Merrick v. Ryan et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION re: 20 Report and Recommendation. The Petitioner's Objections (Doc. 23 ) are overruled and the Petition for Writ of Habeas Corpus (Doc. 1 ) is denied and this action is dismissed with prejudice. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable. The Clerk shall terminate this action. Signed by Judge Steven P Logan on 7/14/17. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anthony James Merrick,

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Petitioner,
v.

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Charles L. Ryan, et al.,
Respondents.

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No. CV-16-00124-PHX-SPL
ORDER

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The Court has before it Petitioner’s Petition for Writ of Habeas Corpus pursuant to

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28 U.S.C. § 2254 and a supporting memorandum (Docs. 1, 3), Respondents’ Response

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(Doc. 12), and Petitioner’s reply (Doc. 19). We also have before us the Report and

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Recommendation of the United States Magistrate Judge (Doc. 20), recommending denial

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of the Petition, and Petitioner’s timely Objections (Doc. 23).

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Petitioner was found guilty by a jury of two counts of conspiracy to commit

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tampering with a witness, conspiracy to commit perjury, and obstructing criminal

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investigations or prosecutions. He was sentenced to a 4.5 year prison term for each

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conviction for conspiracy to tamper with witnesses, a 12 year prison term for conspiracy

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to commit perjury, and a 6 year prison term for obstructing an investigation or

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prosecution. The court ordered concurrent sentencing, but consecutive as to his sentences

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in another case (Doc. 12, Ex. A, Ex. Q at 3).

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The Petitioner raises nineteen grounds for relief in his Petition for Writ of Habeas

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Corpus. In Ground One, the Petitioner argues the trial court erred by denying his motion

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to dismiss the case for lack of jurisdiction based on the State’s presentation of privileged

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religious communications to the grand jury, which he believed violated clearly

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established federal law as determined by the United States Supreme Court. In Ground

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Two, the Petitioner argues the trial court violated clearly established federal law by

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denying his motion to preclude evidence of his communications with Reverend

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McFarland, including letters and telephone calls, which Petitioner claimed were

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privileged religious communications. In Ground Three, the Petitioner argues the trial

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court

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witness/neuropsychologist to assist his defense. In Ground Four, the Petitioner argues

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the trial court erred by denying his motion for constitutional seating in the courtroom as

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required by clearly established federal law. In Ground Five, the Petitioner argues the trial

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court violated clearly established federal law by precluding him from presenting evidence

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of his religion and a defense under Ariz. Rev. Stat. § 41-1493.01.

erred

by

denying

his

motion

for

appointment

of

an

expert

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The Petitioner argues in Ground Six, the trial court erred by denying his motion in

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limine to preclude the introduction into evidence of phone calls. In Ground Seven, the

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Petitioner argues the trial court violated clearly established federal law by denying his

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motion for a new trial based on his assertion that insufficient evidence supported his

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convictions.

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established federal law by precluding a defense witness. In Ground Nine, the Petitioner

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argues the trial court violated clearly established federal law by denying him the right to

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confront a witness. In Ground Ten, the Petitioner argues the trial court violated his state

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and federal rights to due process and a fair trial by denying his motion for a new trial and

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by denying him “the opportunity to include evidence.” In Ground Eleven, the Petitioner

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argues the trial court erred by denying his motion for a new trial on the ground that the

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state presented privileged legal communications at trial in violation of his state and

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federal constitutional rights.

In Ground Eight, the Petitioner argues the trial court violated clearly

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In Ground Twelve, the Petitioner argues the trial court erred by denying his motion

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for a new trial on the grounds that the trial court had failed to give a Willits instruction.
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In Ground Thirteen, the Petitioner argues the trial court erred by denying his motion for a

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new trial based on his assertion that the State introduced evidence at trial that it did not

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disclose to the defense. In Ground Fourteen, the Petitioner argues the trial court erred by

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denying his motion for a new trial based on his assertion that the prosecution misled the

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jury and committed misconduct in violation of his state and federal constitutional rights

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to due process and a fair trial. In Ground Fifteen, the Petitioner argues that the State’s

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use of privileged material prevented him from exercising his state and federal

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constitutional rights to testify and present evidence in his defense. In Ground Sixteen, the

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Petitioner argues the trial court erred by denying his motion for a mistrial based on the

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prosecution informing the jury that he had been convicted of eleven felonies. In Ground

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Seventeen, the Petitioner argues he was denied effective assistance of counsel on appeal.

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In Ground Eighteen, the Petitioner argues the State committed prosecutorial misconduct

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and deprived him of his state and federal constitutional rights to due process and a fair

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trial. In Ground Nineteen, the Petitioner argues the trial court violated his state and

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federal rights to due process by not allowing him to include an illegal sentencing claim in

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his petition for post-conviction relief (Doc. 1 at 7-38).

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The Magistrate Judge concluded that Ground Eighteen is procedurally barred from

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federal habeas corpus review and further concluded that the Petitioner has not established

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a basis to overcome that bar. The Magistrate Judge further stated in the R&R that

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Grounds Two, Four, Five, Six, Ten, Twelve, Thirteen, Sixteen, and Nineteen are not

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cognizable on federal habeas corpus review or lack merit. Additionally, the Magistrate

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Judge held the Petitioner has not shown that he is entitled to habeas corpus relief on his

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remaining claims.

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files

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a timely objection to an R&R, the district judge reviews de novo those portions of the

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R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection

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requires specific written objections to the findings and recommendations in the R&R. See
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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. §

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636(b)(1). It follows that the Court need not conduct any review of portions to which no

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specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v.

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Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is

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judicial economy). Further, a party is not entitled as of right to de novo review of

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evidence or arguments which are raised for the first time in an objection to the R&R, and

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the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d

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615, 621-622 (9th Cir. 2000).

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In his Objections to the Report and Recommendation, Petitioner challenges the
Magistrate Judge’s following conclusions:
(1)

the Magistrate Judge incorrectly concluded that Ground One is not

cognizable on Federal Habeas Corpus, because it is a matter of state law;
(2)

the Magistrate Judge incorrectly concluded that Ground Two is not

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cognizable on Federal Habeas Corpus, because Respondents prevented Petitioner from

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citing proper law, and did not allow the Petitioner to have it or receive it;

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(3)

the Magistrate Judge recognized Ground Four is a cognizable claim but

erred in stating that there is no Supreme Court precedence on the issue;
(4)

the Magistrate Judge incorrectly concluded in Ground Five that the

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resolution of his claim turns on the application of state law and that the Arizona Court of

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Appeals decision is the correct interpretation of state law;

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(5)

the Magistrate Judge incorrectly concluded in Ground Six that Habeas

Corpus review is not available for claims under 42 U.S.C. § 2000 CC-1;
(6)

the Magistrate Judge incorrectly concluded in Ground Ten that Petitioner’s

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conclusory allegations failed to explain how the ruling of the trial court violated his due

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process rights;

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(7)

without providing any specific objections, Petitioner objects to the R&R

conclusion in Ground Twelve;
(8)

the Petitioner argues the Magistrate Judge misconstrued the claim in
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Ground Thirteen;

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(9)

the Petitioner objects in Ground Sixteen and believes that the Due Process

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Clause of the 14th Amendment to the United States Constitution prohibits the state from

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violating a court order where the Petitioner has a liberty interest;

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(10)

the Magistrate Judge misconstrued the claim in Ground Nineteen;

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(11)

the Magistrate Judge erred by stating Petitioner failed to make a

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preliminary showing under Ground Three;
(12)

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sufficient evidence to support the conspiracy to commit the perjury offense;
(13)

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the Magistrate Judge incorrectly concluded in Ground Seven that there was

the Magistrate Judge incorrectly concluded in Ground Eight that denying

petitioner a right to call a witness favorable to his defense did not violate the AEDPA;
(14)

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the Magistrate Judge incorrectly concluded in Ground Nine failing to

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distinguish Bruton v. United States, 391 U.S. 123, 126 (1968)

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from Crawford v.

Washington, 541 U.S. 36 (2004);

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(15)

the Magistrate Judge misconstrued the facts in Ground Eleven;

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(16)

the Magistrate Judge erred in concluding Ground Fourteen that his claim

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was strictly a Darden v. Wainwright, 477 U.S. 168 (1986) due process claim;
(17)

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the Magistrate Judge incorrectly concluded in Ground Fifteen that the

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Petitioner could have testified to his religious practices and called McFarland to testify;

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and

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(18)

the Magistrate Judge was confusing and wrong in Ground Seventeen by

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finding the Petitioner did not establish ineffective assistance of appellate counsel (Doc.

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23 at 2-15).

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The Court also reviewed Petitioner's motion for judicial notice (Doc. 25).

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Petitioner asserts that the error of law in the Arizona Court of Appeals'

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memorandum decision, dated October 20, 2012, demonstrates that his claims in his

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habeas petition were meritorious. In particular, he asserts that this error affects

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Grounds Five, Fifteen, and Seventeen of his habeas petition. Petitioner attached
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the court of appeals' April 25, 2017 order denying his motion for reconsideration to

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substantiate his assertion that the earlier decision contained a legal error with

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respect to ARS 41-1493.01. Petitioner is correct that the April 2017 order does

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indicate that the 2012 memorandum decision contained a legal error. The order

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also states that the error was immaterial.

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In Ground Five of the habeas petition, Petitioner argues that the state court

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violated his due process rights by preventing him from presenting a freedom of

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religion defense, based on ARS 41-1493.01.

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rejected that claim because federal courts are bound by the state court's

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interpretations of state law. Furthermore, even if the state court was incorrect (as it

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seems to acknowledge in the April 2017 order), a challenge to the state court's

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interpretation of state law is not cognizable on federal habeas review.

The Magistrate Judge correctly

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In Ground Fifteen, Petitioner argues that the state court used privileged

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material (recorded calls and calls between Petitioner and his pastor) and that

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prevented him from exercising his right to testify. The Magistrate Judge correctly

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rejected this claim, but not on the basis of any interpretation of ARS 41-1493.01 or

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the state court's application of that statute. Instead, the Magistrate Judge correctly

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concluded that the court of appeals' decision that the trial court did not prevent

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Petitioner from testifying was not an unreasonable determination of the facts or an

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unreasonable application of clearly established federal law.

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In Ground Seventeen, Petitioner argues ineffective assistance of appellate

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counsel because counsel filed an Anders brief and did not file a motion for

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reconsideration. This argument is soundly rejected because Petitioner had not

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established prejudice under Strickland. The Magistrate Judge decision does not

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turn on, or even mention, the state court's interpretation of ARS 41-1493.01.

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The Court has undertaken an extensive review of the sufficiently developed record

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and the specific written objections to the findings and recommendations in the R&R,

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without the need for an evidentiary hearing. After conducting a de novo review of the
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issues and objections, the Court concludes the Magistrate Judge was correct in the

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conclusions that Ground Eighteen is procedurally barred from federal habeas corpus

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review and that the Petitioner has not established a basis to overcome that bar.

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Additionally, the Magistrate Judge correctly found that Grounds Two, Four, Five, Six,

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Ten, Twelve, Thirteen, Sixteen, and Nineteen are not cognizable on federal habeas corpus

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review or lack merit. Additionally, the Magistrate Judge correctly held the Petitioner has

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not shown that he is entitled to habeas corpus relief on his remaining claims.

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Having carefully reviewed the record, the Petitioner has not shown that he is

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entitled to habeas relief. Finding none of Petitioner’s objections have merit, the R&R

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will be adopted in full. Accordingly,

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IT IS ORDERED:

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1.

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That the Magistrate Judge’s Report and Recommendation (Doc. 20) is

accepted and adopted by the Court;

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That the Petitioner’s Objections (Doc. 23) are overruled;

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3.

That the Petition for Writ of Habeas Corpus (Doc. 1) is denied and this

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action is dismissed with prejudice;
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That a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because the dismissal of the Petition is justified by a plain

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procedural bar and reasonable jurists would not find the ruling debatable; and

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That the Clerk of Court shall terminate this action.

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Dated this 14th day of July, 2017.

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Honorable Steven P. Logan
United States District Judge

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