Eagleman v. Ryan

          REPORT AND RECOMMENDATION

          Honorable D. Thomas Ferraro, United States Magistrate Judge

         Petitioner Ed Eagleman (Eagleman or Petitioner), who is confined in the Arizona State Prison Complex, Winchester Unit in Tucson, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Petition). (Doc. 1.) Before the Court are the Petition, supplements to the Petition, Respondent's Limited Answer to Petition for Writ of Habeas Corpus (Answer) and Petitioner's reply (Doc. 3, 4, 5, 15, 16.) This matter was referred to Magistrate Judge Ferraro for Report and Recommendation. (Doc. 8.) As more fully set forth below, the Magistrate Judge recommends that the district court, after its independent review, deny and dismiss the Petition.

         BACKGROUND

         Factual Background

         The Arizona Court of Appeals described the facts as follows:

         On August 5, 2013, Officer Kaufman of the Phoenix Police Department responded to a call in Phoenix about individuals in a white Chevrolet truck throwing beer cans and bottles. When he arrived at the scene, Officer Kaufman located the white Chevrolet truck and approached it at an angle from the rear. When the officer was within a few feet of the truck, it accelerated away from him. Before the truck fled, Officer Kaufman noticed the driver had dark hair and was wearing a blue bandana.

         Officer Kaufman returned to his vehicle and followed the white truck. He saw the truck make a right turn, and then briefly lost sight of the truck when it made a left turn shortly thereafter. When Officer Kaufman caught up to the truck it had crashed into a tree after making the left turn. Officer Kaufman found the man with dark hair wearing a blue bandana, later identified as Ed Eagleman, in the driver's seat with the door open. A witness who arrived at the scene after the crash also identified the driver of the truck as wearing a blue bandana and having long hair.

         When Officer Kaufman made contact with Defendant, he noticed Defendant's eyes were bloodshot and watery, he had trouble maintaining his balance, and had a strong odor of alcohol. There were also several empty beer cans plainly visible inside the truck. Defendant required medical attention because of the accident, and the fire department immediately took him to the hospital.

         At the hospital, a phlebotomist performed a blood draw on Defendant for medical reasons in the presence of Officer Barlow. The phlebotomist handed Officer Barlow a sample from the blood draw, Officer Barlow sealed the blood sample as evidence, and it was later tested by a forensic scientist. A test for the sample revealed Defendant's blood-alcohol content to be .299.

(Doc. 15-1 at 128.)

         On June 8, 2015, Petitioner was indicted in Arizona Superior Court, Maricopa County on two counts of aggravated driving under the influence (DUI) for driving while under the influence of alcohol while on a suspended license (count 1) and having a blood-alcohol content of or exceeding .08 (count 2). Id. at 4-5.

         Petitioner pled not guilty and, in October 2015, the state filed two motions in limine. Id. at 7-9, 11-15, 17-21. In the first motion, the state sought the admission of Petitioner's blood sample through Officer Barlow without any testimony from the phlebotomist. Id. at 11-15. The second motion sought the preclusion of statements about Petitioner's deceased twin brother, whom Petitioner had claimed was the actual driver. Id. at 17-21. Both motions were unopposed. Id. at 181-86.

         The trial court heard oral argument on the state's motions in limine prior to commencing voir dire. (Doc. 15-1 at 75-76.) Petitioner was not in the courtroom at the time the motions in limine were argued. Id. at 75. Petitioner arrived later, at which time the trial court made a record of the earlier arguments and objections and the trial court repeated its rulings on the motions in limine. Id. at 24-30, 76.

         The trial court empaneled ten (10) jurors, including prospective juror 6. Id. at 79. During vior dire, the trial court asked whether any prospective juror or his or her family member or close friend had been charged with driving while under the influence of alcohol. Id. at 34. Prospective juror 6 answered: “I have strong feelings against driving under the influence.” Id. at 36. When asked by the trial court if she were able to “put those feeling aside and instead … determine whether or not sufficient evidence has been proven to show each element proven beyond a reasonable doubt by the State's evidence, ” prospective juror 6 answered “yes.” Id. The defense did not move to strike prospective juror 6. Id. at 38-45, 56-57, 59-62.

         At the close of the state's case-in-chief, defense counsel moved for a directed verdict arguing:

Judge, I would move [for a] directed verdict (sic) with respect to the charges against my client. I don't believe the State has met its burden with respect to this case. Thank you.

Id. at 68. The motion was denied. The trial court explained:

I do find that the State has provided sufficient evidence. Of course[, ] I have to take all the evidence in the light most favorable to the State for this motion. I do find there is sufficient evidence as to each element so that a jury could -- so that it should go to the jury for the determination of guilt or innocence. So that motion is denied.

Id. at 68-69. Defense counsel renewed his motion for a directed verdict after closing arguments stating:

Judge, may I renew all motions that previously that I had asked for with regards to Rule 20. I would like to just renew that motion for dismissal.

Id. at 72, 88. The trial court denied the renewed motion. Id.

         The jury found Petitioner guilty of both counts of DUI. Id. at 88-89. On November 30, 2015, Petitioner was sentenced to concurrent 10-year terms of imprisonment for each conviction. (Doc. 15-1 at 92-95.)

         Direct Appeal

         On November 30, 2015, Petitioner filed a notice of appeal in the Arizona Court of Appeals. Id. at 100. On June 20, 2016, Petitioner's court appointed appellate counsel timely filed a brief pursuant to Anders v. California, 386 U.S. 738 (1976), informing the appellate court that counsel had searched the record on appeal and could find no colorable claim for appeal ...