1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jordan Donald Billups, No. CV-19-05771-PHX-DJH
10 Petitioner, ORDER
11 v.
12 Charles L Ryan, et al.,
13 Respondents. 14 15 Magistrate Judge John Z. Boyle’s Report and Recommendation (“R&R”) (Doc. 45) 16 on Petitioner’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (“Petition”) 17 (Doc. 1) recommends that the Petition be denied and dismissed with prejudice, and a 18 certificate of appealability also be denied. (Doc. 45 at 29–30). Petitioner, through counsel, 19 timely objected to one of the R&R’s recommendations (Doc. 64), and Respondents filed a 20 Reply (Doc. 65). The Court will review the objected to portion of the R&R de novo. See 21 Fed. R. Civ. P. 72(b); 29 U.S.C. § 636(b)(1)(C). 22 I. Background 23 Petitioner asserts six grounds for relief, all of which were analyzed in Magistrate 24 Judge Boyle’s thorough R&R. Petitioner objects to the R&R’s recommended dismissal of 25 his claim in Ground 1 that he was denied due process at sentencing when the judge referred 26 to him as a “dumb ass.” (Doc. 64 at 2). 27 The R&R found that this federal claim had been raised on direct appeal and rejected 28 on the merits by the Arizona appellate court. (Doc. 45 at 12–15). Reviewing the claim 1 under the restrictions of 28 U.S.C. § 2254(d), the Magistrate Judge determined the Arizona 2 Court of Appeals’ decision “was neither an unreasonable application of nor contrary to 3 clearly established federal law and was not based on an unreasonable determination of the 4 facts.” (Id.) He specifically found that “[f]airminded jurists could agree with the court of 5 appeals’ conclusion that the ‘dumb ass’ comment did not indicate an ‘unconstitutional 6 potential for bias’” but was an opinion the judge developed “solely through the course of 7 the proceedings and therefore not evidence of any preconceived bias.” (Id.) 8 In his Objection, Petitioner argues that his due process claim was not considered on 9 the merits because “the facts surrounding the mental lapse (otherwise known as mental 10 lapse or aphasia) suffered by the sentencing judge between his chambers and the courtroom 11 were neither known nor knowable until the non-public proceeding in the Judicial 12 Commission had been concluded.” (Doc. 64 at 3). Petitioner further argues that he could 13 not have presented the claim to the PCR court in his Rule 32 proceedings “because the 14 issue had already been determined on appeal.” (Id.) As a result, he says there was an 15 “absence of available State corrective process” and the claim should be considered de novo 16 on federal habeas review. (Id. citing 28 U.S.C. § 2254(b)(1)(B)(i–ii)). 17 II. Discussion 18 AEDPA1 deference applies only to “claim[s]” that were “adjudicated on the merits 19 in State court proceedings.” 28 U.S.C. § 2254(d). A “claim” for purposes of AEDPA is 20 “an asserted federal basis for relief from a state court’s judgment of conviction.” Gonzalez 21 v. Crosby, 545 U.S. 524, 530 (2005). “Where new evidence in support of a previously 22 argued basis for relief leaves the ‘gravamen of [a petitioner’s] legal argument. . . 23 essentially’ unchanged, Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir. 1999) (per 24 curiam), courts interpreting the word ‘claim’ in 28 U.S.C. § 2244(b) have hesitated to hold 25 that a petitioner’s evidence of such additional evidence creates a new ‘claim.’” Pouncy v. 26 Palmer, 846 F.3d 144, 159 (6th Cir. 2017) (citing United States v. Allen, 157 F.3d 661, 664 27 (9th Cir. 1998)). 28 1 The Antiterrorism and Effective Death Penalty Act of 1996. 1 Petitioner argues that statements made in the sentencing judge’s letter to the state 2 judicial commission present evidence that was not considered by the Arizona appeals court 3 and warrant a de novo review on federal habeas review. After reviewing the judge’s 4 comments, the Arizona appeals court rejected Petitioner’s judicial bias claim by stating 5 After a close review of the record, we cannot conclude the trial judge’s remarks were anything more than an expression of his opinion about the 6 admittedly ill-considered way in which Appellant executed the crimes for 7 which he was charged. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial remarks during the course of a trial that are critical or 8 disapproving of, or even hostile to, counsel, the parties, or their cases, 9 ordinarily do not support a bias or partiality challenge.”). Although ill- advised and inconsistent with the Arizona Code of Judicial Conduct, the 10 judge’s remarks do not rise to the level of “deep-seated favoritism or 11 antagonism” required to demonstrate bias. See id. at 555. (Doc. 64-2 at 6). 12 Following this decision, the sentencing judge wrote a letter to the state judicial 13 commission apologizing for his bad behavior and statements. (Doc. 64-2 at 2). He in part 14 explained that his statements were made in frustration and that he had “completely forgot 15 that the controlling charge for sentencing was the drug offense and not the two weapons 16 charges.” (Id.) He said he “blanked out as to the drug charge until [he] had made the 17 inappropriate comment.” (Id.) Petitioner characterizes this as a “mental lapse” that 18 amounts to a “senior moment” that was not known or considered by the state appeals court 19 when it determined Petitioner’s judicial bias due process claim. 20 The Court rejects this argument on two grounds. First, the record, including the 21 sentencing judge’s letter and the subsequent judicial commission reprimand, does not 22 support that the judge was suffering from any type of cognitive deficiency that biased his 23 sentencing of Petitioner. When he stated in his letter that he “blanked out as to the drug 24 charge,” the judge clearly meant that he momentarily forgot that Petitioner was also 25 convicted of a drug charge, which carried the longest sentence. As the sentences were 26 ultimately imposed to run concurrently, with the drug charge carrying the longest, this 27 momentary “blank out” had no ultimate impact on the sentence that was imposed. (Doc. 28 1 64-1 at 2–3). 2 Second, the judge’s letter does not change the “gravamen” of the legal claim that 3 was adjudicated by the Arizona appeals court, but merely adds facts to Petitioner’s legal 4 argument. Pouncy, 846 F.3d at 159. On direct appeal, Petitioner argued the judge was 5 unconstitutionally biased against him when he called him a dumb ass. The appeals court 6 determined that the judge’s remarks, though clearly inappropriate, derived from the judge’s 7 frustration with the way the crimes were carried out, or as a result of his participation and 8 knowledge about the case, and did not stem from an “extra-judicial source.” (Doc. 64-2 at 9 6).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jordan Donald Billups, No. CV-19-05771-PHX-DJH
10 Petitioner, ORDER
11 v.
12 Charles L Ryan, et al.,
13 Respondents. 14 15 Magistrate Judge John Z. Boyle’s Report and Recommendation (“R&R”) (Doc. 45) 16 on Petitioner’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (“Petition”) 17 (Doc. 1) recommends that the Petition be denied and dismissed with prejudice, and a 18 certificate of appealability also be denied. (Doc. 45 at 29–30). Petitioner, through counsel, 19 timely objected to one of the R&R’s recommendations (Doc. 64), and Respondents filed a 20 Reply (Doc. 65). The Court will review the objected to portion of the R&R de novo. See 21 Fed. R. Civ. P. 72(b); 29 U.S.C. § 636(b)(1)(C). 22 I. Background 23 Petitioner asserts six grounds for relief, all of which were analyzed in Magistrate 24 Judge Boyle’s thorough R&R. Petitioner objects to the R&R’s recommended dismissal of 25 his claim in Ground 1 that he was denied due process at sentencing when the judge referred 26 to him as a “dumb ass.” (Doc. 64 at 2). 27 The R&R found that this federal claim had been raised on direct appeal and rejected 28 on the merits by the Arizona appellate court. (Doc. 45 at 12–15). Reviewing the claim 1 under the restrictions of 28 U.S.C. § 2254(d), the Magistrate Judge determined the Arizona 2 Court of Appeals’ decision “was neither an unreasonable application of nor contrary to 3 clearly established federal law and was not based on an unreasonable determination of the 4 facts.” (Id.) He specifically found that “[f]airminded jurists could agree with the court of 5 appeals’ conclusion that the ‘dumb ass’ comment did not indicate an ‘unconstitutional 6 potential for bias’” but was an opinion the judge developed “solely through the course of 7 the proceedings and therefore not evidence of any preconceived bias.” (Id.) 8 In his Objection, Petitioner argues that his due process claim was not considered on 9 the merits because “the facts surrounding the mental lapse (otherwise known as mental 10 lapse or aphasia) suffered by the sentencing judge between his chambers and the courtroom 11 were neither known nor knowable until the non-public proceeding in the Judicial 12 Commission had been concluded.” (Doc. 64 at 3). Petitioner further argues that he could 13 not have presented the claim to the PCR court in his Rule 32 proceedings “because the 14 issue had already been determined on appeal.” (Id.) As a result, he says there was an 15 “absence of available State corrective process” and the claim should be considered de novo 16 on federal habeas review. (Id. citing 28 U.S.C. § 2254(b)(1)(B)(i–ii)). 17 II. Discussion 18 AEDPA1 deference applies only to “claim[s]” that were “adjudicated on the merits 19 in State court proceedings.” 28 U.S.C. § 2254(d). A “claim” for purposes of AEDPA is 20 “an asserted federal basis for relief from a state court’s judgment of conviction.” Gonzalez 21 v. Crosby, 545 U.S. 524, 530 (2005). “Where new evidence in support of a previously 22 argued basis for relief leaves the ‘gravamen of [a petitioner’s] legal argument. . . 23 essentially’ unchanged, Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir. 1999) (per 24 curiam), courts interpreting the word ‘claim’ in 28 U.S.C. § 2244(b) have hesitated to hold 25 that a petitioner’s evidence of such additional evidence creates a new ‘claim.’” Pouncy v. 26 Palmer, 846 F.3d 144, 159 (6th Cir. 2017) (citing United States v. Allen, 157 F.3d 661, 664 27 (9th Cir. 1998)). 28 1 The Antiterrorism and Effective Death Penalty Act of 1996. 1 Petitioner argues that statements made in the sentencing judge’s letter to the state 2 judicial commission present evidence that was not considered by the Arizona appeals court 3 and warrant a de novo review on federal habeas review. After reviewing the judge’s 4 comments, the Arizona appeals court rejected Petitioner’s judicial bias claim by stating 5 After a close review of the record, we cannot conclude the trial judge’s remarks were anything more than an expression of his opinion about the 6 admittedly ill-considered way in which Appellant executed the crimes for 7 which he was charged. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial remarks during the course of a trial that are critical or 8 disapproving of, or even hostile to, counsel, the parties, or their cases, 9 ordinarily do not support a bias or partiality challenge.”). Although ill- advised and inconsistent with the Arizona Code of Judicial Conduct, the 10 judge’s remarks do not rise to the level of “deep-seated favoritism or 11 antagonism” required to demonstrate bias. See id. at 555. (Doc. 64-2 at 6). 12 Following this decision, the sentencing judge wrote a letter to the state judicial 13 commission apologizing for his bad behavior and statements. (Doc. 64-2 at 2). He in part 14 explained that his statements were made in frustration and that he had “completely forgot 15 that the controlling charge for sentencing was the drug offense and not the two weapons 16 charges.” (Id.) He said he “blanked out as to the drug charge until [he] had made the 17 inappropriate comment.” (Id.) Petitioner characterizes this as a “mental lapse” that 18 amounts to a “senior moment” that was not known or considered by the state appeals court 19 when it determined Petitioner’s judicial bias due process claim. 20 The Court rejects this argument on two grounds. First, the record, including the 21 sentencing judge’s letter and the subsequent judicial commission reprimand, does not 22 support that the judge was suffering from any type of cognitive deficiency that biased his 23 sentencing of Petitioner. When he stated in his letter that he “blanked out as to the drug 24 charge,” the judge clearly meant that he momentarily forgot that Petitioner was also 25 convicted of a drug charge, which carried the longest sentence. As the sentences were 26 ultimately imposed to run concurrently, with the drug charge carrying the longest, this 27 momentary “blank out” had no ultimate impact on the sentence that was imposed. (Doc. 28 1 64-1 at 2–3). 2 Second, the judge’s letter does not change the “gravamen” of the legal claim that 3 was adjudicated by the Arizona appeals court, but merely adds facts to Petitioner’s legal 4 argument. Pouncy, 846 F.3d at 159. On direct appeal, Petitioner argued the judge was 5 unconstitutionally biased against him when he called him a dumb ass. The appeals court 6 determined that the judge’s remarks, though clearly inappropriate, derived from the judge’s 7 frustration with the way the crimes were carried out, or as a result of his participation and 8 knowledge about the case, and did not stem from an “extra-judicial source.” (Doc. 64-2 at 9 6). After commenting on the “dumb-ass way” Petitioner had committed the wrongful 10 possession crimes, the judge woefully noted that Petitioner is “actually a likeable guy” and 11 that was “the sad part of all of this.” (Id.). The judge’s letter to the judicial commission 12 does nothing to alter the appeals court’s analysis of Petitioner’s legal claim, and in fact, 13 only seems to reinforce its conclusions. Pouncy, 846 F.3d at 159 (finding that where new 14 evidence “does not meaningfully alter the legal conclusion. . . asserted. . . on direct appeal,” 15 it does not create a “claim” and the deferential standards of 28 U.S.C. § 2254(d) apply). 16 Though the Arizona Court of Appeals did not have the sentencing judge’s letter before it 17 when it ruled on Petitioner’s due process claim, that does not mean that the claim of bias 18 or prejudice was not adjudicated on the merits. 19 The Magistrate Judge was appropriately limited by the deferential review of section 20 2254(d) in reviewing Ground 1. Petitioner has not pointed to an error in the Magistrate 21 Judge’s analysis of Ground 1 under section 2254(d) and this Court cannot find one. 22 Accordingly, Petitioner’s objection is overruled. The Court has also reviewed the 23 remainder of the R&R and agrees with its findings and conclusions. 24 IT IS ORDERED that Magistrate Judge Boyle’s Report and Recommendation 25 (Doc. 45) is ACCEPTED and ADOPTED as the Order of this Court. 26 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant 27 to 28 U.S.C. § 2254 (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE. 28 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis 2|| on appeal are DENIED because dismissal of the Petitioner is justified by a plain procedural || bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of a denial of a constitutional right. 5 Dated this Ist day of March, 2023. 6 7 fe □□ 8 norable'Diang/. Hurfetewa 9 United States District Fudge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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