Wahl v. Shinn ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mickey Wahl, No. CV-18-00046-TUC-DCB 10 Petitioner, ORDER 11 v. 12 Charles L Ryan, et al., 13 Respondents. 14 15 This matter was referred to Magistrate Judge Jacqueline M. Rateau, pursuant to 16 Rules of Practice for the United States District Court, District of Arizona (Local Rules), 17 Rule (Civil) 72.1(a), for a Report and Recommendation (R&R). On January 19, 2021, 18 Magistrate Judge Rateau issued a R&R recommending that the Court deny the Petition for 19 Writ of Habeas Corpus (Doc. 1). The Court adopts the R&R and denies the Petition. 20 STANDARD OF REVIEW 21 The duties of the district court in connection with a R&R by a Magistrate Judge are 22 set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The 23 district court may “accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 25 636(b)(1). Where the parties object to a R&R, “‘[a] judge of the [district] court shall make 26 a de novo determination of those portions of the [R&R] to which objection is made.’” 27 Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). 28 1 This Court's ruling is a de novo determination as to those portions of the R&R to 2 which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 3 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th 4 Cir.2003) (en banc). To the extent that no objection has been made, arguments to the 5 contrary have been waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are 6 waived if they are not filed within fourteen days of service of the Report and 7 Recommendation), see also McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure 8 to object to Magistrate's report waives right to do so on appeal); Advisory Committee Notes 9 to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th 10 Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that there is 11 no clear error on the face of the record in order to accept the recommendation)). 12 The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. 13 § 636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72 (party 14 objecting to the recommended disposition has fourteen (14) days to file specific, written 15 objections). The Court has considered the objections filed by the Defendants, and the 16 parties’ briefs considered by the Magistrate Judge in deciding the motions to dismiss. 17 OBJECTIONS 18 Petitioner Wahl objects to the facts of the case as recited in the R&R “to the extent 19 they differ from the recitation of facts and issues as presented with record citations in the 20 Petition for Writ of Habeas Corpus and Supplementation.” ((Objection (Doc. 44) at 2 21 (citing Petition (Doc. 1); Exhibits #17, Supplement (Doc. 35)). Petitioner believes the 22 recitation of facts gleaned by the Magistrate Judge from the Court of Appeals’ summation 23 “has the potential to misstate the facts” because it is “without transcript and other case file 24 reference citations and cannot replace the actual presentation of evidence and arguments 25 as reflected in the transcript and other record citations listed in Petitioner’s pleadings, 26 including . . . the Petition and supplementation in this Court.” Id. at 2. Petitioner does not, 27 however, identify in the Objection what important facts or referenced citations have been 28 1 omitted by the Magistrate Judge or the Court of Appeals relevant to disposition of his 2 Petition, which this Court should consider here. 3 This Court further summarizes the facts of the case with even greater brevity. The 4 Petitioner Defendant got into a fight outside a bar with S.C., a man, who Defendant had 5 had prior incidents with because the two men had dated the same two women off and on. 6 The two men fought outside the bar before Wahl got in his truck and attempted to leave. 7 S.C. approached Wahl, who was in his truck trying to leave, and an altercation ensued 8 between the two at the driver-side window. S.C’s arm was pinned in Wahl’s rolled up 9 window when Wahl drove off, speeding up to the point where S.C. could no longer run 10 next to the truck. S.C. eventually fell, and he was run over by the truck. His head was 11 crushed, and he died. 12 Wahl was charged with manslaughter, a Class 2 felony, and negligent homicide, a 13 Class 4 felony. A jury convicted him of manslaughter and sentenced to a presumptive 14 prison term of 10.5 years. 15 A person commits manslaughter by "[c]ommitting second degree murder as 16 prescribed in § 13-1104, subsection A upon a sudden quarrel or heat of passion resulting 17 from adequate provocation by the victim." A.R.S. § 13-1103(A)(2). A person commits 18 second-degree murder when, without premeditation, the person either intentionally causes 19 the death of another person or recklessly engages in conduct that creates a grave risk of 20 death and thereby causes the death of another person, while manifesting extreme 21 indifference to human life. A.R.S. § 13-1104(A)(1), (3). 22 The Magistrate Judge correctly found that the Petitioner brings grounds 1 through 23 10 for ineffective assistance of counsel (IAC) claims against his trial counsel for the first 24 time in his habeas Petition and they are procedurally defaulted. She recommends that the 25 Court reject the Petitioner’s assertion that his Post-conviction Relief (PCR) counsel was 26 ineffective by failing to properly present his ineffective assistance of trial counsel claims 27 to the state courts and, therefore, the procedural default of the IAC claim is excused under 28 Martinez v. Ryan, 566 U.S 1 (2012). The IAC claims are otherwise procedurally defaulted 1 and barred from review by this federal court. (R&R (Doc. 35) at 5.) The Magistrate Judge 2 recommends that the IAC Grounds 1 through 10, except for Ground 2 is wholly lacking in 3 merit and does not warrant review under Martinez. As to Ground 2, the Magistrate Judge 4 finds no prejudice resulted from any ineffectiveness of PCR counsel to present this ground 5 for collateral review at the state level. The Petitioner objects and asserts that all his claims 6 are at least sufficiently meritorious to warrant a hearing under Martinez. 7 The Petitioner brings two claims, Grounds 11 and 13, for prosecutorial misconduct 8 which were exhausted in the state courts and, therefore, subject to review on the merits. 9 The Magistrate Judge recommends these claims be dismissed because the state court’s 10 dismissal of them for lack of merit was not an unreasonable application of law. The 11 Petitioner objects to this finding. 12 In Ground 12, the Petitioner alleges that there was insufficient evidence to support 13 the manslaughter conviction because the evidence showed the victim, S.C., was the 14 aggressor and was run over by the truck due to his attacking the Defendant, who was trying 15 to get away from S.C. and driving away in self-defense. (Supplement (Doc. 17) at 22-24); 16 (Petition (Doc. 1) at 13, 88). The Magistrate Judge found that the Petitioner submitted this 17 claim of insufficient evidence to the state courts but relied solely on state law and, 18 therefore, the federal claim was not exhausted. Like the IAC claims, Ground 12 is 19 procedurally defaulted and precluded from review by this Court. The Petitioner objects to 20 the procedural bar because “Claim 12 raises a free-standing actual innocence/insufficiency 21 of the evidence claim, asserting that no reasonable jury could have found guilt (absent the 22 errors) and that due process and fundamental fairness is violated form the conviction 23 pursuant to the 5th and 14th Amendments as well as Jackson v. Virginia, 433 U.S. 307 24 (1979).” (Objection (Doc. 44) at 5.) 25 In addition to objecting the Magistrate Judge’s recitation of the facts, the Petitioner 26 argues that all of his claims must be considered on the merits as argued and detailed in the 27 pleadings considered by the Magistrate Judge, and she should have concluded at the very 28 least he is entitled to an evidentiary hearing. 1 First, the Magistrate Judge did consider, generally, the merits of the unexhausted 2 IAC Grounds 1 through 10, and the merits of the exhausted claims. (R&R (Doc. 35) at 7- 3 27.) 4 The Magistrate Judge considered, generally, the merits of all the IAC grounds 5 alleged in the Petition and found there was no merit to any of them, except there was some 6 merit to the IAC claim in Ground 2, but found Ground 2 too weak to establish cause for 7 the default under Martinez for the failure to exhaust it. She addressed Grounds 11 and 13 8 on the merits because they were raised and exhausted in the state courts. The only claim 9 not considered on the merits was Ground 12, the claim of insufficient evidence. She found 10 Ground 12 to be barred from review even though it was presented to the state courts 11 because he based it exclusively on state law and did not identify any federal basis for relief. 12 (R&R (Doc. 35) at 27) (citing to the record). Consequently, Ground 12 was defaulted and 13 procedurally barred from review by this Court. 14 Petitioner objects, but like he did to the Magistrate Judge’s summary of the case he 15 fails to present arguments as to why the Magistrate Judge’s conclusions regarding the 16 merits of the grounds are wrong. The Court has reviewed the R&R and the Petitioner’s 17 briefs and agrees with the Magistrate Judge’s conclusions and her reasoning for concluding 18 that the Petition’s grounds for relief lack merit. 19 The Court will assume that the Magistrate Judge correctly found that the IAC claim, 20 Ground 2, might have some merit because it would not have hurt the Defendant’s case to 21 ask for a jury instruction to define “unlawful physical force” as including “endangerment, 22 threatening and intimidation assault, and aggravated assault.” (R&R (Doc 35) at 12-14.) 23 The Court agrees with the Magistrate Judge’s assessment under Strickland v. Washington, 24 466 U.S. 668 (1984), that PCR counsel was not ineffective by not challenging trial 25 counsel’s failure to request this instruction. (R&R (Doc. 35) at 29-30.) The Magistrate 26 Judge correctly found that the self-defense instruction given and the facts in this case did 27 not allow the jury to speculate about the victim’s behavior and perhaps disregard all the 28 self-defense evidence. The evidence was clear that there was physical contact between the 1 Defendant and the victim. The jury was instructed that if it determined the victim, S.C., 2 was in the process of unlawfully or forcefully entering an occupied vehicle, then the 3 Defendant had no duty to retreat before threatening or using physical force or deadly 4 physical force. Id. In short, the Court gave the jury an instruction that adequately presented 5 his asserted defense. 6 Grounds 1 though 10 7 “Federal habeas review is barred unless the prisoner can demonstrate cause for the 8 default and actual prejudice as a result of the alleged violation of federal law. Generally, 9 post-conviction counsel’s ineffectiveness does not qualify as cause to excuse a procedural 10 default.” Ramirez v. Ryan, 937 F.3d 1230, 1238 (9th Cir. 2019), cert. granted sub nom. 11 Shinn v. Ramirez, No. 20-1009, 2021 WL 1951793 (U.S. May 17, 2021) (citing Coleman 12 v Thompson, 501 U.S. 722, 750 (1991). The Supreme Court in Martinez recognized that 13 under such circumstances the showing of cause and prejudice necessary to excuse a failure 14 to exhaust could be established if PCR counsel was ineffective and this caused prejudice 15 to the Defendant. Id. 16 The Magistrate Judge correctly found that the IAC claims, based on Grounds 1 17 through 10, are procedurally defaulted because they were not raised in the state courts, but 18 that ineffective assistance of post-conviction counsel may excuse Wahl’s procedural 19 default under Martinez, 566 U.S. at 9, if: (1) the underlying ineffective assistance of 20 counsel claim is “substantial;” (2) the petitioner was not represented or had ineffective 21 counsel during the PCR proceeding; (3) the state PCR proceeding was the initial review 22 proceeding for the IAC claim; and (4) state law required the petitioner to bring that claim 23 in the initial review collateral proceeding, Trevino v. Thaler, 569 U.S. 413, 423 (2013). 24 Here, only one and two of the relevant factors are at issue. The first factor establishes 25 prejudice; the second establishes cause. 26 Under Martinez, substantial means having some merit such that “reasonable jurists 27 could debate whether . . . the petition should have been resolved in a different manner or 28 that the issues presented were adequate to deserve encouragement to proceed further.” 1 (R&R (Doc. 35) at 6-7) (citing Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013)). 2 Applying this standard, id. at 6, the Magistrate Judge found no merit to Grounds 1 through 3 10, except she found some merit to the IAC claim in Ground 2. Id. at 12-14. The Court 4 adopts the R&R expressly regarding these findings and analysis. (R&R (Doc. 35) at 7-26.) 5 For Ground 2, she turned to the second inquiry, “cause,” which under Martinez, 6 requires Petitioner to demonstrate that post-conviction counsel was ineffective under 7 Strickland. “Strickland requires demonstrating that both (a) post-conviction counsel’s 8 performance was deficient, and (b) there was a reasonable probability that, absent the 9 deficient performance, the result of the post-conviction proceedings would have been 10 different.” Ramirez, 937 F.3d at 1241. Here, she took another look at the underlying 11 strength of the IAC claim against trial counsel and found in wanting. (R&R (Doc. 35) at 12 29-30.) 13 This Court finds that the outcome of Petitioner’s collateral attacked on his 14 conviction would not have been different if PCR counsel had asserted the IAC, Ground 2, 15 claim against trial counsel for failing to seek the jury instruction for “unlawful physical 16 force” as including “endangerment, threatening and intimidation assault, and aggravated 17 assault.” The Magistrate Judge correctly found that the self-defense instruction given in 18 Defendant’s case, coupled with the facts, did not allow the jury to speculate about the 19 victim’s behavior and perhaps disregard all the self-defense evidence. The jury was 20 instructed that if it determined the victim, S.C., was in the process of unlawfully or 21 forcefully entering an occupied vehicle, then the Defendant had no duty to retreat before 22 threatening or using physical force or deadly physical force. Id. The instruction sought and 23 given by the trial court was a strong presentation of Defendant’s theory of the case, self- 24 defense, to the jury. 25 While the Magistrate Judge found some merit to this IAC claim for the purpose of 26 assessing prejudice under Martinez, this Court finds any merit to the claim to be so weak 27 that it would have failed if urged as a PCR collateral attack. In other words, there was no 28 1 reasonable probability that, absent the alleged deficient performance, the result of the post- 2 conviction proceedings would have been different. 3 The Magistrate Judge did not ignore the Ninth Circuit’s recent warning that when a 4 district court considers Martinez’s prejudice prong, it must be careful not to “collapse[] 5 what should [be] a two-step process: first decide whether the procedural default is excused, 6 and if so, then address the claim squarely, after allowing a chance for any necessary record 7 or evidentiary development.” Ramirez, 937 F.3d at 1242, n. 7. She found prejudice based 8 on the general merits of the claims. The Court finds that while Ground 2 may have some 9 merit, sufficient to establish prejudice under Martinez, there is no reasonable probability 10 that, if PCR counsel had presented this IAC claim, the result of the post-conviction 11 proceedings would have been different. 12 Ground 12 13 The Court turns to the claim of insufficient evidence alleged in Ground 12. The 14 Magistrate Judge found Ground 12 to be barred from review because the claim of 15 insufficient evidence was presented to the state courts based exclusively on state law and 16 did not identify any federal basis for relief. (R&R (Doc. 35) at 27) (citing to the record). 17 Wahl’s Objection is “to the contrary,” without contrary citation to the record. The Court 18 reviewed the state record, including the PCR Opening Brief (Answer, Ex. G (Doc. 27-7) at 19 51), the Decision (Doc. 27-10) at 17, and the Petition (Doc. 1) at 73). 20 The Court is not convinced the insufficient evidence claim presented to the state 21 court is the same as the constitutional claim raised in the Petition. The legal arguments are 22 certainly different. The Defendant’s PCR argued there was not substantial evidence 23 presented at trial to support the guilty verdict for manslaughter. The state court considered 24 all the evidence, considered in the light most favorable to sustain the verdict. Here, the 25 Petition, Ground 12, submits that the jury verdict was based on the alleged errors in the 26 proceedings and, therefore, his conviction is a miscarriage of justice. The due process 27 inquiry is one of fundamental fairness. 28 The Court nevertheless adopts the Magistrate Judge’s finding that Ground 12 is 1 procedurally defaulted because the PCR presented the insufficient evidence claim based 2 exclusively on state law and did not present the federal due process claims. This is an 3 absolutely accurate conclusion based on the state record. The Petitioner is wrong to suggest 4 that his state law claims alleged facts reflecting and requiring the adjudication of the 5 constitutional claims he makes now. The Petitioner must find an exception to the 6 exhaustion bar to secure review in federal court. He turns to Schlup v. Delo, 513 U.S. 298, 7 327 (1995). 8 In his Objection, the Petitioner frames Ground 12 as a free-standing actual 9 innocence/insufficiency of the evidence claim. (Objection (Doc. 44) at 5.) He asserts it as 10 a defense to the failure to exhaust bar because “the whole idea of actual innocence review 11 is that someone should not be punished and denied liberty if they are actually innocent of 12 a crime, and where, as here, the allegation is that there was not sufficient evidence to 13 support the guilty verdict, it necessarily also means that the person is challenging his 14 conviction in the sense that he is actually innocent.” Id. at 7-8 (citing Schlup, 513 U.S. at 15 327 (further citations omitted)). Petitioner has mixed up two different theories and ignored 16 the cautionary preliminary matter addressed by the court in Schlup, to distinguish between 17 actual innocence gateway claims and free-standing claims of actual innocence. 18 In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court recognized a claim 19 of innocence can support a novel substantive constitutional claim, namely, that the 20 execution of an innocent person would violate the Eighth Amendment. In Herrera, even if 21 the proceedings that resulted in the conviction and sentence were entirely fair and error 22 free, the defendant’s actual innocence would render his execution a ‘constitutionally 23 intolerable event.’” Schlup, 513 U.S. at 313-14 (quoting Herrera, 506 U.S. at 419 24 (O'CONNOR, J., concurring)).The actual innocence claim recognized in Herrera is 25 accurately described as an independent avenue for relief based on an assertion of factual 26 innocence and requires evidence that “go[es] beyond demonstrating doubt about his guilt, 27 and [affirmative proof] that he is probably innocent.” Gimenez v. Ochoa, 821 F.3d 1136, 28 1 1145 (2016) (quoting Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir.1997)). Petitioner 2 makes no such showing. 3 Actual innocence in the context of Herrera is a free-standing 8th Amendment claim, 4 which differs from asserting actual innocence as a gateway to relief, such as Petitioner’s 5 claim that the Court should excuse any failure to exhaust his claims. To slip past the 6 procedural bar, Petitioner must show “that, in light of [all the evidence, including] any 7 new1 evidence, no juror, acting reasonably, would have voted to find him guilty beyond a 8 reasonable doubt.” Schlup, 513 U.S. at 329. Under Schlup, the evidence must establish 9 sufficient doubt about his guilt to justify the conclusion that his [conviction] would be a 10 miscarriage of justice unless his conviction was the product of a fair trial.” Id. at 316. 11 Petitioner offers no basis for, and this Court has found none, to deter it from finding, as the 12 Magistrate Judge and state court found, that there is no merit to Petitioner’s assertions of 13 error, evidentiary or prosecutorial, to support his assertions that his conviction was a 14 miscarriage of justice based on insufficient evidence. 15 Grounds 11 and 13 16 Petitioner alleges that the prosecutor made improper references to blood evidence 17 that did not exist on the Defendant’s truck’s tire and that trial counsel was ineffective for 18 failing to have the truck tire tested which would have established there was no blood or 19 DNA evidence on the truck’s tire. The state court rejected both arguments. It found no 20 prosecutorial misconduct because the question was whether there was blood evidence on 21 the tire and the answer was that the witness did not know. It did not matter whether there 22 was blood evidence on the truck tire because the evidence was undisputed that the 23 Defendant ran over S.C. with his truck and S.C died. Defendant testified that “he did not 24 know that [S.C.] had been run over by his vehicle.” (Petition (Doc. 1) at 83.) 25 The prosecutorial misconduct and IAC claims were exhausted. “Under the AEDPA, 26 a federal court ‘shall not’ grant habeas relief with respect to ‘any claim that was adjudicated 27 on the merits in a State court proceeding’ unless the state decision was (1) contrary to, or 28 1 Petitioner makes no assertion of new evidence. 1 an unreasonable application of, clearly established federal law as determined by the United 2 States Supreme Court; or (2) based on an unreasonable determination of the facts in light 3 of the evidence presented in the State court proceeding.” (R&R) (Doc. 35) at 28 (quoting 4 28 U.S.C. 2254(d), citing Williams v. Taylor, 529 U.S. 362, 384-85 (2000)). 5 The Court expressly adopts the Magistrate Judge’s conclusion “that the state court’s 6 finding of no prosecutorial misconduct warranting relief is not contrary to clearly 7 established Supreme Court authority and is not an unreasonable application of that law 8 given the facts and evidence.” (R&R (Doc. 35) at 32.) The Court expressly adopts the 9 Magistrate Judge’s application of Strickland to the state court’s determination that Wahl 10 did not make a colorable IAC claim based on trial counsel’s failure to have the truck tire 11 tested for blood evidence. This Court agrees that nothing about the state court’s decision 12 regarding this IAC claim can be characterized as unreasonable. Id. at 32-33. 13 CONCLUSION 14 After de novo review of the issues raised in Petitioner’s Objection, this Court agrees 15 with the findings of fact and conclusions of law made by the Magistrate Judge in her R&R 16 determining its lack of merit. The Court adopts the R&R, and for the reasons stated in the 17 R&R, the Court denies the Petition for Writ of Habeas Corpus (28 U.S.C. § 2254). 18 Accordingly, 19 IT IS ORDERED that after a full and independent review of the record, in respect 20 to the objections, the Magistrate Judge's Report and Recommendation (Doc. 35) is accepted 21 and adopted as the findings of fact and conclusions of law of this Court. 22 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (28 23 U.S.C. § 2254) (Doc. 1) is DENIED. 24 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment 25 accordingly. 26 IT IS FURTHER ORDERED that in the event Petitioner files an appeal, the Court 27 declines to issue a certificate of appealability, except for Ground 2 of the Petition, pursuant 28 to Rule 11(a) of the Rules Governing Section 2254 cases because reasonable jurists would || not find the Court’s procedural rulings debatable. Slack v. McDaniel, 529 U.S. 473, 484 || (2000). 3 IT IS FURTHER ORDERED that a certificate of appealability is issued for Ground 2, only. 5 Dated this 11th day of June, 2021. 6 SS ° Honorabje David C. But 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12-