United States District Court, D. Arizona
Michael T. Liburdi United Stales District Judge
before the Court is Magistrate Judge John Boyle's Report
and Recommendation (“R & R”) (Doc. 56),
recommending that the Amended Petition for Writ of Habeas
Corpus (Doc. 5) be denied and dismissed with prejudice.
Petitioner filed an Objection to the R & R (Doc. 60), in
which he also requests a Certificate of Appealability (Doc.
61). Respondents did not file a Response. After considering
the R & R (Doc. 56), the Amended Petition (Doc. 5), the
arguments raised in Petitioner's Objection (Doc. 60), and
Respondents' Limited Answer to Petition for Writ of
Habeas Corpus (Docs. 13 and 14), the Court will overrule the
Objection and adopt Judge Boyle's recommendation for
dismissal of the Petition.
STANDARD OF REVIEW
federal district court reviews a state prisoner's habeas
corpus petition pursuant to 28 U.S.C. § 2254, “it
must decide whether the petitioner is ‘in custody in
violation of the Constitution or laws or treaties of the
United States.'” Coleman v. Thompson, 501
U.S. 722, 730 (quoting 28 U.S.C. § 2254). The Court may
not grant a writ of habeas corpus to a state prisoner on a
claim adjudicated on the merits in state court proceedings
unless the state court's decision was contrary to, or
involved an unreasonable application of, clearly established
Federal Law; or unless the state court decision was based on
an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. 28 U.S.C.
§ 2254(d). A state court's decision is
“contrary to” clearly established federal law if
it applies a rule that contradicts the governing law set
forth in Supreme Court cases or if it confronts a set of
facts that are materially indistinguishable from a decision
of the Supreme Court and nevertheless arrives at a result
different from Supreme Court precedent. Mitchell v.
Esparza, 540 U.S. 12, 15-16 (2003). If more than one
state court has adjudicated a claim, the Court must analyze
the last reasoned decision by a state court to determine if
the state's denial of relief on the claim was clearly
contrary to federal law. See Barker v. Fleming, 423
F.3d 1085, 1091-92 (9th Cir. 2005). Further, this Court will
not review a question of federal law decided by a state court
if the decision of that court rests on a state law ground
that is independent of the federal question and adequate to
support the judgment. Coleman, 501 U.S. at 729. This
rule applies whether the state law ground is substantive or
procedural. See id. (citing cases).
reviewing a Magistrate Judge's R & R, this Court
reviews de novo those portions of the report to which an
objection is made and “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)(C).
When reviewing a habeas claim, the federal courts must afford
great deference to the state court's rulings with regard
to issues raised in the petitioner's federal habeas
action. See Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (noting the “highly deferential” standard
for evaluating state-court rulings, which demands that
“state-court decisions be given the benefit of the
doubt”). A determination of factual issues made by a
state court shall be presumed to be correct and the applicant
shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1); see also Solis v. Garcia, 219
F.3d 922, 926 (9th Cir. 2000).
PETITIONER'S FACTUAL OBJECTIONS
& R sets forth the following facts, which were taken
directly from the Arizona Court of Appeals' memorandum
decision affirming Petitioner's convictions:
A grand jury indicted [Petitioner] in June 2009 on one count
of conspiracy to commit first-degree murder, and one count of
criminal damage of between $2, 000 and $10, 000, a domestic
violence offense, charges stemming from damage to the
vehicles of his ex-wife and her family and a plot to murder
them. Following a trial in 2010, a jury convicted
[Petitioner] of the charged offenses. The trial court granted
a new trial on the ground that the state had failed, albeit
inadvertently, to properly disclose to [Petitioner] one of
the surveillance recordings of a February 13, 2009 meeting to
discuss the murder conspiracy, the so-called Hawk
recording.. . .
The trial court later denied [Petitioner]'s motion for
new trial, which raised numerous issues relating to the
four-month delay by police in impounding the recordings of
surveillance and a confrontation call, and the admission of
those and other recordings at trial. The trial court found it
had no jurisdiction to decide [Petitioner]'s late-filed
motion to vacate judgment, in which [Petitioner] argued that
the testimony before and at trial of the investigating
officers showed that they conspired to obstruct justice by
deliberately concealing the existence of the Hawk recording.
The court concluded, however, that if it had jurisdiction
over the motion to vacate judgment, it would deny it. . . .
The evidence demonstrated that in 2008 [Petitioner] hired
L.N. at his cigar business. L.N. testified that [Petitioner]
regularly complained about his wife and was angry she refused
to sign a postnuptial agreement to accept $50, 000 in the
event of a divorce. L.N. also stated that [Petitioner] told
him that if he and his wife “were still back in Russia,
that she would be dead or they would kill her.”
[Petitioner] served his wife with divorce papers in March
2008, and directed L.N. to move her belongings to her
parents' house. One night in October 2008, L.N. saw
[Petitioner] puncture the tires of three vehicles belonging
to his wife's family, and pour sugar into the gas tank of
one of them. The repairs cost in excess of $2, 000.
When the divorce decree ordering [Petitioner] to pay his wife
approximately $500, 000 was issued in late January 2009,
[Petitioner] was “incoherent and really upset, ”
and told L.N. he wished his ex-wife were dead. Sometime after
that, L.N. testified, [Petitioner] approached him and
proposed a plan whereby L.N. would hire people to force his
ex-wife to sign a paper agreeing to relinquish all money
awarded in the divorce decree, and then kill her and her
family. [Petitioner] offered to pay L.N. $70, 000 in
installments, and later gave L.N. $5, 000 in cash.
L.N. ultimately told [Petitioner]'s ex-wife of the plot,
and agreed to allow police to hide video and audio recorders
on him for a meeting L.N. arranged with [Petitioner] for the
night of February 13, 2009. During the meeting, L.N. told
[Petitioner] that his ex-wife had signed the documents, and
she and her family had been bound up “execution
style” and had been beaten. L.N. told [Petitioner] he
was not going to give [Petitioner] “details of how
they're gonna murder them, ” and talked about
“hit guys, ” and when they would “go and
shoot them people.” [Petitioner] gave L.N. $500 in cash
to get the hit men out of town. [Petitioner] indicated by
nodding that all he wanted L.N.'s men to do was kill the
ex-wife and her family, and he would handle disposing of the
hit men. During that meeting, [Petitioner] never told L.N.,
“you're scaring me, ” threatened to call
police, or called him crazy.
In a recorded confrontation call six days later, L.N. told
[Petitioner] that his ex-wife and her parents were dead, to
which [Petitioner] immediately asked L.N. when he was going
to return to work. [Petitioner] did not call 9-1-1 that night
to report that he had just been told his ex-wife and her
family had been murdered.
When police called on [Petitioner] at his girlfriend's
apartment early the next morning and told him about the
“murders, ” and repeatedly asked him if he knew
who might have done this, [Petitioner] never mentioned L.N.
Police arrested [Petitioner] and served him later that day
with a protection order from his ex-wife, and told him that
his ex-wife and her family were safe. At that time,
[Petitioner] told police that he was concerned that hit men
hired to commit the murders might come looking for him.
(Doc. 60 at 1-3) (quoting State v. Rozenman, 1 CA-CR
13-0458, 1 CA-CR 13-0898, ¶¶ 5, 7, 10-15 (Ariz.
App. Jan. 29, 2015) (mem.).
makes numerous specific objections to the factual findings in
the R & R.
First, Petitioner objects to the R & R's assertion
that Petitioner is Russian, claiming instead that he is
“Ukrainian from Kiev, Ukraine.” (Doc. 60 at 1.)
The R & R, however, did not state that Petitioner was
Russian. The R & R recounts testimony from L.N. wherein
L.N. said “[Petitioner] told him that if
[Petitioner] and his wife ‘were still back in Russia,
that she would be dead or they would kill her.'”
(Doc. 56 at 2.) Though irrelevant, Petitioner's first
factual objection is overruled.
Second, Petitioner objects to the factual assertion in the R
& R that “[Petitioner] offered to pay L.N. $70, 000
in installments, and later gave L.N. $5, 000 in cash.”
(Doc. 60 at 1.) The sole basis for Petitioner's objection
is that this factual finding was derived from the
“uncorroborated testimony of [L.N.].” (Doc. 60 at
1-2.) It is not the province of the federal habeas court to
re-weigh the evidence or re-determine the credibility of
witnesses whose demeanor has been observed by the finder of
fact. See, e.g., Marshall v. Lonberger, 459
U.S. 422, 434 (1983) (stating “28 U.S.C. § 2254(d)
gives federal habeas courts no license to redetermine
credibility of witnesses whose demeanor has been observed by
the state trial court, but not by them.”). The record
amply supports the factual finding that Petitioner offered to
pay L.N. $70, 000 in installments and later gave L.N. $5, 000
in cash, and Petitioner has not met his burden of
demonstrating by clear and convincing evidence that the
factual finding is incorrect. See (Doc. 13-5,
Exhibit Q, R.T. 03/05/2013, at 133, 140) (L.N. testifying
that Petitioner offered him $70, 000 for the “whole
project” and gave him $5, 000).
Third, Petitioner objects to the factual finding that he
“gave L.N. $500 in cash to get the hit men out of
town.” (Doc. 60 at 2.) For this objection, Petitioner
references his Amended Habeas Petition, which challenges this
factual finding because it was “based on the
uncorroborated testimony of [L.N.].” (Doc. 60 at 2)
(citing (Doc. 5 at 25).) The Court will not re-determine
credibility of L.N. The record amply supports this factual
finding and Petitioner has not met his burden of
demonstrating by clear and convincing evidence that it is
incorrect. See (Doc. 13-5, Exhibit Q, R.T.
03/05/2013, at 164) (L.N. testifying that Petitioner gave him
$500 to get the hit men back to Kentucky).
Fourth, Petitioner objects (Doc. 60 at 2) to the factual
finding that, during a recorded conversation with L.N.,
Petitioner “indicated by nodding that all he wanted
L.N.'s men to do was kill the ex-wife and her family, and
he would handle disposing of the hit men.” Petitioner
asserts L.N. actually testified that Petitioner had only
nodded in agreement to two of L.N.'s statements, neither
of which had to do with Petitioner agreeing to kill the hit
men. (Doc. 60 at 2.) The record belies Petitioner's
assertion. At trial, L.N. testified on direct examination
that Petitioner nodded in agreement to L.N.'s statement
that Petitioner would have somebody else “take
out” the alleged hit men. (Doc. 13-5, Exhibit Q, R.T.
03/05/2013, at 165, 167.) Petitioner, who represented
himself, asked L.N. numerous questions on cross-examination
about the statements to which Petitioner nodded during their
recorded conversation. (Doc. 13-8, Exhibit V, R.T.
03/18/2013, at 117-124.) And L.N. consistently testified that
Petitioner nodded in agreement to L.N.'s statement that
Petitioner would “take care of” the hit men.
(Id. at 122, 128.) Petitioner has not met his burden
of showing by clear and convincing evidence that this factual
finding is incorrect.
Fifth, Petitioner objects (Doc. 60 at 2) to the factual
finding that “[d]uring the meeting [with L.N.,
Petitioner] never told L.N. ‘you're scaring
me,' threatened to call police, or called him
crazy.” He challenges this factual finding by disputing
the reliability of the recordings, which were played for the
jury. Again, it is not the province of the federal habeas
court to re-weigh the evidence or re-determine the
credibility of witnesses. Petitioner has not met his burden
of showing that this factual finding is incorrect.
Sixth, Petitioner objects (Doc. 60 at 2) to the factual
finding that when L.N. told Petitioner in a recorded
confrontation call that Petitioner's ex-wife and her
parents were dead, Petitioner asked L.N. when he was going
back to work instead of calling 911 to report that his
ex-wife and her family had been murdered. Petitioner
challenges this factual finding by repeating his dispute
about the reliability of the recordings. For the reasons
stated above, the Court ...