Reyes-Reyes v. Ryan et al

Filing 15

ORDER That the 13 Report and Recommendation is accepted. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 7/14/14. (MAP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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German Felipe Reyes-Reyes,
Petitioner,

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ORDER

v.

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No. CV-14-00005-PHX-DGC

Charles L. Ryan, et al.,

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Respondents.

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Petitioner German Felipe Reyes-Reyes filed a Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254. Doc. 1. On May 20, 2014, United States Magistrate Judge

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Mark E. Aspey issued a report and recommendation (“R&R”) recommending that the

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petition be denied. Doc. 13 at 9. The Court will accept the R&R.

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I.

Background.

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On January 13, 2012, two off-duty Phoenix police officers were providing security

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for an apartment complex at 1717 West Glendale Avenue in Phoenix, Arizona. Doc. 11

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at 3. At about 8:00 p.m., the officers noticed a black Mercedes parked in one of the

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parking coves on the east side of the apartment complex. Id. A registration check on the

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Mercedes revealed that it was registered to Amy Marie Siegel.

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approached the vehicle on foot. Id. Petitioner, the sole occupant of the vehicle, was

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talking on a cell phone. Id. The officers began conversing with Petitioner. Id. After

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performing a warrant search on their mobile data terminal, the officers learned that there

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was an outstanding warrant for Petitioner’s arrest, so they handcuffed him and placed him

Id.

The officers

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under arrest. Id. Pursuant to the arrest, the officers searched Petitioner’s person and

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discovered two baggies of methamphetamine in his pockets. Id. at 4. The officers also

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noticed a black handgun protruding from underneath the center console of the Mercedes.

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Id. The officers searched the car and found the loaded handgun. Id. The officers also

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found another baggie of methamphetamine inside the car. Id.

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On February 6, 2012, Petitioner was charged with one count of possession or use

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of dangerous drugs and three counts of misconduct involving weapons. Doc. 11-1 at 7.

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On March 29, 2012, the State of Arizona filed allegations of aggravating circumstances

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and allegations of prior convictions, including an assertion that Petitioner committed the

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charged offenses while on felony release. Id. at 11, 15, 18.

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Prior to his trial, Petitioner moved to suppress all evidence collected from the

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January 13, 2012 encounter with the two officers. Doc. 11-3 at 54. Petitioner claimed

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that he had been illegally seized by the officers. Id. at 58. The state trial court denied the

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motion to suppress, concluding that “[a] police officer does not need reasonable suspicion

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or cause to approach a person and ask questions” and that Petitioner “was free to leave or

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not talk to the officers.” Doc. 11-1 at 99.

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On July 12, 2012, a jury convicted Petitioner on two counts. Doc. 11-2 at 135.

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Petitioner was sentenced to concurrent terms of ten years on each count. Doc. 11-3 at 48.

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Petitioner appealed, asserting that the trial court abused its discretion when it

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denied his motion to suppress. Id. at 87. On June 20, 2013, the Arizona Court of

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Appeals affirmed Petitioner’s conviction. Id. at 138-41. Petitioner sought review by the

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Arizona Supreme Court, which denied review on December 4, 2013. Id. at 158.

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On December 18, 2013, Petitioner initiated a state action for post-conviction relief

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pursuant to Arizona Rule of Criminal Procedure 32. Id. at 163. Respondents assert that

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the state proceeding is still pending. Doc. 11 at 9. On January 2, 2014, Petitioner filed

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this Petition for Writ of Habeas Corpus. Doc. 1.

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II.

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Legal Standard.
The Court must undertake a de novo review of those portions of the R&R to which

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specific objections are made. See Thomas v. Arn, 474 U.S. 140, 149 (1985). The Court

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may accept, reject, or modify the findings or recommendations made by the magistrate

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judge. See 28 U.S.C. § 636(b)(1).

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“If the state has provided a state prisoner an opportunity for full and fair litigation

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of his Fourth Amendment claim, [a federal District Court] cannot grant federal habeas

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relief on the Fourth Amendment issue.” Moorman v. Schriro, 426 F.3d 1044, 1053 (9th

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Cir. 2005) (citing Stone v. Powell, 428 U.S. 465, 494 (1976)). Whether the state court

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correctly decided the Fourth Amendment claim is irrelevant. See Stone, 428 U.S. at 494

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(“[W]here the State has provided an opportunity for full and fair litigation of a Fourth

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Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the

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ground that evidence obtained in an unconstitutional search or seizure was introduced at

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trial.”); Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (“The relevant inquiry

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is whether petitioner had the opportunity to litigate his claim, not whether he did in fact

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do so or even whether the claim was correctly decided.”).

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Stone did not specify a test for determining whether a State has provided an

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opportunity for full and fair litigation of a claim. Stone did, however, cite Townsend v.

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Sain, 372 U.S. 293 (1963), in a footnote. Stone, 428 U.S. at 494 n.36. Townsend held

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that a federal court must grant a habeas petitioner an evidentiary hearing if (1) the merits

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of the factual dispute were not resolved in the state hearing; (2) the state factual

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determination is not fairly supported by the record as a whole; (3) the fact-finding

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procedure employed by the state court was not adequate to afford a full and fair hearing;

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(4) there is a substantial allegation of newly discovered evidence; (5) the material facts

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were not adequately developed at the state-court hearing; or (6) for any reason it appears

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that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.

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372 U.S. at 313. In Mack v. Cupp, 564 F.2d 898 (9th Cir. 1977), the Ninth Circuit

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explained that although the Townsend test “must be given great weight in defining what

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constitutes full and fair consideration under Stone,” it need not “always be applied

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literally . . . as the sole measure of fullness and fairness.” 564 F.2d at 901. The Ninth

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Circuit has also considered the extent to which the claims were briefed before and

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considered by the state trial and appellate courts. Abell v. Raines, 640 F.2d 1085, 1088

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(9th Cir. 1981).

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Petitioner bears the burden of establishing that the state courts did not fully and

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fairly consider his Fourth Amendment claim. Woolery v. Arave, 8 F.3d 1325, 1328 (9th

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Cir. 1993).

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III.

Analysis.

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Petitioner objects to the R&R, asserting that the Arizona courts failed to afford a

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full and fair opportunity to litigate his Fourth Amendment claim. Doc. 14 at 1. Petitioner

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bases his assertion on three arguments: (1) a commissioner performed an unauthorized

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review of the evidence in his case, which yielded a defective response to Petitioner’s

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motion for disclosure that tainted the evidentiary universe in which Petitioner’s Fourth

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Amendment motion practice was conducted; (2) the trial court precluded any mention of

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the nature and quality of the arrest warrant in an evidentiary hearing and at trial; and

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(3) the Arizona Court of Appeals chose to simply affirm rather than review the trial court

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decisions. The Court will address each of these arguments below.

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A.

Commissioner’s Review of the Evidence.

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Petitioner argues that a commissioner has “extremely circumscribed authority”

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under A.R.S. § 12-212 and Arizona Supreme Court Rule 96(a)(11) and that the rules

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“distinctly withhold[] power” from a commissioner to consider matters arising under

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Arizona Rules of Criminal Procedure 15, 16, and 35, which rules were “essential to the

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determination of present matters.”

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Supreme Court Rule 96(a)(11) expressly permits commissioners, if approved by the

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presiding judge, to hear matters governed by Arizona Rules of Criminal Procedure 15,

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16.2, and 16.3, which are the rules under which Petitioner’s motion for disclosure arose.

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Petitioner does not argue that Commissioner Steven Lynch, the commissioner appointed

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in this case, was not approved by the presiding judge to hear such matters. In addition, it

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is not clear how Arizona Rule of Criminal Procedure 35, which governs the form,

Doc. 14 at 3.

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Petitioner is mistaken.

Arizona

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content, and service of motions and requests, was violated by the commissioner’s

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participation. The Court concludes that Petitioner’s first argument is meritless.

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B.

Trial Court’s Evidentiary Rulings.

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Because the warrant executed by the officers on January 13, 2012 was for a non-

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extraditable misdemeanor from Yuma County, Petitioner argues that the officers did not

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have probable cause to arrest him and that, without the arrest, the officers would not have

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discovered the contraband on his person or in the vehicle. Doc. 14 at 2, 4. Petitioner

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asserts that the he was denied a full and fair opportunity to litigate the Fourth

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Amendment issue because the trial court refused to hear evidence regarding the nature

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and quality of the arrest warrant, which would have demonstrated a clear Fourth

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Amendment violation. Id. at 2.

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The transcript from Petitioner’s July 9, 2012 suppression hearing demonstrates the

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trial court addressed Petitioner’s evidence, or lack thereof, regarding the nature and

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quality of the arrest warrant. Doc. 11-1 at 24-30. At the suppression hearing, which took

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place two days before Petitioner’s trial, the trial court permitted Petitioner to argue that

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the nature and quality of the arrest warrant invalidated the January 13, 2012 seizure.

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Petitioner, however, had previously failed to raise the issue in his written motion and he

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failed to present any statute or case law relevant to the issue at the hearing. Likewise,

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Petitioner’s submissions in this proceeding fail to cite any controlling law suggesting that

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the officers wrongly executed the non-extraditable misdemeanor arrest warrant from

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Yuma County. Applying the Townsend factors, the Court concludes, that Petitioner was

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provided a full and fair opportunity to litigate his Fourth Amendment claim before the

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trial court.

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C.

Appellate Review.

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Petitioner argues that the Arizona Court of Appeals “in its lock-step effort to

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affirm the result of the inferior tribunal, necessarily had to deny reference to clearly, and

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long established U.S. Supreme Court precedence (sic).” Doc. 14 at 4. Specifically,

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Petitioner asserts that the Arizona Court of Appeals failed to adhere to the holding of

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Arizona v. Gant, 556 U.S. 332 (2010), which circumscribed the ability of law

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enforcement officers to conduct warrantless vehicular searches incident to arrest after a

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vehicle’s occupant(s) have been arrested and secured. 556 U.S. at 335.

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This argument challenges the state court’s application of the relevant law, not its

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factual determinations.

As such, “the Abell factors are more useful than the test

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enunciated in Townsend.” Terrovona v. Kincheloe, 912 F.2d 1176, 1179 (9th Cir. 1990).

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Because the Fourth Amendment claim was briefed before the Arizona Court of Appeals,

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Petitioner was provided a full and fair opportunity to litigate his Fourth Amendment

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claim before the state appellate court. Doc. 11-3 at 84-101, 115-130. Interestingly,

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Petitioner did not rely on or otherwise cite Gant in his appeal, which explains why the

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state appellate court did not consider Fourth Amendment arguments founded on Gant.

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The Court concludes that Petitioner’s third argument is meritless.

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IT IS ORDERED:

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The R&R (Doc. 13) is accepted.

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2.

The Clerk is directed to terminate this action.

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Dated this 14th day of July, 2014.

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