Sims 053411 v. Shinn

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Phillip Daniel Sims, No. CV-19-08311-PCT-JAT 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. [14] 15 Pending before this Court is Petitioner’s Petition for Writ of Habeas Corpus filed 16 pursuant to 28 U.S.C. § 2254 . The Magistrate Judge to whom this case was assigned issued 17 a Report and Recommendation (“R&R”) recommending that the Petition be denied. (Doc. 18 22). Petitioner filed objections to the R&R (Doc. 23); Respondents replied to the 19 objections (Doc. 24); and although not permitted by the rules, Petitioner filed a reply to 20 Respondents’ reply (Doc. 25). 21 I. Review of R&R 22 This Court “may accept, reject, or modify, in whole or in part, the findings or 23 recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). It is “clear that 24 the district judge must review the magistrate judge’s findings and recommendations de 25 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 26 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 27 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 28 de novo review of factual and legal issues is required if objections are made, ‘but not 1 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 2 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 3 [Magistrate Judge’s] recommendations to which the parties object.”). District courts are 4 not required to conduct “any review at all . . . of any issue that is not the subject of an 5 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. 6 § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report 7 and recommendation] to which objection is made.”). 8 II. Review of State Court Decision 9 The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is 10 incarcerated based on a state conviction. With respect to any claims that Petitioner 11 exhausted before the state courts, under 28 U.S.C. §§ 2254 (d)(1) and (2) this Court must 12 deny the Petition on those claims unless “a state court decision is contrary to, or involved 13 an unreasonable application of, clearly established Federal law” or was based on an 14 unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 15 Additionally, “[a]n application for a writ of habeas corpus may be denied on the merits, 16 notwithstanding the failure of the applicant to exhaust the remedies available in the courts 17 of the State.” 28 U.S.C. § 2254 (b)(2). 18 To determine whether a state court ruling was “contrary to” or involved an “unreasonable application” of federal law, courts look exclusively to the 19 holdings of the Supreme Court that existed at the time of the state court’s decision. Greene v. Fisher, 565 U.S. 34, 38 (2011). A state court’s decision 20 is “contrary to” federal law if it applies a rule of law “that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of 21 facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] 22 precedent.” Mitchell v. Esparza, 540 U.S. 12, 14 (2003) (citations omitted). A state court decision is an “unreasonable application of” federal law if the 23 court identifies the correct legal rule, but unreasonably applies that rule to the facts of a particular case. Brown v. Payton, 544 U.S. 133, 141 (2005). “A 24 state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree on the correctness of the 25 state court’s decision.’” Richter, 562 U.S. at 101, (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). [26] 27 Amaral v. Ryan, No. CV16-00594-PHX-JAT-BSB, 2018 WL 6931889 , at *5 (D. Ariz. 28 June 26, 2018) (Report and Recommendation accepted 2018 WL 6695951 , at *1 (D. Ariz. 1 Dec. 20, 2018)). 2 An unreasonable application of law must be “objectively unreasonable, not merely 3 wrong; even clear error will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) 4 (internal quotation marks and citation omitted). A petitioner must show that the state 5 court’s ruling was “so lacking in justification that there was an error well understood and 6 comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 7 419–20 (citation omitted). 8 III. Factual and Procedural Background 9 The R&R recounts the factual and procedural background of this case. (Doc. 22 at 10 1-3). Neither party objected to this portion of the R&R and the Court hereby accepts it. In 11 short summary, Petitioner was tried by a jury on 10 charges of sexual exploitation of a 12 minor stemming from images on Petitioner’s computer. (Doc. 22 at 1-2). Petitioner was 13 convicted and sentenced to three concurrent terms of 15.75 years on three of the charges, 14 and 7 consecutive life sentences on the remaining charges. (Id. at 2). 15 IV. Claims in the Petition 16 Petitioner raises 5 claims in his Petition. (Doc. 22). Claim 1 has 2 subparts. Claim 17 5 has 9 subparts. 18 A. Unexhausted Claims 19 As the R&R recounts, a claim must have been either exhausted in state court, or 20 Petitioner must show a basis to overcome his failure to exhaust a claim in state court before 21 this Court can reach the merits of that claim. (Doc. 22 at 4-12). Neither party objected to 22 the portion of the R&R summarizing the law and the Court hereby accepts it. 23 The R&R recommended the following conclusions regarding the exhaustion of 24 Petitioner’s claims: 25 [T]he undersigned concludes that Petitioner properly exhausted his state remedies as to: Ground 5A (investigator); and Ground 5B (witnesses on 26 identifying fakes). Petitioner had no available remedies on his claim in Ground 5I (ineffectiveness of PCR counsel). Accordingly, these claims must 27 be addressed on the merits. 28 The undersigned also concludes that Petitioner was procedurally barred on an independent and adequate state ground on his claims in: (1) 1 Ground 1A (First Amendment overbreadth); (2) Ground 2 (shifting burden of proof); (3) Ground 4 (cruel and unusual punishment)[.] [2] The undersigned further concludes that Petitioner has procedurally 3 defaulted on: (1) Ground 1B (insufficient evidence re actual children); (2) Ground 3 (denial of witnesses); (4) Grounds 5C (investigation), 5D (work 4 product), 5E (investigate images), 5F (conspiring), 5G (objection), and 5H (appellate counsel). [5] 6 (Doc. 22 at 22). 7 Neither party objected to these conclusions regarding exhaustion and the Court 8 hereby accepts them. 9 The R&R next notes that for the procedurally barred and procedurally defaulted 10 claims, Petitioner must show cause and prejudice or actual innocence to overcome the 11 failure to exhaust the claim. (Doc. 22 at 22-29). The R&R then finds that Petitioner has 12 failed to make either showing. (Id.) Thus, the R&R concludes that the unexhausted claims 13 must be dismissed with prejudice. (Id. at 28-29). Neither party objects to this portion of 14 the R&R and the Court hereby accepts it. 15 The Court notes that in his objections, Petitioner reargues the merits of many of 16 these unexhausted claims. (Doc. 23 at 4-6). However, as indicated in the R&R and above, 17 this Court cannot reach the merits of these unexhausted claims unless an excuse to 18 overcome the failure to exhaust is shown by Petitioner. Petitioner makes no objections 19 regarding his failure to exhaust. 20 Further, Petitioner poses the issue of innocence to the Court in the form of a 21 question: “Is the Petitioner innocent?” (Doc. 23 at 8). In discussing that question, 22 Petitioner make no argument that he is actually innocent. Instead, he offers certain possible 23 justifications for his behavior such as mental illness and that he did not believe the images 24 he had on his computer were illegal. (Id.). Such justifications do not equate to actual 25 innocence. Accordingly, the objections related to the unexhausted claims are overruled. 26 Relief on these claims will be denied. 27 B. Exhausted Claims 28 As stated above, the R&R found and this Court accepted that Claims 5A (trial 1 counsel failed to retain an expert to investigate whether the child pornography images 2 depicted actual children), and 5B (trial counsel failed call witnesses identifying fake 3 images) were exhausted before the state courts. As to Claim 5I (ineffectiveness of PCR 4 counsel), the R&R found and this Court accepted that Petitioner has no available state court 5 remedy. Therefore, the Court will turn to the merits of these claims. 6 As discussed above, the Court will deny relief on these claims unless the state court 7 decision was contrary to or an unreasonable application of clearly established federal law 8 or was an unreasonable determination of the facts. Lockyer, 538 U.S. at 71 . Each of these 9 exhausted claims is an ineffective assistance of counsel claim based on a different alleged 10 error by counsel. The R&R detailed the law governing ineffective assistance of counsel 11 claims (Doc. 22 at 31). Neither party objected to this summary of the law and the Court 12 hereby accepts it. Specifically, the R&R states: 13 Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to 14 prevail on such a claim, Petitioner must show: (1) deficient performance - counsel’s representation fell below the objective standard for reasonableness; 15 and (2) prejudice - there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. [16] Id. at 687-88 . Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel’s performance was 17 reasonable or that the claimed error was not prejudicial. Id. at 697 . 18 (Doc. 22 at 31). 19 1. Claim 5(A) (expert investigator) 20 The R&R summarizes this Claim as follows: trial counsel failed to retain an expert 21 to investigate whether the child pornography images depicted actual children. (Doc. 22 at 22 20). The R&R recounted the state court’s decision as: “The PCR court simply concluded 23 that because Petitioner made no proffer about what testimony would have come from an 24 expert, there was no prejudice shown, and thus rejected the claim.” (Doc. 22 at 31). The 25 R&R then concludes that the state court holding was not contrary to or an unreasonable 26 application of clear established federal law, nor was it an incorrect factual determination. 27 (Id.). Accordingly, the R&R recommends that relief on this Claim be denied. 28 Petitioner objects. (Doc. 23 at 2). He first admits that he is not an expert in the 1 authenticity of the computer images, but then states that he nonetheless believes that an 2 expert would have found something indicating the images were either manipulated or fake. 3 (Id.). Petitioner is basically making the same argument he made before the state court. 4 Specifically, he still makes no proffer of what testimony would have come from an expert; 5 he merely states what he hopes an expert might conclude. On this record, this Court agrees 6 with the state court that Petitioner has failed to show prejudice due to counsel’s failure to 7 retain an expert on this topic. Thus, the state court’s decision was not contrary to or an 8 unreasonable application of clearly established federal law nor an unreasonable 9 determination of the facts. Thus, Petitioner’s objection as to this Claim is overruled and 10 relief on this Claim will be denied. 11 2. Claim 5(B) (witnesses on fake images) 12 In this Claim, Petitioner argues that his counsel was ineffective for failing to call 13 “other” witnesses on identifying fake computer images. (Doc. 22 at 32). The R&R notes 14 that the parties treat this Claim the same as Claim 5(A). However, the R&R concludes that 15 the state court’s decision expressly discussed only “expert” not “other” witnesses. (Id.). 16 Thus, the R&R notes that the state court’s decision denied relief on this exhausted 17 Claim but did not give an explicit reason for doing so. (Id.). However, this Court cannot 18 discern who these “witnesses” could be that would not be experts. Further, in his 19 objections, Petitioner does not explain who these non-experts on identifying fake images 20 would be, such that this is a different Claim than Claim 5(A). Indeed, in his objections, 21 Petitioner calls these witnesses “other expert witnesses”. (Doc. 23 at 3). Thus, this Court 22 agrees with the R&R, the parties, and the state court, that the reasoning as to Claim 5(A) 23 applies equally to Claim 5(B). Accordingly, this Court finds that the state court’s decision 24 was not contrary to or an unreasonable application of clear established federal law or an 25 unreasonable determination of the facts. Petitioner’s objections still fail to proffer any 26 testimony that would benefit him other than his own speculation. (Doc. 23 at 3). Thus, 27 Petitioner has failed to show prejudice as required by Strickland. As a result, Petitioner’s 28 objections are overruled and relief on this Claim will be denied. 1 3. Claim 5I (post-conviction relief counsel) 2 The R&R recommends that this Court deny relief on this claim because ineffective 3 || assistance of counsel in collateral post-conviction relief proceeding cannot form the basis 4|| for habeas relief. (Doc. 22 at 33 quoting 28 U.S.C. § 2254 @)). Petitioner does not object 5 || to the R&R’s legal conclusion. (Doc. 23 at 6). Instead, Petitioner explains to the Court his 6|| argument for why his post-conviction relief counsel was ineffective. (/d.). Petitioner’s □□ factual arguments cannot overcome this legal bar to relief. Accordingly, Petitioner’s 8 || objections are overruled and relief on this claim will be denied. V. Conclusion 10 Based on the foregoing, 11 IT IS ORDERED that the R&R (Doc. 22) is accepted; Petitioner’ objections (Doc. 23) are overruled,! the Petition is denied and dismissed with prejudice and the Clerk of the 13 || Court shall enter judgment accordingly. 14 IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules Governing 15 || Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability because dismissal of the portions of the Petition is based on a 17 || plain procedural bar and jurists of reason would not find this Court’s procedural ruling debatable, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), and Petitioner has not made a 19 || substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2253 (c)(2). 20 Dated this 4th day of October, 2021. [21] 22 i C [23] James A. Teilborg 24 Senior United States District Judge [26] 27} 1 As indicated above, Petitioner filed a reply to Respondents’ reply to Petitioner’s objections, which is not authorized by the Rules. (Doc. 25). Nonetheless, the Court | reviewed Doc. 25 and finds that none of the arguments therein changes the outcome in this case. -7-