Terry v. Ryan et al

Filing 34

ORDER ACCEPTING 32 Report and Recommendation of the Magistrate Judge. IT IS THEREFORE ORDERED denying and dismissing with prejudice 1 Petition for Writ of Habeas Corpus. IT IS FURTHER ORDERED DENYING a certificate of appealability and leave to proceed in forma pauperis on appeal. Signed by Senior Judge Frederick J Martone on 8/12/13. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brandon Scott Terry,

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Petitioner,

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vs.

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Charles L. Ryan, et al.,
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Respondents.
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No. CV-12-0888-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’ response (doc. 13), first supplemental response (doc.

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20), and second supplemental response (doc. 28), petitioner’s reply to first supplemental

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response (doc. 24), and reply to second supplemental response (doc. 31). We also have

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before us the Report and Recommendation of the United States Magistrate Judge

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recommending that the petition for writ of habeas corpus be denied (doc. 32), and petitioner’s

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objections (doc. 33).

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I

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On November 4, 2008, petitioner was indicted in state court on one count of

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aggravated assault, a class 3 dangerous felony. The evidence indicated that following an

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argument, petitioner approached the victim while she was sitting in a parked car. Carrying

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two knives, petitioner is alleged to have repeatedly stabbed the victim’s car, slashed a tire and

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threatened to kill her. After a two-day trial, petitioner was convicted by a jury as charged.

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Petitioner, having had two prior felony convictions, was sentenced to a minimum term of

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11.25 years imprisonment.

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On April 27, 2012, petitioner filed the instant habeas petition, asserting six grounds

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for relief: (1) violation of his constitutional right to a fair trial when the victim was

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“coaching” witnesses; (2) violation of his constitutional right to a fair trial when the

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prosecutor impeached a defense witness with her prior statement to a 911 operator, although

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the operator was not available for cross-examination; (3) violation of federal due process

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when the trial court failed to inform petitioner of his rights under Boykin v. Alabama, 395

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U.S. 238 (1969); (4) ineffective assistance of counsel at trial, on direct appeal, and during

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post-conviction proceedings in violation of Sixth Amendment rights; (5) violation of federal

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due process when his mental competency was not evaluated; and (6) violation of federal due

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process because no black jurors served on his jury.
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We first agree with the Magistrate Judge’s conclusion that petitioner failed to properly

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exhaust grounds 1 and 3 through 6. In each case, petitioner failed to fairly present his federal

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claims to the Arizona Court of Appeals. These unexhausted claims are now procedurally

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defaulted. Therefore, petitioner may not obtain federal habeas relief on these claims absent

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a showing of cause and prejudice sufficient to excuse the default. Reed v. Ross, 468 U.S. 1,

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11, 104 S. Ct. 2901, 2908 (1984).

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Petitioner has raised ineffective assistance of counsel as cause to excuse his

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procedural default. After a thorough evaluation, the Magistrate Judge concluded that none

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of petitioner’s claims of ineffectiveness of counsel constitute cause. After de novo review

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of each of these claims, we also conclude that petitioner’s claims of ineffective assistance of

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counsel do not constitute cause to excuse his procedurally defaulted claims.

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Petitioner also asserts broad claims of actual innocence, but he makes no showing that

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“it is more likely than not that no reasonable juror would have convicted him in light of the

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new evidence” presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327, 115 S.
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Ct. 851, 867 (1995).

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We conclude that petitioner has failed to properly exhaust his state remedies on the

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claims presented in grounds 1 and 3 through 6, and these claims are now procedurally

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defaulted. We also conclude that petitioner has failed to demonstrate cause and prejudice or

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actual innocence to excuse the defaults. Therefore, we agree with the Magistrate Judge that

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these claims must be dismissed with prejudice.

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III

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The Magistrate Judge concluded that the only claim that was properly exhausted is

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the Confrontation Clause claim presented in ground 2. Petitioner argues that he was denied

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his right to a fair trial in violation of the Confrontation Clause when the trial court allowed

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a defense witness, petitioner’s girlfriend, to be impeached with her own prior statements to

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the 911 operator, although the 911 operator was not made available for cross-examination.

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Neither the 911 recording nor the statements by the 911 operator were offered at trial,

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and therefore are not at issue here. The witness was only asked about her own statements to

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the 911 operator. This is not hearsay. The witness was fully competent to testify as to her

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own statements without the admission of the 911 transcript or the availability of the 911

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operator. We agree with the Magistrate Judge that these statements were not hearsay subject

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to the Confrontation Clause. Therefore, ground 2 is without merit and is denied.

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IV

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After de novo consideration of each of the claims presented in the habeas petition, we

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accept the recommended decision of the United States Magistrate Judge pursuant to Rule

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8(b), Rules Governing § 2254 Cases. Therefore, IT IS ORDERED DENYING and

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DISMISSING WITH PREJUDICE the petition for writ of habeas corpus (doc. 1).

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Because petitioner has not made a substantial showing of the denial of a constitutional

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right and because the dismissal of the petition is justified by a plain procedural bar and jurists

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of reason would not find the procedural ruling debatable, 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 12th day of August, 2013.

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