Mediz 153189 v. Shinn

[5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Scott Michael Mediz, No. CV-17-00407-TUC-RM 10 Petitioner, ORDER 11 v. 12 Attorney General of the State of Arizona, et al., [13] Respondents. [14] 15 On August 7, 2019, Magistrate Judge Eric J. Markovich issued a Report and 16 Recommendation (“R&R”) recommending that this Court dismiss Petitioner Scott 17 Mediz’s Petition for Writ of Habeas Corpus brought under 28 U.S.C. § 2254 . (Doc. 28). 18 Petitioner Mediz filed Objections to the R&R (Doc. 29), and the Government responded 19 (Doc. 30). For the following reasons, Petitioner’s Objections will be overruled, the R&R 20 will be adopted in full, and the Petition (Doc. 28) will be dismissed. 21 I. Standard of Review 22 A district judge “may accept, reject, or modify, in whole or in part,” a magistrate 23 judge’s proposed findings and recommendations. 28 U.S.C. § 636 (b)(1). The district 24 judge must “make a de novo determination of those portions” of a magistrate judge’s 25 “report or specified proposed findings or recommendations to which objection is made.” [26] 28 U.S.C. § 636 (b)(1). The advisory committee’s notes to Rule 72(b) of the Federal 27 Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need 28 only satisfy itself that there is no clear error on the face of the record in order to accept 1 the recommendation” of a magistrate judge. Fed. R. Civ. P. 72(b) advisory committee’s 2 note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734 , 739 (7th Cir. 3 1999) (“If no objection or only partial objection is made, the district court judge reviews 4 those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 5 WL 1344286 , at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to 6 portions of Report and Recommendation). 7 II. Background 8 A. Factual and Procedural Background 9 Petitioner was found guilty of kidnapping and first-degree murder by a jury in 10 Pima County Superior Court. (Doc. 10, Ex. L.) Petitioner was sentenced to natural life in 11 prison on the first-degree murder charge and a concurrent 15.75-year term for the 12 kidnapping charge. (Doc. 10, Ex. S.) The convictions were based on evidence that 13 Petitioner lured his victim to his house, severely beat him, wrapped him in a sheet and 14 placed him in the back of a hatchback, and that the victim died as a result of the beating 15 and asphyxiation from being in the back of the vehicle. (Doc. 10, Exs. F, G, H.) 16 After Petitioner was convicted, his trial counsel, Joel Feinman, filed a Motion to 17 Vacate Judgment. (Doc. 10, Ex. T.) Petitioner argued that he had newly-discovered 18 evidence in the form of an affidavit from a prisoner named Darren Goldin. (Id.) The 19 affidavit alleged that Goldin overheard fellow-prisoners Christopher Brugada and Alvin 20 McBridge conspiring to coordinate testimony adverse to Petitioner. (Doc. 10, Exs. U, V.) 21 The trial court held a hearing on Petitioner’s Motion and ultimately denied it on July 5, 22 2013. (Doc. 10, Exs. CC, DD.) The court found that Goldin’s allegation was not newly 23 discovered and would not have been sufficient to undermine the jury’s verdict even if it 24 had been newly discovered. (Doc. 10, Exs. Z, CC, DD.) 25 Petitioner sought review in the Arizona Court of Appeals. (Doc. 10, Ex. EE.) First, 26 Petitioner argued that the trial court erred by failing to preclude photographs of 27 Petitioner’s “White Power” and other racist tattoos, and that the introduction of these 28 photographs was prejudicial. (Id.) Second, Petitioner argued that the trial court abused its 1 discretion by failing to grant Petitioner’s Motion to Vacate on the basis of the Goldin 2 affidavit. (Id.) The Court of Appeals affirmed Petitioner’s conviction. (Doc. 10, Ex. HH.) 3 The Arizona Supreme Court denied review on April 21, 2015. (Doc. 22, Ex. 4.) 4 On May 14, 2015 Petitioner filed a Petition for Post-Conviction Relief (“PCR”) 5 under Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 10, Ex. II.) Petitioner 6 argued that his trial counsel provided ineffective assistance of counsel by failing to seek a 7 court order to depose or timely request to take the deposition of inmate Goldin. (Doc. 10, 8 Ex. JJ.) The trial court denied the PCR. (Doc. 10, Ex. MM.) The Arizona Court of 9 Appeals granted review but denied relief (Doc. 10, Exs. NN, PP), and the Arizona 10 Supreme Court denied review on September 30, 2016. (Doc. 22, Exs. 10, 11). 11 B. The Petition 12 Petitioner filed his Amended Petition for Writ of Habeas Corpus on March 23, 13 2018. (Doc. 22.) Petitioner raised two claims of ineffective assistance of counsel (“IAC”). 14 (Id.) First, he alleged trial counsel provided IAC by failing to ensure that the state was 15 precluded from introducing photographs of Petitioner’s racist tattoos at trial (“Claim 16 1A”). (Id.) Second, he alleged trial counsel provided IAC by failing to investigate what 17 inmate Darren Goldin reported about other inmates allegedly colluding with each other to 18 testify against Petitioner (“Claim 1B”). (Id.) Petitioner also raised a claim that the trial 19 court failed to preserve Petitioner’s due process rights when it denied Petitioner’s Motion 20 to Vacate Judgment without granting a hearing (“Claim 2”). (Id.) 21 C. The R&R 22 Magistrate Judge Markovich found that Claim 1A and Claim 2 were procedurally 23 defaulted and barred from habeas review. (Doc. 28.) Judge Markovich also found that 24 Petitioner did not demonstrate cause and prejudice or a fundamental miscarriage of 25 justice to excuse the procedural default of his claims. (Id.) Judge Markovich addressed 26 Petitioner’s Claim 1B on the merits and found Petitioner could show neither that his 27 attorney rendered deficient performance, nor that Petitioner was prejudiced by any IAC. 28 (Id.) 1 D. Petitioner’s Objections 2 Petitioner objects that Claim 1A and Claim 2 are not procedurally defaulted. (Doc. 3 29.) Petitioner argues that Claim 1A, which alleges that Petitioner’s trial counsel 4 provided IAC by not preserving an objection to the introduction of pictures of 5 Petitioner’s tattoos, is not procedurally defaulted because the issue was in fact raised on 6 direct appeal. (Id.) Petitioner argues that Judge Markovich erred in finding that Claim 1B 7 failed on the merits. (Id.) Finally, Petitioner argues that Claim 2 is not procedurally 8 defaulted. 9 III. Discussion 10 A. Ineffective Assistance Claims 11 1. Claim 1A – Photographs of Petitioner’s Tattoos 12 Petitioner’s first IAC claim is that his trial counsel was ineffective by failing to 13 preserve an objection to the introduction of photographs of Petitioner’s “White Power” 14 and other racist tattoos. (Doc. 22.) Judge Markovich found that this claim was 15 procedurally defaulted because it was not raised in Petitioner’s Rule 32 petition for PCR. 16 (Doc. 28.) The Rule 32 petition raised only an IAC claim regarding the Goldin affidavit. 17 (Doc. 10, Ex. JJ.) Petitioner argues in his Objections that this claim was properly raised 18 on direct appeal. (Doc. 29.) A review of the record, however, makes clear that Petitioner 19 argued on appeal that the Court had erred in denying his Motion to Vacate on the basis of 20 the Goldin affidavit, but did not argue that his attorney was ineffective.1 A claim that a 21 petitioner does not first “fairly present” to the state courts is procedurally barred from 22 federal habeas review. See Baldwin v. Reese, 541 U.S. 27, 29 (2004). Petitioner failed to 23 present his IAC claim regarding photographs to the state courts. He would now be 24 precluded from doing so now by Arizona Rules of Criminal Procedure regarding 25 1 Even if Petitioner had brought his IAC claim on direct review, his claim would still be procedurally barred. Ineffective assistance of counsel claims must be brought under Rule 26 32 in Arizona rather than on direct review. See State v. Spreitz, 39 P.3d 525, 527 (Ariz. 2002). Where a state mandates a particular procedure for raising a particular claim, 27 exhaustion is not satisfied even if the petitioner raises the claim through an alternative procedures. See Kellotat, 719 F.2d 1027, 1030 (9th Cir. 1983) (holding that petitioner 28 failed to exhaust state remedies in Oregon by raising improper denial of appointment of appellate counsel on direct appeal instead of in post-conviction proceedings). 1 timeliness and preclusion. See Ariz. R. Crim. P. 32.2(a) (precluding claims not raised on 2 direct appeal or in prior post-conviction relief petitions), and 32.4(a)(3) (time bar). As 3 Petitioner did not fairly present his photograph IAC claim to the state courts, and would 4 now be precluded from doing so, the Court will adopt Judge Markovich’s 5 recommendation that this claim is procedurally barred from federal habeas review. 6 2. Claim 1B – Darren Goldin 7 Petitioner’s second IAC claim is that his trial counsel knew that a fellow prisoner, 8 Darren Goldin, claimed to have overheard two men planning to coordinate testimony 9 against Petitioner, but trial counsel did not follow-up. (Doc. 22.) Judge Markovich found 10 that Petitioner had properly exhausted his argument in the state courts and considered the 11 argument on its merits. (Doc. 28.) Judge Markovich found that Petitioner had failed to 12 carry his burden of demonstrating that the state court decisions denying Petitioner’s PCR 13 applied the two-step analysis mandated by Strickland v. Washington, 466 U.S. 668 , 68714 90 (1984) in an objectively unreasonable manner. (Id.) 15 Judge Markovich first found that Petitioner’s trial counsel’s decision not to further 16 investigate Goldin could be considered sound trial strategy rather than IAC. (Doc. 28.) 17 First, trial counsel testified that Goldin’s attorney informed him that Goldin “was 18 delusional and thinks he knows things that are not.” (Id.) Second, trial counsel was 19 reasonably concerned that Goldin could also present testimony damaging to Petitioner’s 20 case. (Id.) Third, trial counsel also explained that the information from Goldin was not 21 material to Petitioner’s defense strategy, which was to argue that Petitioner lacked the 22 requisite mens rea for first- or second-degree murder. (Id.) Judge Markovich then found 23 that, even if trial counsel had rendered deficient performance, Petitioner had failed to 24 demonstrate prejudice given the overwhelming evidence that Petitioner had committed 25 this crime. (Id.) 26 In his Objections, Petitioner argues that if Goldin’s testimony had been introduced 27 at trial, that it would have substantially undermined the State’s case against Petitioner. 28 (Doc. 29.) Petitioner also maintains that the evidence produced by Mr. Goldin “was 1 substantiated by other evidence and totally undercut the State’s case.” (Doc. 29.) 2 Petitioner also states that the Magistrate “did not consider how the evidence would have 3 impacted on the jury’s credibility determination relative to the State’s cooperating 4 witness.” (Doc. 29.) Furthermore, Petitioner argues, the Magistrate “overlooked the 5 critical fact that the victim was not dead at the time he was placed in the car’s trunk,” 6 which would have “at the very least, negated the element of premeditation, but likely 7 would have resulted with the jury considering a mental state of recklessness.” (Doc. 29.) 8 With respect to trial counsel’s alleged deficient performance, the Court adopts 9 Magistrate Judge Markovich’s conclusion that Petitioner has failed to present sufficient 10 evidence. To establish deficient performance, Petitioner must show that “counsel made 11 errors so serious . . . that counsel’s representation fell below an objective standard of 12 reasonableness . . . under prevailing professional norms.” Strickland, 466 U.S. at 687– 13 688. In considering this factor, counsel is strongly presumed to have rendered adequate 14 assistance and made all significant decisions in the exercise of reasonable professional 15 judgment. Strickland, 466 U.S. at 690 . The Ninth Circuit “h[as] explained that ‘[r]eview 16 of counsel’s performance is highly deferential and there is a strong presumption that 17 counsel’s conduct fell within the wide range of reasonable representation.’” Ortiz v. 18 Stewart, 149 F.3d 923, 932 (9th Cir. 1998), overruling on other grounds recognized by 19 Apelt v. Ryan, 878 F.3d 800, 827 (9th Cir. 2017). 20 Here, Petitioner’s trial counsel presented three plausible reasons why he did not 21 investigate Goldin. He had been informed by Goldin’s attorney that Goldin was 22 delusional; he was concerned that Goldin would make statements adverse to Petitioner; 23 and Goldin’s testimony did not support Petitioner’s defense strategy. Petitioner’s 24 Objections do not cast doubt on any of these justifications. This Court must “strongly 25 presume[]” that trial counsel rendered adequate assistance, and absent evidence to the 26 contrary, this Court cannot conclude that the state courts’ application of the Strickland 27 standard to the facts of this case was objectively unreasonable. Strickland, 466 U.S. at 28 690. 1 The Court also adopts Magistrate Judge Markovich’s conclusion that, even if trial 2 counsel had rendered deficient performance, Petitioner nonetheless failed to demonstrate 3 prejudice as required by the Strickland standard. (Doc. 28.) Even if the jury had known 4 that two witnesses were accused of colluding to falsely testify that Petitioner had the 5 intent to kill his victim and dump the body in the desert, this would be unlikely to have 6 changed the outcome because these two witnesses actually testified inconsistently with 7 each other. (Compare Doc. 10, Ex. H at 32-33 with Ex. J at 25, 68.) Moreover, the 8 credibility of each witness was already in doubt because each admitted to agreeing to 9 cooperate with Petitioner’s prosecution in order to receive leniency in their own criminal 10 cases. (Doc. 10, Ex. H at 96; Ex. J at 27, 43.) Finally, given the overwhelming 11 corroborating evidence of Petitioner’s guilt, he has not demonstrated that he could have 12 been prejudiced by any IAC. 13 Accordingly, the Court adopts Magistrate Judge Markovich’s conclusion that 14 Petitioner’s Claim 1B must be denied on its merits. 15 B. Claim 2 – Violations of Constitutional Rights by State Courts 16 Petitioner’s second ground for relief argues that the trial court violated his due 17 process rights by finding insufficient evidence to grant Petitioner’s Motion to Vacate 18 Judgment, by denying Petitioner’s PCR without holding a hearing, and by unreasonably 19 applying federal constitutional law. (Doc. 22.) Judge Markovich found that this claim 20 was procedurally defaulted because none of these federal constitutional claims were 21 fairly presented to the state courts. (Doc. 28.) Petitioner argues in his Objections that his 22 constitutional claims were properly presented to the state courts through citation to Davis 23 v. Alaska, 415 U.S 308 (1974), a case dealing with a federal constitutional claim that a 24 defendant was deprived of his right to confront witnesses. (Doc. 29.) 25 In order to “fairly present” a claim to the state courts, a petitioner must describe 26 both the operative facts and the federal legal theory to the state courts so as to give the 27 state courts an “opportunity” to correct any alleged violation of constitutional rights. See 28 Baldwin v. Reese, 541 U.S. at 29 . It is not enough that the facts are before the state courts || or that a similar state law claim is raised. Jd. Rather, a petitioner must present his “claim || in each appropriate state court . . . thereby alerting that court to the federal nature of the 3 || claim.” Jd. 4 Here, as Judge Markovich correctly found, Petitioner framed his claim as a state || law issue, arguing that the evidence he presented met the requirements for “newly 6|| discovered material facts” under Ariz. R. Crim. P. 32.1. (See Doc. 10, Ex. EE at 26.) 7\| Petitioner cited Davis v. Alaska not in support of a federal constitutional claim, but rather 8 || to support his argument that the newly discovered evidence would have changed the 9|| verdict. (/d.) Petitioner’s citation to Davis therefore did not constitute a fair presentation || of his claim sufficient to put the state courts on notice and provide them an opportunity to 11 || correct any error. As Petitioner failed to fairly present his argument to the state courts, |} Claim 2 is procedurally barred. 13 Accordingly, 14 IT IS ORDERED that Petitioner’s Objection (Doc. 29) is overruled, and Judge 15 || Markovich’s Report and Recommendation (Doc. 28) is accepted and adopted. 16 IT IS FURTHER ORDERED that Petitioner’s Amended Petition for Writ of || Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 22) is dismissed. The Clerk of Court 18 || is directed to enter judgment accordingly and close this case. 19 IT IS FURTHER ORDERED that, pursuant to Rule I1(a) of the Rules 20 || Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court’s 22 || ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 23 Dated this 26th day of February, 2020. [25] —»fr ~ 28 Honora le Ros mary M □□□□□□ United States District Jidge -8-