Victery v. Arizona, State of et al

Filing 28

ORDER, we dismiss with prejudice Petitioner's 9 Second Amended Petition for Writ of Habeas Corpus; Petitioner has not demonstrated that "reasonable jurists would find [our] assessment of the constitutional claims debatable or wrong"; accordingly, a Certificate of Appealability is denied. Signed by Judge Frederick J Martone on 7/21/11. (REW)

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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 Lewis Edward Victery, Petitioner, 10 11 vs. 12 State of Arizona, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-09-8125-PCT-FJM ORDER 15 16 17 The court has before it Petitioner’s second amended petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254 (doc. 9), the respondents’ answer (doc. 17), and Petitioner’s 19 reply (doc. 22). We also have before us the Report and Recommendation of the United 20 States Magistrate Judge recommending that we dismiss the second amended petition for writ 21 of habeas corpus with prejudice (doc. 25), Petitioner’s objections (doc. 26), and the 22 respondents’ reply (doc. 27). 23 I. 24 Petitioner was convicted by a jury on four counts of sexual conduct with a minor, 25 sexual assault, child molestation, and kidnaping of a minor. At the trial, Diana Holt, a 26 pediatric nurse, testified that the normal physical findings in the victim’s examination were 27 not surprising because “children heal very quickly.” Respondent’s Answer, ex. A at 3. 28 Without objection, Holt read from two studies on trauma to child sex abuse victims. Id. at 1 4. One of the studies concluded that “the majority of children with legally confirmed sexual 2 abuse will have normal or non-specific genital findings.” Id. 3 Petitioner was sentenced on each of the sexual conduct and sexual assault counts to 4 a mandatory term of life imprisonment without possibility of parole for 35 years, and on each 5 of the molestation and kidnaping counts to a presumptive term of 17 years imprisonment. 6 In sum, Petitioner was sentenced to 4 consecutive terms of life imprisonment, without the 7 possibility of parole for 35 years. 8 II. Timeliness 9 The government contends that the petition is untimely. Under the Anti-Terrorism and 10 Effective Death Penalty Act of 1996 (“AEDPA”), Congress imposed a one-year statute of 11 limitations for all applications for writs of habeas corpus filed under 28 U.S.C. § 2254. See 12 28 U.S.C. § 2244(d). Petitions filed beyond the one-year limitations period are barred and 13 must be dismissed. Id. § 2244(d)(1). The one-year statute of limitations generally begins to 14 run on “the date on which the judgment became final by the conclusion of direct review or 15 the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). The statute of 16 limitations is tolled, however, when a “properly filed application for State post-conviction 17 or other collateral relief . . . is pending.” 28 U.S.C. § 2244(d)(2). 18 Petitioner’s direct appeal was denied on March 23, 2006. He did not seek further 19 review by the Arizona Supreme Court. He then filed a petition for post-conviction relief on 20 December 1, 2006, asserting claims of ineffective assistance of counsel and insufficient 21 evidence to support the conviction. On May 4, 2007, the post conviction relief court 22 summarily denied the petition. Petitioner sought review by the Arizona Court of Appeals, 23 asserting the same two claims. Review was denied by the Court of Appeals on March 18, 24 2008, and by the Arizona Supreme Court on July 28, 2008. Therefore, Petitioner’s 25 limitations period was tolled until July 28, 2008, and expired one year later on July 28, 2009. 26 Petitioner’s original petition for writ of habeas corpus was filed on July 22, 2009, 27 prior to expiration of the statute of limitations period (doc. 1). We dismissed that petition for 28 failure to name a proper respondent and granted leave to amend. Plaintiff failed to set forth -2- 1 any grounds for relief in the original petition, and instead attached copies of orders, petitions, 2 and briefs from his state proceedings. We did not discuss that deficiency in our order. 3 Petitioner filed his first amended petition on August 24, 2009, and again failed to specifically 4 set forth grounds for habeas relief (doc. 7). On October 9, 2009, after the statute of 5 limitations had run, we dismissed the first amended petition, without prejudice, for failure 6 to set forth grounds for relief and again granted leave to amend (doc. 8). His second 7 amended petition, the one currently before us, was filed on October 30, 2009, and asserts four 8 grounds for relief (doc. 9). In allowing leave to amend, we gave no consideration to 9 timeliness. 10 Applications for habeas corpus “may be amended or supplemented as provided in the 11 rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Rule 15(c), Fed. R. Civ. 12 P., provides that an “amendment to a pleading relates back to the date of the original pleading 13 when . . . (B) the amendment asserts a claim or defense that arose out of the conduct, 14 transaction, or occurrence set out–or attempted to be set out–in the original pleading.” The 15 relevant “occurrence” with respect to a habeas petition is the specific claim being asserted. 16 Mayle v. Felix, 545 U.S. 644, 664, 125 S. Ct. 2562, 2574 (2005). 17 Petitioner’s first two petitions were not simply inartful pro se pleadings that could be 18 cured by liberal construction. Instead, the petition asserted no grounds for relief, despite 19 clear instructions on the form that the petitioner must “state every ground on which you 20 claim that you are being held in violation of the Constitution, laws, or treaties of the 21 United States.” (doc. 6, ex. 1) (emphasis in original). Petitioner left blank the spaces 22 provided for a description of his grounds for relief and instead attached state court filings, 23 leaving to the respondents and the court the task of discerning the nature of his claims. 24 Because Petitioner’s original petition set forth no claims for relief, none of the claims 25 raised in the second amended petition “relate back” to the original petition. Accordingly 26 these claims are barred by AEDPA’s one-year statute of limitations. 27 Equitable tolling of the one-year limitations period is available when a prisoner shows 28 that (1) he was diligently pursuing his rights, and (2) some extraordinary circumstance -3- 1 beyond his control made it impossible to file the petition on time. Ramirez v. Yates, 571 2 F.3d 993, 997 (9th Cir. 2009). Petitioner originally filed a timely, albeit defective, petition. 3 We dismissed that petition for failure to properly name a respondent, but made no mention 4 of his failure to plead grounds for relief. In his first amended petition, he corrected only the 5 deficiency noted in our order. It is reasonable to conclude that in relying on our order, 6 Petitioner may have been lulled into believing that but for the failure to name a proper 7 respondent, his petition was adequate, thereby missing an opportunity to file a timely claim. 8 Although close, we conclude that these circumstances satisfy the equitable tolling test. We 9 therefore turn to the merits of Petitioner’s claims. 10 III. Merits 11 In his second amended petition for habeas relief, Petitioner raises four grounds for 12 relief: (1) trial counsel rendered ineffective assistance, (2) denial of due process as a result 13 of conviction on the uncorroborated testimony of victim; (3) denial of the right to confront 14 witnesses by allowing an expert to read from treatises; and (4) denial of his right to confront 15 witnesses and to present a defense as a result of the preclusion of evidence, pursuant to 16 Arizona’s Rape Shield Law, of the victim making a prior false allegation. 17 A. Unexhausted Claims – Grounds 2, 3 and 4 18 A state prisoner must exhaust all available remedies in state court before a federal 19 court can grant him habeas relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 20 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999). The prisoner must describe the operative facts 21 and federal legal theory on which he grounds his claim so the state court has a “‘fair 22 opportunity’ to apply controlling legal principles to the facts bearing upon his constitutional 23 claim.” Anderson v. Harless, 459 U.S. 4, 6, 103 S. Ct. 276, 277 (1982). An Arizona prisoner 24 does not exhaust a claim for federal review unless he has fairly presented it to the Arizona 25 Court of Appeals in a petition for review. Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 26 2005) . 27 28 1. Ground 2 Respondents first argue that Ground 2 is procedurally defaulted because the claim was -4- 1 not fairly presented in the state court. In Ground 2, Petitioner challenges the sufficiency of 2 the evidence used to convict him, arguing that the victim’s uncorroborated testimony alone 3 is insufficient. He challenges the Arizona courts’ continued application of Curby v. Territory 4 of Arizona, 4 Ariz. 371, 376, 42 P. 953, 956 (1895), which held that “[e]vidence of the victim 5 alone, in a charge of rape, is sufficient to convict.” Petitioner appears to promote a rule that 6 a victim’s uncorroborated testimony is never sufficient to support a rape conviction. 7 This argument, however, was not presented to the state court as a specific federal 8 claim. Exhaustion of state remedies requires that petitioners “fairly presen[t] federal claims 9 to the state court in order to give the State the opportunity to pass upon and correct alleged 10 violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 11 509, 512 (1971) (quotations omitted). “[A] violation of state law standing alone is not 12 cognizable in federal court on habeas.” Little v. Crawford, 449 F.3d 1075, 1083 (9th Cir. 13 2006). Here, because Petitioner did not argue before the state court that his federal 14 constitutional rights were violated by what he considers an antiquated state law, his claim is 15 procedurally defaulted. 16 Arizona’s procedural rules prohibit Petitioner from returning to state court to raise this 17 claim. See Ariz. R. Crim. P. 32.2(a)(3) and 32.4. Therefore, federal review of the claim is 18 barred unless Petitioner demonstrates cause for the default, resulting in prejudice, or that 19 failure to review the claim would result in a “fundamental miscarriage of justice.” Teague 20 v. Lane, 489 U.S. 288, 298, 109 S. Ct. 1060, 1068-69 (1989). To establish “cause,” a 21 petitioner must establish that some objective factor external to the defense impeded his 22 efforts to comply with the state’s procedural rules. Murray v. Carrier, 477 U.S. 478, 488, 106 23 S. Ct. 2639, 2645 (1986). To establish “prejudice,” a petitioner must show that the alleged 24 constitutional violation “worked to his actual and substantial disadvantage, infecting his 25 entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 26 170, 102 S. Ct. 1584, 1596 (1982) (emphasis in original). Where the petitioner does not 27 establish cause, the court need not reach the prejudice prong. 28 A federal court may also review the merits of a procedurally defaulted claim if -5- 1 petitioner demonstrates that failure to consider the merits will result in a “fundamental 2 miscarriage of justice.” Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867 (1995). A 3 “fundamental miscarriage of justice” occurs when a constitutional violation has probably 4 resulted in the conviction of one who is actually innocent. Id. The petitioner must establish 5 that it is more likely than not that no reasonable juror would have found him guilty beyond 6 a reasonable doubt in light of new evidence. Id.; 28 U.S.C. § 2254(e)(2)(B). 7 8 9 Here, Petitioner has failed to assert any basis to support cause and prejudice or a fundamental miscarriage of justice to excuse the default. Therefore, Ground 2 is barred. 2. Ground 3 10 In Ground 3, Petitioner argues that Nurse Holt’s reading from the learned treatises 11 violated his right to confrontation. Although he challenged Nurse Holt’s testimony in the 12 context of his ineffective assistance of counsel claim, he did not present an argument during 13 any state post-conviction proceeding that Nurse Holt’s testimony violated his right to 14 confrontation. Therefore, Ground 3 is procedurally defaulted. Again, Petitioner has failed 15 to make any showing of cause and prejudice or fundamental miscarriage of justice to excuse 16 the default, and accordingly Ground 3 is barred. 17 3. Ground 4 18 Respondents also argue that Ground 4 is procedurally defaulted because Petitioner did 19 not fairly present the claim in state court as a federal constitutional violation. In Ground 4, 20 Petitioner argues that the trial court abused its discretion by precluding, under Arizona’s 21 Rape Shield law, evidence supporting a defense that the victim had a motive in accusing the 22 Petitioner of the crime. Petitioner challenged the preclusion of evidence under the Rape 23 Shield Law on evidentiary grounds. He did not allege a federal constitutional violation or 24 cite any federal law. This is insufficient to fairly present the claim in state court. Therefore, 25 Ground 4 is also procedurally defaulted. Again, there is no showing of either cause and 26 prejudice or fundamental miscarriage of justice to excuse the procedural default. Therefore 27 his claim is not properly before this court. 28 B. Exhausted Claim – Ground 1 -6- 1 Federal habeas relief is not available under § 2254(d) unless it is shown that the state 2 court’s decision was “contrary to, or involved an unreasonable application of, clearly 3 established Federal law, as determined by the Supreme Court of the United States,” or was 4 “based on an unreasonable determination of the facts” in light of the record before the state 5 court. 28 U.S.C. § 2254(d). Where the United States Supreme Court has not clearly 6 established a rule of law, habeas relief is not available. Alvarado v. Hill, 252 F.3d 1066, 7 1069 (9th Cir. 2001). In addition, the federal reviewing court must find that the state court’s 8 error was actually prejudicial, that is the error must have had “substantial and injurious effect 9 or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 10 113 S. Ct. 1710, 1722 (1993). 11 In Ground 1, the only exhausted claim, Petitioner argues that his trial counsel rendered 12 ineffective assistance by failing to (a) adequately cross-examine Nurse Holt regarding her 13 qualifications, (b) object to Nurse Holt’s reading of treatises, and (c) call an “unbiased” 14 expert witness for the defense. The framework under Strickland v. Washington, 466 U.S. 15 668, 104 S. Ct. 2052 (1984), is applied for the purpose of evaluating ineffective assistance 16 claims under 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 394, 120 S. Ct. 1495, 17 1513 (2000). Under Strickland, a petitioner must show both that counsel’s performance was 18 objectively deficient and that the deficient performance caused him prejudice. Strickland, 19 466 U.S. at 687, 104 S. Ct. at 2064. When analyzing Strickland’s performance prong, a 20 reviewing court engages a strong presumption that counsel rendered adequate assistance, and 21 exercised reasonable professional judgment in making decisions. Id. at 690, 104 S. Ct. at 22 2066. To establish prejudice, Petitioner must show “a reasonable probability that, but for 23 counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. 24 at 694, 104 S. Ct. at 2068. 25 Petitioner first argues that defense counsel was ineffective for failing to cross-examine 26 Nurse Holt regarding her “qualifications.” Holt is a pediatric nurse who testified that she has 27 a bachelors and masters degree , as well as specific training in examining children who are 28 suspected victims of sexual abuse. She testified that she has performed over 900 -7- 1 examinations of children. This testimony established Holt as an expert. Petitioner has failed 2 to demonstrate how defense counsel could have impeached Holt’s qualifications or how he 3 was prejudiced by counsel’s failure to do so. Habeas relief is not available on this claim. 4 Petitioner next contends that counsel was ineffective for failing to challenge the 5 validity and reliability of the medical studies referenced in Nurse Holt’s testimony, and for 6 failing to object on the ground that they were irrelevant and prejudicial. Holt read from two 7 medical studies to explain the absence of physical evidence of sexual assault on the victim. 8 Arizona courts follow Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in 9 determining the admissibility of scientific evidence. State v. Tankersley, 191 Ariz. 359, 364, 10 956 P.2d 486, 491 (1998), rev’d on other grounds, State v. Machado, 226 Ariz. 281, 246 P.3d 11 632 (2011). “Under Frye, the admissibility of novel scientific evidence depends upon 12 whether the evidence sought to be introduced is derived from a scientific theory or principle 13 that has achieved general acceptance in the relevant scientific community.” State v. Garcia, 14 197 Ariz. 79, 82, 3 P.3d 999, 1002 (Ct. App. 1999). Petitioner has offered no argument or 15 authority as to how the studies failed to meet the Frye standard, particularly in light of Nurse 16 Holt’s testimony that the treatises were reliable authorities in the field of pediatric medicine. 17 Counsel’s decision not to challenge these studies followed a legitimate trial strategy to limit 18 the cross-examination of a witness in order to downplay the value of her testimony. 19 Moreover, the testimony regarding the treatises was probative of the lack of physical injury, 20 and did not urge a decision on an improper basis. We conclude that Petitioner has failed to 21 establish that defense counsel rendered ineffective assistance by failing to object to Nurse 22 Holt’s testimony. 23 Finally, Petitioner contends that counsel was ineffective for failing to call an 24 “unbiased” expert witness for the defense. He argued before the state court that he has a 25 constitutional right to an unbiased expert opinion in support of his defense. To establish 26 prejudice caused by the failure to call a witness, Petitioner must show that a particular 27 witness would have been available to testify, that the witness would have given specific 28 proffered testimony, and that the witness would have created a reasonable probability that -8- 1 the jury would have reached a verdict favorable to Petitioner. Grisby v. Blodgett, 130 F.3d 2 365, 373 (9th Cir. 1997) (speculating as to what a proposed witness could have said is not 3 enough to establish prejudice). Petitioner fails to explain how expert testimony would have 4 strengthened his case. Instead, he merely broadly speculates that some expert witness might 5 have assisted in his defense. This is insufficient to satisfy the prejudice prong of Strickland. 6 Petitioner is not entitled to habeas relief on his claims for ineffective assistance of 7 8 9 10 counsel. IV. Conclusion Based on the foregoing, we DISMISS WITH PREJUDICE Petitioner’s second amended petition for writ of habeas corpus (doc. 9). 11 We also conclude that Petitioner has not demonstrated that “reasonable jurists would 12 find [our] assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 13 529 U.S. 473, 478, 120 S. Ct. 1595, 1601 (2000). Accordingly, IT IS FURTHER 14 ORDERED DENYING a certificate of appealability. 15 DATED this 21st day of July, 2011. 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-

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