Bixler v. Ryan et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION 23 , and the petition for writ of habeas corpus is denied. The Court declines to issue a Certificate of Appealability. The Court denies leave to appeal in forma pauperis. Signed by Judge David G Campbell on 8/12/11. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert D. Bixler,
Plaintiff,

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vs.

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Charles L. Ryan, et al.,

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Defendants.

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No. CV10-0734-PHX-DGC
ORDER

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Robert Dennis Bixler corresponded online with an Arizona undercover officer who

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he thought was a 13 year old girl. Doc. 23 at 14. He emailed the girl links to visual media

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of a minor engaging in sex acts, along with other pictures. Id. at 10-11, 14. He also talked

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with the girl over the phone, and traveled to Phoenix for the purpose of having sex with her

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at a Mesa hotel. Id. at 14. Bixler was indicted on several counts, pled guilty to one count of

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sexual exploitation of a minor and one count of luring a minor for sexual exploitation, and

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was sentenced to 17 years’ incarceration on the first count and lifetime probation on the

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second. Id. at 1.

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Petitioner filed a motion for post-conviction relief, but his post-conviction counsel

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found that no error had occurred in the conviction process. Petitioner subsequently filed his

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own post-conviction brief, the arguments of which were rejected summarily by the trial court.

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The Arizona Court of Appeals and Arizona Supreme Court denied review. On April 1, 2010,

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Petitioner Bixler filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1.

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On April 7, 2011, Magistrate Judge Edward C. Voss filed a Report & Recommendation

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(“R&R”) that the petition, a Certificate of Appealability (“COA”), and leave to appeal in

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forma pauperis be denied. Doc. 23. Petitioner filed objections to the R&R on June 16 and

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also requested appointment of counsel and an evidentiary hearing. Doc. 26. The matter has

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been fully briefed.

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The Court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by a magistrate judge in a habeas case. See 28 U.S.C. § 636(b)(1).

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The Court must undertake de novo review of those portions of the R&R to which specific

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objections are made. See § 636(b)(1)(c); Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia,

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328 F.3d 1114, 1121 (9th Cir. 2003). The Court has reviewed de novo Petitioner’s specific

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objections in this case and will accept the R&R for the reasons discussed below.

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I.

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Discussion of Claims for Habeas Relief.
Petitioner seeks relief on three grounds: ineffective assistance of counsel, individual

errors as well as cumulative effects; involuntary plea; and jurisdictional defects.

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A.

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The R&R concluded that the individual ineffective assistance (“IA”) claims fail

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because (1) the pre-plea IA claims not related to voluntariness of the plea are barred by

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Petitioner’s unconditional guilty plea and also fail for other reasons (Doc. 23 at 9, 11, 13,

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15); (2) IA claims regarding prejudicial statements by counsel at the sentencing hearing have

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no merit (id. at 12); and (3) the state court’s summary denial of the IA claims was not an

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unreasonable application of federal law or an unreasonable determination of facts (id. at 10,

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12, 13, 14, 15, 16). The R&R also concluded that the claim for violation of due process

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based on the cumulative effects of 11 mistakes by trial counsel (1) was not fairly presented

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to the state courts, has not been exhausted, and is now procedurally defaulted; (2) cannot be

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excused by “inadequate access to legal resources”; and (3) does not show a miscarriage of

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justice so as to overcome procedural default. Id. at 5-6. Petitioner objects to the R&R’s

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conclusions as incorrect. Doc. 26 at 2-11.

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Ineffective Assistance of Counsel.

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Pre-plea Mistakes.

The Supreme Court has held that while pre-plea constitutional violations cannot be
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challenged on appeal or habeas, the “voluntary and intelligent character of [a] guilty plea”

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may be collaterally attacked. Tollett v. Henderson, 411 U.S. 258, 267 (1973). When

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challenging the intelligent character of the guilty plea with regard to ineffective assistance,

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however, a petitioner “must demonstrate that the advice [of his attorney] was not ‘within the

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range of competence demanded of attorneys in criminal cases.’” Id. at 266. It is not

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sufficient for a petitioner to show “that if counsel had pursued a certain factual inquiry such

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a pursuit would have uncovered a possible constitutional infirmity in the proceedings.” Id.

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at 267.

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While the R&R has found in part that Petitioner’s challenges do not amount to an

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attack on the voluntariness of the plea, Petitioner argues that the pre-plea mistakes by counsel

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go to the “intelligent” aspect of his guilty plea. Doc. 26 at 7-9. Petitioner argues that he was

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not given sufficient information regarding the strength of the case against him before making

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the plea, that trial counsel would have found constitutional errors had the grand jury

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transcripts been reviewed, and that counsel failed to conduct a pre-trial investigation into the

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charges, opting instead to scare Petitioner into accepting a plea by impressing upon him the

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prospect of a heavy sentence should Petitioner invoke his right to trial. Id.

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In reviewing ineffective-assistance claims in this circuit, “[c]ourts must be ‘highly

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deferential’ to counsel’s performance . . . [and] ‘the defendant must overcome the

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presumption that, under the circumstances, the challenged action might be considered sound

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trial strategy.’” Hein v. Sullivan, 601 F.3d 897, 918 (9th Cir. 2010) (citation omitted). Even

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if attorney error is shown, a petitioner must further show with “reasonable plausibility” that

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but for counsel’s unprofessional errors the result of the proceeding would have been

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different. Leavitt v. Arave, __ F.3d ___, 2011 WL 1844064, *7 (9th Cir. May 17, 2011). In

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light of the record, the Court concludes that even if attorney error is assumed, Petitioner has

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failed to meet the second prong above.

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First, Petitioner fails to state what his maximum sentence would have been had he

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been convicted at trial of all indicted counts. Petitioner does, however, note that it would

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have been a “draconian sentence.” Doc. 26 at 8. By admitting his guilt – and Petitioner is
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not arguing actual innocence on habeas – Petitioner received only 17 years’ imprisonment

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and lifetime probation. On the basis of this record, the Court cannot find that Petitioner has

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shown he would have made a different choice but for his counsel’s alleged errors.

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Second, Petitioner urges that had he known the prosecutor had the burden of proving

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beyond a reasonable doubt the images he sent were of real minors, he would not have

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accepted the plea deal. Id. at 18. But Petitioner does not show how this prosecutorial burden

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would have impaired the case against him or otherwise resulted in his acquittal. It also bears

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mention that this assertion is at odds with Petitioner’s parallel contention that he lacked the

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capacity to make a voluntary choice due to psychotropic medications. Assuming Petitioner

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was capable of rational decision-making, the Court cannot conclude that Petitioner, knowing

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he engaged in the conduct the prosecution alleged, would have decided to take his chances

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at trial when he was admittedly staring at a “draconian sentence” if his gamble on a trial did

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not pan out.

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Third, the R&R observed that “Petitioner’s vague and conclusory claim . . . contains

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nothing to show that a review of the grand jury transcript would have had any impact on the

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charges.” Doc. 23 at 8. On this basis the R&R concluded the state court’s summary denial

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of this IA claim was not an unreasonable application of law or determination of facts.

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Doc. 23 at 8. Petitioner fails to show how reviewing the prosecutor’s grand jury presentation

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would have changed the indicted counts that proceeded to trial. Moreover, Petitioner has

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failed to persuade the Court that a review of the transcript would have led him to make a

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different choice regarding the plea agreement, for the same reasons as discussed above.

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In short, Petitioner has not plausibly shown that, but for counsel’s alleged errors, the
result of the state-court proceeding would have been different.
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Statements Made by Counsel.

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Petitioner frames the R&R’s conclusions on this issue as incorrect, but fails to show

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how the R&R erred – other than to argue that trial counsel should have made a different

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argument before the trial court. Doc. 26 at 11. The R&R found trial counsel’s statements

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were not prejudicial, and Petitioner’s objections have failed to show that “there is a
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reasonable probability that, but for counsel’s unprofessional errors, the result of the

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proceeding would have been different,” Leavitt, 2011 WL 1844064, *16.

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Counsel’s Failure to Ascertain Mental Competency.

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Petitioner asserts the R&R erred when it concluded that the record clearly refutes

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Petitioner’s lack of competency. Doc. 26 at 9-10. The dispositive issue, however, is whether

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trial counsel’s performance “fell below an objective standard of reasonableness” when

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viewed at the time of performance. Strickland v. Washington, 466 U.S. 668, 688-89 (1984).

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The transcript of the change of plea hearing reflects that Petitioner understood the

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questions posed to him by the judge and responded appropriately. Doc. 16-1. Petitioner

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specifically confirmed that his medications did not affect his ability to understand the nature

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of the proceedings in any way. Id. at 58. A defendant’s contemporaneous statements

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regarding his understanding of the plea agreement carry substantial weight in determining

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the voluntariness of a guilty plea. United States v. Mims, 928 F.2d 310, 313 (9th Cir. 1991).

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The Court may properly credit a defendant’s testimony at a hearing regarding entry of a

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guilty plea over any subsequent declarations to the contrary. See United States v. Castello,

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724 F.2d 813, 815 (9th Cir. 1984). Given the fact that Petitioner appeared competent and

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responded appropriately at the plea hearing, the Court cannot determine that counsel’s

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performance in ascertaining his competency fell below an objective standard of

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reasonableness.

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4.

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Remaining IA Claims.

Petitioner’s objection to the individual IA claims not discussed above is not
sufficiently specific, and therefore the Court will adopt the R&R as to those claims.
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Cumulative Error.

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Petitioner argues he has shown cause excusing procedural default because he was

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intentionally deprived of access to Supreme Court case law and did not reasonably know he

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had to argue “cumulative effect.” Doc. 26 at 3. Petitioner asserts that Supreme Court

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reporters were removed by corrections officials after Lewis v. Casey, 518 U.S. 346 (1996).

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Doc. 26 at 3. As the Court recognized in Lewis, however, “an inmate cannot establish
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relevant actual injury simply by establishing that his prison’s law library or legal assistance

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program is subpar in some theoretical sense.” Id. at 351. Even if Petitioner had argued

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“cumulative effect,” the record here does not show the alleged cumulative error “so infected

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the trial with unfairness as to make the resulting conviction a denial of due process,” Hein,

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601 F.3d at 917 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Petitioner

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pled guilty pursuant to a plea agreement, received a prison sentence in the middle of the

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range, and avoided the alternative of a “draconian sentence” had he lost at trial (Doc. 26 at

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8). As discussed in more detail above, the Court is not persuaded that counsel’s cumulative

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conduct resulted in denial of due process.

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The Court will accept the R&R and deny habeas relief as to this ground.

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B.

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The claim that the guilty plea was not voluntary due to Petitioner’s use of

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psychotropic medications was denied by the state court, and the R&R concluded that

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Petitioner has not shown an unreasonable application of law or an unreasonable

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determination of facts. Doc. 23 at 17. Petitioner asserts this finding is erroneous. Doc. 26

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at 12-13.

Voluntariness of Guilty Plea.

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Petitioner fails to cite to medical evidence from a competent specialist that the

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medication he took in fact altered his mental capacity.1 Moreover, elsewhere in the objection

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Petitioner argues that he would have made a decision to proceed to trial had he been

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informed of the prosecution’s burden. Assuming that Petitioner was on the same medication

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throughout the pre-plea proceedings, the Court fails to see how – in the absence of medical

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evidence to the contrary – Petitioner’s choice to plead guilty was not voluntary but his choice

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to proceed to trial would have been. Moreover, as noted above, the transcript of the change

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of plea hearing shows that Petitioner understood the plea colloquy and responded

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appropriately throughout. Doc. 16-1.

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Petitioner does not rely on the psychophysiological evaluation performed by the
public defender’s expert (Doc. 16-1 at 18-39), nor is this evaluation availing on this issue.
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On habeas review a petitioner has the burden of substantiating his claim to relief with

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competent evidence. Petitioner has failed to do so here, and the Court therefore adopts the

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R&R and will deny relief on this ground.

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C.

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Petitioner argues that Arizona lacked criminal jurisdiction over him because he was

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at home in New Mexico when the electronic exchange took place, any media he transmitted

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was sent to Yahoo’s California servers, and the undercover officer who posed as a minor

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downloaded the media from the California servers. Doc. 27 at 17. The R&R found that this

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argument was an issue of state law not cognizable in a habeas petition. Doc. 23 at 17:27-28.

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Because Petitioner has not objected specifically to this ground (Doc. 26 at 13), the Court will

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deny relief on this ground. The also Court notes, however, that the target of Petitioner’s acts

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was in Arizona throughout the time when the crimes were committed (see id. at 10:24-27;

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Doc. 1 at 8).

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II.

Arizona’s Criminal Jurisdiction.

Evidentiary Hearing, COA, and Appeal In Forma Pauperis.

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The R&R concluded that Petitioner is “not entitled to an evidentiary hearing because

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his petition fails to raise any colorable claims for relief.” Doc. 26 at 18. Having reviewed

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the merits of Petitioner’s claims as discussed above, the Court agrees. The R&R also

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recommended denying a COA and leave to appeal in forma pauperis because “Petitioner has

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not made a substantial showing of the denial of a constitutional right.” Id. Petitioner has

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failed to establish that a COA and leave to appeal in forma pauperis are warranted, and the

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Court therefore adopts these recommendations. The Court also concludes that Petitioner has

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been sufficiently able to set forth his arguments, and that appointment of counsel is not

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warranted.

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IT IS ORDERED:

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1.

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The R&R (Doc. 23) is accepted and the petition for writ of habeas corpus is
denied.

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The Court declines to issue a Certificate of Appealability as stated above.

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3.

The Court denies leave to appeal in forma pauperis as stated above.

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DATED this 12th day of August, 2011.

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