Nelson v. Arizona, State of et al

Filing 16

*REPORT AND RECOMMENDATIONS, Magistrate Judge recommends that the District Court, DENY the Second 8 Amended Petition for Writ of Habeas Corpus (State/2254). Clerk directed to send a copy fo this report and recommendation to the petitioner and the respondents.. Signed by Magistrate Judge Glenda E Edmonds on 4/12/2011. (JKM) *Modified on 4/12/2011, Opinion added (JKM).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mitchell Nelson,
Petitioner,

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vs.

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State of Arizona; et al.,

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Respondents.

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No. CIV-10-378-TUC-DCB (GEE)
REPORT AND
RECOMMENDATION

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Pending before the court is a Second Amended Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254, filed by Mitchell Nelson, an inmate confined at the Arizona State

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Prison Complex in Kingman, Arizona. (Doc. 8) Nelson claims (1) he was convicted of a crime

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that he did not commit; (2) the prosecutor elicited perjured testimony; (3) the trial judge

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exhibited prejudice throughout the proceedings; (4) evidence was destroyed two years before

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his case was finalized; (5) his parole officer filed a false probation report; and (6) the judge read

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a prejudicial letter at sentencing. Id.

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Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate
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 for Writ of Habeas Corpus. Claim (4) is not

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cognizable in habeas corpus. The remaining claims are procedurally defaulted.

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Summary of the Case

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Nelson was convicted after a jury trial of aggravated assault and negligent child abuse.

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(Respondents’ answer, p. 3.) On May 30, 2006, the trial court sentenced Nelson to terms of

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imprisonment of seven and one-half years and one year respectively. (Respondents’ answer,

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Exhibits C, F.)

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At the trial, the state presented evidence that Nelson had a fight with his live-in girlfriend

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and, at one point, “racked” and pointed a shotgun at her while his minor son was present.

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(Respondents’ answer, pp. 2-3.)

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After the trial and sentencing, Nelson filed a timely notice of appeal. Id., p. 3. He

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argued “the trial court erred by admitting evidence of (1) [his] prior abusive behavior against

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[his girlfriend]; (2) certain guns found at the residence; and (3) evidence that the state had been

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unable to locate [his] minor son, who had witnessed the incident.” Id., Exhibit A, p. 2. The

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court of appeals affirmed on July 3, 2008. (Respondents’ answer, p. 3.) The Arizona Supreme

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Court denied review on December 5, 2008. Id.

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On May 9, 2009, Nelson filed a petition for post-conviction relief pursuant to Ariz. R.

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Crim. P. 32. (Respondents’ answer, Exhibit C.) He claimed his trial attorney had been

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ineffective for failing to properly object to the introduction of prior bad act evidence. Id. The

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trial court denied the petition on July 1, 2009. Id, Exhibit D. The court of appeals granted

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review but denied relief on January 14, 2010. Id., Exhibit F. The court of appeals noted that

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Nelson failed in his petition to raise the issue of ineffective assistance. Id. Instead, he argued

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the trial court erred in admitting the prior bad act evidence. Id. The court of appeals found this

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particular issue had already been raised and rejected in his direct appeal. Id.

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On June 21, 2010, Nelson filed in this court a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. (Doc. 1) With the court’s permission he filed an amended petition on

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September 3, 2010 (Doc. 6) and a second amended petition on October 25, 2010. (Doc. 8)

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He claims (1) his Fifth and Fourteenth Amendment rights were violated when he was

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convicted of a crime that he did not commit; (2) “[t]he prosecutor elicited perjured testimony,”

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in violation of his Fifth and Fourteenth Amendment rights; (3) “[t]he trial judge exhibited
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prejudice” by (A) forcing Nelson and his son to move to Tucson, (B) raising his bail, (C)

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“allow[ing] evidence he ordered disallowed due to motions,” and (D) refusing to drop the

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charges, in violation of the Fifth and Fourteenth Amendments; (4) his Fifth and Fourteenth

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Amendment rights were violated when evidence was destroyed after the trial; (5) his Fifth and

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Fourteenth Amendment rights were violated when “the parole officer filed a false probation

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report”; and (6) his Fifth and Fourteenth Amendment rights were violated when the judge read

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a prejudicial letter at sentencing. (Doc. 8) Nelson candidly admits he did not raise any of these

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issues before the Arizona Court of Appeals with the exception of claim (3)(C). (Doc. 8)

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The respondents filed an answer on January 3, 2011. (Doc. 12) The respondents concede

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the petition is timely but argue all of Nelson’s claims are procedurally defaulted. Id. Nelson

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filed a reply on January, 21, 2011. (Doc. 13)

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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(c)(3). If the petitioner

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is in 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 her case in a way that was not only

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incorrect or clearly erroneous, but objectively unreasonable.” Id. If the state court denied on

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the merits but did not explain its reasoning, this court must independently review the record to

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determine whether the state court clearly erred in its application of Supreme Court law. Pirtle

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v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002), cert. denied, 539 U.S. 916 (2003). If the

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highest state court fails to explain its decision, this court looks to the last reasoned state court

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decision. See Brown v. Palmateer, 379 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 by 247 F.3d 904 (9th Cir. 2001); Johnson v. Zenon, 88 F.3d

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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 presented to the state court and it is clear the

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

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that is procedurally defaulted must be denied unless the petitioner can “demonstrate cause for

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

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that failure to consider the claims will result in a fundamental miscarriage of justice.” Boyd v.

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Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998) (quoting Coleman v. Thompson, 501 U.S. 722,

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750 (1991)).

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Discussion

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The respondents argue all of Nelson’s claims are procedurally defaulted. The court is

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in substantial agreement, but there are some issues that require separate analysis. The court will

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analyze claims (1), (2), (3)(A), (3)(B), (3)(D), (5), and (6) together. The court will then

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discusses claim (3)(C), and finally claim (4).

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Claims (1), (2), (3)(A), (3)(B), (3)(D), (5), and (6) were not presented to the state court

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of appeals. (Doc. 8) Accordingly, they were not properly exhausted. Nelson cannot return to

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state court and exhaust them now because he is precluded from raising these issues in a new

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Rule 32 petition. Ariz.R.Crim.P. 32.2. His claims are procedurally defaulted.

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In his petition, Nelson asserts he did not raise these claims below because his attorney

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told him they were not appealable issues. (Doc. 8) Unfortunately, “the mere fact that counsel

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failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite

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recognizing it, does not constitute cause for a procedural default.” Murray v. Carrier, 477 U.S.

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478, 486, 106 S.Ct. 2639, 2644 (1986). Nelson has not established cause and prejudice for his

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default and does not raise the miscarriage of justice exception. See Boyd v. Thompson, 147 F.3d

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1124, 1126 (9th Cir. 1998) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). These

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claims must be dismissed.

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In claim (3)(C), Nelson argues the trial court improperly permitted an investigator from

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the county attorney’s office to testify that she tried to find Nelson’s son, but she was

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unsuccessful. (Doc. 8, p. 8) Nelson moved before trial to preclude the witness because the jury

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could infer that Nelson had hidden his son because the son’s testimony would be damaging.

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(Doc. 15, p. 13) The trial court ruled that the investigator could testify for the purpose of

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showing the state was diligent in its trial preparation but not for the purpose of showing

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consciousness of guilt. Id. On direct appeal, Nelson argued that the trial court erred by

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allowing the investigator to testify in a way that “improperly suggested that the reason she could

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not locate him was due to intentional conduct on the part of Nelson’s family and, by

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implication, Nelson himself.” (Doc. 12, Exhibit A, p. 12) The court of appeals, however, found

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no evidence in the record that the witness “went beyond the court’s ruling.” Id.

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This issue was presented to the court of appeals, but it was not properly exhausted

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because Nelson did not explicitly alert the court that he was raising a federal constitutional

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claim. (Doc. 15, Exhibit A, pp. 20-24, Exhibit C, pp. 10-12) In his brief, Nelson argued the
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trial court failed to properly apply the Arizona rules of evidence. Id. He did not suggest the

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trial court’s ruling violated his rights under the Fifth and Fourteenth Amendments. Id. This

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issue was not properly exhausted, and it is now procedurally defaulted. (See above) Nelson

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does not argue cause and prejudice for the default or raise the miscarriage of justice exception.

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This claim must be dismissed.

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In ground (4), Nelson argues the state improperly destroyed evidence that he hoped to

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use if he were granted a new trial. (Doc. 8, p. 9) Apparently, sometime in 2008, after the trial,

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the state destroyed Nelson’s guns. Id. Some of these guns were introduced into evidence at his

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trial. Id. Nelson maintains that these guns, and particularly his shotgun, are important for

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impeachment purposes. Id. At trial, the victim testified that she heard Nelson “rack” his

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shotgun and point it at her. Id. His maintains his shotgun is a semi-automatic and cannot be

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“racked.” Id. Nelson argues the state’s destruction of this evidence violates his rights under the

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Fifth and Fourteenth Amendments. Id. This claim, however, is not cognizable in federal habeas

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corpus.

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Where “the petitioner is in custody pursuant to the judgment of a state court,” habeas

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corpus relief is not available unless the petitioner can establish a violation of “clearly

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established Federal Law, as determined by the Supreme Court of the United States.” 28 U.S.C. §

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2254(d) (emphasis added). The Supreme Court, however, has never held that destruction of

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evidence after trial violates the Constitution. See Cress v. Palmer, 484 F.3d 844, 853 (6th Cir.

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2007); Ferguson v. Roper, 400 F.3d 635, 638 (8th Cir. 2005), cert. Denied, 546 U.S. 1098

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(2006). Accordingly, this claim is not cognizable. And even if it were, there is no due process

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violation here. A due process claim requires proof of prejudice, which Nelson cannot show

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because he has not been granted a new trial. See U.S. v. Dring, 930 F.2d 687, 693 (9th Cir.

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1991) (“In cases of constitutionally guaranteed access to evidence, wherein the Government

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loses potentially exculpatory evidence, the Supreme Court applies a two-pronged test of bad

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faith and prejudice.”).

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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 Second Amended Petition for Writ of Habeas

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Corpus. (Doc. 8) Claims (1), (2), (3), (5), and (6) are procedurally defaulted. Claim (4) is not

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cognizable.

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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, the party’s right to de novo review may be waived. See U. S. v. Reyna-Tapia, 328

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F.3d 1114, 1121 (9th Cir. 2003) (en banc), cert. denied, 540 U.S. 900 (2003).

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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 12th day of April, 2011.

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