Eagleman v. Shinn

          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 ...