Santos-Silvas v. Ryan et al

Filing 22

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the District Court enter an order denying the 1 Petition for Writ of Habeas Corpus (State/2254) filed by Raul Santos-Silvas. Any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. Signed by Magistrate Judge Leslie A Bowman on 8/6/2013. (BAR) Modified on 8/6/2013, to designate as WO (BAR).

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Raul Santos Silvas,
Petitioner,

10
11

vs.

12

Charles L. Ryan; et al.,

13

Respondents.

14

)
)
)
)
)
)
)
)
)
)
)

No. CIV 12-171-TUC-JGZ (LAB)
REPORT AND
RECOMMENDATION

15
16

Pending before the court is a petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

17

§ 2254, filed on March 8, 2012, by Raul Santos Silvas, an inmate confined in the Arizona State

18

Prison Complex in Kingman, Arizona. (Doc. 1)

19
20
21
22

Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate
Judge Bowman for report and recommendation.
The Magistrate Judge recommends the District Court, after its independent review of the
record, enter an order denying the petition on the merits.

23
24

Summary of the Case

25

Santos Silvas was found guilty after a jury trial of aggravated robbery, armed robbery,

26

theft of a means of transportation, and two counts of aggravated assault. (Doc. 11, p. 3) At the

27

trial, the state introduced evidence that Santos Silvas and three others approached Coleman

28

Fonville as he was sitting in his vehicle, assaulted him, and then stole the vehicle. (Doc. 11-2,

1

p. 23) Later the same morning, Santos Silvas and at least eight others were causing a

2

disturbance in the street when Virginia Bickett approached the group and asked them to “please

3

hold it down.” Id. Santos Silvas and another member of the group hit and kicked Bickett until

4

a bystander intervened. Id. Bickett and her daughter contacted police providing them with a

5

partial license plate of the vehicle Santos Silvas had been driving. Id. The police located the

6

vehicle and arrested the driver, Santos Silvas. Id. The vehicle turned out to be the one stolen

7

earlier from Fonville. Id.
The trial court sentenced Santos Silvas to terms of imprisonment totaling 23.75 years.

8
9

(Doc. 11, p. 3)

10

On direct appeal, Santos Silvas argued the evidence was insufficient to support three of

11

his convictions. (Doc. 11, p. 3) The Arizona Court of Appeals affirmed his convictions and

12

sentences on March 19, 2009. (Doc. 11-2, pp. 22-27) The Arizona Supreme Court denied

13

review on July 30, 2009. (Doc. 11-2, p. 40)

14

On August 31, 2009, Santos Silvas filed notice of post-conviction relief, but counsel was

15

unable to find any meritorious issues to raise. (Doc. 11, p. 3) Santos Silvas subsequently filed

16

his own petition pro se in which he argued, among other things, that (1) pretrial counsel was

17

ineffective for failing to challenge the indictment, (2) trial counsel was ineffective for (a) failing

18

to object to the prosecution’s use of a photograph of Santos Silvas in handcuffs for

19

identification purposes, (b) failing to aggressively cross-examine witnesses, and (c) failing to

20

challenge the trial court’s exclusion of a witness who would have testified that the victim

21

witness, Bickett, was seeking a bribe in exchange for her silence, and (3) appellate counsel was

22

ineffective for failing to challenge the trial court’s use of a single sign language interpreter.

23

(Doc. 11-3, pp 21, 24, 28) The trial court denied the petition on October 12, 2010. (Doc. 11-5,

24

p. 2)

25

Santos Silvas filed a petition for review with the Arizona Court of Appeals arguing (1)

26

pretrial counsel was ineffective for failing to challenge the sufficiency of the identification

27

evidence and (2) trial counsel was ineffective for (a) failing to object to the use of a photograph

28

of him in handcuffs, (b) failing to aggressively conduct cross-examination, (c) and failing to
-2-

1

challenge the lack of identification evidence. (Doc. 11-5, pp. 24-2) The Arizona Court of

2

Appeals granted review but denied relief on April 26, 2011. (Doc. 11-6, p. 2) His petition for

3

reconsideration was denied on July 21, 2011. (Doc. 11, p. 4)

4

On October 13, 2001, Santos Silvas filed a second notice of post-conviction relief, but

5

counsel was unable to find any meritorious issues to raise. (Doc. 11, p. 4) The court permitted

6

time for Santos Silvas to file his own petition pro se. (Doc. 11, p. 4) The record does not

7

contain any further information concerning this proceeding.

8

On March 8, 2012, Santos Silvas filed the pending petition for Writ of Habeas Corpus

9

pursuant to 28 U.S.C. § 2254. (Doc. 1) He claims (1) the trial court erred by proceeding with

10

a single American Sign Language interpreter; (2) the trial court erred when it allowed Fonville

11

to identify Santos Silvas from a photograph taken just after his arrest; (3) trial counsel was

12

ineffective for (a) failing to object to the use of the arrest photograph and (b) failing to raise

13

inconsistencies in the testimony of the arresting officers; (4) the trial court erred when it

14

precluded the defense from offering the testimony of a Byron Broger to impeach the second

15

victim, Virginia Bickett; (5)(a) his indictment was “based partially on perjured testimony”; and

16

(5)(b) his pre-trial attorney was ineffective for failing to challenge the indictment.

17

In their answer, the respondents argue Santos Silvas’ claims should be denied as

18

procedurally defaulted or on the merits. (Doc. 11) In his reply, Santos Silvas argues his

19

procedural default should be excused because appellate counsel and Rule 32 counsel “obviously

20

overlooked these unconstitutional violations.” (Doc. 17, p. 9)

21
22

Discussion

23

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

24

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

25

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

26

adjudication of the claim –

27
28

(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
-3-

1

(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.

2

28 U.S.C. § 2254(d). The petitioner must shoulder an additional burden if the state court
3

considered the issues and made findings of fact.
4
5
6

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.

7

28 U.S.C.A. § 2254 (e)(1).
8

A decision is “contrary to” Supreme Court precedent if the “state court confronted a set
9

of facts that are materially indistinguishable from a decision of the Supreme Court and
10

nevertheless arrived at a result different from Supreme Court precedent.” Vlasak v. Superior
11

Court of California ex rel. County of Los Angeles, 329 F.3d 683, 687 (9th Cir. 2003).

A

12

decision is an “unreasonable application” if “the state court identified the correct legal
13

principles, but applied those principles to the facts of [the] case in a way that was not only
14

incorrect or clearly erroneous, but objectively unreasonable.” Id. If the state court denied on
15

the merits but did not explain its reasoning, this court must independently review the record to
16

determine whether the state court clearly erred in its application of Supreme Court law. Pirtle
17

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

18

highest state court fails to explain its decision, this court looks to the last reasoned state court
19

decision. See Brown v. Palmateer, 379 F.3d 1089, 1092 (9th Cir. 2004).

20

Federal habeas review is limited to those issues that have been fully presented to the state
21

court. This so-called “exhaustion rule” reads in pertinent part as follows:
22

24

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. . . .

25

28 U.S.C. § 2254(b)(1)(A). This rule permits the states “the opportunity to pass upon and

26

correct alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365

27

(1995) (internal punctuation removed).

23

28
-4-

1

To be properly exhausted, the federal claim must be “fairly presented” to the state courts.

2

Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971). In other words, the state courts

3

must be apprised of the issue and given the first opportunity to rule on the merits. Id. at 275-76.

4

Accordingly, the petitioner must “present the state courts with the same claim he urges upon the

5

federal courts.” Id. “The state courts have been given a sufficient opportunity to hear an issue

6

when the petitioner has presented the state court with the issue’s factual and legal basis.”

7

Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999).

8

In addition, the petitioner must explicitly alert the state court that he is raising a federal

9

constitutional claim. Duncan v. Henry, 513 U.S. 364, 366 (1995); Casey v. Moore, 386 F.3d

10

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

11

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

12

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

13

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

14

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

15

Cir. 2003) (en banc).

16

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

17

he must present his claims to the state appellate court for review. Castillo v. McFadden, 399

18

F.3d 993, 998 (9th Cir. 2005), cert. denied, 126 S.Ct. 348 (2005); Swoopes v. Sublett, 196 F.3d

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

default and actual prejudice as a result of the alleged violation of federal law, or demonstrate
-5-

1

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

2

Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998). A fundamental miscarriage of justice results

3

“where a constitutional violation has probably resulted in the conviction of one who is actually

4

innocent.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649 (1986).

5
6

Discussion: Interpreter

7

In claim (1) Santos Silvas argues his constitutional rights were violated when the court

8

allowed the trial to proceed with only one American Sign Language interpreter even though that

9

interpreter objected because protocol called for two interpreters to be present.

10

The respondents argue that Santos Silvas failed to raise this issue before the Arizona

11

Court of Appeals and therefore failed to properly exhaust this issue below. The court agrees,

12

but finds that the issue may be denied on the merits. See 28 U.S.C. § 2254(b)(2).

13

Santos Silvas argues generally that the trial court’s procedure violated his rights under

14

the “4th, 5th, 6th, and 14th Amendments.” (Doc. 1, p. 6) He does not specify whether the

15

procedure violated his rights under the Confrontation Clause, the Due Process Clause, or some

16

other provision. Nevertheless, further clarification is unnecessary, because in order to qualify

17

for habeas relief Santos Silvas must show that the trial court’s procedure had a “substantial and

18

injurious effect” upon the verdict. See Fry v. Pliler, 551 U.S. 112, 121, 127 S.Ct. 2321, 2328

19

(2007). And Santos Silvas cannot do that.

20

At trial, one of the victim witnesses, Fonville, testified through an American Sign

21

Language interpreter. (Doc. 12-2, pp 11-12) Before the testimony began, the interpreter asked

22

that the proceedings be delayed until a second interpreter could be present. Id. She explained

23

that protocol called for two interpreters to be present, and she was unfamiliar with the case. Id.

24

She expressed concern that the translation might not be accurate, but she agreed that if the court

25

instructed everyone to be “very slow and methodical” and she had extra time to ask for

26

clarifications, she would be more confident. Id. The trial court acknowledged the interpreter’s

27

reluctance and made the requested accommodations by “instructing everyone to be slow and

28

methodical in their interactions, and by permitting the interpreter more opportunity to ask for
-6-

1

clarifications with the witness.” (Doc. 11-5, p. 8) Santos Silvas presents no evidence that the

2

interpreter made any mistakes or that he was prevented from conducting an adequate cross-

3

examination of the witness. The trial court’s procedure did not have a substantial and injurious

4

effect upon the verdict. This claim should be denied.

5

In his claim (2), Santos Silvas argues his rights under the 5th and 6th Amendment were

6

violated when the trial court permitted the victim witness to identify him from a photograph

7

taken after his arrest showing him in handcuffs with tattoos on his arm and chest.

8

The respondents argue this claim was not properly presented to the Arizona Court of

9

Appeals. The court agrees, but finds that the issue may be denied on the merits. See 28

10

U.S.C. § 2254(b)(2).

11

At trial, the victim witness, Fonville, was unable to identify Santos Silvas as one of his

12

attackers. This was possibly due to the fact that Santos Silvas gained some weight prior to the

13

trial – “enough as to alter his appearance.” (Doc. 11-5, p. 7) Also, Fonville observed that his

14

attacker had numerous tattoos on his upper body, but Santos Silvas wore a long sleeve shirt on

15

the day of trial. Id. The prosecution asked that Santos Silvas be instructed to remove his shirt

16

for identification purposes. Id. Instead, the trial court permitted the prosecution to show

17

Fonville a photograph of Santos Silvas taken shortly after he was arrested and showing tattoos

18

on his upper body. Id. Fonville identified the person in the photograph as one of his attackers.

19

Id.

20

Santos Silvas argues that the trial court erred by failing to “hold a hearing in the jury’s

21

absence to determine from clear and convincing evidence whether it contained unduly

22

suggestive circumstances, and the duty is on the prosecution in such circumstances to establish

23

from all circumstances . . . surrounding pretrial identifications that it was not such as to be

24

unduly suggestive.” (Doc. 1, p. 7)

25

It appears that Santos Silvas bases this claim on the state court case Arizona v.

26

Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25

27

L.Ed.2d 257 (1970). In Dessureault, the Arizona Supreme Court held that where an in-court

28

identification might have been influenced by a previous out-of-court identification procedure
-7-

1

such as a line-up, the court “must hold a hearing in the absence of the jury to determine from

2

clear and convincing evidence” whether or not that pre-trial procedure was so unduly suggestive

3

as to affect the reliability of the later in-court identification. Id., pp. 384, 955.

4

In this case, the victim witness did not engage in any out-of-court identification

5

procedure, suggestive or otherwise. Accordingly, the protections of Dessureault have no

6

application here. Santos Silvas’ second claim should be denied on the merits. See also Neil v.

7

Biggers, 409 U.S. 188, 196, 93 S.Ct. 374, 380 (1972) (Due process could be violated if a prior

8

out-of-court identification procedure was “unnecessarily suggestive and conductive [sic] to

9

irreparable mistaken identification.”); but see Watkins v. Sowders, 449 U.S. 341, 349, 101 S.Ct.

10

654 (1981) (Due process does not always require the trial judge to conduct a hearing outside the

11

presence of the jury when identification evidence is at issue.).

12

In his claim (3), Santos Silvas argues trial counsel was ineffective for (a) failing to object

13

to the use of a photograph of him in handcuffs for identification purposes, (b) failing to request

14

a Dessureault hearing, and (c) failing to raise the inconsistencies in the testimony of the two

15

arresting officers. (Doc. 1, p. 8) The respondents argue claim (3)(b) was not raised below and

16

is now procedurally defaulted. The court agrees, but finds that all of the claims may be denied

17

on the merits. See 28 U.S.C. § 2254(b)(2).

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

to undermine confidence in the outcome.” Id. If the petitioner challenges his conviction, he

26

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

27

had a reasonable doubt respecting guilt.” Id.

28
-8-

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

(internal citation omitted).

10

In claim (3)(a), Santos Silvas argues trial counsel was ineffective for failing to object to

11

the prosecutor’s use of a photograph of him in handcuffs for the purpose of identification. As

12

the court discussed above, the trial court permitted the prosecution to use a photograph of him

13

taken shortly after his arrest for identification purposes because the witness remembered that

14

his assailant had numerous tattoos on his upper body and Santos Silvas was wearing a long-

15

sleeved shirt at trial. See (Doc. 11-5, p. 8) The trial court permitted this procedure because

16

Santos Silvas objected to removing his shirt and arranging for a photograph to be taken of

17

Santos Silvas would have been too time consuming. Id. It seems clear that if trial counsel

18

offered a formal objection, he would have been overruled by the court. Id. Accordingly, Santos

19

Silvas cannot show that trial counsel’s allegedly deficient performance caused him prejudice.

20

In claim (3)(b), Santos Silvas argues trial counsel was ineffective for failing to move for

21

a Dessureault hearing. As the court explained above, Dessureault, only applies where there was

22

a previous out-of-court identification procedure. That did not occur here. Accordingly, if

23

counsel had made such a motion, it would have been denied. Santos Silvas cannot show that

24

trial counsel’s performance was deficient or that he suffered prejudice.

25
26

In claim (3)(c), Santos Silvas argues trial counsel was ineffective for failing to highlight
inconsistencies in the testimony of the arresting officers, Richardson and Scherzinger.

27

At trial, Officer Richardson testified that he participated in the traffic stop of the stolen

28

vehicle. He testified that the driver “had a buzz cut, numerous tattoos, Hispanic male.” (Doc.
-9-

1

12-3, p. 25). He further stated the driver was, “[j]ust kind of short, I think like 5-4 or something

2

like that, 5-6.” Id. He further testified that the driver was Santos Silvas, identifying him from

3

photographs and identifying him in the courtroom. Id.

4

Officer Scherzinger testified that there were five people, four male and one female, riding

5

in the stolen vehicle. (Doc. 12-3, p. 28) He noted that the driver was a Hispanic male with

6

short black hair, black goatee, and arm tattoos. Id. He was unable to identify Santos Silvas as

7

the driver. Id.

8

Santos Silvas argues trial counsel was ineffective for failing to highlight an inconsistency

9

in Richardson’s testimony. Richardson testified that the driver was short, but Santos Silvas

10

asserts that he is six feet tall. Assuming Santos Silvas is correct about his height, counsel’s

11

failure to highlight this inconsistency did not cause him prejudice. Richardson identified the

12

driver of the stolen vehicle as Santos Silvas based on photographs and his appearance in court.

13

Accordingly, even if counsel had highlighted this inconsistency, it is far from certain that the

14

jury would have had doubts about his identification of Santos Silvas as the driver. Moreover,

15

even if the jury had doubts and rejected Richardson’s testimony that Santos Silvas was the

16

driver, he does not challenge the fact that he was in the stolen car when it was stopped. This

17

fact combined with the other testimony offered at trial was more than sufficient to support his

18

convictions.

19

Santos Silvas was identified by Fonville, Bickett, and Bickett’s daughter. (Doc. 11-5,

20

p. 6) He was riding in the stolen vehicle when it was stopped. Even if counsel’s performance

21

was deficient, Santos Silvas cannot show “there is a reasonable probability that, absent the

22

errors, the fact finder would have had a reasonable doubt respecting guilt.” See Luna v.

23

Cambra, 306 F.3d 954, 961(9th Cir. 2002), reissued as amended, 311 F.3d 928 (9th Cir. 2002).

24

It is not clear why Santos Silvas believes counsel was ineffective in his handling of the

25

testimony of Scherzinger. Scherzinger did not identify Santos Silvas as the driver of the

26

vehicle. Perhaps he believes Scherzinger’s failure to identify him was further evidence that he

27

was not the driver. But, as the court explained above, even if Santos Silvas was not the driver,

28

there was sufficient evidence of guilt presented at trial. The state “was pursuing the case on a
- 10 -

1

theory of accomplice liability.” See (Doc. 11-5, p. 8) Accordingly, it does not matter who was

2

driving. Santos Silvas cannot prove prejudice. Counsel was not ineffective.

3

In claim (4), Santos Silvas argues he was denied his right to compulsory process when

4

the trial court preventing him from calling a witness who would testify that Bickett solicited a

5

bribe in exchange for not testifying against the defendant.

6

The respondents argue this issue appears in Santos Silvas’ second rule 32 petition, and

7

because that petition is still pending, this issue is not properly exhausted. The respondent’s

8

argue, however, that the issue may be denied on the merits. The court agrees. See 28 U.S.C. §

9

2254(b)(2).

10

During the trial, Santos Silvas informed his counsel (and counsel informed the court) that

11

a certain Byron Broger, a defendant in a different trial being conducted in the same courthouse,

12

had information bearing on the credibility of the victim witness Bickett. (Doc. 12-2, pp. 25-29)

13

According to Broger, Bickett offered to refrain from testifying against the defendant for $2,000.

14

Id. The trial court questioned Bickett about the allegations outside the presence of the jury. Id.

15

Bickett denied knowing Broger and denied soliciting a bribe in exchange for her silence. Id.

16

In fact, she stated that she had been offered a $10,000 bribe by the defendant’s people to refrain

17

from testifying. (Doc. 12-2, p. 29) She reported the incident to the police and the county

18

attorney. Id. The defendant’s counsel stated that the allegation might support a motion for a

19

new trial. (Doc. 12-4, p. 6) He did not, however, ask to call Broger as a witness. Id.

20

Santos Silvas claims the trial court violated his right to compulsory process by denying

21

him the opportunity to call Broger as a witness. The trial court, however, never made this ruling

22

because counsel never called Broger as a witness. There is no factual basis to support this

23

claim. Accordingly, it should be denied.

24

Finally, in claim (5), Santos Silvas argues the “5th, 6th and 14th Amendments” were

25

violated because (a) “Defendant had to stand trial on an indictment which was based partially

26

on perjured testimony, [and] (b) pre-trial attorney refused to challenge [the] proceedings.”

27

(Doc. 1, p. 9) The respondents argue this claim was not properly exhausted and is now

28
- 11 -

1

procedurally defaulted. The court finds the claim may be denied on the merits regardless. See

2

28 U.S.C. § 2254(b)(2).

3

Santos Silvas first argues his indictment was supported by “perjured testimony.” The

4

court notes as a preliminary matter that Santos Silvas is entitled to habeas relief only if the state

5

court misapplied “clearly established Federal law, as determined by the Supreme Court of the

6

United States.” 28 U.S.C. § 2254(d). And, the court has found “no Supreme Court authority

7

holding that state criminal defendants are entitled to due process in state grand jury

8

proceedings.” Webber v. Lattimore, 2011 WL 2604908, *10 (C.D. Cal. 2011). Assuming,

9

without deciding, that there was constitutional error in the state grand jury proceeding, that error

10

was harmless because Santos Silvas “was ultimately convicted of the offense charged.”

11

Williams v. Stewart, 441 F.3d 1030, 1042 (9th Cir. 2006), cert. denied, 549 U.S. 1002, (2006).

12

Santos Silvas further argues counsel was ineffective for failing to challenge the

13

indictment. (Doc. 1) He argues counsel should have challenged the “perjured testimony,” but

14

he does not provide any facts to support his allegations. According to Santos Silvas, a certain

15

Detective Scholt testified before the grand jury that a Lorean Melendez had been with the

16

victim, Fonville, before and during the assault. Id. He further alleges that Scholt’s statement

17

is not corroborated by other statements attributed to Melendez and Fonville that are contained

18

in the police reports. Id. Santos Silvas concludes from this inconsistency that Scholt committed

19

perjury. He is mistaken.

20

A contradiction in the record is just that – a contradiction. It is not evidence of perjury.

21

See, e.g., U.S. v. Bortnovsky, 879 F.2d 30, 33 (2nd Cir. 1989) (“Presentation of a witness who

22

recants or contradicts his prior testimony is not to be confused with perjury.”); U.S. v. Hemmer,

23

729 F.2d 10, 17 (1st Cir. 1984) (“Simply because there existed inconsistencies between

24

Lovasco’s grand jury and trial testimony does not warrant the inference that the government

25

knowingly introduced perjurious testimony.”), cert. denied, 467 U.S. 1218 (1984). Santos

26

Silvas has not provided any facts supporting his argument that the state presented perjured

27

testimony to the grand jury. He cannot show his counsel’s failure to challenge the indictment

28

on this point was deficient performance. Moreover, he cannot establish prejudice.
- 12 -

1

A challenge to the indictment, assuming counsel had pursued the issue, would have

2

proceeded pursuant to Ariz.R.Crim.P. 12.9(a). This rule provides that, “[t]he grand jury

3

proceedings may be challenged only by motion for a new finding of probable cause alleging that

4

the defendant was denied a substantial procedural right . . . .” Id. Accordingly, if counsel had

5

challenged the indictment, and if he had succeeded, the court would have remanded the case for

6

a “new finding of probable cause.” See Id.; see, e.g., Nelson v. Roylston, 137 Ariz. 272, 277,

7

669 P.2d 1349, 1354 (App. 1983) (Where petitioner was denied substantial due process, case

8

was remanded to the grand jury for redetermination of probable cause.). And, as the trial court

9

found, there was ample evidence to support a finding of probable cause. (Doc. 11-5, pp. 5-7)

10
11
12

The indictment would have issued anyway.
Santos Silvas cannot show counsel’s performance was deficient or that he suffered
prejudice. Counsel was not ineffective.

13
14

RECOMMENDATION

15

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

16

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

17

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

18

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

19

timely filed, they may be deemed waived. Reply briefs are not permitted under the Local Rules.

20

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

21
22

and the respondents.
DATED this 6th day of August, 2013.

23
24
25
26
27
28
- 13 -