Berry v. Shinn

• Court: District Court, D. Arizona
• Decided: March 26, 2021
• Docket: 3:19-cv-08274
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Edwin Taylor Berry, No. CV-19-08274-PCT-JAT

10 Petitioner, ORDER

11 v.

12 David Shinn, et al.,

13 Respondents. 14 15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus. 16 Petitioner is challenging a ten (10) year sentence for sexual exploitation of a minor and 17 attempted sexual exploitation of a minor. If this Petition is granted and the State tries 18 Petitioner in state court, Petitioner would face a potential minimum sentence of seventy 19 (70) years. (See Doc. 17 at 8). The Magistrate Judge to whom this case was assigned issued 20 a Report and Recommendation (“R&R”) recommending that the Petition be denied. (Doc. 21 17). Petitioner filed his objections (Doc. 22) and Respondents responded to the objections 22 (Doc. 25). 23 I. Review of R&R 24 This Court “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 26 the district judge must review the magistrate judge’s findings and recommendations de 27 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 28 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo 2 review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); 3 Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th 4 Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge’s] 5 recommendations to which the parties object”). District courts are not required to conduct 6 “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 7 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1) (“[T]he court shall make a de 8 novo determination of those portions of the [report and recommendation] to which 9 objection is made.”). 10 However, global or general objections are insufficient to cause the Court to engage 11 in a de novo review of an R&R. See Kenniston v. McDonald, No. 15-CV-2724-AJB-BGS, 12 2019 WL 2579965, at *7 (S.D. Cal. June 24, 2019) (“‘When a specific objection is made 13 to a portion of a magistrate judge’s report-recommendation, the Court subjects that portion 14 of the report-recommendation to a de novo review.’ Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 15 636(b)(1)(C). To be ‘specific,’ the objection must, with particularity, identify the portions 16 of the proposed findings, recommendations, or report to which it has an objection and the 17 basis for the objection. See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 18 2002).”). Accordingly, the Court will review the portions of the R&R to which there is a 19 specific objection de novo. 20 II. Review of State Court Decision 21 The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is 22 incarcerated based on a state conviction. With respect to any claims that Petitioner 23 exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must 24 deny the Petition on those claims unless “a state court decision is contrary to, or involved 25 an unreasonable application of, clearly established federal law” or was based on an 26 unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 27 Further, this Court must presume the correctness of the state court’s factual findings 28 regarding a petitioner’s claims. 28 U.S.C. § 2254(e)(1). Additionally, “[a]n application for 1 a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the 2 applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 3 2254(b)(2). 4 III. Factual Background 5 The R&R recounts the factual and procedural history of this case, as well as the 6 governing law, at pages 1–13. (Doc. 17 at 1–13). Neither party has objected to this portion 7 of the R&R and the Court hereby accepts and adopts it. 8 IV. Claims in the Petition 9 The Court has determined Petitioner raises 2 grounds for relief in his Petition. The 10 Court will address each ground in turn. 11 A. Ground 1 12 In his first ground for relief, Petitioner claims he received ineffective assistance of 13 counsel for multiple reasons. 14 First, Petitioner claims he was “denied due process when counsel failed to 15 investigate the state[’]s case, (see the ‘police report’) upon arrest” and the Department of 16 Homeland Security never disclosed the probable cause needed to secure the warrant to 17 search his home. (Doc. 22 at 2). Although Petitioner has not specifically stated so, the Court 18 will interpret this ground as an ineffective assistance of counsel claim. The Arizona Court 19 of Appeals denied relief based on this contention and found that further investigation would 20 not have changed the outcome of the case. (Doc. 1 at 3). The R&R did not specifically 21 address this factual predicate of ineffective assistance of counsel, but Petitioner raised it in 22 his initial Petition, (Doc. 1 at 17) so the Court will address this claim now. 23 To prevail on a claim for ineffective assistance, Petitioner must show that “(1) his 24 attorney’s performance was unreasonable under prevailing professional standards, and (2) 25 a reasonable probability that but for counsel’s unprofessional errors, the results would have 26 been different.” United States v. Blaylock 20 F.3d 1458, 1465 (1994) (quoting Strickland 27 v. Washington, 466 U.S. 668, 687–94 (1984)). Additionally, in the context of a pleading 28 defendant, Petitioner must establish a “reasonable probability that, but for counsel’s errors, 1 he would not have pleaded guilty and would have insisted on going to trial.” Hill v. 2 Lockhart, 474 U.S. 52, 59 (2009). When a petitioner asserts ineffective assistance of 3 counsel based on a claim of failure to investigate, a particular decision not to investigate 4 “must be directly assessed for reasonableness in all circumstances, applying a heavy 5 measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691. 6 To start, Petitioner has cited no facts in the record to support his contention that his 7 attorney failed to investigate potential issues with the warrant used to seize evidence from 8 Petitioner’s residence. Moreover, even if Petitioner’s counsel had investigated the warrant 9 for lack of probable cause, any evidence obtained from this allegedly deficient search 10 warrant would still likely be admissible under the good-faith exception to the exclusionary 11 rule. See United States v. Leon, 468 U.S. 897 (1984) (holding officer’s reasonable, good- 12 faith reliance on determination of probable cause by magistrate judge does not warrant 13 suppression of evidence after warrant is subsequently determined to be invalid). Petitioner 14 does not assert that the judge who issued the warrant abandoned their detached and neutral 15 role. See id. (finding suppression reasonable when an issuing magistrate judge wholly 16 abandons their role as a detached, neutral arbiter). Instead he asserts—without any citation 17 or support from the record—that federal agents conspired with local law enforcement to 18 obtain a warrant based on illegally-obtained probable cause. (See Doc. 1 at 17). The Court 19 can find nothing in the record to support that contention, leading to the belief that counsel 20 reasonably exercised her discretion in not pursuing futile investigation. Even if Petitioner’s 21 counsel believed Petitioner’s contention regarding an illegal wiretap, there is nothing in the 22 record to indicate anything but officers’ reasonable reliance on the judge’s determination 23 of probable cause. In line with prevailing professional standards, counsel reasonably 24 refrained from further investigation on a subject that would yield no better outcome for her 25 client. 26 Accordingly, Petitioner has failed to satisfy the first prong of the Strickland test. 27 Further, because there is no evidence indicating a deficiency in the warrant to investigate, 28 the results would not have been different, and Petitioner has failed to satisfy the second 1 prong of the Strickland test. Finally, the Court agrees with the R&R that Petitioner has not 2 “shown, rather than simply alleged, that he was prejudiced by counsel’s performance” and 3 thus fails to meet the Hill standard. (Doc. 17 at 13). For the foregoing reasons, the Arizona 4 Court of Appeals’ decision was not contrary to or an unreasonable application of clearly 5 established federal law or an unreasonable determination of the facts. See Lockyer v. 6 Andrade, 538 U.S. 63, 71 (2003). 7 Second, Petitioner claims he received ineffective assistance of counsel due to his 8 counsel failing to acquaint herself enough with the relevant law to argue the prosecution 9 could not prove its case and, as a result, erroneously recommended a plea deal to Petitioner. 10 In particular, Petitioner asserts that the prosecution could not prove that the incriminating 11 images were that of “minors” as required by A.R.S. § 13-3553. (Doc. 22 at 3). 12 As the R&R explains, the State need not prove the actual identity of a minor child 13 to make its case under A.R.S. § 13-3553. (Doc. 17 at 9). Petitioner misinterprets the holding 14 of State v. Hazlett in his Petition. (Doc. 22 at 3). This Court agrees with the R&R that 15 Hazlett requires the State to prove not that the persons depicted in the images be identified 16 as opposed to unidentified, but rather that they be actual minors and not fictitious 17 characters. (Doc. 17 at 10). As iterated in the R&R, a medical doctor identified the 18 individuals in the images as under age 15. Since it is apparent the prosecution could satisfy 19 their burden on this point, counsel reasonably did not push this legal theory and advised 20 her client to accept a plea agreement that substantially reduced his maximum possible 21 sentence. Accordingly, Petitioner has failed to satisfy either prong of the Strickland test. 22 First, counsel’s advice regarding the applicable law and strength of the prosecution’s case 23 cannot be considered unreasonable under prevailing professional standards. Second, 24 Petitioner has failed to show that the results would have been different since his “fictitious 25 children” theory has no merit. Thus, Petitioner’s objections are overruled and the R&R is 26 accepted on Ground 1. 27 B. Ground 2 28 In his second ground for relief, Petitioner argues somewhat vaguely that the 1 || judiciary and counsel in this case have encroached upon the Arizona state legislature’s 2|| powers and violated the Arizona Code of Judicial Conduct and Arizona Rules of □□ Professional Conduct by issuing Petitioner’s sentence. (See Doc. 22 at 5-6). Petitioner seems to believe that the Arizona legislature must iterate an “explicit” sentence for the 5 || judiciary to apply to Petitioner’s case, rather than the current sentencing guidelines passed □□ by the legislature to govern sentencing, which give judges a certain amount of discretion. 7\| This issue was brought up in Petitioner’s initial “separate memorandum,” (Doc. | at 15) 8 || but was not addressed by the Magistrate Judge in the R&R. Since Petitioner brought the ground for relief up again in his Objection to this Court (Doc. 22), the Court will address || the ground. See 28 U.S.C. § 2254(b)(2) (a federal court may deny a habeas petition on the || merits even if Petitioner failed to exhaust the remedies available in state court.). Petitioner || has not cited, and the Court has not located, any law that makes judicial discretion in 13 || sentencing unconstitutional such that habeas relief on this theory would be justified. Accordingly, Petitioner’s objections are overruled and relief on Ground 2 is denied. V. Conclusion 16 Based on the foregoing, 17 IT IS ORDERED that the Report and Recommendation (Doc. 17) is accepted and 18 |} adopted; the objections (Doc. 22) are overruled; the Clerk of the Court shall enter judgment || denying the Petition, with prejudice. 20 IT IS FURTHER ORDERED that pursuant to Rule 11 of the Rules governing || Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability because Petitioner has not made a substantial showing of the 23 || denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). 24 Dated this 25th day of March, 2021. 25 26 i C 27 James A. Teilborg 28 Senior United States District Judge

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