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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lewis Edward Victery,
Petitioner,

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vs.

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State of Arizona, et al.,
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Respondents.
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No. CV-09-8125-PCT-FJM
ORDER

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The court has before it Petitioner’s second amended petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 (doc. 9), the respondents’ answer (doc. 17), and Petitioner’s

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reply (doc. 22). We also have before us the Report and Recommendation of the United

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States Magistrate Judge recommending that we dismiss the second amended petition for writ

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of habeas corpus with prejudice (doc. 25), Petitioner’s objections (doc. 26), and the

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respondents’ reply (doc. 27).

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I.

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Petitioner was convicted by a jury on four counts of sexual conduct with a minor,

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sexual assault, child molestation, and kidnaping of a minor. At the trial, Diana Holt, a

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pediatric nurse, testified that the normal physical findings in the victim’s examination were

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not surprising because “children heal very quickly.” Respondent’s Answer, ex. A at 3.

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Without objection, Holt read from two studies on trauma to child sex abuse victims. Id. at

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4. One of the studies concluded that “the majority of children with legally confirmed sexual

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abuse will have normal or non-specific genital findings.” Id.

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Petitioner was sentenced on each of the sexual conduct and sexual assault counts to

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a mandatory term of life imprisonment without possibility of parole for 35 years, and on each

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of the molestation and kidnaping counts to a presumptive term of 17 years imprisonment.

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In sum, Petitioner was sentenced to 4 consecutive terms of life imprisonment, without the

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possibility of parole for 35 years.

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II. Timeliness

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The government contends that the petition is untimely. Under the Anti-Terrorism and

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Effective Death Penalty Act of 1996 (“AEDPA”), Congress imposed a one-year statute of

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limitations for all applications for writs of habeas corpus filed under 28 U.S.C. § 2254. See

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28 U.S.C. § 2244(d). Petitions filed beyond the one-year limitations period are barred and

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must be dismissed. Id. § 2244(d)(1). The one-year statute of limitations generally begins to

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run on “the date on which the judgment became final by the conclusion of direct review or

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the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). The statute of

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limitations is tolled, however, when a “properly filed application for State post-conviction

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or other collateral relief . . . is pending.” 28 U.S.C. § 2244(d)(2).

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Petitioner’s direct appeal was denied on March 23, 2006. He did not seek further

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review by the Arizona Supreme Court. He then filed a petition for post-conviction relief on

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December 1, 2006, asserting claims of ineffective assistance of counsel and insufficient

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evidence to support the conviction. On May 4, 2007, the post conviction relief court

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summarily denied the petition. Petitioner sought review by the Arizona Court of Appeals,

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asserting the same two claims. Review was denied by the Court of Appeals on March 18,

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2008, and by the Arizona Supreme Court on July 28, 2008. Therefore, Petitioner’s

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limitations period was tolled until July 28, 2008, and expired one year later on July 28, 2009.

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Petitioner’s original petition for writ of habeas corpus was filed on July 22, 2009,

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prior to expiration of the statute of limitations period (doc. 1). We dismissed that petition for

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failure to name a proper respondent and granted leave to amend. Plaintiff failed to set forth
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any grounds for relief in the original petition, and instead attached copies of orders, petitions,

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and briefs from his state proceedings. We did not discuss that deficiency in our order.

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Petitioner filed his first amended petition on August 24, 2009, and again failed to specifically

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set forth grounds for habeas relief (doc. 7). On October 9, 2009, after the statute of

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limitations had run, we dismissed the first amended petition, without prejudice, for failure

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to set forth grounds for relief and again granted leave to amend (doc. 8). His second

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amended petition, the one currently before us, was filed on October 30, 2009, and asserts four

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grounds for relief (doc. 9). In allowing leave to amend, we gave no consideration to

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timeliness.

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Applications for habeas corpus “may be amended or supplemented as provided in the

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rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Rule 15(c), Fed. R. Civ.

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P., provides that an “amendment to a pleading relates back to the date of the original pleading

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when . . . (B) the amendment asserts a claim or defense that arose out of the conduct,

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transaction, or occurrence set out–or attempted to be set out–in the original pleading.” The

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relevant “occurrence” with respect to a habeas petition is the specific claim being asserted.

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Mayle v. Felix, 545 U.S. 644, 664, 125 S. Ct. 2562, 2574 (2005).

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Petitioner’s first two petitions were not simply inartful pro se pleadings that could be

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cured by liberal construction. Instead, the petition asserted no grounds for relief, despite

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clear instructions on the form that the petitioner must “state every ground on which you

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claim that you are being held in violation of the Constitution, laws, or treaties of the

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United States.” (doc. 6, ex. 1) (emphasis in original). Petitioner left blank the spaces

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provided for a description of his grounds for relief and instead attached state court filings,

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leaving to the respondents and the court the task of discerning the nature of his claims.

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Because Petitioner’s original petition set forth no claims for relief, none of the claims

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raised in the second amended petition “relate back” to the original petition. Accordingly

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these claims are barred by AEDPA’s one-year statute of limitations.

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Equitable tolling of the one-year limitations period is available when a prisoner shows

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that (1) he was diligently pursuing his rights, and (2) some extraordinary circumstance
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beyond his control made it impossible to file the petition on time. Ramirez v. Yates, 571

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F.3d 993, 997 (9th Cir. 2009). Petitioner originally filed a timely, albeit defective, petition.

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We dismissed that petition for failure to properly name a respondent, but made no mention

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of his failure to plead grounds for relief. In his first amended petition, he corrected only the

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deficiency noted in our order. It is reasonable to conclude that in relying on our order,

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Petitioner may have been lulled into believing that but for the failure to name a proper

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respondent, his petition was adequate, thereby missing an opportunity to file a timely claim.

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Although close, we conclude that these circumstances satisfy the equitable tolling test. We

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therefore turn to the merits of Petitioner’s claims.

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III. Merits

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In his second amended petition for habeas relief, Petitioner raises four grounds for

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relief: (1) trial counsel rendered ineffective assistance, (2) denial of due process as a result

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of conviction on the uncorroborated testimony of victim; (3) denial of the right to confront

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witnesses by allowing an expert to read from treatises; and (4) denial of his right to confront

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witnesses and to present a defense as a result of the preclusion of evidence, pursuant to

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Arizona’s Rape Shield Law, of the victim making a prior false allegation.

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A. Unexhausted Claims – Grounds 2, 3 and 4

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A state prisoner must exhaust all available remedies in state court before a federal

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court can grant him habeas relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526

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U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999). The prisoner must describe the operative facts

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and federal legal theory on which he grounds his claim so the state court has a “‘fair

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opportunity’ to apply controlling legal principles to the facts bearing upon his constitutional

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claim.” Anderson v. Harless, 459 U.S. 4, 6, 103 S. Ct. 276, 277 (1982). An Arizona prisoner

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does not exhaust a claim for federal review unless he has fairly presented it to the Arizona

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Court of Appeals in a petition for review. Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir.

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2005) .

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1. Ground 2
Respondents first argue that Ground 2 is procedurally defaulted because the claim was
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not fairly presented in the state court. In Ground 2, Petitioner challenges the sufficiency of

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the evidence used to convict him, arguing that the victim’s uncorroborated testimony alone

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is insufficient. He challenges the Arizona courts’ continued application of Curby v. Territory

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of Arizona, 4 Ariz. 371, 376, 42 P. 953, 956 (1895), which held that “[e]vidence of the victim

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alone, in a charge of rape, is sufficient to convict.” Petitioner appears to promote a rule that

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a victim’s uncorroborated testimony is never sufficient to support a rape conviction.

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This argument, however, was not presented to the state court as a specific federal

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claim. Exhaustion of state remedies requires that petitioners “fairly presen[t] federal claims

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to the state court in order to give the State the opportunity to pass upon and correct alleged

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violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct.

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509, 512 (1971) (quotations omitted). “[A] violation of state law standing alone is not

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cognizable in federal court on habeas.” Little v. Crawford, 449 F.3d 1075, 1083 (9th Cir.

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2006). Here, because Petitioner did not argue before the state court that his federal

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constitutional rights were violated by what he considers an antiquated state law, his claim is

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procedurally defaulted.

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Arizona’s procedural rules prohibit Petitioner from returning to state court to raise this

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claim. See Ariz. R. Crim. P. 32.2(a)(3) and 32.4. Therefore, federal review of the claim is

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barred unless Petitioner demonstrates cause for the default, resulting in prejudice, or that

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failure to review the claim would result in a “fundamental miscarriage of justice.” Teague

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v. Lane, 489 U.S. 288, 298, 109 S. Ct. 1060, 1068-69 (1989). To establish “cause,” a

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petitioner must establish that some objective factor external to the defense impeded his

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efforts to comply with the state’s procedural rules. Murray v. Carrier, 477 U.S. 478, 488, 106

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S. Ct. 2639, 2645 (1986). To establish “prejudice,” a petitioner must show that the alleged

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constitutional violation “worked to his actual and substantial disadvantage, infecting his

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entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152,

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170, 102 S. Ct. 1584, 1596 (1982) (emphasis in original). Where the petitioner does not

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establish cause, the court need not reach the prejudice prong.

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A federal court may also review the merits of a procedurally defaulted claim if
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petitioner demonstrates that failure to consider the merits will result in a “fundamental

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miscarriage of justice.” Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867 (1995). A

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“fundamental miscarriage of justice” occurs when a constitutional violation has probably

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resulted in the conviction of one who is actually innocent. Id. The petitioner must establish

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that it is more likely than not that no reasonable juror would have found him guilty beyond

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a reasonable doubt in light of new evidence. Id.; 28 U.S.C. § 2254(e)(2)(B).

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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

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In Ground 3, Petitioner argues that Nurse Holt’s reading from the learned treatises

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violated his right to confrontation. Although he challenged Nurse Holt’s testimony in the

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context of his ineffective assistance of counsel claim, he did not present an argument during

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any state post-conviction proceeding that Nurse Holt’s testimony violated his right to

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confrontation. Therefore, Ground 3 is procedurally defaulted. Again, Petitioner has failed

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to make any showing of cause and prejudice or fundamental miscarriage of justice to excuse

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the default, and accordingly Ground 3 is barred.

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3. Ground 4

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Respondents also argue that Ground 4 is procedurally defaulted because Petitioner did

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not fairly present the claim in state court as a federal constitutional violation. In Ground 4,

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Petitioner argues that the trial court abused its discretion by precluding, under Arizona’s

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Rape Shield law, evidence supporting a defense that the victim had a motive in accusing the

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Petitioner of the crime. Petitioner challenged the preclusion of evidence under the Rape

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Shield Law on evidentiary grounds. He did not allege a federal constitutional violation or

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cite any federal law. This is insufficient to fairly present the claim in state court. Therefore,

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Ground 4 is also procedurally defaulted. Again, there is no showing of either cause and

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prejudice or fundamental miscarriage of justice to excuse the procedural default. Therefore

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his claim is not properly before this court.

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B. Exhausted Claim – Ground 1
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Federal habeas relief is not available under § 2254(d) unless it is shown that the state

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court’s decision was “contrary to, or involved an unreasonable application of, clearly

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established Federal law, as determined by the Supreme Court of the United States,” or was

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“based on an unreasonable determination of the facts” in light of the record before the state

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court. 28 U.S.C. § 2254(d). Where the United States Supreme Court has not clearly

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established a rule of law, habeas relief is not available. Alvarado v. Hill, 252 F.3d 1066,

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1069 (9th Cir. 2001). In addition, the federal reviewing court must find that the state court’s

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error was actually prejudicial, that is the error must have had “substantial and injurious effect

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or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637,

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113 S. Ct. 1710, 1722 (1993).

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In Ground 1, the only exhausted claim, Petitioner argues that his trial counsel rendered

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ineffective assistance by failing to (a) adequately cross-examine Nurse Holt regarding her

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qualifications, (b) object to Nurse Holt’s reading of treatises, and (c) call an “unbiased”

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expert witness for the defense. The framework under Strickland v. Washington, 466 U.S.

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668, 104 S. Ct. 2052 (1984), is applied for the purpose of evaluating ineffective assistance

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claims under 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 394, 120 S. Ct. 1495,

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1513 (2000). Under Strickland, a petitioner must show both that counsel’s performance was

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objectively deficient and that the deficient performance caused him prejudice. Strickland,

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466 U.S. at 687, 104 S. Ct. at 2064. When analyzing Strickland’s performance prong, a

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reviewing court engages a strong presumption that counsel rendered adequate assistance, and

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exercised reasonable professional judgment in making decisions. Id. at 690, 104 S. Ct. at

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2066. To establish prejudice, Petitioner must show “a reasonable probability that, but for

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counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

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at 694, 104 S. Ct. at 2068.

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Petitioner first argues that defense counsel was ineffective for failing to cross-examine

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Nurse Holt regarding her “qualifications.” Holt is a pediatric nurse who testified that she has

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a bachelors and masters degree , as well as specific training in examining children who are

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suspected victims of sexual abuse.

She testified that she has performed over 900
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examinations of children. This testimony established Holt as an expert. Petitioner has failed

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to demonstrate how defense counsel could have impeached Holt’s qualifications or how he

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was prejudiced by counsel’s failure to do so. Habeas relief is not available on this claim.

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Petitioner next contends that counsel was ineffective for failing to challenge the

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validity and reliability of the medical studies referenced in Nurse Holt’s testimony, and for

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failing to object on the ground that they were irrelevant and prejudicial. Holt read from two

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medical studies to explain the absence of physical evidence of sexual assault on the victim.

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Arizona courts follow Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in

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determining the admissibility of scientific evidence. State v. Tankersley, 191 Ariz. 359, 364,

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956 P.2d 486, 491 (1998), rev’d on other grounds, State v. Machado, 226 Ariz. 281, 246 P.3d

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632 (2011). “Under Frye, the admissibility of novel scientific evidence depends upon

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whether the evidence sought to be introduced is derived from a scientific theory or principle

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that has achieved general acceptance in the relevant scientific community.” State v. Garcia,

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197 Ariz. 79, 82, 3 P.3d 999, 1002 (Ct. App. 1999). Petitioner has offered no argument or

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authority as to how the studies failed to meet the Frye standard, particularly in light of Nurse

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Holt’s testimony that the treatises were reliable authorities in the field of pediatric medicine.

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Counsel’s decision not to challenge these studies followed a legitimate trial strategy to limit

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the cross-examination of a witness in order to downplay the value of her testimony.

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Moreover, the testimony regarding the treatises was probative of the lack of physical injury,

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and did not urge a decision on an improper basis. We conclude that Petitioner has failed to

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establish that defense counsel rendered ineffective assistance by failing to object to Nurse

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Holt’s testimony.

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Finally, Petitioner contends that counsel was ineffective for failing to call an

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“unbiased” expert witness for the defense. He argued before the state court that he has a

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constitutional right to an unbiased expert opinion in support of his defense. To establish

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prejudice caused by the failure to call a witness, Petitioner must show that a particular

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witness would have been available to testify, that the witness would have given specific

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proffered testimony, and that the witness would have created a reasonable probability that
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the jury would have reached a verdict favorable to Petitioner. Grisby v. Blodgett, 130 F.3d

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365, 373 (9th Cir. 1997) (speculating as to what a proposed witness could have said is not

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enough to establish prejudice). Petitioner fails to explain how expert testimony would have

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strengthened his case. Instead, he merely broadly speculates that some expert witness might

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have assisted in his defense. This is insufficient to satisfy the prejudice prong of Strickland.

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Petitioner is not entitled to habeas relief on his claims for ineffective assistance of

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counsel.
IV. Conclusion
Based on the foregoing, we DISMISS WITH PREJUDICE Petitioner’s second
amended petition for writ of habeas corpus (doc. 9).

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We also conclude that Petitioner has not demonstrated that “reasonable jurists would

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find [our] assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

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529 U.S. 473, 478, 120 S. Ct. 1595, 1601 (2000). Accordingly, IT IS FURTHER

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ORDERED DENYING a certificate of appealability.

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DATED this 21st day of July, 2011.

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