United States District Court, D. Arizona
ORDER
Hon.
Rosemary Marquez United States District Judge
On
November 8, 2019, Magistrate Judge D. Thomas Ferraro issued a
Report and Recommendation (“R&R”) (Doc. 17)
recommending that this Court dismiss Petitioner Ed
Eagleman's Petition for Writ of Habeas Corpus
(“Petition”) pursuant to 28 U.S.C. § 2254
(Doc. 1; see also Docs. 3, 4, 5). Petitioner
Eagleman filed an Objection to the R&R (Doc. 18), and the
Government responded to the Objection (Doc. 20). For the
following reasons, Petitioner's Objection will be
overruled and the R&R will be adopted in full.
I.
Standard of Review
A
district judge “may accept, reject, or modify, in whole
or in part, ” a magistrate judge's proposed
findings and recommendations. 28 U.S.C. § 636(b)(1). The
district judge must “make a de novo determination of
those portions” of a magistrate judge's
“report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The advisory committee's notes to Rule
72(b) of the Federal Rules of Civil Procedure state that,
“[w]hen no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation” of
a magistrate judge. Fed.R.Civ.P. 72(b) advisory
committee's note to 1983 addition. See also Johnson
v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999)
(“If no objection or only partial objection is made,
the district court judge reviews those unobjected portions
for clear error.”); Prior v. Ryan, CV
10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18,
2012) (reviewing for clear error unobjected-to portions of
Report and Recommendation).
II.
Background
A.
Factual and Procedural Background
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 under the
influence of alcohol while on a suspended license (Count One)
and having a blood-alcohol content at or exceeding 0.8 (Count
Two), both class four felonies. (Doc. 15-1 at 128.) The
charges stemmed from an incident on August 5, 2013, when
Phoenix police officer Michael Kaufman responded to a call
about individuals in a white Chevrolet truck throwing beer
cans and bottles. (Id.) As Officer Kaufman
approached the truck, it accelerated away from him; the
officer followed the truck and found it crashed into a tree.
(Id. at 12.) The driver of the truck was verified to
be the Petitioner in the present case, Mr. Eagleman.
(Id.) Officer Kaufman saw empty alcohol containers
inside the truck and observed that Defendant had a strong
odor of alcohol. (Id. at 128.) Petitioner was
immediately transported to the hospital for medical treatment
resulting from injuries sustained during the collision.
(Id.) At the hospital, a phlebotomist drew
Petitioner's blood for medical reasons in the presence of
Officer Barlow. (Id. at 12) Officer Barlow obtained
a sealed blood sample, and a subsequent test by a forensic
scientist showed Petitioner's blood-alcohol content to be
0.299. (Id. at 128.) At the time of the incident,
Petitioner's driver's license was revoked.
(Id.)
Petitioner
pled not guilty to the charges and, in October 2015, the
State filed two motions in limine. (Id. at 7-9,
11-15, 17-21.) The first motion sought the admission of
Petitioner's blood sample through Officer Barlow without
any testimony from the hospital staff member who had drawn
the blood. (Id. at 12-15.) The second motion sought
the preclusion of statements about Petitioner's deceased
twin brother, whom Petitioner had claimed was the driver of
the truck. (Id. at 17-20.)
The
trial court heard oral argument on the State's motions in
limine prior to commencement of trial. (Id. at
75-76.) Petitioner was not present in the courtroom during
oral argument. (Id.) When Petitioner arrived, the
trial court made a record of the earlier arguments,
objections, and rulings on the motions in limine.
(Id. at 24-30, 75-76.)
The
trial court empaneled ten jurors, including prospective juror
six. (Id. at 79.) During voir dire, the trial court
asked whether any prospective juror had “personal
feelings about the charge of driving under the influence that
might make it difficult for [him or her] to be fair and
impartial” in deciding the case. (Id. at 35.)
Prospective juror six answered that she had “strong
feelings against driving under the influence.”
(Id. at 36.) When asked by the trial court if she
“would be able to put those feelings 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 six
answered affirmatively. (Id.) The defense did not
move to strike prospective juror six. (Id. at 38-45,
56-7, 59-62.)
At the
close of the State's case-in-chief, the defense moved for
a directed verdict, arguing that the State had failed to meet
its burden of proof. (Id. at 68.) The trial court
denied the motion, explaining that, taking the evidence in
the light most favorable to the State, it found that there
was sufficient evidence as to each element so that the jury
should determine guilt or innocence. (Id. at 68-69.)
After closing arguments, the defense renewed the motion for a
directed verdict and the trial court again denied the motion.
(Id. at 72, 88.)
The
jury found Petitioner guilty of both counts of DUI.
(Id. at 88-89.) On November 30, 2015, Petitioner was
sentenced to concurrent ten-year terms of imprisonment for
each conviction. (Id. at 92-95.) 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), stating that counsel could find no colorable
claim for appeal and requesting that Petitioner be allowed to
file an appellate brief pro se. (Id. at 105-11.)
On
December 14, 2016, Petitioner timely filed a
“Supplemental Opening Brief” raising thirteen
claims but providing excerpts from the trial court record in
support of only five claims. (Id. at 113-24.) The
Court of Appeals considered only the five claims for which
record support was provided: (1) whether probable cause
existed at the time of the blood draw; (2) whether the blood
draw and the test results' admission at trial violated
Petitioner's physician-patient privilege; (3) whether the
State of Arizona violated Petitioner's
“confrontation rights” by not allowing him to
cross-examine witnesses during the grand jury proceedings;
(4) whether A.R.S. § 28-1388(E) is unconstitutionally
vague; and (5) whether Petitioner was properly charged and
convicted, including whether the trial court erred in denying
his motion for a directed verdict. (Id. at 126-31.)
The Court of Appeals denied all five claims. (Id.)
On
April 12, 2017, Petitioner petitioned the Arizona Supreme
Court for review of the appellate court's decision.
(Id. at 192.) Petitioner asserted the same five
claims that he had raised in the appellate court and that
were denied by that court, as well as three additional
claims. (Id. at 133-38.) On September 12, 2017, the
Arizona Supreme Court summarily denied Petitioner's
...