Beverett v. Ryan et al

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATION 23 . The Objections raised by the Petitioner are OVERRULED. The motion to strike (Doc. 34 ) is DENIED. It is FURTHER ORDERED that the Petition for Writ of Habeas Corpus 1 is DENIED and this action is DISMI SSED with prejudice. Final Judgment to enter separately by the Clerk's Office. A Certificate of Appealability is likewise DENIED. This action is closed. Signed by Senior Judge David C Bury on 10/28/15. (See attached PDF for complete information.) (KAH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Amos Beverett,

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

CV-13-1303-TUC-DCB

ORDER

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This matter was referred to the United States Magistrate Judge

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pursuant to

28 U.S.C. §636(b) and the local rules of practice of this

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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. 23), which recommends

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that

the

Petition

be

denied

and

dismissed.

The

Petitioner

filed

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Objections to the Report and Recommendation. (Doc. 26.)

A Reply (Doc.

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32) was filed June 22, 2015.

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SUMMARY

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On September 29, 2010, Petitioner was convicted in Pima County

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Superior Court, case #CR 2009-1782-001, of three counts of sale and/or

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transfer of a narcotic drug, and was sentenced to concurrent, presumptive

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prison terms of 15.75 years. On October 18, 2011, Petitioner appealed his

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convictions and sentences to the Arizona Court of Appeals. See State v.

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Beverett, No. 2 CA-CR 2010-0397, 2011 WL 6226138 (Ariz. Ct. App. Dec. 14,

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2011). On December 14, 2011, the Arizona Court of Appeals affirmed the

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convictions and sentences. On March 7, 2012, Petitioner filed a Rule 32

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Petition for Post-Conviction Relief in Pima County Superior Court, which

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was denied on May 24, 2012. (Doc. 1 at 4). On October 3, 2012, Petitioner

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sought review of the denial of his Rule 32 Petition for Post-Conviction

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Relief in the Arizona Court of Appeals. State v. Beverett, No. 2 CA-CR

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2012-0419-PR, 2013 WL 653698 (Ariz. Ct. App. Feb. 21, 2013). The Arizona

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Court of Appeals granted review of the Rule 32 petition, but denied

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relief. Id. On May 7, 2013, Petitioner filed a special action in Pima

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County Superior Court. (Doc. 1 at 5). In his Petition, Petitioner states

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that, as of October 2, 2013, the Pima County Superior Court had not

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issued a decision on the special action. (Id. at 5). In his Petition,

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Petitioner names Charles L. Ryan as Respondent and the Arizona Attorney

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General as an Additional Respondent. Petitioner raises seven grounds for

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relief: (1) that defense counsel was ineffective in failing to object to

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testimonial hearsay at trial;(2) that defense counsel was ineffective in

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failing to file a motion to suppress statements made by an anonymous

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informant; (3) that defense counsel was ineffective in failing to file

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a motion to suppress evidence; (4) that defense counsel was ineffective

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in failing to tell Petitioner that the case involved an anonymous

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informant;

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violation of Petitioner’s rights to due process, confrontation, and a

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fair trial under the United States and Arizona Constitutions; (6) that

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testimonial hearsay was admitted at trial in violation of Petitioner’s

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rights to due process, confrontation, and a fair trial under the United

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States and Arizona Constitutions; and (7) that the Indictment was

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(5)

that

testimonial

hearsay

was

admitted

at

trial

in

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defective, resulting in violations of Petitioner’s rights to due process

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and a fair trial under the United States and Arizona Constitutions.

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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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OBJECTIONS
A.

Procedurally Defaulted Claims: Grounds Four through Seven

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Petitioner asserts four claims of ineffective assistance of counsel

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(IAC) (Grounds One through Four), two claims that testimonial hearsay was

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admitted at trial in violation of Petitioner’s rights to due process,

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confrontation, and a fair trial under the United States and Arizona

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Constitutions (Grounds Five and Six) and one claim that the Indictment

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was defective, resulting in violations of Petitioner’s rights to due

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process and a fair trial under the United States Constitution (Ground

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Seven). The R&R found

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exhausted and went on to address them on the merits, and Grounds Four

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through Seven were procedurally defaulted.

that Grounds One through Three of the Petition are

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Petitioner’s objections contain no new information that suggests

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that the conclusions in the R&R are incorrect. The Court agreed with the

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R&R’s finding that the special action filed was not a successive Rule 32,

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and thus the claim should not be precluded is not persuasive.

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Accordingly, this Court will adopt the R&R with reference to

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Grounds Four through Seven as procedurally defaulted and will dismiss

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them as such.

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B.

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Petitioner objects to the magistrate judge’s recommendation that

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his claims in Grounds One through Three fail on the merits. Ground One

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is Petitioner’s claim that his trial counsel was ineffective in failing

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to object to the admission of hearsay, i.e., the police officer’s

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testimony about what the anonymous informant had told him. (Doc.

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6.) Ground Two is his claim that his trial counsel was ineffective in

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failing

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informant. (Doc.

Claims on the Merits: Grounds One Through Three

to

file

a

motion

to

suppress

any

statements

made

1, at

by

the

1, at 7.) Ground Three is Petitioner’s claim that his

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trial counsel was ineffective in failing to file a motion to suppress any

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evidence

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unconstitutionally. (Doc.

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state courts did not unreasonably apply the relevant clearly established

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federal law, Strickland v. Washington, 466 U.S. 668, 686 (1984), in

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resolving these claims. (Doc.

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show ineffective assistance of counsel, a defendant must show both that

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counsel’s actions fell below an objective standard of reasonableness and

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that the defendant suffered prejudice as a result. Id. at 687–88. To show

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prejudice,

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

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the proceeding would have been different.” Id. at 694.

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The

relating

“[t]he

trial

to

the

informant

that

was

obtained

1, at 8.)The magistrate judge found that the

defendant

court

anonymous

23, at 18–21.) Under this standard, to

must

found

show

that

the

that

there

evidence

is

(the

a

reasonable

informant’s

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statements) was admissible and therefore trial counsel’s “failure to

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raise an objection based on the anonymous informant does not meet either

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prong of the Strickland test.” (Doc.

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appeals adopted this ruling. (Doc.

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judge found that this was not an unreasonable application of Strickland,

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13, Exh. N, at 2–3.) The court of

13, Exh. Q, at 2–3.) The magistrate

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addressing only the issue of prejudice. (Doc. 23, at 19–20.)1 This Court

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agrees.

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Petitioner’s Objections do not highlight any new or pertinent

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law or facts that were left unconsidered or unresolved by the R&R, as

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reinforced by the Defendant’s responses.

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CONCLUSION

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Accordingly, after conducting a de novo review of the record,

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IT IS ORDERED that the Court ADOPTS the Report and Recommendation

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(Doc. 23) in its entirety.

The Objections raised by the Petitioner are

OVERRULED. The motion to strike (Doc. 34) is DENIED.

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus

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(Doc. 1) is DENIED and this action is DISMISSED with prejudice.

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Judgment to enter separately by the Clerk’s Office. A Certificate of

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Appealability is likewise DENIED.

Final

This action is closed.

DATED this 28th day of October, 2015.

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Petitioner also asserts in his objections that his trial attorney
had a “duty to call this anonymous informant to testify” and that his
failure to do so was “deficient” and “clearly prejudiced” him. (Doc. 26,
at 5.) To the extent Petitioner is attempting to raise a claim that his
trial counsel was ineffective in failing to call the informant to
testify, he made no such claim in his habeas petition. (Doc. 1.) Although
this Court has discretion to consider new claims raised for the first
time in objections to a R&R, this Court will decline to do so. See Brown
v. Roe, 279 F.3d 742, 744–45 (9th Cir. 2002). First, Petitioner gives no
reason for his failure to present this claim in his petition. Second, as
explained below, this claim appears to be unexhausted, and therefore
could not provide a basis for habeas relief. See 28 U.S.C. §
2254(b)(1)(A) (a federal court will not grant habeas relief to a
petitioner held in state custody unless he or she has exhausted the
available state remedies).

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