Finkel v. Walker

Filing 19

ORDER ACCEPTING REPORT AND RECOMMENDATIONS 15 : Based on our de novo review of petitioner's claims, IT IS ORDERED DENYING petitioner's petition for writ of habeas corpus (doc. 1). Because petitioner has not made a substantial showing of the denial of a constitutional right, IT IS FURTHER ORDERED DENYING a Certificate of Appealability and leave to proceed in forma pauperis on appeal. (See document for further details). Signed by Judge Frederick J Martone on 7/15/11. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brian Leslie Finkel,
Petitioner,

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vs.

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Sandra Walker, et. al.,
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Respondents.
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No. CV 10-00536-PHX-FJM
ORDER

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The court has before it petitioner's petition for writ of habeas corpus pursuant to 28
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U.S.C. § 2254 (doc. 1), respondents' answer (doc. 13), and petitioner's reply (doc. 14). We
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also have before us the Report and Recommendation of the United States Magistrate Judge
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(doc. 15) and petitioner's objections (doc. 18). After de novo consideration, we accept the
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recommended decision of the Magistrate Judge, pursuant to Rule 8(b), Rules Governing §
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2254 Cases, and deny the petition.
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Petitioner raises four grounds for relief: (1) denial of his Fourteenth Amendment right
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to equal protection, his Fifth and Sixth Amendment rights to a fair trial, and his Sixth
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Amendment right to confrontation by the trial court's refusal to sever counts and joinder of
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the indictments for trial; (2) denial of his Fourteenth Amendment right to equal protection
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and his Sixth Amendment right to a fair trial because the court admitted testimony of Dr. Ann
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Burgess; (3) denial of his Fifth, Sixth, and Fourteenth Amendment rights to due process
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when the court refused to permit defense expert Elizabeth Loftus to testify; and (4) denial of

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his Sixth Amendment right to confrontation when the court permitted one of his accusers to

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testify by way of videotape. We address each in turn.

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Ground One

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In ground one, petitioner alleges that he was denied his Fourteenth Amendment right

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to Equal Protection, his Fifth and Sixth Amendment rights to a fair trial, and his Sixth

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Amendment right to confrontation. The Magistrate Judge found that the only federal claim

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fairly presented to the state courts is the alleged denial of his Sixth Amendment right to

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confrontation. The record reflects that petitioner did not present the due process or other

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claims under ground one to the state courts. Accordingly, those claims are procedurally

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defaulted. See Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347,1349 (2004); see also

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Ariz. R. Crim. P. 32.2.

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In his initial filings, petitioner did not assert any basis to overcome the procedural bar,

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such as "cause and prejudice" or a "fundamental miscarriage of justice." In his objections,

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however, petitioner asserts a basis for "cause and prejudice." Petitioner argues that trial,

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appellate, and former appointed counsel provided ineffective assistance of counsel and

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prejudiced petitioner by causing him to fail to comply with the state's procedural rules.

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Ineffective assistance of counsel may be an objective factor constituting cause. See Murray

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v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986). However, a claim of ineffective

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assistance of counsel "must be presented to the state courts as an independent claim before

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it may be used to establish cause for a procedural default." Edwards v. Carpenter, 539 U.S.

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446, 451, 120 S.Ct. 1587, 1591 (2000). Petitioner did not raise an ineffective assistance of

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counsel claim in state court. Thus, we reject petitioner's argument now that ineffective

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assistance of counsel was an objective factor causing procedural default in ground one.1

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Petitioner did raise a violation of his right to confrontation in state court. Petitioner

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We similarly reject ineffective assistance of counsel as a cause for procedural default
in grounds two and three.
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alleges that the trial court refused to sever counts and, on a theory of cross-admissible "other

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acts," joined counts involving multiple accusers without first evaluating the accusers'

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credibility. The Magistrate Judge refused to consider this claim to the extent that it asserts

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a violation of Arizona law, based on Ariz. R. Evid. 404(c) and State v. Aguilar, 209 Ariz. 40,

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97 P.2d 856 (2004). We agree that such a claim is not cognizable on federal habeas corpus

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review because it is made pursuant to state law. 28 U.S.C. § 2254(a).

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The Magistrate Judge did however, consider petitioner's federal claim.

The

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Magistrate Judge rejected this claim on the merits because he found the Confrontation Clause

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inapplicable to the joinder hearing since it was conducted pretrial. Petitioner objects, arguing

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that there is nothing in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004) that

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limits the confrontation right to the context of a jury trial. Because the purpose of the joinder

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hearing was to assess the truthfulness of the witnesses, petitioner asserts that he should have

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had the right to cross-examine them.

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In order to be entitled to habeas corpus relief, petitioner must show that the state

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court's decision was an unreasonable application of, or contrary to, clearly established federal

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law. 28 U.S.C. § 2254(d)(1). Petitioner has not pointed to a "clearly established" United

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States Supreme Court precedent supporting his claim that he had a right to cross-examine

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witnesses during a pre-trial joinder hearing. Rather, the Supreme Court has determined that

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a criminal defendant has no pre-trial right to interview the witnesses against him; confronting

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adverse witnesses is a trial right. Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S.Ct. 989,

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999 (1987); Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322 (1968). While petitioner

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may not have been afforded the opportunity to cross examine the witnesses at the joinder

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hearing, he did at trial. See Kentucky v. Stincer, 482 U.S. 730, 740, 107 S.Ct. 2658, 2664

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(1987) (holding that there was no confrontation clause violation even though defendant was

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excluded from a pretrial hearing when defendant had the opportunity to cross-examine at

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trial). The state court's rejection of petitioner's Confrontation Clause claim was not contrary

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to, or an unreasonable application of, clearly established federal law. Accordingly, petitioner

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is not entitled to relief on ground one.
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Ground Two

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Petitioner argues that the testimony of Dr. Ann Burgess "was inadmissible under

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Arizona law, usurped the function of the jury, lowered the prosecution's burden of proof and

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deprived Petitioner of his Fourteenth Amendment right to Equal Protection of the law and

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Sixth Amendment right to a fair trial" (docs. 1 at 9, 5 at 10). The Magistrate Judge found that

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petitioner never presented a federal challenge to the trial court's ruling, only a state challenge.

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Therefore this ground is technically exhausted and procedurally barred. Petitioner concedes

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that he "did not specifically address a [violation of a] constitutional provision" (doc. 18 at 4).

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Nevertheless, petitioner contends that because the state court admitted Dr. Burgess's

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testimony, it "necessarily found that Petitioner was not arbitrarily deprived of any state law

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entitlement" (doc. 18 at 4).

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To exhaust state remedies, petitioner must afford the state courts the opportunity to

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rule upon the merits of his federal claims by "fairly presenting" them to the state's highest

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court in a procedurally appropriate manner. Reese, 541 U.S. at 29, 124 S.Ct. at 1349. A

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claim is "fairly presented" only if petitioner has described the operative facts and the federal

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legal theory upon which the claim is based. Castillo v. McFadden, 399 F.3d 993, 999 (9th

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Cir. 2005). Here, petitioner never raised a federal challenge to the admission of Dr. Burgess'

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challenge. He even admits this. Petitioner did not "fairly present" a federal claim. Nor do

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we accept petitioner's argument that there was an arbitrary deprivation of a state statutory

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entitlement. Petitioner never raised this claim before his objections and we refuse to imply

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a state court ruling when one was never actually made. Petitioner is not entitled to relief on

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ground two.

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Ground Three

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In ground three, petitioner alleges that the trial court's refusal to permit defense expert

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Elizabeth Loftus to testify about the risk of implanted memories deprived him of his Fifth,

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Sixth, and Fourteenth Amendment rights to due process and to present a defense. The

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Magistrate Judge found that although petitioner cited the Fifth and Fourteenth Amendments

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on direct appeal, his argument was limited to state law, only cited state law cases, and never
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articulated a federal claim. Concluding that this was insufficient to fairly present a federal

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due process claim to the Arizona Court of Appeals, the Magistrate Judge denied relief.

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Petitioner objects, arguing that mere reference to a specific provision of the Constitution is

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enough to fairly present a federal claim.

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Petitioner relies primarily on Castillo to argue that mere reference to the Constitution

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is enough to fairly present a federal claim. 399 F.3d 993. However, in that case the Ninth

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Circuit stated that "[e]xhaustion demands more than drive-by citation, detached from any

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articulation of an underlying federal legal theory." Id. at 1003. "Exclusive citation to

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Arizona state court cases in a counseled petition for review is not sufficient to give a 'fair

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opportunity' to the Arizona Supreme Court to decide a federal claim." Cook v. Schriro, 538

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F.3d 1000, 1029 (9th Cir. 2008) (internal citations omitted). Here, in a "counseled petition,"

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petitioner merely cited to the Constitution in the heading and concluding sentence of his

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argument. His entire argument centered on Arizona law and the Arizona Court of Appeals

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limited its review to state law and rejected petitioner's claim. "A conclusory, scattershot

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citation of federal constitutional provisions, divorced from any articulated federal legal

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theory" is insufficient. Castillo, 399 F.3d at 1002. We agree with the Magistrate Judge's

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finding that petitioner did not fairly present a federal claim and therefore it is procedurally

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defaulted. Having already objected petitioner's stated reason for "cause and prejudice," we

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deny relief on ground three.

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Ground Four

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Petitioner's final ground for relief asserts that his Sixth Amendment right to

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confrontation was violated when the trial court permitted one of his accusers to testify by

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way of videotape without any showing that she was legally unavailable. The Magistrate

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Judge considered this claim on the merits and found that petitioner did not show that the state

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court's decision was contrary to, or an unreasonable application of, clearly established federal

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law. Specifically, the Magistrate Judge noted that the trial court made particularized findings

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which were sufficient to justify the special protection afforded to the witness. See Maryland

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v. Craig, 497 U.S. 836, 852-53, 110 S.Ct. 3157, 3167 (1990). Petitioner objects arguing that
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there was an unreasonable application of federal law because there was no evidence

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justifying special protection.

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Petitioner's objections do not persuade us that the Magistrate Judge's findings are

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incorrect. After reviewing the court proceedings and Report and Recommendation, we agree

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that this was not an unreasonable application of federal law. We deny relief on ground four.

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Based on our de novo review of petitioner's claims, IT IS ORDERED DENYING

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petitioner's petition for writ of habeas corpus (doc. 1). Because petitioner has not made a

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substantial showing of the denial of a constitutional right, IT IS FURTHER ORDERED

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DENYING a Certificate of Appealability and leave to proceed in forma pauperis on appeal.

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DATED this 15th day of July, 2011.

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