United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MICHELLE H. BUMS UNITED STATES MAGISTRATE JUDGE
TO THE
HONORABLE ROSLYN O. SILVER, UNITED STATES DISTRICT COURT:
Petitioner
Ralph Carr, who is confined in the Arizona State Prison, has
filed a pro se Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer
(Doc. 13), but despite the opportunity to do so, Petitioner
has not filed a reply.
BACKGROUND
Petitioner
was convicted by a jury in Maricopa County Superior Court,
case #CR 2012-010243, of 11 counts of sexual abuse, class 3
felonies, and three counts of sexual abuse, class 5 felonies,
and was sentenced to a four-year term of imprisonment. (Doc.
6.) The Arizona Court of Appeals described the facts of the
case, as follows:
¶ 2 Carr worked as a horse trainer and riding teacher at
a northwest Phoenix horse ranch. Carr's students ranged
in age, with some as young as eight years old. In March 2006,
one of Carr's students, whose mother noticed had lost her
excitement about going to her classes at Carr's ranch,
confessed to her parents that Carr had touched her breasts
multiple times. The parents called the police, who then sent
a Maricopa County Sheriff's Deputy to speak with the
family. Two years later, another student, who had likewise
suddenly lost interest in attending her classes, told her
mother and police that Carr had touched her breasts multiple
times.
¶ 3 Approximately nine months after the second report,
the Maricopa County Sheriff's Office assigned a detective
to investigate the claims. Soon after interviewing both
girls, the Sheriff's Office issued a press release with
Carr's information and the allegations made about him,
asking if any other children had similar experiences with him
and requesting that they report any additional incidents of
abuse to them. This call for information led to an additional
report from another female student that Carr had
inappropriately touched her. Eventually, several girls came
forward stating that Carr inappropriately touched them while
taking classes with him or working with him. Each allegation
involved Carr either touching the child's breasts or
buttocks. Consequently, the State charged Carr with multiple
counts of sexual abuse for incidents occurring between 2002
and 2009.
¶ 4 Carr's first trial began in October 2012, on an
indictment alleging nine counts of sexual abuse against four
different victims. The jury was unable to reach a verdict on
any of the offenses. The State then moved to dismiss the case
without prejudice, which the trial court granted. The State
subsequently indicted Carr for 16 felonies: 15 counts of
sexual abuse and one count of aggravated assault for touching
one of his female students “with the intent to injure,
insult, or provoke her.” The State alleged that the
alleged incidents of sexual abuse occurred between 2002 and
2009 on victims ranging in age from 9 to 15 years old.
¶ 5 Before the court set trial on the current
indictment, Carr moved to sever each of the counts. The court
held an evidentiary hearing on Carr's motion, at which it
considered whether evidence of the offenses would be
admissible as “other acts” under Arizona Rule of
Evidence (“Rule”) 404 if the offenses were tried
separately. To show that evidence of the offenses would be
admissible because they showed a character trait giving rise
to an aberrant sexual propensity, the State presented expert
testimony from a psychologist relating to Carr's
emotional propensity and opining on his “aberrant
behavior.” Carr called his own expert witness to refute
the State's evidence and the State's expert's
conclusions. The expert specifically criticized the
State's expert's methodology in reaching his
conclusion as unreliable because it could not be verified and
reproduced by other experts and did not include estimated
error rates.
¶ 6 Relying in part on testimony at an evidentiary
hearing and on testimony from the first trial, the trial
court denied Carr's motion on the first day of his
February 2015 trial. The court explained in a lengthy minute
entry that each of the offenses were “without
question” of the same or similar character.
Additionally, the court found that the evidence would be
cross-admissible at separate trials to show intent and
absence of mistake or accident under Rule 404(b) and to show
an aberrant sexual propensity under Rule 404(c). In doing so,
the trial court agreed with the State's expert's
findings, stating that it “reache[d] the same ultimate
conclusion that a person who engaged in the conduct as
alleged by the State has a character trait that would give
rise to aberrant sexual behavior.” The court also found
that the evidentiary value of the other offenses would not be
substantially outweighed by the danger of unfair prejudice to
Carr. After a 19-day trial, the jury acquitted Carr of the
aggravated assault offense and one count of sexual abuse, but
could not reach a verdict on the remaining counts.
Accordingly, the trial court set a re-trial on the remaining
14 counts of sexual abuse.
¶ 7 Carr's re-trial began in October 2015. Each of
the female victims testified that when they were young girls,
Carr repeatedly reached from behind them and touched, rubbed,
or pinched their breasts. They also testified that the
incidents occurred after they started taking private
horseback riding lessons from Carr, and in one victim's
case, at a horse stable where she worked. The conduct
occurred over a period of seven years, with a gap between
incidents of at most 27 months-which began in 2009.
¶ 8 On the second day of testimony, Carr's counsel
reported that at the end of the lunch break, she and her
assistant had “started to walk into the women's
restroom on this floor and [ ] immediately could hear and see
[a victim witness] and her mother there in the bathroom
already talking.” Defense counsel told the court that
they waited until the two had left the bathroom, and when
they entered, “saw one of the jurors who had been in
the bathroom apparently the entire time” while they had
been waiting outside. She noted, however, that they
“couldn't hear who was talking or what was being
said.” She said that she was not sure, but thought that
it might have been juror number 11 in the bathroom, and
described her hair and what she was wearing.
¶ 9 At the end of the day, the court excused all jurors
except juror number 1, who had been identified as juror
number 11 during jury selection, and asked her, “at any
point today, have you been in the restroom or any area in the
courthouse where you have overheard the lawyers or a witness
speaking about this case in any way?” The juror
responded, “no, ” then added that she was in the
restroom when one of the victim witnesses and her mother were
as well. She stated that at least one lawyer came into the
restroom as they were leaving, but that “they
weren't talking about the case at all.” The court
thanked the juror and dismissed her. Carr did not object at
any time or suggest to the court that it was questioning
someone other than the person Carr's counsel saw in the
restroom.
¶ 10 At the close of evidence, the trial court
instructed the jury to consider each offense separately and
advised that each must be proved beyond a reasonable doubt.
The trial court sua sponte also gave a supplemental Rule 404
limiting instruction after closing arguments to ensure
“there is further clarity to the jury on how they can
use the other counts as evidence.” Before dismissing
the jury to deliberate, the court designated two jurors as
alternates-one of which was juror number 1, whom the court
had questioned earlier regarding the alleged restroom
conversation. After deliberating, the jury convicted Carr of
the charged offenses. The court sentenced Carr to a total of
four years in prison, followed by lifetime probation and
ordered him to register as a sex offender. Carr timely
appealed.
State v. Carr, 2017 WL 3866319 (Ariz.Ct.App.
September 5, 2017).
In his
direct appeal, Petitioner argued: (1) the trial court abused
its discretion by denying his motion to sever the charges
involving the different victims because the evidence
involving each victim was too remote and not
cross-admissible; (2) he was prejudiced during the second
trial, in which the jury acquitted him on two counts and was
unable to reach a verdict on 14 counts, because the jury was
exposed to media coverage and a juror's personal
prejudice; and (3) the trial court erred by not declaring a
mistrial due to the fact that the trial court questioned the
wrong juror upon learning that one or more of the jurors in
the third trial had overheard a witness and her mother
talking in the bathroom during the break. See id.
On
September 5, 2017, applying state law to reject
Petitioner's state law claims, the Arizona Court of
Appeals affirmed Petitioner's convictions and sentences.
See id. Petitioner, thereafter, filed a petition for
review and the Arizona Supreme Court denied review on April
30, 2018.
On
October 2, 2017, Petitioner filed two notices of
post-conviction relief (“PCR”) in state court -
one through counsel and another pro se. (Exhs. DDDD, EEEE,
YYYY, ZZZZ.) Through counsel, Petitioner alleged the
existence of newly discovered material facts which probably
would have changed the verdict or sentence, and the existence
of facts which established that he was actually innocent by
clear and convincing evidence. (Exh. DDDD.) In his pro se
notice, Petitioner asserted the same two claims in addition
to an IAC claim and a claim that his failure to file a timely
PCR notice was not his fault. (Exh. EEEE.) The court
subsequently appointed PCR counsel (Exh. FFFF), and on
November 29, 2017, Petitioner, through counsel, filed a
motion to stay the PCR proceeding because he was preparing a
petition for review of the Arizona Court of Appeals'
decision (Exh. GGGG). On December 10, 2017, the trial ...