performance was deficient or fell below an objective standard. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Again, counsel's performance did not prejudice [Petitioner] because of the overwhelming evidence that was available.
Next, [Petitioner] argues that his attorney did not make proper objections to the DNA and photographs. The state obtained an order allowing it to collect [Petitioner's] DNA and submit it to a forensic examination pursuant to A.R.S. § 13-3905. [Petitioner] filed a motion to suppress which was denied. [Petitioner] argues his attorney did not establish all three elements of A.R.S. § 13-3905. Specifically, [Petitioner] now asserts that trial counsel did not argue ‘the evidence is available from specified law enforcement sources.' A.R.S. § 13-3905. The court agrees that [Petitioner's] identification was available through other sources, for example, the Department of Motor Vehicles. However, that was not the issue.
There was no other way to collect [Petitioner's] DNA from another source. As such, an order for detention of [Petitioner] to obtain evidence of identifying physical characteristics was appropriate and probable cause was sound.
[Petitioner] argues that trial counsel failed to present specific evidence of A.U.'s prior sexual conduct in order to meet an exception to Arizona's Rape Shield Law. [Petitioner] argues that counsel failed to direct the court's attention to specific evidence of A.U.'s prior sexual conduct. There was no argument or ‘specifics' to challenge the Rape Shield Law. Still, as of today, the court has not been provided with any ‘new' information (or old information) that would meet the exception to the Rape Shield Law. Trial counsel was not ineffective in making an argument he did not have at the time or now. Again, under the circumstance of the case and the overwhelming evidence, the complexion of the trial would not have changed.
Trial counsel's representation of [Petitioner] did not fall below an objective standard of reasonableness. His strategy was sound[, ] and he made appropriate arguments and filed the appropriate motions. There is no prejudice established and there is no reasonable probability that the result would have been any different considering the fact of this case. The court determines that no remaining claim presents a material issue of fact or law which would entitle [Petitioner] to relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure and no purpose would be served by any further proceedings.

(Doc. 10 at 50-53.)

         Petitioner sought review in the court of appeals raising the same issues. (Doc. 11 at 3-24.) On October 12, 2016, the court of appeals granted review but denied relief. Id. at 26-31. The court of appeals held that: (1) Petitioner's claim that all three elements of A.R.S. § 13-3905 were not satisfied was without merit and, consequently, his trial counsel was not ineffective in failing to argue that the DNA evidence should be suppressed because Petitioner's identification was available through other information; (2) Petitioner failed to identify what testimony he might have given and made no showing of a reasonable probability that, had he testified, he would not have been convicted; (3) the trial court did not abuse its discretion in admitting evidence of Petitioner's other act evidence and evidence of his aberrant prior sexual conduct; and (4) the trial court did not abuse its discretion in summarily dismissing Petitioner's PCR petition. The mandate issued on January 17, 2017. Id. at 33.

         The Petition

         On October 11, 2017, Petitioner filed his Petition raising five ground for relief:

Ground One: The [t]rial [c]ourt's denial of Petitioner's request for the State to prove scienter beyond a reasonable doubt to the jury violated his First Amendment rights.
Ground Two: The [t]rial [c]ourt's denial of Petitioner's request to impeach the victim's credibility violated Petitioner's [d]ue [p]rocess [r]ights guaranteed by the Fourteenth Amendment.
Ground Three: The [t]rial [c]ourt's denial of Petitioner's [m]otion to [s]uppress violated his constitutional rights under the Fourth Amendment.
Ground Four: Petitioner was denied effective assistance of trial counsel when trial counsel failed to properly object to the admission of rule 404(b) and 404(c) evidence.
Ground Five: Petitioner was denied effective assistance of trial counsel when trial counsel failed to present specific evidence of A.U.'s prior sexual conduct as an exception to Arizona's rape shield law, A.R.S. § 13-1412.

(Doc. 1-1 at 6.)

         TIMELINESS AND EXHAUSTION

         Because the Petition was filed after April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) governs. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9thCir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). The AEDPA's one-year statute of limitations applies. See 28 U.S.C. § 2244(d)(1). See Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). The limitations period begins to run on the date when “the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).

         “A federal court may not grant habeas relief to a state prisoner unless he has properly exhausted his remedies in state court.” Peterson v. Lampert, 319 F.3d 1153, 1155 (9th Cir. 2003) (en banc); Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014). “[A] petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts in the manner required by the state courts.” Arrendondo v. Neven, 763 F.3d 1122, 1139 (9th Cir. 2014) (quoting Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004)). Exhaustion requires presentation of the federal question to the court of appeals. See Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005).

         The Petition is timely, and all grounds for relief alleged therein have been exhausted. (Doc. 1-1 at 8-9; Doc. 7.)

         STANDARD OF REVIEW

         Under the AEDPA, a state prisoner is not entitled to federal habeas relief with respect to any federal claim that was adjudicated on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United states; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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