Eftenoff v. Ryan et al

Filing 47

REPORT AND RECOMMENDATION, recommending that Petitioner's 1 Petition for Writ of Habeas Corpus be DENIED and DISMISSED with prejudice. The parties shall have fourteen days from the date of service of a copy of this recommendation within whic h to file specific written objections with the Court. Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. (See document for full details.) Signed by Magistrate Judge Michelle H Burns on 11/30/2015. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brian Thomas Eftenoff,
Petitioner,

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vs.

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Charles L Ryan, et al.,
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Respondents.

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No. CV 14-01023-PHX-NVW(MHB)
REPORT AND RECOMMENDATION

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TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE:

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On May 12, 2014, Petitioner Brian Thomas Eftenoff, who is confined in the Arizona

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State Prison Complex, Red Rock Unit, Eloy, Arizona, filed a pro se Petition for Writ of

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Habeas Corpus (hereinafter “habeas petition”) pursuant to 28 U.S.C. § 2254 (Doc. 1). On

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October 20, 2014, a Notice of Appearance on Petitioner’s behalf was filed by attorney Lee

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Phillips of the Arizona Innocence Project, along with a Motion to Amend Petition for Writ

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of Habeas Corpus. (Docs. 14, 15.) Respondents filed their Answer to Petitioner’s habeas

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petition on October 21, 2014. (Doc. 16.) This Court denied Petitioner’s motion to amend

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on October 27, 2014, ordering that Petitioner would be allowed to “clarify and amplify

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Petitioner’s habeas claims in his Reply,” and that the Court may “permit further pleadings

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by the parties to address any clarification and amplification of claims.” (Doc. 21 at 3-4.) On

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December 22, 2014, Petitioner filed his Reply, and simultaneously, a Motion to Stay and

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Abey Habeas Proceedings (hereinafter “stay and abey motion”). (Docs. 24, 25.)

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On February 10, 2015, this Court permitted Respondents to file a supplemental habeas

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answer, to address any matters newly raised in Petitioner’s Reply, within fourteen (14) days

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after the Court’s ruling on Petitioner’s stay and abey motion. (Docs. 32-34.) On March 10,

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2015, this Court filed a Report and Recommendation, recommending that Petitioner’s stay

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and abey motion be denied. (Doc. 35.) On April 28, 2015, the (presiding) Court adopted

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the recommendation to deny the motion. (Doc. 40.) Respondents thereafter, on June 11,

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2015, filed a Supplemental Answer to Petition for Habeas Corpus (“supplemental answer”)

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(Doc. 43), and on July 30, 2015, Petitioner filed his Supplemental Reply (“supplemental

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reply”) (Doc. 46).

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BACKGROUND

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Petitioner was indicted on one count of murder in the second degree, a class one

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felony for the September 23, 1999, death of his wife Judi Eftenoff and one count of transfer

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of narcotic drugs, a class 2 felony for sending cocaine to his in-laws on or between October

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8 and 13, 1999. (Doc. 16 at 9.) Petitioner was convicted at trial on both counts. On appeal

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he raised the following issues: (1) failure to sever counts; (2) failure to conduct severance

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hearing; (3) failure to grant directed verdict; (4) failure to conduct competency of minor to

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testify hearing; (5) prosecutorial misconduct in implying existence of non-existent evidence;

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(6) failure to conduct mandatory voluntariness hearing; (7) juror misconduct; (8) failure to

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exclude witness; (9) improper other bad acts testimony; and, (10) failure to grant

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mistrial/new trial. (Doc. 1-1 at 3.) Petitioner’s conviction and sentence were later affirmed

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on appeal. (Doc. 17-2 at 2.) The Arizona Court of Appeals summarized the facts supporting

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Petitioner’s convictions and sentences as follows:

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¶1

. . . The defendant was charged with second degree murder following
the death of his wife. The medical examiner attributed the death to an
intra-cerebral hemorrhage due to cocaine intoxication. Eftenoff was
also charged with transfer of narcotic drugs after he shipped a box of
the victim’s personal effects to his in-laws. Among other items, the box
contained cocaine and a note which stated everything in the box had a
story.

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The victim died sometime during the night of September 23-24, 1999.
A neighbor saw the victim returning from her mailbox between 9:00
and 10:00 p.m. on September 23 and she appeared normal. A friend

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came to Eftenoff’s home the evening of September at approximately
9:30 and was there one-half to one hour before he and Eftenoff left,
eventually going to a casino. The friend never saw the victim when he
was at the defendant’s home. Video from the casino showed Eftenoff
and his friend going into the casino at 11:43 p.m. on September 23,
1999, changing a tire in the casino parking lot, and staying until
approximately 5:20 a.m. that morning. Whenever his friend ran out of
money, Eftenoff gave him more so they could continue to gamble. If
the defendant had not continued to give him money, his friend would
have asked to leave the casino. After they returned to Eftenoff’s home,
his friend used the telephone in Eftenoff’s home office and left. He
never saw the victim. The friend admitted that he had used cocaine
with the defendant and the victim in the past and that either he or
Eftenoff had supplied the cocaine used.

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¶13

A live-in nanny helped take care of the Eftenoff’s two children. She
was out the evening of September 23 and did not return to the residence
until approximately 1:00 a.m. on September 24. She did not see the
victim or Eftenoff that evening. She awoke later that morning to the
sound of Eftenoff yelling and pounding on her bedroom door. Eftenoff
testified that after his friend left the house after their night at the casino,
he went to the master bath and found the victim on the floor. He told
the nanny that the victim was injured, and asked if she heard anything
or knew what was going on. Eftenoff then took his daughter to his
son’s bedroom, turned on the television, and closed the door. The
nanny followed him into the master bedroom, where she saw the victim
on the floor of the bathroom. The defendant had already called the 911
operator, who was still on the line.

¶14

Eftenoff pointed out bruises on the victim’s thigh and arm to the nanny.
He told her that someone must have come in the house and hurt the
victim and that something must have happened. The defendant then
attempted CPR. Later, while the nanny was speaking to a police officer
at the home, Eftenoff signaled to her that the victim was dead by
drawing his finger across his throat.

¶15

After the victim’s death, Eftenoff told Tascha Boychuk, his daughter’s
counselor, that the victim was “the boss.” The defendant admitted that
they would argue about various issues, including money. He admitted
that they argued about money either the day of or the day before the
victim’s death. Eftenoff also indicated that he was taught it was okay
to hit tomboys and that the victim was a tomboy. At trial, he
consistently denied he ever struck the victim.

¶16

The victim had been dead at least four hours when the medical
personnel arrived. She had a bruise over her left cheek, a bloody nose,
abrasions on her nose, a bruised lip, a laceration on her lip inside her
mouth, and petechia around her right eye. She had a bruise on her right
forearm, small abrasions on the back of her right hand, bruises and/or
abrasions on several knuckles of both hands, and a bruise on her left
thigh. The victim also had a bruise on the back of her head which went
all the way through the scalp. This bruise was caused by a “significant
blow,” and could have resulted in a concussion and/or loss of
consciousness, despite the lack of a skull fracture. The victim had
bruising on both sides of her neck resulting from application of

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pressure. There was also bruising to internal tissues behind the larynx
and on either side of the spinal column. The injuries to the victim’s
face, hands, arms, legs, and head were typical of those seen in scuffles.
Some of these injuries could have been defensive injuries. The victim
had no marks or bruises on her when Eftenoff’s business assistant
arrived at their home the morning of September 23 or when she saw her
later that day.

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Death was due to intra-cerebral hemorrhage due to cocaine
intoxication. There were no findings of chronic cocaine use.
Toxicological evidence indicated that, rather than multiple small doses
over a long period of time, the victim had ingested one very large dose
taken one to two hours before death. The dose was estimated at five
hundred milligrams to one thousand milligrams. One thousand
milligrams of cocaine would be fatal for a majority of people. Five
hundred milligrams of cocaine would be fatal for approximately half
the population, whether they had a tolerance or not. A medical expert
testified that it was “extremely unlikely” that the victim died of a stroke
unrelated to cocaine intoxication. An approximate time of death could
not be determined.

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Before the final autopsy report, toxicology report, or death certificate
were made available to Eftenoff or the public, Eftenoff told various
people that the victim used cocaine, had a “considerable amount” of
cocaine in her system, and may have overdosed. Eftenoff also began
to tell people, before any of the above reports were made available to
Eftenoff or the public, that once the autopsy and toxicology reports
were completed, he would be cleared of any wrongdoing.
Approximately two weeks before these reports or any information
within these reports were released, he told a co-worker of the victim
that the autopsy report showed the victim died of a cocaine overdose
and cleared him of all wrongdoing. [] There was contradictory
evidence as to whether Eftenoff could have learned of the presence of
cocaine in the victim’s body or the contents of the various reports at
any time before the reports were completed and officially made public.

¶20

After the victim’s death, Eftenoff set aside various personal effects of
the victim to send to her parents. These items were placed in a box for
shipment. Evidence showed that various people, including Eftenoff,
helped to pack the box. Many of the items had notes with them. The
nanny and Eftenoff’s assistant recognized Eftenoff’s handwriting and
identified the notes in the box as written by him. The parties stipulated
that the defendant wrote the “major writings” in the box. Eftenoff
showed the victim’s best friend that he was sending the victim’s parents
a rolled-up one dollar bill used to snort cocaine. The box remained in
his house for several days. Eftenoff’s sister and assistant later took the
box to a shipper.

¶21

On October 6, Eftenoff called the victim’s mother twice, told her he
had shipped a box, and asked if it had arrived. A few days later, he
called her again to ask if the box had arrived. When she told him it had
not, Eftenoff stated that the police possibly had it. The box arrived later
that day. After the box was shipped, Eftenoff also asked the victim’s
brother if he knew about the box. Eftenoff asked him whether he knew

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if there were any drugs in the box. The brother denied any such
knowledge. The defendant told the brother that someone told him
drugs were in the box.

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The victim’s mother waited approximately two weeks to open the box
once it arrived. Among many other items, the box contained the rolledup one dollar bill, two short plastic straws, a purple pen cap, and a
small bag containing just over one gram of cocaine. The box also
contained a handwritten letter to “Grandma and Grandpa.” A note in
the box stated that everything in the box had a story to it. The victim’s
parents believed that Eftenoff was sending them a message that the
victim used cocaine.

(Id. at 2-13.)

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Petitioner thereafter, through counsel, on December 15, 2003, filed a petition for post-

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conviction relief (“PCR”) alleging three categories of newly discovered evidence Petitioner

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claimed merited relief: 1) evidence that would show that the trial testimony of toxicology

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expert Dr. Baselt included lies or testimony that was admitted in violation of the

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Frye/Daubert standard; 2) biological evidence regarding the structure of the veins in the

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victim’s brain, and 3) evidence that the victim used excessive amounts of cocaine. (Doc. 1-2

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at 57-58.) Petitioner asserted that the newly discovered evidence would “probably change

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the verdict,” citing State v. Jeffers, 135 Ariz. 404; 661 P.2d 1105 (Ariz. 1983). (Id. at 67.)

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Petitioner also alleged ineffective assistance of trial counsel for not pursuing an interlocutory

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appeal of the trial court’s denial of Petitioner’s motion to remand to the grand jury, and for

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not demanding a Frye/Daubert hearing regarding the substance of Dr. Baselt’s testimony.

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(Id. at 70.)

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An evidentiary hearing on the PCR petition was granted by the trial court, and

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commenced on June 6, 2005. (Doc. 17-2 at 96.) The hearing continued over eight (8) days,

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and 2 years. (Docs. 17-2 to 17-6.) During these hearings Petitioner called eight witnesses,

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five of whom possessed medical expertise, and were called to rebut the trial testimony of Dr.

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Baselt and his conclusion regarding the amount of cocaine in the victim’s system and the use

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of the volume of distribution formula (“VOD”) in making his calculations: Dr. Steven Karch

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(testified, as he had at trial, that it is not possible to accurately determine how much cocaine

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a person has ingested, and criticized further Dr. Baselt’s use of the VOD calculation); Dr.

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William Hearn (testified that small amount of cocaine was found in victim’s stomach and
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consistent with post-nasal drip of snorted cocaine, that there was no evidence to support the

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prosecution’s theory that Petitioner forced cocaine down his wife’s throat, and that the VOD

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formula was misapplied by Dr. Baselt); Dr. Archiaus Moseley (testified at trial and during

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the evidentiary hearing that the amount of cocaine in the victim’s stomach was small, and

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that his opinion given during trial had changed as to this quantity); Dr. Joe Dressler (testified

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that the total amount of cocaine in the victim’s stomach was a small amount and that it would

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be nearly impossible to administer cocaine orally to an unconscious person); Chief

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Toxicologist Norman Wade (testified at trial and during the evidentiary hearing that cocaine

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found in victim’s stomach was not extremely high and an amount consistent with snorting

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cocaine and that he disagreed with Baselt’s conclusions and methods of determining the

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amount of cocaine in a person’s stomach). (Docs. 17-3 at 2-4, 77-78; 17-4 at 142-144; 17-5

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at 66-67, 143-44; 1-4 at 29-52; 17-6 at 137-143.) Additionally, the prosecution called Dr.

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Raymond Kelly to testify at the evidentiary hearing (testified that Dr. Baselt gave 35 bases

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of opinion at trial, only five of which were based on the VOD calculation, and that he

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believed that Dr. Baselt had used a scientifically valid method in reaching his opinion).

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(Docs. 17-5 at 226-27; 17-6 at 109-110;141-42.)

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After day three of the 8-day evidentiary hearing, on June 16, 2005, Petitioner’s PCR

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counsel filed a motion to amend the PCR petition to add a claim, pursuant to Ariz.R.Crim.P.

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32.1, that he had demonstrated by “clear and convincing evidence that the facts underlying

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the claim would be sufficient to establish that no reasonable fact-finder would have found

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the defendant guilty of the underlying offense beyond a reasonable doubt.” (Doc. 17-6 at

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112.) This one paragraph assertion was not supported by any further argument or evidence.

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There is no indication in the record that the trial judge ruled on the motion. After the PCR

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hearings were concluded, in the State’s Closing Memorandum, it argued that, “it ha[d]

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become clear, during the prolonged course of the[] post-conviction proceedings, that the

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Defendant has no newly discovered evidence to present, . . . and that [t]he array of witnesses

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that the Defendant paraded before this Court merely presented testimony on the same

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information presented at trial.” (Doc. 17-6 at 142-43.) In PCR counsel’s closing argument,
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she stated that “[r]egardless of what legal theory is applied; newly discovered evidence,

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ineffective assistance of counsel, or actual innocence, the fact remains that there was

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absolutely no evidence to support the prosecution’s theory that [Petitioner] forced his wife

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to swallow a single fatal dose of cocaine,” and that Dr. Baselt’s conclusions were

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“completely invalid and without any supporting evidence.” (Doc. 1-4 at 39.) PCR counsel

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stressed that “the testimony heard throughout the rule 32 hearings are one of laudable

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injustice. Wrongful convictions are a perversion of Justice and an infection of evil without

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justification. This is most certainly a case of wrongful conviction.” (Doc. 1-4 at 52.)

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The trial court ultimately ruled, on September 30, 2009, that, “for the reasons and

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arguments presented by the State in its Closing Memorandum [], (1) Defendant’s proposed

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evidence does not meet the requirements of Rule 32 and therefore does not entitle Defendant

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to post-conviction relief, (2) Defendant’s proposed evidence does not qualify as newly-

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discovered evidence under Rule 32 and therefore does not entitle Defendant to post-

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conviction relief, (3) Defendant is not entitled to a Frye hearing, and (4) Defendant has failed

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to establish that he is entitled to relief on a claim of ineffective assistance of counsel.” (Doc.

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1-4, at 53-54.) Petitioner, through newly appointed counsel, filed a Motion to Reconsider

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the court’s dismissal of his PCR petition, arguing in part that the trial court did not address

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Petitioner’s motion to amend his PCR petition. (Id. at 57 to Doc. 1-5 at 5.) The trial court

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summarily denied the motion. (Doc. 1-5 at 30.)

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Petitioner filed a Petition for Review to the Arizona Supreme Court advancing three

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arguments: (1) the trial court abused its discretion when it refused to rule on the actual

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innocence claim, which meant for all practical purposes that it had denied that claim; (2) the

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scientific testimony offered at the post-conviction hearing constituted newly discovered

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evidence; and, (3) the trial court was incorrect in holding that Petitioner was not entitled to

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a Frye hearing. (Doc. 1-5 at 6-30.) On May 15, 2013, the Arizona Court of Appeals

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summarily denied review. (Id. at 31.)

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Petitioner filed his pro se habeas petition on May 12, 2014, raising 19 claims.

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Petitioner conceded in his subsequently filed (and by then counseled) stay and abey motion
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that Claims 4a, 4c, 7a and 8b are unexhausted claims. (Docs. 25 at 3; 24 at 4.) The Court

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denied Petitioner’s stay and abey motion on April 28, 2015. (Doc. 40.) In his Reply,

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Petitioner maintains seven claims for habeas relief - withdrawing all other claims raised in

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his habeas petition. (Doc. 24 at 23-25.) Petitioner’s claims are described by Petitioner are

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as follows:

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Claim 4a: Presentation of false evidence in the grand jury violating
Petitioner’s due process rights, when the sole witness lied to and misled
the grand jury who indicted Petition on false charges. (Doc. 1, at 24;
24, at 23.) Petitioner cites Napue v. Illinois, 360 U.S. 264, 271 (1959);
United States v. Young, 17 F.3d 1201, 11203 (9th Cir. 1994); United
States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974).

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Claim 4c: Presentation of false trial testimony of key expert
witness, violating Petitioner’s due process rights. This evidence was
particularly prejudicial because the disputed testimony was the only
real evidentiary connection between Judi Eftenoff’s death and
homicide. (Docs. 1, at 26-28; 24, at 23.) Petitioner cites Giglio v.
United States, 405 U.S. 150, 154 (1972); Napue, 360 U.S. at 271;
Maxwell v. Roe, 628 F.3d 486, 508 (9th Cir. 2010); Young, 17 F.3d at
1203.

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Claim 6: Unconstitutional denial of an evidentiary hearing into
juror misconduct following proof that at least one juror communicated
with third parties about the case during jury deliberations. (Docs. 1, at
36; 24, at 24.) Petitioner cites Remmer v. United States, 47 U.S. 227,
229 (1954); State v. Miller, 178 Ariz. 555 (1994).

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Claim 7a: Ineffective assistance of trial counsel in failing to consult
an independent pathologist, a simple investigative task that would
have enabled defense counsel to, consistent with his selected trial
theory, conclusively prove that Judi Eftenoff was not murdered. (Docs.
1, at 37-38, 42; 24, at 24.) Petitioner cites Strickland v. Washington,
466 U.S. 668 (1984); Holsomback v. White, 133 F.3d 1382 (11th Cir.
1998).

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Claim 7d: Ineffective assistance of trial counsel in failing to
adequately challenge the key expert testimony against Petitioner,
including failing to request a Frye hearing and failing to adequately
cross-examine the expert. (Docs. 1, at 41, 42-44; 24, at 24.) Petitioner
cites Strickland; Holsomback.

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Claim 8a: Denial of procedural due process in depriving Petitioner
of his protected liberty interest in proving his actual innocence, as
provided by Arizona Rule of Criminal Procedure 32.1(h). (Docs. 1, at
61, 63; 24, at 24.) Petitioner cites Dist. Atty’s Office v. Osborne, 577
U.S. 52, 68 (2009).

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Claim 8b: Actual innocence sufficiently proven to render
unconstitutional Petitioner’s continued physical detention. (Docs. 1, at
48, 63; 24, at 25). Petitioner cites Osborne, 577 U.S. at 68; Schlup v.

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Delo, 513 U.S. 298, 324-25 (1995). [Petitioner only raises this claim as
to his murder conviction, not as to his transfer of narcotics conviction.
See, Docs. 1 at 48-64; 24 at 34-88.]

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Petitioner’s habeas petition had originally identified Claim 8 as a single claim of

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actual innocence. (Doc. 1 at 48-64.) In Petitioner’s Reply to Response to Habeas Petition,

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he asserts that Petitioner’s Claim 8 was actually divided into two claims. Petitioner claims

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that “[w]ithin Ground Eight of his Petition, Eftenoff makes two claims. . . .First, Eftenoff

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makes a procedural due process claim for deprivation of his protected liberty interest in

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proving his actual innocence under Arizona Rule of Criminal Procedure 32.1(h). . . . See Pet.

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at 62.” (Doc. 24 at 35.) Yet, no such indication appears on the cited page or anywhere within

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the text associated with Claim 8 in Petitioner’s habeas petition. On the basis of Petitioner’s

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interpretation of the scope of his own claim, he identifies his due process claim as Claim 8a,

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and his actual innocence Claim as 8b. (Id.)
DISCUSSION

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I.

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

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A.

Claim Cognizability

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The AEDPA provides that the Court can grant habeas relief “only on the ground that

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[a petitioner] is in custody in violation of the Constitution or laws or treatises of the United

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States.” 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 5 (2010). “[I]t is not the

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province of a federal habeas court to reexamine state-court determinations on state-law

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questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); see Gilmore v. Taylor, 508 U.S.

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333, 348-49 (1993) (“a mere error of state law, one that does not rise to the level of a

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constitutional violation, may not be corrected on federal habeas.”); Lewis v. Jeffers, 497 U.S.

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764, 780 (1990) (“federal habeas corpus relief does not lie for errors of state law”). And, a

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petitioner may not “transform a state law issue into a federal one merely by asserting a

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violation of due process.” Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (quoting

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Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)); see Engle v. Isaac, 456 U.S. 107, 120-

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21 (1982) (“While they attempt to cast their first claim in constitutional terms, we believe

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that this claim does no more than suggest that the instructions at respondents’ trials may have
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violated state law.”). A habeas petition “must allege the petitioner’s detention violates the

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constitution, a federal statute or a treaty.” Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989).

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B.

Exhaustion and Procedural Default

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Before a federal court may grant habeas corpus relief to a state prisoner, the prisoner

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must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v.

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Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 731 (1991). The

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federal court will not entertain a petition for writ of habeas corpus unless each and every

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issue has been exhausted. Pliler v. Ford, 542 U.S. 225, 230 (2004); Rose v. Lundy, 455 U.S.

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509, 521-22 (1982). To properly exhaust state remedies, the prisoner must have afforded the

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state courts the opportunity to rule upon the merits of his federal constitutional claims by

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"fairly presenting" them to the state courts in a procedurally appropriate manner. Castille v.

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Peoples, 489 U.S. 346 (1989); Baldwin v. Reese, 541 U.S. 27, 29 (2004) (stating that "[t]o

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provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' her claim

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in each appropriate state court . . . thereby alerting the court to the federal nature of the

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claim."). A petitioner must describe both the operative facts and the federal legal theory so

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that the state courts have a "fair opportunity" to apply controlling legal principles to the facts

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bearing on his constitutional claim. Id., at 33. In cases not carrying a life sentence or the

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death penalty, claims are exhausted once the Arizona Court of Appeals has ruled on them.

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Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).

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Where a prisoner fails to "fairly present" a claim to the state courts in a procedurally

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appropriate manner, his claims are procedurally defaulted. Ylst v. Nunnemaker, 501 U.S.

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797, 802-05 (1991); Coleman, 501 U.S. at 731-32. There are two types of procedural default.

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First, a state court may have applied a procedural bar when the prisoner attempted to

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raise the claim in state court. Nunnemaker, 501 U.S. at 802-05. For example, a habeas

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petitioner may be barred from raising federal claims that he failed to preserve in state court

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by making contemporaneous objections at trial or by raising the claim on direct appeal or

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post-conviction review. Bonin v. Calderon, 59 F.3d 815, 841-42 (9th Cir. 1995)(stating that

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failure to raise contemporaneous objection at trial to an alleged violation of federal rights
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constitutes a procedural default of that issue); Thomas v. Lewis, 945 F.2d 1119, 1121 (9th Cir.

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1991)(finding procedural default where the Arizona Court of Appeals held that petitioner had

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waived his claims by failing to raise them on direct appeal or in his first petition for post-

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conviction review.) If the state court found a procedural bar but also addressed the merits

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of the underlying federal claim, the "alternative" ruling does not vitiate the independent state

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procedural bar. Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Carriger v. Lewis, 971 F.2d

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329, 333 (9th Cir. 1992) (en banc court held that a state court may alternatively deny relief

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on the merits of a federal constitutional claim even after dismissing the claim on procedural

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grounds).

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A higher court's subsequent summary denial of review affirms the lower court's

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application of a procedural bar. Nunnemaker, 501 U.S. at 803. In order to "constitute

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adequate and independent grounds sufficient to support a finding of procedural default, a

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state rule must be clear, consistently applied, and well-established at the time of the

14

petitioner's default." Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994). Arizona courts

15

have consistently applied their procedural default rules. Stewart v. Smith, 536 U.S. 856, 860

16

(2002)(holding that Arizona Rule of Criminal Procedure 32.2(a) is an adequate and

17

independent procedural bar); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998)(rejecting

18

the argument that Arizona courts have not "strictly or regularly followed" Rule 32); Carriger,

19

971 F.2d at 333 (rejecting the assertion that Arizona courts' application of procedural default

20

rules had been "unpredictable and irregular").

21

In the second procedural default scenario, the state prisoner may not have presented

22

the claim to the state courts, but pursuant to the state courts' procedural rules, a return to state

23

court would be "futile." Teague v. Lane, 489 U.S. 288, 297-99 (1989). Generally, any claim

24

not previously presented to the Arizona courts is procedurally barred from federal review

25

because any attempt to return to state court to properly exhaust a current habeas claim would

26

be "futile." Ariz. R. Crim. P. 32.1, 32.2(a) & (b); Beaty v. Stewart, 303 F.3d 975, 987 (9th

27

Cir. 2002); Ariz. R. Crim. P. 32.1(a)(3) (relief is precluded for claims waived at trial, on

28

appeal, or in any previous collateral proceeding); Ariz. R. Crim. P. 32.4 (stating that in a
- 11 -

1

Rule 32 of-right proceeding, notice of post-conviction relief must be filed within 90 days

2

after entry of judgment and sentence or within 30 days appellate mandate); Ariz. R. Crim.

3

P. 32.9 (stating that petition for review must be filed within thirty days of trial court's

4

decision). A state post-conviction action is futile where it is time barred. Beaty, 303 F.3d

5

at 987; Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (recognizing untimeliness

6

under Ariz. R. Crim. P. 32.4(a) as a basis for dismissal of an Arizona petition for post-

7

conviction relief, distinct from preclusion under Rule 32.2(a)).

8

In either case of procedural default, federal review of the claim is barred absent a

9

showing of “cause and prejudice” or a “fundamental miscarriage of justice.” Dretke v.

10

Haley, 541 U.S. 386, 393-94 (2004). To establish cause, a petitioner must establish that

11

“some objective factor external to the defense impeded [his] efforts to comply with the

12

State’s procedural rules.” Murray v. Carrier, 477 U.S. 478, 488 (1986) The following

13

objective factors may constitute cause: (1) interference by state officials, (2) a showing that

14

the factual or legal basis for a claim was not reasonably available, or (3) constitutionally

15

ineffective assistance of counsel. Id. To establish prejudice, a prisoner must demonstrate

16

that the alleged constitutional violation "worked to his actual and substantial disadvantage,

17

infecting his entire trial with error of constitutional dimension." United States v. Frady, 456

18

U.S. 152, 170 (1982) (emphasis omitted). Where petitioner fails to establish cause, the court

19

need not reach the prejudice prong.

20

To establish a “fundamental miscarriage of justice” resulting in the conviction of one

21

who is actually innocent, a state prisoner must establish that it is more likely than not that no

22

reasonable juror would have found him guilty beyond a reasonable doubt in light of new

23

evidence. Schlup v. Delo, 513 U.S. 298, 327 (1995).

24

C.

Merits Analysis

25

In reviewing a cognizable claim under the AEDPA, a federal court "shall not" grant

26

habeas relief with respect to "any claim that was adjudicated on the merits in State court

27

proceedings" unless the State court decision was (1) contrary to, or an unreasonable

28

application of, clearly established federal law as determined by the United States Supreme
- 12 -

1

Court; or (2) based on an unreasonable determination of the facts in light of the evidence

2

presented in the State court proceeding. 28 U.S.C. § 2254(d); see Williams v. Taylor, 529

3

U.S. 362, 412-413 (2000) (O'Connor, J., concurring and delivering the opinion of the Court

4

as to the AEDPA standard of review). "When applying these standards, the federal court

5

should review the 'last reasoned decision' by a state court ...." Robinson v. Ignacio, 360 F.3d

6

1044, 1055 (9th Cir. 2004).

7

A state court's decision is "contrary to" clearly established precedent if (1) "the state

8

court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,"

9

or (2) "if the state court confronts a set of facts that are materially indistinguishable from a

10

decision of [the Supreme Court] and nevertheless arrives at a result different from [its]

11

precedent."

12

'unreasonable application' of Federal law if it either (1) correctly identifies the governing rule

13

but then applies it to a new set of facts in a way that is objectively unreasonable, or (2)

14

extends or fails to extend a clearly established legal principle to a new context in a way that

15

is objectively unreasonable." Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002)

16

(citation omitted). This Court must “presume the correctness of [the] state courts’ factual

17

findings” and a petitioner has the burden to “rebut this presumption with ‘clear and

18

convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465, 473-474 (2007) (quoting 28

19

U.S.C. §2254(e)(1)).

Taylor, 529 U.S. at 405-06.

"A state court's decision can involve an

20

As to a claim of actual innocence, 28 U.S.C. §2254(d)(1) provides that habeas relief

21

may be granted on an adjudicated state prisoner’s claim only if the state court’s decision was

22

“contrary to, or involved an unreasonable application of, clearly established Federal law, as

23

determined by the Supreme Court of the United States.” The Supreme Court has not yet

24

recognized actual innocence as a grounds for habeas relief absent an independent

25

constitutional violation occurring in the underlying state criminal proceedings. See Herrera

26

v. Collins, 506 U.S. 390, 400-401 (1993). The Ninth Circuit Court of Appeals has noted that

27

a majority of the Justices in Herrera would have supported a claim of free-standing

28

innocence, and that “a habeas petitioner asserting a freestanding innocence claim must go
- 13 -

1

beyond demonstrating doubt about his guilt, and must affirmatively prove he is probably

2

innocent.” Jackson v. Calderon, 211 F.3d 1148, 1165 (9th Cir. 2000) (evidence that is

3

subject to conflicting interpretation does not make the “required showing of probable

4

innocence”). See also, Carriger v. Stewart, 132 F.3d 463, 477 (9th Cir. 1997), cert. denied,

5

523 U.S. 1133 (1998) (court rejected freestanding actual innocence claim, noting that

6

petitioner had “presented no evidence, for example, demonstrating he was elsewhere at the

7

time of the murder, nor [was] there any new and reliable physical evidence, such as DNA,

8

that would preclude the possibility of guilt.”); Jones v. Taylor, 763 F.3d 1242, 1251 (9th Cir.

9

2014) (“The most that can be said of the new testimony is that it undercuts the evidence

10

presented at trial. Evidence that merely undercuts trial testimony or casts doubt on the

11

petitioner’s guilt, but does not affirmatively prove innocence, is insufficient to merit relief

12

on a freestanding claim of actual innocence.”).

13

An actual-innocence federal habeas claim that is procedurally defaulted, or raised after

14

the expiration of the AEDPA statute of limitations, may be heard, if Petitioner “persuades

15

the district court that, in light of the new evidence, no juror, acting reasonably, would have

16

voted to find him guilty beyond a reasonable doubt.” McQuiggin v. Perkins, __ U.S. __; 133

17

S.Ct. 1924, 1928 (2013) (citing Schlup, 513 U.S. at 329). The court should “count

18

unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier to relief, but as a

19

factor in determining whether actual innocence has been reliably shown.” Id.

20

II. Unexhausted Claims.

21

Claim 4a: Presentation of false evidence in the grand jury violating Petitioner’s due process
rights, when the sole witness lied to and misled the grand jury who indicted Petition on false
charges. (Docs. 1, at 24; 24, at 23.)

22
23
24

Claim 4c: State’s key witness, Dr. Baselt, testified falsely, and misrepresented to the jury that
the VOD formula he had used was scientifically valid and applicable and that an error rate
of 30% was appropriate.

26

Claim 7a: Petitioner’s trial counsel was ineffective for failing to consult with an independent
pathologist to prove that the internal bruises on the victim’s neck were not in fact bruises, and
that forced swallowing is impossible in unconscious people.

27

Claim 8b: Actual Innocence.

25

28

Petitioner acknowledges that these claims are unexhausted. (Docs. 24 at 3; 25 at 2.)
- 14 -

1

The Court previously denied Petitioner’s motion to stay and abey these claims, finding that

2

Petitioner had failed to demonstrate (1) good cause for his failure to exhaust these claims, (2)

3

that the unexhausted claims are potentially meritorious, and (3) that Petitioner’s appellate or

4

PCR counsel were ineffective for not raising these claims. (Docs. 35; 40.) Petitioner now

5

claims that his “actual innocence” may be used as a “gateway” to escape this procedural bar

6

in federal habeas proceedings, allowing the federal court to consider the claim on the merits.

7

(Doc. 46, at 3.)

8

A.

9

A federal court may review the merits of a procedurally defaulted habeas claim if the

10

petitioner demonstrates that failure to consider the merits of his claim will result in a

11

“fundamental miscarriage of justice.” Schlup, 513 U.S. at 327. A “fundamental miscarriage

12

of justice” occurs when a constitutional violation has probably resulted in the conviction of

13

one who is actually innocent. Id.

14

a petitioner makes the extraordinary showing that an innocent person was probably convicted

15

due to a constitutional violation. Id. Actual innocence thus serves as a “gateway” for a

16

petitioner to have procedurally or time-barred constitutional claims reviewed. McQuiggin,

17

__ U.S. at__, 133 S.Ct. at 1928; Smith v. Baldwin, 510 F.3d 1127, 1139-49 (9th Cir. 2007)

18

(en banc) (A claim of innocence under Schlup is “not itself a constitutional claim, but instead

19

a gateway through which a habeas petitioner must pass to have his otherwise barred

20

constitutional claim considered on the merits.”).

Innocence Gateway.

This occurs only in a “narrow class of cases” in which

21

To make such a showing, a petitioner must prove with new reliable evidence that “it

22

is more likely than not that no juror, acting reasonably, would have found petitioner guilty

23

beyond a reasonable doubt.” Schlup, 513 U.S. at 329. This new reliable evidence may

24

include “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

25

physical evidence that was not presented at trial.” Id., at 324. The habeas court must

26

consider “all the evidence,” without regard to whether it would necessarily be admitted under

27

rules of admissibility that would govern at trial. Id., at 328. A showing that a reasonable

28

doubt exists in the light of the new evidence is not sufficient: rather, the petitioner must show
- 15 -

1

that “it is more likely than not that no reasonable juror would have found [petitioner] guilty

2

beyond a reasonable doubt.” Id., at 327. Typically, the “precedents holding that a habeas

3

petitioner satisfied [the Schlup standard]” have “involved dramatic new evidence of

4

innocence.” Larsen v. Soto, 742 F.3d 1083, 1095-96 (9th Cir. 2013).

5

Petitioner claims that new evidence establishes that the blow to the victim’s head

6

could have caused her death, and that prosecution’s theory that the victim had been forced

7

to swallow cocaine has been wholly discredited. This “new evidence,” to be clear, was

8

presented by Petitioner in PCR proceedings, which the trial judge heard over a period of

9

eight days.

10

As a starting point, none of the experts who testified at trial would opine how the

11

cocaine was introduced into the victim’s system, nor definitely opine that cocaine was not

12

forced down the victim’s throat, such that the evidence Petitioner presented in PCR

13

proceedings was directly contradictory or conclusively refuted the trial testimony of the

14

state’s witnesses. (Doc. 16 at 63-64.) Petitioner extensively cross-examined Dr. Baselt

15

during trial regarding the validity of the VOD1 formula and his calculations. (Doc. 16-6 at

16

125-49.) Dr. Baselt opined that the victim had ingested one large overdose of cocaine within

17

1-2 hours of her death, and came to that conclusion taking into account both urine and blood

18

toxicology. (Doc. 16-6 at 99.) Toxicologist Norman Wade, and Dr. Steven Karch testified

19

at trial and disputed Dr. Baselt’s use of the VOD formula postmortem, and thus, the jury was

20

presented with evidence of a disagreement in the scientific community. (Docs. 16-6 at 125-

21

158; 16-9 at 49-117.) In addition, Dr. Karth opined that the victim probably used a lot of

22

cocaine within 24 hours, and died of subarachnoid hemorrhage, secondary to cocaine use.

23

(Doc. 16-9 at 101.) Thus, the jury was presented with evidence of a disagreement in the

24
25
26
27
28

1

Dr. Baselt testified at trial that the victim had ingested between 500 milligrams and
1 gram of cocaine within one or two hours of her death, with a 30% margin of error. (Doc.
16-6 at 115, 141-42, 152) The state’s expert, Dr. Kelly, testified during the PCR proceedings
that, just analyzing the cocaine in the victim’s blood, he calculated that the victim had taken
in between 117 and 372 milligrams of cocaine, taking into account other factors. (Doc. 17-6
at 59-62.)
- 16 -

1

scientific community as to the use of the VOD formula in determining the quantity of cocaine

2

consumed by the victim prior to her death.

3

During the PCR hearing, Petitioner again called Mr. Wade and Dr. Karch to testify,

4

as well as several other witnesses, who criticized Dr. Baselt’s methods and testimony.

5

Contrary to Petitioner’s assertions, the State’s expert, forensic toxicologist Dr. Raymond

6

Kelly, testified during the PCR proceedings2 that Dr. Baselt’s conclusions regarding the

7

amount of cocaine the victim had ingested was within the “wide” limits of the calculation,

8

although at the high end, and that “opinions about postmortem toxicology are always

9

somewhat unreliable.” (Doc. 17-6 at 56-61, 65.) Dr. Kelly agreed with Dr. Baselt’s use of

10

the VOD formula: “Yes, I think it was a reasonable approach. I use it. I mean, it’s similar

11

to what I would do. And that’s . . . I feel compelled to add his overall opinion had a lot to

12

do with other components than just that calculation.” (Doc. 17-5 at 216.)

13

Petitioner also called Dr. Dressler, a pathologist, who testified during the PCR hearing

14

that pouring 4.2 liters of a liquid down an unconscious person would be impossible “unless

15

you put a hose down their esophagus and pumped it into their stomach and then pulled the

16

hose out.” (Doc. 17-3 at 33-34.) He also acknowledged, however that he is not a

17

toxicologist and that he is “deficient” in the area of “postmortem redistribution of cocaine

18

in a body.” (Id. at 20.)

19

Petitioner claims that the use of the VOD formula to determine cocaine levels post-

20

mortem had been disfavored by forensic toxicologists after trial. The fact that Dr. Baselt’s

21

VOD formula may have been called into question at a Society of Forensic Toxicologists

22

(“SOFT”) convention after Petitioner’s trial is not new, nor “exculpatory scientific evidence,

23

trustworthy eyewitness accounts, or critical physical evidence” of Petitioner’s innocence.

24

Schlup, 413 U.S. at 324. Dr. Kelly also disputed the significance of the SOFT convention

25

during the PCR hearing. (Doc. 17-5 at 183-191.) The fact that a position paper arose from

26
27
28

2

Petitioner asserts that this evidence arose “since Petitioner’s PCR hearing,” but then
cites the PCR record. (Doc. 46, at 6.)
- 17 -

1

the SOFT convention is simply cumulative evidence of the disagreement in the scientific

2

community that was already presented by Petitioner during trial. Petitioner claims that new

3

evidence establishes that the bruises on the victim’s neck were not bruises, citing the opinion

4

of Dr. Dressler, a pathologist. Dr. Dressler did not testify that the bruises on the victim’s

5

neck were not in fact bruises, only that additional testing could have been done to confirm

6

the findings of the state’s experts. (Doc. 17-3 at 28-32.) Also, during the hearing Petitioner

7

called Dr. Moseley, who had performed the autopsy on the victim along with Dr. Keen, and

8

who had previously testified at trial. Dr. Moseley testified that he did not observe “strap

9

muscle hemorrhages” which he would expect to see if someone’s neck had been traumatized,

10

but did note that there was a traumatic injury to the victim’s body and that there was a large

11

amount of cocaine within her system, but that the question was, “due to what?” (Doc. 17-5

12

at 73-76, 90-91, 108-09.) Petitioner’s new evidence is not “new,” and in any event merely

13

cumulative of trial evidence.

14

Petitioner also claims new evidence establishes the fact that the victim had one

15

cerebral artery on one side of her brain that did not divide. This fact is not new evidence, as

16

it was noted in the victim’s autopsy report and therefore known at the time of trial.

17

Moreover, none of the experts, either at trial or in Petitioner’s PCR hearing has ever opined

18

that this increased the victim’s likelihood of suffering a stroke. Indeed, Dr. Dressler testified

19

that he did not know what, if any, risk factors might be associated with this rare condition.

20

(Doc. 17-3 at 14-69.)

21

Finally, Petitioner ignores the non-scientific evidence of guilt presented at trial: the

22

evidence of domestic violence by Petitioner, the evidence of conflicts over money between

23

the victim and Petitioner, evidence that Petitioner had previously forced the victim to

24

swallow an ecstacy pill, the victim’s injuries consistent with a struggle, Petitioner’s

25

statements made that the victim died of cocaine overdose before any medical examiner report

26

was released, Petitioner’s giving money to his gambling companion and thus prolonging their

27

time away from his residence, Petitioner’s bizarre gesture to the nanny indicating the victim’s

28

death, Petitioner’s bizarre actions relating to the box containing the note and cocaine that was
- 18 -

1

sent to his in-laws, the lack of any evidence of another suspect, and the fact that Petitioner

2

was the last person to be with the victim in the house before leaving to the casino. Given all

3

of the evidence presented at trial, the controversy over the VOD formula and questions raised

4

regarding its utility, Petitioner does not demonstrate that it is “more likely than not that no

5

reasonable juror would have found [petitioner] guilty beyond a reasonable doubt.” Schlup,

6

513 U.S. at 327.

7

On the last day of the 8-days of testimony in the PCR proceedings, the trial court

8

made clear its view that Petitioner’s evidence was cumulative to what had been presented at

9

trial:

10
11
12
13
14
15
16
17
18
19

[T]he cases say newly discovered evidence does not include evidence that is
merely cumulative or impeaching.
Now, one of my, one of my preliminary assessments of this case and all the
evidence so far, one way it can be characterized as Dr. Baselt testified as he
testified on the record and Dr. Karch testified. Dr. Karch did not agree with
Dr. Baselt.
Now, to the extent we get a witness that comes in and says, I agree with Dr.
Karch and therefore I disagree with Dr. Baselt, we now have testimony that is
essentially cumulative to Dr. Karch and impeaching Dr. Baselt. When we get
a witness that comes in and says, I agree with Dr. Baselt and I disagree with
Dr. Karch, we are having testimony that is cumulative to one and impeaching
the other.
(Doc. 17-6 at 96-97)
One thing I remember from Dr. Karch’s testimony, when he was testifying I
noticed quite a number of time he said, and my opinion is, and everyone else
in the scientific community agrees with me, and my opinion is thus and so. He
said that several times. You know, if one person is going to say it, okay, one
person is going to say it. I don’t know if we need seven people to say it.
(Id. at 98)

20
21
22

But the thing is you did have Dr. Karch. And as I remember, Dr. Karch
disagreed with Dr. Baselt. And he said, it’s invalid to use the volume of
distribution, that’s not proper, that’s not valid, that’s not scientifically
accepted.
(Id at 101)

23
The dispute over method of calculating the amount of cocaine in the victim’s system,
24
and the question of how the cocaine was introduced into the victim’s system (Dr. Baselt did
25
not form an opinion as to how the cocaine was introduced) does not detract from the other
26
incriminating evidence presented at trial that the victim had suffered an unnatural death and
27
the evidence of Petitioner’s knowledge and culpability. Petitioner’s PCR evidence may have
28
- 19 -

1

highlighted, or further demonstrated a disagreement in the scientific community as to the

2

method of calculating cocaine dose post-mortem, it does not necessarily amount to

3

reasonable doubt as to Petitioner’s guilt in light of the other evidence presented at trial. In

4

any event, a showing of some doubt in the light of new evidence is not sufficient to establish

5

the innocence gateway: rather, the petitioner must show that “it is more likely than not that

6

no reasonable juror would have found [petitioner] guilty beyond a reasonable doubt.”

7

Schlup, at 327.

8

Considering all of the evidence presented at trial, and the “new” evidence Petitioner

9

has presented, Petitioner fails to establish that it is more likely than not that no reasonable

10

juror would have found him guilty beyond a reasonable doubt,3 and thus no fundamental

11

miscarriage of justice occurred that excuses Petitioner’s procedural default.

12

III.

13

Claim 6: Unconstitutional denial of an evidentiary hearing into juror misconduct
following proof that at least one juror communicated with third parties about the case during
jury deliberations.
(Doc. 1 at 33.)

14

Exhausted Claims.

15
Petitioner asserts that the trial court erred in failing to conduct an evidentiary hearing
16
regarding juror misconduct, in violation of his Fifth, Sixth, and Fourteenth Amendment
17
rights. Respondents claim that Petitioner failed to exhaust this claim in the State Court by
18
not alerting the court to the federal nature of his claim. (Doc. 43 at 15-19.) The juror
19
misconduct alleged was that a juror had told his wife during jury deliberations that the jury
20
had taken a preliminary vote. Petitioner asserts that this claim is exhausted because he
21
alerted the Arizona courts to the federal basis of this claim when he cited State v. Miller, 178
22
Ariz. 555 (1994), on direct appeal, because Miller “discussed at length federal law
23
controlling jury misconduct.” (Doc. 24 at 34.) In his opening brief on appeal, Petitioner
24
25
26
27
28

3

Having found that Petitioner fails to meet the Schlup ‘innocence gateway,’
Petitioner’s substantive claim of actual innocence which is based upon the same evidence
presented to overcome procedural default, Claim 8b, and which requires affirmative proof
of probable innocence, necessarily fails on the merits, even if allowed as a ‘freestanding’
claim of actual innocence. Carriger, 132 F.3d at 476.
- 20 -

1

framed his claim as follows: “[a] juror may have received evidence not properly admitted

2

during trial by discussing the case with family and friends during jury deliberations.” (Doc.

3

1-1 at 56.) The Arizona appellate court, in its opinion, cited Miller for the standard of review

4

to be applied to “a trial court’s ruling on whether to hold an evidentiary hearing regarding

5

juror misconduct.” (Doc. 17-2 at 31.)

6

During Petitioner’s trial, a local restaurant employee had reported that a juror’s wife,

7

who was at the restaurant, told her that the jurors had taken a vote. (Id. at 57; Doc. 17-1 at

8

33-34.) The employee and the juror were interviewed at the trial court’s direction, and the

9

trial juror admitted under oath that he had told his wife the jury had taken a vote, but did not

10

tell her what the vote was or anything else about the case. (Doc. 1-1 at 57; Doc. 17-1 at 37,

11

40.) The trial court denied Petitioner’s request for an evidentiary hearing, finding no

12

prejudice to Petitioner by the juror’s conduct, and no basis pursuant to Ariz.R.Crim.P.

13

24.1(c)(3) for a new trial. (Doc. 1-1 at 57; Doc. 17-1 at 41.)

14

Petitioner claimed that the trial court “abused its discretion” by refusing to hold an

15

evidentiary hearing to further explore the reaches of the juror’s misconduct, and made the

16

following legal argument in his opening brief:

17
18
19
20

In State v. Conn, 137 Ariz. 152, 669 P.2d 581 (1982), the court affirmed the
trial court’s denial of a Motion for New Trial because the juror misconduct did
not fall within one of the grounds enumerated in Rule 24.1(c)(3), However,
Conn is distinguishable because the trial judge reached that conclusion only
after a hearing on the issue. In the instant case, the judge denied the request
to hold a hearing. A trial court must inquire into the extent and effect of the
misconduct. State v. Miller, 178 Ariz. 555, 875 P.2d 788 (1994) (emphasis in
original).

21
22
23

In State v. Spears, 184 Ariz. 277, 289, 908 P.2d 1062, ____ (1996), the court
cautioned that “trial judges should err on the side of granting an evidentiary
hearing so that they can gather as much relevant information as possible
before making their rulings.” (emphasis in original).
(Doc. 1-1 at 58-59.)

24
In a heading that precedes twelve of Petitioner’s claims on appeal, Petitioner asserts
25
that “[t]he state violated [Petitioner]s state and federal constitutional due process right to a
26
fair trial.” (Doc. 1-1 at 4.) Petitioner provided no more specifics in his appellate brief about
27
the legal nature of his claim.
28
- 21 -

1

Petitioner did not fairly present his claim by “alerting the court to the federal nature

2

of [his] claim.” Baldwin, 541 U.S. at 29. He did not describe the “federal legal theory,” so

3

that the reviewing court would apply federal law and principles and correct constitutional

4

errors. Id., at 33. The federal nature of a claim must be explicit so as to place state courts

5

on notice that the petitioner is making a federal constitutional claim. Galvan v. Alaska

6

Department of Corrections, 397 F.3d 1198, 1205 (9th Cir. 2005); Rose v. Palmateer, 395

7

F.3d 1108, 1111 (9th Cir. 2005). Furthermore, “mere similarity” of state and federal

8

standards is not enough for fair presentation. Duncan v. Henry, 513 U.S. 364, 366 (1995).

9

A petitioner’s “[m]ere mention of the federal Constitution as a whole, without specifying an

10

applicable provision,” or “of a broad constitutional concept, such as due process,” is not

11

sufficient to exhaust a federal claim. Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir.

12

2005).

13

A “fair reading” of Petitioner’s counseled appellate brief was that Petitioner cited the

14

Miller case to support an “abuse of discretion” review of his claim, which the appellate court

15

then adopted. See, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (although

16

petitioner raised right to counsel claim and cited two state cases that analyzed the right under

17

the Sixth and Fourteenth Amendment, petitioner was represented by counsel and had also

18

claimed a denial of “adequate” assistance of counsel under the state constitution - a fair

19

reading of his petition was that the cases were cited to support state-law claim). In his

20

appellate brief, Petitioner cited Conn, which also set forth “abuse of discretion” as the

21

standard of review for a claim that a new trial should have been granted for juror misconduct,

22

and Spears, which discussed both state and federal law cases in support of the court’s finding

23

that the defendant was not entitled to a new trial on allegations of juror misconduct.

24

Petitioner did not fairly present Claim 6 on appeal by alerting the reviewing court to the

25

federal nature of his claim, and thus, has not exhausted this claim.

26

procedurally defaulted this claim, as he would be precluded from raising it again as a federal

27

claim in state court, and, for the reasons stated above, does not demonstrate a miscarriage of

28

justice to excuse his default.
- 22 -

Petitioner has

1

Alternatively, Petitioner’s claim has no merit. The United States Supreme Court has

2

“repeatedly insisted” that “the right to be tried before a jury capable and willing to decide a

3

case solely on the evidence before it is a cornerstone of our criminal justice system.”

4

Mcllwain v.U.S., 464 U.S. 972, 974-75 (1983). As the Arizona appellate court held, there

5

was no evidence that the juror’s wife “received any extraneous information about the case

6

[] [and that] any suggestion otherwise is pure speculation, [and], while it was improper for

7

[the juror] to inform his wife that a preliminary vote had been taken, [] no prejudice resulted

8

from the improper communication.” (Doc. 17-2 at 31.)

9

sufficient to establish that the juror’s communication was an isolated incident that did not

10

result in the jury receiving evidence from outside sources, and did not result in any prejudice

11

to Petitioner. The state court’s decision was not an unreasonable application of clearly

12

established federal law, or an unreasonable determination of facts in light of the evidence.

13
14

Claim 7d: Ineffective assistance of trial counsel in failing to adequately challenge the
key expert testimony against Petitioner, including failing to request a Frye hearing and
failing to adequately cross-examine the expert. (Docs. 1 at 41, 42-44; 24 at 24.)

15

Petitioner claims that his trial counsel was ineffective by not requesting a Frye hearing

16

on the admissibility of witness Baselt’s testimony4, and by not adequately cross-examining

17

him at trial regarding the questionability of his opinions. “Under the Frye rule, once the

18

court determines the reliability of the procedure under the test of general acceptance,

19

evidence resulting from use of the particular technique is admissible, subject to a

20

foundational showing that the expert was qualified, the technique was properly used, and the

21

results were accurately recorded.” State ex rel. Collins v. Superior Court, In and For the

22

Maricopa County, 132 Ariz. 180, 196; 644 P.2d 1266, 1282 (Ariz. 1982); State v. Lehr, 201

23

Ariz. 509, 516; 38 P.3d 1172, 1179 (Ariz. 2002) (en banc) (to be admissible, a proponent of

24

novel scientific evidence must demonstrate that the principles being applied have reached

25

general acceptance in the scientific community, and also general acceptance of the

The trial court’s inquiry was

26
4

27
28

To the extent Petitioner claims that witness’ Baselt’s testimony was false or
misleading, this Court has already found that Petitioner has failed to demonstrate that this
claim is meritorious. (Doc. 35, at 12.)
- 23 -

1

technique(s) being used). Arizona has adopted the Frye test. Id. The test “serves the

2

‘salutary purpose of preventing the jury from being misled by unproven and ultimately

3

unsound scientific methods.’” Id., at 199, 1285 (citation omitted). “‘General acceptance’

4

does not necessitate a showing of universal or unanimous acceptance.” State v. Velasco, 165

5

Ariz. 460, 486; 799 P.2d 821, 827 (Ariz. 1990) (en banc). Scientific disagreement in the

6

medical profession over the accuracy of a particular test “affects only the weight and not the

7

admissibility of evidence.” State v. Olivas, 77 Ariz. 118, 119; 267 P.2d 893, 894 (Ariz.

8

1954).

9

Petitioner asserted that the evidence of the unreliability of the VOD formula was

10

discovered after his trial. (Doc. 1-2 at 57-65.) Thus, Petitioner’s trial counsel could not have

11

been ineffective in not requesting a Frye hearing based upon this evidence. In fact, Petitioner

12

stated in his PCR petition that Petitioner’s trial counsel had “most assuredly met the ‘due

13

diligence requirement’” with respect to the newly discovered facts. (Doc. 1-2 at 65.)

14

Additionally, during Petitioners PCR hearing, his trial counsel testified extensively as to the

15

reasons why he did not request a Frye hearing. (Doc. 17-3 at 104-163 to Doc. 17-4 at 8.)

16

Trial counsel testified that he was aware at the time of the trial that there was

17

disagreement in the relevant scientific community as to the use of the VOD formula to

18

determine postmortem levels of toxicity, and that it was in a preliminary peer-review process,

19

but that Dr. Baselt, and the other experts who testified at trial “each had their opinion based

20

upon some body of research or science or principles of science that could support their

21

position.” (Doc. 17-3 at 119-120.) Based upon trial counsel’s “conversation with Dr. Karch

22

[he believed they] weren’t going to get anywhere with that and [he preferred] to have Dr.

23

Karch testify and Norman Wade testify, . . . [as] they were both very credible witnesses.”

24

(Id.) Trial counsel had hired Dr. Karch as an expert to advise him, and Dr. Karth advised that

25

there was disagreement in the scientific community. Trial counsel also explained that

26

strategically, he decided not to request a hearing because, based upon the above, he didn’t

27

think there was a likelihood he would be successful, and in the process, by having his experts

28

testify, ran the risk of revealing all of the impeachment information relating to his experts
- 24 -

1

before trial. (Id. at 153; 17-4 at 5.) Trial counsel weighed the likelihood of success of

2

getting the evidence precluded and the ramifications if not successful, and made the tactical

3

decision not to pursue a Frye hearing. (Doc. 17-4 at 17-26.)

4

The two-prong test for establishing ineffective assistance of counsel was established

5

by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail

6

on an ineffective assistance claim, a convicted defendant must show (1) that counsel’s

7

representation fell below an objective standard of reasonableness, and (2) that there is a

8

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

9

proceeding would have been different. See id. at 687-88.

10

Regarding the performance prong, a reviewing court engages a strong presumption

11

that counsel rendered adequate assistance, and exercised reasonable professional judgment

12

in making decisions. See id. at 690. “[A] fair assessment of attorney performance requires

13

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

14

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

15

perspective at the time.” Bonin v. Calderon, 59 F.3d 815, 833 (9th Cir. 1995) (quoting

16

Strickland, 466 U.S. at 689). Moreover, review of counsel’s performance under Strickland

17

is “extremely limited”: “The test has nothing to do with what the best lawyers would have

18

done. Nor is the test even what most good lawyers would have done. We ask only whether

19

some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel

20

acted at trial.” Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir.), judgment rev’d on other

21

grounds, 525 U.S. 141 (1998). Thus, a court “must judge the reasonableness of counsel’s

22

challenged conduct on the facts of the particular case, viewed as of the time of counsel’s

23

conduct.” Strickland, 466 U.S. at 690. “Judicial scrutiny of counsel’s performance must be

24

highly deferential.” Id. at 689.

25

If the prisoner is able to satisfy the performance prong, he must also establish

26

prejudice. See id. at 691-92; see also Smith, 528 U.S. at 285 (burden is on defendant to show

27

prejudice). To establish prejudice, a prisoner must demonstrate a “reasonable probability that,

28

but for counsel’s unprofessional errors, the result of the proceeding would have been
- 25 -

1

different.” Strickland, 466 U.S. at 694. A “reasonable probability” is “a probability sufficient

2

to undermine confidence in the outcome.” Id. A court need not determine whether counsel’s

3

performance was deficient before examining whether prejudice resulted from the alleged

4

deficiencies. See Smith, 528 U.S. at 286 n.14. “If it is easier to dispose of an ineffectiveness

5

claim on the ground of lack of sufficient prejudice, which we expect will often be so, that

6

course should be followed.” Id. (quoting Strickland, 466 U.S. at 697).

7
8

In reviewing a state court’s resolution of an ineffective assistance of counsel claim,
the Court considers whether the state court applied Strickland unreasonably:

12

For [a petitioner] to succeed [on an ineffective assistance of counsel claim], ...
he must do more than show that he would have satisfied Strickland’s test if his
claim were being analyzed in the first instance, because under § 2254(d)(1),
it is not enough to convince a federal habeas court that, in its independent
judgment, the state-court decision applied Strickland incorrectly. Rather, he
must show that the [state court] applied Strickland to the facts of his case in an
objectively unreasonable manner.

13

Bell v. Cone, 535 U.S. 685, 698-99 (2002) (citations omitted); see also Woodford v.

14

Visciotti, 537 U.S. 19, 24-25 (2002) (“Under § 2254(d)’s ‘unreasonable application’ clause,

15

a federal habeas court may not issue the writ simply because that court concludes in its

16

independent judgment that the state-court decision applied Strickland incorrectly. Rather, it

17

is the habeas applicant’s burden to show that the state court applied Strickland to the facts

18

of his case in an objectively unreasonable manner.”) (citations omitted). Reviewing court

19

gives “substantial weight” to the view of the trial judge rejecting an ineffective assistance of

20

trial counsel claim. See, Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000).

9
10
11

21

The trial court found that Petitioner was not entitled to a Frye hearing, and that

22

Petitioner had failed to establish that he was entitled to relief on a claim of ineffective

23

assistance of counsel. That decision and the appellate court’s summary affirmation were not

24

based upon an unreasonable determination of the facts in light of the evidence presented at

25

trial and at the PCR hearing. Trial counsel’s belief, after consultation with experts, that he

26

would not be successful if a Frye hearing were granted, coupled with his reasonable

27

assessment that the defense could be compromised by subjecting his own experts to pretrial

28

cross-examination was a tactical decision many reasonable defense lawyers would have
- 26 -

1

made.

2

Even if Petitioner had requested a Frye hearing, there is no guarantee it would have

3

been granted, particularly in light of the fact that Petitioner’s trial judge heard the trial

4

evidence, presided over the extended PCR hearing, and ruled that Petitioner was not entitled

5

to a Frye hearing. In particular, the trial judge stressed the fact that the evidence presented

6

reflected a disagreement in the scientific community as to the VOD formula. (Doc. 17-6 at

7

96-97.) See, Olivas, 77 Ariz, at 119; 267 P.2d at 894. (scientific disagreement in the medical

8

profession over the accuracy of a particular test goes to the weight, not admissibility of the

9

evidence). Thus, Petitioner does not establish a reasonable probability that, but for counsel’s

10

unprofessional error in not requesting a Frye hearing, a request for a Frye hearing would have

11

been granted, and the evidence ultimately precluded.

12

Furthermore, even if Baselt’s testimony regarding the use of the VOD formula to

13

calculate the quantity of cocaine ingested by the victim were excluded at trial, Petitioner can

14

not demonstrate prejudice. First, all of the testifying toxicologists agreed that there was

15

cocaine in the victim’s system, but disagreed as to how much, and did not offer an opinion

16

as to how it was ingested. Petitioner’s expert, Dr. Hearn, testified in PCR proceedings that

17

it is possible that an unconscious person could be forced to swallow a substance, and that

18

cocaine was the cause of the victim’s death and the dose of cocaine was enough to cause

19

cerebral hemorrhage. (Doc. 17-2 at 245, 249.) Even Dr. Karth testified in PCR proceedings

20

that he could not rule out oral ingestion. (Doc. 17-6 at 87.) The medical examiners testified

21

during trial that the victim’s death was caused by stroke related to cocaine intoxication.

22

(Doc. 1-2 at 58-59.) Although the State prosecutor discussed Baselt’s testimony regarding

23

the VOD formula in its closing argument, he also recapped all of the other circumstantial and

24

scientific evidence and, in particular, emphasized that all of the evidence presented was like

25

a puzzle, and that the jurors should look at all of the pieces in putting the puzzle together.

26

(Doc. 17 at 45-50, 61, 64, 95.) In light of all of the evidence presented, Petitioner does not

27

establish a reasonable probability that, but for counsel’s unprofessional errors, the result of

28

the proceeding would have been different.
- 27 -

1

Given the Court’s finding that trial counsel was not ineffective in not requesting a

2

Frye hearing, and that, in any event, there is no prejudice, the Court need not determine

3

whether or not Petitioner’s PCR counsel was ineffective in not raising the claim in PCR

4

proceedings. See, Martinez v. Ryan, __ U.S. __, __; 132 S.Ct. 1309, 1318 (2012) (to excuse

5

procedural default, a petitioner must establish that the performance of post-conviction

6

counsel was deficient, which necessarily involves finding that the underlying claim is

7

substantial).

8

Petitioner also references a 48 Hours interview that aired after Petitioner’s trial during

9

which he claims that “multiple jurors stated that they relied heavily on Dr. Baselt’s testimony

10

regarding the quantity of cocaine that [the victim] had ingested in their decision to convict

11

him.” (Doc. 1 at 16.) Petitioner attaches no supporting documentation, no affidavits from

12

jurors, and nor does he cite any independent record that exists outside the record to support

13

his claim. Bare allegations are simply not sufficient to justify an evidentiary hearing. See,

14

28 U.S.C. §2254(e)(2). Additionally, the Court is prohibited, as a general matter, from

15

inquiring into the thought processes of jurors, and their testimony is not admissible to

16

impeach a verdict. See State v. Nelson, 273 P.3d 632, 643 ¶48 (Ariz. 2012). This rule

17

serves, in part, to protect “the finality of jury verdicts.” Id. (citation omitted).

18
19

Claim 8a: Denial of procedural due process in depriving Petitioner of his protected
liberty interest in proving his actual innocence, as provided by Arizona Rule of Criminal
Procedure 32.1(h). (Docs. 1 at 61, 63; 24 at 24.)

20

Nearly eighteen months after filing his PCR petition, and after day three of the 8-day

21

PCR evidentiary hearing, on June 16, 2005, Petitioner’s PCR counsel filed a motion to

22

amend the PCR petition to add a claim, pursuant to Ariz.R.Crim.P. 32.1(h), that he had

23

demonstrated by “clear and convincing evidence that the facts underlying the claim would

24

be sufficient to establish that no reasonable fact-finder would have found the defendant guilty

25

of the underlying offense beyond a reasonable doubt.” In his motion, Petitioner did not

26

identify the “facts” or the “claim” to which he was referring. (Doc. 17-6 at 112.) The State

27

filed a response opposing the motion to amend as untimely, as it was filed “over two and a

28

half years after filing the petition,”and for the reason that Petitioner had not shown “good
- 28 -

1

cause” for the amendment as required by Ariz. R. Crim. P. 32.6(d). (Doc. 17-6 at 116-17.)

2

There is no indication in the record that the trial judge ruled on the motion, and no record of

3

any further action on the part of Petitioner to advance the claim, despite the PCR hearings

4

continuing, and not concluding until June 19, 2007, nearly 2 years later. On October 31,

5

2008, the State filed a motion to dismiss the PCR proceedings, based on the fact that, at the

6

close of the hearings on June 19, 2007, the trial court had directed Petitioner to identify any

7

rebuttal witnesses, and, after 16 months, had failed to do so. (Doc. 17-6 at 121.)

8

Both parties also filed Closing Memorandums. In the State’s Closing Memorandum,

9

filed on May 7, 2009, it argued that, “it ha[d] become clear, during the prolonged course of

10

the[] post-conviction proceedings, that the Defendant has no newly discovered evidence to

11

present, . . . and that “[t]he array of witnesses that the Defendant paraded before this Court

12

merely presented testimony on the same information presented at trial.” (Doc. 17-6 at 142-

13

43.) The State also asserted that the evidence presented by Petitioner did not rise to a

14

colorable “newly-discovered evidence” claim, pursuant to State v. Bilke, 162 Ariz. 51; 781

15

P.2d 28 (1989), as it did not meet the five requirements, to include that “the evidence must

16

be such that it would likely have altered the verdict, finding or sentence if known at the time

17

of trial.” (Doc. 17-6 at 138.)

18

In PCR counsel’s Closing Argument, she stated that “[r]egardless of what legal theory

19

is applied; newly discovered evidence, ineffective assistance of counsel, or actual innocence,

20

the fact remains that there was absolutely no evidence to support the prosecution’s theory

21

that [Petitioner] forced his wife to swallow a single fatal dose of cocaine,” and that Dr.

22

Baselt’s conclusions were “completely invalid and without any supporting evidence.” (Doc.

23

1-4 at 39.) PCR counsel stressed that “the testimony heard throughout the rule 32 hearings

24

are one of laudable injustice. Wrongful convictions are a perversion of Justice and an

25

infection of evil without justification. This is most certainly a case of wrongful conviction.”

26

(Doc. 1-4 at 52.)

27

presented by the State in its Closing Memorandum [], (1) Defendant’s proposed evidence

28

does not meet the requirements of Rule 32 and therefore does not entitle Defendant to post-

The trial court ultimately ruled that, “for the reasons and arguments

- 29 -

1

conviction relief, (2) Defendant’s proposed evidence does not qualify as newly-discovered

2

evidence under Rule 32 and therefore does not entitle Defendant to post-conviction relief,

3

(3) Defendant is not entitled to a Frye hearing, and (4) Defendant has failed to establish that

4

he is entitled to relief on a claim of ineffective assistance of counsel.” (Doc. 1-4 at 53-54.)

5

Petitioner claims he was denied a “protected liberty interest without due process” by

6

the trial court’s failed to rule on his motion to amend, and thereby deprived of the right to

7

present, argue and obtain a ruling on his claim of actual innocence. (Doc. 24 at 82.) As an

8

initial matter, any claimed error in state court proceedings is not cognizable on habeas

9

review. See Villafuerte v. Stewart, 111 F.3d 616, 632 n. 7 (9th Cir. 1997) (stating that

10

petitioner’s “claim that he was denied due process in his state habeas proceedings” was not

11

“addressable in a section 2254 proceeding”); Franzen v. Brinkman, 877 F.2d 26 (9th Cir.

12

1989) (holding “a petition alleging errors in the state post-conviction review process is not

13

addressable through habeas corpus proceedings”). Simply citing “due process” does not

14

“transform a state-law issue into a federal one.” Langford, 110 F.3d at 1389.

15

Alternatively, Petitioner’s claim fails on the merits, as it is clear by the record that the

16

trial court afforded Petitioner ample due process by conducting an extended evidentiary

17

hearing that afforded Petitioner the opportunity over the course of 2 years to present all of

18

the evidence supporting his claim. Other than filing a motion to amend that gave only bare

19

minimum notice of an actual innocence claim, Petitioner did nothing further over a period

20

of 24 months to advance the motion by requesting a ruling, or presenting the court with the

21

information supporting his claim. And, if the evidence of actual innocence was the newly

22

discovered evidence presented by Petitioner during PCR proceedings, Petitioner did in fact

23

argue that this evidence demonstrated actual innocence. Furthermore, this Court has already

24

found that:

25
26
27
28

It is clear by the record that the trial court’s denial of Petitioner relief pursuant
to Ariz.R.Crim.P. 32 was based upon the trial court’s view, as argued by the
state, that Petitioner merely presented testimony cumulative to the same
information presented at trial. Whether the standard upon further postconviction review is ‘evidence that would probably change the verdict,’ ‘actual
prejudice due to ineffective assistance,’ or ‘evidence establishing that no
reasonable fact-finder would have found Petitioner guilty beyond a reasonable
- 30 -

1
2

doubt,’ the trial court made clear that the evidence was simply not sufficient
to support post-conviction relief.
(Docs. 35 at 16; 40.)

3

Subsequent to the trial court’s denial of Petitioner’s PCR claims, Petitioner filed a

4

motion for reconsideration and then petitioned for review by the Arizona Court of Appeals,

5

arguing that the trial court abused its discretion by not ruling on Petitioner’s actual innocence

6

claim, both of which were summarily denied. (Docs. 1-4 at 57; 1-5 at 5, 6, 17, 31.) The

7

denial of Petitioner’s belated motion to amend, either by operation of law or pursuant to the

8

dismissal and denial of his PCR petition, does not demonstrate that he was denied an

9

opportunity to raise a Rule 32.1(h) claim, as the record of PCR proceedings amply

10

demonstrates. Petitioner fails to demonstrate that the State court’s failure to affirmatively

11

rule on his motion to amend, in light of its ruling on the merits Petitioner’s claims, was

12

contrary to, or an unreasonable application of, clearly established federal law as determined

13

by the United States Supreme Court, or based on an unreasonable determination of the facts

14

in light of the evidence presented in the State court proceeding.

15

CONCLUSION

16

The Court denies Petitioner’s request for an evidentiary hearing, as the “record refutes

17

[Petitioner]’s factual allegations or otherwise precludes habeas relief.” Landrigan, 550 U.S.

18

at 474. Also, having found that Petitioner’s Claims 4a, 4c, 7a, and 8b, are procedurally

19

defaulted and that Petitioner has failed to demonstrate cause and prejudice or a fundamental

20

miscarriage of justice to excuse the default, that Petitioner’s Claim 6 is non-cognizable in

21

federal habeas and alternatively lacks merit, and that Claim 7 lacks merit and in any event

22

there is no prejudice, and that Claim 8a lacks merit, the Court will recommend that

23

Petitioner’s habeas petition be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner’s Petition for Writ of

24
25

Habeas Corpus (Doc. 1) be DENIED and DISMISSED with prejudice.

26

\\\

27

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28

\\\
- 31 -

1

This recommendation is not an order that is immediately appealable to the Ninth

2

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of

3

Appellate Procedure, should not be filed until entry of the district court’s judgment. The

4

parties shall have fourteen days from the date of service of a copy of this recommendation

5

within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1);

6

Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen

7

days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of

8

Civil Procedure for the United States District Court for the District of Arizona, objections

9

to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure

10

timely to file objections to the Magistrate Judge’s Report and Recommendation may result

11

in the acceptance of the Report and Recommendation by the district court without further

12

review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure

13

timely to file objections to any factual determinations of the Magistrate Judge will be

14

considered a waiver of a party’s right to appellate review of the findings of fact in an order

15

or judgment entered pursuant to the Magistrate Judge’s recommendation. See Rule 72,

16

Federal Rules of Civil Procedure.

17

DATED this 30th day of November, 2015.

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