Davis v. Ryan et al

Filing 27

ORDER that Magistrate Judge Michelle Burns's Report and Recommendation (Doc. 22 ) is ACCEPTED. IT IS FURTHER ORDERED that Carl Dwight Davis's Petition for Writ of Habeas Corpus (Doc. 1 ) is DENIED and DISMISSED WITH PREJUDICE. The Clerk o f Court is directed to enter judgment on this matter. IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal is DENIED because Davis has not made a substantial showing of the denial of a constitutional right. Signed by Judge G Murray Snow on 9/10/2013. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carl Dwight Davis,

No. CV-12-00132-PHX-GMS
Petitioner,

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v.

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ORDER

Charles L. Ryan, Director of the
Department of Corrections, et al.,

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Respondents.

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Pending before the Court are Petitioner Carl Dwight Davis’s Petition for Writ of

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Habeas Corpus, (Doc. 1), and United States Magistrate Judge Michelle H. Burns’s Report

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and Recommendation (“R&R”), (Doc. 22). The R&R recommends that the Court deny

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the petition. (Doc. 22 at 38.) Petitioner timely filed an objection to the R&R. (Doc. 25.)

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Thus, the Court will make a de novo determination of those portions of the R&R to

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which an objection is made. See United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th

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Cir. 2003) (en banc). For the following reasons, the Court accepts Magistrate Judge

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Burns’s R&R and denies the petition.

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BACKGROUND

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On September 2, 2005, a grand jury indicted Petitioner with seven counts of

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Molestation of a Child and one count of Sexual Abuse. (Doc. 12-A, Item 4.) The

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indictment identified the victim as C.K., a child under the age of 15. The initial

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indictment alleged that the counts had occurred between May 1 and August 27, 2005, but

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the State later amended the dates to January 31 and August 27, 2005. (Id., Item 56.) It

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also amended the indictment to allege that Petitioner had three past felony convictions for

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Attempted Molestation of a Child, Possession or Use of Marijuana, and Possession or

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Use of Narcotic Drugs. The first conviction, which was the result of Petitioner entering

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an Alford plea, took place on June 14, 1985, over ten years before the underlying trial in

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the instant case. The State notified Petitioner of its intention to impeach him with his

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previous felony convictions and also to introduce evidence related to his prior conviction

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for attempted child molestation under Rules of Evidence 404(b) and (c).

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Petitioner waived his right to a jury trial and his case was tried to Judge Bethany

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Hicks in Maricopa County Superior Court in March 2006. (Id., Item 55.) The judge found

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Petitioner guilty of Counts Two through Eight but acquitted him on Count One. (Id., Item

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63.) She then sentenced him to six concurrent presumptive prison terms of 28 years for

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the six convictions of child molestation. She also imposed lifetime probation for

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Petitioner’s sexual abuse conviction. (Id.. Item 68.)

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On May 18, 2006, Petitioner appealed, raising two issues: (1) the trial court

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committed reversible error in allowing the State to use propensity evidence with a

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conviction obtained by an Alford plea over twenty years ago without making specific

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findings, and (2) the trial court erred by allowing the State to impeach Petitioner with two

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convictions of drug possession. The Arizona Court of Appeals confirmed his conviction

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and sentence in December 2007, holding among other things that Petitioner waived his

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objections by failing to raise them at trial and that it would assume the trial court made

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the requisite specific findings for the use of propensity evidence in the absence of

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evidence to the contrary. (Doc. 12-K.) Petitioner did not timely file a petition for review

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of this decision.

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While his direct appeal was pending, Petitioner filed a notice of post-conviction

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relief pro se. His appointed counsel filed a notice of completion of post-conviction

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review of the record, avowing that he could find no colorable claims to raise. Thus, in

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November 2008, Petitioner filed his pro per Rule 32 petition. He alleged three grounds

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for relief: (1) ineffective assistance of counsel, (2) the trial court’s failure to comply with

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the specific findings requirements of Rule 404(c)(1)(D), and (3) the trial court’s failure to

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comply with the specific on-the-record findings required by Rule 609(b). The State filed

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a response to the petition, and the trial court denied Petitioner’s petition in March 2009

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“for the reasons stated in the State’s Response thereto.” (Doc. 12-V.) Petitioner appealed

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this decision and the Arizona Court of Appeals summarily denied review on August 10,

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2010. (Doc. 12-X.) On September 10, 2011, Petitioner filed a petition for review by the

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Arizona Supreme Court, raising the same claims as those raised in his appeal from the

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denial of his petition for post-conviction relief. The Arizona Supreme Court also

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summarily denied review.

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In January 2011, Petitioner filed a petition for writ of habeas corpus in Pima

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County Superior Court. However, the pleading was returned to Petitioner because Pima

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County did not have jurisdiction over the case. Petitioner then filed an application

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seeking state habeas relief with the Arizona Supreme Court, raising for the first time the

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issue of whether the Maricopa County Superior Court lacked subject matter jurisdiction

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due to a flawed indictment. The Arizona Supreme Court dismissed the petition for being

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procedurally improper, as such claims must first be presented to the superior court

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pursuant to Rule of Criminal Procedure 32. Petitioner also filed a second pro per notice

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of post-conviction relief which was denied because it did not meet the procedural

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prerequisites for a successive Rule 32 petition.

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On January 20, 2012, Petitioner filed the instant habeas petition in this Court,

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setting out four grounds for relief. First, he asserts the trial court lacked subject matter

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jurisdiction due to deficiencies in the charging instrument. (Doc. 1 at 6.) Second, he

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alleges that he is entitled to relief due to ineffective assistance of counsel. He sets forth

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seven grounds for finding that his counsel’s performance was constitutionally deficient.

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(Id. at 7.) Third, he asserts that the state court errors, taken together, deprived him of a

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fair trial and violated his right to due process. These errors are premised on the trial

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court’s admission of his prior convictions without specific findings on the record. (Id. at

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8.) Finally, he claims that he is entitled to relief on actual innocence grounds. (Id. at 9.)
DISCUSSION

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The writ of habeas corpus affords relief to persons in custody in violation of the

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Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3) (2006).

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Review of Petitions for Habeas Corpus is governed by the Antiterrorism and Effective

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Death Penalty Act of 1996 (“AEDPA”). Id. § 2244 et seq. (2006). Under AEDPA, the

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Court may not grant habeas relief unless it concludes that the state’s adjudication of the

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claim (1) resulted in a decision that was contrary to, or involved an unreasonable

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application of, clearly established federal law, as determined by the Supreme Court of the

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United States, or (2) resulted in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in the state court proceeding.

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28 U.S.C. § 2254(d)(1)–(2). Nor may the Court grant habeas relief under AEDPA unless

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the petitioner has exhausted his claim in state court. 28 U.S.C. § 2254(b)(1)(A); see

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O’Sullivan v. Boerckel, 526 U.S. 838, 839 (1999).

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Judge Burns found that Ground One was procedurally defaulted and that Ground

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Four failed to state a basis for federal habeas relief. In addition, she found that Grounds

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Two and Three failed on the merits. (Doc. 22 at 14.) Petitioner objected to Judge Burns’s

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R&R on Grounds One through Three, but conceded that he was not making “a

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substantive claim of actual innocence,” but rather seeking to use actual innocence as a

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gateway to demonstrate the miscarriage of justice. (Doc. 25 at 20.) Moreover, he objected

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to Judge Burns’ R&R on only three theories of ineffective assistance of counsel, one

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which he agrees was never previously introduced. (Id. at 15.) Thus, the Court addresses

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the habeas petition only on Grounds One through Three, and on Ground Three only those

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grounds raised in Petitioner’s Objection.

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I.

Ground One: Lack of Subject Matter Jurisdiction

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A.

Legal Standard

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A petitioner is required to exhaust his claim in state court before bringing it in a

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federal habeas action. 28 U.S.C. § 2254(b)(1)(A). In this context, exhaustion requires a

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petitioner to “give the state courts an opportunity to act on his claims before he presents

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those claims to a federal court in a habeas petition.” O’Sullivan, 526 U.S. at 842. In

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Arizona, a petitioner is required to “fairly present” all claims he seeks to assert in his

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habeas proceeding first to the Arizona Court of Appeals either through direct appeal or

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the State’s post-conviction relief proceedings. Swoopes v. Sublett, 196 F.3d 1008, 1010

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(9th Cir. 1999). For a petitioner to have fairly presented his claims to the appropriate state

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courts, he must have described the operative facts and the federal legal theory that

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support his specific claim. See Baldwin v. Reese, 541 U.S. 27, 29, 31 (2004); Scott v.

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Schriro, 567 F.3d 573, 582 (9th Cir. 2009) (per curiam) (“Full and fair presentation . . .

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requires a petitioner to present the substance of his claim to the state courts, including a

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reference to a federal constitutional guarantee and a statement of facts that entitle the

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petitioner to relief.”), cert. denied sub nom Ryan v. Scott, 558 U.S. 1091 (2009).

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If a petitioner has failed to “fairly present” his federal claims to the state courts—

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and has therefore failed to fulfill AEDPA’s exhaustion requirement—the habeas court

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must determine whether state remedies are still available for the petitioner; if not, those

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claims are procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 735 n.1

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(1991) (“[I]f the petitioner failed to exhaust state remedies and the court to which the

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petitioner would be required to present his claims in order to meet the exhaustion

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requirement would now find the claims procedurally barred[,] . . . there is a procedural

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default for purposes of federal habeas . . . .”). A habeas court will consider claims that the

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petitioner has procedurally defaulted only if he can demonstrate (1) cause for his failure

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to comply with state rules and actual prejudice or, in the very rare instance, (2) a

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miscarriage of justice. See Dretke v. Haley, 541 U.S. 386, 388–89 (2004). “Cause” means

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“some objective factor external to the defense impeded counsel’s efforts to comply with

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the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). It can also

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include a claim that petitioner’s counsel provided ineffective assistance that caused the

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default. Id. at 488–89. But any ineffective assistance of counsel claim must have been

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properly presented itself to the state courts for it to serve as cause to excuse a procedural

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default. Id. Even if a petitioner demonstrates cause for a procedural default, he must

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nevertheless show “prejudice” or that the supposed constitutional error “worked to his

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actual and substantial disadvantage, infecting his entire trial with error of constitutional

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dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). Finally, a miscarriage of

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justice is shorthand for a situation “where a constitutional violation has ‘probably

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resulted’ in the conviction of one who is ‘actually innocent’ of the substantive offense.”

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Dretke, 541 U.S. at 393 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).

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B.

Application

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As summarized above, Petitioner did not raise his argument regarding lack of

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subject matter jurisdiction due to a defective indictment either on direct appeal or in his

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first petition for post-conviction relief. Rather, he raised it for the first time in his second

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petition for post-conviction relief in Pima County Superior Court, which was rejected for

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lack of jurisdiction, and again in an application to the Supreme Court. Petitioner asserts

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that his claim for lack of subject matter jurisdiction is not subject to the procedural

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default bar. He first argues that procedural default does not apply to claims of

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“fundamental constitutional error.” (Doc. 25 at 1.) Secondly, he claims that he did

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adequately exhaust this claim in state court by filing petitions for post-conviction relief in

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Pima County Superior Court and with the Arizona Supreme Court. (Id. at 6.)

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“Fundamental constitutional error” is a ground for circumventing the requirement

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of exhaustion in California, but no similar mechanism exists under Arizona law. See Park

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v. California, 202 F.3d 1146, 1152 (9th Cir. 2000). Thus, Plaintiff’s first argument

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against procedural default fails.

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Petitioner’s second argument is similarly unsuccessful. He asserts that the Pima

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County Superior Court had jurisdiction over his petition and that the Office of the Clerk

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violated Petitioner’s fundamental rights when it returned his petition without docketing it

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or assigning it a case number. He asserts that the Pima County Superior Court had

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jurisdiction over his petition pursuant to the Arizona Constitution, which states that “[t]he

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superior court or any judge thereof may issue writs of mandamus, quo warranto, review,

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certiorari, prohibition, and writs of habeas corpus on petition.” Ariz. Const. Art. VI § 18.

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However, Petitioner overlooks the Arizona Rules of Criminal Procedure, which state that

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a proceeding for post-conviction relief is commenced only when a notice is filed “with

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the court in which the conviction occurred.” Ariz. R. Crim. P. 32.4. Petitioner does not

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dispute that his conviction took place in Maricopa County Superior Court. Thus, for his

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petition to commence he would have had to file it in Maricopa rather than Pima County

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Superior Court. Similarly, Petitioner’s action of filing an application directly with the

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Arizona Supreme Court was improper, as Rule 32.3 requires the claim for post-

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conviction relief to be first presented to the superior court. Petitioner raises no other

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argument that he properly exhausted his subject matter jurisdiction claim. Thus, this

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claim is procedurally defaulted unless he can show cause for his failure to exhaust his

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claim or that a fundamental miscarriage of justice would result from barring it.

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Cause, as discussed above, may be satisfied by a showing of ineffective assistance

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of counsel. Petitioner must show that he was prevented from complying with the

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procedural rule by the ineffective assistance. However, none of Petitioner’s claims of

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ineffective assistance relate to his failure to raise the subject matter jurisdiction issue in

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an earlier post-conviction proceeding. (See Doc. 1 at 7.) Thus, Petitioner has not shown

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that it was his counsel’s deficient performance that prevented him from fairly presenting

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his subject matter jurisdiction claim to state court. Petitioner does not raise any other

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claims or facts that could constitute cause.

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Petitioner does assert that the procedural errors and violations raised in his petition

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amount to a miscarriage of justice. (Doc. 25 at 19.) A successful miscarriage of justice

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claim requires a showing that the constitutional violations “‘probably resulted’ in the

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conviction of one who is ‘actually innocent’ of the substantive offense.” Dretke, 541 U.S.

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at 393. That, in turn, requires presentation of new evidence that “it is more likely than not

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that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.”

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Schlup v. Delo, 513 U.S. 298, 327 (1995). Here, Petitioner has provided no new evidence.

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The closest Petitioner comes to any evidence of actual innocence is a statement that

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“[t]here was a complete absence of any medical or scientific (DNA) evidence in this

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case.” (Doc. 1 at 9.) This is insufficient to make a showing of “miscarriage of justice.” As

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noted above, Petitioner concedes that he is not seeking the substantive ground of actual

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innocence, but rather a claim that the fundamental errors in his trial caused a miscarriage

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of justice. (Doc. 25 at 20–21.) However, procedural errors like the ones raised by Plaintiff

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are insufficient to make that showing. Only new evidence that shows that no reasonable

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juror would have found Petitioner guilty beyond a reasonable doubt will suffice. In the

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absence of such evidence, the Petitioner’s claim on his First Ground for relief is denied.

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II.

Ground Two: Ineffective Assistance of Counsel

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A.

Legal Standard

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The “clearly established” Supreme Court law governing claims of ineffective

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assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). To establish

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ineffective assistance, petitioner must show both that his counsel’s performance was

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deficient and that the deficient performance prejudiced his defense. Id. at 687. To be

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deficient, counsel’s performance must fall “outside the wide range of professionally

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competent assistance” demanded in criminal cases. Id. at 690. When reviewing counsel’s

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performance, the court engages a strong presumption that counsel rendered adequate

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assistance and exercised reasonable professional judgment. Id. “A fair assessment of

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attorney performance requires that every effort be made to eliminate the distorting effects

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of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

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evaluate the conduct from counsel’s perspective at the time.” Id. at 689. Thus, review of

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counsel’s performance is “extremely limited.” Coleman v. Calderon, 150 F.3d 1105,

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1113 (9th Cir. 1998), rev’d on other grounds, 525 U.S. 141 (1998). Acts or omissions

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that “might be considered sound trial strategy” do not constitute ineffective assistance of

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counsel. Strickland, 466 U.S. at 689.

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Petitioner must also establish that he suffered prejudice as a result of counsel’s

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deficient performance. Id. at 691–92; United States v. Gonzalez-Lopez, 548 U.S. 140, 147

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(2006) (stating that “a violation of the Sixth Amendment right to effective representation

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is not ‘complete’ until the defendant is prejudiced”). To show prejudice, petitioner must

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demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the

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result of the proceeding would have been different. A reasonable probability is a

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probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

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694; Hart v. Gomez, 174 F.3d 1067, 1069 (9th Cir. 1999); Ortiz v. Stewart, 149 F.3d 923,

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934 (9th Cir. 1998). Petitioner bears the burden of proving prejudice, and the mere

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possibility that he suffered prejudice is insufficient to satisfy Strickland’s prejudice

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prong. Cooper v. Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001). The court may not

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assume prejudice solely from counsel’s allegedly deficient performance. Jackson v.

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Calderon, 211 F.3d 1148, 1155 (9th Cir. 2000).

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On habeas review, the court must give “substantial weight” to the state court’s

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analysis of a claim of ineffective assistance. Dows v. Wood, 211 F.3d 480, 487 (9th Cir.

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2000). The petitioner must “do more than show that he would have satisfied Strickland’s

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test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is

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not enough to convince a federal habeas court that, in its independent judgment, the state-

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court decision applied Strickland incorrectly.” Bell v. Cone, 535 U.S. 685, 698–99 (2002)

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(internal citation omitted). He must instead show that the state court applied Strickland in

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an “objectively unreasonable manner.” Id.

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B.

Application

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As stated above, Petitioner listed seven grounds for finding ineffective assistance

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of counsel, (Doc. 1 at 7), but objected to the Magistrate Judge’s R&R on only three

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grounds, (Doc. 25 at 15–16.) Those grounds are: (1) trial counsel’s failure to “challenge[]

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or raise[] the issue of the Maricopa County Superior Court’s lack of subject matter

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jurisdiction,” (2) its failure to “challenge the trial court’s admission of evidence without

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first convening the required 404(c) hearing,” and (3) its failure to “request the trial court

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to grant the 609(b).” (Id.)

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Petitioner’s claim of ineffective assistance of counsel on the ground that counsel

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never challenged the Maricopa County Superior Court’s jurisdiction due to the defective

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indictment has not been previously raised. Though Petitioner raised ineffective assistance

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of counsel as a ground for relief in his November 2008 Rule 32 petition, he did not

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present failure to object to subject matter jurisdiction as one of the reasons counsel’s

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performance was deficient. (See Doc. 12-S.) His direct appeal, as summarized above, did

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not raise ineffective assistance of counsel at all. Petitioner does not argue in his Objection

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that he fairly presented this claim to state court, or that he has cause for his failure to do

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so. In addition, as discussed above, his argument that the alleged procedural error would

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result in a miscarriage of justice is without merit. Thus, Plaintiff has failed to exhaust his

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claim of ineffective assistance of counsel on the ground that counsel failed to object to

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the Maricopa County Superior Court’s lack of subject matter jurisdiction. He is thus

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barred from raising this claim on his federal habeas petition. 28 U.S.C. § 2254(b)(1)(A).

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Petitioner’s claim that counsel was ineffective for failing to challenge the

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admission of evidence without the proper balancing or findings required by Rules 404

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and 609 were raised in his first Rule 32 petition. (See id.) The state trial court reviewing

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his petition denied it summarily, adopting the reasons set forth in the State’s response to

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that petition, which stated that “[o]n direct appeal, the Arizona Court of Appeals

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addressed and rejected Petitioner’s substantive claims involving Rules 404 and 609, and

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found no error. Thus, Petition[er] cannot demonstrate a reasonable probability that the

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verdict might have been affected by this non-error.” (Doc. 12-T at 7.) The Court affords

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substantial weight to the trial court’s decision. Petitioner must show that the state court

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trial court applied Strickland in an “objectively unreasonable manner” to succeed on this

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claim. Bell, 535 U.S. at 699.

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Petitioner makes no argument that the trial court erred in its application of

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Strickland to his Rule 32 petition. His Objection merely restates his argument that

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counsel’s performance was deficient for failing to challenge the first trial court’s action

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without following “the established procedural rule.” (Doc. 25 at 16.) Moreover, as the

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Magistrate Judge noted in her R&R, the admission of Petitioner’s previous Alford plea

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was a reasonable tactical decision—counsel did not object to it coming in because

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Petitioner’s “primary defense was that [the victim’s] mother had used her knowledge of

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his prior child-molestation conviction to fabricate the current charges in an effort to

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coerce him into not leaving her and taking their children.” (Doc. 22 at 31.) As stated

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above, acts or omissions that “might be considered sound trial strategy” do not constitute

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ineffective assistance of counsel. Petitioner has thus failed to show that counsel’s

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performance fell “outside the wide range of professionally competent assistance.” The

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trial court reviewing his Rule 32 petition did not apply Strickland in a way that was

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objectively unreasonable or contrary to clearly established federal law. Petitioner’s claim

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on this ground fails.

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III.

Ground Three: Procedural Errors at Trial

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Petitioner’s third ground for relief is simply that “state errors denied a fair trial.”

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(Doc. 1 at 8.) Petitioner sets out several errors which he asserts resulted in violating his

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right to due process. (Id.) All are premised on the trial court’s use of Petitioner’s prior

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convictions without making specific findings as required by the Rules of Evidence. (Id.)

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Petitioner previously raised this claim in his direct appeal from his conviction. (Doc. 12-

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H at 8.) The Arizona Court of Appeals affirmed his conviction. (Doc. 12-K.) To succeed

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on his federal petition, Petitioner must show that the Court of Appeals decision either

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resulted in a decision that was contrary to, or involved an unreasonable application of,

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clearly established federal law, as determined by the Supreme Court of the United States,

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or resulted in a decision that was based on an unreasonable determination of the facts in

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light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1)–(2).

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The admission of evidence at a state trial can be the grounds for federal habeas

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relief only if the evidentiary ruling renders a trial unfair in violation of a petitioner’s due

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process rights. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). In turn, admission of

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evidence violates due process only when there are no permissible inferences that can be

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drawn from the evidence. Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).

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Here, the Arizona Court of Appeals rejected Petitioner’s argument that the admission of

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his prior convictions was unfair because Petitioner did not object to any of the evidence.

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(Doc. 12-K at ¶ 4.) The court noted that the admission of Petitioner’s previous Alford

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plea was part of his defense. (Id. at ¶ 5.) It also assumed that the trial court engaged in the

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proper Rule 609 balancing inquiry regarding Petitioner’s previous drug convictions in

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light of the fact that Davis never specifically asked for such an inquiry to be made on the

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record. (Id. at ¶ 7.) As noted by Judge Burns, the Supreme Court has never held that

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improper use of prior crimes evidence to show propensity would violate due process.

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Estelle, 502 U.S. at 75 n.5. Thus, there is no “clearly established law” that is clearly

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contrary to the Court of Appeals’ decision affirming Petitioner’s conviction.

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Petitioner argues that the admission of this evidence constituted “abuse of

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discretion, constitutional due process violations, fair trial violations and fundamental

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constitutional error.” (Doc. 25 at 15.) But the mere recitation of these assertions does not

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make them true. Petitioner has failed to show how this evidence violated his right to due

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process, particularly in light of the fact that he was given advance notice of the

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prosecution’s intent to use it at trial and nevertheless raised no objection. (Doc. 12-K at

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¶¶ 3–5.) Thus, the decision was not an “unreasonable determination of the facts in light of

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the evidence presented in the state court proceeding.”

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CONCLUSION

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Petitioner’s claims on Ground One and partially Ground Two are procedurally

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defaulted. Further, he has failed to show that his claims on Grounds Two and Three were

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either contrary to clearly established federal law or involved an unreasonable application

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of the law to the facts.

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IT IS THEREFORE ORDERED that Magistrate Judge Michelle Burns’s Report
and Recommendation (Doc. 22) is ACCEPTED.

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IT IS FURTHER ORDERED that Carl Dwight Davis’s Petition for Writ of

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Habeas Corpus (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE. The Clerk

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of Court is directed to enter judgment on this matter.

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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal is DENIED because Davis has not made a

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substantial showing of the denial of a constitutional right.
Dated this 10th day of September, 2013.

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