Romar #56355 v. Ryan et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION. IT IS ORDERED adopting Magistrate Judge Duncan's R&R in its entirety and incorporating same into this Order (Doc. 14 ). IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) and dismissing this matter with prejudice. IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal in this matter because the dismissal of the instant Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Judge John J Tuchi on 8/31/2015. (ACL)
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NOT FOR PUBLICATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Richard Robert Romar,
Petitioner,
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No. CV-13-08217-PCT-JJT
ORDER
v.
Charles L. Ryan, et al.,
Respondents.
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At issue is Richard Robert Romar’s Petition for Writ of Habeas Corpus (Doc. 1),
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filed September 4, 2013. Magistrate Judge David K. Duncan issued a Report and
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Recommendation (“R&R”) in the matter on May 5, 2015 (Doc. 14), to which Petitioner
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filed an Objection July 1, 2015 (Doc. 17). For the reasons set forth in the R&R and after
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consideration of the Petition, the Response (Doc. 11), the R&R and Petitioner’s
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Objections thereto, this Court will deny the Petition.
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In the R&R, Judge Duncan thoroughly and correctly analyzed the issues involved
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in the instant Petition, and because this Court will adopt the recommendations set forth in
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the R&R as well as the reasoning behind those recommendations, it will not restate those
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issues or their resolution here in detail. The Court does, however, address in detail
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Petitioner’s objections here, and finds that none overcome the recommendations in the
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R&R or the reasoning supporting them.
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The R&R recommended that Petitioner’s first claim, for ineffective assistance of
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his trial counsel, was not subject to review by this Court because it consisted of vague
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and conclusory statements without reference to facts supporting specific examples of
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ineffectiveness. This Court has reviewed Ground One of the Petition, and in particular
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the Supporting Facts section of Ground One, and concludes that the Magistrate Judge’s
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assessment is entirely correct. The lack of any facts or specific examples in the Petition
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supporting Ground One renders it unreviewable for two related reasons. First, as pointed
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out in the R&R, the lack of facts violates Section 2(c) of the Rules Governing Section
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2254 Cases. This is not a formalistic requirement. Without facts and examples, no
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reviewing court is able to evaluate specific acts or omissions under the lens of possible
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constitutional violations. In essence, the lack of facts makes any review speculative and
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meaningless. Second, and as a result of the above, a specific claim cannot be said to have
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been brought before the state court for review to allow it the opportunity to address any
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alleged federal infirmities—this is the definition of an unexhausted claim.
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In his Objection, Petitioner argues strenuously that the Magistrate Judge
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erroneously based his recommendation to reject Ground One on a requirement that the
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issue be placed before the Supreme Court of Arizona. Petitioner argues he has satisfied
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the requirements for exhaustion by placing the issues before the Arizona Court of
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Appeals. This Court takes no issue with Petitioner’s statement of the law. Other than
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capital case review, a claim may be exhausted for habeas purposes by presentation to the
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Arizona Court of Appeals under Arizona law. But that is beside the point, as the R&R did
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not base any recommendation on a failure to raise issues to the Supreme Court of
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Arizona. Rather, as set forth above, the recommendation regarding Ground One was
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based on Judge Duncan’s correct conclusion that no claim of ineffective assistance of
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counsel was raised with the requisite specificity to any court, at any level, in violation of
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the rules and of the exhaustion requirement. The Court will deny relief on Ground One.
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In Ground Two, Petitioner argues that the trial court imposed a sentence that is the
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functional equivalent of a natural life term, which he urges is a violation of the Eighth
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Amendment’s prohibition on cruel and unusual punishment. In the R&R, Judge Duncan
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concludes that this claim is unexhausted, as Petitioner never raised it to the Arizona Court
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of Appeals or during post-conviction relief proceedings, and it is at the same time
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procedurally barred as untimely under Rules 32.1, 32.2 and 32.4 of the Arizona Rules of
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Criminal Procedure. Petitioner does not contest this recommendation in his Objection.
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This Court adopts the reasoning of the R&R and will deny review of Petitioner’s Ground
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Two.
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Ground Three addressed the trial judge’s ruling that, under certain circumstances,
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character witnesses who testified for Petitioner could be cross-examined about their
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knowledge of his prior convictions. Petitioner argues this ruling violated the Due Process
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Clause of, and the Fifth and Fourteenth Amendments to, the Constitution of the United
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States. Judge Duncan recommended that this Court decline to reach the merits of this
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claim because 1) the Arizona Court of Appeals decided the question on the state law
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grounds Petitioner presented to it, rather than the federal grounds he also presented, and
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under the doctrine of Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), a federal court
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conducting habeas review may not re-examine state court determinations on state law
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questions; and 2) in any event, federal law—like Arizona law—would preclude review of
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Petitioner’s claim of improper impeachment with a prior conviction where that claim was
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waived by choosing not to have the witness testify. See Luce v. United States, 469 U.S.
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38, 43 (1984).
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Petitioner objects to this recommendation, suggesting that “trial counsel could
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have at least waited until trial, offered up a single character witness, evaluated the deputy
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county attorney’s question(s), offered up an objection, and thereby preserved the issue for
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an appeal if necessary; instead he conceded.” (Doc. 17 at 7). While the objection attempts
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to address reason 2 above, it provides no answer as to how Petitioner escapes the
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consequences of Estelle and its prohibition of re-examining the state court determination
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of a state law question. Moreover, were this Court to reach the substance of the trial
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court’s ruling, it would find that ruling to violate no Constitutional provision. The trial
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court’s ruling as to the use of Petitioner’s 1985 convictions to impeach testifying
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character witnesses was narrowly tailored. It did not allow questions about whether
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Petitioner was required to register as a sex offender, which the state had requested. And it
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only allowed the state to question witnesses about their knowledge of Petitioner’s
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convictions if the character witnesses testified that Petitioner would not have committed
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the alleged crime. In this way, the state trial court’s ruling protected Petitioner against
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indiscriminate use of the prior convictions, but properly safeguarded against Petitioner
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using the ruling as both a sword and a shield. The court will deny review on Ground
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Three.
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In his Objection, Petitioner raises several arguments, and factual allegations in
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support of those arguments that appear to be new to this matter. For example, Petitioner
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alleges that in late 2007, over a year into the state criminal proceedings, the trial judge
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disclosed to the parties that at the time of Petitioner’s 1985 convictions, he was a member
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of the county attorney’s office that prosecuted Petitioner, although he had no involvement
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in the case as best he could remember. Petitioner would assign error to this potential
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conflict of interest, and to trial counsel’s alleged inaction in response. The Court cannot
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and will not consider such untimely arguments or allegations. Petitioner had the
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opportunity to raise them in his Petition. He did not. They are waived.
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IT IS ORDERED adopting Magistrate Judge Duncan’s R&R in its entirety and
incorporating same into this Order (Doc. 14).
IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) and dismissing this matter with prejudice.
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IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to
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proceed in forma pauperis on appeal in this matter because the dismissal of the instant
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Petition is justified by a plain procedural bar and jurists of reason would not find the
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procedural ruling debatable.
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Dated this 31st day of August, 2015.
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Honorable John J. Tuchi
United States District Judge
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