Pauley v. Arizona, State of

Filing 24

REPORT AND RECOMMENDATION re 6 Amended Petition for Writ of Habeas Corpus (State/2254) filed by Theodore Joseph Pauley. Magistrate Judge recommends that the District Court deny the Petition for Writ of Habeas Corpus. Signed by Magistrate Judge Leslie A Bowman on 12/16/2013. (BAR) Modified on 12/18/2013 to reflect WO (BAR).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Theodore Joseph Pauley,
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 10-390-TUC-AWT (LAB)
REPORT AND
RECOMMENDATION

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Pending before the court is an amended petition for writ of habeas corpus filed on
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September 27, 2010, by Theodore Joseph Pauley, an inmate confined in the Arizona State
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Prison Complex in Florence, Arizona. (Doc. 6)
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Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate
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Judge Bowman 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. Trial counsel was not ineffective for failing to
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discovery exculpatory evidence.
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Summary of the Case
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Pauley was convicted after a jury trial of “four counts of child molestation, one count of
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attempted sexual conduct with a person under 15, and two counts of public sexual indecency.”
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(Respondents’ answer, Exhibit A, pp. 1-2.); (Doc. 12-1, pp. 2-3) The trial court sentenced
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Pauley to “consecutive prison terms of 17 years and 10 years on two of the courts, followed by

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consecutive terms of 35 years to life on two other counts, followed by concurrent six-year terms

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on additional counts, to be served consecutively to the prior sentences, followed finally by a

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consecutive term of 35 years to life on the final count.” (Respondents’ answer, p. 3.); (Doc.

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12-1, p. 3)

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Pauley filed a timely notice of direct appeal, but it was stayed when Pauley filed a

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petition for post-conviction relief alleging ineffective assistance of trial counsel. (Respondents’

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answer, p. 3.) The trial court denied the petition and subsequent motion for reconsideration.

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Id. When Pauley filed a petition for review, the court of appeals combined his petition with his

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direct appeal. Id.; (Doc. 12-1, p. 43)

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In his combined appeal, Pauley argued (1) the trial court erred by admitting his statement

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at trial because it was hearsay, (2) the trial court erred by precluding exculpatory evidence

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offered the last day of trial, and (3) trial counsel was ineffective for failing to discover the

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exculpatory evidence earlier. (Respondents’ answer, Exhibit J); (Doc. 12-2) The court of

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appeals affirmed his convictions and sentences and denied the petition for review on March 18,

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1993. (Respondents’ answer, Exhibit A.); (Doc. 12-1) The Arizona Supreme Court denied

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review on December 17, 1993. (Respondents’ answer, p. 3.)

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In November of 1995, Pauley filed a second notice of post-conviction relief citing a

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recent change1 in the law. (Respondents’ answer, p. 3.) In March of 1996, Pauley sent a letter

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to the court inquiring about the status of his case. Id. Three years later, he filed a petition for

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the production of documents. Id., pp. 3-4. On April 5, 1999, the trial court granted the petition

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and ordered that a transcript of the sentencing be prepared and sent to Pauley by May 17, 1999.

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(Respondents’ answer, Exhibit S.) There are no further filings in the record relating to this post-

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conviction proceeding. (Respondents’ answer, p. 4.)

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Pauley included as an exhibit a copy of the case, State v. Killean, 184 Ariz. 164, 907 P.2d 550
(App. 1995). He underlined and starred a passage that reads as follows: “We therefore hold that a
criminal defendant’s vital evidence can be precluded as a sanction for a discovery violation only where
the conduct of defense counsel and/or the defendant constitutes bad faith or willful misconduct.” Id.
at 561, 175. This opinion was later overruled by State v. Killean, 185 Ariz. 270, 915 P.2d 1225 (1996).
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On June 25, 2010, Pauley filed in this court a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. He filed an amended petition on September 27, 2010. He claims: (1) “The

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State violated the Double Jeopardy Clause . . . by charging Petitioner with multiple counts for

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the same offense”; (2) “The trial court erred in barring the testimony of a defense witness”; (3)

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“Trial counsel was ineffective by submitting into evidence an illegible copy of victim’s

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statement thus preventing Petitioner from having a fair trial”; and (4) “The trial court committed

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reversible error by admitting Petitioner’s statement into evidence.” (Doc. 6)

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On January 26, 2011, the respondents filed an answer arguing the petition is time-barred.

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(Doc. 12) They further argue Claims 1 and 2 are procedurally defaulted and Claim 4 is not

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cognizable. (Doc. 12) Pauley filed a reply on March 10, 2011. (Doc. 13)

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On March 31, 2011, Magistrate Judge Edmonds, to whom the case was referred, issued

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a report and recommendation concluding the petition should be dismissed as time-barred. (Doc.

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14) The District Court did not adopt the recommendation and referred the case for further

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proceedings. (Doc. 21) On January 22, 2013, the case was referred to Magistrate Judge

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Bowman. (Doc. 22)

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Discussion

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

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Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is

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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
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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.
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 [the] 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 failed 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 habeas review is limited to those issues that have 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 opportunity to pass upon and
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correct alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365
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(1995) (internal punctuation removed).
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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, 92 S.Ct. 509, 512 (1971). In other words, the state courts
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must be apprised of the 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 basis.”

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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); Casey v. Moore, 386 F.3d

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896, 910-11 (9th Cir. 2004), cert. denied, 545 U.S. 1146 (2005). The petitioner must make the

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federal basis of the claim explicit either by citing specific provisions of federal law or federal

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case law, even if the federal basis of a claim is “self-evident,” Gatlin v. Madding, 189 F.3d 882,

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888 (9th Cir. 1999), cert. denied, 528 U.S. 1087 (2000), or by citing state cases that explicitly

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analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th

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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. Castillo v. McFadden, 399

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F.3d 993, 998 (9th Cir. 2005), cert. denied, 546 U.S. 818 (2005); 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 ordinarily should 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.

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Procedural default may be excused if the petitioner can “demonstrate cause for the

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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).

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Discussion: Double Jeopardy

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Pauley argues in Claim 1 that “the state violated the Double Jeopardy Clause of the Fifth

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Amendment by charging Petitioner with multiple counts for the same offense and by imposing

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multiple criminal punishments.” (Doc. 6, p. 6) The respondents argue this claim is procedurally

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defaulted. They are correct.

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This claim was never presented to the Arizona Court of Appeals. It was not properly

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exhausted. Moreover, Pauley cannot return to state court and litigate the issue now because he

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is precluded from raising it in a new Rule 32 petition.

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procedurally defaulted. See Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002). Pauley

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does not argue cause and prejudice in his reply brief. (Doc. 13) Accordingly, this claim should

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Ariz.R.Crim.P. 32.2. His claim is

be denied.

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In the alternative, the claim should be denied because it contains only conclusory

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allegations without providing specific facts indicating that Pauley is entitled to relief. Pauley’s

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factual basis for this claim reads in its entirety as follows:

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Petitioner was charged with multiple counts involving child molestation and
sexual conduct with a minor. Two of those charges were said to have occurred
on January 13, 1990, while the remaining counts were said to have occurred on
July 27, 1990. After a guilty verdict, Petition was sentenced to multiple
consecutive sentences.

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(Doc. 6, p. 6) Pauley’s skeletal outline of the charges against him fails to inform the court of

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the specific nature of the claim and fails to provide a showing that he is entitled to relief. See

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Rule 2(c) of the Rules Governing Section 2254 Cases. The claim should be denied. See

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Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (“[Petitioner’s] cursory and vague

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claim cannot support habeas relief.”); Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (“It

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is well-settled that conclusory allegations which are not supported by a statement of specific

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facts do not warrant habeas relief.”) (punctuation modified), cert. denied, 517 U.S. 1143

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(1996).

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Discussion: Preclusion of Late Disclosed Witness

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In Claim 2, Pauley argues “the trial court erred when it precluded him from presenting

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the testimony of the purported custodian of records of his apartment complex where [he] was
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alleged to be living at the time of the offenses.” (Doc. 12-1, p. 4) The respondents argue this

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claim was not properly exhausted and is now procedurally defaulted. The court agrees.

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During the trial, one of the victims testified that the alleged offense took place in a

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certain apartment. (Doc. 12-1, p. 5) Pauley then told his counsel that he did not live at that

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apartment until later in the year. Id. Counsel explained to the trial court that until that moment,

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he was unaware of the issue because his copy of the victim’s statement was partially illegible.

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Id.

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Counsel asked the trial court for permission to present testimony that Pauley had not

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entered into a lease for the apartment until March 10, 1990, approximately two months after the

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alleged offense occurred. Id. The trial court nevertheless precluded the testimony finding that

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counsel’s copy of the victim’s statement was clear enough to enable him to discover the issue

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and disclose the witness before the last day of the trial. Id.

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Pauley raised this issue in his direct appeal. (Doc. 12-2, p. 19) The respondents,

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however, argue that he failed to alert the court of appeals of the federal nature of his claim.

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Accordingly, it was not properly exhausted and is now procedurally defaulted. The court

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agrees.

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In his direct appeal, Pauley argued that by precluding the exculpatory testimony, “[t]he

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court denied [him] his constitutional right to present evidence in his own defense.” (Doc. 12-2,

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p. 19) He framed the issue, however, exclusively in terms of state law arguing the trial court’s

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harsh sanction of preclusion was error pursuant to Ariz.R.Crim.P. 15.7. Id. He cited two cases

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that construed the state rule – State v. Fisher, 141 Ariz. 227, 247 (1984) and State v. Smith, 140

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Ariz. 355, 359 (1984). Id.

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Pauley’s single reference to his “constitutional right to present evidence in his own

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defense” without presenting any federal legal theory or federal case law failed to put the state

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on notice that he was raising a federal claim. Accordingly, he did not properly exhaust this

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claim. See, e.g., Castillo v. McFadden, 399 F.3d 993, 1000-01 (9th Cir. 2005) (The petitioner

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did not make the federal nature of his claim explicit where he referred to a “fair trial” and the

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“United States Constitution” but focused his argument on state evidentiary rules.); Johnson v.
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Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996) (The petitioner did not make the federal nature of

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his claim explicit where he stated the trial court’s error “infringed on his right to present a

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defense and receive a fair trial” but limited his arguments to state evidentiary law.). Moreover,

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Pauley cannot return to state court and litigate the issue now because he is precluded from

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raising it in a new Rule 32 petition. Ariz.R.Crim.P. 32.2. His claim is procedurally defaulted.

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See Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002). Pauley does not argue cause and

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prejudice in his reply brief. (Doc. 13) Accordingly, this claim should be denied. In the

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alternative, the court finds the claim should be denied on the merits.

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“The Sixth Amendment to the Constitution guarantees the right of a criminal defendant

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to have a public trial, to confront the witnesses against him and to obtain witnesses in his favor.”

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Lunbery v. Hornbeak, 605 F.3d 754, 760 (9th Cir. 2010), cert. denied, 131 S.Ct. 798 (2010).

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“These guarantees are incorporated by the due process clause of the Fourteenth Amendment,

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binding the states.” Id. “Due process [also] includes a right to a meaningful opportunity to

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present a complete defense.” Id. (punctuation modified). On habeas review, however, relief

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is available only if “the error had substantial and injurious effect or influence in determining the

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jury’s verdict.” Cudjo v. Ayers, 698 F.3d 752, 768 (9th Cir. 2012), cert. denied, 133 S.Ct. 2735

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(2013).

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Pauley argues the trial court erred by precluding him from introducing testimony that he

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did not sign a lease on his apartment until March 10, 1990, which was approximately two

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months after the offense allegedly occurred there. Id.

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concluded that even if there had been error, it did not affect the outcome of the case. (Doc. 12-

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The court of appeals, however,

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The precluded witness would have testified that Pauley did not sign a lease until March,

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but he could not testify whether or not Pauley had been living there earlier. Id. “The witness

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had no knowledge of who was, in fact, living in the apartment at that time.” (Doc. 12-1, p. 6)

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Pauley has never produced evidence that he was living somewhere else during that time. Id.

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Accordingly, it is possible that he was living in the apartment earlier, but sharing it with

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someone else whose name was on the lease. Finally, the victim’s mother testified that Pauley
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was indeed living in that apartment in January when the crimes took place. Id. The decision

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of the court of appeals, that the alleged error did not affect the outcome of the trial, was not

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unreasonable. (Doc. 12-1, p. 6) Habeas relief therefore is not available for this claim.

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Discussion: Trial Counsel’s Failure to Discover the Apartment Lease Issue

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In Count 3, Pauley argues trial counsel was ineffective because he did not try to obtain

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a legible copy of the victim’s statement. (Doc. 6, p. 8) If he had, Pauley argues, he would

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have discovered the lease issue in time to properly disclose his witness. Id. The respondents

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concede this claim was properly presented to the court of appeals, but they argue it may be

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denied on the merits. (Doc. 12, p. 13) The court agrees.

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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. If the petitioner 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). On habeas review, this court’s analysis of the state court’s decision

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denying the claim is “doubly deferential.” Cullen v. Pinholster, __ U.S. __, __, 131 S.Ct.

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1388, 1403 (2011).

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Pauley argues counsel was ineffective for failing to discover the apartment issue in a

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timely manner. Assuming counsel’s performance was deficient, Pauley cannot establish

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prejudice. He therefore cannot prove counsel was ineffective.

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If counsel had discovered the issue earlier, Pauley would have offered at trial the

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testimony of the apartment custodian of records, who could have testified that Pauley did not

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sign a lease on the apartment until March, two months after the alleged offense. (Doc. 12-1, pp.

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5-6) He could not testify, however, whether or not Pauley had been living there earlier. Id.

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“The witness had no knowledge of who was, in fact, living in the apartment at that time.” (Doc.

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12-1, p. 6); see also (Doc. 12-9, p. 12) (“I don’t know if he might have been residing with a

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friend or something prior to that.”). Pauley has never produced evidence that he was living

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somewhere else during that time. (Doc. 12-1, p. 6) Accordingly, it is possible that he was

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living in the apartment earlier, but sharing it with someone else whose name was on the lease.

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Finally, the victim’s mother testified that Pauley was indeed living in that apartment in January

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when the crimes took place. Id. The court of appeals concluded that even if counsel’s

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performance was deficient, Pauley could not show that absent the deficient performance, “there

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was a reasonable probability that the outcome of the case would have been different.” Id., p.

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5. The decision of the court of appeals denying the claim was not unreasonable.

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Discussion: Admission of Petitioner’s Taped Statement

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In Claim 4, Pauley argues the trial court erred by allowing his statement to police to be

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admitted into evidence. (Doc. 6, p. 9) He argues this statement was inadmissible hearsay. Id.

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He does not argue that admission of the statement violated federal law. Id. The respondents

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concede this issue was raised on direct appeal, but they argue it is not cognizable in federal

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habeas corpus. (Doc. 12, pp. 6-7) They are correct.

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A petition for writ of habeas corpus is available only to correct errors of federal

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constitutional law. The erroneous admission of hearsay evidence is an issue of state law that

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is not cognizable in federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475,

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480 (1991) (“[F]ederal habeas corpus relief does not lie for errors of state law.”); see also

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(Doc. 12-2, pp. 15-16) (arguing on direct appeal that admission of the statement violates

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Arizona Rule of Evidence 801); Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009)

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(The Supreme Court has not clearly established that the admission of irrelevant or overtly

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prejudicial evidence results in a trial that is fundamentally unfair and therefore habeas corpus

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relief cannot be granted on this theory.).

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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. 6)

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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. The Local Rules allow for a response to an objection.

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They do not allow for a reply to a response.

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DATED this 16th day of December, 2013.

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