Sesma v. Thornell ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Manuel David Sesma, No. CV-23-00172-TUC-JGZ 10 Petitioner, ORDER 11 v. 12 Ryan Thornell, et al., 13 Respondents. 14 15 Petitioner Manuel Daniel Sesma, proceeding pro se, filed a Petition under 28 U.S.C. 16 § 2254 for Writ of Habeas Corpus By A Person In State Custody (“Petition”). (Doc. 1.) 17 Respondents filed a Limited Response. (Doc. 8.) On July 18, 2023, Magistrate Judge 18 Jacqueline Rateau issued a Report and Recommendation (“R&R”) in which she 19 recommended this Court dismiss the Petition. (Doc. 10.) Petitioner filed an Objection to 20 the R&R (Doc. 11), and Respondents filed a response to Petitioner’s Objection (Doc. 12). 21 Petitioner then filed a reply to Respondents’ response (Doc. 13), which Respondents 22 moved to strike (Doc. 14). For the following reasons, the Court will grant Respondents’ 23 Motion to Strike, overrule Petitioner’s Objections, accept Judge Rateau’s R&R in full, and 24 dismiss the Petition. 25 I. FACTUAL AND PROCEDURAL HISTORY 26 The R&R details the factual and procedural history of this case. (Doc. 30 at 2–6.) 27 Because neither party objected to this portion of the R&R, the Court will adopt it in its 28 entirety. For purposes of this Order, the Court briefly summarizes the factual and 1 procedural history as follows. 2 Petitioner’s Conviction and Sentencing 3 In 2015, Petitioner was arrested and charged with three counts of aggravated assault. 4 (Doc. 10 at 2.) Thereafter, he posted bond and was released. (Id.) In 2017, while awaiting 5 trial on the 2015 charges, Petitioner was arrested and charged with attempted first-degree 6 murder, four counts of aggravated assault, and kidnapping. (Id. at 3.) The 2015 and 2017 7 cases were consolidated and, following a jury trial, Petitioner was convicted of all charges. 8 (Id.) The trial court sentenced him to a combination of concurrent and consecutive 9 sentences totaling 28 years’ imprisonment. (Id.) 10 Direct Appeal 11 In September 2019, Petitioner appealed his convictions and sentences through 12 counsel to the Arizona Court of Appeals. (Doc. 8-1 at 3.) Petitioner argued on appeal that 13 the trial court misapplied the Arizona Rules of Evidence and violated the Confrontation 14 Clause when it admitted hearsay at trial. (Id. at 9.) The appellate court affirmed Petitioner’s 15 convictions and sentences finding the trial court did not abuse its discretion or commit 16 fundamental error in admitting the contested statements. (Id. at 89, 91.) 17 Post-Conviction Relief Proceedings 18 In September 2021, Petitioner, through counsel, filed a Petition for Post-Conviction 19 Relief (“PCR”). (Doc. 8-1 at 109-120.) Petitioner asserted: (1) his trial counsel was 20 ineffective for failing to move for a mistrial when F.L. was permitted to testify after the 21 trial court had deemed her unavailable and played her preliminary hearing testimony for 22 the jury, and (2) his appellate counsel was ineffective on appeal in failing to raise trial 23 counsel’s ineffectiveness at trial. (Id. at 116.) 24 The PCR court denied relief finding trial counsel was not deficient for failing to 25 move for a mistrial because F.L.’s prior testimony was properly admitted by the trial court 26 and did not violate the Confrontation Clause. (Id. at 159.) Additionally, the PCR court 27 rejected Petitioner’s argument that his appellate counsel was ineffective finding, “appellate 28 counsel exercised her professional judgment in choosing which issues she thought were - 2 - 1 meritorious.” (Id. at 163.) 2 Petition for Review 3 In December 2022, Petitioner, through counsel, filed a Petition for Review of the 4 trial court’s denial of his PCR petition. (Id. at 166-185.) Petitioner argued that the trial 5 court erred in rejecting his claims of ineffective assistance of trial and appellate counsel. 6 (Doc. 8-1 at 189.) On March 8, 2023, the Arizona Court of Appeals granted review but 7 denied relief because Petitioner “provided no evidence and cited no authority suggesting 8 competent counsel would have moved for a mistrial or objected” when the victim appeared 9 on the fifth day of trial and testified. (Id. at 189-90.) The appellate court did not address 10 Petitioner’s argument that the trial court erred in rejecting his claim that his appellate 11 counsel should have raised the issue on appeal because Sesma “ha[d] developed no 12 argument that this claim would have prevailed on appeal.” (Id. at 190.) 13 Habeas Proceeding 14 Petitioner filed the instant Petition on April 13, 2023, alleging three grounds for 15 relief. (Doc. 1.) In Ground One, Petitioner asserts a double-jeopardy claim, alleging the 16 “crime was committed on one date one act sentenced to consecutive terms[.]” (Id. at 5.) In 17 Ground Two, Petitioner asserts the “state committed invited error by playing recording of 18 testimony then allowing ‘victim’ to testify in-person 5 days later.” (Id. at 7.) In Ground 19 Three, Petitioner asserts ineffective assistance of counsel (“IAC”), alleging trial “counsel 20 failed to object to consecutive sentences [and] failed to object to petitioner illegally 21 sentenced[.]” (Id. at 8.) 22 II. RESPONDENTS’ MOTION TO STRIKE REPLY 23 Petitioner filed an Objection to Magistrate Judge Rateau’s R&R recommending 24 dismissal of the Petition. (Doc. 11.) Respondents filed a Response to Petitioner’s 25 Objection. (Doc. 12). Petitioner then filed a Response to Respondents’ Response. (Doc. 26 13.) Respondents filed a Motion to Strike Petitioner’s “Response” as improper under Rule 27 72 of the Federal Rules of Civil Procedure and Rule 7.2 of the Local Rules of Civil 28 Procedure. (See Doc. 14.) The Court will grant the motion to strike. - 3 - 1 Rule 72(b)(2), Federal Rules of Civil Procedure, provides: “Within 14 days after 2 being served with a copy of the [R&R], a party may serve and file specific written 3 objections to the proposed findings and recommendations. A party may respond to another 4 party’s objections within 14 days after being served with a copy.” Rule 72 provides only 5 for an objection by a party who disagrees with some aspect of the R&R, and a response to 6 that objection by the opposing party. It does not allow for a reply to the response or 7 supplemental briefing. Magistrate Judge Rateau’s R&R clearly informed Petitioner of the 8 applicable rule in its concluding paragraph, stating: 9 Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve 10 and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party’s 11 objections within fourteen days. No reply shall be filed unless leave is 12 granted by the district court. 13 (Doc. 10 at 14-15.) 14 III. R&R STANDARD OF REVIEW 15 This Court “may accept, reject, or modify, in whole or in part, the findings or 16 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court “must 17 review the magistrate judge’s findings and recommendations de novo if objection is made, 18 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 19 banc). The party seeking de novo review must provide “specific written objections to the 20 proposed findings and recommendations” of the magistrate judge. Fed. R. Civ. P. 72(b)(2) 21 (emphasis added). The clear purpose of this requirement is judicial economy—to permit 22 magistrate judges to resolve matters not objectionable to the parties. See Thomas v. Arn, 23 474 U.S. 140, 149 (1985). Because de novo review of the entire R&R would defeat the 24 efficiencies intended by Congress and Rule 72, a general objection has the same effect as 25 a failure to object. Warling v. Ryan, No. CV 12-01396-PHX-DGC, 2013 WL 5276367, at 26 *2 (D. Ariz. Sept. 19, 2013); Eagleman v. Shinn, No. CV-18-2708-PHX-RM (DTF), 2019 27 WL 7019414, at *5 (D. Ariz. Dec. 20, 2019). 28 // - 4 - 1 IV. ANALYSIS 2 The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is 3 incarcerated based on a state-court conviction. (Doc. 1.) Section 2254 permits granting a 4 writ of habeas corpus in only specific circumstances. A petition must not be granted 5 “unless . . . the applicant has exhausted the remedies available in the courts of the State.” 6 28 U.S.C. § 2254(b)(1)(A) (subject to certain exceptions that allow Petitioner to come 7 overcome his failure to exhaust in state court). Even where the petitioner has exhausted 8 state-court remedies, a district court cannot grant relief unless the state conviction “resulted 9 in a decision that was contrary to, or involved an unreasonable application of, clearly 10 established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). An 11 unreasonable application of law must be “objectively unreasonable, not merely wrong.” 12 White v. Woodall, 572 U.S. 415, 419 (2014). Instead, the state court’s ruling must be “so 13 lacking in justification that there was an error well understood and comprehended in 14 existing law beyond any possibility for fairminded disagreement.” Id. at 420. Having 15 reviewed the Petition, briefing, and record, this Court finds Petitioner’s claims were not 16 exhausted at the state level and are procedurally defaulted, and, even if Petitioner’s claims 17 were not procedurally barred, his state conviction did not involve an unreasonable 18 application of clearly established Federal law. 19 A. First Objection – Double Jeopardy (Ground One) 20 In Ground One of his Petition, Petitioner argues that his conviction violated the Fifth 21 Amendment’s Double Jeopardy Clause because he was sentenced to consecutive terms for 22 a “crime [that] was committed on one date one act.” (Doc. 1 at 5.) Ground One is 23 procedurally defaulted and meritless. 24 The R&R concludes that Petitioner’s double jeopardy claim is procedurally 25 defaulted and precluded from habeas review because: (1) it was not presented to the state 26 court during direct appeal or PCR proceedings; (2) Arizona procedural rules preclude 27 Petitioner from returning to state court to exhaust this claim in a Rule 32 proceeding; and 28 (3) Petitioner did not show cause or actual prejudice prevented him from timely raising the - 5 - 1 issue. (Doc. 10 at 12-13.) Petitioner objects to the Recommendation, arguing he properly 2 presented this claim in state court through pro se filings. (Doc. 11 at 9.) 3 The record shows that Petitioner filed a Motion to Notify/Appeal Double Jeopardy 4 Sentence on August 10, 2022, in Pima County Superior Court. (Doc. 1-2 at 2.) However, 5 Petitioner filed this pro se motion when he was represented by counsel. In a ruling dated 6 August 18, 2022, the trial court advised Petitioner that it would take no action on his pro 7 se Motion to Appeal/Notify Double Jeopardy Sentence unless counsel filed a separate 8 motion. (Doc. 1-1 at 59.) Nothing in the record indicates that counsel filed a separate 9 motion raising a double jeopardy claim or that Petitioner’s motion was considered by the 10 trial court. Thus, Petitioner failed to properly present this claim: Petitioner’s effort to 11 exhaust his double jeopardy claim through his pro se motion was ineffective. 12 Nonetheless, even if Petitioner’s claim was not procedurally barred, it is meritless. 13 The Double Jeopardy Clause of the Fifth Amendment prohibits anyone from being 14 prosecuted twice for substantially the same crime. U.S. CONST. amend. V. The imposition 15 of consecutive sentences for two distinct crimes charged in one indictment does not violate 16 double jeopardy. See United States v. Richards, 52 F.4th 879 (9th Cir. 2022) (no Double 17 Jeopardy Clause violation where defendant possessed two distinct firearms in different 18 places on different occasions); United States v. Cazares-Cazares, 68 F. App’x 793, 794 19 (9th Cir. 2003) (defendant’s consecutive sentences did not violate the Double Jeopardy 20 Clause because the sentences punished two separate crimes). 21 Petitioner’s claim that he was sentenced to consecutive terms for a crime that was 22 committed on “one date” as “one act” is factually inaccurate. (See Doc. 1 at 5.) Petitioner 23 was charged for crimes that were committed in 2015 and 2017. His two cases were 24 consolidated and, after conviction by jury, Petitioner was sentenced to a combination of 25 concurrent and consecutive sentences. (Doc. 1-1 at 10.) The trial court ordered Petitioner 26 to serve all sentences stemming from the 2015 crimes concurrently and to serve all 27 sentences stemming from the 2017 crimes concurrently. (Doc. 1-3 at 18.) The trial court 28 ordered the sentences for the 2015 crimes and the 2017 crimes to run consecutively. (Id.) - 6 - 1 In other words, Petitioner received consecutive terms based on his convictions for crimes 2 he committed on two separate dates. Thus, Petitioner’s sentence does not violate the 3 Double Jeopardy Clause. 4 B. Second Objection – Invited Error (Ground Two) 5 In Ground Two, Petitioner claims that “the state committed invited error by playing 6 recording of testimony then allowing the ‘victim’ to testify in person 5 days later.” (Doc. 7 1 at 7.) The R&R recommends dismissing this claim on multiple grounds. First, the R&R 8 concludes that this claim does not allege a violation of the U.S. Constitution or law or 9 treaties of the United States and thus fails to assert a basis for federal habeas relief. (Doc. 10 10 at 7.) Second, the R&R finds that even if the claim was cognizable, it is procedurally 11 defaulted because: (1) it was not presented to the state court during direct appeal or PCR 12 proceedings; (2) Arizona procedural rules preclude Petitioner from returning to state court 13 to exhaust this claim in a Rule 32 proceeding; and (3) Petitioner did not show cause or 14 actual prejudice prevented him from timely raising the issue. (Id. at 12-13.) 15 In his Objection to the R&R, Petitioner asserts that his argument is based on the 16 Confrontation Clause of the Sixth Amendment (Doc. 11 at 15), and that he exhausted the 17 claim when he filed a Motion for Writ of Error to Cross Appeal in the Pima County 18 Superior Court in 2022 (Doc. 9-3 at 24). 19 The record shows that Petitioner filed a pro se “Writ of Error/Cross Appeal of July 20 14, 2022, Ruling” in the Pima County Superior Court on August 10, 2022, in which he 21 claimed the trial court violated the Confrontation Clause by allowing F.L. to take the stand 22 after she had been deemed “unavailable” and her preliminary hearing testimony had been 23 played for the jury. (Doc. 9-3 at 24.) However, Petitioner was represented by counsel at 24 the time he filed this motion. In a September 19, 2022, ruling, the Pima County Superior 25 Court declined to hear or rule on Petitioner’s pro se filings while he was represented by 26 counsel because “a defendant who is represented by counsel is not entitled to hybrid 27 representation.” (Doc. 9-2 at 29.) Thus, because the state court did not hear or rule on 28 Petitioner’s motion and because the record does not indicate that counsel raised the claim - 7 - 1 in a separate petition, Petitioner failed to exhaust his “invited error” claim. 2 Moreover, even if the claim was not procedurally defaulted, it is meritless. First, for 3 purposes of the “invited error doctrine,” a defendant invites error when he induces or causes 4 the error of which he complains. United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) 5 (en banc). Examples of “invited error” include a defendant proposing jury instructions that 6 he later alleges were flawed, id. at 844, defense counsel eliciting a statement on cross- 7 examination that he later argues should have been excluded, see United States v. Reyes- 8 Alvarado, 963 F.2d 1184 (9th Cir. 1992), and defense counsel offering into evidence a 9 document that he challenges as inadmissible on appeal, Johnson v. I.N.S., 971 F.2d 340, 10 343-44 (9th Cir. 1992). Petitioner has no basis for claiming “invited error.” Here, the 11 testimony of which Petitioner complains was not introduced by the defense. 12 Second, to the extent Petitioner alleges a Confrontation Clause claim, the trial court 13 did not violate Petitioner’s constitutional rights by permitting F.L. to testify in person after 14 her preliminary testimony had already been played for the jury. The Confrontation Clause 15 requires that a criminal defendant have the opportunity to cross-examine witnesses against 16 him. U.S. CONST. amend. VI. The admission of F.L.’s prior testimony satisfied 17 Confrontation Clause requirements because F.L. was unavailable and Petitioner had the 18 opportunity to cross-examine her at the preliminary hearing. (See Doc. 1-3 at 6.) Further, 19 defense counsel had the opportunity to, and did, cross-examine F.L. when she took the 20 stand to testify on the fifth day of trial. (Id. at 7.) Therefore, neither the admission of the 21 preliminary hearing recording nor the allowance of F.L.’s in-person testimony violated the 22 Confrontation Clause. 23 Third, to the extent Petitioner’s claim is construed as an IAC claim, this Court finds 24 the claim was properly analyzed and dismissed by the superior court.1 Applying the 25 26 1 Although Petitioner did not present his “invited error” claim on appeal, he presented two related claims of IAC: (1) trial counsel was ineffective for failing to object when F.L. 27 appeared to testify after her preliminary hearing testimony had already been played for the jury, and (2) his appellate counsel was ineffective for failing to raise trial counsel’s 28 ineffectiveness on direct appeal. (Doc. 1-3 at 18–22.) - 8 - 1 Strickland Test, the Pima County Superior Court found Petitioner’s claims were without 2 merit and denied relief. (Doc. 1-3 at 18–22.) Strickland established a two-part test for 3 evaluating claims of IAC. Strickland v. Washington, 466 U.S. 668, 687 (1984). Courts will 4 reverse a conviction or sentence due to IAC only when the defendant shows both that: (1) 5 counsel’s performance was objectively unreasonable under all of the circumstances; and 6 (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result 7 of the proceedings would have been different. Id. at 687–88, 694. With respect to the first 8 IAC claim, the court found trial counsel’s performance was not deficient because the 9 decision not to object to F.L.’s appearance, but rather to cross-examine and impeach F.L., 10 could have been a tactical decision, and, even if counsel’s performance had been deficient, 11 it was not harmful because the jury had the opportunity to “assess [F.L.’s] credibility.” 12 (Doc. 1-3 at 5, 7.) Regarding Petitioner’s second IAC claim, the court held that appellate 13 counsel exercised her professional judgment in deciding which issues were meritorious to 14 raise on appeal. (Id. at 8.) Since there was “no error in the admission of the victim’s prior 15 testimony,” Petitioner failed to show that appellate counsel acted unreasonably by not 16 raising the issue on appeal. (Id. at 8–9.) Upon review, this Court finds there was no 17 misapplication of clearly established Federal law. 18 Accordingly, the Court concludes Petitioner’s claim that the trial court “invited 19 error” by allowing F.L. to testify on the fifth day of trial after her preliminary hearing 20 testimony was presented to the jury is procedurally defaulted. Further, even if it was not 21 procedurally defaulted, the claim is meritless. The Court will therefore overrule Petitioner’s 22 Objections to the R&R’s Ground Two conclusions. 23 C. Third Objection – Ineffective Assistance of Counsel (Ground Three) 24 In Ground Three, Petitioner argues that trial counsel was ineffective for failing to 25 object to consecutive sentences and “illegal sentencing.” (Doc. 1 at 8.) The R&R concludes 26 that this IAC claim is procedurally defaulted and precluded from habeas review because: 27 (1) it was not presented to the state court during direct appeal or PCR proceedings; (2) 28 Arizona procedural rules preclude Petitioner from returning to state court to exhaust the - 9 - 1 claim in a Rule 32 proceeding; and (3) Petitioner did not show cause or actual prejudice 2 prevented him from timely raising the issue. (Doc. 10 at 12–13.) The Court agrees with the 3 Magistrate Judge’s conclusions as to Ground Three. 4 Petitioner’s claim is procedurally barred: nothing in the record indicates that 5 Petitioner raised an IAC claim for failure to object to consecutive sentences at the state 6 court level.2 Moreover, the claim is meritless because counsel’s “fail[ure] to object to 7 consecutive sentences” does not constitute IAC. (See Doc. 1 at 8.) Applying the first prong 8 of Strickland, defense counsel did not act “objectively unreasonably” when he chose not 9 to object to consecutive sentences; there was no basis on which to object. See Strickland, 10 466 U.S. at 687. As explained above, the trial court lawfully imposed consecutive sentences 11 for two distinct crimes. Further, two other attorneys reviewed Petitioner’s case for the 12 purposes of direct appeal and post-conviction relief and neither identified “illegal 13 sentencing” as an appealable error, which is not surprising, given that the sentences were 14 lawfully imposed. 15 Accordingly, Petitioner’s IAC claim based on trial counsel’s failure to object to 16 consecutive sentences is procedurally barred. And, even if the claim was not procedurally 17 barred, the claim is meritless because Petitioner’s counsel had no basis for objecting to the 18 sentences imposed by the trial court. 19 D. Magistrate Judge Jurisdiction 20 Lastly, Petitioner objects to the R&R on the ground that the Magistrate Judge did 21 not have “consent” to preside over his case and no “notice” was given to petitioner. (Doc. 22 11 at 1.) The Court will overrule this objection. 23 A magistrate judge does not need a party’s consent to issue a R&R on the disposition 24 of a case to the district court. A magistrate’s authority is governed by 28 U.S.C. § 636, 25 which permits a “magistrate judge [to] hear and determine nondispositive matters but not 26 dispositive ones.” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015). On 27 2 The only IAC claim raised by petitioner was related to the admission of F.L.’s testimony. 28 (See Doc. 1-3 at 18–22.) - 10 - 1 dispositive matters, the magistrate judge is limited to “issuing a report and recommendation 2 to the district court, which then must undertake de novo review.” Id. Moreover, the Court’s 3 Local Rules of Civil Procedure require magistrate judges to review “all petitions for writs 4 of habeas corpus” and “submit reports and recommendations thereon to facilitate the 5 decisions of the District Judge having jurisdiction . . . .” LRCiv 72.1, 72.2. Here, pursuant 6 to 28 U.S.C. § 636 and the Local Rules of Civil Procedure, Petitioner’s Petition for Writ 7 of Habeas Corpus was appropriately referred to Magistrate Judge Rateau. Petitioner was 8 given notice of this referral on April 14, 2023, in a filing entitled “Notice of Assignment.” 9 (Doc. 2.) Judge Rateau submitted a report and recommendation on the disposition of the 10 case to Judge Zipps, the assigned District Court Judge, recommending that the Petition be 11 dismissed. The District Court has now independently reviewed the record and Judge 12 Rateau’s recommendation. 13 V. CONCLUSION 14 For the foregoing reasons, Petitioner has failed to demonstrate that his conviction 15 “resulted in a decision that was contrary to, or involved an unreasonable application of, 16 clearly established Federal law.” 28 U.S.C. § 2254(b)(1)(A). Petitioner’s habeas claims 17 were not exhausted and are procedurally defaulted. Further, Petitioner’s claims are without 18 merit. 19 Accordingly, 20 IT IS ORDERED Respondents’ Motion to Strike (Doc. 14) is granted. The Clerk 21 shall strike Petitioner’s “Response to Jason P. Gannon to Sesma’s Objections to Magistrate 22 REPORT AND RECOMMENDATION by Petitioner Manuel David Sesma.” (Doc. 13.) 23 IT IS FURTHER ORDERED the Report and Recommendation is accepted in full 24 and that Petitioner’s Objections are overruled. 25 IT IS FURTHER ORDERED the Petition (Doc. 1) is dismissed. The Clerk of the 26 Court shall enter judgment and close this case. 27 // 28 // - 11 - IT IS FURTHER ORDERED under Rule 11(a) of the Rules Governing Section 3 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists could not “debate whether (or, for that matter, ‘ agree that) the petition should have been resolved in a different manner or that the issues. Dated this 18th day of December, 2023. . 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12-