Karban #234332 v. Ryan et al

Filing 52

ORDER - IT IS ORDERED overruling Petitioner's Objections to the Report andRecommendation of Magistrate Judge. IT IS ORDERED adopting the Report and Recommendation of the Magistrate Judge as the Order of this Court. (Doc. 47 ) IT IS FURTHER ORDE RED that Petitioner's Petition for Writ of Habeas Corpus is denied and dismissed with prejudice. IT IS FURTHER ORDERED that Petitioner's Request to Supplement the Record of his Writ of Habeas Corpus is denied. (Doc. 44 ) IT IS FURTHER ORDERED denying a Certificate of Appealability because denial of the Petition is justified by a plain procedural bar and jurist of reason would not find the ruling debatable and because Petitioner has failed to show the denial of a federal constitutional right. (See document for further details). Signed by Judge Susan R Bolton on 8/11/17. (LAD)

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1 NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Stephen Frank Karban, Petitioner, 10 11 ORDER v. 12 No. CV-14-02763-PHX-SRB Charles L Ryan, et al., 13 Respondents. 14 15 Petitioner Stephen Karban was convicted in Maricopa County Superior Court of 16 11 felonies after representing himself with advisory counsel in a jury trial. He was 17 sentenced to 138.5 years in prison. Petitioner was represented by counsel on appeal and 18 his counsel raised four issues before the Arizona Court of Appeals. The Arizona Court of 19 Appeals affirmed his convictions and sentence and the Arizona Supreme Court denied 20 review. Thereafter, Petitioner filed a timely Petition for Post-Conviction Relief raising 12 21 grounds for relief. The Petition for Post-Conviction Relief was denied. Petitioner 22 appealed the denial and the Court of Appeals denied relief. 23 Petitioner then filed this Petition for Writ of Habeas Corpus raising 29 claims of 24 violation of his federal constitutional rights. After full briefing the Magistrate Judge 25 issued her Report and Recommendation recommending that the Petition be denied and 26 dismissed with prejudice. Petitioner filed timely written objections to the Magistrate 27 Judge’s Report and Recommendations. 28 After a de novo review the Court agrees with the Magistrate Judge’s categorization 1 of Petitioner’s claims as follows: Grounds 1, 2 and 3 correspond to three of the four 2 issues raised on direct appeal. Grounds 4 through 29 correspond to the 12 grounds for 3 relief raised in Petitioner’s state Petition for Post-Conviction Relief raised as ineffective 4 assistance of appellate counsel. Those 12 grounds also included sub-issues. Grounds 7- 5 26, 28 and 29 are presented by Petitioner in this Petition for Writ of Habeas Corpus as 6 grounds for relief independent of any ineffective assistance of appellate counsel claim. 7 The Court agrees with the Magistrate Judge that because Petitioner raised these claims 8 only as ineffective assistance of appellate counsel claims in state court these claims can 9 be evaluated here only under the standards of ineffective of assistance of appellate 10 counsel and not as independent claims. They are unexhausted and procedurally defaulted 11 and absent showing actual innocence these claims cannot be reviewed independently. 12 In Petitioner’s objections he objects to the finding that there was procedural 13 default without excuse on Grounds 7-26, 28 and 29. The excuse that he offers with 14 respect to all of these independent claims previously raised only as ineffective assistance 15 of appellate counsel is the ineffective assistance of his appellate counsel. With respect to 16 each of these claims his objections state that counsel’s ineffectiveness is the excuse for 17 why the claim was not raised on direct appeal and the reason why the default should be 18 excused. This is not a sufficient basis to excuse the procedural default and the Court 19 agrees with the Magistrate Judge that these claims can only be evaluated as claims of 20 ineffective assistance of appellate counsel and not on independent grounds. 21 22 23 24 25 26 27 28 Ground 1 On direct appeal Petitioner raised the claim that the trial court erred in admitting certain pornographic computer images at trial. Petitioner does not dispute that this claim was not federalized by his appellate lawyer and was argued only under state law. Petitioner objects to the finding that he has failed to overcome this procedural default by demonstrating cause and prejudice or by showing actual innocence. Petitioner points to a letter sent to his attorney prior to the filing of the appellate brief requesting that she federalize all claims raised. While Petitioner may have demanded that his appellate -2- 1 lawyer federalize all his claims, even if she had done so he has failed to show the merit of 2 the claim. The Court agrees with the Magistrate Judge that the trial court’s ruling on the 3 admission of the images under the Arizona Rules of Evidence was reasonable as was the 4 appellate court’s affirmance of the ruling. Moreover, Petitioner has not shown that if it 5 were error the admission infected his trial with error of constitutional dimensions denying 6 him due process. 7 Ground 2 8 9 Petitioner’s appellate counsel raised Ground 2 on appeal arguing that it was error 10 to preclude evidence of one of the victim’s viewing of pornographic material. As with 11 Ground 1, his attorney did not federalize the claim but only argued it under state law. 12 Even if Petitioner’s present claim of due process violations were exhausted, he has not 13 demonstrated that the preclusion of this evidence pursuant to a state rule of evidence 14 would rise to the level of a violation of his rights to Due Process under the United States 15 Constitution. The Court’s review of the record discloses what the Magistrate Judge also 16 saw. Much of the evidence Petitioner sought to admit was admitted despite the granting 17 of the prosecution’s motion in limine concerning the viewing of pornographic images by 18 the victim. Therefore even if not procedurally barred this claim fails on the merits. 19 Because it fails on the merits, the claim that his appellate lawyer was ineffective for 20 failing to provide a federal basis for the claim also fails. 21 Ground 3 22 23 Ground 3 was raised on direct appeal. In his appellate brief Petitioner argued that 24 he was entitled to present evidence of good character to rebut the state’s allegations 25 against him and specifically evidence of his acquittal in a Michigan case involving the 26 same victims. His appellate lawyer did not federalize the claim and argued it solely 27 under state law. In rejecting this argument for reversing Petitioner’s conviction the 28 Arizona Court of Appeals related that the trial record did not identify the specific acts of -3- 1 which Petitioner had been acquitted in Michigan and absent this information could not 2 conclude that the trial erred by precluding evidence of the acquittal. The Magistrate 3 Judge correctly noted that the state court evidentiary rulings, even if erroneous, are not 4 grounds for federal habeas relief unless the ruling renders the state proceedings so 5 fundamentally unfair as to violate due process. Federal courts have consistently held that 6 evidence of an acquittal in a prior proceeding is generally inadmissible. The rationale is 7 that an acquittal does not support a finding of innocence but only a finding that the 8 prosecution did not establish an essential element of the charge beyond a reasonable 9 doubt. Because the weight of federal authority would not have permitted the admission in 10 evidence of Petitioner’s acquittal, the Court cannot conclude that the state court’s ruling 11 on this claim violated Petitioner’s constitutional rights to fundamental fairness at trial. 12 Petitioner has failed to establish that the state court’s adjudication of this claim was 13 contrary to or involved in unreasonable application of clearly-established federal law. 14 Ground 4 15 In Ground 4 Petitioner claims that his rights to due process, compulsory process 16 and a fair trial were violated because a government witness threatened a defense witness 17 to prevent him from testifying at trial. The witness who did not testify at trial was 18 Petitioner’s son, Frank, who submitted an affidavit in support of Petitioner’s Petition for 19 Post-Conviction Relief claiming he had been threatened by Petitioner’s wife if he were to 20 appear and testify at trial. In rejecting this claim the state court found that there was no 21 showing of state action and, therefore, no violation of compulsory process rights because 22 the unavailability of the witness was not the result of state action. The Arizona Court of 23 Appeals commented in its affirmance that Petitioner provided no evidentiary support that 24 a state agent was involved in the alleged intimidation of his son Frank. Petitioner argues 25 that the trial court erred in failing to allow an evidentiary hearing where he could 26 ascertain whether his wife acted alone or at the suggestion of a state actor. 27 In order to prevail on this claim Petitioner must show that the state court’s 28 adjudication was either contrary to or involved an unreasonable application of clearly- -4- 1 established federal law. He has not. The affidavit provides no basis for any court to 2 conclude that Petitioner’s wife was acting as an agent of the state when she allegedly 3 threatened Frank to keep him from testifying. The Court agrees with the Magistrate 4 Judge that this claim fails on the merits. 5 6 Ground 5 Ground 5 presents a closely-related claim to Ground Four. In his Petition for Post- 7 Conviction Relief Petitioner raised as a claim of alleged newly- discovered evidence the 8 information contained in Frank’s affidavit. Petitioner argued had this evidence been 9 presented at trial he would not have been convicted. In his objections Petitioner takes 10 issue with the Magistrate Judge’s finding that the trial court denied this claim as frivolous 11 and also argues that he federalized the claim by referencing a United States Supreme 12 Court case. Petitioner argues, as he did for Ground Four, that if only an evidentiary 13 hearing had been ordered by the state court he would have been able to prove his claim. 14 Issue number one in Petitioner’s Petition for Post-Conviction Relief involved these 15 two issues related to his son’s testimony. The heading cites the Fifth, Sixth and 16 Fourteenth Amendments to the United States Constitution but the three paragraphs 17 devoted to the argument concerning the alleged newly- discovered evidence refers only to 18 state court standards for a new trial. The mere citation of a federal case is insufficient to 19 federalize a claim. The Court agrees with the Magistrate Judge that Ground Five is 20 procedurally barred because it was not fairly presented to the state court as a federal 21 claim nor has Petitioner argued cause and prejudice or actual innocence to overcome this 22 procedural bar. 23 24 Grounds 6, 7-26, 28 and 29 Ground 6 and Grounds 7-26, 28 and 29 are all claims of ineffective assistance of 25 appellate counsel. Ground 6 is denominated a claim of ineffective assistance of appellate 26 counsel. As the Court previously noted Grounds 7-26, 28 and 29 can only be considered 27 by this Court as ineffective assistance of appellate counsel claims because they were 28 never raised as independent grounds for post-conviction relief in state court. -5- 1 In addition to his single claim of ineffective assistance of appellate counsel these 2 additional 22 claims of ineffective assistance of appellate counsel are described similarly 3 in Petitioner’s objections as “dead bang” winner arguments that should have been raised 4 by his appellate counsel in his state appeal of his conviction and sentence. While 5 Petitioner concedes in his briefs that appellate counsel is not required to raise every single 6 issue a defendant wishes to raise, he argues that these issues should have been raised at 7 his insistence by his appellate counsel. The state court denied Petitioner’s claim of 8 ineffective assistance of counsel finding that as to some of the claims Petitioner’s counsel 9 could not have raised them on appeal because Petitioner had failed to preserve the issues 10 at trial and as to others the issues lacked legal merit. The Court agrees with the extensive 11 discussion by the Magistrate Judge as to all of the claims of ineffective assistance of 12 appellate counsel. Petitioner has failed to demonstrate that counsel’s decision to argue the 13 claims she presented on direct appeal was objectively unreasonable. Petitioner has also 14 failed to show that had his appellate counsel raised any or all of these additional claims 15 that the result of his appeal would have been different. 16 17 Ground 27 Ground 27 was raised for the first time in Petitioner’s Petition for Post-Conviction 18 Relief. It is a claim of lack of subject matter jurisdiction based on an allegedly flawed 19 Indictment. The trial court denied the claim as precluded under Arizona Rule of Criminal 20 Procedure, 32.2(a) and the Court of Appeals denied the constitutional claim as precluded 21 for failure to raise it on direct appeal. The state court also found that Petitioner’s 22 appellate counsel was not ineffective for failing to raise this claim. As the Magistrate 23 Judge explained defects in an Indictment are required to be raised in a motion filed in 24 accordance with Rule 16, Arizona Rules of Criminal Procedure. Ariz. R. Crim. P. 25 13.5(e). Petitioner counters that because his Indictment was flawed this impacted state 26 court subject matter jurisdiction and subject matter jurisdiction cannot be waived and can 27 be raised at any time. The Court agrees with the Magistrate Judge that if the Indictment 28 were defective that defect did not create a lack of subject matter jurisdiction in the state -6- 1 court. The claim lacks merit and, therefore, the failure to raise the claim on direct appeal 2 could not be considered ineffective assistance of appellate counsel. 3 4 5 6 7 8 9 10 11 IT IS ORDERED overruling Petitioner’s Objections to the Report and Recommendation of Magistrate Judge. IT IS ORDERED adopting the Report and Recommendation of the Magistrate Judge as the Order of this Court. (Doc. 47) IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus is denied and dismissed with prejudice. IT IS FURTHER ORDERED that Petitioner’s Request to Supplement the Record of his Writ of Habeas Corpus is denied. (Doc. 44) IT IS FURTHER ORDERED denying a Certificate of Appealability because 12 denial of the Petition is justified by a plain procedural bar and jurist of reason would not 13 find the ruling debatable and because Petitioner has failed to show the denial of a federal 14 constitutional right. 15 Dated this 11th day of August, 2017. 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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