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Rozenman v. Shinn

United States District Court, D. Arizona

November 21, 2019

Dimitri Rozenman, Petitioner,
v.
David Shinn[1], et al., Respondents.

          ORDER

          Michael T. Liburdi United Stales District Judge

         Pending 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.[2]

         I. STANDARD OF REVIEW

         When a 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).

         When 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).

         II. PETITIONER'S FACTUAL OBJECTIONS

         The R & 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.[3]. . .
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.).

         Petitioner makes numerous specific objections to the factual findings in the R & R.

         1. 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.

         2. 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).

         3. 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).

         4. 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.

         5. 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.

         6. 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 ...


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