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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James Randall Halstead,
Petitioner,

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vs.

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Charles L. Ryan,
Respondent.

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No. CIV 12-291-TUC-DCB (LAB)
REPORT AND
RECOMMENDATION

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Pending before the court is a petition for writ of habeas corpus filed on April 19, 2012,
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by James Randall Halstead, an inmate confined in the Arizona State Prison Complex in
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Florence, Arizona. (Doc. 1) Halstead claims (1) the testimony of the state’s medical expert, Dr.
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Debra Reisen, violated the Confrontation Clause, (2) the testimony of the counselors, Diane
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Kazinski and Elizabeth Banks, was hearsay and violated the Due Process Clause, (3) trial
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counsel was ineffective for failing to properly object to Reisen’s testimony at trial, (4) the
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prosecutor committed misconduct during the questioning of the state’s expert, Wendy Dutton,
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and (5) trial counsel was ineffective by failing to call certain witnesses. (Doc. 1, pp. 6, 10, 13,
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16, 19)
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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. LRCiv 72.2(a)(2).
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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 dismissing the petition. It is time-barred.
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Summary of the Case

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Halstead was convicted after a jury trial of “three counts of sexual conduct with a minor

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under the age of twelve and one count of furnishing obscene or harmful items to a minor.”

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(Doc. 13-1, p. 3) On June 2, 2008, the trial court gave Halstead a sentence of imprisonment

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totaling three consecutive life terms. (Doc. 13-1, pp. 20-24)

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On direct appeal, Rossum argued (1) the testimony of counselors, Kazinski and Banks,

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was improper vouching and hearsay and (2) the testimony of Dr. Debra Reisen violated the

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Confrontation Clause. (Doc. 13-1, pp. 2-11) Nevertheless, the Arizona Court of Appeals

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affirmed Halstead’s convictions and sentences on June 1, 2009. (Doc. 13-1, p. 2) The Arizona

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Supreme Court denied Halstead’s petition for review on December 1, 2009. (Doc. 13, p. 29)

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On January 28, 2010, Halstead filed notice of post-conviction relief. (Doc. 13, p. 3) He

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argued (A) trial counsel was ineffective for (1) failing to object to certain testimony given by

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the state’s expert, Wendy Dutton, (2) failing to object to testimony about uncharged acts from

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counselor Beth Banks, (3) failing to object to Banks’ improper vouching, (4) failing to object

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to testimony given by Rojene Drake, and (4) failing to object to testimony by Dr. Debra Reisen

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and (B) the prosecutor committed misconduct by eliciting improper testimony from Dutton,

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Banks, and Drake. (Doc. 13-5, pp. 12, 17, 18, 23, 25)

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The trial court denied the petition on August 10, 2006. (Doc. 13-5, pp. 29-31) The

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Arizona Court of Appeals denied relief on March 8, 2011. (Doc. 13-6, p. 27) Halstead did not

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seek further review. (Doc. 13, p. 3)

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On April 19, 2012, Halstead filed the pending petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. (Doc. 1) He argues (1) the testimony of the state’s medical expert, Dr.

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Debra Reisen, violated the Confrontation Clause, (2) the testimony of the counselors, Diane

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Kazinski and Elizabeth Banks, was hearsay and violated the Due Process Clause, (3) trial

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counsel was ineffective for failing to properly object to Reisen’s testimony at trial, (4) the

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prosecutor committed misconduct during the questioning of the state’s expert, Wendy Dutton,

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and (5) trial counsel was ineffective by failing to call certain witnesses. (Doc. 1, pp. 6, 10, 13,

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On August 27, 2012, the respondent filed an answer arguing among other things that the

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petition is time-barred. (Doc. 13) Halstead did not file a reply.
The respondents are correct. The petition is time-barred.

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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). A one-year limitation

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period applies to persons in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d).

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The statute reads in pertinent part as follows:
(1)

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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--

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(A)

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the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;

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(2)

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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.

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28 U.S.C. § 2244(d).
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The limitation period for Halstead’s claims was triggered on “the date on which the
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judgment became final by the conclusion of direct review or the expiration of the time for
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seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The Arizona Court of Appeals affirmed his
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convictions and sentences on June 1, 2009. (Doc. 13-1, p. 2) The Arizona Supreme Court
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denied Halstead’s petition for review on December 1, 2009. (Doc. 13, p. 29) Halstead then had
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90 days to petition the U.S. Supreme Court for review. Sup. Ct. R. 13. When he did not do so,
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his judgment became final on March 1, 2010. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.

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1999).
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The one-year limitation period did not begin to run immediately because Halstead’s

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post-conviction relief petition was pending at this time. See 28 U.S.C. § 2244(d)(2). Tolling

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pursuant to § 2244(d)(2) continued until the Arizona Court of Appeals denied relief on March

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8, 2011. (Doc. 13-6, p. 27) The limitation period began running the next day and expired on

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March 8, 2012. See Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir. 2007); cert. denied, 555

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U.S. 829 (2008). Halstead filed his petition in this court on April 19, 2012. (Doc. 1) It is time-

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barred.

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Halstead did not file a reply explaining why his petition was filed after the expiration of
the limitation period or arguing for equitable tolling.

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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 DISMISSING the petition for writ of habeas corpus. (Doc. 1) It

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is time-barred.

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

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

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timely filed, they may be deemed waived.

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The Clerk is directed to send a copy of this report and recommendation to the petitioner
and the respondents.
DATED this 26th day of July, 2013.

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