McCoy v. Ryan et al

Filing 22

REPORT AND RECOMMENDATIONS recommending denying 1 Petition for Writ of Habeas Corpus (State/2254) filed by Jerry Dean McCoy. The Clerk of Court is directed to send a copy of this report and recommendation to the petitioner and the respondents (see attached pdf for further information). Signed by Magistrate Judge Glenda E Edmonds on 08/09/11. (LMF) Modified on 8/9/2011 to add with opinion (LMF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jerry Dean McCoy,
Petitioner,

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vs.

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Charles L. Ryan; et al.,

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Respondents.

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No. CIV 10-052-TUC-RCC (GEE)
REPORT AND
RECOMMENDATION

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On January 25, 2010, Jerry Dean McCoy, an inmate confined in the Arizona State Prison
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Complex-Manzanita in Tucson, Arizona, filed a Petition for Writ of Habeas Corpus pursuant
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to Title 28, United States Code, Section 2254. (Doc. 1) Before the court are the petition, the
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respondents’ answer, and their supplemental answer.
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Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate
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Judge Edmonds for report and recommendation.
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The Magistrate Judge recommends the District Court, after its independent review of the
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record, enter an order denying the petition on the merits. McCoy’s trial counsel was not
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ineffective, and his speedy trial rights were not violated.
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Summary of the Case
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McCoy was convicted after a bench trial of “three counts of kidnapping, three counts of
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aggravated assault with a deadly weapon or dangerous instrument, and one count each of
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burglary, aggravated robbery, and armed robbery.” (Doc. 9, Exhibit A, p. 2) The trial court

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sentenced McCoy to “concurrent terms of imprisonment on all counts, the longest of which was

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twenty-one years.” Id.

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At trial, the state presented evidence that McCoy and three others committed an armed

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home invasion. (Doc. 21, p. 2) Shortly after the robbery, McCoy was captured a few blocks

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from the residence with gold bracelets in his pants pocket. (Doc. 21-1, Exhibit K , p. 14-18);

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(Doc. 9-1, Exhibit I, p. 4) Police then drove two of the robbery victims, a man and a woman,

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to McCoy’s location for a “show-up” identification. (Doc. 21-1, Exhibit K , pp. 50-58, 107-

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110); (Doc. 9-1, Exhibit I, p. 4) Both victims identified McCoy as the robber. (Doc. 9-1,

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Exhibit I, p. 4); (Doc. 21-2, Exhibit K, pp. 107-110) The woman identified the bracelets as

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having been taken from her wrist during the robbery. Id.

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McCoy filed a timely notice of direct appeal arguing the trial court violated his right to

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a speedy trial pursuant to Ariz.R.Crim.P. 8. (Doc. 9, p. 2) The court of appeals affirmed his

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convictions and sentences on March 30, 2007. Id.

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On April 27, 2007, McCoy filed timely notice of post-conviction relief. Id. He argued

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in his petition that trial counsel was ineffective for (a) failing to request a Dessureault hearing

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to challenge the pretrial identifications and (b) failing to cross-examine the government’s

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witnesses concerning promises and incentives that might have been made to secure their

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testimony. Id., pp. 2-3. The trial court denied the petition on December 10, 2007. (Doc. 9,

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Exhibit G.) On October 23, 2008, the court of appeals granted review but denied relief. (Doc.

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9, p. 3) McCoy did not appeal to the Arizona Supreme Court. Id.

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On January 25, 2010, McCoy filed the instant Petition for Writ of Habeas Corpus

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pursuant to Title 28, United States Code, Section 2254. (Doc. 1) He raises the following

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claims: (1) counsel was ineffective for (a) failing to request a Dessureault hearing to challenge

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the out-of-court identification and (b) failing to cross-examine the government’s witnesses

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concerning promises and incentives that might have been made to secure their testimony and

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(2) his Sixth Amendment right to a speedy trial was violated. Id.

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The respondents filed an answer arguing, among other things, that the petition is time-

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barred. The Magistrate Judge issued a report recommending that the District Court dismiss the

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petition on that ground. After further briefing, the District Court held that the petition was

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timely and referred the matter again to the Magistrate Judge. The respondents filed a

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supplemental brief on May 24, 2011. McCoy did not file a reply.

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Discussion

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The writ of habeas corpus affords relief to prisoners in custody in violation of the

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Constitution or laws or treaties of the United States. 28 U.S.C. § 2241. If the petitioner is in

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custody pursuant to the judgment of a state court, the writ will not be granted unless prior

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adjudication of the claim –

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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.

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28 U.S.C. § 2254(d). The petitioner must shoulder an additional burden if the state court
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considered the issues and made findings of fact.
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In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of
a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.

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28 U.S.C.A. § 2254 (e)(1).
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A decision is “contrary to” Supreme Court precedent if the “state court confronted a set
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of facts that are materially indistinguishable from a decision of the Supreme Court and
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nevertheless arrived at a result different from Supreme Court precedent.” Vlasak v. Superior
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Court of California ex rel. County of Los Angeles, 329 F.3d 683, 687 (9th Cir. 2003).

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decision is an “unreasonable application” if “the state court identified the correct legal
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principles, but applied those principles to the facts of [his] case in a way that was not only
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incorrect or clearly erroneous, but objectively unreasonable.” Id. “It is not enough that our
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independent review of the legal question leaves us with a firm conviction that the state court

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decision was erroneous.” Id. If the state court denied on the merits but did not explain its

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reasoning, this court must independently review the record to determine whether the state court

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clearly erred in its application of Supreme Court law. Pirtle v. Morgan, 313 F.3d 1160, 1167

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(9th Cir. 2002), cert. denied, 539 U.S. 916 (2003). If the highest state court fails to explain its

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decision, this court looks to the last reasoned state court decision. See Brown v. Palmateer, 379

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F.3d 1089, 1092 (9th Cir. 2004).

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Federal review is limited to those issues that have already been fully presented to the
state court. This so-called “exhaustion rule” reads in pertinent part as follows:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that – (A) the applicant has exhausted the remedies available in the courts of the
State. . . .

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28 U.S.C. § 2254(b)(1)(A). This rule permits the states “the initial opportunity to pass upon and
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correct alleged violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275
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(1971).
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To be properly exhausted, the federal claim must be “fairly presented” to the state courts.
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Picard v. Connor, 404 U.S. 270, 275 (1971). In other words, the state courts must be apprised
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of the legal issue and given the first opportunity to rule on the merits. Id. at 275-76.
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Accordingly, the petitioner must “present the state courts with the same claim he urges upon the
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federal courts.” Id. The state courts have been given a sufficient opportunity to hear an issue
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when the petitioner has presented the state court with the issue’s factual and legal bases.
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Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999).

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In addition, the petitioner must explicitly alert the state court that he is raising a federal
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constitutional claim. Duncan v. Henry, 513 U.S. 364, 366 (1995); Lyons v. Crawford, 232 F.3d
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666, 668 (9th Cir. 2000), as modified 247 F.3d 904 (9th Cir. 2001); Johnson v. Zenon, 88 F.3d
828, 830 (9th Cir. 1996). The petitioner must make the federal basis of the claim explicit either

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by citing specific provisions of federal law or federal case law, even if the federal basis of a
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claim is “self-evident,” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), cert. denied, 528

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U.S. 1087 (2000) or by citing state cases that explicitly analyze the same federal constitutional

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claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).

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If the petitioner is in custody pursuant to a judgment imposed by the State of Arizona,

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he must present his claims to the state appellate court for review. Swoopes v. Sublett, 196 F.3d

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1008 (9th Cir. 1999), cert. denied, 529 U.S. 1124 (2000). If state remedies have not been

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exhausted, the petition may not be granted and should ordinarily be dismissed. See Johnson v.

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Lewis, 929 F.2d 460, 463 (9th Cir. 1991). In the alternative, the court has the authority to deny

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on the merits rather than dismiss for failure to exhaust. 28 U.S.C. § 2254(b)(2).

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A claim is “procedurally defaulted” if the state court declined to address the issue on the

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merits for procedural reasons. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002).

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Procedural default also occurs if the claim was not fairly presented to the state court and it is

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clear the state would now refuse to address the merits of the claim for procedural reasons. Id.

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A claim that is procedurally defaulted must be denied unless the petitioner can “demonstrate

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cause for the default and actual prejudice as a result of the alleged violation of federal law, or

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demonstrate that failure to consider the claims will result in a fundamental miscarriage of

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justice.” Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998) (quoting Coleman v.

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Thompson, 501 U.S. 722, 750 (1991)).

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Discussion: Speedy Trial

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McCoy claims his “Sixth Amendment” right to a speedy trial was violated. (Doc. 1)

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McCoy raised the speedy trial issue in his direct appeal, but in his brief he argued only that his

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speedy trial right under state law was violated. He did not appraise the state court that he was

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raising a federal claim. Accordingly, he did not properly exhaust this claim below.

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Rather than dismiss, the court will address the claim on the merits because it has no
support in the record. See 28 U.S.C. § 2254(b)(2).

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The Sixth Amendment accords the accused a right to a speedy trial. U.S. Const. Amend.

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VI. “The seminal case in this area is Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d

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101 (1972), in which the Supreme Court identified some of the factors to be employed in
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assessing whether a particular defendant has been deprived of the right to a speedy trial.” U.S.

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v. Sandoval, 990 F.2d 481, 482 (9th Cir. 1993) (punctuation modified). “They include: (1) the

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length of the delay; (2) the reason the government assigns to justify the delay; (3) the

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defendant’s responsibility to assert his right to a speedy trial; and (4) the prejudice to the

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defendant. Id. (punctuation modified).

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In this case, the record indicates that McCoy was arrested on November 23, 2004, and

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arraigned on December 2, 2004. (Doc. 9-1, Exhibit A, pp. 2-4); (Doc. 9-1, Exhibit B, p. 1)

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He was originally set to be tried on August 2, 2005, but the trial was continued December 13,

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2005, following a trial severance. (Doc. 9-1, Exhibit B, p. 1) Trial was again continued until

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March 28, 2006, because one of the state’s witnesses was unavailable. (Doc. 9-1, Exhibit A,

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pp. 2-4) At the hearing on the motion to continue, defense counsel “acknowledged that the

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defendant [was] not prejudiced by the delay,” and the court explicitly made that finding. Id.

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The court of appeals found no evidence in the record that the defendant objected to the

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continuance at the time. Id.

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According to the record, McCoy suffered a delay from arrest to trial of 16 months. Most

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of the delay occurred because one of the government’s witnesses was unavailable. The

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Supreme Court considers the absence of a witness to be a strong excuse for delay. Barker, 407

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U.S. at 531, 92 S.Ct. at 2192. The defendant did not assert his rights to a speedy trial, and he

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was not prejudiced by the delay. On this record, McCoy’s speedy trial rights were not violated.

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See, e.g., Barker, 407 U.S. at 533-36, 92 S.Ct. at 2193-95. (Speedy trial right was not violated

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where “the length of delay between arrest and trial – well over five years – was

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extraordinary,”“[o]nly seven months of that period can be attributed to a strong excuse,” the

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defendant did not assert his speedy trial rights, and “prejudice was minimal.”)

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Discussion: Ineffective Assistance of Counsel

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McCoy claims his “Sixth Amendment” rights were violated when trial counsel (1) failed

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to “request a Dessureault hearing” to challenge the out-of-court identification and (2) failed to

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cross-examine the prosecution’s witnesses to see if the government had offered promises or
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other incentives for their testimony. (Doc. 1) The respondents urge the court to deny the claims

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on the merits.

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“The Sixth Amendment guarantees criminal defendants the right to effective assistance

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of counsel.” Luna v. Cambra, 306 F.3d 954, 961(9th Cir. 2002), reissued as amended, 311 F.3d

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928 (9th Cir. 2002) (quoting Strickland v. Washington, 466 U.S. 668 (1984)). Habeas relief,

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however, is available only if “counsel’s performance was deficient” and the “deficient

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performance prejudiced the defense.” Id. To show prejudice, the petitioner “must demonstrate

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a reasonable probability that, but for counsel’s unprofessional errors, the result of the

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proceeding would have been different.” Id. “A reasonable probability is a probability sufficient

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to undermine confidence in the outcome.” Id. Because McCoy challenges his conviction, he

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must show “there is a reasonable probability that, absent the errors, the fact finder would have

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had a reasonable doubt respecting guilt.” Id.

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“Judicial scrutiny of counsel’s performance must be highly deferential.” Strickland v.

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Washington, 466 U.S. 668, 689 (1984). “A fair assessment of attorney performance requires

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that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

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circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

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perspective at the time.” Id. “Because of the difficulties inherent in making the evaluation, a

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court must indulge a strong presumption that counsel’s conduct falls within the wide range of

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reasonable professional assistance; that is, the defendant must overcome the presumption that,

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under the circumstances, the challenged action might be considered sound trial strategy.” Id.

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(internal citation omitted).

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In his first claim of attorney error, McCoy argues counsel should have challenged the

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out-of-court identifications by requesting a Dessureault hearing. See State v. Dessureault, 104

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Ariz. 380, 453 P.2d 951 (1969). He does not, however, explain why he believes such a

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challenge would have been successful.

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Evidence presented at trial of an out-of-court identification may violate due process if

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the identification procedure created “a very substantial likelihood of irreparable

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misidentification.” Neil v. Biggers, 409 U.S. 188, 198 (1972). “Suggestive confrontations are
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disapproved because they increase the likelihood of misidentification and unnecessarily

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suggestive ones are condemned for the further reason that the increased chance of

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misidentification is gratuitous.” Id.

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If the court finds a pre-trial identification procedure was unnecessarily suggestive, the

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court proceeds to determine whether the ultimate identification was nevertheless sufficiently

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reliable. Id., at 198-99. If so, then its admission at trial did not violate due process. Id. “[T]he

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central question, [is] whether under the ‘totality of the circumstances’ the identification was

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reliable even though the confrontation procedure was suggestive.” Id. at 199. “[T]he factors

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to be considered in evaluating the likelihood of misidentification include the opportunity of the

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witness to view the criminal at the time of the crime, the witness’ degree of attention, the

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accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated

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by the witness at the confrontation, and the length of time between the crime and the

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confrontation.” Id. at 199-200.

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In this case, the evidence presented at trial indicates the likelihood of misidentification

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was low. The witnesses were victims of a crime and likely to have their attention directed

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toward the perpetrator. (Doc. 21-2, Exhibit K, pp. 9, 10, 73, 74, 98, 99, 107, 109) The

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witnesses were close to the perpetrator for a number of minutes, being either right next to or in

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the same room as the perpetrator. Id. The length of time between the crime and the show-up

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was a few hours at most. (Doc. 21-2, Exhibit K, p. 24) There is no indication that either victim

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was hesitant in identifying McCoy, and one witness testified that he was quite sure of his

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identification. (Doc. 21-2, Exhibit K, pp. 58, 110) Moreover, when McCoy was arrested, he

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had in his pocket jewelry belonging to one of the victims. (Doc. 21-2, pp. 10, 11, 12, 18, 22)

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In general, show-ups are considered more suggestive than other methods of identification, but

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the Supreme Court has held that they are permissible at least under certain circumstances. See

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(Doc. 21-2, pp. 50, 51, 52), see also Neil v. Biggers, 409 U.S. 188, 198 (1972) (“[T]he

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admission of evidence of a showup without more does not violate due process.”). Based on the

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totality of the circumstances and after consideration of the Biggers factors, the court concludes

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that the witnesses’ identification of McCoy was reliable even though the confrontation

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procedure may have been suggestive.

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It is unlikely that evidence of the identification would have been suppressed had counsel

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demanded a Dessureault hearing. Accordingly, McCoy cannot establish prejudice from

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counsel’s performance. And, because he cannot show prejudice from counsel’s alleged failure,

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he cannot establish counsel’s performance was deficient. Failing to raise an nonmeritorious

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issue is not deficient performance. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996)

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(“[T]he failure to take a futile action can never be deficient performance. . . .”). The decision

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of the state court of appeals on this issue was neither “contrary to,” nor an “unreasonable

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application of, clearly established Federal law, as determined by the Supreme Court of the

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United States.” 28 U.S.C. § 2254(d).

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In his second claim of attorney error, McCoy argues counsel was ineffective for failing

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to cross-examine the prosecution’s witnesses to see if the government had offered promises or

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other incentives for their testimony. (Doc. 1) McCoy, however, offers no evidence that the

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government did offer these witnesses anything. His claim is entirely speculative. Accordingly,

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he cannot prove counsel’s performance prejudiced him, and without proof of prejudice, he

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cannot show counsel’s performance was deficient. See, e.g., Gonzalez v. Knowles, 515 F.3d

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1006, 1016 (9th Cir. 2008) (“Such speculation is plainly insufficient to establish prejudice.”).

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Counsel was not ineffective and the decision of the state court of appeals on this issue was

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neither “contrary to,” nor an “unreasonable application of, clearly established Federal law, as

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

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RECOMMENDATION

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The Magistrate Judge recommends that the District Court, after its independent review

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of the record, enter an order DENYING the Petition for Writ of Habeas Corpus. (Doc. 1)

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McCoy’s trial counsel was not ineffective and his speedy trial rights were not violated.

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Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within

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14 days of being served with a copy of this report and recommendation. If objections are not

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timely filed, they may be deemed waived.

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The Clerk is directed to send a copy of this report and recommendation to the petitioner
and the respondents.

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DATED this 9th day of August, 2011.

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