Natzel v. Ryan et al

Filing 24

REPORT AND RECOMMENDATION recommending 1 Petition for Writ of Habeas Corpus (State/2254) filed by Eric Joseph Natzel be denied and dismissed with prejudice. IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Magistrate Judge Michelle H Burns on 1/10/14. (LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Eric Joseph Natzel,
Petitioner,

10
11

vs.

12

Charles L. Ryan, et al.,
Respondents.

13
14
15

)
)
)
)
)
)
)
)
)
)
)

CIV 12-1889-PHX-SRB (MHB)
REPORT AND RECOMMENDATION

TO THE HONORABLE SUSAN R. BOLTON, UNITED STATES DISTRICT JUDGE:

16

Petitioner Eric Joseph Natzel, who is confined in the Arizona State Prison Complex-

17

Lewis, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254

18

and a memorandum in support thereof (Docs. 1, 2). On April 12, 2013, Respondents filed

19

their Answer (Doc. 12). On September 19, 2013, attorney Guy Floyd Brown filed a Notice

20

of Appearance on behalf of Petitioner indicating that he has been retained to represent

21

Petitioner in all further proceedings (Doc. 17). Petitioner, through counsel, filed his Reply

22

to Respondents’ Answer on November 22, 2013 (Doc. 23).
BACKGROUND1

23
24
25
26
27

The Arizona Court of Appeals set forth the following facts in its Memorandum
Decision affirming Petitioner’s convictions and sentences on direct appeal:
The victim of the offenses was [Petitioner]’s thirty-four month old daughter.
[Petitioner]’s wife, the victim’s mother (“Mother”), went to work at 1:00 p.m.
on the date of the incident while [Petitioner] stayed home with the victim.

28
1

Unless otherwise noted, the following facts are derived from the Exh.s submitted
with Doc. 12 – Respondents’ Answer.

1
2
3
4
5

Mother called home shortly after 5:00 p.m. and spoke with [Petitioner], who
was playing videogames. Eventually, Mother asked to speak to the victim.
[Petitioner] replied that he did not know where the victim was and he could not
find her. Because the victim had a toy box that Mother had recently seen her
sit in while playing, Mother suggested that [Petitioner] look in the toy box.
When [Petitioner] returned to the phone, he told Mother to come home because
the victim was choking and then hung up. [Petitioner] later told law
enforcement personnel he found the victim inside the toy box, face down and
unresponsive. It was later determined the victim died of asphyxiation while
trapped inside the toy box.

6
7
8
9
10
11
12
13
14
15
16

The interior of the toy box measured nineteen inches long, thirteen inches wide
and thirteen inches tall. Tests using the victim’s body and the toy box indicated
she would barely fit in the box with the lid closed. She had to be forced into
a fetal position with her arms and legs curled underneath her and her head
twisted forward. There was testimony it was a “very, very snug, tight fit to get
her into the box,” and that the victim had to be “squeezed” into the box in
order to close and latch the lid. Tests conducted on the box revealed it was
possible for the lid to become latched if it fell closed while the box was empty
and the latches were in a specific position. If the lid became latched with the
victim inside, the victim would not have been able to push the lid open.
Before the incident, the victim had no injuries other than two small bruises on
her shins and a slight bump on her head from where she bumped her head the
previous night. At the time of her autopsy, the victim had twenty-one groups
of bruises and/or abrasions representing several dozen individual injuries, the
majority of which were minutes to hours old at the time of the victim’s death.
None of these injuries were life-threatening. Some of the victim’s injuries were
attributed to her struggling to get out of the toy box. But additional injuries to
the victim’s head and back, which were “nonaccidental,” were inconsistent
with injuries sustained while struggling in the box, possibly caused by the use
of a blunt object or a human hand.

17
18
19
20
21
22
23
24
25

[Petitioner] was charged with two counts of child abuse pursuant to Arizona
Revised Statutes (“A.R.S.”) section 13-3623(A) and (B). To prove count one,
the State had to prove that in circumstances likely to produce death or serious
physical injury, [Petitioner] caused the victim to suffer physical injury or,
having the care or custody of the victim, caused or permitted the person or
health of the victim to be injured or caused or permitted the victim to be placed
in a situation where the person or health of the victim was endangered, and that
he did so intentionally or knowingly. A.R.S. § 13-3623(A)(1). ... To prove
count two, the State had to prove that in circumstances other than those likely
to produce death or serious physical injury to the victim, [Petitioner] caused
the victim to suffer physical injury or abuse or, having the care or custody of
the victim, caused or permitted the person or health of the victim to be injured
or caused or permitted the victim to be placed in a situation where the person
or health of the victim was endangered, and that he did so intentionally or
knowingly. A.R.S. § 13-3623(B)(1). ... Count one was charged as a dangerous
crime against children because the victim was under the age of fifteen. See
A.R.S. § 13-604.01(M)(1)(h).

26
(Exh. D.)
27
28
-2-

1

On February 7, 2008, Petitioner was convicted on one count each of: (1) child abuse

2

under circumstances to produce death or serious physical injury, a class felony and a

3

dangerous crime against children (Count 1); and (2) child abuse under circumstances likely

4

to cause the victim to suffer physical injury or abuse other than those likely to produce death

5

or serious physical injury, a class 4 felony and domestic violence offense (Count 2). (Exhs.

6

A, B.) On June 20, 2008, the state trial court sentenced Petitioner to an aggravated term of

7

24 years’ imprisonment on Count 1, and the presumptive term of 2½ years’ imprisonment

8

on Count 2. (Exh. C.) The trial court ordered that the sentences be served consecutively. (Id.)

9

Petitioner appealed, arguing that the trial court erred by: (1) imposing an aggravated

10

sentence on Count 1; (2) ordering that the sentences be served consecutively; (3) admitting

11

testimony regarding the “uncharged crime of homicide;” (4) admitting photographs of the

12

deceased victim; and (5) instructing the jury regarding the burden of proof pursuant to State

13

v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995). (Exh. D.)

14

The Arizona Court of Appeals affirmed the convictions and sentences imposed. (Id.)

15

The court held that: (1) the trial court properly imposed an aggravated sentence; (2) because

16

the two crimes involved separate acts, the imposition of consecutive sentences was proper;

17

(3) neither the “homicide” testimony nor the admission of the autopsy photographs were

18

improper; and (4) the jury was properly instructed on its burden of proof. (Id.)

19

On November 5, 2009, Petitioner filed a timely notice of post-conviction relief. (Exh.

20

E.) Thereafter, Petitioner filed a petition for post-conviction relief raising the following

21

claims: (1) trial counsel rendered ineffective assistance by, (i) “prosecuting [Petitioner],” by

22

presenting expert testimony from a witness that had previously been noticed by the state, (ii)

23

failing to request a lesser-included offense instruction on Count 1, (iii) not objecting to the

24

qualifications of the state’s expert, and (iv) failing to “investigate the state’s ‘medical-

25

opinion-only’ evidence and obtain readily available defense experts to testify [on his

26

behalf];” and (2) he was denied a fair trial “when he was convicted upon tainted expert

27

testimony that had no scientific support,” as shown by newly presented evidence. (Exh. F.)

28
-3-

1

In response, the state argued that: (1) although the defense expert witness had indeed

2

been originally noticed as a witness for the state, her exculpatory testimony ultimately

3

supported Petitioner’s innocence and thus, the decision to call her as a defense witness

4

constituted reasonable trial strategy; (2) any failure to challenge the qualifications of the state

5

expert did not constitute deficient performance because any such challenge would have been

6

futile; (3) the decision not to request a lesser-included jury instruction was reasonable trial

7

strategy when considering Petitioner’s all-or-nothing defense; (4) any additional expert

8

testimony would have been duplicative of the evidence presented at trial; and (5) Petitioner’s

9

alleged new evidence was immaterial because, (i) its purpose was solely to impeach the

10

state’s expert witness, an insufficient basis on which to overturn the verdict, (ii) it was

11

cumulative and thus, would not have changed the outcome of the trial, and (iii) it did not

12

constitute newly discovered because it could have been discovered during trial with the

13

exercise of due diligence. (Exh. G.)

14
15

On April 21, 2011, the state trial court dismissed the petition for post-conviction relief
“[f]or the reasons stated in the State’s written response.” (Exh. H.)

16

Petitioner thereafter filed a petition for review in the Arizona Court of Appeals

17

arguing that the state post-conviction court erred by: (1) failing to review Petitioner’s reply

18

brief; (2) dismissing Petitioner’s lesser-included jury instruction claim; (3) applying a

19

repealed version of a state court rule; and (4) dismissing Petitioner’s ineffective assistance

20

and new evidence claims. (Exh. I.)

21

On May 2, 2012, the Arizona Court of Appeals denied relief. (Exh. J.) The court

22

reasoned that: (1) it could be inferred from the record that the trial court properly reviewed

23

Petitioner’s reply prior to issuing its decision; (2) the trial court properly considered and

24

rejected Petitioner’s ineffective assistance claim regarding the failure to request a lesser-

25

included instruction; (3) nothing in the record supported a finding that the trial court relied

26

on an outdated standard in denying Petitioner’s claims; and (4) Petitioner had failed to meet

27

his burden of establishing that the trial court abused its discretion in denying relief. (Id.)

28
-4-

1

On September 7, 2012, Petitioner filed a pro se Petition for Writ of Habeas Corpus

2

and memorandum in support thereof. (Docs. 1, 2.) Petitioner raises the following grounds for

3

relief: (1) trial counsel rendered ineffective assistance by presenting expert testimony from

4

a witness that had been previously noticed by the State; (2) trial counsel rendered ineffective

5

assistance by failing to request a lesser-included offense instruction regarding Count 1; (3)

6

the trial court erred in failing to preclude State expert testimony pursuant to Rule 702 of the

7

Arizona Rules of Evidence; (4) Petitioner was denied a fair trial because the State experts’

8

medical opinions were unreliable. (Id.)

9
10

Respondents filed their Answer on April 12, 2013, and Petitioner, through counsel,
filed a Reply to Respondents’ Answer on November 22, 2013. (Docs. 12, 23).
DISCUSSION

11
12

In their Answer, Respondents contend that: Ground Three fails to state a basis for

13

federal habeas relief or, alternatively, is procedurally defaulted because Petitioner did not

14

present the claim to the state courts; Ground Two is procedurally defaulted because the

15

Arizona Court of Appeals applied a procedural bar in dismissing the claim; and Grounds

16

One, Two, and Four fail on the merits. (Doc. 12.) In his Reply, Petitioner withdraws his

17

claims asserted in Grounds One, Three, and Four of his habeas petition. (Doc. 23.) Thus,

18

having reviewed the record and the arguments of the parties set forth in their briefing, the

19

Court will recommend that Grounds One, Three, and Four of Petitioner’s habeas petition be

20

denied and dismissed, and will address the merits of Ground Two below.

21

Pursuant to the AEDPA2, a federal court “shall not” grant habeas relief with respect

22

to “any claim that was adjudicated on the merits in State court proceedings” unless the state

23

court decision was (1) contrary to, or an unreasonable application of, clearly established

24

federal law as determined by the United States Supreme Court; or (2) based on an

25

unreasonable determination of the facts in light of the evidence presented in the state court

26

proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000)

27
28

2

Antiterrorism and Effective Death Penalty Act of 1996.
-5-

1

(O’Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard

2

of review). “When applying these standards, the federal court should review the ‘last

3

reasoned decision’ by a state court ... .” Robinson, 360 F.3d at 1055.

4

A state court’s decision is “contrary to” clearly established precedent if (1) “the state

5

court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,”

6

or (2) “if the state court confronts a set of facts that are materially indistinguishable from a

7

decision of [the Supreme Court] and nevertheless arrives at a result different from [its]

8

precedent.” Williams, 529 U.S. at 404-05. “A state court’s decision can involve an

9

‘unreasonable application’ of Federal law if it either 1) correctly identifies the governing rule

10

but then applies it to a new set of facts in a way that is objectively unreasonable, or 2)

11

extends or fails to extend a clearly established legal principle to a new context in a way that

12

is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).

13

In Ground Two, Petitioner claims that his trial counsel rendered ineffective assistance

14

by failing to request a lesser-included offense instruction as to Count 1. (Docs. 1, 2.)

15

Petitioner states that “if evidence was put forth to show that the toy box entrapment and

16

asphyxiation was not done intentionally, but instead the result of reckless or negligent

17

conduct ... then the jury should have been instructed under A.R.S. § 13-3623(A)(2)(3).”

18

(Doc. 2.) Petitioner continues stating that “failing to investigate this noise from the daughters

19

bedroom, could be subjectively interpreted by the jury as either reckless (A)(2)(id) or

20

negligent (A)(3) supervision ... .” (Doc. 2.) Further, in his reply, Petitioner contends, “[t]hese

21

facts clearly entitle Petitioner to a new trial, because the deliberate election by an attorney

22

to engage — either mistakenly or intentionally — in actions that violate and contradict the

23

established goals of the representation constitute ineffective assistance of counsel. That is,

24

deficient performance and prejudice, which is demonstrated by Petitioner receiving a greater

25

sentence than possible under the lesser included negligent/reckless offense.” (Doc. 23.)

26

The two-prong test for establishing ineffective assistance of counsel was established

27

by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail

28

on an ineffective assistance claim, a convicted defendant must show (1) that counsel’s
-6-

1

representation fell below an objective standard of reasonableness, and (2) that there is a

2

reasonable probability that, but for counsel’s unprofessional errors, the result of the

3

proceeding would have been different. See id. at 687-88.

4

Regarding the performance prong, a reviewing court engages a strong presumption

5

that counsel rendered adequate assistance, and exercised reasonable professional judgment

6

in making decisions. See id. at 690. “[A] fair assessment of attorney performance requires

7

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

8

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

9

perspective at the time.” Bonin v. Calderon, 59 F.3d 815, 833 (9th Cir. 1995) (quoting

10

Strickland, 466 U.S. at 689). Moreover, review of counsel’s performance under Strickland

11

is “extremely limited”: “The test has nothing to do with what the best lawyers would have

12

done. Nor is the test even what most good lawyers would have done. We ask only whether

13

some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel

14

acted at trial.” Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir.), judgment rev’d on other

15

grounds, 525 U.S. 141 (1998). Thus, a court “must judge the reasonableness of counsel’s

16

challenged conduct on the facts of the particular case, viewed as of the time of counsel’s

17

conduct.” Strickland, 466 U.S. at 690.

18

If the prisoner is able to satisfy the performance prong, he must also establish

19

prejudice. See id. at 691-92; see also Smith v. Robbins, 528 U.S. 259, 285 (2000) (burden

20

is on defendant to show prejudice). To establish prejudice, a prisoner must demonstrate a

21

“reasonable probability that, but for counsel’s unprofessional errors, the result of the

22

proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable

23

probability” is “a probability sufficient to undermine confidence in the outcome.” Id. A court

24

need not determine whether counsel’s performance was deficient before examining whether

25

prejudice resulted from the alleged deficiencies. See Robbins, 528 U.S. at 286 n.14. “If it is

26

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

27

which we expect will often be so, that course should be followed.” Id. (quoting Strickland,

28

466 U.S. at 697).
-7-

1
2

In reviewing a state court’s resolution of an ineffective assistance of counsel claim,
the Court considers whether the state court applied Strickland unreasonably:

6

For [a petitioner] to succeed [on an ineffective assistance of counsel claim], ...
he must do more than show that he would have satisfied Strickland’s test if his
claim were being analyzed in the first instance, because under § 2254(d)(1),
it is not enough to convince a federal habeas court that, in its independent
judgment, the state-court decision applied Strickland incorrectly. Rather, he
must show that the [state court] applied Strickland to the facts of his case in an
objectively unreasonable manner.

7

Bell v. Cone, 535 U.S. 685, 698-99 (2002) (citations omitted); see also Woodford v.

8

Visciotti, 537 U.S. 19, 24-25 (2002) (“Under § 2254(d)’s ‘unreasonable application’ clause,

9

a federal habeas court may not issue the writ simply because that court concludes in its

10

independent judgment that the state-court decision applied Strickland incorrectly. Rather, it

11

is the habeas applicant’s burden to show that the state court applied Strickland to the facts

12

of his case in an objectively unreasonable manner.”) (citations omitted).

3
4
5

13

In denying Petitioner’s petition for post-conviction relief, the trial court adopted the

14

reasons set forth in the State’s written response and summarily dismissed the PCR petition

15

pursuant to Ariz.R.Crim.P. 32.6(c). (Exh. H.) In its response to Petitioner’s PCR petition, the

16

State argued that defense counsel’s choice not to request the lesser-included jury instruction

17

was a decision related to trial strategy. (Exh. G.) Specifically, the jury did not have the lesser-

18

included charge before them on which to convict Petitioner. (Id.) Thus, based on Petitioner’s

19

theory of the case and the evidence presented, he would have been entitled to an acquittal

20

since the evidence, he argued, did not support a conviction for the intentional crime with

21

which Petitioner was charged. (Id.)

22

On May 2, 2012, the Arizona Court of Appeals denied Petitioner’s petition for review.

23

(Exh. J.) The court found that the trial court properly considered and rejected Petitioner’s

24

ineffective assistance claim regarding the failure to request a lesser-included instruction.

25

(Exh. J.)

26

The Court finds that the state court’s ruling was neither contrary to, nor an

27

unreasonable application of federal law. Based on the testimony and evidence presented,

28

Petitioner’s theory of defense was that he did not intentionally or knowingly lock the victim
-8-

1

in the toy box, but rather, the victim accidentally locked herself inside the toy box while

2

playing. And, although there was some testimony presented at trial suggesting that it was

3

theoretically possible that noise the victim made while locked inside the toy box could have

4

been heard within the residence, Petitioner never claimed, as a defense, and there was no

5

evidence suggesting that he heard the screams but merely chose to ignore them. Thus,

6

defense counsel’s strategic decision to not request a lesser-included offense instruction

7

suggests a reasoned choice to pursue an “all-or-nothing” defense. Based on the evidence

8

presented, defense counsel’s choice to pursue the “all-or-nothing” defense was a reasonable

9

trial tactic, leaving the jury with only two options, outright acquittal or conviction of the most

10

serious offense, thereby, eliminating the possibility that the jury might compromise by

11

convicting Petitioner of a lesser-included offense. See Bashor v. Risley, 730 F.2d 1228,

12

1240-41 (9th Cir. 1984) (holding counsel’s performance was sufficient even though he did

13

not request a lesser-included offense instruction); Butcher v. Marquez, 758 F.2d 373, 376-77

14

(9th Cir. 1985) (decision to forgo lesser-included offense instruction reasonable if made to

15

further trial strategy); Washington v. United States, 291 F.Supp.2d 418, 442 (W.D. Va. 2003)

16

(holding that counsel’s decision to forgo lesser-included instruction and instead pursue an

17

all-or-nothing defense was a “a strategic decision to which the court accords considerable

18

deference”).

19

Additionally, counsel’s decision to pursue an all-or-nothing defense was consistent

20

with Petitioner’s claim of innocence. Courts typically decline to find trial counsel ineffective

21

for rejecting a strategy that is inconsistent with their client’s assertion of innocence. See

22

Butcher, 785 F.2d at 376-77 (upholding trial counsel’s decision not to request lesser-included

23

offense instruction that would have conflicted with defendant’s alibi defense). The Ninth

24

Circuit has held that counsel does not render ineffective assistance by declining to pursue a

25

strategy that conflicts with the defendant’s version of the events. See Williams v. Woodford,

26

306 F.3d 665, 709 (9th Cir. 2002) (“Given this factual support for the alibi defense, it was

27

clearly within the wide range of professionally competent assistance for [defense counsel]

28

to choose not to present a psychiatric defense theory that could conflict with the alibi
-9-

1

defense.”), amended and superseded on other grounds, 384 F.3d 567 (9th Cir. 2004); Turk v.

2

White, 116 F.3d 1264, 1266-67 (9th Cir. 1997) (defense counsel was not ineffective for not

3

pursuing a diminished-capacity defense because it would have conflicted with the primary

4

defense of self-defense); Villafuerte v. Stewart, 111 F.3d 616, 630 (9th Cir. 1997) (counsel

5

properly declined to raise an intoxication defense because it would have contradicted defense

6

theory that someone else committed the crime).

7
8

Based on the foregoing, Petitioner’s claim of ineffective assistance of counsel based
on counsel’s failure to request a lesser-included instruction fails.
CONCLUSION

9
10

Petitioner having withdrawn his claims asserted in Grounds One, Three, and Four of

11

his habeas petition, and the Court finding that Ground Two fails on the merits, the Court will

12

recommend that Petitioner’s Petition for Writ of Habeas Corpus be denied and dismissed

13

with prejudice.

14

IT IS THEREFORE RECOMMENDED that Petitioner’s Petition for Writ of

15

Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH

16

PREJUDICE.

17

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave

18

to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a

19

substantial showing of the denial of a constitutional right.

20

This recommendation is not an order that is immediately appealable to the Ninth

21

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of

22

Appellate Procedure, should not be filed until entry of the district court’s judgment. The

23

parties shall have fourteen days from the date of service of a copy of this recommendation

24

within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1);

25

Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen

26

days within which to file a response to the objections. Failure timely to file objections to the

27

Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report

28

and Recommendation by the district court without further review. See United States v.
- 10 -

1

Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any

2

factual determinations of the Magistrate Judge will be considered a waiver of a party’s right

3

to appellate review of the findings of fact in an order or judgment entered pursuant to the

4

Magistrate Judge’s recommendation. See Rule 72, Federal Rules of Civil Procedure.

5

DATED this 10th day of January, 2014.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 11 -