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)
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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