Dudley #112183 v. Ryan et al

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATION: adopting the 28 Report and Recommendation; denying Petitioner's Objections to the Report and Recommendation 31 ; Petitioner's Petition for Habeas Corpus 1 is dismissed with prejudice; the Cle rk shall enter judgment for Respondents and terminate this case; denying a Certificate of Appealability; Petitioner has not made a substantial showing of the denial of a constitutional right and the dismissal of certain claims was justified by a plain procedural bar; jurists of reason would not find the procedural ruling debatable. Signed by Senior Judge Stephen M McNamee on 11/14/16. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Damian Dudley,
Petitioner,

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v.

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Charles L. Ryan, et al.,

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Respondents.

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No. CV-15-471-PHX-SMM (JZB)

ORDER

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Pending before the Court is Petitioner’s Petition for Habeas Corpus. (Doc. 1.) The

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matter was referred to Magistrate Judge John Boyle for a Report and Recommendation, who

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filed a Report and Recommendation with this Court recommending that Petitioner’s Petition

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be denied on its merits. (Doc. 28.) Petitioner then filed his objections to the Report and

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Recommendation and Respondents responded. (Docs. 31, 34.) After considering the Report

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and Recommendation, the arguments raised in Petitioner’s Objections and Respondents’

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Response, the Court will deny Petitioner’s Petition for Habeas Corpus.
STANDARD OF REVIEW

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When reviewing a Magistrate Judge’s Report and Recommendation, this Court “shall

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make a de novo determination of those portions of the report . . . to which objection is made,”

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and “may accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452,

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454 (9th Cir. 1983)).

DISCUSSION1

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Magistrate Judge Boyle filed a thorough twenty-five page Report and

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Recommendation (“R&R”) recommending denial of relief for each of the twelve (12) claims

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that Petitioner raised in his Petition for Habeas Corpus. (Doc. 28.) In response, Petitioner

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listed each of the twelve claims that he raised in his habeas petition but only raised new

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objections regarding the R&R findings made for claims 1-3, and 5. (Id.) For the remainder

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of the claims, for claims 4 and 6-12, Petitioner states that he included them in his objections

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only for appeal preservation. (Id.) Respondents have answered the objections Petitioner made

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for claims 1-3 and 5. (Doc. 34.)

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Therefore, the Court will address only the objections Petitioner raised in claims 1-3
and 5 regarding the R&R.

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For habeas claim 1, Petitioner objects reasserting his allegation that his indictment

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violated the Sixth Amendment because it failed to allege “venue,” which he maintains is the

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required location where the crimes occurred. (Doc. 31 at 2.) Petitioner maintains that his

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indictment was required to specify Camelback Road and Third Avenue. (Id.)

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Here, the R&R properly denied relief; there is no Sixth Amendment violation as to

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Petitioner’s indictment. By its specification of Maricopa County the indictment adequately

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apprised Petitioner of the location of criminal charges against which he was required to

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defend himself. (See Doc. 28 at 10 (citing Russell v. United States, 369 U.S. 749, 763-64

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(1962) (stating that an indictment is adequate if it sufficiently lets the defendant know of the

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charges against him and what charges he must be prepared to meet). Arizona law defines

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“venue” as the county in which the offenses occur. See Ariz. Const. Art. 2, § 24; A.R.S. §

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13–109(A).

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Furthermore, Petitioner has never alleged that he did not have sufficient notice to

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defend the charges filed against him. Petitioner’s convictions bar any subsequent

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The factual and procedural history of this case is set forth in the Magistrate Judge’s
Report and Recommendation. (Doc. 28.)
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prosecutions for the robbery, kidnapping, and/or aggravated assault of the named victim on

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or about May 2, 2007, regardless of the specific location of the offenses within Maricopa

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County. See United States v. Miller, 471 U.S. 130, 134–35 (1985) (finding adequacy of

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indictment where it gave defendant “clear notice” of charges against him and was sufficient

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to allow him “to plead it in the future as a bar to subsequent prosecutions”).

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For habeas claim 2, Petitioner objects reasserting that multiple errors were committed

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during his trial and therefore he is entitled to relief on the basis of cumulative error. (Doc.

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31 at 2-3.) In support, he states that in regard to his allegations in habeas claims 2, 3, 4, and

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5, he received ineffective assistance of counsel (“IAC”), and therefore, there was cumulative

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error at his trial. (Id.)

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The R&R found that because there were no individual errors at trial, there was no

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cumulative error that would entitle Petitioner to relief, citing Hayes v. Ayers, 632 F.3d 500,

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525 (9th Cir. 2011) (stating that “[b]ecause we conclude that no error of constitutional

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magnitude occurred, no cumulative prejudice is possible.”) (Doc. 28 at 10-11.)

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The R&R properly denied habeas claim 2 for the reasons stated. As to Petitioner’s

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objections regarding alleged IAC received at trial, he does not object to the R&R’s rulings

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regarding his multiple IAC claims in habeas claim 8, other than to present those claims for

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appeal preservation.

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For habeas claim 3, Petitioner objects reasserting that a prior conviction in

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Massachusetts should not have been used to enhance his sentence because the adjudication

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of guilt and sentencing was obtained without the benefit of counsel in violation of the Sixth

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Amendment. (Doc. 31 at 3.)

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The R&R found that a “presumption of regularity” attaches to prior convictions

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offered for purposes of sentence enhancement, and a defendant must do more than merely

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pointing to a missing or silent trial transcript, citing United States v. Mulloy, 3 F.3d 1337,

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1339–40 (9th Cir. 1993). (Doc. 28 at 11.) Rather, “the petitioner must make an ‘affirmative

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showing’ that overcomes the presumption of regularity that accompanies final judgments of

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conviction.” (Id.) The R&R further found that Petitioner has presented nothing other than his
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Petition and Amended Affidavit that he was not represented by counsel when he pleaded

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guilty and was sentenced, and that this was insufficient to overcome the presumption of

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regularity, citing United States v. Allen, 153 F.3d 1037, 1042 (9th Cir. 1998) (finding

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“Allen’s testimony at the 1997 resentencing hearing was insufficient to overcome the

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presumption of regularity”).

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In his objection, Petitioner attempts to shift the burden of proof to the State of Arizona

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maintaining that it was required to show that Petitioner was represented during the critically

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important stage of sentencing. (Doc. 31 at 4.) The Court agrees with the R&R that it is

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Petitioner who must prove the invalidity of a prior conviction by a preponderance of the

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evidence. See Allen, 153 F.3d at 1041. Petitioner has failed to overcome the presumption of

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regularity that accompanies final judgments of conviction.

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Finally, for habeas claim 5, Petitioner objects reasserting that he did not procedurally

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default his claim regarding the inaccuracy of his trial transcripts and alleged document

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tampering. (Doc. 31 at 4-5.)

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The R&R notes that in his direct appeal, Petitioner raised this issue and the Arizona

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Court of Appeals directed him to raise it in his post-conviction relief motion so that the facts

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of the issue could be developed. (Doc. 28 at 14.) Petitioner chose not to do so, alleging that

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if he had complied, the Post Conviction Relief (“PCR”) Court would have found it precluded

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for his failure to raise it on direct appeal. (Id.) Absent fair presentation to the state court, the

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R&R found the claim procedurally defaulted. (Id.)

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Although Petitioner alleges that the court of appeals resolved this claim on the merits,

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the Court agrees with the R&R that this claim was procedurally defaulted. As stated in the

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R&R, the Arizona Court of Appeals directed Petitioner to raise the claim in his

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post-conviction relief petition so that the facts of the issue could be developed during the

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PCR proceeding. Petitioner chose not to do so and thus procedurally defaulted it.

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CONCLUSION

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Accordingly, on the basis of the foregoing,

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IT IS HEREBY ORDERED adopting the Report and Recommendation of
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Magistrate Judge Boyle. (Doc. 28.)

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IT IS FURTHER ORDERED denying Petitioner’s Objections to the Report and

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Recommendation. (Doc. 31.) Petitioner’s Petition for Habeas Corpus is DISMISSED WITH

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PREJUDICE. (Doc. 1.) The Clerk of Court shall enter judgment for Respondents and

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terminate this case.

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IT IS FURTHER ORDERED denying a Certificate of Appealability. Petitioner has

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not made a substantial showing of the denial of a constitutional right and the dismissal of

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certain claims was justified by a plain procedural bar. Jurists of reason would not find the

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procedural ruling debatable.

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DATED this 14th day of November, 2016.

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