Church v. Arizona, State of et al

Filing 108

ORDER re 105 REPORT AND RECOMMENDATIONS: The statement in Magistrate Judge Irwins R&R regarding Petitioner's difficulty comprehending the plea offer and sentencing ranges and the pretrial excerpt offered in support of this finding (at 26-28) is not accepted. The remaining factual findings and conclusions are accepted. A certificate of appealability is granted. (see attached pdf for complete information) Signed by Judge David G Campbell on 9/28/2011. (GCP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ronald Wesley Church,

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Plaintiff,

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ORDER

vs.

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No. CV-08-1563-PHX-DGC

State of Arizona, et al.,

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Defendants.

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In 2003, Petitioner Ronald Wesley Church was convicted in Maricopa County

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Superior Court, case No. CR 2002-008030, of possession of dangerous drugs, possession

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of marijuana, and possession of drug paraphernalia. On December 4, 2004, Church was

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sentenced to the presumptive term of ten years on the dangerous drug charge and

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concurrent terms of 3.75 years on the other two counts. The state upheld Church’s

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convictions and sentences on direct appeal. Church filed for post-conviction relief, and

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the trial court denied his petition. The Arizona Court of Appeals summarily denied

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Church’s petition for review.

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In 2008, Church filed a petition for writ of habeas corpus in this Court pursuant to

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28 U.S.C. § 2254. Doc. 1, amended by Docs. 7 & 9. Church raised four grounds for

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relief.

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constitutional violation. Doc. 10 at 2. The Court ordered Respondents to answer ground

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one, alleging ineffective assistance of counsel.

Doc. 9.

The Court denied the last three grounds for failure to allege a

Id.

Respondents filed an answer

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(Doc. 27), and Church filed a reply. Doc. 31. United States Magistrate Judge Jay R.

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Irwin issued a report and recommendation (“R&R”), finding that counsel’s conduct had

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fallen below the professional norm, but that Petitioner had failed to show prejudice as a

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result. Doc. 105. Judge Irwin recommended that Church’s petition be denied and that a

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certificate of appealability be issued. Id. Both Church and Respondents have filed

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objections. Docs. 107, 106. Neither party has requested oral argument. For the reasons

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set forth below, the Court will reject one statement of fact in the R&R, accept the R&R’s

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conclusions in full, and deny the petition.

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appealability.

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I.

The Court will issue a certificate of

Standard of Review.

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A party may file specific written objections to the R&R’s proposed findings and

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recommendations. The Court must undertake de novo review of those portions of the

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R&R to which specific objections are made. The Court may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the Magistrate Judge. Fed. R.

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Civ. P. 72(b); 28 U.S.C. § 636(b)(1).

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II.

Analysis.

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A.

Petitioner’s Objections.

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Petitioner Church objects to Judge Irwin’s findings that he has not shown that he

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suffered prejudice as required by the second prong of the Strickland test for ineffective

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assistance of counsel. Doc. 107 at 1, see Strickland v. Washington (466 U.S. 668 (1984)).

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Judge Irwin found that counsel’s conduct fell below the professional norm because she

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failed to request a continuance or a competency redetermination on the basis of Church’s

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alleged incompetence on the day of trial, and she failed to present the most crucial fact

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bearing upon his competency. Doc. 105 at 31-32. Specifically, while counsel alerted

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Judge Jeffrey Cates to the fact that Church had not taken his medication on the day of

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trial, and that he had previously been found incompetent, she did not tell Judge Cates that

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the competency judge had ordered Church to remain on medication as a condition of his

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competency. Id. at 31. Judge Cates questioned Church regarding the effectiveness of his
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medications and regarding his understanding of what was to happen at trial, including

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Church’s possible sentence if found guilty, and Judge Cates concluded that Church was

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able to proceed. Id. at 3-7, 40. Judge Irwin found that even if Judge Cates had known

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about the competency judge’s order, and counsel had moved for a continuance on the

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basis of Church’s incompetency, Church failed to show a reasonable probability that the

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judge would have ordered a continuance rather than hold trial. Id. at 40.

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The only support Church gives for his objection to Judge Irwin’s findings is that

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the video recording of his responses to Judge Cates shows that he was “twitchy or

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fidgety” and appeared “dazed and confused.” Doc. 107 at 2-3. Church concludes that his

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responses to Judge Cates, when viewed in light of his body language and demeanor, show

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that “a reasonable court would have granted a continuance.” Id. at 2. The question

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currently before the Court, however, is not whether Judge Cates acted reasonably in

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proceeding to trial in light of Church’s responses and body language. The relevant

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question is whether there is a reasonable probability that a judge in Judge Cates’ position

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would have made a different determination about Church’s mental state had counsel

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moved for a continuance and alerted the judge to the order requiring Church’s continued

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medication. The video recording of Church’s interactions with Judge Cates is immaterial

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to this question. Thus, the Court finds that Church has failed to raise a colorable

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objection to the findings in the R&R that “Petitioner has failed to establish that he was

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prejudiced by counsel’s deficiencies.”

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This Court also finds Petitioner’s arguments on this issue generally are unavailing.

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Judge Cates understood Petitioner was on medication – Petitioner’s counsel told him so.

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Judge Cates knew that Petitioner had not taken his medication that day – Petitioner’s

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counsel told him so. In this Court’s view, Petitioner presents no basis for concluding that

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Judge Cates’ understanding of the situation would have been any different had trial

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counsel also told him that the competency judge had ordered Petitioner to take the

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medication. Judge Cates presumably understood that someone prescribed medication is

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supposed to take it.
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Moreover, Judge Cates questioned Petitioner for the purpose of determining

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whether he was competent to proceed with trial. If he had found Petitioner incompetent,

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he presumably would not have proceeded with trial. Petitioner provides no basis for this

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Court to conclude that a request for a continuance from trial counsel would have made a

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difference.

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B.

Respondents’ Objections

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Respondents object to two factual findings. Doc. 106 at 2-4. Respondents also

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object to Judge Irwin’s conclusions that counsel acted deficiently in failing to request a

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continuance and that a certificate of appealability should be issued. Doc. 106 at 2-5, 5-8.

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For the reasons stated below, the Court will reject the first statement to which

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Respondents object. The Court will accept the second statement as well as Judge Irwin’s

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conclusions regarding counsel’s performance and the recommendation that a certificate

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of appealability be issued.

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Respondents object to the statement in the R&R that “Petitioner was having

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difficulty comprehending the plea offer and applicable sentencing ranges.” Doc. 106 at 2

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(quoting Doc. 105 at 27). Judge Irwin made this statement, not as an independent finding

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of fact, but as an illustration of his primary finding that “Petitioner understood the general

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nature of the proceedings, but was having difficulty following extended discussions.”

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Doc. 105 at 25. The Court agrees with Respondents that the excerpt from the trial court’s

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audio/video recording to which the R&R cites does not show that Church was having

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difficulty understanding the plea offer and sentencing ranges. The cited portion contains

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a misstatement by Judge Cates that “if you are found guilty . . . the best you could hope

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for is six years. But could be as high as five years.” Doc. 105 at 27. As verified by the

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video recording, upon hearing this, Church grabbed his head and turned to his defense

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counsel who responded, “[i]f you don’t understand, you need to tell the judge.” Exhibit

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3. Church’s request at that point to “hear it again” could illustrate Judge Irwin’s finding

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that Church was having difficulty following protracted discussions, and it could illustrate

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the R&R’s specific statement that Church had difficulty comprehending the sentencing
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terms. As Respondents suggest, however, it could also show that Church followed Judge

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Cates’ explanation closely enough to catch the contradiction. Doc. 106 at 3. Moreover,

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Church acknowledged thereafter that he understood Judge Cates’ explanations. Doc 105

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at 26. The Court will reject the R&R’s specific statement that “Petitioner was having

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difficulty comprehending the plea offer and applicable sentencing ranges.” The Court

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will reject the excerpt that follows as inconclusive and unnecessary to the R&R’s primary

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findings and conclusions.

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Respondents also object to Judge Irwin’s factual finding that “the weight of the

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evidence is that Petitioner had not been taking his medication for some time.” Doc. 106

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at 3 (quoting Doc. 105 at 37). Respondents cite to Church’s own statements and those of

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his counsel showing only that Church had failed to take his medication on the day of trial.

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Doc. 106 at 3. The R&R also includes these statements and concludes that “the evidence

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is undisputed that Petitioner had not taken his medication at least on the day of trial.”

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Doc. 105 at 37. The R&R, however, also includes more equivocal statements made by

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defense counsel, suggesting more than a single day’s lapse: “[h]e probably just hasn’t

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been taking his medication, even though its free.” Doc. 105 at 38. Furthermore, the

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R&R cites to Petitioner’s own affidavit and his testimony at sentencing stating that he

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had not taken his medication since his release from the state hospital. Doc. 105 at 38. As

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Respondents note, “the record is contradictory, at best,” regarding the length of time

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during which Church had failed to take his medication. Doc. 106 at 3. In light of the

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evidence suggesting more than a single-day lapse, the Court accepts Judge Irwin’s

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finding that “the weight of the evidence is that Petitioner had not been taking his

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medication for some time.” Doc. 105 at 37. Taken in context, the R&R also makes clear

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that “the ultimate issue is not whether Petitioner had his medication, whether he had

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taken it, nor even the length of time he had not been taking it. The relevant issue is

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whether, had counsel performed appropriately, Petitioner would have been deemed

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incompetent, and/or the trial continued.” Id. at 38.

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Respondents also object to Judge Irwin’s conclusion that defense counsel acted
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deficiently when she failed to ask for a continuance. Doc. 106 at 4. Respondents argue

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that counsel was not required to make a futile motion and that Judge Cates’ statement that

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Church “seem[ed] to understand things” shows that he would have denied her request.

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Doc. 106 at 4-5. As stated in the R&R, however, Judge Cates’ statement “is not the

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equivalent of a finding that Petitioner was competent, which required not only a showing

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that he understood things, but also that he had ‘the capacity to participate in his own

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defense.’” Doc. 105 at 23 (quoting Medina v. California, 505 U.S. 437, 448-49 (1992)).

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The Court agrees with Judge Irwin that Judge Cates’ statement “did not rise to a decision

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by the court precluding an effort [by counsel] to insure (sic) Petitioner’s competence.”

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Doc. 105 at 33. Furthermore, Judge Irwin determined that counsel’s failure to request a

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continuance or a competency redetermination fell below the professional norm

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particularly because counsel failed to argue “the most significant fact at her disposal,”

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namely that the judge who conducted Church’s prior competency hearing had ordered

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that he continue to take his medications as a condition of his competency. Doc. 105 at

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31. Even though this fact does not prove that Church was incompetent on the day of trial,

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it “raises a reasonable doubt” as to his competence. See Miles v. Stainer, 108 F.3d 1109

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(9th Cir. 1997) (cited in Doc. 105 at 18). The Court agrees with the R&R’s conclusions

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that reasonable defense counsel would have brought this information to light in the

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context of a motion for continuance or for a competency redetermination.

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Respondents also object to Judge Irwin’s conclusion that a certificate of

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appealablity should be granted. Doc. 106 at 5. The standard for issuing a certificate of

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appealability is whether the applicant has “made a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the Court has rejected

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petitioner’s constitutional claim to ineffective assistance of counsel on the merits, the

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petitioner “must demonstrate that reasonable jurists would find the district court’s

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assessment . . . debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Respondents argue that Judge Cates’ satisfaction with Church’s responses to him at trial

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was enough to establish Church’s competency, notwithstanding the fact that Judge Cates
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was not informed or presented with evidence to the effect that Church was in violation of

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the competency judge’s order that he remain on medication. Doc. 106 at 5-8. The Court

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agrees with Judge Irwin’s conclusion that reasonable jurists could find it debatable

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whether there is a “reasonable probability” that a judge in Judge Cates’ position would

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have come to a different conclusion if counsel had made a motion for continuance or a

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competency rehearing and had informed the court of the contents of the competency

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judge’s order.

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IT IS ORDERED:

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1.

The statement in Magistrate Judge Irwin’s R&R regarding Petitioner’s

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difficulty comprehending the plea offer and sentencing ranges and the pretrial excerpt

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offered in support of this finding (Doc. 105 at 26-28) is not accepted.

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2.

The remaining factual findings and conclusions in Judge Irwin’s R&R

(Doc. 105) are accepted.

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3.

Ronald Church’s petition for writ of habeas corpus (Doc. 9) is denied.

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4.

A certificate of appealability is granted.

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Dated this 28th day of September, 2011.

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