Stanford v. Ryan et al

Filing 21

ORDER, accepting and adopting the 18 Report and Recommendation. The objections (Doc. 20 ) are overruled; the Amended Petition for Writ of Habeas Corpus (Doc. 15 ) is DENIED and the Clerk shall enter judgment of dismissal, with prejudice. I T IS FURTHER ORDERED that pursuant 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. § 2253(c)(2). Signed by Senior Judge James A Teilborg on 07/21/2015. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert B. Stanford,

No. CV-14-00175-PHX-JAT
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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Pending before the Court is the Magistrate Judge’s Report and Recommendation

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(“R&R”) (Doc. 18), recommending that Petitioner’s Amended Petition Under 28 U.S.C.

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§ 2254 for a Writ of Habeas Corpus By a Person in State Custody (Non-Death Penalty)

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be denied, and that the Court decline to issue a certificate of appealability.

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I.

BACKGROUND

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A.

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Petitioner is serving an eighteen year sentence in the Arizona State Prison

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Complex in Florence, Arizona for a second degree murder conviction. Petitioner’s

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convictions arise out of an altercation that occurred outside the Redfish Grill and Bar in

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Chandler, Arizona. The Arizona Court of Appeals recounted the events as follows:

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On August 6, 2007, [Petitioner] was asked to leave the Redfish Grill
and Bar (“Redfish”) because he was arguing with a bar patron. As the head
bouncer escorted [Petitioner] to his car, they crossed paths with Victim in
the parking lot. [Petitioner] and Victim made eye contact, and then

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Factual Background

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[Petitioner] asked him “what the f*** he was looking at.” Victim reacted to
[Petitioner] by yelling that [Petitioner] did not know who he was.
[Petitioner] and Victim continued yelling and tried to fight one another but
were separated by other bouncers. The yelling continued across the parking
lot as the head bouncer escorted [Petitioner] away from Victim and to his
car. Once at the car, [Petitioner] told the head bouncer that ‘he’s got
something for [Victim] in the car, that he’ll take care of it.’ [Petitioner] then
got into the car, apologized to the bouncer for the situation, said he was
leaving for the night, and drove off.
A few minutes after [Petitioner] drove off, the bouncer monitoring
the patio saw [Petitioner’s] car return to the parking lot. [Petitioner] was
driving and began circling the parking lot in the same direction about five
or six times. About ten to fifteen minutes after [Petitioner] left, the
headbouncer saw Victim inside the restaurant. Although Victim was acting
fine, was not arguing with anyone, and was not as upset as he had been in
the parking lot, the head bouncer escorted him out of the restaurant because
it was standard procedure for anyone involved in a confrontation to be
escorted out of the restaurant. Victim was initially upset that he was asked
to leave but was calm as another bouncer escorted him to his car. That
bouncer then returned to the front of the restaurant with the head bouncer.
Less than a minute later, they heard gunshots, and then Victim came around
the corner of the restaurant and collapsed in front of them. Victim had been
shot . . . . Victim died from internal bleeding because the bullet hit his
lungs.
Officers from the Chandler Police Department quickly arrived at the
crime scene. Officers could not find anyone who witnessed the shooting but
found two .45 caliber shell casings, a bullet hole in a nearby restaurant, and
a bullet hole in Victim’s car. Police determined the shooter used a .45
caliber gun.
The investigation led police to [Petitioner]. Police searched
[Petitioner’s] apartment and found a receipt for a .45 caliber gun and .45
caliber ammunition. During a police interview with the case agent,
[Petitioner] initially lied and said he was not involved with the shooting at
the Redfish. Later in the interview, however, [Petitioner] confessed to
shooting Victim with a .45 caliber gun but claimed it was self-defense.
According to [Petitioner], the following occurred. First, Victim hit him
while the head bouncer was escorting him to his car. When [Petitioner] was
in his car, Victim then jumped on the hood, hit him in the head through the
window, leaned into the car, and tried to grab [Petitioner’s] gun, which was
on his lap. [Petitioner] was scared that the Victim was going to kill him, so
he pulled the trigger three times and drove away, not knowing whether or
not he shot Victim. [Petitioner] then disposed of the gun and went home.
(Doc. 18 at 2–3) (quoting Doc. 16-1 at 56–59).
B.

Procedural History

The Magistrate Judge correctly recited the procedural history of this case as
follows:
On August 17, 2007, the Maricopa County Grand Jury indicted
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Petitioner for one count of second degree murder. (Ex. A at 1-2; Doc. 16-1
at 2–3). Petitioner’s six-day trial began on December 1, 2008. (Ex. B; Doc.
16-1 at 6). On December 9, 2008, the jury found Petitioner guilty as
charged. (Ex. B; Doc. 16-1 at 30). The trial court thereafter sentenced
Petitioner to 18 years in prison. (Ex. J; Doc. 16-1 at 36).
Following his 2009 conviction, Petitioner appealed to the Arizona
Court of Appeals. (Ex. K; Doc. 16-1 at 40). In its May 25, 2010 decision,
the Arizona Court of Appeals affirmed Petitioner’s conviction and
sentence. (Ex M; Doc. 16-1 at 55). Petitioner did not file a petition for
review in the Arizona Supreme Court.
On March 19, 2010, Petitioner filed a notice of post-conviction
relief (“PCR”). (Ex N; Doc. 16-1 at 66). In his May 6, 2011 PCR petition,
Petitioner raised three claims, which alleged that Petitioner’s trial counsel
was ineffective for failing to: (i) call alleged eye-witness Shiekh Ajamu
(“Ajamu”) at trial; (ii) raise the issue of the victim’s aggressive nature and
criminal background; and (iii) test Petitioner’s driver side window frame
for the victim’s DNA. (Ex. O; Doc. 16-1 at 73-84). Attached to the PCR
petition is an affidavit from Ajamu, which states that the victim jumped
onto Petitioner’s vehicle in an aggressive manner, then leaned into the
vehicle and began fighting with Petitioner. (Ex. O, Attachment A; Doc. 161 at 97-98). Ajamu further states that after Petitioner and the victim tugged
back and forth on Petitioner’s gun, the gun discharged several times. In
addition, Ajamu asserts that he contacted Petitioner’s trial counsel at least
two times to explain what Ajamu witnessed, but trial counsel did not take
Ajamu’s statement or interview him. Finally, Ajamu averred that if he had
been called as a trial witness, he would have testified to the statements
made in his affidavit. (Id.).
On September 8, 2011, the trial court dismissed the PCR petition.
(Ex. R; Doc. 16-1 at 182). The court found that Petitioner had failed to state
a colorable claim of ineffective assistance of counsel (“IAC”). (Ex. R; Doc.
16-1 at 179).
Petitioner filed a petition for review in the Arizona Court of Appeals
on October 6, 2011. (Ex. S; Doc. 16-2 at 2). On August 17, 2012, the
Arizona Court of Appeals denied relief after finding that Petitioner had
failed to establish his IAC claim. (Ex. T; Doc. 16-2 at 87). Petitioner filed a
petition for further review in the Arizona Supreme Court, which the
Arizona Supreme Court denied on February 15, 2013. (Ex. V; Doc. 16-2 at
121).
On January 30, 2014, Petitioner timely filed a Petition for Writ of
Habeas Corpus (Doc. 1). On April 14, 2014, with the Court’s permission,
an amended Petition was filed (Doc. 15).

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(Doc. 18 at 4–5).

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Petitioner summarizes the claims in his Amended Petition as follows: “Petitioner’s

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Due Process rights were violated when his trial counsel provided ineffective assistance of

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counsel with respect to failing to find, interview, and call as a witness at trial the only

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eye-witness to the shooting whose testimony would have supported and bolstered

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Petitioner’s claim of self-defense.” (Doc. 15 ¶ 11.2). Notably, the Amended Petition

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claims, and Defendant does not dispute, that at trial, “the jury asked to hear from the eye-

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witness [trial] counsel failed to call as a witness.” (Id.).

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On March 24, 2015, the Magistrate Judge assigned to this case issued her R&R,

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recommending that the Amended Petition be denied. (Doc. 20). Petitioner filed his

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objections to the R&R on April 7, 2015.

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II.

STANDARD OF REVIEW

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

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

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

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

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

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F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes

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that de novo review of factual and legal issues is required if objections are made, ‘but not

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otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d

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1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the

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[magistrate judge’s] recommendations to which the parties object.”). District courts are

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

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objection.”1 Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28

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

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portions of the [report and recommendation] to which objection is made.”).

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The Petition in this case was filed under 28 U.S.C. ' 2254 because Petitioner is

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incarcerated based on a state conviction. With respect to the claims Petitioner exhausted

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before the state courts, under 28 U.S.C. '' 2254(d)(1) and (2) this Court must deny the

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Petition on those claims unless “a state court decision is contrary to, or involved an

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Petitioner’s objections did not mention the Magistrate Judge’s conclusion that an
evidentiary hearing is not warranted. The Court therefore summarily accepts and adopts
that portion of the R&R.
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unreasonable application of, clearly established Federal law”2 or was based on an

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unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003).

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Further, this Court must presume the correctness of the state court’s factual findings

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regarding a petitioner’s claims. 28 U.S.C. ' 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923,

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936 (9th Cir. 1998).

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“When applying these standards, the federal court should review the ‘last reasoned

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decision’ by a state court . . . .” Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

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III.

DISCUSSION

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Under Strickland v. Washington, 466 U.S. 668 (1984) and its progeny, “[a]n

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ineffective assistance claim has two components: A petitioner must show that counsel’s

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performance was deficient, and that the deficiency prejudiced the defense.” Wiggins v.

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Smith, 539 U.S. 510, 521 (2003) (internal citations and quotations omitted). The Court

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will address Petitioner’s objections regarding each of these prongs separately.

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A.

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A deficient performance is one that is “outside the wide range of professionally

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competent assistance,” Strickland, 466 U.S. at 690, meaning that the petitioner must

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demonstrate that trial counsel’s representation “fell below an objective standard of

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reasonableness,” Wiggins, 539 U.S. at 521 (internal citations and quotations omitted).

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The Supreme Court has recognized that within this standard of reasonableness, “[c]ounsel

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has a duty to make reasonable investigations or to make a reasonable decision that makes

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particular investigations unnecessary.” Strickland, 466 U.S. at 691. “[A] particular

Performance

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Further, in applying “Federal 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)(AIn attempting to answer [whether the state court applied Federal law in an
objectively reasonable manner], the only definitive source of clearly established federal
law under AEDPA is the holdings (as opposed to the dicta) of the Supreme Court as of
the time of the state court decision. Williams [v. Taylor], 529 U.S. [362], 412 [(2000)].
While circuit law may be “persuasive authority” for purposes of determining whether a
state court decision is an unreasonable application of Supreme Court law, Duhaime v.
Ducharme, 200 F.3d 597, 600-01 (9th Cir.1999), only the Supreme Court’s holdings are
binding on the state courts and only those holdings need be reasonably applied. See
Williams, 529 U.S. at 412 (“The ... statutory language makes clear ... that ' 2254(d)(1)
restricts the source of clearly established law to this Court’s jurisprudence.”).
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decision not to investigate must be directly assessed for reasonableness in all the

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circumstances, applying a heavy measure of deference to counsel’s judgments.” Hovey v.

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Ayers, 458 F.3d 892, 909 (9th Cir. 2006) (quoting Strickland, 466 U.S. at 691). Indeed,

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“[j]udicial scrutiny of counsel’s performance must be highly deferential, and a fair

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assessment of attorney performance requires that every effort be made to eliminate the

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distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

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conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland,

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466 U.S. at 669. Trial counsel is not required to interview every possible witness to be

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effective. See Bobby v. Van Hook, 558 U.S. 4, 11 (2009).

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Petitioner argues that regardless of what Ajamu initially told trial counsel, “there

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is no reasonable explanation for not interviewing Ajamu prior to trial.” (Doc. 20 at 2).

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Citing Ajamu’s post-trial affidavit, Petitioner claims that trial counsel should not have

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been satisfied with Ajamu’s initial communications because (1) he was not under oath,

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(2) he “did not provide a full statement,” and (3) he only spoke with trial counsel “to

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ascertain his own potential risk of prosecution.” (Doc. 20 at 3). Thus, Petitioner argues

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that trial counsel should have investigated further to determine the real extent of Ajamu’s

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testimony.

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These arguments fail. Because a reviewing court must “eliminate the distorting

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effects of hindsight,” Strickland, 466 U.S. at 689, the Court may not look to Ajamu’s

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affidavit, as Petitioner did, to determine why Ajamu initially approached trial counsel or

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whether he gave trial counsel “a full statement.” (Doc. 20 at 2–3). Furthermore, Petitioner

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gives no authority for the proposition that trial counsel may not rely on a witness’s

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unsworn statements when determining whether to conduct further investigation.

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A brief review of the emails sent by trial counsel to current counsel demonstrates

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that, given the information he had at the time, trial counsel did not act unreasonably when

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he decided not to formally interview or call Ajamu as a witness. Trial counsel noted in

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these emails that Ajamu “did not give me information that was exculpatory for

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[Petitioner],” that “[i]n our conversations [Ajamu’s] account of what happened did not

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match [Petitioner’s] story,” and that because Petitioner’s story had “changed frequently,”

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adding Ajamu’s story would not help, “in fact, I thought it would hurt” Petitioner’s case.

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(Doc. 16-1 at 100–01). Given this information, the Court agrees with the Magistrate

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Judge’s conclusion that “Petitioner has failed to show how trial counsel’s performance

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fell below a standard of reasonableness under prevailing professional norms.”3 (Doc. 18

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at 11) (citing Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014)).

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B.

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Even if Petitioner’s performance was inadequate, Petitioner has failed to show

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prejudice. In order to show prejudice, Petitioner “must show that there is a reasonable

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probability that, but for counsel’s unprofessional errors, the result of the proceeding

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would have been different. A reasonable probability is a probability sufficient to

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undermine confidence in the outcome.” Strickland, 466 U.S. at 694; accord Harrington

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v. Richter, 562 U.S. 86, 112 (2011) (“The likelihood of a different result must be

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substantial, not just conceivable.”). When analyzing the prejudice prong of the Strickland

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analysis, reviewing courts must consider the totality of the evidence and the strength of

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the government’s case. Alcala v. Woodford, 334 F.3d 862, 872 (9th Cir. 2003); see also

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Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986).

Prejudice

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Petitioner first argues that “[t]he issue is not whether the jury would have believed

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Ajamu—that would be an impossible standard for Petitioner to meet—the issue is

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whether Ajamu should have been called as a witness.” (Id.). This argument ignores

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Strickland’s prejudice prong altogether. It is well-established that in addition to showing

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an error by trial counsel, Petitioner must also show that, were it not for the error, there

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would have been a substantial chance that the outcome would have been different.

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Richter, 562 U.S. at 112. Therefore, it is not enough, as Petitioner suggests, that “Ajamu

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should have been called as a witness.”

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If Petitioner claims that not formally interviewing the only third party witnesses
to a shooting is a per se violation of professional standards, he has not cited any authority
for this proposition. In the absence of such authority, the Court declines to adopt such a
broad declaration of a trial lawyer’s duty.
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Next, Petitioner argues that prejudice is evident from “the jury’s multiple requests

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and inquiries regarding why they did not hear from Ajamu.” (Doc. 20 at 3). The Court

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agrees that these requests indicate the jury likely drew a negative inference from Ajamu’s

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failure to testify. The requests alone, however, do nothing to prove how the jury would

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have viewed Ajamu’s testimony had he testified.

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Indeed, given the strength of the government’s evidence, it is unlikely that the jury

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would have changed its verdict if Ajamu would have testified. As the Magistrate Judge

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correctly pointed out, the government presented convincing objective evidence that

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contradicted Petitioner’s theory of the case:

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For example, a police detective . . . . testified that the physical
evidence did not corroborate Petitioner’s version of the events. After
conducting a reenactment, the detective concluded that if the events
happened as Petitioner alleged, shell casings from the gun would have
landed inside the vehicle. (Ex. Y at 66; Doc. 16-3 at 176). Yet the shell
casings were found in Redfish’s parking lot, not inside Petitioner’s vehicle.
(Ex. Y at 65; Doc. 16-3 at 175). Petitioner’s vehicle did not have visible
damage and there was no blood or firearms evidence inside the car. (Ex. Y
at 62; Doc. 16-3 at 172).
In addition, a forensic pathologist testified at Petitioner’s trial that
powder burns were not found on the victim’s hands, which would be
reasonably expected if the victim had been holding onto the barrel of the
gun as Petitioner alleged. (Ex. Z at 34; Doc. 16-4 at 35). In addition, gun
powder particles were not found on the victim’s shirt and the shirt was not
torn or singed, which could occur if the victim had been touching the gun
barrel or had been within a few inches of the barrel when it was fired. (Ex.
Z at 49-51; Doc. 16-4 at 50–52).
(Doc. 18 at 11–12).

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Because Ajamu would have testified to the same version of events Petitioner

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presented at trial, his testimony would have been contradicted by the same objective

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evidence that discredited Petitioner’s theory. Thus, even if Ajamu had testified, a jury

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would likely have discredited Ajamu’s testimony, just as they rejected Petitioner’s

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matching theory. It is, of course, possible that Ajamu’s testimony could have convinced

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the jury to ignore the objective evidence and believe the Petitioner’s story, but mere

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possibility cannot sustain a finding of prejudice. See Richter, 562 U.S. at 112 (“The

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likelihood of a different result must be substantial, not just conceivable.”). Accordingly,

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given the weight of the objective evidence offered by the government that contradicts

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Ajamu’s account, Petitioner has failed to show that calling Ajamu’s testimony would

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have changed the outcome of the trial.

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IV.

CONCLUSION

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Accordingly,

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IT IS ORDERED that the Report and Recommendation (Doc. 18) is

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ACCEPTED AND ADOPTED; the objections (Doc. 20) are overruled; the Amended

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Petition for Writ of Habeas Corpus (Doc. 15) is DENIED and the Clerk of the Court

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shall enter judgment of dismissal, with prejudice.

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

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

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

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

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Dated this 21st day of July, 2015.

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