Nimer v. Ryan et al

Filing 36

ORDER the Report and Recommendation (Doc. 29 ) is ADOPTED IN FULL and the Petition for Writ of Habeas Corpus (Doc. 1 ) is DENIED. IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Senior Judge Roslyn O Silver on 9/26/2014. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Alan Troy Nimer,

No. CV-12-01103-PHX-ROS
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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Magistrate Judge Lawrence O. Anderson issued a Report and Recommendation

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(“R&R”) recommending the petition for writ of habeas corpus be denied. Petitioner Alan

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Troy Nimer filed timely objections. For the following reasons, the R&R will be adopted

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in full.

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I. Standard of Review for R&R

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). The district court

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must review de novo the portions to which an objection is made. Id. The district court

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need not, however, review the portions to which no objection is made. See Schmidt v.

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Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (“[D]e novo review of factual and

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legal issues is required if objections are made, but not otherwise.”) (quotation marks and

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citation omitted).

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II. Factual Background

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Petitioner filed lengthy objections to the R&R but those objections do not, in large

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part, object to the factual background contained in the R&R. Thus, the Court will largely

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accept the factual background as recounted in the R&R. That background, in brief, is as

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follows.

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In February 2005, Petitioner was contacted by Phoenix Police Officer David

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Murphy based on the license plate of the car Petitioner was driving being suspended for

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lack of insurance. During that contact, Officer Murphy saw two open containers of

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alcohol in Petitioner’s vehicle. When Officer Murphy retrieved the open containers, he

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noticed a pistol. Petitioner was arrested, read his Miranda rights, and transported to the

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police station.

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Petitioner was charged with Misconduct Involving Weapons based on possessing

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the pistol while Arizona law made him a prohibited possessor. During trial, Officer

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Murphy testified he was following Petitioner’s vehicle in traffic when he checked the

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license plate. (Doc. 27-7 at 20). That prompted him to make a traffic stop of Petitioner’s

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vehicle. Officer Murphy also testified regarding various statements allegedly made by

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Petitioner both before and after he read Petitioner his Miranda rights. Officer Murphy

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confirmed his version of events on cross-examination. (Doc. 28 at 18).

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When Petitioner testified, he explained that he had parked his car, visited a store,

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and was back in his car when Officer Murphy pulled up behind the vehicle. (Doc. 28-2 at

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1). Petitioner also denied having made the statements Officer Murphy had recounted.

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The state called Officer Murphy in rebuttal and Officer Murphy again testified regarding

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the sequence of events leading to the traffic stop and statements by Petitioner. (Doc. 28-2

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at 7-15). The conflicting versions of the traffic stop were not mentioned during closing

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argument but the statements Petitioner allegedly made were mentioned. (Doc. 28-2 at

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39). Petitioner was convicted and sentenced to the presumptive term of ten years.

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Petitioner pursued a direct appeal as well as state post-conviction proceedings.

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Petitioner filed this federal habeas petition in May 2012. In responding to the petition,

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Respondents construed the petition as presenting four claims: 1) ineffective assistance of

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counsel (“IAC”) based on trial counsel’s failure to call certain witnesses; 2) IAC based on

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the failure to file a motion to suppress physical evidence; 3) IAC based on the failure to

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file a motion to suppress statements; 4) and a “due process” violation based on the state

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court’s failure to accept a filing in connection with the state post-conviction proceedings.

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(Doc. 26). Respondents conceded claims one, two, and three were properly presented but

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argued the fourth claim was not cognizable on federal habeas.

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III. Analysis of Petitioner’s Claims

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Having reviewed the R&R and Petitioner’s objections, the Magistrate Judge

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correctly concluded three of Petitioner’s claims fail on their merits while the fourth is not

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cognizable on federal habeas review.

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A. IAC Regarding Witnesses

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Petitioner’s first claim alleges IAC based on his trial counsel’s failure to

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investigate two witnesses “who Petitioner claims would have provided exculpatory

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testimony regarding the traffic stop by Officer Murphy.” (Doc. 29 at 9). Those witnesses

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were in the cell phone store Petitioner allegedly visited immediately before his contact

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with Officer Murphy. According to Petitioner, these witnesses would have corroborated

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his version of events that Officer Murphy did not initiate a traffic stop of his vehicle.

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Instead, Officer Murphy pulled into the parking lot after Petitioner had already arrived.

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According to Petitioner, calling these two witnesses “would have provided exculpatory

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evidence to ensure a fair trial and a complete defense.” (Doc. 32 at 10).

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In general, to prevail on an IAC claim “a petitioner must show (1) that counsel’s

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performance was deficient, and (2) that the deficient performance prejudiced the

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defense.” Woods v. Sinclair, 2014 WL 4179917 (9th Cir. Aug. 25, 2014) (citation and

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internal quotation marks omitted). When, as in this case, a federal court is assessing an

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IAC claim the state court rejected, the federal court must ask “whether there is any

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reasonable argument that counsel satisfied [the IAC] deferential standard.” Harrington v.

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Richter, 131 S. Ct. 770, 788 (2011). This creates a “doubly deferential” standard that

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“gives both the state court and the defense attorney the benefit of the doubt.” Burt v.

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Titlow, 134 S. Ct. 10, 13 (2013).

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The Magistrate Judge explained this standard and then explained he would assume

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deficient performance and proceed directly to the prejudice prong. (Doc. 29 at 11). This

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Court will do the same. This means the majority of Petitioner’s objections addressing the

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deficient performance prong are irrelevant. As for Petitioner’s objections regarding the

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prejudice prong, they are not convincing. The Magistrate Judge correctly explained

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“Petitioner has not demonstrated a reasonable probability that, but for counsel’s failure to

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call the cell phone store employees as witnesses, the result of the proceeding would have

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been different.”

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testimony and the testimony the witnesses allegedly would have offered may have

(Doc. 29 at 12).

The inconsistencies between Officer Murphy’s

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undercut Officer Murphy’s credibility.

But the state court could have reasonably

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concluded the result of the proceeding would have been the same even if the witnesses

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had been called because the uncalled witnesses would have testified about the

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circumstances leading up to the encounter between Petitioner and Officer Murphy. They

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would not have testified about Petitioner’s statements or what Officer Murphy found in

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the vehicle. In other words, the witnesses would not have changed the portions of Officer

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Murphy’s testimony that directly supported Petitioner’s guilt. The state court reasonably

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could have concluded this IAC claim failed. Therefore, Petitioner’s objections regarding

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his first claim will be overruled.

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B. IAC Regarding Filing of Motion to Suppress

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Petitioner’s next claim alleges IAC based on counsel’s failure to file a motion to

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suppress the physical evidence seized from his vehicle. The Magistrate Judge again

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assumed deficient performance and concluded “Petitioner has not demonstrated that a

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motion to suppress . . . would have been successful.” (Doc. 29 at 14). Petitioner’s

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objections again are focused on the deficient performance prong, making them irrelevant.

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To the extent the objections attack the conclusion regarding the prejudice prong, they are

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not convincing.

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Petitioner appears to believe that if his defense counsel had interviewed the two

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witnesses, she would have had grounds to file a motion to suppress. But even as

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described by Petitioner, the witnesses’ testimony would not have made Officer Murphy’s

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contact with Petitioner unlawful. The witnesses’ testimony had nothing to do with the

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factual basis for Officer Murphy speaking with Petitioner (i.e., the expired license plate).

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Thus, there does not appear to be any plausible basis on which a motion to suppress could

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have been successful. Therefore, the state court reasonably could have concluded this

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IAC claim failed and Petitioner’s objections regarding this claim will be overruled.

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C. IAC Regarding Miranda Violation

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Petitioner’s third IAC claim involves his counsel’s failure to file a motion seeking

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to suppress statements he allegedly made before being read his Miranda rights. The

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Magistrate Judge again presumed deficient performance and looked to prejudice. As

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with the previous two claims, Petitioner’s objections are focused on the deficient

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performance prong. But Petitioner does present some objections regarding the prejudice

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prong. Having reviewed the record, the Magistrate Judge’s analysis was correct.

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Petitioner has not shown that if his counsel had filed a motion to suppress, it

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would have been granted.

The testimony at trial established no Miranda violation

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occurred because Petitioner’s pre-Miranda statement was not the result of an

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interrogation and his post-Miranda statements were admissible. Moreover, Petitioner has

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not established the result would have been different even if his counsel had filed a motion

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and the motion had been granted because the conviction did not depend upon Petitioner’s

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statements. The evidence was sufficient to support a conviction even if the statements

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had been excluded. Accordingly, the state court reasonably could have concluded this

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IAC claim failed. Petitioner’s objections regarding the third IAC claim will be overruled.

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D. Petitioner’s Due Process Claim

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Petitioner’s fourth claim is based on his belief that the state court mishandled a

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compact disc he attempted to submit in support of his petition for post-conviction relief.

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The compact disc contained audio recordings of interview of the two witnesses from the

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cell phone store. Petitioner believes the mishandling by the state courts violated “his

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constitutional due process rights.” (Doc. 32 at 30). The Magistrate Judge rejected this

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claim as non-cognizable on federal habeas. Plaintiff objects to that conclusion but the

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basis for his objections is not clear. Having reviewed the petition, the R&R, and the

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objections, the Magistrate Judge correctly concluded the claim was not cognizable.

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The mishandling of the compact disc was, at most, an error in the state post-

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conviction proceedings. Federal habeas is not available to redress such an error. Franzen

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v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (“[P]etition alleging errors in the state post-

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conviction review process is not addressable through habeas corpus proceedings.”).

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Therefore, the objections regarding the due process claim will be overruled.

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Accordingly,
IT IS ORDERED the Report and Recommendation (Doc. 29) is ADOPTED IN
FULL and the Petition for Writ of Habeas Corpus (Doc. 1) is DENIED.

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

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in forma pauperis on appeal are DENIED because Petitioner has not made a substantial

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showing of the denial of a constitutional right.

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Dated this 26th day of September, 2014.

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Honorable Roslyn O. Silver
Senior United States District Judge

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