Ferrell v. Ryan et al

Filing 44

ORDER that the Court ADOPTS the Report and Recommendation 29 in its entirety as its findings of fact and conclusions of law. The Objections 34 raised by the Petitioner are OVERRULED. IT IS FURTHER ORDERED that the Motion for Extension of Time to File Reply 39 and Motion for Leave to File Reply 41 are DENIED; the Motion to Strike Reply 43 is GRANTED. 28 U.S.C. §2254. FURTHER ORDERED that the Petition for Writ of Habeas Corpus 1 is DENIED and this action is DISMISSED with prejudice. Final Judgment to enter separately. IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED as to all claims. Signed by Senior Judge David C Bury on 4/15/2015. (ALS)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 7 8 9 10 11 Stanford Lamar Ferrell, ) ) Petitioner, ) v. ) ) ) Charles L. Ryan, et al., ) ) Respondents. ) ______________________________________ ) CV-13-0305-TUC-DCB ORDER 12 13 This matter was referred to the United States Magistrate Judge 14 pursuant to 15 Court for a Report and Recommendation (R&R) on the Petition for Writ of 16 Habeas Corpus pursuant to 28 U.S.C. §2254. Before the Court is the 17 Magistrate Judge’s Report and Recommendation (Doc. 29), which recommends 18 that 19 Objections to the Report and Recommendation (Doc. 34). Respondents filed 20 a Response to Objections. 21 response, over objection, and motion to strike as not procedurally 22 contemplated by the applicable rules and statutes. the 28 U.S.C. §636(b) and the local rules of practice of this Petition be denied and dismissed. (Doc. 38.) 23 The Petitioner filed Petitioner filed a reply to the SUMMARY 24 Petitioner was convicted in Cochise County Superior Court, case 25 #2007-00791, of two counts of molestation of child and was sentenced to 26 a 30-year term of imprisonment. 27 28 Petitioner raises seven grounds for relief: 1 (1) Petitioner’s right to effective assistance of counsel at trial was 2 violated when his attorney did not fully investigate his case prior to 3 trial or present two key witnesses at trial; 4 (2) Petitioner’s due process rights were violated by the state’s use of 5 perjured testimony at trial; 6 (3) Petitioner’s due process rights were violated when the trial court 7 failed to consider newly-discovered material evidence; 8 (4) Petitioner’s Sixth Amendment rights were violated when he was denied 9 new counsel during his Rule 32 proceeding after his trial attorney 10 withdrew; 11 (5) Petitioner’s due process rights were violated when the trial court 12 denied Petitioner’s request for appointment of an investigator/expert 13 witness; 14 (6) Petitioner’s due process rights were violated during his Rule 32 15 proceeding when the court denied hearing Petitioner’s claim of perjured 16 testimony at trial; and, 17 (7) Petitioner’s due process rights were violated when the trial court 18 failed 19 ineffective assistance of counsel. 20 to hold an evidentiary hearing on Petitioner’s claim of STANDARD OF REVIEW 21 When objection is made to the findings and recommendation of a 22 magistrate judge, the district court must conduct a de novo review. 23 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 24 DISCUSSION 25 The Magistrate Judge recommends the District Court, after its 26 independent review of the record, enter an order denying the petition: 27 all but one of Petitioner’s claims are procedurally defaulted and/or do 28 2 1 not represent a viable federal claim for relief and his claim of 2 ineffective assistance should be denied on the merits. 3 Claim 1: Trial counsel provided ineffective assistance by not investigating his case and calling two key eye witnesses, (a) Allen Dome or (b) Frank R., to testify at trial. 4 5 The Magistrate Judge found part of this claim procedurally 6 defaulted and part of it meritless. 7 that trial counsel was ineffective because counsel did not investigate 8 his case beyond the police report and failed to call two key eye 9 witnesses, (a) Allen Dome or (b) Petitioner contends in Claim One Frank R., to testify in Claim at trial. 10 Respondents 11 procedurally defaulted and that the Dome issue in Claim One (a) should 12 be denied on the merits. (Doc. 19, pp. 13-14, 26-35). Petitioner did not 13 raise 14 information concerning the date the alleged molestation was reported 15 until in his second pro se PCR Petition. (Doc. 1, p. 6); (Doc. 1-1, p. 16 20); (Doc. 20-3, pp. 26-27, Ex. EE);. The trial court found this claim 17 precluded under Arizona law. (Doc. 20, Ex. FF, pp. 1, 3). The state court 18 of appeals denied review of this claim because Petitioner had not 19 complied with Arizona law in asserting it. (Doc. 20, Ex. GG, pp. 1-3). 20 The state courts applied a procedural bar to the claim. Petitioner did 21 not “fairly present” the Frank R. portion of Claim One (b) 22 procedurally appropriate manner. Claim One (b) is procedurally defaulted. 23 Petitioner contends in Claim One (a) that counsel was ineffective 24 in not interviewing or calling Allen Dome as a witness. Dome stated in 25 an affidavit that he was present when Petitioner was alleged to have 26 molested Victim A and that the offending incidents did not occur. 27 Respondents argue that this claim should be denied on the merits. (Doc. 28 3 trial argue that counsel’s the Frank failure to R. issue interview Frank R. One and (b) is discover in a 1 19, pp. 30- 35). 2 a framework for examining Sixth Amendment ineffective assistance of 3 counsel claims.” Miles v. Ryan, 713 F.3d 477, 486-87 (9th Cir. 2013) 4 (citing Strickland v. Washington, 466 U.S. 668 (1984)), cert. denied, 134 5 S.Ct. 519 (2013). “To establish ineffective assistance of counsel under 6 Strickland 7 performance 8 prejudiced his defense.” Id. “The first prong of the Strickland test - 9 deficient performance - requires a showing that counsel’s performance 10 fell below an objective standard of reasonableness or was outside the 11 wide range of professionally competent assistance.” Id. “The test is 12 highly deferential, evaluating the challenged conduct from counsel’s 13 perspective at the time in issue.” Id. “This inquiry should begin with 14 the premise that under the circumstances, the challenged actions might 15 be considered trial strategy.” Id. “The second prong of the Strickland 16 test - prejudice - requires the petitioner to demonstrate a reasonable 17 probability that, but for counsel’s unprofessional errors, the result of 18 the trial would have been different.” Id. “A reasonable probability is 19 a probability sufficient to undermine confidence in the outcome.” Id. a “Clearly established Supreme Court precedent provides prisoner was must deficient, demonstrate and (2) that both: the (1) that deficient counsel’s performance 20 This court’s review of the state court’s denial of the petitioner’s 21 claim is “doubly deferential.” Miles, 713 F.3d at 487. “The issue is not 22 whether we believe the state court’s determination under the Strickland 23 standard was incorrect but whether that determination was unreasonable - 24 a substantially higher threshold.” Id. The decision of the state court 25 denying relief is not an unreasonable application of clearly established 26 federal law. Ferrell has established neither deficient performance nor 27 prejudice. 28 4 1 First, counsel was not ineffective for allegedly failing to 2 interview Dome. Counsel was well aware of Dome and the testimony that he 3 could have offered. (Doc. 19-4, p. 33) Accordingly, counsel’s alleged 4 failure to formally interview Dome did not cause Ferrell prejudice. 5 Counsel’s decision not to call Dome as a witness was not deficient 6 performance because there were sound strategic reasons for not calling 7 him. If he were called as a defense witness, the state would have been 8 able 9 “provided financial motivations to Mr. Dome to testify favorably for the 10 defense.” (Doc. 19-4, p. 34) Moreover, Dome had a disability that made 11 it difficult for him to communicate. Id. He could have been perceived as 12 mentally disabled and “definitely could be confused or frustrated under 13 hostile questioning.” Id. “Such a witness could not be expected to do 14 well 15 competent, experienced trial counsel could well have determined that 16 calling Mr. Dome as a witness would do more harm than good.” Id. 17 Claim 2: Petitioner’s rights to due process and a fair trial were violated when the State used perjured testimony at trial; State’s witness victim B testified at trial that he disclosed the molestation incident on July 13, 2004, the date of the police report, but the trial court determined at a post-trial hearing that the disclosure occurred a year earlier in 2003; victim B’s testimony was contradicted by his father’s testimony and information provided by an eye witness (Frank R.) in a sworn affidavit. 18 19 20 to on introduce evidence cross-examination.” on Id. cross-examination As the trial that court Ferrell stated, had “[a] 21 The Magistrate Judge found this claim procedurally barred. In 22 Claim Two, Ferrell takes this perjury issue and uses it to create a 23 separate but related constitutional claim. He argues the state’s use of 24 perjured testimony violates his right to due process. He has not, 25 however, raised this constitutional claim in a procedurally appropriate 26 manner. 27 28 5 1 As Respondents point out, in Arizona, a claim of due process 2 violation based on the knowing use of perjury is an issue for direct 3 appeal. See State v. Perez, No. 2 CA-CR 2013- 0205-PR, 2013 WL 4609360, 4 at *2 (Ariz. App. Aug. 27, 2013) (claim of perjury independent of claim 5 of newly discovered evidence is precluded under Ariz.R.Crim.P. 32.2(a)(3) 6 because petitioner did not raise the issue on direct appeal). The issue 7 generally is precluded from collateral review. Rule 32.2(a)(1), (3), 8 Ariz.R.Crim.P. The courts may reach the merits of the claim in collateral 9 proceedings if the defendant can demonstrate that the claim of perjury 10 is 11 Ariz.R.Crim.P. Here, Ferrell raised the issue of perjury in his first PCR 12 petition and accused the state of using perjured testimony in his second 13 PCR petition. (Doc. 20, Ex. Y); (Doc. 20-1, pp. 5, 9-10); (Doc. 20-3, p. 14 19) This was procedurally improper because the claim was not based on 15 newly discovered evidence. Accordingly, the state courts found the claim 16 precluded by applying Rule 32.2. (Doc. 19, Ex. W, pp. 1, 10); (Doc. 20, 17 Ex. AA, pp. 2-3). 18 rendering it procedurally defaulted. based on newly discovered evidence. Rules 32.1(e), 32.2(b), The state courts applied a procedural bar to the claim 19 20 21 Claim 3:Petitioner presented evidence of perjury in his state postconviction proceedings based on the affidavits of Allen Dome and Frank R. that contradicted the testimony of the two victims; the trial court violated Petitioner’s rights to due process and a fair trial by procedurally denying the assertion without an evidentiary hearing. 22 The Magistrate Judge found this claim lacked federal legal 23 viability. Petitioner contends in Claim Three that he presented evidence 24 of perjury in his state post-conviction proceedings based on the 25 affidavits of Allen Dome and Frank R. that contradicted the testimony of 26 the two victims, and that the trial court violated Petitioner’s rights 27 28 6 1 by procedurally denying the assertion without an evidentiary hearing. 2 (Doc. 1, p. 8) Respondents correctly contend that Claim Three is not a 3 cognizable federal claim. (Doc. 19, pp. 23- 24). 4 The post-conviction review process is not mandated by the federal 5 Constitution. 6 Accordingly, any errors in that process do not violate the Constitution, 7 and are not cognizable through a federal habeas corpus proceeding. Ortiz 8 v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998), cert. denied, 526 U.S. 9 1123 (1999); see also Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 10 1989) (“[A] petition alleging errors in the state post-conviction review 11 process is not addressable through habeas corpus proceedings.”), cert. 12 denied, 493 U.S. 1012 (1989). 13 Claim 4:Petitioner’s Sixth Amendment right to counsel was violated when the trial court refused to appoint a second attorney to represent Petitioner in the postconviction proceedings after his first appointed counsel withdrew. 14 Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). 15 The Magistrate Judge found this claim lacked federal legal 16 viability. “There is no constitutional right to an attorney in state 17 post-conviction proceedings.” Coleman v. Thompson, 501 U.S. 722, 752-53 18 (1991); see Reyes v. Ryan, No. CV-13-01499-PHX-NVW, 2014 WL 1901111, at 19 *9 (D. Ariz. May 13, 2014) (same, quoting Coleman).To the extent that 20 Petitioner relies on Martinez v. Ryan, 132 S.Ct. 1309 (2012), the Supreme 21 Court there made clear that it was not altering Coleman's constitutional 22 ruling that there was no constitutional right to effective PCR counsel. 23 As Coleman noted, this makes the initial-review collateral proceeding a 24 prisoner's “one and only appeal” as to an ineffective-assistance claim, 25 and this may justify an exception to the constitutional rule that there 26 is no right to counsel in collateral proceedings. This is not the case, 27 28 7 1 however, to resolve whether that exception exists as a constitutional 2 matter. Martinez, 132 S.Ct. at 1315. Claim Four does not present a 3 cognizable federal claim on habeas review. 4 Claims 5-7: Claim 5:Petitioner’s rights to due process and a fair trial were violated when the trial court refused to appoint an investigator during post-conviction proceedings. Claim 6: The trial court violated Petitioner’s right to a fair proceeding when it denied hearing Petitioner’s claim of perjured testimony by Kenneth R. based on the court’s erroneous finding that it had already decided the issue. Claim 7: The trial court abused its discretion and violated Petitioner’s right to due process when it failed to conduct an evidentiary hearing on Petitioner’s claim of ineffective assistance of counsel even though the trial court had ordered the hearing in a prior proceeding. 5 6 7 8 9 The Magistrate Judge found these claims procedurally defaulted and 10 meritless. Petitioner raised Claims Five through Seven before the Arizona 11 Court of Appeals in his motion for reconsideration after that court 12 denied his request for review of the trial court’s denial of his Second 13 pro se PCR Petition. (Doc. 20, Ex. HH). Raising an issue in a motion for 14 reconsideration, however, does not constitute “fair presentation” because 15 the claim is presented “in a procedural context in which its merits will 16 not be considered absent special circumstances.” Roettgen v. Copeland, 17 33 F.3d 36, 38 (9th Cir. 1994); see, e.g., Rivas v. Schriro, 2006 WL 18 987990, * 9 (D. Ariz. 2006) (Habeas claim was not fairly presented 19 because the petitioner did not make its federal nature explicit until his 20 motion for reconsideration filed with the Arizona Court of Appeals.) In 21 the alternative, the claims were not “fairly presented” because Ferrell 22 did not support any of these claims with federal law. Although Petitioner 23 now asserts a violation of his right to due process or a fair proceeding 24 in his federal habeas petition, a habeas petitioner may not “transform 25 a state-law issue into a federal one merely by asserting a violation of 26 due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), cert. 27 28 8 1 denied, 522 U.S. 881 (1997).Regarding the procedurally defaulted claims, 2 any attempt by Petitioner to return to state court to present those 3 claims would be futile. The time has passed to seek postconviction relief 4 in state court under Ariz.R.Crim.P. 32.4(a) and Petitioner has not shown 5 any of the exceptions to the time limits under Rule 32.1(d), (e), (f), 6 (g) or (h) apply to him. Petitioner makes no claim of “cause and 7 prejudice” or “fundamental miscarriage of justice” in his federal habeas 8 petition or in his Reply. Rather, Petitioner contends that he satisfied 9 the exhaustion requirement and reargues the merits of his claims. 10 Petitioner has not established “cause” for the procedural default or 11 resulting prejudice. He does not contend he is actually innocent and has 12 not shown a miscarriage of justice. Petitioner has not demonstrated 13 circumstances to overcome the procedural default. 14 Objections: 15 Petitioner’s Objections are generally: 1) the application of 16 procedural default to his claims violates his due process rights and his 17 right to petition the government for a redress of his grievances; 2) his 18 due process rights were violated when the State relied on perjury to 19 obtain the indictment against him; 3) the state courts violated his right 20 to present exculpatory evidence at trial;4) he, not trial counsel, had 21 the right to control trial strategy; 5) Respondents have waived the 22 application of procedural bar in these proceedings because Respondents 23 did not argue in the state courts his claims would be procedurally 24 defaulted if presented during federal habeas proceedings; 6) this Court 25 should find all of his claims cognizable because cognizability is “highly 26 subjective”; 7) the liberal construction given to pro se pleadings in 27 federal court should be applied to his state-court pleadings as well, and 28 9 1 he should not be required to plead his case with specificity because he 2 is a pro se habeas petitioner; 8) Arizona’s post-conviction procedural 3 rules precluding successive post-conviction petitions or post-conviction 4 petitions presenting already-raised and/or already-waived claims are a 5 “legal trick bag”; and, 9) The R&R improperly applied Martinez v. Ryan, 6 132 S. Ct. 1309 (2012), and that case demonstrates he has proven cause 7 and prejudice to overcome the procedural default of his ineffective- 8 counsel claims. 9 The application of procedural default to unexhausted claims does 10 not violate any constitutional rights: the Supreme Court has time and 11 again upheld the application of this principle. See e.g. generally Rose 12 v. Lundy, 455 U.S. 509 (1982). 13 never been lodged before. The better part of these objections has 14 Petitioner argued that the trial court violated his constitutional 15 right to an attorney during post-conviction proceedings when it refused 16 to appoint a second attorney once his first post-conviction attorney 17 withdrew. 18 concluded, this claim was not cognizable in these proceedings because it 19 did not present a federal question: there is no constitutional right to 20 an attorney in state-court post-conviction proceedings. (See Answer at 21 24–25; R&R at 17–18); Coleman v. Thompson, 501 U.S. 722, 752– 53 (1991) 22 (“There 23 conviction proceedings.”). The R&R did not find the claim procedurally 24 defaulted. (R&R at 17–18.) Petitioner’s discussion about whether the R&R 25 misapplied Martinez in the context of procedural default is irrelevant. is (PWHC no at 9.) Respondents constitutional right 26 27 28 10 argued, to an and the attorney in R&R properly state post- 1 CERTIFICATE OF APPEALABILITY 2 Petitioner filed a pro se Petition for Habeas Corpus pursuant to 3 28 U.S.C. §2254. This Court ruled against Petitioner on procedural 4 grounds in all instances save one. This Court has authority to issue a 5 Certificate 6 substantial showing that he was denied a federal constitutional right. 7 28 U.S.C. § 2253(c)(2). 8 issues 9 constitutional right. of where Appealability1 there (COA), if the Petitioner has made a The COA shall indicate which specific issue or is substantial showing of the denial of a 28 U.S.C. § 2253(c)(3). 10 "Where a district court has rejected the constitutional claims on 11 the merits, the showing required to satisfy § 2253(c) is straightforward: 12 The petitioner must demonstrate that reasonable jurists would find the 13 district court's assessment of the constitutional claims debatable or 14 wrong." 15 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000).) United States v. Martin, 226 F.3d 1042, 1046 (9th Cir. 2000) 16 The issue is somewhat more complicated where the district court 17 dismisses the petition based on procedural grounds, without reaching the 18 merits of the underlying 19 shows, at least, that jurists of reason would find it debatable whether 20 the petition states a valid claim of the denial of a constitutional right 21 and that jurists of reason would find it debatable whether the district 22 court was correct in its procedural ruling. Martin, 226 F.3d at 1046. The 23 first step is to decide claim, then the COA whether the issues if the prisoner petition raises a debatable 24 1 27 If no express request for a certificate is filed, the notice of appeal constitutes a request and the district judge must either issue a COA or state why a COA should not issue. If the district judge denies a COA, the Court must send the certificate, with the notice of appeal, and the file of the district-court proceedings to the court of appeals. Fed. R. App. P. 22(b)(1). 28 11 25 26 1 constitutional question, then the question is whether the procedural 2 issue raised in the petition is highly debatable. Id. 3 On all claims, the Court finds that the Petitioner failed to raise 4 any debatable constitutional issues. As such, the Court will deny a COA. 5 CONCLUSION 6 Petitioner’s Objections do not highlight any new or pertinent 7 law or facts that were left unconsidered or unresolved by the complete 8 and thorough Report and Recommendation. 9 Accordingly, after conducting a de novo review of the record, 10 IT IS ORDERED that the Court ADOPTS the Report and Recommendation 11 (Doc. 29) in its entirety as its findings of fact and conclusions of law. 12 The Objections (Doc. 34) raised by the Petitioner are OVERRULED. 13 IT IS FURTHER ORDERED that the Motion for Extension of Time to File 14 Reply (Doc. 39) and Motion for Leave to File Reply (Doc. 41) are DENIED 15 as not contemplated by the applicable federal statutes; the Motion to 16 Strike Reply (Doc. 43) is GRANTED. 28 U.S.C. §2254. 17 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 18 (Doc. No. 1) is DENIED and this action is DISMISSED with prejudice. 19 Final Judgment to enter separately. 20 21 22 IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED as to all claims. DATED this 15th day of April, 2015. 23 24 25 26 27 28 12

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