Carr v. Ryan

          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 ...