Weeks v. Ryan et al

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATION 20 . The Objections (Doc. 24) raised by the Petitioner are OVERRULED. The Amended Petition for Writ of Habeas Corpus (Doc. 2) is DENIED and this action is DISMISSED with prejudice. The Clerk's Office sh ould enter a Final Judgment separately. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED on all claims but for Claims 1 and 2 as these claims involve whether a substantive mental competency claim can ever be procedurally defaulted, because reasonable jurists could find the ruling debatable. Signed by Senior Judge David C Bury on 10/16/17. (See attached PDF for complete information.) (KAH)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 7 Michael Ray Weeks, 8 9 10 11 12 ) ) Petitioner, ) v. ) ) ) Charles L. Ryan, et al., ) ) Respondents. ) ______________________________________ ) CV-14-2283-TUC-DCB ORDER 13 This matter was referred to the United States Magistrate Judge 14 pursuant to 28 U.S.C. §636(b) and the local rules of practice of this 15 Court (Doc. 2) for a Report and Recommendation (R&R) on the Amended 16 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254. Before 17 the Court is the Magistrate Judge’s Report and Recommendation (Doc. 20), 18 which recommends that the Amended Petition be denied and dismissed. 19 Petitioner filed Objections to the Report and Recommendation (Doc. 24)and 20 a Court-Ordered Response to Objections (Doc. 34) was filed. The Court now 21 rules. 22 STANDARD OF REVIEW 23 When objection is made to the findings and recommendation of a 24 magistrate judge, the district court must conduct a de novo review. 25 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 26 // 27 // 28 1 2 OBJECTIONS –Factual/Procedural Background 3 Petitioner first objected to the “Factual and Procedural 4 Background” contained in the R&R.(Doc. 24 at 2.)Petitioner contends that 5 the facts found by the Arizona Court of Appeals are not entitled to a 6 presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1) because 7 that court viewed the evidence in the light most favorable to sustaining 8 the jury’s verdicts. (Obj. at 2–3.) But the Ninth Circuit has held that 9 an “initial statement of facts [that] is drawn from the state appellate 10 court’s decision … is afforded a presumption of correctness that may be 11 rebutted only by clear and convincing evidence.” Moses v. Payne, 555 F.3d 12 742, 746 n.1 (9th Cir. 2009). Petitioner does not assert that any of the 13 facts stated by the Magistrate Judge are incorrect or specifically rebut 14 any facts. (Obj. at 2 (stating that the facts presented in the R&R 15 “merely recount [Petitioner’s] charges, trial(s), and convictions”).) In 16 Nasby v. McDaniel, 853 F.3d 1049, 1052 (9th Cir. 2017), the court applied 17 the rule “[i]n Jones v. Wood, [114 F.3d 1002 (9th Cir. 1997),] … that a 18 habeas court must either obtain and review the relevant portions of the 19 record on which the state court based its judgment, or conduct an 20 evidentiary hearing of its own.” In sum, the Magistrate Judge properly 21 adopted the state court’s statement of the facts describing Petitioner’s 22 crimes. The Magistrate Judge here had the relevant trial and post- 23 conviction transcripts and record, and she stated that she conducted an 24 “independent review of the record” before recommending that the petition 25 be dismissed. (R&R at 1.) In sum, this Objection is overruled. 26 // 27 // 28 2 1 -Claims 1 & 2: Procedural Default 2 Petitioner objects to the R&R’s conclusions and recommendations on 3 Claims 1 and 2 based on exhaustion and procedural default. The Magistrate 4 Judge found that Petitioner failed to exhaust Claims 1 and 2, which 5 alleged that Petitioner was not competent to stand trial and that the 6 trial court erred by failing to sua sponte order a competency evaluation. 7 (R&R at 6–8.) As the Magistrate Judge explained, although the post- 8 conviction court rejected the claims on their merits, the Arizona Court 9 of Appeals found the claims precluded under Arizona Rule of Criminal 10 Procedure 32.2(a)(3) because they could have been raised on direct 11 appeal. (Id. at 6.) The Magistrate Judge, therefore, found the claims 12 unexhausted and defaulted because the court of appeals “was the last 13 state 14 procedurally defaulted.” (Id. at 7.) See Coleman v. Thompson, 501 U.S. 15 722, 731–32 (1991). Petitioner agrees that he failed to present these 16 claims on direct appeal as Arizona law requires, but claims exhaustion 17 occurred by presenting them to the Arizona Court of Appeals on review 18 from the denial of post-conviction relief, despite the fact that the 19 appellate court found the claims precluded under Rule 32.2(a)(3). (Obj. 20 at 4.) (“There is no dispute that [Petitioner] brought the claims to the 21 Arizona Court of Appeals, the only dispute seems to be whether he was 22 required to do so on direct appeal or be forever barred from relief [and] 23 review by this Court.”). Petitioner’s objection to the Magistrate Judge’s 24 conclusion that he brought these claims “in an ‘improper forum’ or … in 25 an ‘improper vehicle’” is rejected. (Obj. at 4.) Petitioner’s failure to 26 raise Claims 1 and 2 on direct appeal resulted in their preclusion in 27 post-conviction proceedings; he is therefore left with no remedy in state 28 3 court to render a judgment on these claims and found them 1 court. See Ariz. R. Crim. P. 32.2(a)(3). Thus, the Magistrate Judge had 2 no choice but to find the claims defaulted by Petitioner’s failure to 3 properly present them in state court. The Magistrate Judge properly 4 relied on LaFlamme v. Hubbard, 225 F.3d 663 (9th Cir. 2000), to support 5 her conclusion that a competency claim may be procedurally defaulted.1 6 (Obj. 7 misplaced. Here, the Magistrate Judge properly found that Petitioner’s 8 claims were procedurally defaulted because he failed to properly present 9 them in the state courts. Contrary to Petitioner’s arguments, the state 10 procedural bar, Rule 32.2(a)(3), is adequate to bar review of this claim. 11 Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014) (“Arizona Rule of 12 Criminal 13 consistently followed.”). 14 procedural bar with waiver. Hence, this Objection is overruled. 15 -Claim 5, Confrontation Clause 16 at 9.) Petitioner’s Procedure ongoing 32.2(a)(3) objections has been based firmly on waiver established are and Petitioner confuses the application of a Petitioner objects to the R&R’s finding that Claim 5 was not 17 exhausted. 18 admission of his out-of-court statements, in which he denied assaulting 19 the victim, violated his Sixth Amendment Confrontation Clause rights. 20 (Amended Petition, Claim 5: “The trial court admitted hearsay testimony 21 over 22 Confrontation Clause.” Petitioner Petitioner’s asserted objections in in Claim 5 violation that of the the trial Sixth court’s Amendment (Doc. 2 at 60.)). 23 24 25 26 1 Federal circuit courts have disagreed over whether a substantive mental competency claim can be procedurally defaulted at all. § 9B:48, Mental Competency Claims, Federal Habeas Manual (May 2017). The majority of circuits, however, have concluded that substantive mental competency claims can be defaulted. Id. 27 28 4 1 The Magistrate’ R&R states, as follows: 2 7 Thus, with respect to the Sixth Amendment Confrontation Clause claim asserted in Ground Five of Weeks’s habeas petition, the Arizona Court of Appeals finding of waiver and abandonment in violation of Arizona Rule of Criminal Procedure 31.13(c)(1)(vi) is independent and adequate, and the claim is not subject to review. See Coleman v. Thompson, 501 U.S. 722, 728, (1991) (federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.”). 8 (Doc. 20 at 10-11.)The Magistrate Judge found the Sixth Amendment claim 9 precluded. 3 4 5 6 The Magistrate Judge properly found Petitioner’s Sixth 10 Amendment claim procedurally defaulted based on the state court’s finding 11 that the claim was waived under state law. Objections going to the Sixth 12 Amendment are overruled as the claim is precluded. 13 -Claim 5, Fourteenth Amendment Due Process of Law 14 The trial court admitted testimony from a police officer regarding 15 Petitioner’s out-of-court statements denying that he had assaulted his 16 girlfriend. (Amended Petition at 60-66.) The objection during trial was 17 solely based on hearsay (not the Confrontation Clause or Fourteenth 18 Amendment)2. The Arizona Court of Appeals reviewed Petitioner’s Fourteenth 19 Amendment claim for fundamental, prejudicial error because he failed to 20 preserve 21 32.)Petitioner properly exhausted this claim (as to fundamental error 22 only) by presenting it to the Arizona Court of Appeals. the claim by raising it in the trial court. (Obj. at 23 Respondents stipulated that Petitioner’s Fourteenth Amendment claim, 24 as to fundamental error only, was not procedurally defaulted. Respondents 25 argue that the claim may be denied as lacking merit. Respondents argue 26 27 28 2 Here, it was Petitioner’s own statements that were admitted. 5 1 that there is no problem with the admission of a statement by a party- 2 opponent as non-hearsay. 3 (1974). Although Petitioner's argument is not entirely clear, he appears 4 to assert that because he could not have elicited his own out-of-court 5 statements from witnesses, Rule 801(d)(2) was unfairly applied here. Rule 6 801(d)(2)(A) provides that a statement is not hearsay if it is offered 7 against a party and is his own statement, made in his individual 8 capacity. Petitioner's statements to the police satisfy the facial 9 requirements of the rule. The cases disagree that statements are not 10 admissions because they are neither exculpatory or inculpatory. For a 11 Petitioner's statement to be an admission, “it is not necessary to show 12 that the statement was against the interest of the party at the time it 13 was made.” 14 Practice: Law of Evidence § 125, at 255 (3d ed. 1991). Rather, “[t]he 15 only limitation, in short, to the use of an opposing party's words is the 16 rule of relevance.” Id. at 257. A criminal suspect's statements about his 17 activities on the day of an alleged crime are relevant. The only 18 remaining limitation on the admissibility of Petitioner's statements was 19 the 20 substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 21 403. The statement was allowed in by the trial court, with no objection 22 based on the Fourteenth Amendment. The Arizona Court of Appeals would 23 then have only reviewed this claim for fundamental, prejudicial error. 24 Petitioner does not dispute that he failed to argue on appeal that any 25 error in the admission of his out of court statements resulted in 26 fundamental, prejudicial error, rendering this claim waived. Here, this 27 claim lacks merit. 28 United States v. Matlock, 415 U.S. 164, 172 M. Udall, J. Livermore, P. Escher, & G. McIlvain, Arizona possibility that the probative 6 value of the statements was 1 -Claim 3: Ineffective Assistance of Counsel 2 Here, the Magistrate Judge 3 Washington was not 4 found that Strickland v. unspecific Objection is overruled. 5 properly -Claim 4: Double Jeopardy unreasonably applied. (R&R at 17.) This vague, 6 Here, the Magistrate Judge properly concluded that the state court 7 decision was not contrary to, nor an unreasonable application of, clearly 8 established federal law. United States v. Lopez-Avila, 678 F.3d 955, 962 9 (9th Cir. 2012) 10 (R&R at 23.) This Objection is overruled. -Claim 6: Right to Remain Silent 11 The Magistrate Judge properly concluded that Harrison v. United 12 States, 392 U.S. 219 (1968), does not offer Petitioner relief on this 13 claim. (Obj. at 45; R&R at 25.) Clearly established law provides that 14 only the introduction of wrongfully obtained evidence can result in a 15 finding that the Petitioner’s subsequent testimony was compelled in 16 violation of the Fifth Amendment. See United States v. Mortensen, 860 17 F.2d 948, 951 (9th Cir. 1988). Because Petitioner did not assert that his 18 earlier out-of-court statements were illegally obtained, the Magistrate 19 Judge 20 statements were not improperly admitted. Petitioner agrees that “[t]he 21 resolution of this Claim rests on the determination that the evidence 22 discussed in Claim 5 was wrongly admitted, thereby compelling [him] to 23 testify.” (Obj. at 46.) The state court found the statements were 24 properly admitted under state law and that Petitioner defaulted his claim 25 that the admission of his statements violated the Confrontation Clause. 26 Therefore, the Magistrate Judge properly rejected Petitioner’s claim that properly denied relief. Further, 27 28 7 Petitioner’s out-of-court 1 he was compelled to testify by the admission of his earlier out of court 2 statements. Objection overruled. 3 -Claim 7: Right to a jury trial 4 The Magistrate properly found that this claim lacks merit. Under 5 the current applicable law, a jury is not required to find the absence 6 of mitigating factors. The state’s determination was not contrary to any 7 clearly 8 overruled. 9 -Claim 8: Sufficiency of the Evidence established federal law. Consequently, this objection is 10 In considering a claim of insufficiency of the evidence, a court 11 does not “ask itself whether it believes that the evidence at the trial 12 established guilt beyond a reasonable doubt. Instead, the relevant 13 question is whether, after viewing the evidence in the light most 14 favorable to the prosecution, any rational trier of fact could have found 15 the essential elements of the crime beyond a reasonable doubt.” Jackson 16 v. Virginia, 443 U.S. 307, 318–19 (1979) (internal citation omitted). 17 While Petitioner asserts that the victim’s account lacked credibility and 18 that “[s]he had a powerful motive to perjure herself” (Obj. at 50), the 19 jury concluded otherwise after considering “the testimony of Weeks, that 20 of his victim, and the physical evidence that corroborated her story.” 21 (R&R at 31.) The Magistrate Judge properly found that the Arizona Court 22 of Appeals’ conclusion that Petitioner’s convictions are supported by 23 sufficient evidence is not an unreasonable application of Jackson. (Id.) 24 This claim is likewise overruled. 25 -Claim 9: Aggravating factor 26 Because the jury’s unanimous verdict finding the aggravating 27 circumstance of “physical, emotional, or financial harm” to the victim, 28 8 1 A.R.S. §13-701(D)(9)(current), is supported by evidence in the record 2 establishing each type of harm, the Magistrate Judge properly held that 3 the Arizona Court of Appeals’ resolution of this claim was a “reasonable 4 application of federal law.” (R&R at 35.) The Magistrate Judge further 5 held 6 resolution of this claim was harmless under Brecht v. Abrahamson, 507 7 U.S. 619 (1993). This Objection is overruled. that any claimed constitutional error in the state court’s 8 CONCLUSION 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. 20) in its entirety. 12 Petitioner are OVERRULED. The Objections (Doc. 24) raised by the 13 IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas 14 Corpus (Doc. 2) is DENIED and this action is DISMISSED with prejudice. 15 The Clerk’s Office should enter a Final Judgment separately. 16 IT IS FURTHER ORDERED that a Certificate of Appealability and leave 17 to proceed in forma pauperis on appeal are DENIED on all claims but for 18 Claims 1 and 2 as these claims involve whether a substantive mental 19 competency claim can ever be procedurally defaulted, because reasonable 20 jurists could find the ruling debatable. 21 DATED this 16th day of October, 2017. 22 23 24 25 26 27 28 9

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