Karpin v. Ryan et al

Filing 53

ORDER ACCEPTING REPORT AND RECOMMENDATION 43 . The objections are overruled (Doc. 51 ). The Amended Petition (Doc. 16 ) is denied and dismissed with prejudice and the Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that , for the reasons stated in this Court's Order of April 8, 2015, the Motion for Supplementation (Doc. 50 ) is stricken. IT IS FURTHER ORDERED that the Motion for Stay and Abeyance (Doc. 52 ) is also stricken. IT IS FINALLY ORDERED that pursuan t to Rule 11 of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. Section 2253(c)(2). (See document for further details). Signed by Senior Judge James A Teilborg on 5/19/15. (LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Gary Jay Karpin,

No. CV-13-02375-PHX-JAT
Petitioner,

10
11

v.

12

ORDER

Charles L. Ryan, et al.,

13

Respondents.

14
15

Pending before the Court is Petitioner’s Amended Petition for Writ of Habeas

16

Corpus (Doc. 16). On March 5, 2015, the Magistrate Judge to whom this case was

17

assigned issued a Report and Recommendation (R&R) recommending that the Amended

18

Petition be denied. (Doc. 43).

19

A.

20

This Court Amay accept, reject, or modify, in whole or in part, the findings or

21

recommendations made by the magistrate judge.@ 28 U.S.C. ' 636(b)(1). It is Aclear that

22

the district judge must review the magistrate judge=s findings and recommendations de

23

novo if objection is made, but not otherwise.@ United States v. Reyna-Tapia, 328 F.3d

24

1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263

25
26
27
28

LEGAL STANDARD

F.Supp.2d 1219, 1226 (D. Ariz. 2003) (AFollowing Reyna-Tapia, this Court concludes
that de novo review of factual and legal issues is required if objections are made, >but not
otherwise.=@); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d
1027, 1032 (9th Cir. 2009) (the district court Amust review de novo the portions of the

1

[Magistrate Judge=s] recommendations to which the parties object.@). District courts are

2

not required to conduct Aany review at all . . . of any issue that is not the subject of an

3

objection.@ Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28

4

U.S.C. ' 636(b)(1) (Athe court shall make a de novo determination of those portions of the

5

[report and recommendation] to which objection is made.@).

6
7
8
9
10
11
12

In this case, Petitioner filed objections to the R&R; accordingly, the Court will
review the objected to recommendations de novo.
The Petition in this case was filed under 28 U.S.C. ' 2254 because Petitioner is
incarcerated based on a state conviction. With respect to any claims that Petitioner
exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must
deny the Petition on those claims unless Aa state court decision is contrary to, or involved
an unreasonable application of, clearly established Federal law@1 or was based on an

13
14
15
16
17
18
19
20

unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
Further, this Court must presume the correctness of the state court’s factual findings
regarding a petitioner’s claims. 28 U.S.C. ' 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923,
936 (9th Cir. 1998). Also, A[a]n application for a writ of habeas corpus may be denied on
the merits, notwithstanding the failure of the applicant to exhaust the remedies available
in the courts of the State.@ 28 U.S.C. ' 2254(b)(2).
B.

OBJECTIONS
1.

21

Pro se interference claim

22

In his Objections, Petitioner argues that his “pro se interference claim” was

23

exhausted before the state courts; or alternatively, if it was not, his failure to exhaust

24

should be excused under Martinez v. Ryan, 132 S. Ct. 1309 (2012), as a result of his

25

appellate counsel’s ineffective assistance if that counsel failed to raise this claim on direct

26

appeal.

27
28

1

Further, in applying AFederal law@ the state courts only need to act in accordance
with Supreme Court case law. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).

-2-

1

In the R&R, the Magistrate Judge concludes that this claim was not exhausted in

2

state court.

3

procedurally defaulted in state court at this time.

4

concludes that Petitioner has not shown cause and prejudice to overcome this procedural

5

default, nor a fundamental miscarriage of justice. Id. at 26.

Doc. 43 at 24.

The R&R further concludes that this claim has been
Id. at 25-26.

Finally the R&R

6

In his objections, Petitioner argues that this claim was either directly exhausted, or

7

sufficiently related to an exhausted claim that it should be deemed exhausted. Doc. 51 at

8
9

3-5. With regard to directly exhausting, Petitioner argues that he raised this claim in his
Rule 32 Petition for Post-Conviction Relief before the state court, citing Exhibit II.

10
11
12

Exhibit II is Petitioner’s Petition for Post-Conviction relief, which spans 144
pages, including exhibits (some of which appear to be duplicates). Doc 25-4 starting at
page 32. While Petitioner is correct that some of his over 100 pages of exhibits perhaps

13
14
15
16
17
18

support his pro se interference claim, this Court does not see where that claim was
labeled as such specifically to the post-conviction relief court. Further, when Petitioner
filed his Petition for Review of the denial of his Petition for Post-Conviction Relief with
the Arizona Court of Appeals, he did not list a pro se interference claim as a claim raised
in his Rule 32 Petition. See Doc. 25-6 at 1-3. Consistent with Petitioner’s Petition for

19

Post-Conviction Relief and his Petition for Review with the Arizona Court of Appeals,

20

the Arizona Court of Appeals did not address a pro se interference claim. Doc. 25-6 at

21

47-52.

22

interference claim was not raised to the state courts directly. See Doc. 43 at 24.

On this record, this Court agrees with the R&R that Petitioner’s pro se

23

Next Petitioner argues that under Lounsbury v. Thompson, 374 F.3d 785, 788 (9th

24

2004), the claims he raised in his Petition for Post-Conviction relief were sufficiently

25

related to his pro se interference claim that this Court should deem them exhausted. Doc.

26

51 at 4. This Court agrees with the R&R that while some of the underlying facts are the

27

same, this legal theory was never presented to the state courts, and is not exhausted. See

28

Doc. 43 at 25.

-3-

1

Finally, Petitioner argues that if his pro se interference claim is not exhausted, his

2

failure to exhaust should be excused under Martinez v. Ryan, 132 S. Ct. 1309 (2012).

3

Specifically, Petitioner argues that his failure to exhaust this claim was due to the

4

ineffective assistance of his appellate counsel in failing to raise it on direct appeal; and

5

ineffective assistance of his post-conviction relief counsel for failing to raise the

6

ineffective assistance of appellate counsel in the Rule 32 Petition for Post-Conviction

7

Relief. Doc. 51 at 5-8.

8
9
10
11
12

At pages 17 and 18, the R&R discussed when a Martinez claim can excuse the
procedural default of ineffective assistance of counsel claims in state court. However, the
R&R failed to analyze any of Petitioner’s defaulted claims under Martinez.
As this Court has previously stated, Martinez (although the opinion suggests
otherwise) requires this Court to reach the merits of every claim that is defaulted when

13
14
15
16
17
18

the Petitioner claims the default was based on ineffective assistance of counsel. Saenz v.
Van Winkle, CV-13-77-PHX-JAT at 4 (D. Ariz. July 2, 2014); Martinez v. Ryan, 2012
WL 5936566, *2-3 (D. Ariz. Nov. 27, 2102) (holding that for this Court to consider the
three steps required to excuse procedural default articulated in the Martinez Supreme
Court decision, this Court must begin with a review of whether trial or appellate counsel

19

was ineffective, rather than whether PCR counsel was ineffective).2 Thus, because the

20

Court must consider Petitioner’s effective assistance of appellate counsel claim by

21

determining whether Petitioner’s pro se interference claim was meritorious such that

22

appellate counsel should have raised it, the Court will first turn to the merits of the pro se

23

interference claim.

24

Petitioner’s theory of his pro se interference claim is best summarized by

25

2

26
27
28

In Saenz, this Court stated “…exhaustion within the state courts is no longer
required for any substantial claim, because it would always be excused by counsel’s
failure to raise it. Thus, the end result is that this Court must always consider the “merits”
of every claim raised by every petitioner if the petitioner also raises ineffectiveness of
appellate counsel or post-conviction-relief counsel. It is not clear to this Court that the
end of the exhaustion requirement was the intent of the Supreme Court in Martinez, but it
is nonetheless the practical result.” Saenz v. Van Winkle, CV-13-77-PHX-JAT at 4 (D.
Ariz. July 2, 2014)
-4-

1
2
3
4
5
6
7
8
9
10
11
12
13

McKaskle as follows:
[T]he pro se defendant is entitled to preserve actual control over the case he
chooses to present to the jury. This is the core of the Faretta right. If
standby counsel's participation over the defendant's objection effectively
allows counsel to make or substantially interfere with any significant
tactical decisions, or to control the questioning of witnesses, or to speak
instead of the defendant on any matter of importance, the Faretta right is
eroded.
McKaskle v. Wiggins, 465 U.S. 168, 178 (1984) (referencing Faretta v. California, 422
U.S. 806 (1975)).
However,
Once a pro se defendant invites or agrees to any substantial participation by
counsel, subsequent appearances by counsel must be presumed to be with
the defendant's acquiescence, at least until the defendant expressly and
unambiguously renews his request that he be allowed to go it alone.
McKaskle, 465 U.S. at 183, 104 S.Ct. at 953–54; United States v. Lorick,
753 F.2d 1295, 1298–99 (4th Cir.), cert. denied, 471 U.S. 1107, 105 S.Ct.
2342, 85 L.Ed.2d 857 (1985).
Savage v. Estelle, 924 F.2d 1459, 1463 n. 7 (9th Cir. 1990).

14

In this case, Petitioner had his standby counsel question him when he was on the

15

stand at trial. Doc. 43 at 23. Petitioner now claims that his standby counsel asked

16

questions other than the questions Petitioner wanted him to ask.

17

Petitioner has gone through the transcript of his questioning and circled at least 50

18

questions that he now claims were not the questions he wanted to have asked. Doc. 25-4

19

at 41-62 (attachments to Petitioner’s Petition for Post-Conviction relief in state court).

20
21
22
23
24
25
26
27
28

Doc. 51 at 11.

As both McKaskle and Savage require, for Petitioner to make a pro se interference
claim, he must object with the trial court that his advisory counsel is exceeding the scope
of what Petitioner has agreed he can do. In this case, the Court has reviewed the
transcript and does not see that Petitioner raised this concern in any way with the trial
court at the time his advisory counsel allegedly asked all these questions that were not
what Petitioner wanted him to ask.3 Because Petitioner failed to raise this argument
contemporaneously, the argument had no merit on appeal.
3

Further, Petitioner had this same counsel represent him at sentencing with no
objection. See Doc. 25-6 at 51, n.2.
-5-

1

Because Petitioner’s pro se interference claim fails on the merits, Petitioner’s

2

appellate counsel was not ineffective for failing to raise it on direct appeal. Accordingly,

3

this claim is not substantial; thus, Petitioner’s procedural default of this claim is not

4

excused under Martinez.

5
6
7
8
9
10
11
12

2.

Ineffective Assistance of Counsel

Petitioner’s claim that advisory/sentencing counsel was ineffective was raised
before the Arizona Courts in Petitioner’s Petition for Post-Conviction relief.

As

discussed above, as to any claim exhausted before the state courts, this Court can only
grant habeas relief if the Astate court decision [was] contrary to, or involved an
unreasonable application of, clearly established Federal law@ or was based on an
unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
First, if a defendant elects to waive counsel, but the court nonetheless appoints

13
14
15
16
17
18
19

stand by counsel or advisory counsel, there is no constitutional right to effective
assistance from waived counsel. Cf. Faretta v. California, 422 U.S. 806, 834, n. 46
(1975) (A defendant who elects to represent himself cannot thereafter complain that the
quality of his own defense amounted to a denial of effective assistance of counsel.).
Therefore, to the extent Petitioner is attempting to make an ineffective assistance of
counsel argument regarding advisory counsel, the claim fails.

20

Second, regarding counsel’s performance at sentencing,4 this Court has reviewed

21

the Arizona Court of Appeals opinion (Doc. 25-6 at 51) and finds that the Court’s

22

decision is not contrary to, nor does it involve an unreasonable application of federal law.

23

Nor was the decision based on an unreasonable determination of the facts. Further,

24

Petitioner does not argue that the state court’s decision involved any such deficiency.

25

Instead, Petitioner argues that he has newly discovered evidence that he wishes to present

26

to this Court on his ineffective assistance of counsel claim. Doc. 51 at 10, 12.

27
28

4

For purposes of sentencing, Petitioner was no longer pro se and was represented
by counsel. Doc. 25-6 at 51 n. 2.
-6-

1

This Court will not consider this additional evidence because,

2

Along with the significant deference AEDPA requires us to afford state
courts' decisions, AEDPA also restricts the scope of the evidence that we
can rely on in the normal course of discharging our responsibilities under §
2254(d)(1). Under § 2254(d)(1), our review is “limited to the record that
was before the state court that adjudicated the claim on the merits.”
Pinholster, 131 S.Ct. at 1398. Thus, AEDPA's “backward-looking language
requires an examination of the state-court decision at the time it was made.
It [then logically] follows that the record under review is limited to the
record in existence at that same time, i.e., the record before the state court.”
Id.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Murray v. Schriro, 745 F.3d 984, 998 (9th Cir. 2014).
Accordingly, the Court overrules the objections on this claim (which appears to be
part of claim six of the Amended Petition (Doc. 16 at 22)) and denies relief.
3.

Other objections

In his objections, Petitioner also raises the following (the quoted portions below
are Petitioner’s entire objection as to each claim):
Claim 2: Objection. Urbano’s testimony did violate the 5th, 6th and 14th
amendments because he was prior counsel and his testimony contained
inferences adverse to the presumption of evidence [sic].
Doc. 51 at 13.
The Court has reviewed the R&R at 27 de novo on this claim and overrules this
objection. Accordingly, the Court accepts and adopts the R&R on Claim 2.
Claim 3: Objection; the new evidence substantiates a claim of a
prosecutorial advantage by exploiting counsel as a source of information.
Doc. 51 at 13.
The Court has reviewed the R&R at 28-29 de novo on this claim and overrules this
objection. Accordingly, the Court accepts and adopts the R&R on Claim 3.
Claim 4: Objection; the Constitution was violated when counsel assisted the
prosecution with respect to the same matter where he formerly assisted
[Petitioner].
Doc. 51 at 13.
The Court has reviewed the R&R at 29-32 de novo on this claim and overrules this
objection. Accordingly, the Court accepts and adopts the R&R on Claim 4.
Claim 5: Objection: a Martinez IAC claim on a Brady violation.

-7-

1

Doc. 51 at 13.

2

First, the Court finds that this sentence fragment is insufficient to raise a legal or

3

factual objection to the R&R. Second, nonetheless, the Court has reviewed the R&R at

4

32-33 de novo on this claim and overrules this “objection.” Accordingly, the Court

5

accepts and adopts the R&R on Claim 5.

6
7
8

Claim Nine: Objection; A Martinez claim of Appellate IAC; Findings of
Fact and Conclusions of law in Valverde’s disbarment Order makes the
Claim plausible.
Doc. 51 at 14.

9

This Court has already addressed and denied relief on Petitioner’s claims of

10

ineffective assistance of appellate counsel in section 1 above. To the extent Petitioner

11

intends to argue a different theory of ineffective assistance of appellate counsel by this

12

single sentence fragment, the Court has reviewed the R&R at 37-38 as to Claim 9 de

13

novo. The Court overrules this objection and accepts and adopts the R&R on Claim 9.

14
15
16
17
18
19
20
21
22
23
24
25
26
27

Claim Ten: Appellate IAC; PCR IAC if Urbano assisted the prosecution
before trial while still counsel. Objection.
Doc. 51 at 14.
The Court has reviewed the R&R at 38-39 de novo on this claim and overrules this
objection. Accordingly, the Court accepts and adopts the R&R on Claim 10.
Claim Eleven: Objection; Insufficient evidence to convict under Skilling
and McNally.
Doc. 51 at 14.
The Court has reviewed the R&R at 40-41 de novo on this claim and overrules this
objection. Accordingly, the Court accepts and adopts the R&R on Claim 11.
Claim Twelve: Objection; Petitioner did bring clear and convincing
evidence contrary to the appellate Court’s finding.
Doc. 51 at 14.
The Court has reviewed the R&R at 41-42 de novo on this claim and overrules this
objection. Accordingly, the Court accepts and adopts the R&R on Claim 12.

28

-8-

1

C.

2

On April 8, 2015, the Court ordered that Petitioner could file only objections in

3

response to the R&R and not unlimited, various filings. The Court received an undated

4

filing on April 10, 2015 (Doc. 50), which the Court assumes was mailed before Petitioner

5

received the April 8, 2015 Order. Consistent with the April 8 Order, the April 10 filing

6

will be stricken.

7
8
9
10
11
12

Other filings

On April 22, 2015, the Court received Petitioner objections in compliance with the
April 8, 2015 Order. Those objections have been addressed above.
On April 27, 2015, in direct violation of the April 8, 2015 Order, the Court
received a motion for stay and abeyance (Doc. 52). The Court will not consider the
motion for two reasons. First, the Court was clear in the April 8, 2015 order that
Petitioner was required to raise all of his objections and arguments in a single document.

13
14
15
16
17
18

Second, the motion itself highlights the reason behind the April 8, 2015 Order.
Specifically, in his objections, Petitioner states, “[Petitioner] is not required to return to
state court to present New Evidence: 32.1(e); because Martinez is not a claim for relief.
Moreover, the new allegations don’t fundamentally alter the claim; the new allegations
just prove the habeas claim already presented.” Doc. 51 at 13. In his subsequently filed

19

motion, Petitioner takes the exact opposite position stating, “The newly-discovered

20

evidence of [advisory counsel/sentencing counsel]’s admissions under oath of violating

21

Defendant’s Constitutional rights affords [Petitioner] the right to return to State Court to

22

litigate a new due process violation claim under [A]rizona law: see Ariz R. Crim P.

23

32.1(e).” Doc. 52 at 1.

24

The Court will not undertake to read multiple documents to determine what

25

Petitioner is arguing. Further, the Court will not attempt to guess, when those documents

26

are absolutely inconsistent, which argument Petitioner is advancing. Instead, as the Court

27

advised Petitioner in the April 8, 2015 Order, the Court will consider only the objections

28

to the R&R.

-9-

1

D.

2

Based on the foregoing,

3

IT IS ORDERED that the R&R (Doc. 43) is accepted.

Conclusion

The objections are

4

overruled (Doc. 51). The Amended Petition (Doc. 16) is denied and dismissed with

5

prejudice and the Clerk of the Court shall enter judgment accordingly.

6
7
8
9

IT IS FURTHER ORDERED that, for the reasons stated in this Court’s Order of
April 8, 2015, the Motion for Supplementation (Doc. 50) is stricken.
IT IS FURTHER ORDERED that the Motion for Stay and Abeyance (Doc. 52)
is also stricken.

10

IT IS FINALLY ORDERED that pursuant to Rule 11 of the Rules Governing

11

Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a

12

certificate of appealability because Petitioner has not made a substantial showing of the

13

denial of a constitutional right. See 28 U.S.C. ' 2253(c)(2).

14

Dated this 19th day of May, 2015.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 10 -