Rushinsky 274094 v. Ryan ( 2019 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John Joseph Rushinsky, Jr., No. CV-18-01836-PHX-ROS 10 Petitioner, ORDER 11 v. 12 Charles L Ryan, et al., 13 Respondents. 14 15 Petitioner John Joseph Rushinsky, Jr., was convicted in state court of two counts of 16 child molestation. After pursuing an unsuccessful direct appeal as well as an unsuccessful 17 petition for post-conviction relief in state court, Petitioner filed a federal petition for a writ 18 of habeas corpus. In July 2019, Magistrate Judge John Z. Boyle issued a Report and 19 Recommendation (“R&R”) recommending the petition be denied. Petitioner filed 20 objections but, upon de novo review, the R&R reached the correct result. Therefore, the 21 R&R will be adopted and the petition denied. 22 BACKGROUND 23 The factual background recited in the R&R was drawn from the decision by the 24 Arizona Court of Appeals. Petitioner disputes portions of that background but this Court 25 must afford the version of facts recited by the Arizona Court of Appeals “a presumption of 26 correctness that may be rebutted only by clear and convincing evidence.” Runningeagle v. 27 Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012). Petitioner has not presented “clear and 28 convincing” evidence that the Arizona Court of Appeals incorrectly recited the facts. 1 Therefore, the Court will also rely on the background as recited by the state court. 2 In 2011, a Child Protective Services caseworker and two uniformed police officers 3 visited Petitioner and his wife at their home. The caseworker explained she was there 4 because of a report of possible child abuse by Petitioner of his daughter. The police officers 5 did not draw their weapons and the caseworker informed Petitioner he did not have to speak 6 with her. Petitioner agreed to do so and “[a]pproximately ten minutes into the interview, 7 [Petitioner] volunteered that he had an erection on an occasion when his seven-year-old 8 daughter sat on his lap. [Petitioner] said that he pushed her down on himself and rubbed 9 against her.” State v. Rushinsky, No. 1 CA-CR 12-0529, 2013 WL 5637753, at *1 (Ariz. 10 Ct. App. Oct. 15, 2013). After hearing those statements, the officers arrested Petitioner. 11 Later, Petitioner was indicted “on three counts of child molestation and one count of 12 aggravated assault.” (Three of those counts were based on events from 2011 while one 13 count was based on a different event from 2010.) 14 During pretrial proceedings, Petitioner moved to suppress the statements he made 15 to the caseworker by arguing they had been obtained in violation of his Miranda rights. 16 The state trial court denied the motion and Petitioner proceeded to trial. During jury 17 selection, Petitioner moved to dismiss the child molestation charges. Petitioner argued 18 Arizona’s child molestation statute, A.R.S. § 13-1410, was unconstitutional because it 19 shifted the burden to a defendant “to prove innocent contact” instead of requiring the state 20 prove that the contact had occurred with sexual intent. (Doc. 19 at 8). The trial court 21 denied the motion to dismiss. 22 At trial, the state offered evidence pursuant to Arizona Rule of Evidence 404(c) 23 involving other acts of sexual abuse committed by Petitioner. At the conclusion of trial 24 defense counsel again raised the issue of the constitutionality of the child molestation 25 statute. (Doc. 19-11 at 120). After hearing from both sides, the trial court determined the 26 statute, as construed by the state, was “overbroad.” In the trial court’s view, the state’s 27 construction of the statute would mean “any time any child is sitting on any adult’s lap, 28 [that] would constitute sexual contact.” (Doc. 19-11 at 125). To correct that problem, the 1 trial court decided to instruct the jury such that it “could not find [Petitioner] guilty if they 2 determine[d] that there was not a sexual intent.” (Doc. 19-11 at 127). Thus, the trial court 3 instructed the jury that it could convict Petitioner of child molestation only if the state 4 proved “beyond a reasonable doubt that [Petitioner] acted with a criminal sexual intent.”1 5 The jury convicted Petitioner of two counts of child molestation but acquitted Petitioner of 6 one count of child molestation and count of aggravated assault. 7 After being convicted, Petitioner was appointed new counsel and that counsel 8 pursued a direct appeal. In the direct appeal, counsel presented arguments regarding the 9 alleged Miranda violation as well as the admission of the Rule 404(c) evidence. Counsel 10 did not, however, pursue any argument regarding the constitutionality of Arizona’s child 11 molestation statute. The Arizona Court of Appeals affirmed Petitioner’s convictions and 12 the Arizona Supreme Court denied review. Petitioner then initiated the post-conviction 13 relief process. 14 The state court appointed another attorney to assist Petitioner with the post- 15 conviction relief process but that attorney could not locate any plausible grounds to argue. 16 Petitioner then prepared and filed a pro se petition arguing Arizona’s child molestation 17 statute was unconstitutional. Petitioner also argued he had received ineffective assistance 18 of appellate counsel during his direct appeal because his counsel had not argued the statute 19 was unconstitutional. In denying his petition, the trial court ruled “[t]o the extent” 20 Petitioner was attempting “to challenge the Constitutionality of [Arizona’s child 21 molestation statute]” he was “precluded” from doing so by Arizona Rule of Criminal 22 Procedure Rule 32.2(a)(2) and (3). Those subsections preclude granting relief on a petition 23 for post-conviction relief “based on any ground” that had been “finally adjudicated on the 24 merits in an appeal” or “waived at trial, on appeal, or in any previous collateral 25 proceeding.” Put plainly, the trial court was saying Arizona’s Rule 32.2 meant Petitioner 26 1 The full jury instructions on this issue were confusing because they seemed to place the 27 burden on Petitioner and the state. In brief, the full jury instructions described the lack of sexual intent as an “affirmative defense” which must be proven by Petitioner but also stated 28 the burden was on the state to prove Petitioner had acted with a sexual intent. (Doc. 19-4 at 81). 1 should have pursued his arguments regarding the constitutionality of the child molestation 2 statute during his direct appeal and, having failed to do so, Petitioner could not obtain post- 3 conviction relief based on such arguments. The trial court did not address Petitioner’s 4 argument regarding ineffective assistance of appellate counsel. 5 Petitioner filed a petition for review with the Arizona Court of Appeals. That court 6 granted review but denied relief. The court of appeals explained Petitioner’s claim 7 regarding the constitutionality of the statute was “precluded by his failure to raise [it] on 8 appeal.” As for the claim involving the ineffectiveness of Petitioner’s appellate counsel, 9 the court noted the Arizona Supreme Court had recently determined Arizona’s child 10 molestation statute was constitutional. Thus, Petitioner had not received ineffective 11 assistance of counsel because the arguments Petitioner believed his attorney should have 12 pursued during the direct appeal would not have been successful. (Doc. 19-4 at 123). 13 Petitioner sought further review by the Arizona Supreme Court as well as the United States 14 Supreme Court but both courts denied review. 15 In June 2018, Petitioner filed the present suit. The Court interpreted Petitioner as 16 asserting three claims: 1) Arizona’s child molestation statute was unconstitutional; 2) 17 Petitioner received ineffective assistance of appellate counsel because that counsel failed 18 to argue the constitutionality of Arizona’s child molestation statute on direct appeal; and 19 3) Petitioner suffered a Miranda violation when the state introduced the statements he made 20 to the caseworker. (Doc. 6 at 1). The state responded that the first claim was procedurally 21 defaulted because Petitioner did not raise it on direct appeal and when he tried to raise it 22 during the post-conviction relief process, the Arizona courts applied a procedural bar. The 23 state conceded, however, that the second and third claims should be analyzed on their 24 merits. (Doc. 19 at 36, 44). But the state argued the Arizona court properly denied relief 25 on those claims. 26 ANALYSIS 27 A. Constitutionality of Arizona’s Child Molestation Statute 28 As explained in more detail in the R&R, Petitioner’s claim regarding the 1 unconstitutionality of Arizona’s child molestation statute is procedurally defaulted. The 2 proper time for Petitioner to have raised that claim was in his direct appeal. Petitioner did 3 not do so and, when raised during the post-conviction relief process, the Arizona courts 4 applied a well-established procedural bar. Therefore, the R&R correctly concluded the 5 Court cannot reach the merits of this claim or grant relief on this claim. 6 B. Ineffective Assistance of Appellate Counsel 7 Petitioner’s second claim involving ineffective assistance of appellate counsel can 8 be reviewed on the merits but the standard for doing so is exceptionally deferential. The 9 question is “whether there is any reasonable argument” that the Arizona courts properly 10 rejected this claim. Martinez v. Ryan, 926 F.3d 1215, 1226 (9th Cir. 2019). It is undisputed 11 that Petitioner’s appellate counsel did not challenge the constitutionality of the child 12 molestation statute.2 But Petitioner is not entitled to relief because, at the time of his 13 appeal, the child molestation statute had long been accepted by Arizona courts. As noted 14 by the Ninth Circuit in a similar case also involving the failure by counsel to argue the 15 constitutionality of Arizona’s child molestation statute, “the long-standing status of the law 16 in Arizona that the State [was] not required to prove sexual intent to successfully prosecute 17 a defendant for child molestation” meant an attorney’s failure to argue the statute’s 18 unconstitutionality did not fall “below an objective standard of reasonableness.” May v. 19 Ryan, 766 F. App’x 505, 506 (9th Cir. 2019). The same conclusion must be reached here. 20 At the time of Petitioner’s appeal, Arizona’s child molestation statute had been in 21 place for years and there is no indication that every reasonable attorney would have argued 22 it was unconstitutional. Therefore, the failure by Petitioner’s counsel to argue the statute’s 23 unconstitutionality on appeal did not fall below the “prevailing professional practice at the 24 time.” Id. Petitioner’s claim for ineffective assistance of appellate counsel fails. 25 2 The state argues the jury instructions given during Petitioner’s trial effectively cured any 26 flaw in the statute. That is, the state believes the constitutionality of the statute itself is immaterial because Petitioner’s jury was instructed that it could convict Petitioner only if 27 the state proved beyond a reasonable doubt that Petitioner had acted with sexual intent. It is not obvious that a state can cure constitutional infirmities in a statute merely by way of 28 jury instructions. But the Court need not resolve this issue as Petitioner’s claim for ineffective assistance of counsel fails for other reasons. 1 C. Admission of Statements 2 Petitioner’s final claim is that the state court erred in its admission of his statements 3 || to the caseworker. This claim was exhausted in state court but, as explained by the R&R, the Arizona Court of Appeals’ decision regarding the admissibility of Petitioner’s 5 || statements “was not unreasonable.” (Doc. 24 at 14). The admissibility of such statements || depends on a careful evaluation of all the surrounding circumstances. The facts that this 7 || Court must accept are that Petitioner invited the caseworker into his home, the caseworker 8 || informed Petitioner he was not required to participate in the interview, and the police 9|| officers who were accompanying the caseworker did not draw their weapons. Given those || facts, the Arizona Court of Appeals’ decision that Petitioner’s statements were admissible 11 || was not “contrary to” nor was it “an unreasonable application of, clearly established || Federal law.” 28 U.S.C. § 2254(d)(1). Petitioner’s Miranda claim fails. 13 Accordingly, 14 IT IS ORDERED the Report and Recommendation (Doc. 24) is ADOPTED with || the additional analysis above. The petition for writ of habeas corpus (Doc. 1) is DENIED and this case is DISMISSED WITH PREJUDICE. 17 IT IS FURTHER ORDERED that a Certificate of Appealability and leave to 18 || proceed in forma pauperis on appeal are DENIED because dismissal of portions of the 19 || petition is justified by a plain procedural bar and jurists of reason would not find the 20 || procedural ruling debatable and because the portions of the petition not procedurally barred || do not make a substantial showing of the denial of a constitutional right. 22 Dated this 2nd day of October, 2019. 23 fo . 24 — 25 26 Senior United States District Judge 27 28 -6-