Rosenquist v. Rider et al

Filing 29

ORDER Magistrate Judge Bridget S. Bade's R&R (Doc. 27 ) is ACCEPTED. Mr. Rosenquist's amended petition for writ of habeas corpus (Doc. 17 ) is DENIED with prejudice. A certificate of appealability and leave to proceed in forma pauperis are DENIED because Petitioner has made no substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court is directed to TERMINATE this action. Signed by Judge Douglas L Rayes on 9/26/2014. (KMG)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mickey Clarence Rosenquist, No. CV-13-01103-PHX-DLR Petitioner, 10 11 v. 12 ORDER Pamala Rider, et al., 13 Respondents. 14 15 In 2007, Mickey Clarence Rosenquist (“Petitioner”), facing charges of possession 16 of methamphetamine for sale in an amount over the statutory threshold, possession of 17 equipment or chemicals for the manufacture of methamphetamine, and possession of 18 marijuana, (Doc. 17, Ex. K), sought, in a pre-trial suppression hearing, to suppress the 19 evidence seized during the search of his car. (Doc. 21, Ex. E at 3.) Petitioner argued at 20 the hearing that he had been unlawfully detained and that the seized evidence was the 21 fruit of his unlawful detention. 22 convenience store clerk, and Petitioner testified at the hearing. (Doc. 21, Ex. A at 9.) 23 After hearing the evidence, the trial court found that Petitioner had not been unlawfully 24 detained, and that there was probable cause for his arrest after police discovered a black 25 bag containing drugs and drug paraphernalia in his companion’s car, where Petitioner had 26 been observed inserting his hands. (Id.) The trial court further found that Petitioner had 27 consented to the search of his car. (Id.) At trial, Petitioner was found guilty of all three 28 charges and the trial court sentenced him to 20 years for the possession of (Id.) Phoenix Police Sergeant Tamara Motyka, a 1 methamphetamine conviction, 15 years for the possession of equipment or chemicals for 2 manufacture of methamphetamine conviction, and 4.5 years for the possession of 3 marijuana conviction, all sentences to run concurrently. (Doc. 17, Ex. 1.) 4 Following his conviction, Petitioner challenged the trial court’s ruling on the 5 suppression motion in a direct appeal to the Arizona Court of Appeals and later raised the 6 issue of the effectiveness of his trial counsel in a petition for post-conviction relief. Both 7 requests for relief were denied. (Doc. 21, Ex. B; Doc. 17, Ex. R.) On May 31, 2013, 8 Petitioner filed a pro se writ of habeas corpus pursuant to 28 U.S.C. ' 2254. On October 9 22, 2013, through counsel, Petitioner filed an Amended Petition arguing that trial counsel 10 was ineffective at the suppression hearing (Ground One), and asserting that his Fourth 11 Amendment rights had been violated (Ground Two). (Doc. 17, Ex. 1.) 12 The Court referred the petition to United States Magistrate Judge David K. 13 Duncan for report and recommendation ("R&R"). (Doc. 3.) The matter was later re- 14 assigned to United States Magistrate Judge Bridget S. Bade. (Doc. 25.) Judge Bade 15 recommended that the Court deny the amended petition because Petitioner has not shown 16 the state court’s rejection of his claim of ineffective assistance of counsel was based on 17 an unreasonable determination of the facts or was contrary to controlling Supreme Court 18 precedent, and because Petitioner’s Fourth Amendment Claim is not cognizable on 19 habeas review. (Doc. 27 at 19-20.) Petitioner filed objections to the R&R. (Doc. 28.) For the following reasons, the 20 21 Court accepts the R&R’s conclusions and denies the petition. 22 I. Standard of Review. 23 A party may file specific written objections to the R&R’s proposed findings and 24 recommendations. The Court must undertake de novo review of those portions of the 25 R&R to which specific objections are made. The Court may accept, reject, or modify, in 26 whole or in part, the findings or recommendations made by the Magistrate Judge. 27 Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). 28 -2- 1 II. Analysis. 2 A. Ground One 3 In his first claim, Petitioner argues that trial counsel’s performance was deficient 4 at the suppression hearing because she “failed to conduct any witness or officer 5 interviews until months after the suppression hearing,” (Doc. 17, Ex. 2 at 19), and failed 6 to bring in contradictory statements of other officers from the grand jury testimony or 7 their reports. (Id. at 19.) The Court agrees. The Ninth Circuit has repeatedly found that 8 “[a] lawyer who fails adequately to investigate, and to introduce into evidence, [evidence] 9 that demonstrate[s] his client's factual innocence, or that raise[s] sufficient doubt as to 10 that question to undermine confidence in the verdict, renders deficient performance.” 11 Avila v. Galaza, 297 F.3d 911, 919 (9th Cir. 2002). 12 Although trial counsel’s failure to conduct witness interviews before the 13 suppression hearing was deficient, the inquiry does not end there. Petitioner must also 14 show that he was prejudiced by trial counsel’s deficient performance—that there is a 15 reasonable probability that, absent trial counsel’s error, the result of the suppression 16 hearing would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). 17 Judge Bade correctly found that Petitioner failed to meet his burden because the evidence 18 Petitioner claims should have been presented did not contradict Sergeant Motyka’s 19 testimony or was duplicative, and that even if counsel’s performance was deficient, 20 prejudice has not been shown. (Doc. 27 at 17-18.) Judge Bade points out that much of 21 the testimony Petitioner claims should have been presented at the suppression hearing 22 was based on second-hand information. 23 One of the witnesses Petitioner claims should have been called, Detective 24 Esperum, was not at the scene at the time of the search. 25 information he had about the search was obtained from Sergeant Motyka. (Doc. 27 at 16- 26 17.) Petitioner objects to Judge Bade’s findings that the testimony of Detective Esperum 27 was “based on second-hand information.” However, because Detective Esperum was not 28 present at the scene, any information he possessed about the search was indeed second -3- (Doc. 17 at 89.) Any 1 hand. Petitioner argues that Detective Esperum was an important witness for the 2 suppression hearing because he testified to the Grand Jury and at trial that the search was 3 an inventory search. 4 Detective Esperum’s report stated that the search was an inventory search. (Doc. 17, Ex. 5 A at 89-90.) Sergeant Motyka was cross-examined on that point. The inconsistency 6 about the basis of the search between what Officer Motyka testified to and what she told 7 Detective Esperum was presented at the hearing. Judge Bade correctly found the issue of 8 whether the search of Petitioner’s car was an inventory search or a consent search was 9 fully litigated at the suppression hearing. However, it was brought out at the suppression hearing that Petitioner has failed to demonstrate a 10 reasonable probability that, but for counsel’s failure to interview or call Detective 11 Esperum as a witness at the suppression hearing, the result of the proceedings would have 12 been different. 13 Another witness Petitioner argues should have been called at the suppression 14 hearing is Officer Marrero. The information Petitioner presents in his Objection to the 15 R&R about Officer Marrero’s knowledge of the basis of the search is his interview 16 wherein he stated “. . . one of the officers said something to the effect that there was 17 going to be a drug dog search of the vehicle, and he [Petitioner] said that was fine.” 18 (Doc. 28 at 3.) Petitioner correctly points out that, based on his interview, had trial 19 counsel called him Officer Marrero would have supported an argument that if Petitioner 20 gave consent it was only consent to a drug dog search. However, Officer Marrero’s 21 interview testimony was consistent with Sergeant Motyka’s testimony at the suppression 22 hearing that she had called for a drug canine to help with the search, and when she 23 learned one was not available Petitioner told her she could “go ahead and check his car 24 without the dog.” (Doc. 17, Ex. 4 at 48.) Even though Officer Marrero’s testimony 25 might have supported Petitioner’s position at the suppression hearing, considering the 26 totality of the evidence, Petitioner has not satisfied his affirmative burden, set forth by 28 27 U.S.C. § 2254(e)(1) and Strickland, to establish that, but for counsel’s failure to interview 28 or call Officer Marrero at the suppression hearing, the result of the proceedings would -4- 1 have been different. 2 Petitioner also challenges Judge Bade’s finding that trial counsel was not deficient 3 for failing to present evidence at the suppression regarding the positioning of the vehicles 4 during the relevant time period. In his Objection to the R&R, Petitioner argues that “the 5 exact positioning of the cars is exactly what the trial court needed in order to find that 6 Petitioner had been unlawfully detained.” (Doc. 28 at 5.) However, Petitioner does not 7 identify the evidence that would have established that exact location. In his Attachment 8 to Amended Petition, Petitioner refers to the pretrial interview and sketch of Phoenix 9 Police Officer Roestenberg. Officer Roestenberg’s pretrial interview and sketch, as 10 pointed out in the R&R, are ambiguous and lack certainty. He testified that he did not 11 know which vehicle Sergeant Motyka was behind, and his sketch does not identify her 12 patrol car. (Doc. 17, Ex. E.) Given Officer Roestenberg’s lack of certainty about the 13 location and positioning of the three vehicles at the scene, Petitioner has not carried his 14 burden to show a reasonable probability that, but for counsel’s failure to interview or call 15 Officer Roestenberg as a witness at the suppression hearing, the result of the proceedings 16 would have been different. 17 B. Ground Two 18 As to Ground Two, Judge Bade found that Petitioner had a full and fair 19 opportunity to litigate his Fourth Amendment claim and that the claim is therefore barred 20 by the holding in Stone v. Powell, 428 U.S. 465 (1976). (Doc. 27 at 18-19.) Petitioner 21 argues that Stone does not bar review where a defendant claims that the failure to assert 22 Fourth Amendment rights constituted ineffective assistance of counsel, relying on 23 Kimmelman v. Morrison, 477 U.S. 365 (1986). (Doc. 28 at 8-9.) However, as described 24 in the discussion on Ground One, Petitioner has not carried his burden to establish that 25 trial counsel was ineffective at the suppression hearing in asserting Petitioner’s Fourth 26 Amendment Rights. Therefore, as found in the R&R, Petitioner’s claim as set forth in 27 Ground Two is barred by the holding in Stone and is not cognizable on federal habeas 28 review. Accordingly, -5- 1 IT IS ORDERED: 2 1. Magistrate Judge Bridget S. Bade’s R&R (Doc. 27) is ACCEPTED. 3 2. Mr. Rosenquist’s amended petition for writ of habeas corpus (Doc. 17) is 4 5 DENIED with prejudice. 3. A certificate of appealability and leave to proceed in forma pauperis are 6 DENIED because Petitioner has made no substantial showing of the denial of a 7 constitutional right. See 28 U.S.C. § 2253(c)(2). 8 4. The Clerk of the Court is directed to TERMINATE this action. 9 Dated this 26th day of September, 2014. 10 11 12 13 14 Douglas L. Rayes United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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