Plunkett v. Attorney General of the State of Arizona

• Court: District Court, D. Arizona
• Decided: March 26, 2021
• Docket: 3:19-cv-08299
• Status: Unknown

Opinion

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

9 Louis Hugh Plunkett, Jr., No. CV-19-08299-PCT-MTL

10 Petitioner, ORDER

11 v.

12 Attorney General of the State of Arizona, et al., 13 Respondents. 14 15 Before the Court is Magistrate Judge Camille D. Bibles’ Report and 16 Recommendation (“R&R”) (Doc. 13), recommending that the Petition for Writ of Habeas 17 Corpus (the “Petition”) (Doc. 1) be denied. The Court has reviewed the Petition (Doc. 1), 18 Respondents’ Response to the Petition (Doc. 8), Petitioner’s Reply to the Response 19 (Doc. 11), Petitioner’s Addendum to his Reply (Doc. 12), the R&R (Doc. 13), 20 Petitioner’s Objection to the R&R (Doc. 14), and Respondents’ Reply to Petitioner’s 21 Objection (Doc. 15). For the reasons expressed below, the Court overrules Petitioner’s 22 objections and adopts the R&R. 23 I. BACKGROUND 24 A Mohave County grand jury indicted Petitioner for one count of first-degree 25 murder, or in the alternative felony first-degree murder; one count of tampering with 26 physical evidence; one count of fraudulent schemes and artifices; and one count of 27 forgery. (Doc. 8-1 at 4–6.) The day before Petitioner’s trial, the trial court granted his 28 motion to waive his right to counsel and proceed pro per, and his pretrial counsel was 1 appointed as advisory counsel. (Id. at 214–18.) After the prosecution rested, the trial 2 court granted acquittal for the forgery charge. (Id. at 16–18.) An Arizona Superior Court 3 jury convicted Petitioner on all the remaining counts. (Id. at 20–22.) Petitioner was 4 sentenced to the following consecutive terms of imprisonment: natural life for first- 5 degree murder, eight years for fraudulent schemes and artifices, and nine months for 6 tampering with evidence. (Id. at 24–26.) 7 Petitioner’s appointed counsel timely appealed his conviction and sentence to the 8 Arizona Court of Appeals. (Id. at 28–29, 31–60.) In May 2016, the Arizona Court of 9 Appeals affirmed his convictions and sentences. State v. Plunkett, No. 1 CA-CR 15-0161, 10 2016 WL 3030126 (Ariz. App. May 26, 2016). The Arizona Supreme Court then denied 11 review. (Doc. 8-1 at 148.) On March 30, 2017, Petitioner filed a notice of post-conviction 12 relief requesting court-appointed counsel. (Id. at 150–56.) The trial court appointed 13 Petitioner counsel, who helped him raise several claims in his original and supplemented 14 post-conviction relief petitions. (Id. at 161–76, 178–88.) The trial court dismissed this 15 post-conviction relief petition in March 2018. (Id. at 223–24.) Petitioner appealed this 16 decision. (Id. at 227–48.) The Arizona Court of Appeals granted review but denied relief 17 on all grounds. State v. Plunkett, No. CA-CR 18-0523 PRPC, 2018 WL 5729207 (Ariz. 18 App. Oct. 30, 2018). Petitioner did not seek review to the Arizona Supreme Court after 19 the appellate court’s denial. (Doc. 1 at 5.) Petitioner then timely filed the instant habeas 20 proceedings. (Doc. 1.) 21 II. LEGAL STANDARD 22 When reviewing a state prisoner’s habeas corpus petition under 28 U.S.C. § 2254, 23 this Court “must decide whether the petitioner is ‘in custody in violation of the 24 Constitution or laws or treaties of the United States.’” Coleman v. Thompson, 501 25 U.S. 722, 730 (1991) (quoting 28 U.S.C. § 2254). The Court only reviews de novo those 26 portions of the report specifically objected to and “may accept, reject, or modify, in 27 whole or in part, the findings and recommendations made by the magistrate judge.” 28 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must 1 determine de novo any part of the magistrate judge’s disposition that has been properly 2 objected to.”). The Court need not “review . . . any issue that is not the subject of an 3 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). A proper objection to a magistrate 4 judge’s R & R requires “specific written objections to the proposed findings and 5 recommendations.” Fed. R. Civ. P. 72(b)(2). If a petitioner raises a general objection, 6 “the Court is relieved of any obligation to review it.” Martin v. Ryan, No. CV-13-00381- 7 ROS, 2014 WL 5432133, at *2 (D. Ariz. Oct. 24, 2014). 8 III. DISCUSSION 9 The Petition raises nine claims challenging his convictions and sentences: (1) the 10 trial court erred in finding that Petitioner voluntarily waived his right to counsel; 11 (2) pretrial counsel was ineffective for failing to subpoena a witness for trial; (3) pretrial 12 counsel was ineffective for failing to employ a computer sciences expert to aid his 13 defense; (4) pretrial counsel was ineffective for failing to provide interview notes to 14 Petitioner; (5) pretrial counsel was ineffective for failing to investigate the medical 15 examiner’s credentials; (6) the medical examiner’s lack of credentials constitutes newly 16 discovered evidence warranting a new trial; (7) the trial judge was biased; (8) the 17 prosecutor committed misconduct during closing argument; and (9) the trial court erred 18 by precluding cross-examination of a witness. (Doc. 1 at 8–38.) The R&R recommends 19 that the Petition be denied. (Doc. 13 at 36.) The R&R concludes that the “state appellate 20 court’s denial of relief on [Petitioner’s] properly exhausted federal habeas claims was not 21 contrary to nor an unreasonable application of clearly established federal law. All of 22 [Petitioner’s] procedurally defaulted claims may be denied on the merits, and 23 [Petitioner’s] sixth and ninth claims for relief are not cognizable.” (Id.) Petitioner uses 24 much of his Objection to restate his arguments that he is entitled to relief, but the Court 25 will focus on the specific objections that he asserts to the R&R. (Doc. 14.) 26 A. Grounds Two and Three 27 Petitioner only objects1 to claims related to his counsel’s failure to conduct certain

28 * From reading Petitioner’s Objection, it is not clear that his narrative relating to Grounds Two and Three are specific objections. See United States v. Reyna-Tapia, 328 F.3d 1114, 1 pretrial investigation. (Doc. 14 at 8–13.) Petitioner seems to point to the R&R’s 2 conclusion that Petitioner’s arguments that his pretrial counsel’s failure to subpoena a 3 crime lab technician to testify as to a blood evidence lab report and employ a computer 4 science expert to refute the schemes and artifices charge were meritless. (Id. at 9–10.) 5 The R&R found that Petitioner’s Ground Two claim––failure to subpoena a crime lab 6 technician––was procedurally defaulted, but “[r]egardless of any procedural default of 7 this claim, it may be denied on the merits.” (Doc. 13 at 22.) As to Petitioner’s Ground 8 Three claim, the R&R concludes that Petitioner’s argument about his pretrial counsel’s 9 failure to employ a computer science expert was meritless because he failed to “present 10 the affidavit of any computer expert establishing the proposed witness would have 11 testified at trial and would have testified as [Petitioner] asserts.” (Id. at 24.) 12 The Court agrees with the R&R’s conclusions as to Grounds Two and Three. Both 13 grounds, regardless of any procedural default, fail on the merits. Petitioner’s pretrial 14 counsel was not ineffective for failing to subpoena a crime lab technician to testify about 15 certain blood evidence. Petitioner notes that his pretrial counsel was ineffective for 16 failing to investigate this line of defense or present certain testimony. (Doc. 1 at 12–15.) 17 This argument does not provide any evidence of how there was ineffectiveness and this 18 speculation is not sufficient to show that this failure creates a “reasonable probability” 19 that a different result would have occurred absent the purportedly deficient 20 representation. Strickland v. Washington, 466 U.S. 668, 687 (1984). As the R&R notes, 21 the trial transcript reveals several instances where Petitioner was able to present this 22 theory to the jury, including the blood evidence he sought to challenge with the crime lab 23 technician. (See Doc. 13 at 23.) To establish the required prejudice under Strickland, a 24 habeas petitioner in this context must show not only that the testimony would have been 25 favorable, but also that an identified witness would have testified at trial. See, e.g., Dows 26 v. Wood, 211 F.3d 480, 486 (9th Cir. 2000). Petitioner’s speculation about what this 27 supposed crime lab technician would have testified about does not satisfy the prejudice 28 1121 (9th Cir. 2003). In any event, the Court will address these two grounds. 1 prong. See Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001). The Court is also 2 aware of the substantial evidence against Petitioner, which serves as another independent 3 reason that he cannot establish prejudice as required by Strickland. See Allen v. 4 Woodford, 395 F.3d 970, 999 (9th Cir. 2005). 5 As to Ground Three, Petitioner argues that his pretrial counsel was ineffective for 6 failing to employ a computer science expert to refute an incriminating email. (Doc. 1 at 7 16–18.) This claim fails for similar reasons. Petitioner has failed to mention any 8 computer expert that would have testified at trial or any affidavit of a computer expert 9 backing up Petitioner’s claims. See Dows, 211 F.3d at 486. There also has been no signs 10 that any supposed computer expert would have testified in a way that Petitioner suggests 11 or in a way that would be helpful to his case. As mentioned above, there was substantial 12 evidence supporting his conviction on this ground, which shows the lack of prejudice 13 even if Petitioner had shown that a computer expert would have testified in the manner he 14 suggests. See Allen, 395 F.3d at 999. Given Petitioner’s position on Grounds Two and 15 Three, the Court finds that he has not satisfied the required test under Strickland to show 16 that his pretrial counsel was ineffective. 17 B. General Objections 18 Petitioner makes several general remarks that relate to other claims that he raised 19 in his Petition. (Doc. 14.) For example, Petitioner mentions several points relating to his 20 self-representation and the circumstances surrounding that before trial. (Id. at 11–14.) 21 There are also remarks that tangentially relate to the trial court’s alleged error in 22 precluding a laboratory report. (Id. at 13.) Petitioner, however, does not specifically 23 object to any of the R&R’s conclusions or recommendations on these grounds. 24 As mentioned above, under Rule 72, objections must be “specific . . . to the 25 proposed findings and recommendations” of the magistrate judge. Fed. R. Civ. P. 26 72(b)(2). “An obvious purpose for this requirement is judicial economy – to permit 27 magistrate judges to hear and resolve matters not objectionable to the parties. Because de 28 novo review of the entire R&R would defeat the efficiencies intended by Congress, a 1 general objection ‘has the same effect as would a failure to object.’” Quinn v. Hacker- 2 Agnew, No. CV-19-08152-PCT-DGC (CDB), 2020 WL 6680401, at *2 (D. Ariz. Nov. 9, 3 2020) (citations omitted). Petitioner merely provides a general objection to the R&R’s 4 findings and conclusions on the remaining grounds. (Doc. 14.) The Court treats this 5 general objection the same way it would treat a failure to object; the Court is under no 6 obligation to conduct a de novo analysis. See Quinn v. Hacker-Agnew, No. CV-19- 7 08152-PCT-DGC (CDB), 2020 WL 6680401, at *2 (D. Ariz. Nov. 9, 2020). Although it 8 has no obligation to do so, the Court nonetheless has considered the general objections 9 and reviewed the R&R. The Court agrees with Magistrate Judge Bibles’ R&R and 10 accepts the recommended decision. (Doc. 13.) 11 C. Certificate of Appealability 12 Before Petitioner can appeal this Court’s judgment, a certificate of appealability 13 must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). Because this Court 14 rendered the judgment denying the Petition, the Court must either issue a certificate of 15 appealability or state why a certificate should not issue. See id. A certificate may issue 16 “only if the applicant has made a substantial showing of the denial of a constitutional 17 right.” 28 U.S.C. § 2253(c)(2). A substantial showing is made when the resolution of an 18 issue of appeal is debatable among reasonable jurists, if courts could resolve the issues 19 differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 20 473, 484–85 (2000). Upon its own review of the record considering the standards for 21 granting a certificate of appealability and Petitioner’s arguments (Docs. 1, 14), the Court 22 agrees with the R&R’s conclusion and will not issue a certificate of appealability. 23 IV. CONCLUSION 24 Accordingly, 25 IT IS ORDERED adopting the Report and Recommendation (Doc. 13). 26 IT IS FURTHER ORDERED denying the Petition (Doc. 1) and dismissing it 27 with prejudice. 28 IT IS FURTHER ORDERED declining to issue a certificate of appealability. 1 IT IS FINALLY ORDERED directing the Clerk of Court to enter judgment, terminating this case. 3 Dated this 26th day of March, 2021. 4 WM clacl T. Hburde Michael T. Liburdi 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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