Sanchez v. Ryan et al

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED adopting Magistrate Judge Boyle's R&R (Doc. 11 ) in its entirety and incorporating same into this Order. IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) and dismissing this matter with prejudice. IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal in this matter because the dismissal of the instant Petition is justified by a plane procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Judge John J Tuchi on 7/6/16. (KGM)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Juan Aurelio Sanchez,
Petitioner,

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ORDER

v.

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No. CV-15-01257-PHX-JJT

Charles L. Ryan, et al.,

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Respondents.

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At issue is Petitioner Juan Aurelio Sanchez’s Petition under 28 U.S.C. §2254 for

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Writ of Habeas Corpus (Doc. 1), to which Respondents Charles L. Ryan and the State of

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Arizona filed a Response (Doc. 8). Magistrate Judge John Z. Boyle issued a Report and

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Recommendation (“R&R”) (Doc. 10) recommending denial and dismissal of the Petition

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with prejudice, and Respondent Objected to that R&R (Doc. 11).

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Judge Boyle finds that the Petition was timely filed, and because Respondents

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filed no objection to that finding and recommendation, the Court may accept that

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recommendation without further review. United States v. Reyna-Tapia, 328 F.3d 1114,

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1121 (9th Cir. 2003). The Court nonetheless has conducted its own review of the issue,

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and upon doing so, concludes that Judge Boyle’s application of the law to the facts of this

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matter are reasonable and correct. Nevertheless, for the substantive reasons set forth in

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the R&R, this Court will deny the Petition and the Motion, finding that Grounds I and II

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of the Petition both fail to state a cognizable basis for federal habeas relief, and that

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Ground I fails on the merits in any event.

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In his Objection, Petitioner argues that the R&R mischaracterized facts in the

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record below, and that mischaracterization renders the R&R’s conclusion flawed. This

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argument ignores the threshold issue Judge Boyle identified in the R&R—that Ground I

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raises a potential violation of the Constitution of the State of Arizona and thus is not

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cognizable on habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67 (1991). The

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R&R notes, correctly, that Petitioner has tried to frame this state law question as a federal

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law issue by reference to the Fourteenth Amendment to the Constitution of the United

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States. This fails, for the reasons set forth in the R&R, and Petitioner’s citations to Crane

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v. Kentucky, 476 U.S. 683 (1986) and other cases for the broad proposition that a criminal

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defendant is entitled to a fair opportunity to defend against state charges do nothing to

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answer the point. Thus the Court need not reach the issue of whether the R&R

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mischaracterized evidence on the record in the state proceeding. But even if the Court

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were to reach the merits of Petitioner’s claim in Ground I, that claim would fail. As Judge

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Boyle correctly observed, a trial court’s decision to exclude evidence violates the

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Constitution only where the excluded evidence “is sufficiently reliable and crucial to the

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defense.” Trillo v. Biter, 769 F.3d 995, 1003 (9th Cir. 2014)(internal citations omitted).

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Petitioner took issue with the R&R’s characterization of the evidence in state court as

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providing that Petitioner “admi[tted] to the 911 dispatcher that he killed the victim.”

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(Doc. 11 at 11.) Stated with more precision, the Court of Appeals related the facts to

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include that during an interview the day after the 911 calls and the victim’s death,

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Petitioner told an investigating officer “that he had told the 911 dispatcher that he had

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killed her.” State v. Sanchez, No. 1 CA-CR-10-1002, 2012 WL 2152819 at *1-2 (Ariz.

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Ct. App. June 14, 2012). Additionally, before police arrived at the scene of the victim’s

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death, Respondent called the victim’s niece; asked her to come and get the victim’s

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toddler son and “[t]ake care of him for the rest of his life,” stated that Petitioner had “f----

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ed up,” and said he was sorry for what he had done. Id. Under either version of the first

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statement to law enforcement, and the statement to the victim’s niece, Magistrate Judge

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Boyle was correct in his conclusion. The hearsay statement Petitioner sought to introduce

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at trial and the defense theory he would have it support—that the victim killed herself to

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avoid prison--was not corroborated by this other evidence; nor was it corroborated by the

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blood spatter evidence or the expert testimony interpreting it. Petitioner’s Ground I fails.

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Judge Boyle also found correctly that Petitioner’s IAC claim in Ground II was not

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cognizable. Petitioner argues that Martinez v. Ryan provides that he has a right to

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effective assistance of counsel during PCR proceedings in his matter. 132 S. Ct. 1309,

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1315 (2012). But in so doing, Petitioner misses Judge Boyle’s point, which is that, even if

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Martinez provides such a right in initial PCR proceedings, PCR counsel has to have

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available some cognizable error below to prevail upon, and, presumably, to fail to raise or

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argue. Here, as set forth above, there was no underlying error on the part of the state trial

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court in precluding the challenged hearsay statement of the victim. In other words, there

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was no error for PCR counsel to raise in initial PCR review—and therefore, nothing for

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that counsel to fail to raise which would trigger IAC on PCR counsel’s part during that

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initial review. Thus there could be no Martinez violation. 1

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IT IS ORDERED adopting Magistrate Judge Boyle’s R&R (Doc. 11) in its
entirety and incorporating same into this Order.
IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) and dismissing this matter with prejudice.

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IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal in this matter because the dismissal of the instant

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Petition is justified by a plane procedural bar and jurists of reason would not find the

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procedural ruling debatable.

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Dated this 6th day of July, 2016.

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Honorable John J. Tuchi
United States District Judge

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The Court does not here decide whether Petitioner correctly construes the effect
of Martinez on his rights in this matter as it is not necessary to the decision.
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