Halstead v. Ryan

Filing 27

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 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 4/14/2014. (BAR) Modified on 4/14/2014 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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James Randall Halstead,
Petitioner,

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vs.

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Charles L. Ryan,

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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 numerous instances of trial error and ineffective
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assistance of counsel.
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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 denying the petition. Four of Halstead’s claims are procedurally
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defaulted. His claim of ineffective assistance should be denied on the merits.
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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, Halstead argued (1) the testimony of the counselors, Kazinski and

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Banks, was improper vouching 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) In

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his petition, he argued (A) trial counsel was ineffective for (1) failing to object to certain

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testimony given by the state’s expert, Wendy Dutton, (2) failing to object to testimony about

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uncharged acts from the counselor, Beth Banks, (3) failing to object to Banks’s improper

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vouching, (4) failing to object to testimony given by Rojene Drake, and (5) failing to object to

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testimony by Dr. Debra Reisen and (B) the prosecutor committed misconduct by eliciting

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

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The trial court denied the petition on August 6, 2010. (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 his confrontation rights; (2) the testimony of the counselors, Diane

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Kazinski and Elizabeth Banks, improperly “buttressed” the victim’s testimony violating his due

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process rights; (3) trial counsel was ineffective because he (a) failed to properly object to

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Reisen’s testimony that the victim exhibited certain behavior typical of one who had suffered

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sexual abuse, (b) failed to object to the prosecutor’s use of hypothetical questions designed to

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elicit similar testimony from the expert, Wendy Dutton, (c) failed to object to the use of

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uncharged acts of sexual misconduct, and (d) failed to object to questions that exceeded the

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court’s order limiting testimony corroborating the victim’s testimony; (4) the prosecutor

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committed misconduct during the questioning of the state’s expert, Wendy Dutton; and (5) trial

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counsel was ineffective by failing to call certain witnesses. (Doc. 1, pp. 6, 10, 13, 16, 19)

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On August 27, 2012, the respondent filed a limited answer arguing among other things
that the petition is time-barred. (Doc. 13) Halstead did not file a reply.
The Magistrate Judge issued a report recommending that the petition be dismissed as

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time-barred on July 29, 2013.

(Doc. 17)

The District Court declined to adopt the

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recommendation in an order filed on January 8, 2014.

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On February 28, 2014, the respondent filed an amended answer arguing four of

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Halstead’s claims are procedurally defaulted and, in the alternative, all claims should be denied

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on the merits. (Doc. 26) Halstead did not file a reply.

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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
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 [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 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).
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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Discussion

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In Claim (1), Halstead argues the testimony of the state’s medical expert, Dr. Debra

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Reisen, violated the Confrontation Clause. (Doc. 1, p. 6) At trial, Reisen testified about a

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forensic medical exam of the minor victim conducted by Dr. Anna Binkiewicz. (Doc. 26, p. 6)

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Reisen testified in place of Binkiewicz because the latter retired and moved away prior to trial.

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Id. The respondent argues this claim is procedurally defaulted. The court agrees.

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Halstead argued on direct appeal that Reisen’s testimony violated his rights under the

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Confrontation Clause. The Arizona Court of Appeals, however, declined to address this issue

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on the merits. The court explained that Halstead withdrew his earlier objection to Reisen’s

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testimony at trial, and on appeal, he failed to argue the alleged error was fundamental. (Doc.

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13-1, pp. 9-10)
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The Arizona Court of Appeals declined to address the merits of this claim for procedural

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reasons. This claim is therefore procedurally defaulted. Halstead did not file a reply alleging

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“cause for the default and actual prejudice as a result of the alleged violation of federal law, or

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demonstrat[ing] that failure to consider the claim[] will result in a fundamental miscarriage of

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justice.” See Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998).

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In Claim (2) Halstead argues the testimony of the counselors, Diane Kazinski and

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Elizabeth Banks, violated his due process rights because it improperly “buttressed” the victim’s

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testimony. (Doc. pp. 10-11) His argument is not entirely clear, but he apparently believes that

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the counselors’ testimony was tantamount to saying that they believed the victim was telling the

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truth, and the admission of this evidence invaded the province of the jury. The respondent

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argues this claim is procedurally defaulted. The court agrees.

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The Arizona Court of Appeals acknowledged Halstead’s argument “that Banks’s and

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Kazinski’s testimony violated his right to due process.” (Doc. 13-1, p. 10) The court held,

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however, that “Halstead [did] not offer sufficient argument or cite sufficient authority for

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appellate review on [this] issue and [it is] therefore waived.” (Doc. 13-1, p. 10) (citing

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Ariz.R.Crim.P. 31.13(c)(1)(iv)).

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The Arizona Court of Appeals declined to address the merits of this claim1 for procedural

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reasons. This claim is therefore procedurally defaulted. Halstead did not file a reply alleging

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“cause for the default and actual prejudice as a result of the alleged violation of federal law, or

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demonstrat[ing] that failure to consider the claim[] will result in a fundamental miscarriage of

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justice.” See Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998).

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In Claim (3) Halstead argues trial counsel was ineffective because he (a) failed to

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properly object to Reisen’s testimony at trial that the victim exhibited certain behavior typical

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of one who had suffered sexual abuse, (b) failed to object to the prosecutor’s use of hypothetical

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The Arizona Court of Appeals did consider on the merits Halstead’s state law claim that the
counselors’ testimony improperly commented on the credibility of the victim. (Doc. 13-1, pp. 4-7) The
pending claim, however, is based on federal law, not state law.

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questions designed to elicit similar testimony from expert Wendy Dutton, (c) failed to object

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to the use of uncharged acts of sexual misconduct, and (d) failed to object to questions that

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exceeded the court’s order limiting testimony corroborating the victim. (Doc. 1, pp. 13-14) The

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respondent argues this claim should be denied on the merits. The court agrees.

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“Clearly established Supreme Court precedent provides a framework for examining Sixth

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Amendment ineffective assistance of counsel claims.” Miles v. Ryan, 713 F.3d 477, 486 - 487

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(9th Cir. 2013) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2054 (1984)), cert.

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denied, 135 S.Ct. 519 (2013). “To establish ineffective assistance of counsel under Strickland

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a prisoner must demonstrate both: (1) that counsel’s performance was deficient, and (2) that the

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deficient performance prejudiced his defense.” Id.

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“The first prong of the Strickland test—deficient performance—requires a showing that

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counsel’s performance fell below an objective standard of reasonableness or was outside the

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wide range of professionally competent assistance.” Id. (punctuation modified) “The test is

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highly deferential, evaluating the challenged conduct from counsel’s perspective at the time in

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issue.” Id. “This inquiry should begin with the premise that under the circumstances, the

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challenged actions might be considered sound trial strategy.” Id.

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“The second prong of the Strickland test—prejudice—requires the petitioner to

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

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the trial would have been different.” Id. “A reasonable probability is a probability sufficient to

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undermine confidence in the outcome.” Id.

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This court’s review of the state court’s denial of the petitioner’s claim is “doubly

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deferential.” Miles, 713 F.3d at 487. “The issue is not whether we believe the state court’s

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determination under the Strickland standard was incorrect but whether that determination was

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unreasonable—a substantially higher threshold.” Id. (punctuation modified).

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In Claims 3(a) and 3(b) Halstead argues trial counsel failed to properly object to

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testimony that the victim exhibited certain behavior typical of one who had suffered sexual

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abuse. This type of expert testimony, however, is generally admissible under the Arizona Rules

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of Evidence. See State v. Moran, 151 Ariz. 378, 383, 728 P.2d 248, 253 (1986); (Doc. 13-1,
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pp. 4-7) (concluding that Kazinski’s testimony was properly admitted). Accordingly, if counsel

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had objected, the objection would have been overruled. Counsel’s failure to object could not

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have caused Halstead prejudice. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005)

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(“[T]rial counsel cannot have been ineffective for failing to raise a meritless objection.”);

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amended at 2005 WL 1653617(2005); cert. denied, 546 U.S. 1137 (2006).

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Moreover, counsel’s failure to object could have been tactical and therefore was not

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deficient performance. Counsel may have believed that the effective use of cross-examination

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was the best way to deal with this type of testimony. In his closing argument, for example,

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counsel pointed out that the expert’s list of typical traits was “so abstract, so general that no

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matter what anybody does in their life, it can fit into that.” (Doc. 13-1, p. 16)

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Counsel’s failure to object to this testimony was neither deficient performance nor

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prejudice. The decision of the Arizona Court of Appeals denying this claim was not an

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unreasonable application of clearly established Federal law. (Doc. 13-1, pp 13-18)

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In Claim 3(c), Halstead argues counsel was ineffective for failing to object to evidence

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of other uncharged acts of sexual misconduct. (Doc. 1, pp. 13-14) The Arizona Court of

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Appeals, however, ruled that this testimony was properly received. (Doc. 13-1, p. 18)

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Accordingly, counsel’s failure to object did not cause Halstead prejudice. See Juan H. v. Allen,

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408 F.3d 1262, 1273 (9th Cir. 2005).

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Finally, in Claim 3(d), Halstead argues counsel was ineffective for failing to object to

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questions that exceeded the court’s order limiting the testimony of the victim’s counselor. The

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Arizona Court of Appeals, however, concluded that counsel’s handling of this witness could be

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considered sound trial strategy. Accordingly, Halstead cannot show counsel’s performance was

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deficient.

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In response to the testimony, counsel used cross-examination to introduce evidence

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helpful to the defense. For example, the victim’s counselor testified that the victim had

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developed intricate fantasies, but counsel established that the counselor had no information

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about the victim’s used of fantasy prior to the alleged abuse. The counselor’s observation,

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therefore, did nothing to bolster the prosecution’s case. Moreover, counsel elicited testimony
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from the witness concerning the victim’s problematic relationship with her mother. He later

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used this testimony in his closing argument suggesting that the victim could have fabricated the

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accusations because she felt “chronically unloved by the mother.” (Doc. 13-1, p. 17)

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Counsel’s demonstrated ability to neutralize adverse statements and extract information

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useful to the defense supports the state court’s finding that counsel’s failure to object to the

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counselor’s testimony could have been a tactical decision. Counsel’s performance therefore was

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not deficient.

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The decision of the Arizona Court of Appeals finding counsel’s performance at trial was

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not ineffective was not an unreasonable application of clearly established Federal law. (Doc.

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13-1, pp 13-18)

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In Claim (4), Halstead argues the prosecutor committed misconduct during the

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questioning of the state’s expert witness, Wendy Dutton. (Doc. 1, p. 16) This claim was raised

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for the first time in Halstead’s post-conviction relief petition and denied summarily by the trial

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court. (Doc. 13-5, pp. 25, 30-31) On appeal, the claim was denied as precluded because it

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should have been raised on direct appeal. (Doc. 13-1, p. 15) (citing Ariz.R.Crim.P. 32.2(a)(1)).

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The Arizona Court of Appeals declined to address the merits of this claim for procedural

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reasons. This claim is procedurally defaulted. Halstead did not file a reply alleging “cause for

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

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demonstrat[ing] that failure to consider the claim[] will result in a fundamental miscarriage of

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justice.” See Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998).

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In Claim (5), Halstead argues trial counsel was ineffective by failing to call certain

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witnesses. (Doc. 1, pp. 19-20) This claim was never presented to the state court. (Doc. 1, p.

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22) And, if he tried to raise it in a new post-conviction relief petition, it would be dismissed

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because he failed to raise it “in [a] previous collateral proceeding.” Ariz.R.Crim.P. 32.2(a)(3).

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It is procedurally defaulted.

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Halstead explains that he asked his counsel to include this claim in his post-conviction

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relief petition, but counsel did not do so stating it was “excessive” and “would not help much.”

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(Doc. 1, p. 19)
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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). A tactical decision to forgo a claim, however,

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cannot constitute cause to excuse a procedural default. Amadeo v. Zant, 486 U.S. 214,

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221-222, 108 S.Ct. 1771, 1776 (1988).

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Here, it appears that counsel failed to raise this claim for tactical reasons. This is not

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sufficient cause to excuse Halstead’s procedural default of his claim. See, e.g., Reed v. Ross,

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468 U.S. 1, 14, 104 S.Ct. 2901, 2909 (1984) (“[D]efense counsel may not make a tactical

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decision to forgo a procedural opportunity—for instance, an opportunity to object at trial or to

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raise an issue on appeal—and then, when he discovers that the tactic has been unsuccessful,

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pursue an alternative strategy in federal court.”).

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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. 1)

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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 permit a response to an objection.

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They do not permit a reply to a response.

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DATED this 14th day of April, 2014.

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