McDorman #202417 v. Ryan et al

Filing 32

ORDER ADOPTING 23 Magistrate Judge Michelle Burns's Report and Recommendation. Mr. McDorman's petition for writ of habeas corpus (Doc. 1 ) is denied with prejudice. The Clerk of the Court is directed to terminate this action Signed by Judge David G Campbell on 10/22/15. (EJA)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Troy Lynn McDorman, Petitioner, 10 11 ORDER v. 12 No. CV-14-00858-PHX-DGC Charles L. Ryan, et al., 13 Respondents. 14 15 Petitioner Troy Lynn McDorman, in a carefully-researched and well-written pro 16 se objection to Magistrate Judge Michelle Burns’s report and recommendation (R&R), 17 asks this Court to grant habeas relief. For the reasons set forth below, the Court will deny 18 his request and adopt Judge Burns’s recommendation that the petition be dismissed. 19 I. Background. 20 In February 2005, at the direction of a police detective, Petitioner’s son Adrian 21 recorded a telephone call with Petitioner. In the call, Petitioner admitted to performing 22 sexual acts on Adrian when Adrian was a juvenile, but denied performing sexual acts on 23 Adrian’s brother, Keith. Judge Burns provided the following summary: 24 25 26 27 28 Excerpts from that recorded call included Adrian asking Petitioner, “Did you ever try to touch Keith ever?” Petitioner replied, “No,” and asked, “Why?” Adrian told Petitioner, “I think he knows that you touched me . . . I think he knows for sure.” Adrian then told Petitioner that Keith had told him that Petitioner tried to give Keith a “blowjob” once before. When Petitioner denied this accusation, Adrian asked, “so it’s only been to me?” Petitioner replied, “Hm-hmm [affirmative response].” Adrian then asked, “Did you ever jerk him off ever?” When Petitioner again said no, Adrian asked, “Just me?” To this, Petitioner replied, “Yep.” 1 2 3 4 Adrian then asked Petitioner, “Is there ever really a big reason me and you did it?” Petitioner responded, “I don’t know Adrian . . . I don’t know. Shit happens.” Petitioner continued: “It’s been bugging me for years. . . . Once it first happened it’s like, now what, we’re stuck.” Petitioner later stated “It’s been a living hell for me. I know I’m sure it has been for you too. . . . I was worried about it.” When Adrian stated that he was only 12 years old when “it first started,” Petitioner acknowledged that it was “somewhere around there.” 5 6 Doc. 23 at 2-3 (citations omitted, bracket added by Judge Burns). Petitioner was 7 subsequently arrested and charged with several counts of child molestation and sexual 8 conduct with a minor. 9 Petitioner’s trial was held in Maricopa County Superior Court in November 2005, 10 and the jury heard a recording of Petitioner’s phone call with Adrian. The jury found 11 Petitioner guilty of one count of molestation of a child and two counts of sexual conduct 12 with a minor involving Adrian, and acquitted him on the one count involving Keith. The 13 trial court sentenced Petitioner to the presumptive term of incarceration for each of the 14 three counts and ordered that he serve the three counts consecutively, resulting in a 57- 15 year sentence. The Arizona Court of Appeals affirmed the conviction and the sentence in 16 November 2007. The Arizona Supreme Court denied Petitioner’s petition for review in 17 September 2008. 18 Petitioner filed two post-conviction review petitions in Maricopa County Superior 19 Court, alleging prosecutorial misconduct and ineffective assistance of counsel. The trial 20 court denied the petitions without an evidentiary hearing, the Arizona Court of Appeals 21 summarily affirmed, and the Arizona Supreme Court denied review. 22 In April 2014, Petitioner filed a petition for habeas corpus relief pursuant to 23 28 U.S.C. § 2254, alleging four grounds for relief under the Fourteenth Amendment’s 24 Due Process Clause. 25 ineffective assistance of counsel, and Grounds 2 and 4 asserted that the state 26 unconstitutionally deprived Petitioner of evidentiary hearings on Grounds 1 and 3. Judge 27 Burns found that Grounds 2, 4, and part of 1 were procedurally defaulted, the remaining 28 claims were meritless, and recommended that the petition be denied. Doc. 23. Ground 1 asserted prosecutorial miscount, Ground 3 asserted -2- 1 II. Standard of Review. 2 A party may file specific written objections to the R&R’s proposed findings and 3 recommendations. The Court must undertake de novo review of those portions of the 4 R&R to which specific objections are made. The Court may accept, reject, or modify, in 5 whole or in part, the findings or recommendations made by the Magistrate Judge. 6 Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). The Court is not required to undertake de 7 novo review of portions of the R&R to which no party specifically objects. See Thomas 8 v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 9 (9th Cir. 2003). 10 III. Analysis. 11 Petitioner filed specific written objections. Doc. 29. He concedes that relief 12 cannot be granted on Grounds 1 and 2 for reasons stated in the R&R, but argues that 13 Judge Burns erred in recommending denial of Grounds 3 and 4. Id. at 3-4, 14. 14 A. 15 Judge Burns offered the following explanation for her recommendation that the 16 17 18 19 20 21 22 23 Ground 3. Court reject Ground 3 on the merits: Although Petitioner spends the entirety of Ground Three listing counsels’ alleged errors . . . Petitioner has failed to provide any evidence or factual support to substantiate his claims. Thus, Petitioner’s claims constitute speculation, which is insufficient to establish deficient performance and resulting prejudice under Strickland [v. Washington, 466 U.S. 668 (1984)]. . . . [E]ven if the Court were to assume Petitioner has shown deficient performance, he simply cannot show that he suffered resulting prejudice . . . This case involved overwhelming evidence of Petitioner’s guilt – consisting of an admission to the conduct alleged in the charged offenses during a confrontation call. Doc. 23 at 15-16. 24 Petitioner’s objection continues to assert that his trial counsel provided deficient 25 performance. See Doc. 29 at 14-19. He also objects to Judge Burns’s conclusion that the 26 alleged deficiencies were non-prejudicial. See id. at 17-18 (contending that “there is a 27 reasonable probability that the result of the trial would have been different if the jury had 28 been made aware” of evidence tending to impeach Adrian). -3- Because Petitioner 1 specifically objects to this conclusion, the Court will review it de novo. 2 To establish a claim for ineffective assistance of counsel, a defendant must show 3 (1) that counsel’s representation “fell below an objective standard of reasonableness,” 4 and (2) prejudice – a “reasonable probability that, absent the errors, the factfinder would 5 have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 688, 695. Even if 6 Petitioner could satisfy the first part of the Stickland test, he could not establish prejudice. 7 Petitioner clearly admitted in the recorded call with Adrian that he engaged in child 8 molestation and sexual conduct with a minor. See Doc. 23 at 2. The recording was 9 played for the jury. Petitioner does not argue that the call was inadmissible, and his 10 ineffective assistance arguments do not relate to the recording or how it was presented at 11 trial. Petitioner’s arguments focus primarily on his trial counsel’s failure to take steps 12 that would have impeached the credibility of Adrian. He argues that his counsel failed to: 13 call witnesses about Adrian’s bias and motives; obtain documents from Adrian’s 14 adoption file; request a Rule 404(b) hearing on Adrian’s prior conduct; ask Petitioner 15 details about Adrian’s bias, motives, and prior conduct; inquire into whether Adrian was 16 receiving favorable treatment from the prosecutor; cross-examine Adrian effectively; and 17 mention inconsistencies in Adrian’s statements during closing arguments. Doc. 29 at 14- 18 15. But the jurors did not need to rely on Adrian’s testimony to find Petitioner guilty. 19 They had Petitioner’s recorded admission not only that he molested Adrian starting 20 around age 12, but that it had been a “living hell” for Petitioner and, he was sure, for 21 Adrian. Doc. 23 at 2-3. This evidence established Petitioner’s guilt so conclusively that 22 the alleged deficiencies of counsel would not have made a difference in the outcome of 23 the trial. Petitioner has failed to show prejudice as required by Strickland, and Ground 3 24 will be denied. 25 B. 26 Judge Burns offered the following explanation for her recommendation that the 27 28 Ground Four. Court reject Ground Four as procedurally defaulted: The record demonstrates that Petitioner raised these claims for the first time on appellate review, and never raised any of these claims to the state [trial] -4- 1 2 3 court in his PCR petitions. Consequently, these claims were not fully and fairly presented to state courts. Failure to fairly present . . . [Ground] Four has resulted in procedural default . . . . Doc. 23 at 10 (citations omitted). 4 Petitioner argues that Judge Burns misunderstood Ground Four as an objection to 5 the trial court’s failure to conduct an evidentiary hearing, when it actually is an objection 6 to the lack of such a hearing in the post-conviction proceeding. Doc. 29 at 8. Petitioner 7 contends that Ground Four was not procedurally defaulted because it was presented to the 8 first court able to hear it – the Arizona Court of Appeals, which provided direct review of 9 the post-conviction proceeding. Id. at 8-9. 10 Although Petitioner is correct that Ground Four (as characterized in his objection) 11 is not procedurally defaulted, it fails nonetheless. “[A] petition alleging errors in the state 12 post-conviction review process is not addressable through habeas corpus proceedings.” 13 Cooper v. Neven, 641 F.3d 322, 331 (9th Cir. 2011) (citing Franzen v. Brinkman, 877 14 F.2d 26, 26 (9th Cir. 1989) (per curiam)). To the extent Ground Four asks this Court to 15 grant habeas relief on the basis of the post-conviction trial court’s decision to forgo an 16 evidentiary hearing, see Doc. 29 at 6-7, it must be denied. 17 Ground Four also asks this Court to conduct its own evidentiary hearing on 18 Petitioner’s Strickland claim. See Doc 29 at 10-11. To demonstrate entitlement to an 19 evidentiary hearing, Petitioner must show that the allegations in his petition would, if 20 proven, entitle him to relief. Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001). 21 Petitioner cannot make this showing. Even if all of Petitioner’s factual allegations about 22 the ineffectiveness of his trial counsel are accepted, his Strickland claim still fails for lack 23 of prejudice. 24 reasonable probability that the alleged failure of counsel to impeach other witnesses 25 would have affected the outcome of trial. Therefore, Ground Four will be denied. Petitioner admitted to the charged conduct, and the Court sees no 26 IT IS ORDERED: 27 1. Magistrate Judge Michelle H. Burns’s R&R (Doc. 23) is accepted. 28 2. Mr. McDorman’s petition for writ of habeas corpus (Doc. 1) is denied with -5- 1 prejudice. 2 3. 3 Dated this 22nd day of October, 2015. The Clerk of the Court is directed to terminate this action. 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 -6-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?