Stuart v. Shinn

• Court: District Court, D. Arizona
• Decided: June 26, 2020
• Docket: 2:19-cv-02540
• Status: Unknown

Opinion

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

8 John C. Stuart, No. CV-19-02540-PHX-GMS

9 Petitioner, ORDER

10 v.

11 David Shinn, et al.,

12 Respondents. 13 14 Pending before the Court are Petitioner John C. Stuart’s (“Petitioner”)’s Petition 15 under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1) and United States Magistrate 16 Judge Eileen S. Willett’s Report and Recommendation (“R&R”) recommending that the 17 Court deny the Petition (Doc. 43). Petitioner timely filed an amended objection to the R&R. 18 (Doc. 53.) The Court denies the Petition and adopts the R&R. 19 BACKGROUND 20 On February 11, 2008, a Maricopa County Grand Jury indicted Petitioner on one 21 count each of second-degree murder and drive-by shooting. Following the subsequent trial 22 (resulting in a mistrial) and retrial, a jury found Petitioner guilty as charged. At the January 23 3, 2014 sentencing hearing, the trial court sentenced Petitioner to an eighteen-year prison 24 term on the second-degree murder count and a concurrent fourteen-year prison term on the 25 drive-by shooting count. Petitioner timely filed a direct appeal, raising only the issue of 26 admission of impermissible character evidence. On April 28, 2015, the Arizona Court of 27 Appeals affirmed Petitioner’s convictions and sentences. Petitioner then filed a pro se 28 Petition for Review in the Arizona Supreme Court, which was denied. 1 On March 7, 2016, Petitioner filed a Notice of Post-Conviction Relief (“PCR”); on 2 August 10, 2016, Petitioner filed a “Corrected Petition for Post-Conviction Relief; 3 Memorandum of Points and Authorities” (the “Corrected PCR Petition”). Following 4 briefing, the trial court dismissed the PCR proceeding. The Arizona Court of Appeals 5 granted Petitioner’s request for further review but denied relief. The Arizona Supreme 6 Court denied further review. On October 30, 2018, Petitioner filed a habeas petition in the 7 Arizona Supreme Court. The Arizona Supreme Court summarily dismissed the habeas 8 petition on November 14, 2018. Petitioner then timely initiated this federal habeas 9 proceeding on April 19, 2019 by filing the Petition and accompanying briefing. 10 On May 7, 2019, the Court screened the Petition and concluded that it contains the 11 following seventeen grounds for habeas relief: 12 In Ground One, Petitioner alleges that he is actually innocent. In Ground Two, Petitioner alleges that his speedy trial right and right to self- 13 representation were violated. In Ground Three, Petitioner alleges that his due process and equal protection rights were violated when “the State charged 14 [Petitioner] for events that are not considered criminal under Arizona law…” In Ground Four, Petitioner alleges that Fifth, Sixth, and Fourteenth 15 Amendment rights were violated when the prosecution suppressed certain evidence. In Ground Five, Petitioner alleges that his Fourth, Fifth, Sixth, and 16 Fourteenth Amendment rights were violated when the State unreasonably seized and then destroyed certain evidence, and “refused to allow [Petitioner] 17 to continue speaking with his attorney…” In Ground Six, Petitioner alleges that his Fifth and Fourteenth Amendment rights were violated when the trial 18 court “and other courts” issued “numerous arbitrary and capricious ruling … that always favored the State and prejudice [Petitioner].” In Ground Seven, 19 Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated when the prosecution “withheld information and evidence of 20 the judges’ pecuniary gain and conflict of interest relevant to the conviction.” In Ground Eight, Petitioner alleges that his Fifth, Sixth, and Fourteenth 21 Amendment rights were violated when the trial court denied payment for a defense forensic expert. In Ground Nine, Petitioner alleges that his Fifth, 22 Sixth, and Fourteenth Amendment rights were violated when the State “refused to charge the kidnappers and the court precluded any and all 23 evidence that [the] kidnapper was under the influence of illicit drugs.” In Ground Ten, Petitioner alleges that his Fifth and Fourteenth Amendment 24 rights were violated when the State “ignored, violated, or circumvented Arizona law to garner the improvident conviction.” In Ground Eleven, 25 Petitioner alleges that the cumulative effect of the errors in his grounds for relief violate his First, Second, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, 26 Thirteenth, and Fourteenth Amendment rights. In Ground Twelve, Petitioner alleges that his Fifth and Fourteenth Amendment rights were violated when 27 the prosecution “misrepresented Arizona law to the jury” and “redacted the jury instruction to comport with [their] misrepresentations…” In Ground 28 Thirteen, Petitioner alleges that his Fifth and Fourteenth Amendment rights were violated when the trial judge “intentionally misled the jury in 1 responding to their jury questions…” In Ground Fourteen, Petitioner alleges that his Fifth and Fourteenth Amendment rights were violated when he was 2 “framed.” In Ground Fifteen, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated when the prosecutor “acted as 3 counsel [for a] state witness…” In Ground Sixteen, Petitioner alleges that his Fifth and Fourteenth Amendment rights were violated when “the State and/or 4 Court suppressed and/or precluded actual facts and laws…” In Ground Seventeen, Petitioner alleges that his right to counsel was denied at various 5 “critical stages” throughout his prosecution. 6 (Doc. 5 at 1-3). 7 In her R&R, the Magistrate Judge found Grounds Two through Seventeen to be 8 procedurally defaulted. She further concluded that even if Petitioner’s freestanding actual 9 innocence claim in Ground One is cognizable in this proceeding, it is without merit. 10 Finally, she recommended that the Court deny Petitioner’s request for an evidentiary 11 hearing. Petitioner objects to each of these recommendations. 12 DISCUSSION 13 I. Standard of Review 14 A “district judge may refer dispositive pretrial motions, and petitions for writ of 15 habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend 16 dispositions.” Thomas v. Arn, 474 U.S. 140, 141 (1985); see also 28 U.S.C. § 636(b)(1)(B); 17 Estate of Connors v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party “may serve and 18 file written objections” to the R&R. 28 U.S.C. § 636(b)(1). “A judge of the court shall 19 make a de novo determination of those portions of the report or specified findings or 20 recommendations to which objection is made.” Id. District courts, however, are not 21 required to conduct “any review at all . . . of any issue that is not the subject of an 22 objection.” Arn, 474 U.S. at 149. A district judge “may accept, reject, or modify, in whole 23 or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 24 636(b)(1). 25 II. Analysis 26 A. The Magistrate’s Findings 27 The Magistrate Judge found grounds Four, Five, Six, Eight, Nine, Ten, Twelve, 28 Sixteen, and Seventeen and the right to self-representation claim contained in Ground Two 1 procedurally defaulted. She did so because the state courts denied relief on those claims in 2 Petitioner’s Corrected PCR Petition based on an adequate and independent state rule, 3 Arizona Rule of Criminal Procedure 32.2(a)(3), which prohibits a defendant from raising 4 “in a Rule 32 petition any claim that was waived at the trial level or that should have been 5 raised on direct appeal.” The Magistrate Judge then found that the speedy trial claim raised 6 in Ground Two and the claims raised in Grounds Three, Seven, Eleven, Thirteen, Fourteen, 7 and Fifteen were procedurally defaulted because those claims were unexhausted, and if 8 Petitioner returned to state court to present them in a second PCR Petition, that petition 9 would be untimely. The Magistrate Judge found that Petitioner did not fairly present 10 Grounds Three, Thirteen, and Fifteen in his state court direct appeal and PCR proceedings. 11 She also found that Petitioner did not fairly present Grounds Seven, Eleven, and Fourteen 12 to the trial court in his PCR proceeding, and that his presentation of Grounds Seven, Eleven, 13 and Fourteen to the Arizona Supreme Court in his habeas petition did not render the claims 14 exhausted. The Magistrate Judge recommended that none of these procedural defaults be 15 excused because Petitioner did not establish cause for the default and the Schlup1 16 gateway/miscarriage of justice exception did not apply. 17 The Magistrate Judge then addressed Petitioner’s actual innocence claims. In its 18 Screening Order, this Court found that Ground One presented a claim alleging that 19 Petitioner is actually innocent. Operating under the assumption that Petitioner’s 20 freestanding actual innocence claim was cognizable in a federal habeas proceeding, the 21 Magistrate found that Petitioner had not met the “extraordinarily high” threshold of 22 “affirmatively prov[ing] that he is actually innocent.” Carriger v. Stewart, 132 F.3d 463, 23 477 (9th Cir. 1997) (en banc). Moreover, the Magistrate Judge recommended that, to the 24 extent Petitioner intended to raise freestanding innocence claims when he alleged that he 25 was “factually innocent” and was “framed” by the State in his other seventeen grounds, the 26 Court dismiss those claims. 27 Finally, as to Petitioner’s request for an evidentiary hearing, the Magistrate Judge 28 1 Schlup v. Delo, 513 U.S. 298, 324 (1995). 1 found that the record was adequately developed and recommended that the Court deny 2 Petitioner’s request. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (finding 3 “a district court is not obligated to hold evidentiary hearings to further develop the factual 4 record” when the record is “amply developed” and explaining that “[d]istrict courts have 5 limited resources (especially time), and to require them to conduct further evidentiary 6 hearings when there is already sufficient evidence in the record to make the relevant 7 determination is needlessly wasteful”). 8 B. Petitioner’s Objections 9 With respect to the unexhausted claims, Petitioner argues that the Magistrate Judge 10 ruled in Respondents’ favor because Respondents “fallacious[ly] claim[ed] . . . that 11 Petitioner did not file an Arizona Supreme Court Habeas petition.” (Doc. 53 at 4.) 12 Petitioner further asserts that “an Arizona Supreme Court Habeas petition is sufficient to 13 defeat default claims.” (Doc. 53 at 8.) There is no dispute that Petitioner filed a habeas 14 petition with the Arizona Supreme Court. Instead, the Magistrate Judge found that the 15 unexhausted claims were not fairly presented in the stages preceding their presentation to 16 the Arizona Supreme Court. As the case cited by Petitioner states, “[a] petitioner must alert 17 the state courts to the fact that he is asserting a federal claim in order to fairly and fully 18 present the legal basis of the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 19 2005). In fact, Petitioner’s unexhausted claims were not fairly presented to the appropriate 20 state court, as “[p]resentation of a [new] claim by a habeas corpus petition directed to the 21 Arizona Supreme Court does not exhaust state remedies for federal habeas purposes.” 22 Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997), certified question answered, 192 23 Ariz. 131, 962 P.2d 205 (1998). 24 The rest of Petitioner’s Objection focuses on his actual innocence and his request 25 for an evidentiary hearing. Petitioner argues his “actual innocence” can overcome any 26 “AEDPA issues” he might have. (Doc. 53 at 9.) He also asserts that because he has not 27 been given an evidentiary hearing, any claims of procedural default are defeated, and that 28 he is entitled to an evidentiary hearing because he has “show[n] cause for his failure to 1 develop the facts in state-court proceedings and actual prejudice resulting from that 2 failure.” Banks v. Dretke, 540 U.S. 668, 690–91 (2004). 3 Petitioner’s “actual innocence” can overcome the procedural default of his claims if 4 he establishes that his case is “extraordinary” and that “the court cannot have confidence 5 in the contrary finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008). 6 “To be credible, such a claim requires petitioner to support his allegations of constitutional 7 error with new reliable evidence–whether it be exculpatory scientific evidence, trustworthy 8 eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324. In his 9 Objection, Petitioner accuses the State of egregious misconduct, including “destroying 10 almost 200 pieces of exculpatory evidence; both the trial judge and prosecutor being 11 patently disingenuous to the jury about laws, facts, etc,” “the State suppressing and the trial 12 court precluding literally ALL impeachment evidence relevant to the State’s case,” and the 13 State withholding DNA test results that will “fully exonerate” Petitioner. (Doc. 53 at 9– 14 10.) These allegations do not meet the “new” and “reliable” standard under Schlup, either 15 because they were presented at the trial level or because they are too speculative. See 16 Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013) (“[W]e have denied access to the 17 Schlup gateway where a petitioner’s evidence of innocence was merely cumulative or 18 speculative or was insufficient to overcome otherwise convincing proof of guilt.”) 19 As to Petitioner’s request for an evidentiary hearing, such a hearing is not required 20 because the issues Petitioner raises “can be resolved by reference to the state court record.” 21 Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). Moreover, even if, as Petitioner 22 suggests, the record below was not sufficiently developed, Petitioner has not “show[n] 23 cause for his failure to develop the facts in state-court proceedings.” Banks, 540 U.S. at 24 690. 25 CONCLUSION 26 Having reviewed the record de novo, the Court adopts the R&R and denies and 27 dismisses the Petition with prejudice. 28 / / / 1 IT IS HEREBY ORDERED that Magistrate Judge Willett’s R&R (Doc. 43) is 2|| ACCEPTED. 3 IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus 4|| (Doc. 1) is DENIED and DISMISSED with prejudice. 5 IT IS FURTHER ORDERED directing the Clerk of Court enter judgment 6|| accordingly. 7 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 8 || Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a 9|| certificate of appealability because reasonable jurists would not find the Court’s procedural || ruling debatable. See Slack vy. McDaniel, 529 U.S. 473, 484 (2000). 11 Dated this 26th day of June, 2020. Wars ) B A Whacrsay Sooo) 14 Chief United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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