Balas v. Unknown Party et al

Filing 24

ORDER that the Magistrate Judge's 20 Report and Recommendation is accepted and adopted by the Court; that the petitioner's [Amended] Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 10) i s denied and that this action is dismissed with prejudice; that no Certificate of Appealability shall issue and that the petitioner is not authorized authorized to appeal in forma pauperis because the dismissal of the petitioner's habeas petitio n is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable, and because the petitioner has not made a substantial showing of the denial of a constitutional right. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. Signed by Judge Paul G Rosenblatt on 08/02/11. (ESL)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Andrija James Balas, Petitioner, 11 12 13 vs. Charles L. Ryan, et al., Respondents. 14 ) ) ) ) ) ) ) ) ) ) No. CV-10-0101-PHX-PGR (LOA) ORDER 15 16 Having reviewed de novo the Report and Recommendation of Magistrate 17 Judge Anderson in light of the petitioner’s Petition for Re-Consideration on Ruling 18 by Magistrate (Doc. 23), which the Court construes as the petitioner’s objections 19 to the Report and Recommendation, the Court finds that the Magistrate Judge 20 correctly determined that the petitioner’s timely petition for writ of habeas corpus, 21 filed pursuant to 28 U.S.C. § 2254, should be dismissed. 22 The gist of the petitioner’s first claim in his Amended Petition (Doc. 10) is 23 that his Fifth Amendment right against self-incrimination was violated when he 24 was forced to appear before the jury in jail clothes and shackles.1 The Court 25 26 1 While the Report and Recommendation does not expressly refer to the Amended Petition, it is clear that the Report and Recommendation is directed at 1 agrees with the Magistrate Judge that this claim is procedurally barred from 2 federal habeas corpus review because the Arizona Court of Appeals rejected the 3 claim on the basis of the “invited error” doctrine, which is an adequate and 4 independent state procedural rule2, and because the petitioner has failed to 5 assert any legitimate cause for the procedural bar or to show that the failure to 6 consider his Fifth Amendment claim will result in a fundamental miscarriage of 7 justice.3 8 The gist of the petitioner’s second claim is that his Fourteenth Amendment 9 right to due process, which the Court construes as a Sixth Amendment claim of 10 ineffective assistance of counsel, was violated due to his counsel’s failure to 11 object to the petitioner’s appearance at trial in prison clothes and restraints. The 12 Court agrees with the Magistrate Judge that this claim should be denied on its 13 merits because the petitioner has failed to establish that the state superior court’s 14 rejection of this claim was either contrary to, or an unreasonable application of, 15 clearly established federal law as set forth by the Supreme Court in Strickland v. 16 Washington, 466 U.S. 668 (1984), or resulted in a decision that was based on an 17 18 the claims raised in the Amended Petition. 2 19 20 21 The Arizona Court of Appeals concluded that the petitioner had either invited or waived any error regarding his in-custody appearance because he made the decision to appear before the jury in jail clothes and restraints by choosing not to change into street clothes. 3 22 23 24 25 26 The Court agrees that this claim also fails on its merits because the petitioner cannot establish any actual prejudice from the jury viewing him in prison clothing and restraints inasmuch as the State presented overwhelming evidence of his guilt. See Cox v. Ayers, 613 F.3d 883, 891 (9th Cir.2010) (Court concluded in a habeas proceeding that the unconstitutional shackling of a defendant does not have any prejudicial effect on a guilty verdict if the evidence of guilt is overwhelming.) -2- 1 unreasonable determination of the facts in light of the state court record. At the 2 very least, the petitioner has not established that he was prejudiced by any failure 3 by his counsel to object to his appearance in prison clothing and restraints given 4 the overwhelming evidence of his guilt. See Allen v. Woodward, 395 F.3d 979, 5 999 (9th Cir.2005) (Court concluded that even if the petitioner’s counsel’s 6 performance was arguably deficient, the petitioner could not establish the 7 prejudice required to satisfy Strickland’s prejudice prong due to the overwhelming 8 evidence of the petitioner’s guilt); Whitman v. Bartow, 434 F.3d 968, 972 (7th Cir. 9 2006) (“Because [the petitioner’s] appearance before the jury in his prison 10 clothing did not prejudice the outcome of his trial, [the petitioner’s] ineffective 11 assistance of counsel claim also fails. ... The evidence of [the petitioner’s] guilt 12 was overwhelming, and his attire was not an outcome determinative factor in the 13 jury’s decision.”) Therefore, IT IS ORDERED that the Magistrate Judge’s Report and Recommendation 14 15 (Doc. 20) is accepted and adopted by the Court. IT IS FURTHER ORDERED that the petitioner’s [Amended] Petition Under 16 17 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody 18 (Doc. 10) is denied and that this action is dismissed with prejudice. 19 IT IS FURTHER ORDERED that no Certificate of Appealability shall issue 20 and that the petitioner is not authorized to appeal in forma pauperis because the 21 dismissal of the petitioner’s habeas petition is justified by a plain procedural bar 22 and jurists of reason would not find the procedural ruling debatable, and because 23 the petitioner has not made a substantial showing of the denial of a constitutional 24 right. 25 IT IS FURTHER ORDERED that the Clerk of the Court shall enter 26 -3- 1 2 judgment accordingly. DATED this 2nd day of August, 2011. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -4-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?