1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Donald Kenneth Nelson, No. CV-20-00492-PHX-DLR (MTM)
10 Petitioner, ORDER
11 v.
12 Mark Lamb, et al.,
13 Respondents. 14 15 16 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 17 Michael T. Morrissey (Doc. 24) regarding Petitioner’s Petition for Writ of Habeas Corpus 18 filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that the Petition be 19 denied and dismissed with prejudice. The Magistrate Judge advised the parties that they 20 had fourteen days from the date of service to file specific written objections with the Court. 21 (Doc. 24 at 21-22.) Petitioner filed objections to the Magistrate’s R&R on March 17, 2021 22 (Doc. 25), and Respondents filed their response on March 24, 2021 (Doc. 26). The Court 23 has considered the objections and reviewed the R&R de novo. See Fed. R. Civ. P. 72(b); 24 28 U.S.C. § 636(b)(1). For the following reasons, the R&R is accepted. 25 Petitioner was convicted of one count of driving while impaired and one count of 26 extreme DUI in violation of Arizona law. The Petition raises three grounds for relief. In 27 Ground One, Petitioner claims he was denied due process because he was convicted by 28 blood evidence that was drawn from him on the night of his arrest and allegedly tampered 1 with by the state. In Ground Two, he claims the trial court’s restriction on cross- 2 examination denied him the right to confront witnesses. In Ground Three, he alleges that 3 the convictions for both extreme DUI and driving while impaired to the slightest degree 4 subjected him to double jeopardy. 5 The R&R correctly found Ground One meritless. It explained that Petitioner 6 failed to meet his burden of proving, by clear and convincing evidence, that the state 7 court’s factual determination—that he failed to prove that the blood sample was tampered 8 with—was incorrect. In his objection, Petitioner persists that he carried his burden of 9 showing that the blood was tampered with. (Doc. 25 at 2.) He claims the outer bag 10 containing the evidence was not sealed properly and the Department of Public Safety 11 (“DPS”) did not include the tracking number of the sample. In further support of his 12 argument, he presented two granular still photos from the blood-drawing officer’s 27- 13 minute body cam video and his own self-serving affidavit about the amount of alcohol he 14 consumed. The R&R correctly pointed out that the photos do not show or prove what 15 Petitioner argues. After reviewing the video, the Magistrate Judge correctly determined 16 that “Petitioner’s interpretation of the video footage is incorrect, and certainly does not 17 establish clear and convincing evidence that the blood samples were tampered with.” 18 (Doc. 24 at 13.) Petitioner’s photos do not clearly show three vials and the R&R 19 correctly found that the video shows that, just before the blood was drawn, there were 20 only two vials in the testing tray, not three. 21 Relatedly, Petitioner argues that the state’s late disclosure of the body-cam video, 22 after the motion to suppress was decided, made the denial of an evidentiary hearing 23 unreasonable. However, as the R&R explained, Petitioner’s interpretation of the video 24 and his arguments based on the video are not consistent with what the video shows. 25 Petitioner has not demonstrated that an evidentiary hearing would have resulted in the 26 suppression of any evidence. Likewise, Petitioner has not shown that an evidentiary 27 hearing would have developed any relevant evidence to support his Ground One claim. 28 1 Petitioner also disagrees with the R&R’s determination that “[a]t most, Petitioner 2 established that the seals on the vials were loose and that there was an opportunity for the 3 blood samples to have been tampered with, not that they actually were tempered with” 4 (Doc. 24 at 12), arguing that “[u]ndoubtedly, an expert could enhance the picture to the 5 pixel level and say to a reasonable certainty the three objects in the bag are the same type 6 of object by the color of the pixels.” (Doc. 25 at 4.) The point Petitioner misses is that 7 the burden of proof of his. Mere speculation about what an expert could find from the 8 evidence does not come close to meeting that burden. To the naked eye, and in the 9 context of the other portions of the video, the photos do not show what Petitioner claims 10 they show. 11 Overall, Petitioner disagrees with the R&R’s Ground One findings by making the 12 same arguments set forth in his Petition. However, the R&R correctly applied the 13 standard when it found that the Pinal County Superior Court’s denial of Ground One was 14 neither contrary to nor an unreasonable application of clearly-established federal law nor 15 that the state-court decision was based on an unreasonable factual determination. The 16 blood tampering theory was presented to the jury, who rejected Petitioner’s arguments. 17 Evidence supports the jury’s findings and Petitioner’s disagreement with the jury’s 18 verdict and the superior court’s rejection of his claim does not support federal habeas 19 relief. The R&R correctly concluded that Petitioner failed to carry his burden of proof. 20 See Davis v. Ayala, 576 U.S. 257, 276 (2015). 21 Next, the R&R correctly found Ground Two meritless. The claim is based on the 22 limits the trial court imposed on Petitioner’s cross-examination of two prosecution 23 witnesses. First, Petitioner was not allowed to cross-examine Officer Campano 24 (“Campano”), who performed the blood draw on Petitioner, about a 2008 incident in 25 which Campano received a reprimand for telling a police dispatcher to log him as 26 answering a call he did not answer. Second, Petitioner was not allowed to cross-examine 27 DPS Criminalist Patrick Harding (“Harding”) about a lawsuit brought by another DPS 28 Criminalist against DPS for retaliation after testifying in an alleged unsatisfactory manner 1 in another matter. The R&R correctly found that Petitioner had failed to demonstrate 2 both that trial court erred by placing the limits on cross-examination and that the error 3 was more than harmless. 4 The limits the trial court placed on the cross-examination of Campano did not 5 unreasonably apply the law as set forth in Delaware v. Van Arsdall, 475 U.S. 673, 680 6 (1986). The incident that Petitioner sought to explore in Campano’s cross-examination 7 occurred nearly nine years prior to trial and bore no factual resemblance to the issues in 8 Petitioner’s case. Petitioner argues that this evidence might have caused the jury to look 9 at him in a new light, that the credibility of Campano was so important that it warranted 10 the appointment of an expert to examine the video and stills, and that Campano might 11 have been impeached. (Doc. 25 at 8.) However, Petitioner’s speculation about what an 12 expert might find is a confession of his failure to carry his burden. The Trial court’s 13 ruling was neither contrary to nor an unreasonable application of clearly-established 14 federal law nor was the state-court decision based on an unreasonable factual 15 determination. 16 The R&R also correctly found that, even had the limits on cross-examination 17 violated Petitioner’s Confrontation Clause rights, the constitutional error was harmless 18 beyond a reasonable doubt. Van Arsdall, 475 U.S. at 681.
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Donald Kenneth Nelson, No. CV-20-00492-PHX-DLR (MTM)
10 Petitioner, ORDER
11 v.
12 Mark Lamb, et al.,
13 Respondents. 14 15 16 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 17 Michael T. Morrissey (Doc. 24) regarding Petitioner’s Petition for Writ of Habeas Corpus 18 filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that the Petition be 19 denied and dismissed with prejudice. The Magistrate Judge advised the parties that they 20 had fourteen days from the date of service to file specific written objections with the Court. 21 (Doc. 24 at 21-22.) Petitioner filed objections to the Magistrate’s R&R on March 17, 2021 22 (Doc. 25), and Respondents filed their response on March 24, 2021 (Doc. 26). The Court 23 has considered the objections and reviewed the R&R de novo. See Fed. R. Civ. P. 72(b); 24 28 U.S.C. § 636(b)(1). For the following reasons, the R&R is accepted. 25 Petitioner was convicted of one count of driving while impaired and one count of 26 extreme DUI in violation of Arizona law. The Petition raises three grounds for relief. In 27 Ground One, Petitioner claims he was denied due process because he was convicted by 28 blood evidence that was drawn from him on the night of his arrest and allegedly tampered 1 with by the state. In Ground Two, he claims the trial court’s restriction on cross- 2 examination denied him the right to confront witnesses. In Ground Three, he alleges that 3 the convictions for both extreme DUI and driving while impaired to the slightest degree 4 subjected him to double jeopardy. 5 The R&R correctly found Ground One meritless. It explained that Petitioner 6 failed to meet his burden of proving, by clear and convincing evidence, that the state 7 court’s factual determination—that he failed to prove that the blood sample was tampered 8 with—was incorrect. In his objection, Petitioner persists that he carried his burden of 9 showing that the blood was tampered with. (Doc. 25 at 2.) He claims the outer bag 10 containing the evidence was not sealed properly and the Department of Public Safety 11 (“DPS”) did not include the tracking number of the sample. In further support of his 12 argument, he presented two granular still photos from the blood-drawing officer’s 27- 13 minute body cam video and his own self-serving affidavit about the amount of alcohol he 14 consumed. The R&R correctly pointed out that the photos do not show or prove what 15 Petitioner argues. After reviewing the video, the Magistrate Judge correctly determined 16 that “Petitioner’s interpretation of the video footage is incorrect, and certainly does not 17 establish clear and convincing evidence that the blood samples were tampered with.” 18 (Doc. 24 at 13.) Petitioner’s photos do not clearly show three vials and the R&R 19 correctly found that the video shows that, just before the blood was drawn, there were 20 only two vials in the testing tray, not three. 21 Relatedly, Petitioner argues that the state’s late disclosure of the body-cam video, 22 after the motion to suppress was decided, made the denial of an evidentiary hearing 23 unreasonable. However, as the R&R explained, Petitioner’s interpretation of the video 24 and his arguments based on the video are not consistent with what the video shows. 25 Petitioner has not demonstrated that an evidentiary hearing would have resulted in the 26 suppression of any evidence. Likewise, Petitioner has not shown that an evidentiary 27 hearing would have developed any relevant evidence to support his Ground One claim. 28 1 Petitioner also disagrees with the R&R’s determination that “[a]t most, Petitioner 2 established that the seals on the vials were loose and that there was an opportunity for the 3 blood samples to have been tampered with, not that they actually were tempered with” 4 (Doc. 24 at 12), arguing that “[u]ndoubtedly, an expert could enhance the picture to the 5 pixel level and say to a reasonable certainty the three objects in the bag are the same type 6 of object by the color of the pixels.” (Doc. 25 at 4.) The point Petitioner misses is that 7 the burden of proof of his. Mere speculation about what an expert could find from the 8 evidence does not come close to meeting that burden. To the naked eye, and in the 9 context of the other portions of the video, the photos do not show what Petitioner claims 10 they show. 11 Overall, Petitioner disagrees with the R&R’s Ground One findings by making the 12 same arguments set forth in his Petition. However, the R&R correctly applied the 13 standard when it found that the Pinal County Superior Court’s denial of Ground One was 14 neither contrary to nor an unreasonable application of clearly-established federal law nor 15 that the state-court decision was based on an unreasonable factual determination. The 16 blood tampering theory was presented to the jury, who rejected Petitioner’s arguments. 17 Evidence supports the jury’s findings and Petitioner’s disagreement with the jury’s 18 verdict and the superior court’s rejection of his claim does not support federal habeas 19 relief. The R&R correctly concluded that Petitioner failed to carry his burden of proof. 20 See Davis v. Ayala, 576 U.S. 257, 276 (2015). 21 Next, the R&R correctly found Ground Two meritless. The claim is based on the 22 limits the trial court imposed on Petitioner’s cross-examination of two prosecution 23 witnesses. First, Petitioner was not allowed to cross-examine Officer Campano 24 (“Campano”), who performed the blood draw on Petitioner, about a 2008 incident in 25 which Campano received a reprimand for telling a police dispatcher to log him as 26 answering a call he did not answer. Second, Petitioner was not allowed to cross-examine 27 DPS Criminalist Patrick Harding (“Harding”) about a lawsuit brought by another DPS 28 Criminalist against DPS for retaliation after testifying in an alleged unsatisfactory manner 1 in another matter. The R&R correctly found that Petitioner had failed to demonstrate 2 both that trial court erred by placing the limits on cross-examination and that the error 3 was more than harmless. 4 The limits the trial court placed on the cross-examination of Campano did not 5 unreasonably apply the law as set forth in Delaware v. Van Arsdall, 475 U.S. 673, 680 6 (1986). The incident that Petitioner sought to explore in Campano’s cross-examination 7 occurred nearly nine years prior to trial and bore no factual resemblance to the issues in 8 Petitioner’s case. Petitioner argues that this evidence might have caused the jury to look 9 at him in a new light, that the credibility of Campano was so important that it warranted 10 the appointment of an expert to examine the video and stills, and that Campano might 11 have been impeached. (Doc. 25 at 8.) However, Petitioner’s speculation about what an 12 expert might find is a confession of his failure to carry his burden. The Trial court’s 13 ruling was neither contrary to nor an unreasonable application of clearly-established 14 federal law nor was the state-court decision based on an unreasonable factual 15 determination. 16 The R&R also correctly found that, even had the limits on cross-examination 17 violated Petitioner’s Confrontation Clause rights, the constitutional error was harmless 18 beyond a reasonable doubt. Van Arsdall, 475 U.S. at 681. There was ample evidence 19 presented at trial of Petitioner’s impairment and his blood alcohol levels. For example, 20 the toxicology report of Petitioner’s blood alcohol content was admitted without 21 objection. And, Petitioner had ample opportunity to cross-examine Campano on his 22 direct examination, and there was substantial corroborating evidence for Campano’s 23 testimony. Therefore, the R&R correctly determined that “Petitioner has not made a 24 showing that ‘[a] reasonable jury might have received a significantly different impression 25 of [the witness’] credibility had [the defense] been permitted to pursue his proposed line 26 of cross-examination.’” (Doc. 24 at 17 (quoting Van Arsdall, 475 at 680).) 27 Turning to the Harding cross-examination, the R&R correctly determined that the 28 limits did not violate the Confrontation Clause. The lawsuit that the trial court prohibited 1 Petitioner from exploring on cross-examination was unrelated to Petitioner’s case and did 2 not involve Harding. Petitioner has not shown how Harding’s mere awareness of the 3 lawsuit would have undermined Harding’s testimony. Petitioner has therefore failed to 4 show how his cross-examination of Harding could “lead to any facts from which a jury 5 could draw a permissible inference about the reliability or credibility of the victim’s 6 testimony.” Herrera v. Att’y Gen. of Ariz., No. CV-17-00183-TUC-RM, 2021 WL 7 347815, at *6 (D. Ariz. Feb. 2, 2021). 8 Finally, the R&R correctly found Ground Three meritless. The two crimes for 9 which Petitioner was convicted are not multiplications because each statute “requires 10 proof of a fact which the other does not.” United States v. Wahchumwah, 710 F.3d 862, 11 868-69 (9th Cir. 2013) (citing Blockburger, 284 U.S. 299, 304 (1932)). Therefore, 12 convictions of the crimes for which Petitioner was charged do not raise Double Jeopardy 13 concerns. The offense of Driving Under the Influence, A.R.S. § 28-1381(A)(1), requires 14 proof that a person in physical control of a vehicle is “under the influence of intoxicating 15 liquor” and is “impaired to the slightest degree.” In contrast, the offense of extreme DUI, 16 A.R.S. § 28-1382(A)(2) requires proof that a person has a blood alcohol concentration 17 (“BAC”) of 0.20 or more “within two hours of driving or being in actual physical control 18 of the vehicle and the alcohol consecration results from alcohol consumed either before 19 or while driving or being in actual physical control of the vehicle.” The elements of the 20 statutes are different, enabling a person to violate one without violating the other. See 21 Anderjeski v. City Court of City of Mesa, 663 P.2d 233, 234-35 (Ariz. 1983). 22 Accordingly, 23 IT IS ORDERED that the R&R (Doc.24) is ACCEPTED. 24 IT IS FURTHER ORDERED that Petitioner’s Objections to the R&R (Doc. 25) 25 are OVERRULED. 26 IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus 27 pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED and DISMISSED WITH 28 PREJUDICE. 1 IT IS FURTHER ORDERED that a Certificate of Appealability and leave to || proceed in forma pauperis on appeal are DENIED because reasonable jurists would not || find the ruling debatable, and because Petitioner has not made a substantial showing of the 4|| denial of a constitutional right. The Clerk of the Court shall enter judgment denying and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 6 || 2254 (Doc. 1) with prejudice and shall terminate this action. 7 Dated this 14th day of May, 2021. 8 9 10 {Z, 11 _—_- a 12 Upited States Dictric Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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