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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mickey Clarence Rosenquist,

No. CV-13-01103-PHX-DLR

Petitioner,

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v.

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ORDER

Pamala Rider, et al.,

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Respondents.

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In 2007, Mickey Clarence Rosenquist (“Petitioner”), facing charges of possession

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of methamphetamine for sale in an amount over the statutory threshold, possession of

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equipment or chemicals for the manufacture of methamphetamine, and possession of

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marijuana, (Doc. 17, Ex. K), sought, in a pre-trial suppression hearing, to suppress the

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evidence seized during the search of his car. (Doc. 21, Ex. E at 3.) Petitioner argued at

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the hearing that he had been unlawfully detained and that the seized evidence was the

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fruit of his unlawful detention.

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convenience store clerk, and Petitioner testified at the hearing. (Doc. 21, Ex. A at 9.)

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After hearing the evidence, the trial court found that Petitioner had not been unlawfully

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detained, and that there was probable cause for his arrest after police discovered a black

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bag containing drugs and drug paraphernalia in his companion’s car, where Petitioner had

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been observed inserting his hands. (Id.) The trial court further found that Petitioner had

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consented to the search of his car. (Id.) At trial, Petitioner was found guilty of all three

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charges and the trial court sentenced him to 20 years for the possession of

(Id.)

Phoenix Police Sergeant Tamara Motyka, a

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methamphetamine conviction, 15 years for the possession of equipment or chemicals for

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manufacture of methamphetamine conviction, and 4.5 years for the possession of

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marijuana conviction, all sentences to run concurrently. (Doc. 17, Ex. 1.)

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Following his conviction, Petitioner challenged the trial court’s ruling on the

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suppression motion in a direct appeal to the Arizona Court of Appeals and later raised the

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issue of the effectiveness of his trial counsel in a petition for post-conviction relief. Both

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requests for relief were denied. (Doc. 21, Ex. B; Doc. 17, Ex. R.) On May 31, 2013,

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Petitioner filed a pro se writ of habeas corpus pursuant to 28 U.S.C. ' 2254. On October

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22, 2013, through counsel, Petitioner filed an Amended Petition arguing that trial counsel

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was ineffective at the suppression hearing (Ground One), and asserting that his Fourth

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Amendment rights had been violated (Ground Two). (Doc. 17, Ex. 1.)

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The Court referred the petition to United States Magistrate Judge David K.

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Duncan for report and recommendation ("R&R"). (Doc. 3.) The matter was later re-

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assigned to United States Magistrate Judge Bridget S. Bade. (Doc. 25.) Judge Bade

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recommended that the Court deny the amended petition because Petitioner has not shown

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the state court’s rejection of his claim of ineffective assistance of counsel was based on

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an unreasonable determination of the facts or was contrary to controlling Supreme Court

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precedent, and because Petitioner’s Fourth Amendment Claim is not cognizable on

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habeas review. (Doc. 27 at 19-20.)
Petitioner filed objections to the R&R. (Doc. 28.) For the following reasons, the

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Court accepts the R&R’s conclusions and denies the petition.

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I.

Standard of Review.

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A party may file specific written objections to the R&R’s proposed findings and

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recommendations. The Court must undertake de novo review of those portions of the

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R&R to which specific objections are made. The Court may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the Magistrate Judge.

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Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1).

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II.

Analysis.

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A. Ground One

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In his first claim, Petitioner argues that trial counsel’s performance was deficient

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at the suppression hearing because she “failed to conduct any witness or officer

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interviews until months after the suppression hearing,” (Doc. 17, Ex. 2 at 19), and failed

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to bring in contradictory statements of other officers from the grand jury testimony or

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their reports. (Id. at 19.) The Court agrees. The Ninth Circuit has repeatedly found that

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“[a] lawyer who fails adequately to investigate, and to introduce into evidence, [evidence]

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that demonstrate[s] his client's factual innocence, or that raise[s] sufficient doubt as to

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that question to undermine confidence in the verdict, renders deficient performance.”

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Avila v. Galaza, 297 F.3d 911, 919 (9th Cir. 2002).

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Although trial counsel’s failure to conduct witness interviews before the

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suppression hearing was deficient, the inquiry does not end there. Petitioner must also

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show that he was prejudiced by trial counsel’s deficient performance—that there is a

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reasonable probability that, absent trial counsel’s error, the result of the suppression

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hearing would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984).

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Judge Bade correctly found that Petitioner failed to meet his burden because the evidence

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Petitioner claims should have been presented did not contradict Sergeant Motyka’s

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testimony or was duplicative, and that even if counsel’s performance was deficient,

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prejudice has not been shown. (Doc. 27 at 17-18.) Judge Bade points out that much of

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the testimony Petitioner claims should have been presented at the suppression hearing

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was based on second-hand information.

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One of the witnesses Petitioner claims should have been called, Detective

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Esperum, was not at the scene at the time of the search.

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information he had about the search was obtained from Sergeant Motyka. (Doc. 27 at 16-

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17.) Petitioner objects to Judge Bade’s findings that the testimony of Detective Esperum

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was “based on second-hand information.” However, because Detective Esperum was not

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present at the scene, any information he possessed about the search was indeed second

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(Doc. 17 at 89.)

Any

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hand.

Petitioner argues that Detective Esperum was an important witness for the

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suppression hearing because he testified to the Grand Jury and at trial that the search was

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an inventory search.

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Detective Esperum’s report stated that the search was an inventory search. (Doc. 17, Ex.

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A at 89-90.) Sergeant Motyka was cross-examined on that point. The inconsistency

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about the basis of the search between what Officer Motyka testified to and what she told

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Detective Esperum was presented at the hearing. Judge Bade correctly found the issue of

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whether the search of Petitioner’s car was an inventory search or a consent search was

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fully litigated at the suppression hearing.

However, it was brought out at the suppression hearing that

Petitioner has failed to demonstrate a

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reasonable probability that, but for counsel’s failure to interview or call Detective

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Esperum as a witness at the suppression hearing, the result of the proceedings would have

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been different.

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Another witness Petitioner argues should have been called at the suppression

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hearing is Officer Marrero. The information Petitioner presents in his Objection to the

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R&R about Officer Marrero’s knowledge of the basis of the search is his interview

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wherein he stated “. . . one of the officers said something to the effect that there was

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going to be a drug dog search of the vehicle, and he [Petitioner] said that was fine.”

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(Doc. 28 at 3.) Petitioner correctly points out that, based on his interview, had trial

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counsel called him Officer Marrero would have supported an argument that if Petitioner

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gave consent it was only consent to a drug dog search. However, Officer Marrero’s

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interview testimony was consistent with Sergeant Motyka’s testimony at the suppression

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hearing that she had called for a drug canine to help with the search, and when she

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learned one was not available Petitioner told her she could “go ahead and check his car

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without the dog.” (Doc. 17, Ex. 4 at 48.) Even though Officer Marrero’s testimony

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might have supported Petitioner’s position at the suppression hearing, considering the

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totality of the evidence, Petitioner has not satisfied his affirmative burden, set forth by 28

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U.S.C. § 2254(e)(1) and Strickland, to establish that, but for counsel’s failure to interview

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or call Officer Marrero at the suppression hearing, the result of the proceedings would

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have been different.

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Petitioner also challenges Judge Bade’s finding that trial counsel was not deficient

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for failing to present evidence at the suppression regarding the positioning of the vehicles

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during the relevant time period. In his Objection to the R&R, Petitioner argues that “the

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exact positioning of the cars is exactly what the trial court needed in order to find that

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Petitioner had been unlawfully detained.” (Doc. 28 at 5.) However, Petitioner does not

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identify the evidence that would have established that exact location. In his Attachment

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to Amended Petition, Petitioner refers to the pretrial interview and sketch of Phoenix

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Police Officer Roestenberg.

Officer Roestenberg’s pretrial interview and sketch, as

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pointed out in the R&R, are ambiguous and lack certainty. He testified that he did not

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know which vehicle Sergeant Motyka was behind, and his sketch does not identify her

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patrol car. (Doc. 17, Ex. E.) Given Officer Roestenberg’s lack of certainty about the

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location and positioning of the three vehicles at the scene, Petitioner has not carried his

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burden to show a reasonable probability that, but for counsel’s failure to interview or call

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Officer Roestenberg as a witness at the suppression hearing, the result of the proceedings

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would have been different.

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B. Ground Two

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As to Ground Two, Judge Bade found that Petitioner had a full and fair

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opportunity to litigate his Fourth Amendment claim and that the claim is therefore barred

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by the holding in Stone v. Powell, 428 U.S. 465 (1976). (Doc. 27 at 18-19.) Petitioner

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argues that Stone does not bar review where a defendant claims that the failure to assert

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Fourth Amendment rights constituted ineffective assistance of counsel, relying on

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Kimmelman v. Morrison, 477 U.S. 365 (1986). (Doc. 28 at 8-9.) However, as described

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in the discussion on Ground One, Petitioner has not carried his burden to establish that

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trial counsel was ineffective at the suppression hearing in asserting Petitioner’s Fourth

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Amendment Rights. Therefore, as found in the R&R, Petitioner’s claim as set forth in

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Ground Two is barred by the holding in Stone and is not cognizable on federal habeas

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review. Accordingly,

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IT IS ORDERED:

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1.

Magistrate Judge Bridget S. Bade’s R&R (Doc. 27) is ACCEPTED.

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2.

Mr. Rosenquist’s amended petition for writ of habeas corpus (Doc. 17) is

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DENIED with prejudice.
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A certificate of appealability and leave to proceed in forma pauperis are

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DENIED because Petitioner has made no substantial showing of the denial of a

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constitutional right. See 28 U.S.C. § 2253(c)(2).

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4.

The Clerk of the Court is directed to TERMINATE this action.

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Dated this 26th day of September, 2014.

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Douglas L. Rayes
United States District Judge

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