Menendez v. Ryan et al

Filing 17

*ORDER ADOPTING REPORT AND RECOMMENDATION: Magistrate Judge Metcalf's R&R (Doc. 14 ) is accepted, Petitioner's petition for writ of habeas corpus (Doc. 1 ) is denied, and a Certificate of Appealability is denied. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 12/15/15. (KGM) *Modified to correct text on 12/15/2015 (KGM).

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Justin Noel Menendez, No. CV-14-02436-PHX-DGC Petitioner, 10 11 v. 12 ORDER Charles L. Ryan, et al., 13 Respondents. 14 15 16 Petitioner Justin Menendez filed a Petition for Writ of Habeas Corpus pursuant to 17 28 U.S.C. § 2254. Doc. 1. On October 20, 2015, Magistrate Judge Metcalf issued a 18 Report and Recommendation (“R&R”) recommending that the Petition be denied. 19 Doc. 14 at 48. 20 response (Doc. 16). 21 objections and accept Judge Metcalf’s recommendations in full. 22 I. Petitioner objected to the R&R (Doc. 15) and Respondents filed a For the reasons that follow, the Court will deny Petitioner’s Background. 23 On November 15, 2006, detectives placed Petitioner under surveillance. Doc. 14 24 at 1. That night and into the morning of November 16th, detectives witnessed Petitioner, 25 who was wearing dark clothing and dark gloves, and an accomplice, make several trips 26 between his house and a nearby unoccupied residence. Id. at 1-2. While the two 27 individuals were at the unoccupied residence, “detectives heard a drill-like noise, several 28 ‘loud bangs,’ and then ‘smaller banging.’” Id. at 2. Each time the two men returned to 1 Petitioner’s house, detectives examined the unoccupied residence and noticed progressive 2 damage. Id. After Petitioner’s final visit, detectives observed pry marks near the lower 3 door hinge and a broken portion of the side garage door lying on the floor. Id. Later that 4 night, police conducted a traffic stop, arrested Petitioner, searched his vehicle, and found 5 a pair of black gloves, a flathead screwdriver, and a flashlight. Id. 6 On November 24, 2006, Petitioner was indicted in Maricopa County Superior 7 Court on charges of attempted burglary in the second degree and possession of burglary 8 tools. Id. Prior to trial, the court granted Petitioner’s unopposed motion in limine to 9 preclude, among other things, (1) any testimony regarding the police placing Petitioner 10 under surveillance because they suspected he was a career burglar, (2) Petitioner’s 11 admissions that he was a career burglar, and (3) any testimony relating to another recent 12 burglary involving Petitioner. Id. A jury convicted Petitioner on both charges. Id. The 13 trial court sentenced Petitioner to concurrent terms of 15 years for attempted burglary in 14 the second degree and 5.75 years for possession of burglary tools. Id. 15 Petitioner appealed his conviction to the Arizona Court of Appeals. Finding no 16 viable issue for appeal, Petitioner’s counsel filed an Anders brief that included eleven 17 claims Petitioner wished to present. 18 supplemental opening brief, arguing that the trial court also erred by: (1) admitting 19 testimony addressing detectives’ surveillance of Petitioner, (2) denying a jury instruction 20 to clarify this testimony, and (3) denying Petitioner’s motions to acquit. Id. The Court of 21 Appeals affirmed the conviction in a memorandum decision “addressing claims regarding 22 insufficient evidence, withholding of exculpatory information, and denial of clarifying 23 jury instruction, and declining to address a claim of ineffective assistance of counsel.” 24 Id. The Court of Appeals also conducted an independent review of the record and found 25 no reversible error. Id. 26 Petitioner sought review by Id. at 3. the Petitioner subsequently filed a Arizona Supreme Court, and on 27 November 8, 2010, the court summarily denied his request. Id. Petitioner subsequently 28 pursued post-conviction relief. The Arizona Court of Appeals issued a memorandum -2- 1 decision granting review of his petition but denying relief because all of Petitioner’s 2 claims were either raised or could have been raised on appeal. Id. at 3-4. Petitioner did 3 not seek further review. Id. at 4. 4 Petitioner’s federal habeas petition raises six grounds for relief. See Doc. 1 at 7- 5 20. 6 adequately exhausted, but his claims are without merit.” Doc. 14 at 48. Judge Metcalf 7 recommended that the Petition be denied. Id. Judge Metcalf also recommended that “to 8 the extent that the Court adopts this [R&R] as to the Petition, a certificate of appealability 9 should be denied.” Id. at 49. 10 II. In his R&R, Judge Metcalf concluded that “Petitioner’s state remedies were Legal Standard. 11 A party may file specific, written objections to an R&R within 14 days of being 12 served with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 13 Rules”); see also Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). The Court must 14 undertake a de novo review of those portions of the R&R to which specific objections are 15 made. Id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 16 328 F.3d 1114, 1121 (9th Cir. 2003). The Court may accept, reject, or modify, in whole 17 or in part, the findings or recommendations made by the magistrate judge. Section 2254 18 Rules 8(b); see also Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C). 19 III. Analysis. 20 Petitioner objected to Judge Metcalf’s findings that Petitioner’s grounds one, four, 21 five, and six are without merit. Because Petitioner did not object to Judge Metcalf’s 22 findings as to grounds two and three, the Court has no duty to review these grounds. 23 Section 2254 Rules 8(b); see also Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C); 24 Thomas, 474 U.S. at 149-50; Reyna-Tapia, 328 F.3d at 1121. Respondents argue that 25 Petitioner’s objections to the R&R are untimely and therefore should not be considered. 26 The Court will address each argument below, beginning with Respondents’ timeliness 27 argument. 28 /// -3- 1 A. 2 Respondents argue that Petitioner’s objections are untimely and should not be 3 considered “unless Petitioner can prove that they are timely.” Doc. 16 at 2-3. A party 4 wishing to object to a magistrate judge’s R&R must file his objections within 14 days of 5 being served with a copy of it. Section 2254 Rules 8(b); see also Fed. R. Civ. P. 6 72(b)(2); 28 U.S.C. § 636(b)(1)(C). Judge Metcalf filed his R&R on October 20, 2015. 7 Doc. 14 at 50. The record does not reflect when Petitioner was actually served with the 8 R&R. Although he did not file his objections until November 16, 2015, Petitioner 9 indicated that they were “submitted” on November 12, 2015. Doc. 15 at 9. Because the 10 14-day objection period is triggered by the R&R’s service, rather than its filing, the Court 11 cannot conclude that Petitioner’s objections are untimely. It is possible that Petitioner did 12 not receive a copy of the R&R until October 30, 2015, in which event his submission 13 would be timely. The Court will consider the merits of Petitioner’s objections. Timeliness of Petitioner’s Objections. 14 B. 15 Petitioner asserts that his right to due process was violated when, contrary to the 16 trial court’s ruling on his motion in limine, several State witnesses testified that Petitioner 17 was under surveillance. Doc. 15 at 3-4. Prior to trial, Petitioner filed a motion in limine 18 to preclude testimony that the police were surveilling him because they believed he was a 19 career burglar, testimony that he admitted to being a career burglar, and testimony about 20 another recent burglary in which he was involved. Doc. 14 at 28. The State agreed with 21 the motion and the trial court granted it. Id. At trial, several of the State’s witnesses 22 testified that they were watching Petitioner during the events in question, but without 23 explaining why he was under surveillance. Id. at 29-30. After one witness was cross- 24 examined, four jurors posed questions seeking to clarify why Petitioner had been placed 25 under surveillance. Id. at 29. Because Petitioner’s counsel objected, the questions were 26 never asked of the witness. Id. Petitioner has not identified any trial testimony that he 27 was under surveillance because he was a career burglar, that he admitted to being a career 28 burglar, or that he was involved in another burglary. Ground One. -4- 1 Viewed narrowly, ground one alleges only a state law error – that the State 2 witnesses violated the trial court’s order. This argument is factually incorrect. The 3 witnesses appear to have adhered to the ruling. But in any event, it is well settled that 4 federal habeas relief is not available to correct state law errors. Estelle v. McGuire, 502 5 U.S. 62, 67-68 (1991). Such relief is available only when a state prisoner “‘is in custody 6 in violation of the Constitution or laws or treaties of the United States.’” Wilson v. 7 Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). 8 Viewed more broadly, ground one may be understood as asserting a due process 9 violation. In the Ninth Circuit, “a federal court cannot disturb on due process grounds a 10 state court’s decision to admit prior bad acts evidence unless the admission of the 11 evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair.” 12 Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995) (citation omitted). 13 Petitioner objects to testimony by the State’s witnesses that he was “being 14 investigated and [was] under surveillance” at the time the officers observed his actions. 15 Doc. 15 at 3. The admission of this evidence was not arbitrary. Petitioner asked the trial 16 court to exclude the reasons for the surveillance, not the fact that he was under 17 surveillance. Doc. 14 at 28-29. The State agreed to this limitation and it was followed at 18 trial. In addition, the fact that the officers were conducting surveillance of Petitioner was 19 relevant to the jury’s understanding of their testimony and the circumstances that led to 20 their observations of Petitioner. 21 Nor can the Court conclude that admission of this evidence was so prejudicial that 22 it rendered the trial fundamentally unfair. Petitioner claims that telling the jury he was 23 under surveillance “is saying to the jury that the Defendant is an accused person under 24 official inquiry of a criminal offense.” Doc. 15 at 3. While it is true that some jurors 25 questioned why Petitioner was under surveillance, it is also true that understanding the 26 nature of the officer’s observations was relevant to assessing their credibility. The fact 27 that they had Petitioner under surveillance was integral to their testimony about what they 28 observed, where they observed it, and why they were there. See United States v. Silva, -5- 1 380 F.3d 1018, 1020 (7th Cir. 2004) (“If a jury would not otherwise understand why an 2 investigation targeted a particular defendant, the testimony could dispel an accusation 3 that the officers were officious intermeddlers staking out [the defendant] for nefarious 4 purposes.”). Petitioner, the prosecutor, and the trial court agreed before trial that the 5 reason for the surveillance would not be disclosed to the jury. This was a reasonable 6 limitation on the officers’ testimony that protected Petitioner against undue prejudice. 7 The Court cannot conclude, however, that the trial was rendered fundamentally unfair 8 because the jury heard truthful testimony about why the officers were in a position to 9 observe Petitioner’s burglary activities. 10 11 The Court finds that the admission of State’s witnesses’ testimony that Petitioner was under surveillance does not violate due process. See Walters, 45 F.3d at 1357. 12 C. 13 Petitioner argues that he was denied due process when he was sentenced to a 15 14 year term after being told that he would receive no more than ten years if convicted at 15 trial. See Doc. 15 at 4-6. Petitioner asks the Court to “summons [his] trial attorney of 16 record to give a sworn statement” that would support this assertion. Id. at 5-6. Ground Four. 17 Petitioner’s claim is directly contrary to the record. At a settlement conference 18 prior to trial, Petitioner’s counsel told the settlement judge that Petitioner could be 19 sentenced to a minimum of 7.5 years and a maximum of 15 years if he lost at trial. 20 Doc. 14 at 42. 21 In addition, Petitioner fails to allege a constitutional violation. A criminal 22 defendant does not have a constitutional right to a plea bargain. 23 Forrester, 616 F.3d 929, 939 (9th Cir. 2010) (citing Weatherford v. Bursey, 429 U.S. 24 545, 561 (1977)). United States v. 25 Finally, Petitioner is not entitled to an evidentiary hearing on this issue. To obtain 26 an evidentiary hearing, a habeas petitioner must allege facts that, if true, would entitle 27 him to habeas relief. West v. Ryan, 608 F.3d 477, 485 (9th Cir. 2010). If the record 28 refutes the Petitioner’s factual allegations or otherwise precludes habeas relief, a district -6- 1 court is not required to hold an evidentiary hearing. 2 Petitioner’s claim that his counsel thought the sentence would be capped at ten years. In 3 addition, Petitioner has failed to allege facts that would establish a constitutional 4 violation. 5 D. 6 Petitioner contends that he was denied due process when the trial court refused to 7 grant his motion for a directed verdict. Doc. 15 at 7. But the granting of a directed 8 verdict in a state criminal trial is a matter of state procedural law, in this case governed by 9 Arizona Rule of Criminal Procedure 20(a). As already noted, federal habeas relief is not 10 available to correct state law errors. Estelle, 502 U.S. at 67-68. Petitioner cites no 11 authority to suggest that federal law governs such procedural matters, much less that such 12 matters derive from federal constitutional requirements. Id. Here, the record refutes Ground Five. 13 E. 14 Petitioner asserts that he was denied due process because the jury returned a 15 verdict that was not supported by sufficient evidence. See Doc. 15 at 7-8. For a 16 conviction to comport with due process, the government must prove beyond a reasonable 17 doubt “every fact necessary to constitute the crime with which [the defendant] is 18 charged,” In re Winship, 397 U.S. 358, 364 (1970), and “every element of the charged 19 offense,” Carella v. California, 491 U.S. 263, 265 (1989) (citation omitted). 20 reviewing an insufficiency of the evidence claim, “the relevant question is whether, after 21 viewing the evidence in the light most favorable to the prosecution, any rational trier of 22 fact could have found the essential elements of the crime beyond a reasonable doubt.” 23 Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citation omitted) (emphasis in original). 24 A reviewing court may not substitute its own subjective determination of guilt for that of 25 the factfinder and may not weigh the credibility of witnesses. Herrera v. Collins, 506 26 U.S. 390, 401-02 (1993) (citing Jackson, 443 U.S. at 319-20 n.13). Even circumstantial 27 evidence that is “relatively weak” may be sufficient to sustain a conviction. Jones v. 28 Woods, 207 F.3d 557, 563 (9th Cir. 2000). Under the AEDPA, a state court conviction Ground Six. -7- In 1 may be overturned for insufficient evidence only if the court’s decision “was based on an 2 unreasonable determination of the facts in light of the evidence presented” or “was 3 contrary to, or involved an unreasonable application of, clearly established Federal law, 4 as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). 5 Petitioner has failed to identify any specific errors in the formulation of the law, 6 fact-finding, or application of law in the state court proceedings. Instead, Petitioner 7 argues that additional evidence of guilt might have been expected to convict him. See 8 Doc. 1 at 15-19. But that is not the correct inquiry. The proper inquiry is whether any 9 rational trier of fact could have found proof of guilt beyond a reasonable doubt based on 10 the evidence actually admitted at trial. Jackson, 443 U.S. at 319. 11 During his direct appeal, the Arizona Court of Appeals discussed the following 12 facts that were included in the trial evidence. On five occasions on the night in question, 13 detectives watched Petitioner enter and exit an unoccupied property without the owner’s 14 permission. Petitioner was dressed in dark clothing and wearing dark gloves. While he 15 was on the property, detectives heard noises, including drill-like noises, loud bangs, and 16 smaller bangs. 17 progressive damage to the points of entry. 18 observed pry marks near the lower door hinge and a broken portion of the side garage 19 door lying on the floor. Later that night, police arrested Petitioner, searched his vehicle, 20 and found gloves, a flathead screwdriver, and a flashlight. Based on these facts and 21 viewing the evidence in the light most favorable to the prosecution, a rational trier of fact 22 could have found proof beyond a reasonable doubt that Petitioner committed attempted 23 burglary in the second degree, see A.R.S. §§ 13-1507 and 13-1001(A), and possession of 24 burglary tools, see A.R.S. § 13-1505(A)(1). Jackson, 443 U.S. at 319. Between Petitioner’s visits to the property, detectives witnessed After Petitioner’s final visit, detectives 25 Petitioner contends that the jury was biased against him to such an extent that it 26 ignored the trial court’s jury instructions and convicted him without sufficient evidence. 27 See Doc. 15 at 6-8. Petitioner does not challenge the jury instructions themselves; he has 28 not alleged that any particular instruction was contrary to established federal law. See -8- 1 28 U.S.C. § 2254(d)(1). To the extent Petitioner claims the jury was biased because he 2 was being surveilled, that is simply a repackaging of ground one, which the Court has 3 already found to be without merit. Petitioner invites this Court to infer that the jury 4 declined to follow the trial court’s instructions faithfully. 5 invitation. See Jackson, 443 U.S. at 326 (holding that federal habeas corpus court faced 6 with conflicting inferences must presume trier of fact resolved such conflicts in favor of 7 prosecution). The Court will not substitute its judgment for that of the jury’s. See 8 Herrera, 506 U.S. at 401-02. The Court declines this 9 Viewing the evidence in the light most favorable to the prosecution, a rational trier 10 of fact could have convicted Petitioner of attempted burglary in the second degree and 11 possession of burglary tools. Jackson, 443 U.S. at 319. 12 IT IS ORDERED: 13 1. Magistrate Judge Metcalf’s R&R (Doc. 14) is accepted, Petitioner’s 14 petition for writ of habeas corpus (Doc. 1) is denied, and a Certificate of 15 Appealability is denied. 16 2. 17 Dated this 15th day of December, 2015. The Clerk is directed to terminate this action. 18 19 20 21 22 23 24 25 26 27 28 -9-

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