Botch v. Attorney General of the State of Arizona

• Court: District Court, D. Arizona
• Decided: December 30, 2021
• Docket: 2:21-cv-00466
• Status: Unknown

Opinion

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

9 Gererd Kenneth Botch, No. CV-21-00466-PHX-DLR (MTM)

10 Petitioners, REPORT AND RECOMMENDATION

11 v.

12 Attorney General of the State of Arizona,

13 Respondents. 14 15 TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT 16 JUDGE: 17 Petitioner Gererd Kenneth Botch has filed an amended Petition for a writ of habeas 18 corpus under 28 U.S.C. § 2254. (Docs. 12, 14.) 19 I. SUMMARY OF CONCLUSION 20 Petitioner asserts an illegal search and seizure violated his Fourth Amendment 21 rights, resulting in a jury convicting him in Superior Court on one count of possession or 22 use of dangerous drugs. Because Petitioner’s request for relief is not cognizable in federal 23 habeas proceedings, the Court recommends the amended Petition be denied and dismissed 24 with prejudice. 25 II. BACKGROUND 26 A. Conviction and Sentencing 27 The Court presumes the state court’s recounting of the facts is correct. 28 U.S.C. 28 § 2254(e)(1). The Arizona Court of Appeals summarized the underlying facts of 1 Petitioner’s offense and conviction as follows: 2 In April 2017, Officer Baynes was on patrol in the west side of Phoenix. 3 Around 1 a.m. he noticed a roadway, ending in a cul-de-sac, blocked by three 4 or four shopping carts, a bicycle with a cart attached to it, and a fifty-five- gallon drum. Baynes also observed a “transient camp” on the side of the 5 roadway. Botch and Randell Havier were in the middle of the road, and 6 Baynes approached both men. Baynes first questioned Havier, who was later arrested for marijuana possession. Baynes asked Botch whether he possessed 7 any drugs or drug paraphernalia. Botch said he did not, but he could not 8 vouch for what was inside a nearby backpack.

9 Baynes asked to search Botch’s pockets. The parties disagree whether 10 consent was given. Regardless, a search occurred and Baynes found cash, a bag of methamphetamine and a tightly-rolled dollar bill in Botch's pockets. 11 Baynes activated his recording device, Mirandized Botch, and interviewed 12 him. About sixteen minutes into the recorded interview, Botch said he never consented to be searched. 13 Botch was arrested, charged, and convicted of possession or use of dangerous 14 drugs, a Class 4 felony. Botch filed a pretrial motion to suppress evidence of 15 drugs, drug paraphernalia, and statements he made to Baynes, claiming the encounter was illegal and that he did not consent to Baynes searching him. 16 At the suppression hearing, Baynes testified that Botch consented to the 17 search, but Havier testified that Botch “told [Baynes] not to” search his pockets. 18

19 The court denied Botch’s motion to suppress. Because of a factual error in the court's order, the State requested and obtained an order nunc pro tunc 20 correcting the error; the court also sua sponte clarified its previous ruling and 21 expressly found Botch consented to the search.

22 Following his conviction, Botch was sentenced to a mitigated term of six 23 years in prison. 24 State v. Botch, No. 1 CA-CR 19-0383, 2020 WL 5834845, at *1 (Ariz. App. Oct. 1, 25 2020). (Doc. 18-1, Ex. S, at 209–10.) 26 B. Direct Appeal 27 Petitioner timely appealed his conviction, challenging: (1) the denial of his motion 28 to suppress; (2) alleged prosecutorial misconduct; and (3) allegedly improper trial 1 testimony. (Doc. 18-1, Ex. P, at 111–154.) Petitioner argued the Superior Court erred 2 because law enforcement’s search and seizure lacked reasonable suspicion of criminal 3 activity and consent. (Doc. 18-1, Ex. P, at 111–30.) The Arizona Court of Appeals affirmed 4 Petitioner’s conviction on October 1, 2020. (Doc. 18-1, Ex. S, at 209.) The Arizona 5 Supreme Court denied his petition for review on February 16, 2021. (Doc. 18-1, Ex. T, at 6 217; Doc. 18-1, Ex. U, at 236.) 7 C. Post-Conviction Relief Proceedings 8 Petitioner filed a notice of post-conviction relief in the Superior Court on April 5, 9 2021. (Doc. 18-1, Ex. W, at 240.) The Superior Court appointed counsel, but to date 10 nothing in the record indicates it has ruled on the petition. (Doc. 18-1, Ex. X, at 248.) 11 Respondents concede the pending post-conviction relief petition does not prevent this 12 Court from resolving Petitioner’s habeas Petition. (Doc. 18 at 6.) Because Petitioner raised 13 his ground for relief to the Arizona Court of Appeals, he has exhausted his claim in the 14 state courts. See Kyzar v. Ryan, 780 F.3d 940, 947 (9th Cir. 2015) (“Except in habeas 15 petitions in life-sentence or capital cases, claims of Arizona state prisoners are exhausted 16 for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” 17 (alteration omitted) (citation omitted)). Further, because Petitioner’s ground for relief was 18 “finally adjudicated on the merits in an appeal,” he is precluded from raising it in an 19 Arizona post-conviction relief proceeding. See Ariz. R. Crim. P. 32.2(a)(2). Petitioner’s 20 sole ground for relief, therefore, is properly before this Court. 21 III. PETITION FOR WRIT OF HABEAS CORPUS 22 As summarized in this Court’s Order, Petitioner “raises one ground for relief, 23 alleging his Fourth Amendment rights were violated when he was subjected to an illegal 24 search and seizure.” (Doc. 15 at 3.) Petitioner contends law enforcement’s search and 25 seizure, which resulted in the evidence used against him at trial, were illegal. (Doc. 12 at 26 3.) He asserts law enforcement “violated [his] 4th Amendment right to privacy and to not 27 be harassed.” (Doc. 12 at 3.) 28 This Court may review petitions for a writ of habeas corpus from individuals held 1 in custody under a state-court judgment on the ground the person is in custody in violation 2 of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Petitioner’s 3 ground for relief, however, is not cognizable in federal habeas proceedings. A Fourth 4 Amendment claim is not cognizable in a § 2554 proceeding when the petitioner had “an 5 opportunity for full and fair litigation” of the claim in state court. Stone v. Powell, 428 U.S. 6 465, 494 (1976); see Newman v. Wengeler, 790 F.3d 876, 878–79 (9th Cir. 2015) (holding 7 the Stone doctrine survived the passage of the Antiterrorism and Effective Death Penalty 8 Act, which governs federal habeas proceedings). The ability to move for suppression of 9 evidence constitutes “an opportunity for full and fair litigation,” regardless of whether a 10 claim was actually raised or litigated. See Gordan v. Duran, 895 F.2d 610, 613–14 (9th 11 Cir. 1990). 12 Here, Petitioner had, and indeed took advantage of, a full and fair opportunity to 13 litigate the search-and-seizure issue. Before trial, Petitioner moved to suppress the drugs 14 and drug paraphernalia law enforcement found on his person, as well as post-search 15 statements. (Doc. 18-1, Ex. C, at 11.) The State opposed the motion, and the Superior 16 Court held an evidentiary hearing. (Doc. 18-1, Ex. D, at 27–39; Doc. 18-1, Ex. E, at 42). 17 The Superior Court ruled law enforcement had reasonable suspicion a crime had occurred, 18 and the search was incident to a valid arrest. (Doc. 18-1, Ex. F, at 47.) Further, the Superior 19 Court found Petitioner consented to the search. (Doc. 18-1, Ex. G, at 50.) Petitioner raised 20 the issue again in a motion for reconsideration to the Superior Court (doc. 18-1, Ex. I, at 21 58–61), in his direct appeal to the Arizona Court of Appeals (doc. 18-1, Ex. P, at 111–30), 22 and in his petition for review to the Arizona Supreme Court (doc. 18-1, Ex. T, at 224–32). 23 Petitioner fully exercised his opportunities in the Arizona courts to litigate his Fourth 24 Amendment issue. Accordingly, Petitioner’s ground for federal habeas relief is not 25 cognizable in this Court. See Moormann v. Shriro, 426 F.3d 1044, 1053 (9th Cir. 2005) 26 (petitioner had “full and fair opportunity” to litigate Fourth Amendment issue when 27 petitioner raised the issue in a pre-trial motion, the trial court held an evidentiary hearing, 28 the trial court made a factual finding and ruled, and appellate courts reviewed the trial 1 court’s decision). 2 In his Reply, Petitioner characterizes his Fourth Amendment claim as distinct from 3 a precluded, exclusionary-rule claim. Petitioner asserts he “does not argue a 4 subconstitutional issue,” as he does not argue that suppression “of the illegally seized 5 evidence” should have occurred. (Doc. 19 at 3.) Rather, Petitioner argues his ground for 6 relief “addresses the clear constitutional prohibition against illegal searches by the agents 7 of the government.” (Doc. 19 at 3.) 8 Fourth Amendment claims not grounded in the exclusionary rule may be cognizable 9 in federal habeas proceedings in some circumstances. See Burnett v. Mun. of Anchorage, 10 634 F. Supp. 1029, 1033–34 (D. Alaska Feb. 28, 1986), aff’d, 806 F.2d 1447 (9th Cir. 11 1986) (addressing the merits of the petitioners’ claims). In Burnett, the petitioners argued 12 Alaska’s implied-consent law was unconstitutional and violated their Fourth Amendment 13 rights. Id. at 1034. There, the District Court distinguished that challenge from “typical 14 Fourth Amendment claims, in which the petitioner seeks habeas review of an issue that has 15 no bearing on the basic justice of his incarceration.” Id. (quoting Stone, 428 U.S. at 491, 16 n.31) (alteration omitted) (internal quotation marks omitted). “Although the petitioners are 17 challenging the validity of a purported search, they are not doing so in the context of an 18 objection to the admissibility of evidence, but rather as part of a challenge to the very 19 constitutionality of the statutes under which they were convicted.” Id. The District Court 20 in Burnett held that the petitioners’ habeas claims were cognizable. Id. 21 Here, the Court is not persuaded by Petitioner’s attempt to distinguish Stone. This 22 case is less like Burnett and more like the “typical Fourth Amendment claim” to which 23 Stone alludes. 428 U.S. at 491, n.31. Unlike in Burnett, Petitioner’s challenge does not 24 touch the “basic justice of his incarceration.” 634 F. Supp. at 1034 (citation omitted). 25 Petitioner does not challenge the validity of the statute under which he was convicted. He 26 merely contends the search and seizure themselves were unlawful, principally by attacking 27 the Superior Court’s probable-cause and consent findings. Indeed, despite how Petitioner’s 28 Reply frames his request for relief, his habeas Petition does attack the admissibility of 1 evidence, as Petitioner asks the Court to release him because he “proceeded to trial with 2 evidence that was fabricated and should not have been allowed.” (Doc. 12 at 8.) The Reply 3 invokes “the clear constitutional prohibition against illegal searches by the agents of the 4 government.” (Doc. 19 at 3.) The remedy for an illegal search, however, is suppression 5 of evidence. See United States v. Garcia, 974 F.3d 1071, 1075 (9th Cir. 2020) (“The typical 6 remedy for a Fourth Amendment violation is the exclusion of evidence discovered as a 7 result of that violation from criminal proceedings against the defendant.”). Accordingly, 8 even assuming Fourth Amendment claims not based on exclusionary-rule arguments are 9 cognizable in federal habeas proceedings, Petitioner’s case is does not fit within that 10 exception and is instead a non-cognizable, “typical Forth Amendment claim.” See Stone, 11 428 U.S. at 491, n.31. 12 IV. CONCLUSION 13 Petitioner’s sole ground for relief is not cognizable in federal habeas proceedings. 14 The record is sufficiently developed, and the Court finds an evidentiary hearing is 15 unnecessary for resolving this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 16 2011). Accordingly, 17 IT IS RECOMMENDED the amended Petition for a writ of habeas corpus (docs. 18 12, 14) be DENIED and DISMISSED WITH PREJUDICE. 19 IT IS FURTHER RECOMMENDED a certificate of appealability and leave to 20 proceed in forma pauperis on appeal be DENIED. Petitioner has not demonstrated 21 reasonable jurists could find the ruling debatable or jurists could conclude the issues 22 presented are adequate to deserve encouragement to proceed further. See Miller-El v. 23 Cockrell, 537 U.S. 322, 327 (2003). 24 This Report and Recommendation is not an order that is immediately appealable to 25 the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate 26 Procedure 4(a)(1) should not be filed until entry of the District Court’s judgment. The 27 parties have fourteen days from the date of service of this Report and Recommendation’s 28 copy to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days to respond to the 2|| objections. Failure to timely object to the Magistrate Judge’s Report and Recommendation || may result in the District Court’s acceptance of the Report and Recommendation without 4|| further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). || Failure to timely object to any factual determinations of the Magistrate Judge may be 6 || considered a waiver of a party’s right to appellate review of the findings of fact in an order 7\| of judgment entered pursuant to the Magistrate Judge’s Report and Recommendation. See 8 || Fed. R. Civ. P. 72. 9 Dated this 30th day of December, 2021. 10 I Marta Marrissey

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