Dunlap v. Ryan et al

Filing 19

ORDER ACCEPTING 14 Report and Recommendation of the magistrate judge and denying 1 the petition for writ of habeas corpus. Signed by Judge Frederick J Martone on 10/26/11. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Alan Dunlap,

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Plaintiff,

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vs.

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Charles L. Ryan, Terry Goddard,
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Defendants.
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No. CV 10-08226-PCT-FJM
ORDER

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The court has before it petitioner's petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254 (doc. 1), respondents' answer (doc. 9), and petitioner's reply, filed as a traverse

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and memorandum (docs. 12 and 13). We also have the Report and Recommendation of the

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United States Magistrate Judge recommending that the petition for writ of habeas corpus be

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denied (doc. 14), and petitioner's objections (doc. 17).

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Petitioner was convicted by a jury of one count of premeditated first-degree murder.

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He was sentenced to life imprisonment without the possibility of parole. The court found his

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lack of prior felony convictions mitigating, but also found the fact that he committed the

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crime in a heinous, depraved, and cruel manner aggravating. Petitioner appealed and later

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filed a petition for post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P. The state trial

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court held an evidentiary hearing to determine whether petitioner's trial counsel refused to

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allow him to testify. Petitioner did not take the stand. His former lawyer stated that

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petitioner had chosen not to testify based on her advice. The trial court found that he had not

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carried his burden of establishing that his counsel improperly prohibited him from testifying,

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and denied post-conviction relief. The Arizona Court of Appeals and Arizona Supreme

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Court both denied review. He filed a timely federal habeas petition.

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He raises eight grounds for relief: (1) the trial court's jury instruction defining the

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element of premeditation was unconstitutionally vague; (2) the state failed to present

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sufficient evidence to prove premeditation; (3) the trial court violated his Fifth, Sixth, and

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Fourteenth Amendment rights to present a defense and to due process by precluding

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proffered third-party culpability evidence; (4) the prosecutor improperly vouched for the

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state's case, violating his Fifth and Fourteenth Amendment rights to due process and a fair

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trial; (5) the prosecutor shifted the burden of proof to the defense in violation of Fifth, Sixth,

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and Fourteenth Amendments; (6) the trial court's instruction on reasonable doubt

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impermissibly lowered the state's burden of proof; (7) the trial court violated his Sixth

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Amendment guarantee of trial by jury; and (8) ineffective assistance of counsel.

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A writ of habeas corpus will not be granted with respect to any claim fully adjudicated

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on the merits in state court unless the state court proceedings "resulted in a decision that was

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contrary to, or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Clearly

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established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme]

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Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529

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U.S. 362, 412, 120 S. Ct. 1495, 1523 (2000).

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In Ground 1, petitioner alleges that the trial court's definition of premeditation in the

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jury instruction was unconstitutionally vague because it failed to provide a meaningful

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distinction between first-degree murder and second-degree murder. When reviewing a claim

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that a jury instruction resulted in a constitutional violation, a court must decide "whether the

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ailing instruction by itself so infected the entire trial that the resulting conviction violates due

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process." Estelle v. McGuire, 502 U.S. 62, 72-73, 112 S. Ct. 475, 482 (1991).

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The Arizona Court of Appeals denied relief on direct appeal because it found any
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error in the jury instruction to be harmless. Errors are harmless if they do not have a

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"substantial and injurious effect or influence in determining the jury's verdict." Brecht v.

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Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1721-22 (1993). In this case, any error

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was harmless because petitioner's defense was that he did not commit the murder at all. The

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evidence of premeditation was overwhelming. Consequently, the element of premeditation

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was not at issue and it appears "beyond a reasonable doubt that the error complained of did

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not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct.

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824, 828 (1967). Moreover, the instruction was not unconstitutionally vague. The Arizona

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Court of Appeals' decision was not clearly contrary to or an unreasonable application of

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federal law. Habeas relief is denied on this ground.
II

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In Ground 2, petitioner contends the state failed to present sufficient evidence of

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premeditation. Only if "no rational trier of fact could have found proof of guilt beyond a

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reasonable doubt" can a reviewing court grant habeas relief based on insufficiency of

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evidence. Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979). The

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evidence must be viewed in the light most favorable to the prosecution. Id. at 319, 99 S. Ct.

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at 2781. Here, the prosecution presented evidence that the victim was last seen with

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petitioner, they were both in petitioner's van in which the victim's blood was found, the

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victim was stabbed twenty-nine times, her body was dragged away from the murder scene,

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the victim's body was found by a muddy road and mud was found inside the van and on the

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van's tires, and petitioner told the police conflicting stories about when and where he last saw

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the victim. This evidence was sufficient to support a verdict of first-degree premeditated

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murder. The number of stab wounds alone supports the element of premeditation. The state

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court's conclusion was not an unreasonable application of Jackson. Petitioner is not entitled

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to federal habeas relief on this claim.

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III

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Ground 3 alleges that the trial court violated petitioner's rights to present a defense and

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to due process by precluding his proffered third-party culpability evidence. Petitioner sought
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to introduce evidence that the victim's roommate had a history of domestic violence. The

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trial court excluded this evidence as irrelevant and therefore inadmissible under state

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evidentiary rules. "The accused does not have an unfettered right to offer [evidence] that is

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incompetent, privileged, or otherwise inadmissible under standard rules of evidence."

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Montana v. Egelhoff, 518 U.S. 37, 42, 116 S. Ct. 2013, 2017 (1996).

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In Arizona, a trial court may "exclude third-party culpability evidence 'if its probative

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value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,

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or misleading the jury, or by considerations of undue delay, waste of time, or needless

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presentation of cumulative evidence.'" State v. Machado, 226 Ariz. 281, 246 P.3d 632, 635

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n.2 (quoting Ariz. R. Evid. 403). The petitioner's proffered evidence was speculative and

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tangential, as it did not tend to directly connect a third person with the subject offense. "The

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exclusion of tangential evidence of something that may have happened at a different time and

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place does not constitute a due process violation." Walters v. McCormick, 122 F.3d 1172,

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1177 (9th Cir. 1997). Petitioner's third-party culpability evidence was properly excluded.

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The Arizona Court of Appeals' rejection of his claim was neither contrary to nor an

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unreasonable application of clearly established federal law. As a result, petitioner is not

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entitled to federal habeas relief on this claim.
IV

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In ground 4, petitioner claims the prosecutor impermissibly vouched for the state's

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case in violation of his Fifth and Fourteenth Amendment rights to due process and a fair trial.

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The prosecutor stated during argument that police would have pursued evidence that led to

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other suspects. He also said "we all know it's [petitioner's] prints," referring to a bloody hand

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print found on the van. Petitioner did not object to either of these statements when they were

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made.

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A prosecutor's comments cannot form the basis for habeas relief unless the petitioner

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establishes that they "so infected the trial with unfairness as to make the resulting conviction

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a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471

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(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871 (1974)).
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"Vouching consists of placing the prestige of the government behind a witness through

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personal assurances of the witness's veracity, or suggesting that information not presented

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to the jury supports the witness's testimony." United States v. Necoechea, 986 F.2d 1273,

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1276 (9th Cir. 1993). The prosecutor here did not comment on the truthfulness of any

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witness's testimony, give personal assurances of any witness's credibility, or suggest that he

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had information outside of the evidence which supported a witness's credibility. The

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prosecutor's comment that police officers would have pursued evidence leading to other

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suspects is not the same as saying he believed an officer was credible. Cf. United States v.

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Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005) (finding improper vouching when

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prosecutor "clearly urged that the existence of legal and professional repercussions served

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to ensure the credibility of the officers' testimony"). The context of the trial as a whole must

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be considered in determining whether a prosecutor's statement amounts to improper

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vouching. United States v. Young, 470 U.S. 1, 11 (1985). The defense had put forth the

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theory that the victim's roommate or another third party had murdered her. The prosecutor's

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statement rebutted this claim. He then immediately set forth reasons why other parties were

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not considered suspects.

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Saying that the hand print was the petitioner's was not improper. Evidence had been

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introduced at trial that neither the victim, her roommate, nor petitioner's family members

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could have left the print. There was not a single point of dissimilarity between petitioner's

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known prints and the bloody print on the van. His statement cannot be construed as implying

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that he had extra-record evidence. Young, 470 U.S. at 19. His use of the phrase "we know"

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does not constitute vouching warranting reversal. United States v. Younger, 398 F.3d 1179,

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1191 (9th Cir. 2005) ("[P]rosecutors used the phrase 'we know' to marshal evidence actually

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admitted at trial and reasonable inferences from that evidence, not to vouch for witness

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veracity or suggest that evidence not produced would support a witness's statements.").

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The Arizona Court of Appeals correctly concluded that the prosecutor's statements

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were not improper. This conclusion is not clearly contrary to or an unreasonable application

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of clearly established federal law. Petitioner is not entitled to habeas relief on this ground.
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In ground 5, petitioner contends the prosecutor improperly shifted the burden of proof

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to the defense. The prosecutor argued that petitioner had not presented any evidence to

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support petitioner's theory that another person killed the victim. "Prosecutors may comment

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on the failure of the defense to produce evidence to support an affirmative defense so long

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as it does not directly comment on the defendant's failure to testify." Cook v. Schriro, 538

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F.3d 1000, 1020 (9th Cir. 2008). The Arizona Court of Appeals concluded that the

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prosecutor's comment on the defense's failure to present evidence supporting his theory did

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not infringe upon petitioner's right to remain silent. This was not contrary to or an

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unreasonable application of federal law. Accordingly, petitioner is not entitled to relief on

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this ground.

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VI

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In ground 6, petitioner asserts the trial court's instruction on reasonable doubt

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impermissibly lowered the state's burden of proof in violation of his Fifth, Sixth, and

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Fourteenth Amendment rights. The Constitution does not require any specific language in

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an instruction on reasonable doubt. The central issue is whether, "taken as a whole, the

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instructions correctly conveyed the concept of reasonable doubt to the jury." Holland v.

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United States, 348 U.S. 121, 140, 75 S. Ct. 127, 138 (1954). The trial court's jury instruction

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was promulgated by the Arizona Supreme Court and modeled after the pattern jury

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instruction on reasonable doubt promulgated by the Federal Judicial Center. The instruction

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here was sufficient to convey the concept of reasonable doubt to the jury. The Arizona Court

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of Appeals' conclusion to this effect was not clearly contrary to or an unreasonable

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application of federal law. Petitioner is not entitled to habeas relief on this claim.

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VII

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In ground 7, petitioner contends that the trial court violated his right to a jury trial by

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sentencing him to prison for natural life based upon the court's finding that he committed the

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murder in a heinous, depraved, or cruel manner. Under Apprendi v. New Jersey, 530 U.S.

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466, 490, 120 S. Ct. 2348, 2362-63 (2000), facts, other than a prior conviction, which
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increase the penalty beyond the statutory maximum must be submitted to the jury and proved

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beyond a reasonable doubt. The statutory maximum is the "maximum sentence a judge may

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impose solely on the basis of the facts reflected in the jury verdict or admitted by the

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defendant." Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004).

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"If a State makes an increase in a defendant’s authorized punishment contingent on

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the finding of a fact, that fact—no matter how the State labels it—must be found by a jury

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beyond a reasonable doubt." Ring v. Arizona, 536 U.S. 584, 602, 122 S. Ct. 2428, 2439

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(2002). Arizona has determined that a defendant convicted of first-degree murder may be

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sentenced to natural life or life imprisonment with the possibility of parole after twenty-five

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years. The sentence of natural life may be imposed by a judge based solely on the elements

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of that crime; in other words, no aggravating factor or specific finding of fact need be found

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in order to impose a sentence of natural life. State v. Fell, 210 Ariz. 554, 558, 115 P.3d 594,

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598 (2005). As a result, there was no finding of fact here which increased the penalty

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beyond the legislatively prescribed statutory maximum. The court's sentence of natural life,

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based on its finding that petitioner committed this crime in a heinous, depraved, or cruel

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manner, did not violate his right to trial by jury. The Arizona Court of Appeals' denial of

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habeas relief on this ground was not contrary to or an unreasonable application of federal

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law. Petitioner is not entitled to relief on this claim.

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VIII

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In ground 8, petitioner alleges that he was denied the effective assistance of counsel

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at his trial and sentencing. To be entitled to relief on this ground, petitioner must show that

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his counsel's performance was deficient and that this deficiency prejudiced his defense.

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Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Deficiency is

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established by showing that counsel's actions "fell below an objective standard of

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reasonableness. . . . under prevailing professional norms." Id. at 688, 104 S. Ct. at 2064-65.

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To establish prejudice, a petitioner "must show that there is a reasonable probability that, but

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for counsel's unprofessional errors, the result of the proceeding would have been different."

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Id. at 694, 104 S. Ct. at 2068. When a state habeas petitioner presents a Strickland claim,
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"the question is not whether counsel's actions were reasonable. . . . [but] whether there is any

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reasonable argument that counsel satisfied Strickland's deferential standard." Harrington v.

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Richter, 131 S. Ct. 770, 788 (2011).

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The state trial court did not detail its reasons for denying the ineffectiveness claims

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raised by petitioner in his Rule 32 petition (doc. 1, ex. pt. 3 at 87). Even a summary ruling

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constitutes an on-the-merits adjudication within the meaning of 28 U.S.C. § 2254(d)(1) and

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(d)(2). Richter, 131 S. Ct. at 784. The magistrate judge reviewed the record and found that

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the state's decision was not clearly contrary to or an unreasonable application of federal law,

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and we agree.

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Petitioner's habeas petition contains sweeping allegations of wrongdoing by his trial

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counsel. He alleges counsel refused to interview witnesses, test DNA and fingerprint

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evidence, obtain an expert witness, call or interview any defense witnesses, keep petitioner

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informed about his case, or allow him to testify (doc. 1 at 13). He also alleges that, because

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of her inexperience, she was inadequate in cross-examining witnesses. "[A] habeas court

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cannot even begin to apply Strickland's standards to such a claim unless and until the

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petitioner makes a 'specific, affirmative showing as to what the missing evidence or

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testimony would have been.' . . . The petitioner must come forward with 'sufficiently precise

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information' as to the evidence or testimony that was not brought before the trial court."

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United States ex rel. Partee v. Lane, 926 F.2d 694, 701 (7th Cir. 1991). Petitioner's federal

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habeas petition gives little indication as to why he believes his counsel was deficient. No

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affirmative showing is made as to what evidence was not brought before the trial court.

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Counsel's lack of experience is not equivalent to incompetence. United States v. Cronic, 466

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U.S. 648, 665, 104 S. Ct. 2039, 2050 (1984); Ortiz v. Stewart, 149 F.3d 923, 933 (9th Cir.

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1998) ("It is well established that an ineffective assistance claim cannot be based solely on

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counsel's inexperience."). Finally, petitioner alleges that he was not permitted to testify at

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his trial, but the state court held an evidentiary hearing and found that he failed to carry his

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burden of proof on this issue (doc. 11, ex. FF at 7). He does not challenge the state court’s

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evidentiary ruling. There is no clear and convincing proof that the state court incorrectly
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decided a factual issue. See 28 U.S.C. § 2254(e)(1).

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After reviewing the record, we find that the state courts' decision that petitioner was

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not denied effective assistance of counsel was not clearly contrary to or an unreasonable

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application of federal law. Petitioner is not entitled to relief on this claim.

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IT IS THEREFORE ORDERED accepting the recommendation of the magistrate
judge (doc. 14) and DENYING the petition for writ of habeas corpus (doc. 1).
DATED this 26th day of October, 2011.

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