Salem v. Ryan et al

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION. The Court adopts Magistrate Judge Anderson's Report and Recommendation 21 ; Petitioner's Petition for Writ of Habeas Corpus 1 is denied and this action is dismissed with prejudice; a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right; granting Petitioner's Motion for Extend Deadline to Respond to Report and Recommendation 22 . Signed by Senior Judge Paul G Rosenblatt on 10/9/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Newman Salem,

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Petitioner,

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v.

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Charles L. Ryan, et. al.,

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Respondents.

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No. 12-CV-8010-PCT-PGR (LOA)

ORDER

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Before the Court is Magistrate Judge Lawrence Anderson’s Report and
Recommendation advising this Court that Petitioner’s Petition for Writ of Habeas Corpus
(Doc. 1) pursuant to U.S.C. § 2254 be denied and dismissed with prejudice. (Doc. 21).
Petitioner has filed objections to the Report and Recommendation. (Doc. 23.)
When reviewing a magistrate judge’s Report and Recommendation, this Court “shall
make a de novo determination of those portions of the report . . . to which objection is made,”
and “may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c). Having reviewed the matter de
novo, the Court will deny Petitioner’s objections and affirm Magistrate Judge Anderson’s
Report and Recommendation.
DISCUSSION1

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Judge Anderson summarizes the factual and procedural background of the case in
his Report and Recommendation. (Doc. 21 at 1–4.)
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In 2007 a jury convicted Petitioner of seven counts of aggravated assault against a

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peace officer, among other counts arising from a confrontation between Petitioner and

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Sedona police officers on March 6, 2006. (Doc. 12, Ex. A.) Petitioner was sentenced as a

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dangerous offender to 10 and a half years. (Id.)

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Petitioner raises four grounds for relief in his habeas petition. (Doc. 1.) In Ground

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One, he alleges that he was denied the right to effective assistance of counsel when his

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attorney failed to timely disclose two mental health professionals, resulting in the preclusion

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of their testimony at trial. In Ground Two, Petitioner contends that preclusion of the

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testimony violated his right to present a complete defense. In Ground Three, Petitioner

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alleges that he was deprived of the right to a fair and impartial jury. In Ground Four, he

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alleges that his attorney provided ineffective assistance by failing to move to vacate

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Petitioner’s convictions based on the alleged juror misconduct.

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Review of these claims is governed by the Antiterrorism and Effective Death Penalty

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Act of 1996 (“AEDPA”). Under AEDPA, the Court may not grant habeas relief unless it

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concludes that the state court’s adjudication of the claim (1) 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, or (2) resulted in a decision that was

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based on an unreasonable determination of the facts in light of the evidence presented in the

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state court proceeding. 28 U.S.C. § 2254(d).
With respect to Grounds One and Four, alleging ineffective assistance of counsel, the
clearly established federal law is set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a petitioner must show that counsel’s performance was deficient, falling
outside the wide range of professionally competent assistance, and prejudicial, so that there
is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different.” Id. at 690, 694. The combination of Strickland and
AEDPA renders habeas review of ineffectiveness claims “doubly deferential.” See Cullen
v. Pinholster, 131 S. Ct. 1388, 1403 (2011).
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The state post-conviction court denied Ground One as not colorable. The Report and

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Recommendation concluded that there was a reasonable basis for the state court to deny

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relief. See Harrington v. Richter, 131 S. Ct. 770, 786 (2011). Specifically, Magistrate Judge

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Anderson found that Petitioner was not prejudiced by counsel’s failure to disclose two

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witnesses who could have testified about his panic and anxiety disorders. The excluded

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witnesses were Patricia Paine, a psychotherapist and “Somatic Experiencing practitioner”

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(see Doc. 12, Ex. V at 34–35), who began treating Petitioner several weeks after his arrest,

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and Elizabeth Large, a “naturopathic physician” who had been romantically involved with

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Petitioner and was offered as a character witness (see id. at 65, 77).

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Petitioner’s defense at trial was that his struggle with the police officers was the

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involuntary result of a “flight or fight response” and that his failure to comply with officers’

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orders was the product of a panic attack. Magistrate Judge Anderson noted that Marian

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Diamond, a nurse practitioner who treated Petitioner from 2004–2006 and had prescribed

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medications to treat his depression and anxiety, testified at trial about his panic attacks and

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their effect on his ability to reason and make decisions. Petitioner himself testified that he

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was in the midst of a panic attack during his encounter with the officers, and trial counsel in

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his closing argument stated that Petitioner’s reaction to the officers was the involuntary result

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of such an attack. The Report and Recommendation therefore concluded that no prejudice

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resulted from counsel’s performance because the “excluded testimony would not have
changed what the jury heard from Petitioner himself about what had occurred.” (Doc. 21 at
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In his objections, Petitioner argues that the excluded testimony was prejudicial
because only Ms. Paine could have offered expert testimony on panic and anxiety disorders
and only Large had actually treated Petitioner for such disorders. (Doc. 23 at 2.) The Court
agrees with Magistrate Judge Anderson, however, that there was not a reasonable probability
of a different verdict had the jury heard the excluded testimony. Notwithstanding Petitioner’s
objections, the excluded testimony was cumulative of the evidence that was presented by
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Diamond, who had treated Petitioner for his anxiety disorder, and Petitioner, who testified

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about his mental state at the time of the offenses. Applying the additional level of deference

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required by the AEDPA, the Court finds there is a reasonable basis for the state court’s

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application of Strickland. See Richter, 131 S. Ct. at 786; 28 U.S.C. § 2254(d).

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In Ground Two, Petitioner alleges that the trial court’s exclusion of Ms. Paine as a

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witness violated Petitioner’s right to present a complete defense and that the Arizona Court

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of Appeals’ decision upholding the exclusion was contrary to and an unreasonable

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application of Taylor v. Illinois, 484 U.S. 400, 414 (1988). As noted, the trial court excluded

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Ms. Paine’s testimony as a sanction for the defense’s untimely disclosure. The court of

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appeals affirmed, applying state law and agreeing with the trial court’s determination that

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Ms. Paine’s testimony was not vital and that the late disclosure was motivated by bad faith.

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(Doc. 12, Ex. E.) Magistrate Judge Anderson found that the court of appeals’ decision was

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consistent with Taylor, which set out a number considerations to take into account when

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deciding whether preclusion of an undisclosed witness is an appropriate sanction. The Court

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agrees with the Report and Recommendation that the court of appeals balanced these factors

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in a manner that was neither contrary to nor an unreasonable application of Taylor.

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In Ground Three, Petitioner claims that he was denied his right to a fair and impartial

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jury pursuant to Smith v. Phillips, 455 U.S. 209 (1982), and Irwin v. Dowd, 366 U.S. 717

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(1961). The claim is based on information obtained from a juror, Carol Del Grande, that one
of her fellow jurors was rude and bullying and had claimed to be a former police officer, a
fact he did not disclose during voir dire.2 Petitioner raised this claim during post-conviction
proceedings and it was summarily denied. Magistrate Judge Anderson concluded that the
state court’s decision was not contrary to or an unreasonable application of clearly
established federal law. The Court agrees.

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Del Grande provided this information to Petitioner’s counsel at the sentencing
hearing. After receiving the information, counsel requested an in chambers meeting. The
judge refused and proceeded with sentencing
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In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984), the

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Supreme Court held that where a petitioner claims a juror failed to disclose information

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relevant to bias or prejudice, the petitioner “must first demonstrate that [the] juror failed to

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answer honestly a material question on voir dire, and then further show that a correct

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response would have provided a valid basis for a challenge for cause.” Petitioner did not

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make such a showing. Despite authorization from the trial court to interview every juror,

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Petitioner presented information only from Del Grande. In addition, as Magistrate Judge

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Anderson noted, the information provided by Del Grande was ambiguous, both with respect

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to the other juror’s claims about having been a police officer and the effect of the juror’s

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rudeness and bullying on the deliberation process. (See Doc. 21 at 21.)

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Based on this record, Petitioner has failed to support his allegation that a juror

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committed misconduct by failing to answer a voir dire question honestly. Petitioner has not

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shown that the state court’s denial of this claim was contrary to or an unreasonable

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application of Smith, Irwin, or McDonough Power Equipment.

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In Ground Four, Petitioner claims that trial counsel was ineffective for failing to move

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to vacate Petitioner’s convictions based on the alleged juror misconduct. The state post-

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conviction court ruled that Petitioner failed to state a colorable claim. This ruling was neither

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contrary to nor an unreasonable application of Strickland. The Court agrees with Magistrate

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Judge Anderson that Petitioner, having failed to make a showing of juror misconduct, cannot
establish that he was prejudiced by counsel’s handling of the issue. See, e.g., Boag v. Raines,
769 F.2d 1341, 1344 (9th Cir. 1985) (explaining that failure to raise a meritless issue is not
prejudicial).
Finally, the Court agrees with Magistrate Judge Anderson that Petitioner is not
entitled to an evidentiary hearing. See Pinholster, 131 S. Ct. at 1398 (holding that review
under 2254(d)(1) is limited to the state court record); see also Pizzuto v. Blades, --- F.3d ----,
2013 WL 4779679, at *2 (“If the state court’s adjudication of a claim survives review under
§ 2254(d), that ends our analysis.”).
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CONCLUSION

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For the reasons set forth above,

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IT IS HEREBY ORDERED that the Court adopts Magistrate Judge Anderson’s

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Report and Recommendation (Doc. 21).
IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus
(Doc. 1) is DENIED and this action is DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed

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in forma pauperis on appeal are DENIED because Petitioner has not made a substantial

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showing of the denial of a constitutional right.
IT IS FURTHER ORDERED granting Petitioner’s Motion for Extend Deadline to

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Respond to Report and Recommendation (Doc. 22).

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DATED this 9th day of October, 2013.

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