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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UNITED STATES DISTRICT COURT

5

DISTRICT OF ARIZONA

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Stanford Lamar Ferrell,

)
)
Petitioner,
)
v.
)
)
)
Charles L. Ryan, et al.,
)
)
Respondents.
)
______________________________________ )

CV-13-0305-TUC-DCB

ORDER

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This matter was referred to the United States Magistrate Judge

14

pursuant to

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Court for a Report and Recommendation (R&R) on the Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. §2254. Before the Court is the

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Magistrate Judge’s Report and Recommendation (Doc. 29), which recommends

18

that

19

Objections to the Report and Recommendation (Doc. 34). Respondents filed

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a Response to Objections.

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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.)

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The

Petitioner

filed

Petitioner filed a reply to the

SUMMARY

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Petitioner was convicted in Cochise County Superior Court, case

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#2007-00791, of two counts of molestation of child and was sentenced to

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a 30-year term of imprisonment.

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Petitioner raises seven grounds for relief:

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(1) Petitioner’s right to effective assistance of counsel at trial was

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violated when his attorney did not fully investigate his case prior to

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trial or present two key witnesses at trial;

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(2) Petitioner’s due process rights were violated by the state’s use of

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perjured testimony at trial;

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(3) Petitioner’s due process rights were violated when the trial court

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failed to consider newly-discovered material evidence;

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(4) Petitioner’s Sixth Amendment rights were violated when he was denied

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new counsel during his Rule 32 proceeding after his trial attorney

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withdrew;

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(5) Petitioner’s due process rights were violated when the trial court

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denied Petitioner’s request for appointment of an investigator/expert

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witness;

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(6) Petitioner’s due process rights were violated during his Rule 32

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proceeding when the court denied hearing Petitioner’s claim of perjured

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testimony at trial; and,

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(7) Petitioner’s due process rights were violated when the trial court

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failed

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ineffective assistance of counsel.

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to

hold

an

evidentiary

hearing

on

Petitioner’s

claim

of

STANDARD OF REVIEW

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When objection is made to the findings and recommendation of a

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magistrate judge, the district court must conduct a de novo review.

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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DISCUSSION

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The Magistrate Judge recommends the District Court, after its

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independent review of the record, enter an order denying the petition:

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all but one of Petitioner’s claims are procedurally defaulted and/or do

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2

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not represent a viable federal claim for relief and his claim of

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ineffective assistance should be denied on the merits.

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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.

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5

The

Magistrate

Judge

found

part

of

this

claim

procedurally

6

defaulted and part of it meritless.

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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

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raise

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information concerning the date the alleged molestation was reported

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until in his second pro se PCR Petition. (Doc. 1, p. 6); (Doc. 1-1, p.

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20); (Doc. 20-3, pp. 26-27, Ex. EE);. The trial court found this claim

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precluded under Arizona law. (Doc. 20, Ex. FF, pp. 1, 3). The state court

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of appeals denied review of this claim because Petitioner had not

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complied with Arizona law in asserting it. (Doc. 20, Ex. GG, pp. 1-3).

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The state courts applied a procedural bar to the claim. Petitioner did

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not “fairly present” the Frank R. portion of Claim One (b)

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procedurally appropriate manner. Claim One (b) is procedurally defaulted.

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Petitioner contends in Claim One (a) that counsel was ineffective

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in not interviewing or calling Allen Dome as a witness. Dome stated in

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an affidavit that he was present when Petitioner was alleged to have

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molested Victim A and that the offending incidents did not occur.

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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)

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(citing Strickland v. Washington, 466 U.S. 668 (1984)), cert. denied, 134

5

S.Ct. 519 (2013). “To establish ineffective assistance of counsel under

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Strickland

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performance

8

prejudiced his defense.” Id. “The first prong of the Strickland test -

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deficient performance - requires a showing that counsel’s performance

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fell below an objective standard of reasonableness or was outside the

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wide range of professionally competent assistance.” Id. “The test is

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highly deferential, evaluating the challenged conduct from counsel’s

13

perspective at the time in issue.” Id. “This inquiry should begin with

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the premise that under the circumstances, the challenged actions might

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be considered trial strategy.” Id. “The second prong of the Strickland

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test - prejudice - requires the petitioner to demonstrate a reasonable

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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

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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

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This court’s review of the state court’s denial of the petitioner’s

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claim is “doubly deferential.” Miles, 713 F.3d at 487. “The issue is not

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whether we believe the state court’s determination under the Strickland

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standard was incorrect but whether that determination was unreasonable -

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a substantially higher threshold.” Id. The decision of the state court

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denying relief is not an unreasonable application of clearly established

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federal law. Ferrell has established neither deficient performance nor

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prejudice.

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First,

counsel

was

not

ineffective

for

allegedly

failing

to

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interview Dome. Counsel was well aware of Dome and the testimony that he

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could have offered. (Doc. 19-4, p. 33) Accordingly, counsel’s alleged

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failure to formally interview Dome did not cause Ferrell prejudice.

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Counsel’s decision not to call Dome as a witness was not deficient

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performance because there were sound strategic reasons for not calling

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him. If he were called as a defense witness, the state would have been

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able

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“provided financial motivations to Mr. Dome to testify favorably for the

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defense.” (Doc. 19-4, p. 34) Moreover, Dome had a disability that made

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it difficult for him to communicate. Id. He could have been perceived as

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mentally disabled and “definitely could be confused or frustrated under

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hostile questioning.” Id. “Such a witness could not be expected to do

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well

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competent, experienced trial counsel could well have determined that

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calling Mr. Dome as a witness would do more harm than good.” Id.

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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.

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to

on

introduce

evidence

cross-examination.”

on

Id.

cross-examination

As

the

trial

that

court

Ferrell

stated,

had

“[a]

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The Magistrate Judge found this claim procedurally barred.

In

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Claim Two, Ferrell takes this perjury issue and uses it to create a

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separate but related constitutional claim. He argues the state’s use of

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perjured testimony violates his right to due process. He has not,

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however, raised this constitutional claim in a procedurally appropriate

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manner.

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5

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As Respondents point out, in Arizona, a claim of due process

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violation based on the knowing use of perjury is an issue for direct

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appeal. See State v. Perez, No. 2 CA-CR 2013- 0205-PR, 2013 WL 4609360,

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at *2 (Ariz. App. Aug. 27, 2013) (claim of perjury independent of claim

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of newly discovered evidence is precluded under Ariz.R.Crim.P. 32.2(a)(3)

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because petitioner did not raise the issue on direct appeal). The issue

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generally is precluded from collateral review. Rule 32.2(a)(1), (3),

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Ariz.R.Crim.P. The courts may reach the merits of the claim in collateral

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proceedings if the defendant can demonstrate that the claim of perjury

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is

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Ariz.R.Crim.P. Here, Ferrell raised the issue of perjury in his first PCR

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petition and accused the state of using perjured testimony in his second

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PCR petition. (Doc. 20, Ex. Y); (Doc. 20-1, pp. 5, 9-10); (Doc. 20-3, p.

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19) This was procedurally improper because the claim was not based on

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newly discovered evidence. Accordingly, the state courts found the claim

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precluded by applying Rule 32.2. (Doc. 19, Ex. W, pp. 1, 10); (Doc. 20,

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Ex. AA, pp. 2-3).

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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

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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.

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The

Magistrate

Judge

found

this

claim

lacked

federal

legal

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viability. Petitioner contends in Claim Three that he presented evidence

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of

perjury

in

his

state

post-conviction

proceedings

based

on

the

25
affidavits of Allen Dome and Frank R. that contradicted the testimony of

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the two victims, and that the trial court violated Petitioner’s rights

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by procedurally denying the assertion without an evidentiary hearing.

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(Doc. 1, p. 8) Respondents correctly contend that Claim Three is not a

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cognizable federal claim. (Doc. 19, pp. 23- 24).

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The post-conviction review process is not mandated by the federal

5

Constitution.

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Accordingly, any errors in that process do not violate the Constitution,

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and are not cognizable through a federal habeas corpus proceeding. Ortiz

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v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998), cert. denied, 526 U.S.

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1123 (1999); see also Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.

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1989) (“[A] petition alleging errors in the state post-conviction review

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process is not addressable through habeas corpus proceedings.”), cert.

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denied, 493 U.S. 1012 (1989).

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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).

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The

Magistrate

Judge

found

this

claim

lacked

federal

legal

16
viability.

“There is no constitutional right to an attorney in state

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post-conviction proceedings.” Coleman v. Thompson, 501 U.S. 722, 752-53

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(1991); see Reyes v. Ryan, No. CV-13-01499-PHX-NVW, 2014 WL 1901111, at

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*9 (D. Ariz. May 13, 2014) (same, quoting Coleman).To the extent that

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Petitioner relies on Martinez v. Ryan, 132 S.Ct. 1309 (2012), the Supreme

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Court there made clear that it was not altering Coleman's constitutional

22
ruling that there was no constitutional right to effective PCR counsel.

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As Coleman noted, this makes the initial-review collateral proceeding a

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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

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is no right to counsel in collateral proceedings. This is not the case,

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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.

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6
7
8
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The Magistrate Judge found these claims procedurally defaulted and

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meritless. Petitioner raised Claims Five through Seven before the Arizona

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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

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pro se PCR Petition. (Doc. 20, Ex. HH). Raising an issue in a motion for

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reconsideration, however, does not constitute “fair presentation” because

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the claim is presented “in a procedural context in which its merits will

16
not be considered absent special circumstances.” Roettgen v. Copeland,

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33 F.3d 36, 38 (9th Cir. 1994); see, e.g., Rivas v. Schriro, 2006 WL

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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

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the alternative, the claims were not “fairly presented” because Ferrell

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did not support any of these claims with federal law. Although Petitioner

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now asserts a violation of his right to due process or a fair proceeding

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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

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due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), cert.

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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),

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(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.

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Petitioner has not established “cause” for the procedural default or

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resulting prejudice. He does not contend he is actually innocent and has

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not shown a miscarriage of justice. Petitioner has not demonstrated

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circumstances to overcome the procedural default.

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Objections:

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Petitioner’s Objections are generally:

1) the application of

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procedural default to his claims violates his due process rights and his

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right to petition the government for a redress of his grievances; 2) his

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due process rights were violated when the State relied on perjury to

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obtain the indictment against him; 3) the state courts violated his right

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to present exculpatory evidence at trial;4) he, not trial counsel, had

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the right to control trial strategy; 5) Respondents have waived the

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application of procedural bar in these proceedings because Respondents

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did not argue in the state courts his claims would be procedurally

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defaulted if presented during federal habeas proceedings; 6) this Court

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should find all of his claims cognizable because cognizability is “highly

26

subjective”; 7) the liberal construction given to pro se pleadings in

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federal court should be applied to his state-court pleadings as well, and

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he should not be required to plead his case with specificity because he

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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

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“legal trick bag”; and, 9) The R&R improperly applied Martinez v. Ryan,

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132 S. Ct. 1309 (2012), and that case demonstrates he has proven cause

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and prejudice to overcome the procedural default of his ineffective-

8

counsel claims.

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The application of procedural default to unexhausted claims does

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not violate any constitutional rights: the Supreme Court has time and

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again upheld the application of this principle. See e.g. generally Rose

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v. Lundy, 455 U.S. 509 (1982).

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never been lodged before.

The better part of these objections has

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Petitioner argued that the trial court violated his constitutional

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right to an attorney during post-conviction proceedings when it refused

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to appoint a second attorney once his first post-conviction attorney

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withdrew.

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concluded, this claim was not cognizable in these proceedings because it

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did not present a federal question: there is no constitutional right to

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an attorney in state-court post-conviction proceedings. (See Answer at

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24–25; R&R at 17–18); Coleman v. Thompson, 501 U.S. 722, 752– 53 (1991)

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(“There

23

conviction proceedings.”). The R&R did not find the claim procedurally

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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

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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

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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

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substantial showing that he was denied a federal constitutional right.

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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).

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"Where a district court has rejected the constitutional claims on

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the merits, the showing required to satisfy § 2253(c) is straightforward:

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The petitioner must demonstrate that reasonable jurists would find the

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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)

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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

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shows, at least, that jurists of reason would find it debatable whether

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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

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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

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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).

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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.

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21
22

IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED
as to all claims.

DATED this 15th day of April, 2015.

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