Hudson v. Ryan et al

Filing 20

ORDER ACCEPTING IN PART AND MODIFYING IN PART THE REPORT AND RECOMMENDATION 18 - Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, (Doc. 1 ), is DENIED. The Clerk of Court shall TERMINATE this action and e nter judgment accordingly. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because Petitioner has not made a substantial showing of the denial of a constitutional right and reasonable jurists would not find this assessment debatable or wrong. (See document for further details). Signed by Judge G Murray Snow on 4/13/17. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shaun Hudson,
Petitioner,

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ORDER

v.

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No. CV-16-00635-PHX-GMS

Charles Ryan, et al.,

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Respondents.

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Pending before the Court are Petitioner Shaun Hudson’s Petition for Writ of

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Habeas Corpus, (Doc. 1), and United States Magistrate Judge Bridget S. Bade’s Report

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and Recommendation (“R & R”), (Doc. 18). The R & R recommends that the Court deny

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the Petition, but grant a certificate of appealability. (Doc. 18 at 16.) Petitioner filed no

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objection to the R & R; Respondent, however, timely filed an objection solely to the

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magistrate judge’s recommendation that a certificate of appealability be granted. (Doc.

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19.) This Court need only make a de novo determination of those portions of the R & R

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to which an objection is made. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121

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(9th Cir. 2003) (en banc).

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A court may issue a certificate of appealability only where “the applicant has

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made a substantial showing of the denial of a constitutional right.”

28 U.S.C.

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§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits,

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the showing required to [obtain a certificate of appealability] is straightforward: The

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petitioner must demonstrate that reasonable jurists would find the district court’s

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assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529

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U.S. 473, 484 (2000). The magistrate judge did not specify what portion, if any, of her

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analysis might be found to be debatable or wrong by reasonable jurists, and this Court

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can discern none.

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Though the Court need not make a de novo review of the Petition’s merits, a brief

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summary will illustrate why reasonable jurists would not find the magistrate judge’s

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assessment of the constitutional claims debatable. The Petition raises only two grounds

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for relief. First, Petitioner alleges that his “Fifth Amendment/Sixth Amendment rights

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were violated” when the trial court failed to suppress statements he made after stating “I

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feel like I should have an attorney” during the course of a police interrogation. This is

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not a substantial showing of a constitutional violation; as the magistrate judge noted, the

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Supreme Court has held, on very similar facts, that an ambiguous statement about an

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attorney is not an invocation of a suspect’s Miranda rights such that continued

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interrogation violates the Constitution. See Davis v. United States, 512 U.S. 452, 459

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(1994) (holding that law enforcement officers need not “cease questioning immediately

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upon the making of an ambiguous or equivocal reference to an attorney”).

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Second, Petitioner alleges that his right to a fair trial was violated by improper

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“vouching” on the part of the prosecutor during closing arguments. Petitioner had argued

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at trial that he was coerced into confessing in violation of his Miranda rights. The

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prosecutor rebutted this contention both by summarizing Davis’s holding about

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ambiguous invocations and by pointing to the interrogation—the entire recording of

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which had been admitted into evidence—to show that there had been no coercion.

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Neither of these arguments constitutes improper vouching. As the magistrate judge

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noted, the typical case of improper vouching involves personal assurances of the

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witness’s truthfulness or allusions to facts outside of the evidence that support the

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witness’s testimony. See United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.

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1993). Accurate summaries of the law and of the evidence presented at trial, on the other

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hand, are central to the purpose of closing arguments. See, e.g., United States v. Morris,

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568 F.2d 396, 401 (5th Cir. 1978) (“The purpose of summations is for the attorneys to

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assist the jury in analyzing, evaluating, and applying the evidence.”).

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Thus the issues presented in the Petition do not raise a substantial showing of the

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violation of Petitioner’s constitutional rights, as demonstrated more fully by the

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magistrate judge’s thorough and well-reasoned analysis. Therefore, the Court accepts

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and adopts the analysis of the R & R, as well as the magistrate judge’s recommendation

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that the Petition be denied. The Court rejects the recommendation that a certificate of

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appealability be issued and instead denies such certificate. See 28 U.S.C. § 636(b)(1)

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(stating that the district court “may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The

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district judge may accept, reject, or modify the recommended disposition; receive further

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evidence; or return the matter to the magistrate judge with instructions.”).

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IT IS HEREBY ORDERED that:

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1.

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Magistrate Judge Bade’s R & R, (Doc. 18), is ACCEPTED IN PART

AND MODIFIED IN PART.
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Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

§ 2254, (Doc. 1), is DENIED.
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The Clerk of Court shall TERMINATE this action and enter judgment

accordingly.
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Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the

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event Petitioner files an appeal, the Court declines to issue a certificate of appealability

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because Petitioner has not made a substantial showing of the denial of a constitutional

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right and reasonable jurists would not find this assessment debatable or wrong.

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Dated this 13th day of April, 2017.

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Honorable G. Murray Snow
United States District Judge

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