Wallace #331022 v. Shinn et al

Filing 47

ORDER: Petitioner's Objections 41 to the Report and Recommendation of Judge Boyle are OVERRULED, and the Report and Recommendation 36 ACCEPTED AND ADOPTED. Petitioner's Amended Petition for Writ of Habeas Corpus (Docs. 1 , 35 ) is DIS MISSED, WITH PREJUDICE. Petitioner's Motion for Summary Judgment 18 is DENIED. A Certification of Appealability and leave to proceed in forma pauperis is DENIED because the dismissal of the Petition is justified by a plain procedural bar, reas onable jurists would not find the ruling debatable, and Petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk of Court shall enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Docs. 1 , 35 ) and terminate this action. See document for further details. Signed by Judge Diane J Humetewa on 9/16/2022. (REK)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Martice Deshawn Wallace, Petitioner, 10 11 v. 12 David Shinn, et al., 13 No. CV-21-01180-PHX-DJH (JZB) ORDER Respondents. 14 15 On July 7, 2021, Petitioner Martice Deshawn Wallace (“Petitioner”) filed a petition 16 for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the “Petition”) (Doc. 1). On 17 September 22, 2021, Respondents filed a Response (Doc. 16), and on October 19, 2021, 18 Petitioner filed his Reply (Doc. 17). Following his Reply, Petitioner filed a Motion for 19 Summary Judgment (Doc. 18) and a Separate Statement of Facts (Doc. 19). Respondents 20 responded (Doc. 22) and Petitioner filed his reply (Doc. 23). With permission of the Court, 21 Petitioner then filed an Amended Petition (Doc. 35). 22 On April 8, 2022, Magistrate Judge John Z. Boyle issued a Report and 23 Recommendation (“R&R”) recommending denial and dismissal of the Amended Petition 24 and the Motion for Summary Judgment (Doc. 36). 25 (Docs. 41, 44), and Respondents have filed their response (Doc. 42). 26 I. Petitioner has filed objections Standard of Review 27 This Court “may accept, reject, or modify, in whole or in part, the findings or 28 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court “must 1 review the magistrate judge’s findings and recommendations de novo if objection is made, 2 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 3 banc). The Court is not required to conduct “any review at all. . . of any issue that is not 4 the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. 5 § 636(b)(1); Fed. R. Civ. P. 72(b)(3). 6 II. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Factual Background The Arizona Court of Appeals provided the following background facts from Petitioner’s case1: While patrolling a light rail stop, a security officer saw Wallace bleeding from an apparent “gash” to his head. After approaching Wallace, the security officer radioed for assistance. A responding fireman examined Wallace’s head wound and, given the amount of blood, called for an ambulance. Once the ambulance arrived, Wallace voluntarily got inside and sat on a bench next to a gurney. Although he was instructed to lie down on the gurney, Wallace refused. When a paramedic told Wallace that he needed to lie down for his own safety, Wallace became verbally abusive, grabbed trauma shears—a particularly sharp scissor used for cutting clothing, belts, and boots off injured patients in emergencies—and swung them at the paramedics.2 Overhearing the commotion, a fireman opened the ambulance’s side door, and Wallace jumped out. He was quickly disarmed, however, and detained. The State charged Wallace with two counts of aggravated assault, both class three felonies. In his own defense, Wallace testified that a paramedic struck him in the face while he was in the back of the ambulance. He explained that he only grabbed the trauma shears to protect himself because he was blind in one eye and his “biggest fear” was sustaining an injury to his good eye. After trial, a jury found Wallace guilty on both counts. The jury also found two aggravating factors: (1) the offenses were dangerous, and (2) Wallace was on felony probation at the time of the offenses. After Wallace admitted two prior felony convictions, the superior court sentenced him as a 26 The appellate court’s stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012). This presumption can be rebutted by clear and convincing evidence. Id. 27 2 28 1 Petitioner disputes that he swung the shears at the paramedics and says he only held them up. As discussed more herein, Petitioner cannot meet his burden of rebutting the presumption of correctness by clear and convincing evidence; nor does the distinction matter for purposes of his aggravated assault convictions. -2- 1 category 3 non-dangerous offender and imposed two 20-year maximum terms of imprisonment, each to run concurrently, with no presentence incarceration credit. 2 3 4 5 (Doc. 16-1 at 3). III. Petitioner’s Objections 1. Ground One Objections 6 In Ground One, Petitioner asserts his “conviction was obtained in violation of the 7 4th and 14th Amendments . . . to be free from unreasonable seizures and excessive force.” 8 9 10 (Doc. 35 at 6). He says that after refusing transport to the hospital, he was unlawfully seized when firefighters and paramedics coerced him in an ambulance, tried to force him to lay on a gurney, and blocked his attempts to leave the ambulance. (Id. at 8–10). In his 11 Reply in support of his Objection, Petitioner says he “was entitled to exclusion of Riggs 12 and Warren’s testimony in regards to his alleged conduct because their testimony was ‘fruit 13 of the poisonous tree’ directly derived from their unlawful seizure of Wallace’s person 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 inside their ambulance.” (Doc. 44 at 5). He says his unlawful seizure in the ambulance was the “only cause of Petitioner being charged, tried, and convicted.” (Doc. 35 at 8–10). The Magistrate Judge found Ground One was unexhausted for failure to alert the state appeals court of his federal claim, procedurally defaulted without excuse, and not cognizable under Stone v. Powell, 428 U.S. 465 (1976). (Doc. 36 at 8). In his Objection, Petitioner says his claim should not be barred under Stone because he did not get a full and fair opportunity to litigate it in state court. (Doc. 41 at 2). He says his motions to suppress and dismiss were denied without an evidentiary hearing and without addressing the merits of the claim. (Id.) He also says any procedural default should be excused by his appellate counsel’s failure to raise the claim on appeal. (Id.) A. Petitioner’s claim is barred by Stone Where a state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a petitioner is not entitled to federal habeas relief on the grounds that evidence obtained in an unconstitutional seizure was introduced at trial. Stone, 428 U.S. at 494. “The relevant inquiry is whether petitioner had the opportunity to litigate his claim, -3- 1 not whether he did in fact do so or even whether the claim was correctly decided.” Ortiz- 2 Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). Petitioner raised his unlawful seizure 3 claim prior to trial in a motion to suppress. (Doc. 36 n. 2; Doc. 16-5 at 12, Ex. U). The 4 trial judge set a Status Conference on the motion and several other pre-trial motions. (Doc. 5 16-5 at 20, Ex. V). The minute entry from the Status Conference says that discussion was 6 held on the motions, and they were denied. (Id. at 21). The judge also found the discussion 7 and rulings at the Status Conference mooted Petitioner’s request for oral argument on his 8 motions. (Id.) (noting “Defendant’s pro per Motion Requesting Oral Argument on All 9 Motions is satisfied by today’s hearing”). Contrary to his protestations, Petitioner clearly 10 had the ability and opportunity to raise his Fourth Amendment allegations to the trial judge. 11 Petitioner nonetheless says the trial court’s denial of his motion to suppress was in error; 12 that the state court judge should have set an evidentiary hearing under Arizona Rule of 13 Criminal Procedure 16.2(c)(1–4), and thus there was “an unconscionable breakdown” in 14 the state court’s corrective process. (Doc. 44 at 7). The Court does not agree, and to the 15 extent that Petitioner disagreed with the trial judge’s rulings, he was also provided the 16 opportunity to raise the issues on appeal. He did not. Mack v. Cupp, 564 F.2d 898, 901 17 (9th Cir. 1977) (noting that the opportunity to litigate “extends to appellate review and 18 other matters unrelated to the need for a state court hearing”). Any breakdown was a result 19 of Petitioner’s failure, not the state’s failure to supply a process to correct a perceived error. 20 Because he had the opportunity to raise his Fourth Amendment claim in state court and did 21 not, Petitioner’s claim is barred from being heard by a federal habeas court under Stone. 22 B. 23 Moreover, even if cognizable under Stone, the Court also agrees with the Magistrate 24 Judge’s conclusion that the claim is unexhausted and procedurally defaulted without 25 excuse. As noted above, Petitioner did not raise this claim on direct appeal in his pro per 26 brief. In his Reply, Petitioner seeks to excuse his procedural default by arguing that his 27 “opportunity to raise his claim on direct appeal was stripped from him as result of 28 ineffective assistance of appellate counsel” who failed to “raise all meritorious issues on Claim One is defaulted without excuse -4- 1 appeal.” (Doc. 44 at 2; Doc. 1 at 21–22). 3 2 “[A] petitioner may overcome procedural default by making an adequate showing 3 of cause and prejudice for his failure to exhaust his state court remedies.” Smith v. Baldwin, 4 510 F.3d 1127, 1139 (9th Cir. 2007) (internal quotations omitted). Ineffective assistance 5 of appellate counsel can establish cause to excuse a procedural default, but the error must 6 rise to the level of a constitutional violation of the right to counsel under Strickland v. 7 Washington, 466 U.S. 668 (1984). Murray v. Carrier, 477 U.S. 478, 488 (1986). The 8 objective reasonableness of counsel’s failure to pursue claims on appeal depends upon the 9 merits of the claims; appellate counsel does not have a constitutional duty to raise every 10 nonfrivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745, 751–54 (1983). See also 11 Rupe v. Wood, 93 F.3d 1434, 1444–45 (9th Cir. 1996) (“[T]he failure to take a futile action 12 can never be deficient performance.”). 13 Upon this Court’s review of the record, Petitioner’s claim that he was 14 unconstitutionally seized lacks merit and thus the procedural bar is not excused by 15 counsel’s failure to raise the claim on appeal. The Fourth Amendment protects “[t]he right 16 of the people to be secure in their persons, houses, papers, and effects, against unreasonable 17 searches and seizures[.]” U.S. Const. amend. IV. A seizure “in the constitutional sense . . 18 . occurs when there is a restraint on liberty to the degree that a reasonable person would 19 not feel free to leave.” Doe ex rel. Doe v. Hawaii Dep’t of Educ., 334 F.3d 906, 909 (9th 20 Cir. 2003). The Amendment prohibits only unreasonable seizures. Whether a seizure is 21 reasonable or unreasonable is an objective query requiring the Court to balance “the nature 22 and quality of the intrusion on the individual’s Fourth Amendment interests against the 23 countervailing government interests at stake.” United States v. Enslin, 327 F.3d 788, 796 24 3 25 26 27 28 Petitioner asserted an ineffective assistance of appellate counsel claim on the same bases in his PCR Petition. (Doc. 16-1 at 92). The PCR court found his claim was without merit, and that in light of the “overwhelming evidence of Defendant’s guilt,” Petitioner could not establish that the alleged failure to raise the claim on appeal prejudiced him under Strickland. (Doc. 16-2 at 37). Notwithstanding the state court’s merit determination of this claim, the Ninth Circuit has held that AEDPA deference to the state court determination is not appropriate on federal habeas review, and that instead, a federal habeas court should review an IAC claim raised to excuse a procedural default de novo. Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016). This Court thus applies a de novo standard of review to the claim. -5- 1 (9th Cir. 2003) (quotation omitted). 2 The Supreme Court has “never limited the [Fourth] Amendment’s prohibition on 3 unreasonable searches and seizures to operations conducted by the police.” New Jersey v. 4 T.L.O., 469 U.S. 325, 335 (1985) (discussing Supreme Court precedent applying the Fourth 5 Amendment to other government actors such as firefighters and building inspectors). But 6 there are few cases applying the Fourth Amendment to paramedics like the parties involved 7 here. Some district courts in the Ninth Circuit have used a “purpose and nature of conduct” 8 test from the Sixth Circuit to determine whether paramedics have violated an individual’s 9 Fourth Amendment right against unreasonable seizures. See e.g., Perez v. City of Fresno, 10 2022 WL 826990, *31 (E.D. Cal. March 18, 2022) (finding no unconstitutional seizure 11 took place where “[t]here [w]as nothing before the Court to suggest that [the paramedic] 12 was attempting to do anything other than effectuate the medical transport and care of 13 [defendant] . . . so that [defendant] could receive further and appropriate medical help at a 14 hospital”); Martinez v. City of Los Angeles, 2021 WL 4497506, *7 (C.D. Cal. 2021) 15 (dismissing Fourth Amendment seizure claim alleging seizure by paramedics occurred 16 during “the typical emergency response to a semi-conscious woman”). See also Peete v. 17 Metro. Gov’t of Nashville and Davidson Cty., 486 F.3d 217, 220 (6th Cir. 2007) (finding 18 no Fourth Amendment violation where paramedics merely responded to a medical 19 emergency and “were not acting to enforce the law, deter or incarcerate”). 20 Applying this test to the evidence in the record shows that Petitioner was not 21 unconstitutionally seized by paramedic firemen Todd Riggs and Daniel Warren. The 22 evidence relevant to the reasonableness of Petitioner’s alleged seizure was the trial 23 testimony of Petitioner, Riggs, Warren, other paramedic and fire personnel, and a Valley 24 Metro security guard. Beyond Petitioner’s own testimony, there was no evidence showing 25 that Petitioner was improperly coerced into getting into the ambulance or that he was 26 prevented from leaving the ambulance. The other witnesses testified that Petitioner got 27 into the ambulance voluntarily so he could be transported to the hospital for further medical 28 attention. Testimony from both sides showed that the argument in the ambulance between -6- 1 Petitioner and Riggs and Warren started when Petitioner refused to comply with their 2 request that Petitioner move from the jump seat to the gurney during his transport to the 3 hospital, per safety protocol. 4 ambulance differs from the two paramedics’ testimony, however. Petitioner testified that 5 he tried to exit the ambulance at that time, but the victims blocked him, grabbed his wrist, 6 and started punching him. He says he grabbed trauma shears to protect himself. The 7 victims testified that Petitioner became verbally abusive when they asked him to move to 8 the gurney and began swinging trauma shears at them. Another paramedic ultimately 9 pulled Petitioner out of the ambulance from a side door. Petitioner’s testimony regarding what occurred in the 10 The jury was able to assess the credibility of each witness at trial. Prior to receiving 11 the case, the jury was instructed on justifications for self-defense and non-justifications for 12 threat or use of force. Because the jury ultimately found Petitioner guilty of two counts of 13 aggravated assault, it necessarily resolved any conflicting testimonial evidence against 14 Petitioner and rejected Petitioner’s asserted justifications for wielding the trauma scissors 15 against Riggs and Warren. The circumstances show that Petitioner was in the ambulance 16 so that Riggs and Warren could “effectuate the medical transport and care of” Petitioner, 17 not for the purpose of interfering with his liberty. Perezi, 2022 WL 826990, at *31. Nor 18 were they “acting to enforce the law, deter or incarcerate” Petitioner. Peete, 486 F.3d at 19 220. Ultimately, the interest in providing the care Petitioner needed outweighed any 20 intrusion on his liberty rights. 21 In sum, Petitioner’s detainment in the ambulance was not unreasonable under the 22 Fourth Amendment and therefore appellate counsel was not deficient in failing to raise the 23 claim on appeal. Petitioner’s claim is defaulted without excuse and his objection as to 24 Ground One is overruled. For the same reasons, Petitioner’s objections that the R&R did 25 not address his claim in Ground Two that his appellate counsel was ineffective for failing 26 to raise his unlawful seizure claim on appeal (Doc. 41 at 3) is also overruled. 27 2. 28 In Ground Two, which was not included in Petitioner’s Amended Petition, but was Ground Two Objections -7- 1 resolved by the Magistrate Judge out of an abundance of caution, Petitioner argues grounds 2 on which his trial, PCR, and appellate counsel were ineffective. The R&R recommends 3 denying each claim. 4 Petitioner first says the R&R erred when it found his IAC claim that his trial counsel 5 “failed to pursue competency at the time of offense defense” was unexhausted. (Doc. 41 6 at 3). Petitioner says he only “added a few additional words to his habeas claim” and that 7 it did not “fundamentally alter” the claim he made to the PCR court that his counsel was 8 ineffective in failing to have his competency to stand trial evaluated. (Doc. 41 at 3). The 9 Court disagrees. As the Respondents point out, “there is very little relationship between a 10 defendant’s competency to stand trial and his criminal responsibility for the crime.” Bishop 11 v. Superior Ct., 724 P.2d 23, 26 n.3 (Ariz. 1986). The R&R did not err in finding that 12 Petitioner failed to exhaust his IAC claim based on his “competency at the time of offense 13 defense.” Moreover, the Court agrees with the R&R that even if exhausted, Petitioner 14 failed to substantiate his claims that he was incompetent at the time of the offense and thus 15 cannot show deficient performance or prejudice. (See Doc. 36 at 18–19). Petitioner does 16 not address the evidentiary deficiency in his Objection or Reply. Because this claim is 17 insubstantial, Petitioner’s objection to the R&R’s conclusion that PCR counsel was not 18 deficient in failing to raise trial counsel’s ineffectiveness is also overruled. 19 Petitioner next objects that the R&R did not address his argument that his PCR 20 counsel’s conflict of interest as a part-time City of Phoenix attorney should excuse the 21 default of this claim. This is not error. As noted above, the R&R determined that 22 Petitioner’s underlying IAC claim was insubstantial, thus, Petitioner could not show he 23 was prejudiced by his trial counsel’s failure to pursue the competency at the time of offense 24 defense. PCR counsel’s conflict of interest would not have changed the substantiality of 25 the underlying claim. Notwithstanding, the Court also rejects Petitioner’s conflict of 26 interest argument on the merits. An ineffective assistance of counsel claim based on a 27 conflict of interest requires a petitioner to show “that an actual conflict of interest adversely 28 affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). An -8- 1 “actual conflict of interest” means “a conflict that affected counsel’s performance—as 2 opposed to a mere theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171 3 (2002) (emphasis in original). In Mickens “the Supreme Court explicitly limited this 4 presumption of prejudice for an actual conflict of interest. . . to cases involving ‘concurrent 5 representation’”—that is, simultaneous representation of two or more defendants. 6 Rowland v. Chappell, 876 F.3d 1174, 1192 (9th Cir. 2017) (citing Mickens, 535 U.S. at 7 175). Petitioner cannot establish prejudice here because this is not a matter involving 8 concurrent representation. 9 represented him and the City of Phoenix. Although Ms. Bain may have represented 10 Petitioner and a defendant being prosecuted by the City of Phoenix (which Petitioner does 11 not substantiate), this would not be an actual conflict of interest of the kind identified in 12 Mickens. This objection too, is overruled. Petitioner does not argue that Ms. Bain concurrently 13 Petitioner next contends that the R&R erred by finding his trial counsel’s failure to 14 interview all witnesses listed in the police report was not a viable IAC claim. As he did in 15 his Amended Petition, Petitioner argues that the testimony he elicited during his civil trial 16 from Phoenix Fire Captain Tim Jones (“Captain Jones”) would have probably changed the 17 verdict and thus should have been considered by the Magistrate Judge to establish cause 18 and prejudice for his PCR counsel’s failure to argue that his trial counsel failed to interview 19 the witnesses in the police report. He says that Captain Jones corroborated his testimony 20 that he only held the trauma shears in front of him and did not swing them at Riggs and 21 Warren while in the ambulance. But the Magistrate Judge explained in his R&R that the 22 State was never required to show Petitioner swung the shears to prove its aggravated assault 23 charge. (Doc. 36 at 15). In his Objection, Petitioner states that his indictment “alleged that 24 he ‘swung trauma shears’ at Riggs and Warren” and that he was convicted on that charge. 25 (Doc. 41 at 4). He is mistaken. Count 1 of his Indictment states that Petitioner, “using a 26 scissors, a deadly weapon or dangerous instrument, intentionally did place Todd Riggs in 27 reasonable apprehension of imminent physical injury. . .The State further alleges that the 28 offense charged in this count is a dangerous felony because the offense involved the -9- 1 discharge, use, or threatening exhibition of a scissors, a deadly weapon or dangerous 2 instrument, in violation of A.R.S. § 13-105 and 13-704.” (Doc. 35-13 at 18) (emphasis 3 added). The same acts were alleged with regard to Daniel Warren in Count 2. (Id.) 4 As the Magistrate Judge found, “Captain Jones’s testimony that Petitioner did not 5 swing the shears does not diminish that Petitioner held the shears in a manner to stop an 6 alleged assault and protect himself.” (Doc. 36 at 16). Petitioner testified that he grabbed 7 the shears and “held them up” to defend himself. The jury was charged with resolving 8 whether Petitioner was justified in acting in self-defense and they found he was not. 9 Captain Jones’s testimony would not have affected that resolution. The Court agrees with 10 the R&R. Petitioner does not have a substantial claim that there was a reasonable 11 probability the outcome of his trial would have been different had trial counsel interviewed 12 and had Captain Jones testify. This objection is also overruled. 13 3. 14 In Ground Three of the Amended Petition Petitioner states that his “conviction was 15 obtained in violation” of his right “to due process, fundamental fairness, and equal 16 protection” under the Fourteenth Amendment when the trial court denied his motion to 17 suppress without holding the state to its burden of proof and without providing him an 18 evidentiary hearing. (Doc. 35-5 at 1). The R&R found that by failing to raise this claim 19 on direct appeal, the claim is unexhausted and procedurally defaulted without excuse. (Doc. 20 36 at 20). It also rejected the substance of the claim, and clarified for Petitioner that the 21 27 trial court was not required to hold an evidentiary hearing on his motion. The R&R states: An evidentiary hearing on a suppression motion is necessary “only when the moving papers allege facts with sufficient definiteness, clarity and specificity to enable the trial court to conclude that contested issues of fact exist.” United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000). Petitioner’s claim that he was “seized” by firefighters does not merit exclusion of evidence or dismissal of a case. See United States v. Payner, 447 U.S. 727, 735 (1980) (holding that supervisory powers do “not authorize a federal court to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court.”). 28 (Doc. 36 at 20). 22 23 24 25 26 Ground Three - 10 - 1 Petitioner does not object to this finding, but instead states the “claim was 2 technically exhausted throughout a full round of PCR Proceedings” and that any default 3 should be excused because appellate counsel was ineffective for failing to raise it on direct 4 appeal. (Doc. 41 at 5). Even assuming exhaustion of the claim, however, the Court agrees 5 with the R&R’s merit determination, to which Petitioner does not object. The state court 6 did not violate Petitioner’s due process rights by failing to provide him an evidentiary 7 hearing on his motion to suppress for the reasons stated in the R&R. This objection is 8 overruled. 9 4. Ground Five and Six Objections 10 In Ground Five, Petitioner contends his conviction was obtained in violation of the 11 Fourth and Fourteenth Amendments when he was arrested without probable cause. He 12 says Officer Calandra, the arresting officer, misrepresented what Captain Jones told him 13 about the incident in his police report, and used the falsified police report in grand jury 14 proceedings. In Ground Six, Petitioner makes the related contention that his indictment 15 was obtained by the perjured testimony Officer Calandra gave during grand jury 16 proceedings, and thus he was denied due process. 17 The Magistrate Judge correctly found that “any error occurring at the grand jury 18 proceeding was rendered harmless when Petitioner was found guilty as charged by a petit 19 jury.” (Doc. 36 at 10 citing United States. v. Mechanik, 475 U.S. 66, 70 (1986) and 20 Williams v. Stewart, 441 F.3d 1030, 1042 (9th Cir. 2006)). The Magistrate Judge also said 21 that considering the firemen’s testimony at Petitioner’s criminal trial, even if Officer 22 Calandra misstated Captain Jones’s representation of certain facts in his police report, e.g., 23 that Petitioner was swinging the shears at Riggs and Warren as opposed to holding them in 24 front of him, and that Petitioner “chased” Riggs and Warren out of the ambulance instead 25 of being pulled out of the side door, the grand jury was not substantially misled. (Doc. 36 26 at 21 citing United States v. Trass, 644 F.2d 791, 796 (9th Cir. 1982) (“[d]ismissal of an 27 indictment is required only in flagrant cases in which the grand jury has been overreached 28 or deceived in some significant way”)). Petitioner does not distinguish the cases cited by - 11 - 1 the Magistrate Judge or explain why this legal principle does not preclude his claims. 2 Instead, he says the R&R ignores “all the evidence and corresponding exhibits” supporting 3 these claims, and reiterates the arguments made in his Amended Petition. The Court has 4 reviewed this claim de novo and disagrees with Petitioner. The R&R reconciles the 5 purported inconsistencies between the police report and the testimony Captain Jones 6 provided in Petitioner’s civil rights trial in accordance with the applicable habeas standards. 7 His objections to the recommendations on Grounds Five and Six are overruled. 8 5. Ground Seven Objections 9 In Ground Seven, Petitioner asserts his “conviction was obtained in violation of his 10 right to a fair trial, equal protection of the law, and fundamental fairness under the U.S. 11 Constitution’s Fourteenth Amendment” when the state suppressed the “exculpatory” 12 testimony of Captain Jones, and in violation of Brady v. Maryland, 373 U.S. 83 (1963), 13 failed to disclose it to him. (Doc. 35-4 at 13). The Magistrate Judge found that the claim 14 failed on the merits: that because there was no reasonable probability that the outcome of 15 the trial would have been different if Captain Jones would have testified in Petitioner’s 16 criminal trial (as determined in its analysis of Ground Two), Petitioner could not establish 17 his testimony was material for Brady purposes. (Doc. 36 at 22). Notwithstanding this 18 analysis, Petitioner says the “R&R did not fully address the merits of the impeachment 19 aspect of the Brady claim.” He then again reiterates the arguments in his Amended 20 Petition. 21 impeachment testimony by Captain Jones at his criminal trial would probably not have 22 changed the guilty verdict, and thus was not material under Brady. (See Doc. 36 at 13– 23 16). This objection is overruled. 24 IV. The Court finds that the R&R thoroughly explained how any allegedly Motion for Summary Judgment 25 After filing his Petition, Petitioner filed a Motion for Summary Judgment (Doc. 18). 26 Therein, he argues the merits of his Petition and specifically argues that “there is no issue 27 of material fact” that Riggs and Warren seized him in violation of his Fourth Amendment 28 rights. (Doc. 18 at 8). Because the Court, in conducting its de novo review of the objected- - 12 - 1 to claims in his habeas Petitions, concludes otherwise, the Court will also accept Judge 2 Boyle’s recommendation that the Motion for Summary Judgment be denied. 3 V. Conclusion 4 After conducting its de novo review, the Court accepts the recommended decision 5 within the meaning of Federal Rule of Civil Procedure 72(b) and overrules Petitioner’s 6 objections. See 28 U.S.C. § 636(b)(1). 7 Accordingly, 8 IT IS ORDERED that Petitioner’s Objections (Doc. 41) to the Report and 9 Recommendation of Judge Boyle are OVERRULED, and the Report and Petitioner’s Amended 10 Recommendation (Doc. 36) ACCEPTED AND ADOPTED. 11 Petition for Writ of Habeas Corpus (Docs. 1, 35) is DISMISSED, WITH PREJUDICE. 12 IT IS FURTHER ORDERED that Petitioner’s Motion for Summary Judgment 13 (Doc. 18) is DENIED. 14 IT IS FURTHERED ORDERED that a Certification of Appealability and leave 15 to proceed in forma pauperis is DENIED because the dismissal of the Petition is justified 16 by a plain procedural bar, reasonable jurists would not find the ruling debatable, and 17 Petitioner has not made a substantial showing of the denial of a constitutional right. 18 IT IS FINALLY ORDERED that the Clerk of Court shall enter judgment denying 19 and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. 20 § 2254 (Docs. 1, 35) and terminate this action. 21 Dated this 16th day of September, 2022. 22 23 24 25 Honorable Diane J. Humetewa United States District Judge 26 27 28 - 13 -

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