Hidde v. Wrigley

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Jordan Lane Hidde, No. CV-20-02099-PHX-JAT 10 Petitioner, ORDER 11 v. 12 Unknown Wrigley, et al., 13 Respondents. [14] 15 Pending before this Court is Petitioner’s Petition for Writ of Habeas Corpus. After 16 referral, Magistrate Judge Morrissey issued a Report and Recommendation (“R&R”) (Doc. 17 20) recommending that the Petition in this case be denied. Petitioner filed objections to 18 the R&R (Doc. 22), and Respondent filed a response to the objections (Doc. 24). 19 While this case was pending, Petitioner was released from custody. For this Court 20 to have jurisdiction over a habeas petition and for the petition to not be moot, Petitioner 21 must be “in custody”. (See Docs. 27 and 29). Thus, the Court required supplemental 22 briefing on these issues. (Id.). Respondents concede that the Petition is not moot and that 23 the Court has jurisdiction over this case. (Doc. 31). Accordingly, the Court will consider 24 the recommendations in the R&R. 25 I. Governing Law 26 This Court “may accept, reject, or modify, in whole or in part, the findings or 27 recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). It is “clear that 28 the district judge must review the magistrate judge’s findings and recommendations de 1 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 2 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 3 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 4 de novo review of factual and legal issues is required if objections are made, ‘but not 5 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 6 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 7 [Magistrate Judge’s] recommendations to which the parties object.”). District courts are 8 not required to conduct “any review at all . . . of any issue that is not the subject of an 9 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636 (b)(1) (“the 10 court shall make a de novo determination of those portions of the [report and 11 recommendation] to which objection is made.”). 12 Thus, the Court will review the portions of the R&R to which there is an objection 13 de novo. 14 The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner was 15 incarcerated based on a state conviction. With respect to any claims that Petitioner 16 exhausted before the state courts, under 28 U.S.C. §§ 2254 (d)(1) and (2) this Court must 17 deny the Petition on those claims unless “a state court decision is contrary to, or involved 18 an unreasonable application of, clearly established Federal law” or was based on an 19 unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 20 Further, this Court must presume the correctness of the state court’s factual findings 21 regarding a petitioner’s claims. 28 U.S.C. § 2254 (e)(1). Additionally, “[a]n application for 22 a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the 23 applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 24 2254(b)(2). 25 To determine whether a state court ruling was “contrary to” or involved an “unreasonable application” of federal law, courts look 26 exclusively to the 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 27 court’s decision is “contrary to” federal law if it applies a rule of law “that 28 - 2 - 1 contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a decision 2 of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent.” Mitchell v. Esparza, 540 U.S. 12, 14 (2003) 3 (citations omitted). A state court decision is an “unreasonable application of” federal law if the court identifies the correct legal rule, but unreasonably 4 applies that rule to the facts of a particular case. Brown v. Payton, 544 U.S. 133, 141 (2005). “A state court’s determination that a claim lacks merit 5 precludes federal habeas relief so long as ‘fairminded jurists could disagree on the correctness of the state court’s decision.’” Richter, 562 U.S. at 101, 6 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 7 Amaral v. Ryan, No. CV16-00594-PHX-JAT-BSB, 2018 WL 6931889 , at *5 (D. Ariz. 8 June 26, 2018) (Report and Recommendation accepted 2018 WL 6695951 , at *1 (D. Ariz. 9 Dec. 20, 2018)). 10 An unreasonable application of law must be “objectively unreasonable, not merely 11 wrong; even clear error will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) 12 (internal quotation marks and citation omitted). A petitioner must show that the state 13 court’s ruling was “so lacking in justification that there was an error well understood and 14 comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 15 419–20 (citation omitted). 16 II. Factual and Procedural Background 17 The R&R recounts the factual and procedural background of this case at 2–4. (Doc. 18 20). Petitioner objected to the legal consequences of this background; specifically, whether 19 his filings with the state courts were sufficient to exhaust the claims he now raises in his 20 Petition. The Court will address those legal objections below. Neither party, however, 21 objected to the factual accuracy of this background and the Court hereby accepts and adopts 22 it. 23 In short summary, Petitioner was convicted by a jury of two counts of aggravated 24 assault and sentenced by a judge to two concurrent terms of 7.5 years. (Doc. 20 at 3). This 25 sentence resulted from Petitioner shooting an AR-15 rifle multiple times at a vehicle 26 containing 3 teenagers, wounding one of them. (Doc. 20 at 2). [27] 28 - 3 - 1 III. Claims in the Petition 2 Petitioner raises three claims in his Petition: 1) mishandling of evidence; 2) 3 ineffective assistance of appellate counsel; and 3) ineffective assistance of trial counsel. 4 A. Claim of Mishandling of Evidence 5 The R&R recommends that this Court find that Petitioner failed to exhaust this claim 6 before the state courts, that this claim is now procedurally defaulted, and that Petitioner has 7 failed to show cause and prejudice or a fundamental miscarriage of justice to overcome his 8 failure to exhaust this claim. Petitioner objects to this recommendation arguing that by 9 arguing ineffective assistance of counsel to the state court on post-conviction relief for his 10 counsel’s failure to exhaust this claim at trial and/or on appeal, Petitioner de facto 11 exhausted this claim as part of his ineffective assistance of counsel claim. Petition also 12 argues this Court’s failure to consider the merits of this claim would be a fundamental 13 miscarriage of justice. 14 In sum, Petitioner’s claim is that the police failed to conduct a forensic analysis of 15 the pellet gun found in the victims’ vehicle and it is possible that such analysis would have 16 shown that the victim who was shot had handled the pellet gun, which Petitioner argues 17 would have helped Petitioner’s self-defense claim in which Petitioner argued that the 18 wounded victim brandished the pellet gun at him. (Doc. 20 at 7–8). 19 At trial, Petitioner sought a Willets instruction. (Doc. 20 at 8). This Court agrees 20 with the R&R (and the cases cited therein) that the state court’s denial of a Willets 21 instruction is a state law claim that is not cognizable on habeas. (Doc. 20 at 8). Petitioner 22 objects to this conclusion by arguing that the fact that he is in custody (which was true 23 when he filed his objections, but not today) makes all his claims cognizable. (Doc. 22 at 24 4). This objection is legally incorrect and is overruled. 25 Additionally, this Court agrees with the R&R that Petitioner did not present this 26 claim to the state courts as a federal due process claim. (Doc. 20 at 8-9). Petitioner objects 27 and argue that he presented this claim to the state courts as an ineffective assistance of 28 - 4 - 1 counsel claim. (Doc. 22 at 4–5, 7). But as the R&R discussed at length, presenting an 2 ineffective assistance of counsel claim does not exhaust the underlying claim itself which 3 must be separately and specifically presented to the state court because it is a distinct claim 4 with separate elements of proof. (Doc. 20 at 8-10). Thus, this claim is unexhausted and 5 procedurally defaulted. 6 Petitioner also objects and argues that it would be a “fundamental miscarriage of 7 justice” for this Court to not review this claim on a procedural technicality. (Doc. 22 at 58 6). Petitioner further states that justice requires that his failure to exhaust this claim be 9 excused. (Id.) However, in the habeas context “fundamental miscarriage of justice” has a 10 unique meaning. Murray v. Carrier, 477 U.S. 478 , 495–96 (1986). A fundamental 11 miscarriage of justice occurs only when a Constitutional violation has probably resulted in 12 the conviction of one who is actually innocent. Id. 13 Here, Petitioner does not argue he is actually innocent beyond arguing that the jury 14 should have acquitted him based on his self-defense arguments. Thus, Petitioner fails to 15 meet the fundamental miscarriage of justice test that would excuse his procedural default 16 of this claim. 17 As a result of the foregoing, the Court finds that this claim, which is presented to 18 this Court as a due process claim, is defaulted without excuse. Accordingly, relief is 19 denied. 20 B. Ineffective Assistance of Appellate Counsel 21 In his post-conviction relief petition in state court, Petitioner exhausted an 22 ineffective assistance of appellate counsel claim regarding three theories of prosecutorial 23 misconduct that Petitioner claims appellate counsel should have raised on appeal. The 24 three theories of prosecutorial misconduct involve: 1) testimony regarding the ammunition; 25 2) testimony regarding alcohol and pain killers; and 3) testimony regarding another 26 altercation involving Petitioner.1 27 1 In his Petition, Petitioner also raises a Brady claim. However, in his objections, Petitioner 28 - 5 - 1 The Arizona Court of Appeals denied relief on the claim of ineffective assistance of 2 appellate counsel based on these three factual predicates. The R&R recommends that this 3 Court find that the Arizona Court of Appeals decision was not contrary to or an 4 unreasonable application of clearly established federal law, nor was it an unreasonable 5 determination of the facts. (Doc. 20 at 11). Petitioner objects to this recommendation. 6 The R&R discusses the law governing ineffective assistance of counsel under 7 Strickland v. Washington, 466 U.S. 668, 685 (1984) at pages 11–12. (Doc. 20). Neither 8 party objected to this summary of the governing, clearly established law and the Court 9 hereby accepts and adopts it. 10 1. Testimony Regarding Ammunition 11 Petitioner argues that the prosecutor elicited “false or misleading” testimony that 12 the ammunition in this case was “military grade”. (Doc. 20 at 12). In his petition for post13 conviction relief before the state courts, Petitioner argued that his direct appeal counsel 14 was ineffective for failing to raise this claim on direct appeal. (Doc. 20 at 10). The Arizona 15 Court of Appeals (reviewing the state trial court’s denial of Petitioner’s post-conviction 16 relief petition) rejected this claim because there was no evidence in the record that the 17 witness’s testimony was false. (Id.). Thus, the Arizona Court of Appeals concluded that 18 direct appeal counsel was not ineffective for not raising a meritless claim. (Id.) 19 In his objections, Petitioner seeks an evidentiary hearing to offer new evidence and 20 have this Court make a de novo determination of whether the ammunition was or was not 21 military grade. (Doc. 22 at 10). However, as the R&R notes, under Cullen v. Pinholster, [22] 563 U.S. 170, 181 (2011), “review under § 2254(d)(1) is limited to the record that was 23 before the state court that adjudicated the claim on the merits.” (Doc. 20 at 12, n. 11 24 quoting Pinholster). Thus, the Court will not conduct an evidentiary hearing to make a de [25] concedes that a Brady claim is without merit. (Doc. 22 at 15). To the extent the Court [26] could interpret the objections as Petitioner attempting to re-cast this claim as a confrontation clause based claim, this Court rejects this claim for the reasons stated in the [27] response to the objections. (See Doc. 24 at 4-5). 28 - 6 - 1 novo determination of the facts of a claim that was adjudicated on the merits in state court. 2 As a result, Petitioner’s objection on this claim is overruled. The Court agrees with 3 the R&R and finds that the Arizona Court of Appeals decision on Petitioner’s post4 conviction relief petition was not contrary to or an unreasonable application of clearly 5 established federal law, nor was it an unreasonable determination of the facts; accordingly, 6 relief on this claim of ineffective assistance of appellate counsel is denied. (See Doc. 20 at 7 11). 8 Alternatively, this Court accepts the conclusion of the R&R that had appellate 9 counsel raised this claim on direct appeal before the state courts, Petitioner cannot show 10 prejudice under Strickland because of the strength of the evidence against him. (Doc. 20 11 at 13-14). Thus, relief is denied for this alternative reason. 12 2. Testimony Regarding Alcohol and Pain Medication 13 Petitioner argues that his appellate counsel was ineffective because appellate 14 counsel failed to argue that the trial court should have excluded evidence of Petitioner’s 15 use of alcohol and pain medication at the time of this incident. (Doc. 20 at 14). As the 16 R&R recounts, appellate counsel in fact made this argument on direct appeal. (Id.). None 17 of Petitioner’s objections refute this fact. (See generally Doc. 22). Thus, this Court accepts 18 the R&R’s conclusion that this claim is meritless because it is factually refuted by the state 19 court record. 20 3. Testimony Regarding Petitioner’s Other Acts 21 Petitioner argues that his direct appeal counsel was ineffective for failing to argue 22 that the prosecutor “improperly” questioned Petitioner’s character witness about a prior 23 incident involving Petitioner that had been documented in a police report. (Doc. 20 at 14). 24 In reviewing the trial court’s denial of Petitioner’s petition for post-conviction relief, the 25 Arizona Court of Appeals held that this testimony was admissible under Arizona Rule of 26 Evidence 405(a). (Doc. 9-1 at 222, ¶ 9). 27 The Arizona Court of Appeals decision was not contrary to or an unreasonable 28 - 7 - 1 application of clearly established federal law nor was it an unreasonable determination of 2 the facts. Specifically, “A witness who has endorsed the character of the defendant may 3 be cross-examined about whether he’s heard about prior bad acts of the defendant.” United 4 States v. Bush, 58 F.3d 482 , 488–89 (9th Cir. 1995) (citing Michelson v. United States, 335 5 U.S. 469, 479 (1948)). Petitioner’s generalized objection in which he concludes without 6 argument that the Arizona Court of Appeals decision is incorrect is overruled. (See Doc. 7 22 at 14). Thus, relief on this claim is denied. 8 C. Ineffective Assistance of Trial Counsel 9 Petitioner has three theories of ineffective assistance of trial counsel all related to 10 the jury instructions in his trial. These claims are: 1) Petitioner’s lack of presence when 11 the jury instructions were decided by the trial court; 2) trial counsel’s decision to decline a 12 limiting instruction about certain testimony; and 3) trial counsel’s failure to advocate for a 13 particular self-defense instruction over another. The R&R recommends that this Court find 14 that theories one and three of ineffective assistance of trial counsel are unexhausted and 15 procedurally defaulted without excuse, and that this Court deny relief on that basis. The 16 R&R further recommends that this Court find that theory two was exhausted and that the 17 Arizona Court of Appeals decision on this theory was not contrary to or an unreasonable 18 application of clearly established federal law, nor was the decision based on an 19 unreasonable determination of the facts. Petitioner objects to both of these 20 recommendations. 21 As indicated above, the Court has accepted the R&R’s summary of the law 22 governing ineffective assistance of counsel. (Doc. 20 at 11–12). 23 Turning first to Petitioner’s objection to his counsel’s failure to seek a limiting 24 instruction, Petitioner argues that a limiting instruction was ineffectively waived. (Doc. 22 25 at 12). However, this Court agrees with the R&R that the Arizona Court of Appeals 26 decision that counsel’s tactic was a reasonable strategic decision was not contrary to or an 27 unreasonable application of clearly established federal law. (Doc. 20 at 17). Further, this 28 - 8 - 1 Court agrees that reasonable strategic decisions are not ineffective assistance. Thus, relief 2 on this claim is denied and Petitioner’s objection that counsel should have made a different 3 decision is overruled. 4 Regarding Petitioner’s first theory of ineffective assistance of trial counsel, the R&R 5 concludes that Petitioner’s claim that he should have been present for the settling of jury 6 instructions is unexhausted, procedurally defaulted, and that Petitioner has not shown cause 7 and prejudice or a fundamental miscarriage of justice to overcome this default. (Doc. 20 8 at 17). Petitioner objects and argues that he has a right to self-representation under Faretta 9 v. California, 422 U.S. 806 (1975). While a right to self-representation exists, it is not 10 implicated in this case. Petitioner was represented by counsel and never objected to being 11 represented by counsel. Thus, Petitioner’s objection that he had a right to be present during 12 the settling of jury instructions pursuant to Faretta is overruled. See 28 U.S.C. § 2254 (b)(2) 13 (court can deny a claim on the merits even though Petitioner failed to exhaust the claim in 14 state court); see also (Doc. 24 at 5). 15 Moreover, “[t]here is no constitutional right to be present at a conference on jury 16 instructions… [a] defendant does not have a federal constitutional…right to attend a 17 conference between the trial court and counsel concerned with the purely legal matter of 18 determining what jury instructions the trial court will issue.” Keenan v. Woodford, 66 F. 19 App’x 101, 102 (9th Cir. 2003) (internal citations and quotations omitted). While this case 20 of the Ninth Circuit is unpublished, it nonetheless summarizes the clearly established law 21 on this point. Thus, notwithstanding the fact that this claim is unexhausted, the Court 22 alternatively denies it on the merits. See 28 U.S.C. § 2254 (b)(2). 23 Finally, with respect to Petitioner’s claim that trial counsel was ineffective for 24 allowing the trial court to select the wrong self-defense instruction, the R&R recommends 25 that this Court find that this claim is unexhausted, procedurally defaulted, and that 26 Petitioner has not shown cause and prejudice or a fundamental miscarriage of justice to 27 overcome this default. (Doc. 20 at 18). Petitioner objects and argues that one self-defense 28 - 9 - 1 instruction is far easier for a defendant to prove than the other. (Doc. 22 at 17-19). 2 Specifically, A.R.S. § 13–404 is Justification; self-defense; while A.R.S. § 13–405 is 3 Justification; use of deadly physical force. (Doc. 22 at 18). Petitioner wanted the 4 instruction under A.R.S. § 13–404, but received the instruction under A.R.S. § 13–405. 5 (Id.). 6 First, Petitioner makes no objection or argument that this claim is not exhausted, 7 without excuse. Thus, this Court cannot reach the merits of this argument and relief is 8 denied on that basis. Second, which instruction would be appropriate is a matter of state 9 law and is not a claim that is cognizable on habeas; thus, relief is denied on this alternative 10 basis. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have stated many times 11 that federal habeas corpus relief does not lie for errors of state law.”) (quotation marks and 12 citations omitted). Third, the facts underlying this case are that Petitioner shot at the 13 victims with an AR-15 rifle, wounding one of them. (Doc. 20 at 13). Thus, even if this 14 Court considered the merits of this state law issue, this Court would deny relief because 15 the state trial court did not err in using the instruction specific to deadly force on these 16 facts. See 28 U.S.C. § 2254 (b)(2). 17 Because all unexhausted claims of ineffective assistance of trial counsel fail on their 18 merits, the Court finds they are not substantial under Martinez v. Ryan, 566 U.S. 1 (2012). 19 The Court, therefore, does not find cause and prejudice to overcome the procedural default 20 of these ineffective assistance of trial counsel claims under Martinez. 21 IV. Certificate of Appealability 22 In his objections, Petitioner asks that he “at the very least” be granted a certificate 23 of appealability to proceed to the Ninth Circuit Court of Appeals. (Doc. 22 at 5-6). The 24 Court interprets this as an objection to the R&R’s recommendation that a certificate of 25 appealability be denied. (Doc. 20 at 18-19). “When the district court denies a habeas 26 petition on procedural grounds without reaching the [Petitioner’s] underlying 27 constitutional claim, a COA should issue when the [Petitioner] shows, at least, that jurists 28 - 10 - 1 || of reason would find it debatable whether the petition states a valid claim of the denial of 2 || aconstitutional right and that jurists of reason would find it debatable whether the district 3 || court was correct in its procedural ruling.” Slack vy. McDaniel, 529 U.S. 473, 484 (2000). 4|| “Where a district court has rejected the constitutional claims on the merits, the showing || required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that || reasonable jurists would find the district court’s assessment of the constitutional claims || debatable or wrong.” Jd. Here, Petitioner has failed to show that jurists of reason would 8 || find this Court’s assessment of the claims in this case debatable. As a result, Petitioner’s || objection is overruled and a certificate of appealability is denied. V. Conclusion 11 Based on the foregoing, 12 IT IS ORDERED that the Motion to Strike (Doc. 30) is denied; the Court has 13} reviewed the relevant portions of Petitioner’s filings. 14 IT IS FURTHER ORDERED that the Report and Recommendation is accepted 15 || (Doc. 20); the Objections are overruled (Doc. 22); the Petition is denied and dismissed with 16 || prejudice and the Clerk of the Court shall enter judgment accordingly. 17 IT IS FURTHER ORDERED that Petitioner’s motions for summary judgment and 18 || additional pleadings (Docs. 13 and 14) are denied as moot. 19 IT IS FURTHER ORDERED that David Shinn, Director of the Arizona 20 || Department of Corrections, is substituted as a party in place of Defendant Unknown || Wrigley. 22 IT IS FINALLY ORDERED that a certificate of appealability is denied. 23 Dated this 8th day of March, 2022. [25] _ James A. Teil Org Senior United States District Judge [27] 28 -ll-