Halstead v. Ryan

Filing 17

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the District Court enter an order dismissing the 1 Petition for Writ of Habeas Corpus (State/2254) filed by James Randall Halstead. 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 7/26/2013. (BAR)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 James Randall Halstead, Petitioner, 10 11 vs. 12 Charles L. Ryan, Respondent. 13 14 ) ) ) ) ) ) ) ) ) ) ) No. CIV 12-291-TUC-DCB (LAB) REPORT AND RECOMMENDATION 15 Pending before the court is a petition for writ of habeas corpus filed on April 19, 2012, 16 by James Randall Halstead, an inmate confined in the Arizona State Prison Complex in 17 Florence, Arizona. (Doc. 1) Halstead claims (1) the testimony of the state’s medical expert, Dr. 18 Debra Reisen, violated the Confrontation Clause, (2) the testimony of the counselors, Diane 19 Kazinski and Elizabeth Banks, was hearsay and violated the Due Process Clause, (3) trial 20 counsel was ineffective for failing to properly object to Reisen’s testimony at trial, (4) the 21 prosecutor committed misconduct during the questioning of the state’s expert, Wendy Dutton, 22 and (5) trial counsel was ineffective by failing to call certain witnesses. (Doc. 1, pp. 6, 10, 13, 23 16, 19) 24 Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate 25 Judge Bowman for report and recommendation. LRCiv 72.2(a)(2). 26 The Magistrate Judge recommends the District Court, after its independent review of the 27 record, enter an order dismissing the petition. It is time-barred. 28 1 2 Summary of the Case 3 Halstead was convicted after a jury trial of “three counts of sexual conduct with a minor 4 under the age of twelve and one count of furnishing obscene or harmful items to a minor.” 5 (Doc. 13-1, p. 3) On June 2, 2008, the trial court gave Halstead a sentence of imprisonment 6 totaling three consecutive life terms. (Doc. 13-1, pp. 20-24) 7 On direct appeal, Rossum argued (1) the testimony of counselors, Kazinski and Banks, 8 was improper vouching and hearsay and (2) the testimony of Dr. Debra Reisen violated the 9 Confrontation Clause. (Doc. 13-1, pp. 2-11) Nevertheless, the Arizona Court of Appeals 10 affirmed Halstead’s convictions and sentences on June 1, 2009. (Doc. 13-1, p. 2) The Arizona 11 Supreme Court denied Halstead’s petition for review on December 1, 2009. (Doc. 13, p. 29) 12 On January 28, 2010, Halstead filed notice of post-conviction relief. (Doc. 13, p. 3) He 13 argued (A) trial counsel was ineffective for (1) failing to object to certain testimony given by 14 the state’s expert, Wendy Dutton, (2) failing to object to testimony about uncharged acts from 15 counselor Beth Banks, (3) failing to object to Banks’ improper vouching, (4) failing to object 16 to testimony given by Rojene Drake, and (4) failing to object to testimony by Dr. Debra Reisen 17 and (B) the prosecutor committed misconduct by eliciting improper testimony from Dutton, 18 Banks, and Drake. (Doc. 13-5, pp. 12, 17, 18, 23, 25) 19 The trial court denied the petition on August 10, 2006. (Doc. 13-5, pp. 29-31) The 20 Arizona Court of Appeals denied relief on March 8, 2011. (Doc. 13-6, p. 27) Halstead did not 21 seek further review. (Doc. 13, p. 3) 22 On April 19, 2012, Halstead filed the pending petition for writ of habeas corpus pursuant 23 to 28 U.S.C. § 2254. (Doc. 1) He argues (1) the testimony of the state’s medical expert, Dr. 24 Debra Reisen, violated the Confrontation Clause, (2) the testimony of the counselors, Diane 25 Kazinski and Elizabeth Banks, was hearsay and violated the Due Process Clause, (3) trial 26 counsel was ineffective for failing to properly object to Reisen’s testimony at trial, (4) the 27 prosecutor committed misconduct during the questioning of the state’s expert, Wendy Dutton, 28 -2- 1 and (5) trial counsel was ineffective by failing to call certain witnesses. (Doc. 1, pp. 6, 10, 13, 2 16, 19) On August 27, 2012, the respondent filed an answer arguing among other things that the 3 4 petition is time-barred. (Doc. 13) Halstead did not file a reply. The respondents are correct. The petition is time-barred. 5 6 7 Discussion 8 The writ of habeas corpus affords relief to persons in custody in violation of the 9 Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A one-year limitation 10 period applies to persons in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d). 11 The statute reads in pertinent part as follows: (1) 13 A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-- 14 (A) 12 the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 15 * * * 16 (2) 17 18 The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 19 28 U.S.C. § 2244(d). 20 The limitation period for Halstead’s claims was triggered on “the date on which the 21 judgment became final by the conclusion of direct review or the expiration of the time for 22 seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The Arizona Court of Appeals affirmed his 23 convictions and sentences on June 1, 2009. (Doc. 13-1, p. 2) The Arizona Supreme Court 24 denied Halstead’s petition for review on December 1, 2009. (Doc. 13, p. 29) Halstead then had 25 90 days to petition the U.S. Supreme Court for review. Sup. Ct. R. 13. When he did not do so, 26 his judgment became final on March 1, 2010. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 27 1999). 28 -3- 1 The one-year limitation period did not begin to run immediately because Halstead’s 2 post-conviction relief petition was pending at this time. See 28 U.S.C. § 2244(d)(2). Tolling 3 pursuant to § 2244(d)(2) continued until the Arizona Court of Appeals denied relief on March 4 8, 2011. (Doc. 13-6, p. 27) The limitation period began running the next day and expired on 5 March 8, 2012. See Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir. 2007); cert. denied, 555 6 U.S. 829 (2008). Halstead filed his petition in this court on April 19, 2012. (Doc. 1) It is time- 7 barred. 8 9 Halstead did not file a reply explaining why his petition was filed after the expiration of the limitation period or arguing for equitable tolling. 10 11 RECOMMENDATION 12 The Magistrate Judge recommends that the District Court, after its independent review 13 of the record, enter an order DISMISSING the petition for writ of habeas corpus. (Doc. 1) It 14 is time-barred. 15 Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 16 14 days of being served with a copy of this report and recommendation. If objections are not 17 timely filed, they may be deemed waived. 18 19 20 The Clerk is directed to send a copy of this report and recommendation to the petitioner and the respondents. DATED this 26th day of July, 2013. 21 22 23 24 25 26 27 28 -4-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?