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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 German Felipe Reyes-Reyes, Petitioner, 10 11 ORDER v. 12 No. CV-14-00005-PHX-DGC Charles L. Ryan, et al., 13 Respondents. 14 15 Petitioner German Felipe Reyes-Reyes filed a Petition for Writ of Habeas Corpus 16 pursuant to 28 U.S.C. § 2254. Doc. 1. On May 20, 2014, United States Magistrate Judge 17 Mark E. Aspey issued a report and recommendation (“R&R”) recommending that the 18 petition be denied. Doc. 13 at 9. The Court will accept the R&R. 19 I. Background. 20 On January 13, 2012, two off-duty Phoenix police officers were providing security 21 for an apartment complex at 1717 West Glendale Avenue in Phoenix, Arizona. Doc. 11 22 at 3. At about 8:00 p.m., the officers noticed a black Mercedes parked in one of the 23 parking coves on the east side of the apartment complex. Id. A registration check on the 24 Mercedes revealed that it was registered to Amy Marie Siegel. 25 approached the vehicle on foot. Id. Petitioner, the sole occupant of the vehicle, was 26 talking on a cell phone. Id. The officers began conversing with Petitioner. Id. After 27 performing a warrant search on their mobile data terminal, the officers learned that there 28 was an outstanding warrant for Petitioner’s arrest, so they handcuffed him and placed him Id. The officers 1 under arrest. Id. Pursuant to the arrest, the officers searched Petitioner’s person and 2 discovered two baggies of methamphetamine in his pockets. Id. at 4. The officers also 3 noticed a black handgun protruding from underneath the center console of the Mercedes. 4 Id. The officers searched the car and found the loaded handgun. Id. The officers also 5 found another baggie of methamphetamine inside the car. Id. 6 On February 6, 2012, Petitioner was charged with one count of possession or use 7 of dangerous drugs and three counts of misconduct involving weapons. Doc. 11-1 at 7. 8 On March 29, 2012, the State of Arizona filed allegations of aggravating circumstances 9 and allegations of prior convictions, including an assertion that Petitioner committed the 10 charged offenses while on felony release. Id. at 11, 15, 18. 11 Prior to his trial, Petitioner moved to suppress all evidence collected from the 12 January 13, 2012 encounter with the two officers. Doc. 11-3 at 54. Petitioner claimed 13 that he had been illegally seized by the officers. Id. at 58. The state trial court denied the 14 motion to suppress, concluding that “[a] police officer does not need reasonable suspicion 15 or cause to approach a person and ask questions” and that Petitioner “was free to leave or 16 not talk to the officers.” Doc. 11-1 at 99. 17 On July 12, 2012, a jury convicted Petitioner on two counts. Doc. 11-2 at 135. 18 Petitioner was sentenced to concurrent terms of ten years on each count. Doc. 11-3 at 48. 19 Petitioner appealed, asserting that the trial court abused its discretion when it 20 denied his motion to suppress. Id. at 87. On June 20, 2013, the Arizona Court of 21 Appeals affirmed Petitioner’s conviction. Id. at 138-41. Petitioner sought review by the 22 Arizona Supreme Court, which denied review on December 4, 2013. Id. at 158. 23 On December 18, 2013, Petitioner initiated a state action for post-conviction relief 24 pursuant to Arizona Rule of Criminal Procedure 32. Id. at 163. Respondents assert that 25 the state proceeding is still pending. Doc. 11 at 9. On January 2, 2014, Petitioner filed 26 this Petition for Writ of Habeas Corpus. Doc. 1. 27 II. 28 Legal Standard. The Court must undertake a de novo review of those portions of the R&R to which -2- 1 specific objections are made. See Thomas v. Arn, 474 U.S. 140, 149 (1985). The Court 2 may accept, reject, or modify the findings or recommendations made by the magistrate 3 judge. See 28 U.S.C. § 636(b)(1). 4 “If the state has provided a state prisoner an opportunity for full and fair litigation 5 of his Fourth Amendment claim, [a federal District Court] cannot grant federal habeas 6 relief on the Fourth Amendment issue.” Moorman v. Schriro, 426 F.3d 1044, 1053 (9th 7 Cir. 2005) (citing Stone v. Powell, 428 U.S. 465, 494 (1976)). Whether the state court 8 correctly decided the Fourth Amendment claim is irrelevant. See Stone, 428 U.S. at 494 9 (“[W]here the State has provided an opportunity for full and fair litigation of a Fourth 10 Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the 11 ground that evidence obtained in an unconstitutional search or seizure was introduced at 12 trial.”); Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (“The relevant inquiry 13 is whether petitioner had the opportunity to litigate his claim, not whether he did in fact 14 do so or even whether the claim was correctly decided.”). 15 Stone did not specify a test for determining whether a State has provided an 16 opportunity for full and fair litigation of a claim. Stone did, however, cite Townsend v. 17 Sain, 372 U.S. 293 (1963), in a footnote. Stone, 428 U.S. at 494 n.36. Townsend held 18 that a federal court must grant a habeas petitioner an evidentiary hearing if (1) the merits 19 of the factual dispute were not resolved in the state hearing; (2) the state factual 20 determination is not fairly supported by the record as a whole; (3) the fact-finding 21 procedure employed by the state court was not adequate to afford a full and fair hearing; 22 (4) there is a substantial allegation of newly discovered evidence; (5) the material facts 23 were not adequately developed at the state-court hearing; or (6) for any reason it appears 24 that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. 25 372 U.S. at 313. In Mack v. Cupp, 564 F.2d 898 (9th Cir. 1977), the Ninth Circuit 26 explained that although the Townsend test “must be given great weight in defining what 27 constitutes full and fair consideration under Stone,” it need not “always be applied 28 literally . . . as the sole measure of fullness and fairness.” 564 F.2d at 901. The Ninth -3- 1 Circuit has also considered the extent to which the claims were briefed before and 2 considered by the state trial and appellate courts. Abell v. Raines, 640 F.2d 1085, 1088 3 (9th Cir. 1981). 4 Petitioner bears the burden of establishing that the state courts did not fully and 5 fairly consider his Fourth Amendment claim. Woolery v. Arave, 8 F.3d 1325, 1328 (9th 6 Cir. 1993). 7 III. Analysis. 8 Petitioner objects to the R&R, asserting that the Arizona courts failed to afford a 9 full and fair opportunity to litigate his Fourth Amendment claim. Doc. 14 at 1. Petitioner 10 bases his assertion on three arguments: (1) a commissioner performed an unauthorized 11 review of the evidence in his case, which yielded a defective response to Petitioner’s 12 motion for disclosure that tainted the evidentiary universe in which Petitioner’s Fourth 13 Amendment motion practice was conducted; (2) the trial court precluded any mention of 14 the nature and quality of the arrest warrant in an evidentiary hearing and at trial; and 15 (3) the Arizona Court of Appeals chose to simply affirm rather than review the trial court 16 decisions. The Court will address each of these arguments below. 17 A. Commissioner’s Review of the Evidence. 18 Petitioner argues that a commissioner has “extremely circumscribed authority” 19 under A.R.S. § 12-212 and Arizona Supreme Court Rule 96(a)(11) and that the rules 20 “distinctly withhold[] power” from a commissioner to consider matters arising under 21 Arizona Rules of Criminal Procedure 15, 16, and 35, which rules were “essential to the 22 determination of present matters.” 23 Supreme Court Rule 96(a)(11) expressly permits commissioners, if approved by the 24 presiding judge, to hear matters governed by Arizona Rules of Criminal Procedure 15, 25 16.2, and 16.3, which are the rules under which Petitioner’s motion for disclosure arose. 26 Petitioner does not argue that Commissioner Steven Lynch, the commissioner appointed 27 in this case, was not approved by the presiding judge to hear such matters. In addition, it 28 is not clear how Arizona Rule of Criminal Procedure 35, which governs the form, Doc. 14 at 3. -4- Petitioner is mistaken. Arizona 1 content, and service of motions and requests, was violated by the commissioner’s 2 participation. The Court concludes that Petitioner’s first argument is meritless. 3 B. Trial Court’s Evidentiary Rulings. 4 Because the warrant executed by the officers on January 13, 2012 was for a non- 5 extraditable misdemeanor from Yuma County, Petitioner argues that the officers did not 6 have probable cause to arrest him and that, without the arrest, the officers would not have 7 discovered the contraband on his person or in the vehicle. Doc. 14 at 2, 4. Petitioner 8 asserts that the he was denied a full and fair opportunity to litigate the Fourth 9 Amendment issue because the trial court refused to hear evidence regarding the nature 10 and quality of the arrest warrant, which would have demonstrated a clear Fourth 11 Amendment violation. Id. at 2. 12 The transcript from Petitioner’s July 9, 2012 suppression hearing demonstrates the 13 trial court addressed Petitioner’s evidence, or lack thereof, regarding the nature and 14 quality of the arrest warrant. Doc. 11-1 at 24-30. At the suppression hearing, which took 15 place two days before Petitioner’s trial, the trial court permitted Petitioner to argue that 16 the nature and quality of the arrest warrant invalidated the January 13, 2012 seizure. 17 Petitioner, however, had previously failed to raise the issue in his written motion and he 18 failed to present any statute or case law relevant to the issue at the hearing. Likewise, 19 Petitioner’s submissions in this proceeding fail to cite any controlling law suggesting that 20 the officers wrongly executed the non-extraditable misdemeanor arrest warrant from 21 Yuma County. Applying the Townsend factors, the Court concludes, that Petitioner was 22 provided a full and fair opportunity to litigate his Fourth Amendment claim before the 23 trial court. 24 C. Appellate Review. 25 Petitioner argues that the Arizona Court of Appeals “in its lock-step effort to 26 affirm the result of the inferior tribunal, necessarily had to deny reference to clearly, and 27 long established U.S. Supreme Court precedence (sic).” Doc. 14 at 4. Specifically, 28 Petitioner asserts that the Arizona Court of Appeals failed to adhere to the holding of -5- 1 Arizona v. Gant, 556 U.S. 332 (2010), which circumscribed the ability of law 2 enforcement officers to conduct warrantless vehicular searches incident to arrest after a 3 vehicle’s occupant(s) have been arrested and secured. 556 U.S. at 335. 4 This argument challenges the state court’s application of the relevant law, not its 5 factual determinations. As such, “the Abell factors are more useful than the test 6 enunciated in Townsend.” Terrovona v. Kincheloe, 912 F.2d 1176, 1179 (9th Cir. 1990). 7 Because the Fourth Amendment claim was briefed before the Arizona Court of Appeals, 8 Petitioner was provided a full and fair opportunity to litigate his Fourth Amendment 9 claim before the state appellate court. Doc. 11-3 at 84-101, 115-130. Interestingly, 10 Petitioner did not rely on or otherwise cite Gant in his appeal, which explains why the 11 state appellate court did not consider Fourth Amendment arguments founded on Gant. 12 The Court concludes that Petitioner’s third argument is meritless. 13 IT IS ORDERED: 14 1. The R&R (Doc. 13) is accepted. 15 2. The Clerk is directed to terminate this action. 16 Dated this 14th day of July, 2014. 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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