Swoopes v. Sublett, et al

Filing 169

ORDER ADOPTING 157 Report and Recommendations. DENYING AS MOOT 168 Motion for Reconsideration filed by Samuel W Swoopes. DENYING 127 Amended Petition for Writ of Habeas Corpus. DENYING the Certificate of Appealability. Final Judgment shall enter separately. Case Closed. Signed by Judge David C Bury on 7/21/11. (SMBE)

1
2
3
4
UNITED STATES DISTRICT COURT

5
DISTRICT OF ARIZONA

6
7
8
9
10
11

Samuel Swoopes,

)
)
Petitioner,
)
v.
)
)
)
Charles L. Ryan, et al.,
)
)
Respondents.
)
_____________________________________ )

CV-93-471-TUC-DCB

ORDER

12
13

This matter was referred to the United States Magistrate Judge

14

pursuant to

15

Court for a Report and Recommendation (R&R) on the Amended Petition for

16

Writ of Habeas Corpus pursuant to 28 U.S.C. §2254. In the R&R, the

17

Magistrate Judge recommends to the Court that the amended petition should

18

be denied and the action should be dismissed. Before the Court is the

19

Magistrate Judge’s R&R, Petitioner’s Objections and Respondent’s Response

20

to the Objections.

21

adopt the Report and Recommendation in its entirety, deny the amended

22

habeas petition and dismiss this action.

23

28 U.S.C. §636(b) and the local rules of practice of this

Having conducted a de novo review, this Court will

STANDARDS OF REVIEW

24

When objection is made to the findings and recommendation of a

25

magistrate judge, the district court must conduct a de novo review.

26

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

27
28

On habeas review, a state court's findings of fact are entitled to
a

presumption of correctness when fairly supported by the record.

1

Wainwright

2

correctness also applies to a state appellate court's findings of fact.

3

Sumner v. Mata, 449 U.S. 539, 546 (1981). The question presented in a

4

state prisoner's petition for a writ of habeas corpus is “whether the

5

state proceedings satisfied due process.”

6

F.2d 918, 919-20 (9th Cir.1991).

v.

Witt,

469

U.S.

412,

426

(1985).

The

presumption

of

Jammal v. Van de Kamp, 926

7

Federal courts may entertain a state prisoner's petition for habeas

8

relief only on the grounds that the prisoner's confinement violates the

9

Constitution, laws, or treaties of the United States. Reed v. Farley, 512

10

U.S. 339 (1994). General improprieties occurring in state proceedings are

11

cognizable

12

consequently violated the petitioner's Fourteenth Amendment right to due

13

process. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)(“[I]t is not the

14

province

15

determinations on state law questions.”); Bonin v. Calderon, 77 F.3d

16

1155, 1158 (9th Cir.1996). The Supreme Court has held in the habeas

17

context that “this Court will not review a question of federal law

18

decided by a state court if the decision of that court rests on a state

19

law ground that is independent of the federal question and adequate to

20

support the judgment.”

21

The provisions of the Anti-Terrorism and Effective Death Penalty Act

22

(AEDPA) govern this case and pose special burdens. Chein v. Shumsky, 373

23

F.3d 978, 983 (9th Cir.2004) (en banc). Under AEDPA, when reviewing a

24

state criminal conviction, a federal court may grant a writ of habeas

25

corpus only if a state court proceeding “(1) resulted in a decision that

26

was contrary to, or involved an unreasonable application of, clearly

27

established Federal law, as determined by the Supreme Court of the United

28

2

only

of

a

if

they

federal

resulted

habeas

in

court

fundamental

to

unfairness

reexamine

state

and

court

Coleman v. Thompson, 501 U.S. 722, 729 (1991).

1

States; or (2) resulted in a decision that was based on an unreasonable

2

determination of the facts in light of the evidence presented in the

3

State court proceeding.” 28 U.S.C. § 2254(d).

4

Under § 2254(d)(1), a state court decision is “contrary to” clearly

5

established Supreme Court precedent “if the state court applies a rule

6

that contradicts the governing law set forth” in Supreme Court cases or

7

“if the state court confronts a set of facts that are materially

8

indistinguishable

9

arrives at a result different from” that precedent. Williams v. Taylor,

10

529 U.S. 362, 405-06 (2000). A state court decision is an unreasonable

11

application of clearly established federal law if “the state court

12

identifies the correct governing legal principle” from a Supreme Court

13

decision “but unreasonably applies that principle to the facts of the

14

prisoner's case.”

15

unreasonably applied Supreme Court precedent, “a federal habeas court may

16

not issue the writ simply because that court concludes in its independent

17

judgment

18

established

19

application must also be unreasonable.” Id. at 411; Bell v. Cone, 535

20

U.S. 685, 694 (2002). In conducting habeas review, we “presum[e] that

21

state courts know and follow the law.” Woodford v. Visciotti, 537 U.S.

22

19, 24 (2002).

that

from”

Supreme

Court

decision

but

“nevertheless

Id. at 413. In considering whether a state court has

the

federal

relevant
law

23
24

a

state-court

erroneously

or

decision

applied

incorrectly.

clearly

Rather,

that

SUMMARY
The Court will adopt the thorough and complete Summary of the Case

25

in the R&R, as follows:

26
27

Swoopes was convicted after a jury trial of “first-degree burglary,
sexual assault, aggravated robbery, three counts of armed robbery, and
three counts of kidnapping.” [doc. # 150, p. 2] The trial court imposed

28

3

1
2
3
4
5
6
7

a combined sentence totaling 42 years. Id. At trial, the state presented
evidence that Swoopes and two accomplices committed an armed home
invasion. [doc. # 150, p. 2] Swoopes was the only one of the three whose
face was uncovered. [doc. # 154, p. 3] The main issue at trial was
identification. Swoopes’ accomplices have never been identified.
Swoopes, the gunman, ordered the victims, a married couple and their
male guest, to lie down on the floor of the living room under a blanket.
Arizona v. Swoopes, 155 Ariz. 432, 433, 747 P.2d 593, 594 (App. 1987);
[doc. # 154, p. 3]. After the victims were robbed of their money and
jewelry, the robbers proceeded to ransack the house. Id. [At] one point,
one of the robbers took the wife into the bedroom and sexually assaulted
her. Id. Swoopes remained in the living room to keep the husband and
friend from interfering. Id.

8
9
10
11
12
13
14
15
16
17

Approximately five minutes after the wife was taken away, the guest
decided to escape and summon help. [doc. 150, Exhibit C, p. 158] He
fought his way outside, broke free from two of the intruders, and ran for
help. Id., pp. 158-160. He noticed a vehicle parked just adjacent to the
house. Id., p. 167. The vehicle was gone two or three minutes later when
he returned to the house. Id., p. 168.
When the husband heard the sounds of the struggle, he got off the floor
and ran to the front door intending to lock the intruders out and again
confronted Swoopes, who was standing in the doorway. Id., p. 119. When
Swoopes left, the husband locked the door and went to check on his wife.
Id., pp. 121-122. After determining that she was safe, he ran outside and
saw the robbers drive away in a mid to late ‘60s light colored Plymouth
Valiant. Id., pp. 123-124 After the robbery, the three victims were
unable to clearly describe the gunman and failed to identify Swoopes in
a photographic lineup. Arizona v. Swoopes, 216 Ariz. 390, 393, 166 P.3d
945, 948 (App. 2007). None of the victims reported the gunman as having
any facial blemishes or scars. Id. It is undisputed that Swoopes has a
scar above his right eye.

18
19
20
21

Sixteen months after the robbery, the husband and his friend learned
that a similar home invasion occurred in their neighborhood on that same
night and a suspect in that crime was currently on trial. Id.; [doc. #
154, p. 3] The two men went to the courthouse and recognized Swoopes as
the man who robbed them. Swoopes, 216 Ariz. at 393, 166 P.3d at 948. The
police then arranged a live lineup for the wife, who identified Swoopes
explaining she was looking for a man with a facial scar. Id.

22
23
24
25
26

At trial, the three victims identified Swoopes as the gunman. Id. On
cross examination, the wife admitted that after the robbery she did not
tell police the gunman had a scar. [doc. # 150, Exhibit C, p. 228-230]
She was not specifically asked if she ever told police the gunman had a
blemish. During his closing argument, Swoopes’ counsel reminded the jury
that the wife admitted that she told detectives the gunman had no scars.
[doc. # 150, Exhibit D, p. 119] He argued, this was strong evidence that
her later identification of Swoopes was erroneous.

27
28

4

1
2

The prosecutor tried to address this inconsistency in his rebuttal
closing. He conceded that the wife did not tell detectives the gunman had
a scar, but argued her identification was nevertheless accurate because
her memory was refreshed when she saw Swoopes in the physical lineup.

3
4
5
6

During deliberations, the jury sent a written question to the trial
judge asking to see “any statement made by [the wife] of a blemish before
the physical lineup.” Swoopes, 216 Ariz. 390, 393, 166 P.3d 945, 948. The
court responded that “the statement is not admissible” and further
instructed the jurors to “rely on their collective memories.” Id. It is
undisputed that the wife did not make a statement about a blemish to the
police immediately after the robbery.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

After the trial and sentencing, Swoopes filed a direct appeal arguing
(1) “the court erred in imposing consecutive sentences,” (2) “the court
erred in convicting him of sexual assault as an accomplice, and (3) “the
victims’ in-court identification of him was tainted.” Arizona v. Swoopes,
155 Ariz. 432, 434, 747 P.2d 593, 596 (App. 1987); [doc. # 150, p. 2, n.
1] During the briefing process, the appeal was inadvertently transferred
to the Arizona Supreme Court before being returned to the court of
appeals. [doc. # 11, p. 3, n. 3] During this period, Swoopes filed a
supplemental brief arguing (4) the prosecutor engaged in misconduct, (5)
the court erred in instructing the jury on the issue of identification
evidence, (6) the state improperly excluded counsel from the trial
lineup, and (7) the aggravated robbery conviction violated double
jeopardy. [doc. # 11, p. 3, n. 3]; [doc. # 150, p. 2, n. 1] The court of
appeals refused to entertain the additional claims. Id.; [doc. # 7, p.
5, n.1] On July 21, 1987, the court of appeals affirmed Swoopes’
convictions and sentences in Arizona v. Swoopes, 155 Ariz.432, 747 P.2d
593 (App 1987) (Swoopes I). The Arizona Supreme Court denied review on
January 13, 1988. [doc. # 150, p. 2]
In his first post-conviction relief petition, filed on February 1,
1989, Swoopes argued (1) trial counsel was ineffective for failing to
investigate the alleged getaway car, (2) the trial court erred in its
instruction to the jury about identification evidence, (3) he was denied
counsel at all critical stages, (4) the prosecutor engaged in misconduct
at trial and suppressed evidence, (5) the sentence was unconstitutional,
and (6) he was denied due process and equal protection. [doc # 142, p.
4] The trial court denied the petition on July 17, 1990. [doc. # 142, p.
4] The court of appeals denied Swoopes’ petition for review on February
21, 1991. [doc. # 150, p. 3] On February 21, 1991, Swoopes filed a
special action in the court of appeals raising the same issues presented
in his first post-conviction relief petition and arguing the trial court
erred procedurally and substantively in denying his petition. [doc. #
142, p. 5.] The court of appeals denied the special action on April 18,
1991, and the Arizona Supreme Court denied a petition for review on
September 27, 1991. Id.

25

27

On July 26, 1993, Swoopes filed in this court his original Petition for
Writ of Habeas Corpus pursuant to Title 28, United States Code, Section
2254. (Petition.) He claimed (1) the victims’ in-court identification of
him was tainted, (2) his due process and equal protection rights were

28

5

26

1
2
3

violated by misconduct before the grand jury, (3) the trial court
committed error at trial and in regard to a stipulation, (4) the
prosecutor engaged in misconduct in part by withholding exculpatory
evidence, (5) trial and appellate counsel were ineffective, and (6) his
sentences violated the Double Jeopardy Clause. [doc. # 1, pp. 5-7]; [doc.
# 150, pp. 3-4, n. 3]

4
5
6
7
8
9
10

This court denied claim (1) on the merits and found the remaining
claims procedurally defaulted. [doc. # 150, pp. 4-5]. The Ninth Circuit
affirmed in Swoopes v. Sublett, 163 F.3d 607 (9th Cir. 1998) (Swoopes
II). The Supreme Court vacated Swoopes II and remanded in light of the
recently decided O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728
(1999). Swoopes v. Sublett, 527 U.S. 1001, 119 S.Ct. 2335 (1999). On
remand, the Ninth Circuit held that an ordinary habeas petitioner in
Arizona exhausts his claims by presenting them to the court of appeals.
Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999) (Swoopes III), cert.
Denied, 529 U.S. 1124 (2000). The Ninth Circuit remanded the case for
this court to “determine which claims were properly exhausted, and not
procedurally barred, and issue a decision on the merits of those claims.”
[doc. # 150, p. 5]

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

After a new round of briefing, Swoopes filed a motion to stay the
petition and pursue discovery, which was granted by this court. [doc. #
150, pp. 5-6] By this point, Swoopes’ counsel had discovered in the file
the trial court’s response to the jury’s mid-deliberation question.
Swoopes returned to state court and filed a second post-conviction
relief petition1 on March 27, 2003. [doc. # 142, p. 5] He argued (1) the
trial court erred procedurally and substantively in its response to the
jury question, (2) trial and appellate counsel were ineffective in their
response to the jury question issue, and (3)(a) the state violated Brady
by failing to disclose evidence that another suspect was connected to the
getaway car and (3)(b) the state failed to preserve or destroyed evidence
favorable to his defense. Id., pp. 6-7. The trial court granted relief
on the ineffective assistance claim and ordered a new trial. [doc. # 137,
Exhibit B]; Arizona v. Swoopes, 216 Ariz. 390, 393, 166 P.3d 945, 948
(App. 2007) (Swoopes IV). On September 19, 2007, the court of appeals
reversed the trial court concluding that Swoopes’ claims were precluded,
not eligible for any of the preclusion exceptions, and not of sufficient
[footnote omitted] constitutional magnitude that they could not be waived
implicitly. Swoopes IV. The Arizona Supreme Court denied review on June
3, 2008. [doc. # 150, p. 7] On September 22, 2009, Swoopes filed in this
court his amended Petition for Writ of Habeas Corpus, which combines
certain claims from his original habeas petition with claims newly raised
in his second post-conviction relief petition. He claims (I) his due
process rights were violated “by the trial court’s use of unduly
suggestive and unreliable identification at trial,” (II) “the trial judge
erred procedurally and substantively in his response to a [middeliberation] jury question,” [footnote omitted] (III) his right to due
process and equal protection was violated by prosecutorial misconduct;
and (IV) trial counsel and appellate counsel were ineffective. [doc. #
142].

27
28

6

1

(R&R at 2-6.)

2

On November 30, 2009, Respondents filed a Response to the amended

3

Petition for Writ of Habeas Corpus. On January 28, 2010, Petitioner filed

4

a Reply to the Response, pursuant to Rule 5 of the Rules Governing

5

Section 2254 Cases. On March 22, 2010, the Magistrate Judge issued a

6

Report and Recommendation that the amended petition may be denied on the

7

merits. (Doc. 157.)

8

filed. (Doc. 163, 164.) On August 13, 2010, Respondents filed a Response

9

to

the

Petitioner’s

On July 30, 2011, Petitioner’s Objections were

Objections.

(Doc.

165.)

On

August

19,

2010,

10

Petitioner filed a Reply to the Respondents’ Response, which is not

11

contemplated by the rules governing Section 2254 cases or reports and

12

recommendations at Fed.R.Civ.P. 72, and no leave of Court was requested.

13

This

14

Reconsideration on September 29, 2010.

Reply

was

stricken

and

Petitioner

then

filed

a

Motion

for

(Doc. 168.)

15

PETITIONER’S OBJECTIONS

16

A. The Magistrate Court Wrongly Denied Petitioner’s Claim that the
Trial Judge’s Response to the Jury’s Mid-Deliberation Question Was
Prejudicial Error Because: (1) the State Post-Convictions Court’s
Findings Underlying Its Ruling – i.e., that the Trial Court Responded
Incorrectly and Prejudicially to a Pivotal Jury Question – Are Supported
By The Record and Must Be Deferred To; and, (2) the Trial Judge’s
Response to the Jury’s Mid-Deliberation Question Was an Ex Parte
Communication.

17
18
19
20

These Objections address the recommendation contained in the R&R,

21
as follows:

22
23

In claim (II), Swoopes argues “the trial judge erred procedurally and
substantively in his response to a mid-deliberation jury question” [doc.
# 142, p. 9]

24
25
26

First, Swoopes claims that when the jury sent out its question during
deliberations, the judge improperly communicated with the jury ex parte
without consulting Swoopes’ attorney. [doc. # 142, p. 9]; [doc. # 1,
memorandum, pp. 22-24] The respondents concede this claim is timely, but
they argue it is procedurally defaulted. [doc. # 150, pp. 9, 21-22]

27
28

7

1
2
3
4
5
6
7

When Swoopes raised this claim in his second post-conviction proceeding,
the state appellate court found the claim precluded pursuant to
Ariz.R.Crim.P. 32.2. Arizona v. Swoopes, 216 Ariz. 390, 166 P.3d 945 (App
2008). A procedural bar imposed by the state below precludes federal
review only if it is adequate to support the judgment and independent of
federal law. Thomas v. Goldsmith, 979 F.2d 746, 749 (9th Cir. 1992). A
procedural bar is adequate if it was “firmly established and regularly
followed” at the time of the default. Fields v. Calderon, 125 F.3d 757,
760 (9th Cir. 1997), cert. Denied, 523 U.S. 1132 (1998). Here, the
default occurred when Swoopes failed to raise this claim in his direct
appeal or first postconviction relief petition. Id., at 760-61. Because
procedural default is an affirmative defense, the respondents have the
burden to show the state’s procedural bar is adequate and independent of
federal law. Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005).

8
9
10
11
12
13
14
15

In this case, the state court’s procedural bar was not firmly
established and regularly followed at the time of the default. The state
court found Swoopes’ claim precluded after applying the current version
of Rule 32.2. See Arizona v. Swoopes, 216 Ariz. 390, 397 (App. 2007)
(Swoopes IV). This version, which dates from 1992, did not apply at the
time of Swoopes’ default because that default occurred before 1992, when
the previous version of the rule was in existence. Id. Accordingly, the
court concludes the procedural bar applied by the court of appeals (the
new rule) was not firmly established and regularly followed at the time
of the default (when the previous version of the rule applied). See Scott
v. Schriro, 567 F.3d 573, 580-82 (9th Cir. 2009), cert. denied, 130 S.Ct.
1014 (2009); Clayton v. Gibson, 199 F.3d 1162, 1171 (10th Cir. 1999)
(“[T]he 1995 amendments do not constitute an ‘adequate’ state law ground
for procedural default purposes if they did not exist at the time of the
default.”), cert. Denied, 531 U.S. 838 (2000).

16
17

Addressing the claim on the merits, the court concludes Swoopes is not
entitled to relief. Swoopes cannot show as a matter of fact that the
judge engaged in ex parte communications.

18
19
20
21
22
23
24
25
26

Swoopes raised this claim in his second post-conviction relief petition.
He submitted an affidavit from his trial counsel who stated that he had
no recollection of the jury’s note or the judge’s response but asserted
if he had seen the response, he would have objected because it was
misleading. Arizona v. Swoopes, 216 Ariz. 390, 395 (App. 2007). The state
court concluded that Swoopes’ evidence amounted to no more than a mere
speculation that the judge engaged in ex parte communications. Id.
Because it was customary for the judge to contact counsel off the record
in such circumstances, the state court found that the judge probably did
just that and simply failed to make a subsequent record. Id. The court
will “presume that the state court’s findings of historical fact are
correct and defer to those findings in the absence of convincing evidence
to the contrary or a demonstrated lack of fair support in the record.”
Mayfield v. Woodford, 270 F.3d 915, 922 (9th Cir. 2001).
Swoopes cannot show as a matter of fact that the judge engaged in ex
parte communications. Accordingly, this claim should be denied.

27
28

8

1
2
3
4

Swoopes further argues the trial court should have “brought the jury
into open court in his and his attorney’s presence and presented it with
the crucial and true evidence about [the wife’s]
unreliable
identification (in part by “holding the ‘Dessureault’ hearing in the
presence of the jury) that was needed to answer the jury’s concern about
the reliability of the identification.” [doc. # 142, p. 9] In support of
this claim, Swoopes cites Rushen v. Spain, 464 U.S. 114 (1983) and State
v. Werring, 523 P.2d 499 (1974). [doc. # 119, p. 7]

5
6
7
8
9
10
11
12
13

The gravamen of Swoopes’ claim is not immediately apparent. Rushen and
Werring hold that the due process clause may be implicated if the trial
court responds to a jury’s [mid-deliberation] question without allowing
counsel to participate. Neither holds that the court is obliged to supply
the jury with additional evidence whenever the jury requests it. In
Dessureault, the Arizona Supreme Court discussed certain procedures the
trial court should employ if there is an issue as to the admissibility
of a witness’s identification. Arizona v. Dessureault, 104 Ariz. 380, 453
P.2d 951 (1969), cert. Denied, 397 U.S. 965 (1970). Among other things,
the court held that “if at the trial the proposed in-court identification
is challenged, the trial judge must immediately hold a hearing in the
absence of the jury to determine from clear and convincing evidence
whether it contained unduly suggestive circumstances.” Id., p. 384, 955
(emphasis added). Dessureault does not support Swoopes’ claim either. See
also Watkins v. Sowders, 449 U.S. 341, 349 (1981) (Due process does not
always require the trial judge to conduct a hearing outside the presence
of the jury when identification evidence is at issue.).

14
15

Swoopes cannot show that the trial court’s failure to hold an
evidentiary hearing in response to the jury’s mid-deliberation question
violated his Constitutional rights. The claim should be denied.

16
17
18
19
20
21
22
23
24
25

Swoopes further argues the court substantively erred when it returned
to the jury an answer that was misleading.
The respondents argue this claim is untimely because it was not included
in the original petition, and the amended petition was filed after the
applicable one-year limitation period. See 28 U.S.C. § 2244(d)(1). This
issue was decided by the Ninth Circuit only after briefing on the
petition was concluded. Where the original habeas petition was filed
before the AEDPA effective date, the AEDPA’s one-year limitation period
does not apply to the case at all, even to an amended petition filed
after the effective date. Smith v. Mahoney, __ F.3d __, 2010 WL 744271
* 12 .
As the court stated above, the state court’s finding of preclusion does
not bar federal review. Nevertheless, the court finds the claim fails on
the merits.

27

A habeas petitioner complaining of trial error is entitled to relief
only if he can show the error “had a substantial and injurious effect or
influence in determining the jury’s verdict.” See Brecht v. Abrahamson,
507 U.S. 619, 63, 113 S.Ct. 1710, 1722 (1993). Swoopes cannot show the
trial court’s response had such an effect or influence.

28

9

26

1
2
3
4
5
6
7
8
9
10

When the jury asked in mid-deliberation if the wife made any statement
about a blemish before the physical lineup, the trial court responded
that “the statement is inadmissible.” Swoopes, 216 Ariz. 390, 393, 166
P.3d 945, 948 (App. 2007). Thus, the jury was told two things: (1) the
wife made a statement, and (2) that statement was not admissible.
The jury, however, was instructed to find the facts based only on the
evidence presented at trial. [doc. # 150, Exhibit D, p. 141] Evidence,
the jury was told, consists of the testimony of the witnesses and
exhibits. Id. An inadmissible statement is not evidence. Accordingly, the
wife’s “statement” about a blemish was not evidence and would not have
been considered by the jury in their determination of the facts. Because
a jury is presumed to follow its instructions, the court must conclude
the trial judge’s response to the jury’s mid-deliberation question did
not have a “substantial and injurious effect or influence in determining
the jury’s verdict.” See Brecht v. Abrahamson, 507 U.S. 619, 637, 113
S.Ct. 1710, 1722 (1993); see also Weeks v. Angelone, 528 U.S. 225, 234,
120 S.Ct. 727, 733 (2000) (“A jury is presumed to follow its
instructions.” “Similarly, a jury is presumed to understand a judge’s
answer to its question.”).

11
12
13
14
15

Moreover, even if the trial judge’s response caused the wife’s
identification testimony to be improperly bolstered, relief is not
available in light of the remaining evidence against Swoopes. The husband
testified that he was sober and clear-headed the night of the robbery,
and he had no difficulty seeing the gunman’s face. [doc. # 150, Exhibit
C, pp. 108, 95, 97] While he conceded he did not pick Swoopes out of the
photo lineup, he said he had no problem recognizing Swoopes in the flesh.
Id., p. 132. He testified there was no question in his mind that Swoopes
was the gunman. Id., pp. 133, 142.

16
17
18
19

The friend testified that while he may have had a couple of beers, he
was not in any way under the influence the night of the robbery. Id., pp.
145, 146. The lighting was adequate, and he had no trouble seeing the
gunman’s face. Id., pp.149, 150, 161. He failed to pick Swoopes out of
a photo lineup, but he had no trouble recognizing Swoopes in the
courthouse. [doc. # 150, pp. 164, 165; Exhibit D, p. 50] He had no doubt
that Swoopes was the gunman. [doc. # 150, Exhibit C, pp. 186,87]

20
21
22
23
24
25

The state also presented evidence connecting Swoopes to the vehicle
used the night of the robbery. At some point, Swoopes was arrested for
a traffic violation. [doc. # 150, Exhibit D, pp. 62-63] He was driving
his aunt’s black over blue 4-door 1967 Chrysler, license number: TBT 387.
Id. He said he lived with his aunt at 2115 North Avenida El Capitan. Id.
Detective Skuta testified that he went to this address and saw outside
the residence the ‘67 Chrysler and a Plymouth Valiant. [doc. # 150,
Exhibit D, pp. 27-28] The Chrysler’s licence plate was on the Valiant.
Id. The husband and friend testified that the 4-door Valiant looked like
the vehicle used by the robbers. [doc. # 150, Exhibit C, pp. 166-68, 18889]

26
27

Even without the wife’s testimony, there was compelling evidence that
Swoopes was the gunman. The trial judge’s response to the jury’s mid-

28

10

1
2
3
4

deliberation question did not have a “substantial and injurious effect
or influence in determining the jury’s verdict.” See Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993).
Swoopes further argues the effect of the erroneous response as
magnified by the prosecutor’s statements during his rebuttal closing. The
court finds that the prosecutor’s closing argument was somewhat
misleading but not as prejudicial as Swoopes argues.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

During his closing argument, Swoopes’ counsel reminded the jury that
the wife told detectives the gunman had no scars. [doc. # 150, Exhibit
D, p. 119] He argued, this was strong evidence that her later
identification of Swoopes was erroneous.
The prosecutor tried to address this inconsistency in his rebuttal
closing. He conceded the wife told detectives the gunman had no scars,
but argued her identification was nevertheless accurate because her
memory was refreshed when she saw Swoopes in the physical lineup. His
rebuttal closing reads in pertinent part as follows:
And then it’s very nice, the lady’s in the hospital, she has
been there for a couple hours, she’s been through hell and
some officer is trying to get some statements, did he look
this way, did he have a scar, no, no, about five foot seven
or eight, same weight, same color, same size, she said on
that witness stand, how many of you listened to her? You all
did, You all did. The word blemish kept coming up. She saw
a blemish on his face. The guy is asking about a scar and
she’s probably doped up at that time, as indicated. And you
are going to walsh [sic] him out of the Courtroom. You know,
when you see a person face to face, your memory gets
refreshed. When you see that person, it hits you that that’s
the person. That’s it.
. . . Then when a defense attorney gets you on the witness
stand, and put yourselves in the shoes of these victims,
here, naturally, any tiny discrepance, blemish versus scar,
any thing will be picked on and hammered out. My God in
heaven she did not get her Polaroid out and photograph it.
Her mind did though. And sure, 1:00 o’clock in the morning,
when she’s sedated and exhausted and in shock, she may not
have mentioned the scar. Her memory was refreshed when she
saw him. . . . And they did not commit perjury in this
Courtroom. You should resent being told that.

23

27

Now they told the police that very night about this scar.
That very day about that scar. Let me ask you this question.
Because this is the whole thing when you come right down to
it. It isn’t the rhetoric, and it isn’t the did you see a
mole on someone’s chin, did you see a scratch here, do you
see a pox mark on the forehead, did you see that, it’s the
totalitarity [sic] of the person how he looks, when you see
him, his size; . . . As she said on the witness stand, and

28

11

24
25
26

1
2

she told Detective Skuta, it wasn’t just a blemish, it
wasn’t just a scar, it was all these things when I saw him
with a gun and I had a chance to see him, that’s the man.
. . .

3
[doc. 150, Exhibit D, pp. 133- 36]

4
5
6
7
8
9

According to Swoopes, the prosecutor falsely stated that the wife told
detectives immediately after the robbery that the gunman had a blemish.
The court does not agree. The prosecutor did make certain statements
about a blemish. He said: “The word blemish kept coming up.” “She saw a
blemish on his face.” Id. He never stated, however, that she told the
police the gunman had a blemish.
The meaning of these blemish statements is open to debate. Before the
statements, the prosecutor discussed the wife’s testimony at trial.
Accordingly, the blemish statements may refer to the wife’s admission at
trial that she recognized Swoopes in the lineup in part by his scar.

10
11
12
13
14

Immediately after making the blemish statements, however, the prosecutor
discussed the wife’s interview at the hospital after the robbery. He
stated: “The guy is asking about a scar and she’s probably doped up at
that time, as indicated.” Id. Accordingly, the prosecutor may have been
suggesting the wife saw a blemish but did not mention it because she was
medicated at the time. Regardless of which of these interpretations is
correct, however, the court concludes the prosecutor never improperly
told the jury that the wife told police the gunman had a blemish
immediately after the robbery.

15
16
17
18
19
20
21
22

More problematic, however, are the prosecutor’s following statements:
“Now they told the police that very night about this scar.” “That very
day about that scar.” [doc. # 150, Exhibit D, p. 136] These statements
are also something of a mystery. Immediately after the robbery, the
witnesses did not tell police the gunman had a scar. The prosecutor
conceded in his closing that the wife did not mention the scar and
explained in detail why her identification was nevertheless reliable.
Accordingly, it is unlikely that the prosecutor would deliberately
misrepresent the trial evidence, and simultaneously undermine his own
closing argument by asserting the exact opposite. The respondents suggest
the prosecutor was referring to a later time when the witnesses
recognized Swoopes and told the detectives about their respective
identifications. [doc. # 150, pp. 29-30, n. 8] This is a plausible theory
considering that the prosecutor’s statements immediately following deal
with the process of identification.

23
24
25
26

But regardless of what these statements mean, the court concludes they
did not convince the jury that the wife told detectives about the scar
immediately after the robbery. If they had believed that, then they would
have had no reason to send out their mid-deliberation jury question
asking if the wife made any statements about a blemish. Their question
makes sense only if they believed the wife made no statements about a
scar but might have made one about a blemish instead.

27
28

12

1
2
3
4
5
6

The rebuttal closing was not a model of clarity, but the prosecutor did
not falsely tell the jury that the wife described the gunman as having
a blemish or a scar immediately after the robbery. It is possible that
the jury inferred from his argument that the wife’s concession that she
did not mention a scar to the police did not foreclose the possibility
that she mentioned a blemish instead. This would explain the jury’s middeliberation question.
The court concludes that the trial court’s response to the middeliberation jury question, in light of all the trial proceedings, did
not have a “substantial and injurious effect or influence in determining
the jury’s verdict.” See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

7

11

Swoopes argues this court should defer to the determination of the
state court that the trial court’s error was not harmless. The court
however must apply the pre-AEDPA standard of review, which requires us
to review mixed questions of law and fact de novo. The determination of
whether a trial error was harmless or not is a mixed question of law and
fact reviewed de novo. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir.
1988), cert. denied, 488 U.S. 901 (1988). Accordingly, this court may not
defer to the state court’s resolution of this issue.

12

(R&R at 9 - 16.)

8
9
10

RULING

13
The Objections added nothing new to this claim that have not

14
already been addressed completely and accurately by the R&R and through-

15
out these proceedings.

The Court finds no error in the Magistrate

16
Judge’s analysis of the law.

Both the trial court and the Arizona Court

17
of Appeals found that Petitioner failed to show an ex parte communication

18
occurred.

State v. Swoopes, 216 Ariz. 390, 394-395 (Ariz. App. 2007).

19
The Objection is based on unsupported speculation.

Viewing the totality

20
of the evidence against Petitioner, Petitioner cannot show that the trial

21
court’s response “had a substantial and injurious effect or influence in

22
determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619

23
(1993); see also Rushen v. Spain, 464 U.s. 114, 117 (1983(subject to

24
harmless error analysis); United States v. Madrid, 842 F.2d 1090, 1093-94

25
(9th Cir. 1988)(no actual prejudice). The Court finds no unreasonable

26
27
28

13

1

application

2

overruled.

3

B. The Magistrate Court Wrongly Denied Petitioner’s Claim that the
Prosecutor Violated his Due Process Rights by Failing to Disclose Clearly
Exculpatory Evidence Under Brady.

4
5
6
7
8
9

of

established

federal

law.

Thus,

this

Objection

is

This Objection addresses the following excerpt from the R&R:
[Swoopes] argues the prosecutor “withheld and failed to preserve or to
destroy substantially exculpatory evidence from the defense.” [doc. #
142, p. 10] Specifically, Swoopes claims the prosecution failed to
disclose that police suspected another man, Wigglesworth, of committing
the home invasion. [doc. # 150, Exhibit A, 7-9] This claim was raised in
Swoopes’ second post-conviction relief petition. It is neither timebarred nor procedurally defaulted. The court concludes the claim should
be denied on the merits.

10
11
12
13
14

“[T]he suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963).
“The evidence is material [and reversal is required] only if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” U.S.
v. Bagley, 473 U.S. 667, 682 (1985). “A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.” Id.

15
16
17
18
19
20
21
22

Swoopes maintains the state failed to disclose a wealth of Brady
material that would have altered the verdict had it been presented at
trial. [doc. # 137, Exhibit A, pp. 9-10] Specifically, the state failed
to disclose that the Plymouth Valiant, identified by the husband and
friend as the getaway vehicle, was actually owned, not by Swoopes or his
aunt, but by a Harold McGrew. Id. This McGrew did not know Swoopes and
never lent him his car. Id. Moreover, McGrew sold the car to a Russell
Clark who had been arrested for burglary at one time. Id. Clark in turn
was associated with a John Wigglesworth, who later pleaded guilty to a
home invasion robbery. Id. Wigglesworth drove a Ford Thunderbird and used
the modus operandi of switching licence plates to avoid arrest. [doc. #
154, p. 49] Swoopes argues this Thunderbird could have been the getaway
vehicle because it more closely matched the victim’s original description
than did the Valiant. Id. It is not clear how all this evidence would
have benefitted Swoopes.

23

27

At trial, Swoopes’ counsel argued the husband and the friend were
mistaken when they identified the Valiant as the getaway car. [doc. #
150, Exhibit D, pp. 75, 126] Now, Swoopes believes counsel should have
conceded that the Valiant was the getaway car but should have argued the
car was associated with other possible suspects – Clark and Wigglesworth.
This new line of evidence, however, does not exonerate Swoopes. Swoopes
conducted his robbery with two accomplices. They have never been
identified. One of them could have been Clark or Wigglesworth, does not

28

14

24
25
26

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

mean the evidence also exonerates Swoopes. They may have committed the
robbery together. Moreover, if the Valiant was indeed the getaway car,
the fact that the Valiant was parked in front of Swoopes’ house and
displayed the licence plate from Swoopes’ aunt’s car would have been
additional circumstantial evidence of his guilt. In the alternative,
Swoopes suggests his attorney should have introduced evidence that
Wigglesworth’s Ford Thunderbird was the getaway vehicle. Again, it is
difficult to see how this alternate theory would have helped to exonerate
Swoopes. If the Thunderbird was the getaway vehicle, then Wigglesworth
was likely involved in the robbery. Wigglesworth, however, associated
with Clark, another robbery suspect. Clark, in turn, owned the vehicle
that was observed sitting in front of Swoopes’ house sporting the licence
plate from Swoopes’ aunt’s car.[Footnote omitted.] The evidence tends to
prove that Swoopes knew both Clark and Wigglesworth and had access to the
Ford Thunderbird.
The court does not find “a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different.” See U.S. v. Bagley, 473 U.S. 667, 682 (1985);
but see U.S. v. Jernigan, 492 F.3d 1050 (9th Cir. 2007) (Where bank
robbery was committed by a lone, Hispanic woman, Brady was violated when
the government failed to disclose the existence of second female,
Hispanic suspect.).
Swoopes further claims his due process rights were violated when the
state failed to preserve or destroyed evidence. Specifically he maintains
the state failed to preserve a record of all of the proceedings below
concerning his identification issue; destroyed or failed to preserve the
testimony of witnesses at the Dessureault suppression hearing of February
3, 1986 and February 24, 1986; destroyed trial exhibits such as mug
shots, photos of the physical lineup and getaway car; and destroyed
physical evidence such as the rape kit, a pillowcase and blouse.[doc. #
142, p. 7]
This evidence was destroyed some time after Swoopes’ direct appeal and
initial postconviction relief petition. [doc. # 137, Exhibit B, ruling
3/16/06, p. 2] Nevertheless, Swoopes argues the absence of this material
hampers the “litigation of his post-conviction challenges to his
conviction.” [doc. # 137, Exhibit A, memorandum in support of petition,
p. 16] This claim was raised in Swoopes’ second post-conviction relief
petition. It is neither time-barred nor procedurally barred from federal
review. The court concludes the claim should be denied on the merits.

22
23
24
25
26

In order for the state’s failure to preserve evidence to violate due
process the “evidence must both possess an exculpatory value that was
apparent before the evidence was destroyed, and be of such a nature that
the defendant would be unable to obtain comparable evidence by other
reasonably available means.” California v. Trombetta, 467 U.S. 479, 489
(1984). Moreover, if the state did not destroy the evidence in bad faith,
there is no due process violation. Arizona v. Youngblood, 488 U.S. 51,
58 (1988).

27
28

15

1
2
3
4
5
6
7

The Supreme Court has never clearly held that the due process clause
is implicated if the state destroys potentially exculpatory material
after trial. See Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007);
Ferguson v. Roper, 400 F.3d 635, 638 (8th Cir. 2005), cert. denied, 546
U.S. 1098 (2006). The court need not decide, however, whether or not
Trombetta, and Youngblood apply to Swoopes’ claim because he is not
entitled to relief regardless. But see Pennsylvania v. Finley, 481 U.S.
551, 557 (1987) (The Constitution does not obligate the states to provide
post-conviction relief, and if they do, the Due Process Clause does not
guarantee the petitioner the same rights that would apply before trial).
Swoopes has made no showing that the state destroyed this evidence in bad
faith. See [doc. # 137, Exhibit B, ruling 3/16/06, p. 2] Accordingly, he
has not shown his due process rights were violated.

8
(R&R at 16 - 18.)

9
RULING

10
The Objection is repetitive of ongoing arguments and claims that

11
have been addressed by the R&R.

The Court finds no error in the analysis

12
or application of the law. A constitutional violation arising from

13
prosecutorial misconduct does not warrant habeas relief if the error is

14
harmless. See Sandoval v. Calderon, 241 F.3d 765, 778 (9th Cir. 2000).

15
When a state court has found a constitutional error to be harmless beyond

16
a reasonable doubt, a federal court may not grant habeas relief unless

17
the state court's determination is objectively unreasonable. See Mitchell

18
v. Esparza, 540 U.S. 12, 17-18 (2003) (per curiam); Cooper v. Brown, 510

19
F.3d

870,

921

(9th

Cir.2007).

Under

Brady,

“suppression

by

the

20
prosecution of evidence favorable to an accused upon request violates due

21
process where the evidence is material either to guilt or to punishment,

22
irrespective of the good faith or bad faith of the prosecution.” 373 U.S.

23
at 87. For a Brady claim to succeed, “[t]he evidence at issue must be

24
favorable to the accused, either because it is exculpatory, or because

25
it is impeaching; that evidence must have been suppressed by the State,

26
either willfully or inadvertently; and prejudice must have ensued.” Banks

27
28

16

1

v. Dretke, 540 U.S. 668, 691(2004) (quoting Strickler v. Greene, 527 U.S.

2

263, 281-82 (1999)).

3

[ misconduct] ‘so infected the trial with unfairness as to make the

4

resulting conviction a denial of due process.’ ”

5

477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S.

6

637, 643 (1974)). Assuming that is so, this Court need only decide

7

whether the prosecutor's misconduct so tainted the trial as to violate

8

due process and altered the result of the trial.

9

Bagley, 473 U.S. 667, 682 (1985).

“The relevant question is whether the prosecutors'

Darden v. Wainwright,

United States v.

After reading the transcript of the

10

jury trial, the Court does not so find. The statement by the Petitioner

11

that the State withheld evidence that was both favorable to Swoopes and

12

material to the State’s case against him and his defense is unsupported.

13

(Objection at 28.)

14

allegedly withheld evidence would have benefitted Swoopes’ defense.

15

There was no error in how the prosecutor argued identification and the

16

getaway car; this was not an example of exploiting evidence wrongfully

17

withheld. (Objection at 29.)

18

C. The Magistrate Court Wrongly Denied Petitioner’s Claim that the
Victims’ Unduly Suggestive Identifications Were Sufficiently Reliable.

The Court agrees that it is not clear how the

This Objection is overruled.

19
This Objection is directed to this portion of the R&R:

20
21
22

Swoopes argues his due process rights were violated when evidence was
presented at trial of an “unduly suggestive and unreliable identification
at trial.” [doc. # 142, p. 8] The parties agree that this claim should
be addressed on the merits.

23

27

This claim was raised in the original petition, which was filed before
the AEDPA’s effective date, so the AEDPA standard of review does not
apply. Mayfield v. Woodford, 270 F.3d 915, 922 (9th Cir. 2001). Pure
questions of law and mixed questions of law and fact are reviewed de
novo. Id. The court will “presume that the state court’s findings of
historical fact are correct and defer to those findings in the absence
of convincing evidence to the contrary or a demonstrated lack of fair
support in the record.” Id. (internal punctuation removed).

28

17

24
25
26

1
2
3
4
5
6
7
8
9
10
11

Evidence presented at trial of an out-of-court identification may
violate due process if the identification procedure created “a very
substantial likelihood of irreparable misidentification.” Neil v.
Biggers, 409 U.S. 188, 198 (1972). “Suggestive confrontations are
disapproved because they increase the likelihood of misidentification,
and unnecessarily suggestive ones are condemned for the further reason
that the increased chance of misidentification is gratuitous.” Id.
[Footnote omitted.] If the court finds a pre-trial identification
procedure was unnecessarily suggestive, the court proceeds to determine
whether the ultimate identification was nevertheless sufficiently
reliable. Id., at 198-99. If so, then its admission at trial did not
violate due process. Id. “[T]he central question, [is] whether under the
‘totality of the circumstances’ the identification was reliable even
though the confrontation procedure was suggestive.” Id. at 199. “[T]he
factors
to
be
considered
in
evaluating
the
likelihood
of
misidentification include the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of attention, the
accuracy of the witness’ prior description of the criminal, the level of
certainty demonstrated by the witness at the confrontation, and the
length of time between the crime and the confrontation.” Id. at 199-200.

12
13
14

Assuming without deciding that the initial pre-trial identification was
unnecessarily suggestive, the court concludes that under the totality of
the circumstance the identification was sufficiently reliable.

15
16
17
18
19
20
21

The three witnesses had an “ample opportunity” to observe Swoopes
during the robbery. Arizona v. Swoopes, 155 Ariz. 432, 435 (App. 1988);
see also Coley v. Gonzales, 55 F.3d 1385, 1387 (9th Cir. 1995) (“[T]he
state court’s factual determinations are presumed correct.”). The
witnesses were not mere bystanders but were direct victims. Obviously,
their degree of attention was heightened by that fact. On the other hand,
the court recognizes that the stress of the robbery is a factor that
could have impaired the witness’s ability to accurately remember details
about the gunman’s face. See, e.g., Raheem v. Kelly, 257 F.3d 122, 138
(2nd Cir. 2001) (“[I]t is human nature for a person toward whom a gun is
being pointed to focus his attention more on the gun than on the face of
the person pointing it.”), cert. denied, 534 U.S. 1118 (2002).

22

27

The accuracy of the witnesses’ prior description of the suspect was at
least fair. While none of the witnesses reported [footnote omitted] that
the suspect had a scar above his right eye, their descriptions were not
as vague as Swoopes argues. The husband described the suspect as “negro,”
with a “flare[d]” nose, “slender” with a “good build”- “weighed about
165.” [doc. # 1, Exhibit A] He had “a mustache and maybe long sideburns.”
Id. He wore a dark coat, tan or gray pants, and “like a baseball cap”
that was purple or black. Id. The wife described the suspect as “black,”
“about 5'8" or 5'9", slim figure.” Id. He wore a black cap, brown jacket,
brown pants, sneakers, and bellbottoms. Id. The friend described the

28

18

23
24
25
26

1
2
3
4

suspect as “a black male, approximately 5'11",” lighter colored curly
hair, with “a mustache and a thin beard around his chinline,” “about 155,
160 pounds,” “real nervous” with “[n]o discernible accent.” Id. He wore
“dark pants” and “a maroon or purple coat or shirt.” Id. The witnesses’
descriptions vary somewhat, but they agree in the main. The degree of
detail supplied by the witnesses is some evidence that they had a good
look at the suspect. The degree of similarity between the witnesses’
descriptions is some evidence that their descriptions were accurate.

5
6
7
8

After viewing Swoopes in court, the two men were “absolutely certain”
that Swoopes was the gunman. Arizona v. Swoopes, 155 Ariz. 432, 433 (App.
1988). The wife later identified Swoopes at a live lineup “without being
told of the positive identification by her companions.” Arizona v.
Swoopes, 155 Ariz. 432, 434-35 (App. 1988). The witnesses’ degree of
certainty is further evidence that the identification was reliable.

9
10
11
12
13
14

The courthouse identification, however, was made approximately 16
months after the crime. This is a considerable length of time and does
not support reliability. By itself, however, this lapse of time is not
dispositive. See, e.g., U.S. v. Williams, 596 F.2d 44, 49 (2nd Cir.
1979)(“[A]lthough the time lapse of two years and eight months between
the crime and the in-court confrontation is a somewhat negative factor,
it is outweighed by the other four Manson criteria . . . .”), cert.
denied, 442 U.S. 946 (1979). Based on the totality of the circumstances,
the court concludes the identification testimony was not so unreliable
that its admission violated due process.

15
16
17
18

Swoopes argues the witnesses’ failure to report a scar on the face of
the gunman proves their later identification of him was not sufficiently
reliable. The court does not agree. It is undisputed that Swoopes has a
scar above his right eye. But while this scar is plainly visible under
ordinary conditions, it is not so prominent [footnote omitted] that it
could not have been missed during the tense and chaotic atmosphere of an
armed robbery.

19
20

27

Swoopes notes that the witnesses were shown a photographic lineup
shortly after the robbery, and although they were shown his picture, were
unable to make an identification. He argues their later identification
of him was likely a recollection of seeing his photograph rather than an
identification of the true gunman. The court agrees that the sequence of
events is some evidence that the witnesses’ identification was
unreliable. However, the court does not agree that this outweighs the
other factors pointing to reliability. See U.S. v. Davenport, 753 F.2d
1460, 1463 (9th Cir. 1985) (“The fact that Davenport was the only
individual common to the photo spread and the lineup cannot, without
further indicia of suggestiveness, render the lineup conducive to
irreparable misidentification.”); U.S. v. Johnson, 820 F.2d 1065, 1073
(9th Cir. 1987) (similar); but see, e.g., Foster v. California, 394 U.S.
440, 442-43 (1969) (Lineup procedure was unfair where the witness finally
made a definitive identification after viewing a lineup, where the

28

19

21
22
23
24
25
26

1
2
3

defendant was the tallest of the three men and the only one wearing a
leather jacket, followed by a “one-to-one confrontation” with the
defendant, followed by a second lineup, where “[the defendant] was the
only person in this lineup who had also participated in the first
lineup.”).

4
(R&R at 6-9.)

5
RULING

6
A pretrial hearing was held on Petitioner’s motion to preclude the

7
in-court identification pursuant to State v. Dessureault, 104 Ariz. 380

8
(1969), cert. den., 397 U.S. 965 (1970). After taking the matter under

9
advisement, the court denied the motion.

The test of a witness'

10
identification is whether or not it is reliable considering the totality

11
of the circumstances. State v. Castaneda, 150 Ariz. 382 (1986). The two

12
male victims identified Petitioner at his trial on an unrelated matter.

13
The female victim identified Petitioner at a police lineup without being

14
told of the positive identification by her companions. All three victims

15
had ample opportunity to observe Petitioner during the robbery. The trial

16
court held a Dessureault hearing and determined that the out-of-court

17
identifications were not unduly suggestive.

18
The state court’s determination that the challenged identifications

19
were sufficiently reliable was not contrary to, or an unreasonable

20
application of, clearly established federal law.

Neil v. Biggers, 409

21
U.S. at 199. The R&R accurately and thoroughly addresses and resolves the

22
identification issue.

This Objection is overruled.

23
24

D. The Magistrate Court Wrongly Denied Petitioner’s Claim that the
Prosecutor Engaged in Misconduct By Injecting Racism into His Trial.

25

Petitioner takes issue with the R&R’s recommendation that his claim

26

of racism at trial be denied, as follows:

27
28

20

1
2
3
4
5
6
7

Swoopes further argues the prosecutor engaged in misconduct by the
introduction of “racially charged evidence and comments.” [doc. # 142,
p. 10] The state concedes this claim is timely and was properly
exhausted. [doc. # 150, pp. 9, 17, 36] Because guilty verdicts must be
based on “solid evidence, not upon appeals to emotion,” a prosecutor’s
attempt to improperly inflame the passions of the jury by appealing to
racial or ethnic stereotypes may violate the defendant’s Constitutional
right to due process. Kelly v. Stone, 514 F.2d 18, 19 (9th Cir. 1975);
Bains v. Cambra, 204 F.3d 964, 974-75 (9th Cir. 2000), cert. denied, 531
U.S. 1037 (2000). A habeas petitioner complaining of trial error is
entitled to relief, however, only if he can show the error “had a
substantial and injurious effect or influence in determining the jury’s
verdict.” See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Bains, 204
F.3d at 977-78.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

At trial, the prosecutor elicited testimony from the wife about the
circumstances of the sexual assault. At some point during the crime, one
of the robbers pulled the wife off the living room floor, where the
victims were being held, and into the bedroom. [doc. # 150, Exhibit C,
p. 208] The gunman restrained the husband telling him: “Don’t be a hero
or you will die and everybody in the house will die.” Id., p. 113. The
wife testified that the robber forced her to perform fellatio and told
her to act “like I like it.” Id., p. 210. He then asked for her name and
phone number explaining it was “[b]ecause he would like to have a good
white woman.” Id. She testified she was afraid that the other men would
also abuse her. Id., p. 211. During his closing argument, the prosecutor
described the sexual assault calling it a “[d]isgusting, reviling,
revolting thing that happened to this lady.” [doc. # 150, Exhibit D, p.
92] He argued that Swoopes was guilty of the sexual assault because he
was an accomplice. Id., p. 96-97. He explained as follows: If you aided,
if you made it possible you are equally guilty. Keep cool, man. Don’t be
a hero, man. We are just taking your wife into the other room for a
little fun. [doc. # 150, Exhibit D, p. 97] Later, the prosecutor
described the sexual assault saying: What did he tell her to do? Act like
you enjoy it. Get an Oscar for that one. Act like you enjoy it. And then
what happens? Give me your phone number and she’s scared to death, she
gives it, the phone number is right there on the phone anyway. She
doesn’t want to get hurt any worse. Anymore. I would like a nice white
lady to fuck. Sure, Okay. [doc. # 150, Exhibit D, p. 103] Toward the end
of his argument, the prosecutor asserted that “this lady and this man and
their friend . . . have been through hell because of this defendant.”
Id., p. 138. He urged the jury to “put an end to her nightmare” and
“[s]how her that the truth still exists” and “that justice exists.” Id.,
p. 139. Swoopes argues that none of this testimony was relevant and it
was introduced into the trial for the sole purpose of inflaming the
racial prejudices of the jury. [doc. # 154, p. 72] The court does not
agree.

27

Testimony establishing the sexual assault and Swoopes’ actions
facilitating the assault were necessary to prove the elements of the
offence. The state asserted Swoopes was guilty of sexual assault as an
accomplice. The state therefore was required to prove Swoopes “knowingly
and with criminal intent participat[ed], associat[ed], or concur[ed] with

28

21

26

1
2

another in the commission of [the rape]. Arizona v. Swoopes, 155 Ariz.
432, 434 (App. 1987). It was therefore relevant that the rape occurred,
that Swoopes knew of his accomplice’s intentions, and facilitated the
rape by keeping the husband from interfering.

3
4
5
6
7
8
9
10

Certainly, argument that the assailant wanted the wife’s phone number
because he wanted a “nice white lady to fuck” raised the specter of
certain racial prejudices that could have been used to improperly
influence the jury. [doc. # 150, Exhibit D., p. 103] Here, however, it
cannot be said that the prosecutor dwelt improperly on the racial
overtones of the assault. First, the prosecutor’s presentation stuck
fairly faithfully to the actual words of the robbers. He did embellish
them to some extent, but primarily he stuck to the actual testimony. It
would be ironic to find that a prosecutor committed misconduct by
repeating in court the very words used by the perpetrators during the
underlying crime. See, e.g., Fields v. Woodford, 309 F.3d 1095, 1109 (9th
Cir. 2002) (“Finally, given the eyewitness testimony about what Fields
did to Cobb, there is no reasonable probability that the prosecutor’s
emotional appeal affected the verdict.”), amended by Fields v. Woodford,
315 F.3d 1062 (9th Cir. 2002).

11

27

Second, the court notes that the most potentially inflammatory
statements were attributed, not to Swoopes, but to the robber who
committed the sexual assault. Even if the jurors’ passions were
improperly inflamed, their anger would have been directed primarily
toward the accomplice, not Swoopes. Swoopes, in fact, stopped the assault
from escalating by telling his accomplice that it was time to leave.
Moreover, the prosecutor discussed the sexual assault primarily in
racially neutral terms. The prosecutor’s discussion was by no means mild.
He used words and phrases obviously calculated to emphasize the
degradation of the underlying crime. He called the assault, for example,
a “[d]isgusting, reviling, revolting thing.” His language, however, did
not reference the race of the parties. He did not use the type of
racially loaded terms and argument that courts have previously found to
violate the Constitution. See, e.g., Bains v. Cambra, 204 F.3d 964, 975
(9th Cir. 2000) (“Here, the prosecutor relied upon clearly and concededly
objectionable arguments for the stated purpose of showing that all Sikh
persons (and thus Bains by extension) are irresistibly predisposed to
violence when a family member has been dishonored . . . .”); Kelly v.
Stone, 514 F.2d 18 (9th Cir. 1975) (“Because maybe the next time it won’t
be a little black girl from the other side of the tracks; maybe it will
be somebody that you know . . . .”); Miller v. State of N.C.; 583 F.2d
701, 704 (1978) (“[The prosecutor] repeatedly referred to the defendants
as “these black men” and ultimately argued that a defense based on
consent was inherently untenable because no white woman would ever
consent to having sexual relations with a black.”). Finally, the trial
court offered instructions to the jury that should have lessened whatever
prejudicial influence the prosecutor’s arguments might have had. The jury
was specifically instructed that it was to find the facts from the
evidence presented in court. [doc. # 150, Exhibit D, p. 140] It was
instructed not to be influenced by sympathy or prejudice. Id., p. 140.
Moreover, it was instructed that the arguments made by the lawyers are
not evidence, but should be considered only if they help the jury members

28

22

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

1

understand the law and the evidence. Id., p. 142; see also Id., pp. 94,
131 (where the prosecutor repeated these instructions to the jury).

2

5

Assuming the prosecutor’s comments were improper, Swoopes
they “had a substantial and injurious effect or influence in
the jury’s verdict.” See Brecht v. Abrahamson, 507 U.S. 619,
see, e.g., Moore v. Morton, 255 F.3d 95, 114, n. 16 (3rd
(collecting cases); but see, e.g., Kelly v. Stone, 514 F.2d
Cir. 1975).

6

(R&R at 19 - 22.)

3
4

7

cannot show
determining
637 (1993);
Cir. 2001)
18, 19 (9th

Ruling

8

The prosecutor’s comments at issue were fact based, derived from

9

the victim’s testimony at trial. In recommending denial of this claim,

10

the R&R engages in a very thorough analysis of not just the evidence

11

presented at trial relating to this matter, but also the potential impact

12

it had on the jury. Based on its factual analysis, the R&R correctly

13

concludes that Petitioner fails to show that the comments at issue, if

14

improper, had a substantial or injurious effect or influence on the

15

verdicts.“[T]he touchstone of due process analysis in cases of alleged

16

prosecutorial

17

culpability of the prosecutor.”

18

(1982). Closing argument reflected testimony during the trial of the

19

victims, including the victim that was sexually assaulted.

20

211.)

21

Objection is overruled.

22

E. The Magistrate Court Wrongly Denied Petitioner’s Claim that He
Received Ineffective Assistance of Counsel. (Objection at 35.)

misconduct

is

the

fairness

of

the

trial,

not

the

Smith v. Phillips, 455 U.S. 209, 219

(Tr.

210-

The prosecutor did not make a personal opinion commentary.

This

23
The Objection addresses Ground Four of the R&R, as follows:

24
25
26

Swoopes argues his trial counsel and appellate counsel were ineffective
in their handling of the mid-deliberation jury question. This issue was
raised in Swoopes’ second post-conviction petition in 2003. It is neither
time-barred nor procedurally barred from federal review. The court
concludes the claim should be denied on the merits.

27
28

23

1
2
3
4
5
6
7
8
9
10
11
12

“The Sixth Amendment guarantees criminal defendants the right to
effective assistance of counsel.” Luna v. Cambra, 306 F.3d 954, 961(9th
Cir. 2002), reissued as amended, 311 F.3d 928 (9th Cir. 2002) (quoting
Strickland v. Washington, 466 U.S. 668 (1984)). Habeas relief, however,
is available only if “counsel’s performance was deficient” and the
“deficient performance prejudiced the defense.” Id. To show prejudice,
the petitioner “must demonstrate a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. Because Swoopes
challenges his conviction, he must show “there is a reasonable
probability that, absent the errors, the fact finder would have had a
reasonable doubt respecting guilt.” Id. “Judicial scrutiny of counsel’s
performance must be highly deferential.” Strickland v. Washington, 466
U.S. 668, 689 (1984). “A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Id. “Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound
trial strategy.” Id. (internal citation omitted).

13
14
15
16
17
18
19
20
21

First, Swoopes cannot show trial counsel’s deficient performance caused
the trial court to give the misleading instruction. The trial court
concluded that the trial judge probably consulted counsel and then failed
to properly record the incident as was the customary practice. [doc. #
137, Exhibit B, p. 3] This finding, however, does not necessarily mean
that trial counsel approved the misleading instruction. As Swoopes
himself notes, it is possible the trial court told counsel of the
question, assured them that he would instruct the jury to rely on the
evidence already presented during the trial, and then constructed the
misleading instruction himself and so advised the jury. [doc. # 154, p.
41, n. 21] If this is what happened, and Swoopes has no evidence to the
contrary, then trial counsel’s performance was not deficient. Moreover,
trial counsel’s allegedly deficient performance did not cause Swoopes
prejudice. As the court already explained, the instruction should not
have influenced the jury’s deliberation because the jury was already
instructed to base its findings on the evidence presented and it was
specifically instructed that the “blemish statement” was not evidence.

22

27

Moreover, the identification evidence from the husband and the friend
was more than sufficient to establish Swoopes’ guilt. Assuming without
deciding that appellate counsel’s failure to discover the judge’s
response in the court file was deficient performance, Swoopes cannot show
prejudice. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (The
petitioner must show “that there is a reasonable probability that, but
for counsel’s unprofessional errors, [he] would have prevailed on
appeal.”). The misleading instruction should not have influenced the
jury’s deliberation and identification evidence from the husband and the
friend was more than sufficient to establish Swoopes’ guilt.

28

24

23
24
25
26

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Swoopes also claims his trial counsel was ineffective for failing to
investigate the Valiant and failing to call investigator Gene Reedy
regarding the wife’s lineup identification. These claims were included
in his original habeas petition. [doc. #1, Memorandum, pp. 32, 34]
Assuming without deciding that these claims were exhausted, Swoopes
cannot show trial counsel was ineffective. Assuming without deciding that
trial counsel’s performance was deficient in failing to investigate the
Valiant, Swoopes cannot show he suffered prejudice. As the court
previously discussed, Swoopes now has evidence that the Plymouth Valiant,
identified by the husband and friend as the getaway vehicle, was actually
owned, not by Swoopes or his aunt, but by a Harold McGrew. [doc. # 137,
Exhibit A, pp. 9-10] He also has evidence that another man, John
Wigglesworth, could have been the gunman in part because Wigglesworth
drove a Ford Thunderbird, which Swoopes argues could have been the
getaway vehicle. Id., [doc. # 154, p. 49] As discussed previously, the
court does not find a “reasonable probability” that had this evidence
been introduced at trial, “the fact finder would have had a reasonable
doubt respecting guilt.” See Luna v. Cambra, 306 F.3d 954, 961(9th Cir.
2002), reissued as amended, 311 F.3d 928 (9th Cir. 2002) (quoting
Strickland v. Washington, 466 U.S. 668 (1984)); see also Benn v. Lambert,
283 F.3d 1040, 1053 (9th Cir. 2002) (Ineffective assistance of counsel
claim employs the same analysis as a Brady claim.), cert. Denied, 537
U.S. 942 (2002). Swoopes cannot show his trial counsel’s alleged failure
to investigate the Valiant caused him prejudice. Accordingly, trial
counsel was not ineffective.
Swoopes further argues trial counsel was ineffective for failing to
call Gene Reedy to testify. He argues Reedy’s testimony would have been
relevant on the issue of suggestive identification procedures. [doc. #
52, p. 51] Reedy was an investigator who observed the conduct of the live
lineup. [doc. # 150, Exhibit D, pp., 32, 33, 42] Swoopes argues Reedy
would have testified that during the lineup the wife explained that she
“was looking for something in particular” and when the detective asked:
“What?”, she responded: “A scar.” [doc. # 52, p. 36] The court concludes
this testimony would have been cumulative. On cross-examination, trial
counsel established that, at the lineup, the wife did not make an
identification right away. Id., pp. 235-37. She observed Swoopes for some
five minutes and then asked to have a closer look at the suspects. Id.
She announced her identification after she had that closer look. Id.
Immediately after the lineup, the wife made a statement to Detective
Skuta memorializing her identification and the factors that lead to her
identification. Id., p. 240. Among other things, she said she wanted the
suspects to approach the window and turn sideways because she wanted to
see if any of them had a scar on the side of his face. Id., p. 240. She
saw such a scar on Swoopes’ face near his right eye. Id., p. 243. She
said this scar helped her make her identification, but she also based her
identification on his height, weight, and color. Id., pp. 239, 243, 245.

27

Reedy could have testified that the wife told Detective Skuta that she
wanted to have a closer look at the suspects because she was looking for
a scar. This fact, however, was established by counsel during his crossexamination of the wife. Reedy’s testimony would have been cumulative.
Failing to offer testimony that would have been cumulative is not

28

25

26

1
2

prejudicial. See Babbitt v. Calderon, 151 F.3d 1170, 1176 (9th Cir.
1998), cert. Denied, 525 U.S. 1159 (1999). Accordingly, Swoopes cannot
show trial counsel was ineffective.

3
(R&R at 22 - 26.)

4
RULING

5
The Report and Recommendation throughly and accurately resolved

6
this claim.

The Court can see no reason to hold an evidentiary hearing

7
to resolve this issue. Strickland v. Washington and its progeny set a

8
high bar for a criminal defendant to establish that counsel's performance

9
was deficient. See Strickland, 466 U.S. at 689 (“[A] court must indulge

10
a strong presumption that counsel's conduct falls within the wide range

11
of reasonable professional assistance; that is, the defendant must

12
overcome the presumption that, under the circumstances, the challenged

13
action might be considered sound trial strategy.” (internal quotation

14
marks and citation omitted)); accord Matylinsky v. Budge, 577 F.3d 1083,

15
1090-91 (9th Cir.2009).

The Objection is overruled.

16
CONCLUSION

17
Accordingly, after conducting a de novo review of the record, which

18
included reading the entire record and the transcript of the trial,

19
IT IS ORDERED that the Court ADOPTS the thorough, complete and

20
well-considered Report and Recommendation (Doc. 157) in its entirety.

21
The Objections (Docs. 163, 164) raised by the Defendant are OVERRULED.

22
Petitioner’s Motion to Reconsider (Doc. 168) is DENIED as moot based on

23
this Order.

24
IT IS FURTHER ORDERED that the Court has determined, without need

25
for additional argument, to DENY the Certificate of Appealability.

Rule

26
11, Rules Governing Section 2254 Cases.

27
28

26

The Court has considered

1

specific issues that serve to satisfy the showing required by 28 U.S.C.

2

§2253(c)(2), and finds none present in this case.

3

IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas

4

Corpus is DENIED and this action is DISMISSED.

5

enter separately.

6

This case is closed.

DATED this 21st day of July, 2011.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

27

A Final Judgment shall