1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Phillip Gregory Speers, No. CV 22-00172-PHX-JAT 10 Petitioner, 11 v. ORDER 12 David Shinn, et al., 13 Respondents.
14 15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus 16 (“Petition”). The Magistrate Judge to whom this case was referred issued a Report and 17 Recommendation (Doc. 26) (“R&R”), recommending that the Petition be denied. 18 Petitioner filed objections to the R&R (Doc. 29), Respondents replied to the objections 19 (Doc. 32), and, although not permitted by the Rules, Petitioner filed a sur-reply to 20 Respondents’ reply (Doc. 33). 21 Respondents moved to strike the sur-reply. (Doc. 34). While Respondents are 22 correct that procedurally a sur-reply is not permitted, the Court nonetheless considered the 23 sur-reply which did not change the outcome of this case. As a result, the motion to strike 24 will be denied. 25 Review of R&R 26 This Court “may accept, reject, or modify, in whole or in part, the findings or 27 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 28 the district judge must review the magistrate judge’s findings and recommendations de 1 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 2 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 3 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 4 de novo review of factual and legal issues is required if objections are made, ‘but not 5 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 6 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 7 [Magistrate Judge’s] recommendations to which the parties object.”). Thus, the portions 8 of the R&R to which Petitioner objected will be reviewed de novo. 9 Factual and Procedural Background in State Court 10 The R&R recounts the factual and procedural background of this case in the state 11 courts at pages 1-11. (Doc. 26). Petitioner “objects” to this recounting at pages 1-8 of his 12 objections. (Doc. 29). However, a close read of Petitioner’s objections shows that 13 Petitioner does not argue that any fact stated in the R&R is inaccurate. Instead, Petitioner 14 objects that the R&R did not include some additional facts of various things that also 15 occurred in state court. This Court finds that the R&R correctly summarized the state court 16 proceedings and accepts and adopts this background. As necessary to consider his other 17 objections, the Court will also consider the additional facts presented by Petitioner. 18 In short summary, (upon retrial) the jury found Petitioner guilty of molesting two 19 minors, as alleged in counts three and five of the indictment, and acquitted him of the other 20 charges. (Doc. 26 at 3). Petitioner’s counsel at the time of the verdict filed a motion for 21 new trial raising numerous issues, including that juror misconduct had warranted a mistrial. 22 (Id.). The trial court denied the motion and sentenced Petitioner to two consecutive 23 seventeen-year prison terms. (Id.). 24 Claims in the Petition 25 The Petition in this case raises two claims for relief. The first claim was withdrawn 26 by Petitioner in his motion to amend due to a change in state law. (Doc. 21). The R&R 27 recommends that this Court grant the motion to amend and deny relief on Claim 1. (Doc. 28 26 at 16). Neither party objected to this outcome and the Court accepts and adopt it. 1 In Claim 2, Petitioner argues ineffective assistance of trial counsel regarding Juror 2 Two. In short summary, Petitioner argues that his counsel was ineffective in failing to voir 3 dire Juror Two sufficiently to reveal more fully that she had been molested as a child and 4 failed to investigate and file a sufficiently robust motion for new trial based on Juror Two’s 5 less than full disclosure. 6 Law Governing the Petition 7 At pages 12-14 the R&R recounts the law governing a federal court’s review of a 8 habeas petition for a claim that was exhausted in the state courts. At pages 14-15, the R&R 9 recounts the law governing ineffective assistance of counsel claims under Strickland v. 10 Washington. Neither party has objected to these summaries of the governing law, and the 11 Court hereby accepts and adopts them. Additionally, neither party objected to the R&R’s 12 conclusion that Petitioner exhausted Claim 2 in state court. (Doc. 26 at 17-18). The Court 13 hereby adopts that conclusion. 14 Claim 2 15 As indicated above, Claim 2 is Petitioner’s claim that his counsel was ineffective 16 with respect to all issues relating to Juror Two’s alleged impartiality. Under clearly 17 established federal law regarding ineffective assistance of counsel claims, “a petitioner 18 must show that his counsel’s performance was both (a) objectively deficient and (b) caused 19 him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).” (Doc. 26 at 14). 20 Turning first to Petitioner’s argument that there was inadequate voir dire of Juror 21 Two to unearth her meaning when she said being fair and impartial on a case like this 22 would be hard for her, Petitioner was representing himself pro se at the time of voir dire. 23 (Doc. 26 at 19). Petitioner cannot obtain relief on an ineffective assistance of counsel claim 24 premised on Petitioner’s representation of himself. Faretta v. California, 422 U.S. 806, 25 834 n.46 (1975). As the United State Supreme Court has stated, a defendant who chooses 26 to represent himself, “cannot thereafter complain that the quality of his own defense 27 amounted to a denial of ‘effective assistance of counsel.’” Id. 28 1 Thus, Petitioner’s ineffective assistance of counsel claim premised on the adequacy 2 of voir dire is without merit. Accordingly, the decision of the state courts reaching the 3 same conclusion was not contrary to or an unreasonable application of clearly established 4 federal law nor was it an unreasonable determination of the facts. See Lockyer v. Andrade, 5 538 U.S. 63, 71 (2003); (Doc. 26 at 11). 6 Next Petitioner argues that his trial counsel was ineffective for failing to investigate 7 Juror Two. As the R&R notes: 8 …the United States Supreme Court has stated that counsel “has a duty to make reasonable investigations or to make a reasonable decision that makes 9 particular investigations unnecessary.” Strickland, 466 U.S. at 691. Counsel’s decision not to investigate is considered for reasonableness, 10 “applying a heavy measure of deference to counsel’s judgments.” Id. At the evidentiary hearing, Petitioner’s trial counsel testified that time constraints 11 and limited resources influenced her decision not to interview jurors after Petitioner’s jury trial. (Doc. 19-13 at 89-90, 130) Due to limited time and 12 resources, Petitioner’s trial counsel could reasonably focus on certain issues to the exclusion of others. In addition, insofar as trial counsel’s decision to 13 focus on specific issues was a matter of trial strategy, a difference of opinion in such strategy “is not in itself sufficient to support a charge of inadequate 14 representation.” Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980). Applying the “heavy measure of deference” to trial counsel’s performance, 15 Petitioner does not demonstrate that trial counsel’s representation on this issue was objectively unreasonable. Strickland, 466 U.S. at 689, 691. 16 (Doc. 26 at 25).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Phillip Gregory Speers, No. CV 22-00172-PHX-JAT 10 Petitioner, 11 v. ORDER 12 David Shinn, et al., 13 Respondents.
14 15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus 16 (“Petition”). The Magistrate Judge to whom this case was referred issued a Report and 17 Recommendation (Doc. 26) (“R&R”), recommending that the Petition be denied. 18 Petitioner filed objections to the R&R (Doc. 29), Respondents replied to the objections 19 (Doc. 32), and, although not permitted by the Rules, Petitioner filed a sur-reply to 20 Respondents’ reply (Doc. 33). 21 Respondents moved to strike the sur-reply. (Doc. 34). While Respondents are 22 correct that procedurally a sur-reply is not permitted, the Court nonetheless considered the 23 sur-reply which did not change the outcome of this case. As a result, the motion to strike 24 will be denied. 25 Review of R&R 26 This Court “may accept, reject, or modify, in whole or in part, the findings or 27 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 28 the district judge must review the magistrate judge’s findings and recommendations de 1 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 2 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 3 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 4 de novo review of factual and legal issues is required if objections are made, ‘but not 5 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 6 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 7 [Magistrate Judge’s] recommendations to which the parties object.”). Thus, the portions 8 of the R&R to which Petitioner objected will be reviewed de novo. 9 Factual and Procedural Background in State Court 10 The R&R recounts the factual and procedural background of this case in the state 11 courts at pages 1-11. (Doc. 26). Petitioner “objects” to this recounting at pages 1-8 of his 12 objections. (Doc. 29). However, a close read of Petitioner’s objections shows that 13 Petitioner does not argue that any fact stated in the R&R is inaccurate. Instead, Petitioner 14 objects that the R&R did not include some additional facts of various things that also 15 occurred in state court. This Court finds that the R&R correctly summarized the state court 16 proceedings and accepts and adopts this background. As necessary to consider his other 17 objections, the Court will also consider the additional facts presented by Petitioner. 18 In short summary, (upon retrial) the jury found Petitioner guilty of molesting two 19 minors, as alleged in counts three and five of the indictment, and acquitted him of the other 20 charges. (Doc. 26 at 3). Petitioner’s counsel at the time of the verdict filed a motion for 21 new trial raising numerous issues, including that juror misconduct had warranted a mistrial. 22 (Id.). The trial court denied the motion and sentenced Petitioner to two consecutive 23 seventeen-year prison terms. (Id.). 24 Claims in the Petition 25 The Petition in this case raises two claims for relief. The first claim was withdrawn 26 by Petitioner in his motion to amend due to a change in state law. (Doc. 21). The R&R 27 recommends that this Court grant the motion to amend and deny relief on Claim 1. (Doc. 28 26 at 16). Neither party objected to this outcome and the Court accepts and adopt it. 1 In Claim 2, Petitioner argues ineffective assistance of trial counsel regarding Juror 2 Two. In short summary, Petitioner argues that his counsel was ineffective in failing to voir 3 dire Juror Two sufficiently to reveal more fully that she had been molested as a child and 4 failed to investigate and file a sufficiently robust motion for new trial based on Juror Two’s 5 less than full disclosure. 6 Law Governing the Petition 7 At pages 12-14 the R&R recounts the law governing a federal court’s review of a 8 habeas petition for a claim that was exhausted in the state courts. At pages 14-15, the R&R 9 recounts the law governing ineffective assistance of counsel claims under Strickland v. 10 Washington. Neither party has objected to these summaries of the governing law, and the 11 Court hereby accepts and adopts them. Additionally, neither party objected to the R&R’s 12 conclusion that Petitioner exhausted Claim 2 in state court. (Doc. 26 at 17-18). The Court 13 hereby adopts that conclusion. 14 Claim 2 15 As indicated above, Claim 2 is Petitioner’s claim that his counsel was ineffective 16 with respect to all issues relating to Juror Two’s alleged impartiality. Under clearly 17 established federal law regarding ineffective assistance of counsel claims, “a petitioner 18 must show that his counsel’s performance was both (a) objectively deficient and (b) caused 19 him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).” (Doc. 26 at 14). 20 Turning first to Petitioner’s argument that there was inadequate voir dire of Juror 21 Two to unearth her meaning when she said being fair and impartial on a case like this 22 would be hard for her, Petitioner was representing himself pro se at the time of voir dire. 23 (Doc. 26 at 19). Petitioner cannot obtain relief on an ineffective assistance of counsel claim 24 premised on Petitioner’s representation of himself. Faretta v. California, 422 U.S. 806, 25 834 n.46 (1975). As the United State Supreme Court has stated, a defendant who chooses 26 to represent himself, “cannot thereafter complain that the quality of his own defense 27 amounted to a denial of ‘effective assistance of counsel.’” Id. 28 1 Thus, Petitioner’s ineffective assistance of counsel claim premised on the adequacy 2 of voir dire is without merit. Accordingly, the decision of the state courts reaching the 3 same conclusion was not contrary to or an unreasonable application of clearly established 4 federal law nor was it an unreasonable determination of the facts. See Lockyer v. Andrade, 5 538 U.S. 63, 71 (2003); (Doc. 26 at 11). 6 Next Petitioner argues that his trial counsel was ineffective for failing to investigate 7 Juror Two. As the R&R notes: 8 …the United States Supreme Court has stated that counsel “has a duty to make reasonable investigations or to make a reasonable decision that makes 9 particular investigations unnecessary.” Strickland, 466 U.S. at 691. Counsel’s decision not to investigate is considered for reasonableness, 10 “applying a heavy measure of deference to counsel’s judgments.” Id. At the evidentiary hearing, Petitioner’s trial counsel testified that time constraints 11 and limited resources influenced her decision not to interview jurors after Petitioner’s jury trial. (Doc. 19-13 at 89-90, 130) Due to limited time and 12 resources, Petitioner’s trial counsel could reasonably focus on certain issues to the exclusion of others. In addition, insofar as trial counsel’s decision to 13 focus on specific issues was a matter of trial strategy, a difference of opinion in such strategy “is not in itself sufficient to support a charge of inadequate 14 representation.” Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980). Applying the “heavy measure of deference” to trial counsel’s performance, 15 Petitioner does not demonstrate that trial counsel’s representation on this issue was objectively unreasonable. Strickland, 466 U.S. at 689, 691. 16 (Doc. 26 at 25). 17 In his objections, Petitioner reasserts his position that counsel should have 18 investigated more. (Doc. 29 at 10-12). However, at the time trial counsel filed Petitioner’s 19 motion for new trial (August 13, 2007), counsel included “[i]t appears that other trial jurors 20 may have been similarly misleading during voir dire. For example, juror number two never 21 revealed her prior molestation during voir dire, despite being asked directly about previous 22 victimization. She merely stated she had been a victim of domestic violence.” (Doc. 26 at 23 22). The parties appear to agree that this information was never stated on the record; 24 instead, all that was stated on the record was that a juror said that another juror was 25 “familiar with similar situations.” (Id.). Thus, it appears trial counsel received the 26 information about Juror Two from Carol Wray, who appears to have been acting as an 27 28 1 independent, unappointed investigator (who questioned the jurors) for Petitioner. (Id. at 2 22-23). 3 Despite many years later (on October 14, 2016) there being an evidentiary hearing 4 on Petitioner’s post-conviction relief motion, no more material information about Juror 5 Two has been revealed than what counsel included in her August 13, 2007 motion. Thus, 6 the Court cannot conclude that counsel’s performance regarding the investigation was 7 deficient because counsel seemingly discovered all material information. Moreover, 8 relying on the cases cited in the R&R and quoted above, the Court finds counsel’s strategic 9 decisions based on limited time and resources to be reasonable and not deficient. 10 Finally, Petitioner argues that trial counsel was ineffective for not addressing Juror 11 Two’s alleged misconduct more thoroughly in the motion for new trial.1 As the R&R 12 recounts (Doc. 26 at 24), a remedy for potential juror misconduct is “a hearing, in which 13 the trial court determines the circumstances of what transpired, the impact on the jurors, 14 and whether or not it was prejudicial.” United States v. Angulo, 4 F.3d 843, 847 (1993) 15 (citing Remmer v. United States, 347 U.S. 227, 229-30 (1954)). During deliberations, 16 Petitioner received this remedy wherein Juror Two and all other jurors were again asked if 17 they could be fair and impartial and confirmed that they would only consider the evidence 18 presented in the courtroom. (Doc. 26 at 24). Thus, counsel did not engage in deficient 19 performance by failing to file a motion that would have resulted in a remedy Petitioner 20 already received. See Gonzalez v. Knowles, 515 F.3d 1006, 1017 (2008) (“counsel cannot 21 be deemed ineffective for failing to raise” a “meritless claim”). Petitioner’s objection that 22 this claim is only meritless because counsel did not do more investigation and more motion 23 practice (Doc. 29 at 12) is belied by the record and is overruled. 24
25 1 In his objections, Petitioner states that his counsel including this factual evidence 26 of additional juror misconduct in a footnote “waives” the argument under Arizona law. (Doc. 29 at 11 (citing State v. Miller, 186 Ariz. 314 (1996)). While the Miller court did 27 hold that, for purposes of an opening brief before the Arizona Supreme Court, arguments had to be presented in the body of the opening brief, not the footnotes, in this case, no court 28 found Petitioner to have waived this evidence or argument because of the use of the footnote. 1 Alternatively, Petitioner has failed to show prejudice, the second requirement of 2 Strickland. Both the R&R (Doc. 26 at 23) and Respondent’s reply to Petitioner’s 3 objections (Doc. 32 at 4) note that Petitioner keeps casting this claim as one of a lack of an 4 impartial jury, rather than ineffective assistance of counsel. In other words, Petitioner 5 seems to be arguing that if he can show one juror was not impartial, he will be entitled to 6 habeas relief. But Petitioner brings a claim of ineffective assistance of counsel in this 7 habeas Petition, and a claim of ineffective assistance of counsel was what Petitioner 8 exhausted in state court. Petitioner is incorrect in his argument that if a juror was not 9 impartial that automatically means his counsel was ineffective. Thus, to the extent in his 10 objections2 and sur-reply he argues he need not show both prongs of Strickland, that 11 argument is rejected and the objection is overruled. 12 Along these lines, the Court notes that all of Petitioner’s arguments regarding 13 “prejudice” either argue he does not have to show prejudice or argue that the Court should 14 presume that Juror Two was biased notwithstanding her statements that she could be fair 15 and impartial (Doc. 29 at 12-18). However, as the R&R and the Arizona Court of Appeals 16 concluded: 17 Juror Two and the other jurors serving on Petitioner’s trial swore that each would remain impartial and could separate comments heard during jury 18 deliberations from evidence presented in the courtroom. (See Doc. 12-1 at 150; Doc. 12-6 at 13; Doc. 19-12 at 203-24) As the Arizona Court of Appeals 19 recognized (Doc. 12-1 at 150), because of each juror’s affirmation to remain fair and impartial, there is no indication that Juror Two’s conduct changed 20 the result of Petitioner’s trial. See Strickland, 466 U.S. at 694. Petitioner has not established prejudice by showing a “reasonable probability” that with 21 further investigation of Juror Two’s conduct, “the result of the proceeding would have been different.” Id. 22 (Doc. 26 at 25). 23 This Court agrees that on this record, given the questioning of Juror Two during 24 deliberations confirming her ability to be fair and impartial and to base her decision only 25 on the evidence presented during trial, and the same questioning of and responses from 26
27 2 See e.g. Doc. 29 at 17, wherein Petitioner argues, “[Juror Two’s] very presence on 28 the jury … ‘requires a new trial without a showing of actual prejudice.’ Dyer, 151 F.3d at 973 n.2.” 1 | each other juror, Petitioner has failed to show prejudice. Accordingly, the Court finds that Petitioner’s counsel was not ineffective under Strickland for this alternative reason. 3 Based on the foregoing, the Court finds the decision of the state courts on ineffective assistance of counsel was not contrary to or an unreasonable application of clearly 5 | established federal law, nor was it an unreasonable determinate of the facts. The objections 6| are overruled in their entirety and relief is denied. 7 Conclusion 8 IT IS ORDERED that the motion to strike (Doc. 34) the sur-reply (Doc. 33) is 9| denied. 10 IT IS FURTHER ORDERED that the motion to amend (Doc. 21) is granted to the 11 | extent that Claim 1 is deemed to be withdrawn and relief on Claim | is denied. 12 IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 26) is 13 | accepted and adopted; the objections (Doc. 29) are overruled. The Petition is denied with 14 | prejudice and the Clerk of the Court shall enter judgment accordingly. 15 IT IS FINALLY ORDERED that pursuant to Rule 11 of the Rules Governing 16 | Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a 17 | certificate of appealability because Petitioner has not made a substantial showing of the 18 | denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). 19 Dated this 8th day of February, 2023. 20 21 a 22 3 _ James A. Teil Org Senior United States District Judge 24 25 26 27 28 -7-