Knight v. Ryan et al

Filing 25

ORDERED that the Magistrate Judge's 23 Report and Recommendation is accepted and adopted as the findings of fact and conclusions of law of this Court. Further ordered that Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody is DENIED. It is further ordered that the Clerk of the Court shall enter Judgment accordingly. Ordered that in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability, pursuant to Rule 11(a) of the Rules Governing Section 2254 cases, because the Petitioner failed to make a substantial showing of the denial of a constitutional right, and reasonable jurists would not find the Courts procedural rulings debatable. Signed by Senior Judge David C Bury on 8/31/2017. (BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shad Kendall Knight,
Petitioner,

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ORDER

v.

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No. CV-14-02080-TUC-DCB

Charles L Ryan, et al.,

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Respondents.

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REPORT AND RECOMMENDATION: ADOPTED

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This matter was referred to Magistrate Judge Eric J. Markovich on September 11,

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2014, pursuant to Rules of Practice for the United States District Court, District of

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Arizona (Local Rules), Rule (Civil) 72.1(a).

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Markovich issued a Report and Recommendation (R&R). He recommends that the Court

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deny the Petition for Writ of Habeas Corpus filed by Petitioner Knight on May 7, 2014.

On July 14, 2017, Magistrate Judge

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In a detailed Order, he recommends dismissal on the merits as follows: Ground

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One and Ground Two, sub-claims one and two, should be denied because Petitioner

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failed to show that state court decisions were contrary to clearly established federal law,

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were an unreasonable application of such law, or were based on an unreasonable

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determination of facts. Ground Three should be denied because the admission of other

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bad acts evidence did not render the trial fundamentally unfair. Ground Four, sub-claims

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one, two, and three, should be denied because Petitioner failed to establish a violation of

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Strickland v. Washington, 466 U.S. 668 (1984). He recommends the Court find that

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Ground Two, sub-claim three, and Ground Four, sub-claim four, are procedurally barred.

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The Court accepts and adopts the Magistrate Judge’s R&R as the findings of fact
and conclusions of law of this Court and denies the Petition filed pursuant to 28 U.S.C. §
2254.

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STANDARD OF REVIEW
The duties of the district court in connection with a R&R by a Magistrate Judge
are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. §
636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28
U.S.C. § 636(b)(1). Where the parties object to the R&R, “‘[a] judge of the [district]
court shall make a de novo determination of those portions of the [R&R] to which
objection is made.’” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. §
636(b)(1)).
This Court's ruling is a de novo determination as to those portions of the R&R to
which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992,
1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th
Cir.2003) (en banc). To the extent that no objection has been made, arguments to the
contrary have been waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are
waived if they are not filed within fourteen days of service of the Report and
Recommendation), see also McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)
(failure to object to Magistrate's report waives right to do so on appeal); Advisory
Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. Court, 501
F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation)).

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The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C.
§ 636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72
(party objecting to the recommended disposition has fourteen (14) days to file specific,
written objections). The Court has considered the objections filed by the Petitioner, and
the parties’ briefs considered by the Magistrate Judge in deciding the habeas Petition.

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OBJECTIONS
The Petitioner objects to the Magistrate Judge’s determination regarding
sufficiency of the evidence. He argues that there was no “evidence, proof, witnesses”
that placed him at the murder scene or that showed he left the Hall’s residence, stole their
vehicle and drove it to the murder scene—he seeks evidence like street and security
camera videos. He objects to the Magistrate Judge’s finding there was no prosecutorial
misconduct.

He refers to “all the lies, hearsay, conjecture, and withholding of

exculpatory evidence,” such as: DNA evidence on victim’s clothes, street and security
cameras, that there was a meeting with a mediator on February 5, 2007, and the
prosecutor lied that there was a divorce court hearing that day, and the victim’s
involvement in illegal drug activities.

He objects and argues that the trial court

improperly admitted other bad acts evidence. He alleges he had ineffective assistance of
trial counsel because his attorney made deals with the prosecution to withhold evidence
of the victim’s alleged illegal activities and witnesses to those activities without his
knowledge, withheld evidence of detective Hogan’s past bad acts, and denied him the
right to take the witness stand. (Objection (Doc. 24)).
Insufficient evidence: The Magistrate Judge correctly notes that Petitioner fairly
presented this claim to the state courts. He recommends this Court defer to the Arizona
Court of Appeals determination that there was sufficient evidence to support his murder
conviction. Such deference is required, pursuant to 28 U.S.C.A. § 2254(e)(1), unless

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Petitioner shows the state court’s determination that a rational jury could have found
there was sufficient evidence of guilt beyond a reasonable doubt was objectively
unreasonable.

(R&R (Doc. 23) at 13) (citations omitted).

considers the Petitioner’s criticism of the shoe print evidence, witnesses and alibi
evidence, and forensic (DNA) evidence. He applies the correct legal standard, Holland v.
Jackson, 542 U.S. 649, 655 (2004), to determine that in viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. He correctly notes that this Court is
not free to make its own de novo determination of guilt or innocence. Rather, it must
give full play to the responsibility of the jury to resolve evidentiary conflicts, to weigh the
evidence, and to draw reasonable inferences from basic fact to the ultimate fact of guilt.
This Court adopts the explanation and reasoning of the Magistrate Judge as
follows: the shoe print evidence was inconclusive, and a reasonable jury could have
found that the defendant either wore a smaller size shoe or left no prints at all; the Hall’s
alibi testimony was qualified, and a jury could have concluded that Knight left the house
after the Hall’s went to bed, could have taken the Hall’s truck without them knowing and
returned before morning; there was blood found in the Hall’s truck and it could have
matched the victim. There was also witness evidence that a truck that looked like the
Hall’s Dakota was parked outside the victim’s home on the night of the murder. This
Court, like the Magistrate Judge and like the state appellate court, cannot say that no
rational trier of fact could have found Petitioner guilty beyond a reasonable doubt.
Absolutely, there was conflicting evidence, but it is up to the jury to resolve such
conflicts and neither the state appellate court nor this Court may reweigh the evidence.
The state appellate court’s finding that there was sufficient evidence to support the guilty
verdict is not objectively unreasonable. In sum, the Petitioner has not shown that he is

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The Magistrate Judge

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being held in violation of the laws or constitution of the United States. (R&R (Doc. 23)
at 11-22.)
Prosecutorial Misconduct: The Petitioner’s claim that the prosecutor withheld
exculpatory evidence such as the victim’s clothes and information given to the mediator,
etc., that he raises, here, on objection were those raised in sub-claim three of Ground
Two, which the Magistrate Judge recommends this Court should find are procedurally
barred. He explains that Petitioner did not fairly present these arguments in either his
direct appeal or in his Rule 32 petition. The Petitioner makes no objection to the
Magistrate Judge’s procedural recommendation. The substantive arguments he makes in
his objection are unexhausted. The Arizona Rules of Criminal Procedure regarding
timeliness and preclusion now prevent exhaustion, and they are procedurally defaulted.
Id. at 23-25.
Bad Acts Evidence:

Petitioner presented this claim to the state courts, and

therefore the Arizona Court of Appeals’ finding that other bad acts evidence was properly
admitted to show motive and opportunity is entitled to dereference to the extent this
Court can even reach this issue. Federal habeas relief does not lie for errors of state law.
“‘It is well settled that a state court’s evidentiary ruling, even if erroneous, is grounds for
federal habeas relief only if it renders the state proceedings so fundamentally unfair as to
violate due process.’” (R&R (Doc. 23) at 35 (quoting Spivey v. Rocha, 194 F.3d 971,
977-78 (9th Cir. 1999)). Like the Arizona Court of Appeals, this Court rejects Petitioner’s
argument that the only issue contested at trial was identity because he denied he
committed the crime. The parties agreed the other bad acts evidence was not relevant to
show intent. Motive and opportunity are, however, relevant to show identity, and the
prior bad acts admitted by the trial court, such as his statements about wishing her dead,
his behavior during the divorce proceedings, and disabling her gate’s automatic control

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mechanism which forced her to exit her car where she was attacked, went to establish
motive and opportunity. Like the state appellate court, this Court finds no error in
admitting the prior bad acts. Accordingly, this Court finds the admission of them did not
render the trial so arbitrary and fundamentally unfair that it violated Petitioner’s due
process rights. Id. at 36-39.)
Ineffective Assistance of Trial Counsel: Petitioner asserts his trial attorney made a
deal with the prosecutor to not admit the victim’s illegal activities, Officer Hogan’s past
bad acts, and prevented him from taking the witness stand. Only the latter issue was
fairly presented to the state courts. The other two substantive arguments the Petitioner
makes on objection to the Magistrate Judge’s R&R are unexhausted and procedurally
barred. (R&R (Doc. 23) at 40-41.)
As noted by the Magistrate Judge, the question of whether trial counsel provided
ineffective assistance in respect to recommending the defendant not testify at trial is
assessed under Strickland v. Washington, 466 U.S. 668, 684-85 (1984). The Arizona
Court of Appeals’ determination that there was no ineffective assistance of counsel is
afforded a double dose of deference under the AEDPA. The Court applies this doublydeferential standard to the Petitioner’s assertion that his trial counsel interfered with his
right to testify by conducting a mock cross-examination to discourage him from
testifying. Id. at 41-43.
On the Rule 32 Petition, the trial court held a two-day evidentiary hearing on the
question. The trial court found the defendant admitted that he chose to follow the advice
of counsel to not testify at trial. The trial court found he had ample opportunity to inform
the judge at trial that he wanted to testify, but remained silent. The court denied the Rule
32 Petition on this issue because “‘the case law is clear . . . that a Defendant must make
his position known at trial.’” (R&R (Doc. 23) at 49) (citation omitted). The court denied

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relief. On review, the Arizona Court of Appeals refused to reweigh the testimony from
the Rule 32 evidentiary hearing. It is not the province of this Court to reweigh it either.
Id. at 49-50.
The Petitioner testified at the Rule 32 evidentiary hearing that he wanted to testify
to bring up the victim’s illegal drug activities. His counsel, however, recommended
against it when he got flustered during their mock examination. He told his attorneys that
he still wanted to testify but “‘you’re my attorney so you make the call.’” Id. at 53
(citation omitted).

According to Petitioner, he found out that his attorney and the

prosecutor agreed to not bring up the victim’s prior drug activity with another witness
and then he wanted to testify, but his attorney told him that he could not take the stand to
introduce it. Both his attorneys testified that they understood the defendant was in
agreement to not take the witness stand, and he did not ask to testify during the trial. Id.
at 52-54.
“Based on this testimony, the PCR court could have reasonably determined that
Petitioner made his own decision not to testify and that trial counsel was not ineffective
for allegedly interfering with that right.” Id. at 54. At most, Petitioner was conflicted
about whether or not he should testify, but he fails to establish that counsel prevented him
from testifying against his wishes. Id. The Court agrees. The Petitioner has not shown
that the Arizona Court of Appeal’s decision affirming the Rule 32 denial of relief on this
claim was an objectively unreasonable application of Strickland.
CONCLUSION
After de novo review of the Petitioner’s objections, this Court agrees with
the findings of fact and conclusions of law made by the Magistrate Judge in the R&R for
determining the pending habeas petition. The Court adopts the R&R, and for the reasons
stated in it, the Court denies the Petition for Writ of Habeas Corpus.

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Accordingly,
IT IS ORDERED that after a full and independent review of the record in respect
to the objections, the Magistrate Judge's Report and Recommendation (Doc. 23) is
accepted and adopted as the findings of fact and conclusions of law of this Court.
IT IS FURTHER ORDERED that Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus by a Person in State Custody (Doc. 1) is DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment
accordingly.
IT IS FURTHER ORDERED that in the event Petitioner files an appeal, the
Court declines to issue a certificate of appealability, pursuant to Rule 11(a) of the Rules
Governing Section 2254 cases, because the Petitioner failed to make a substantial
showing of the denial of a constitutional right, and reasonable jurists would not find the
Court’s procedural rulings debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Dated this 31st day of August, 2017.

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