Tommy G. Najar v. Ryan Thornell, et al.

Opinion

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

9 Tommy G. Najar, No. CV-23-00207-TUC-JCH (LCK)

10 Petitioner, REPORT AND RECOMMENDATION 11 v.

12 Ryan Thornell, et al.,

13 Respondents. 14 15 Petitioner Tommy Najar, incarcerated at the Arizona State Prison in Florence, 16 Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. 17 Before this Court are the Amended Petition (Doc. 5), Respondents’ Answer (Doc. 10), and 18 Petitioner’s Reply (Doc. 11). Pursuant to the Rules of Practice of this Court, this matter 19 was referred to Magistrate Judge Kimmins for Report and Recommendation. The 20 Magistrate Judge recommends the District Court, after its independent review of the record, 21 deny the Petition. 22 FACTUAL AND PROCEDURAL BACKGROUND 23 Petitioner was convicted in the Pima County Superior Court on two counts of 24 continuous sexual abuse of a child and two counts of kidnapping. (Doc. 10, Exs. C, D.) On 25 January 14, 2019, the court sentenced him to two, consecutive 20-year terms on each sexual 26 abuse count and two, consecutive 17-year terms for each kidnapping count, for a total of 27 74 years. (Id., Ex. D.) 28 1 Petitioner appealed and, on November 24, 2020, the appellate court affirmed his 2 convictions and sentences. (Id., Ex. B.) The Arizona Court of Appeals summarized the 3 facts in support of Petitioner’s convictions:

4 ¶ 2 At trial, the victims in this case, Carl and Jane, Najar’s wife’s grandchildren, testified to numerous incidents of sexual abuse by Najar, 5 including both oral sexual conduct and sexual intercourse, over a number of years. Both Jane and Carl testified that the sexual abuse had begun when they 6 were eight or nine years old. Carl testified that the abuse had occurred until 2004 when he was thirteen years old, and he did not tell anyone about the 7 abuse or report it to law enforcement until 2017. After Carl told his family about the abuse, Jane revealed that she had also been abused by Najar. Jane 8 testified that before that, she had not told anyone. A witness, April, an adult at the time of trial, testified Najar had sexually abused her when she was a 9 child in the 1980s.

10 ¶ 3 The state also called Dr. Wendy Dutton, a forensic interviewer who works with children who report abuse. Dutton testified to what she called the 11 “process of victimization” and explained why child victims of sexual abuse either do not report, or significantly delay reporting such abuse, and why 12 their memories are often compromised.

13 (Id. at 2-3.) Petitioner filed a Petition for Review with the Arizona Supreme Court, which 14 was denied on June 30, 2021. (Id., Exs. I, J.) 15 On October 6, 2021, Petitioner timely filed a Petition for Post-Conviction Relief 16 (PCR). (Id., Ex. M.) The PCR court denied the petition without a hearing because Petitioner 17 had not presented a colorable claim. (Id., Ex. P.) Specifically, the PCR court concluded 18 that (1) Petitioner’s newly discovered evidence claim failed on the merits, and 19 (2) Petitioner did not receive ineffective assistance of counsel (IAC). (Id.) Petitioner filed 20 for review with the Arizona Court of Appeals, which granted review but denied relief. (Id., 21 Exs. Q, R.) Specifically, the court of appeals held that the trial court did not abuse its 22 discretion in denying the claim for newly discovered evidence and Petitioner waived his 23 IAC claim by failing to develop any argument in support of it. (Id., Ex. R.) Petitioner’s 24 Petition for Review in the Arizona Supreme Court was denied. (Id., Ex. S.) 25 Petitioner initiated this federal habeas action on May 3, 2023. (Doc. 1.) Petitioner 26 filed an Amended Petition on June 16, 2023. (Doc. 5.) 27 28 1 DISCUSSION 2 The Amended Petition includes two claims. In Claim 1, Petitioner alleges his 6th 3 and 14th Amendment rights were violated by the trial court’s admission of other act 4 evidence. In Claim 2, Petitioner alleges his 5th, 6th, and 14th Amendment rights were 5 violated on two grounds. Petitioner alleges that he (a) has presented newly discovered 6 evidence entitling him to relief, and (b) had receieved IAC. Respondents argue that all of 7 the claims are procedurally defaulted. The Court reviews the claims for exhaustion and 8 procedural default. 9 EXHAUSTION AND PROCEDURAL DEFAULT STANDARD 10 A writ of habeas corpus may not be granted unless it appears that a petitioner has 11 exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. 12 Thompson, 501 U.S. 722, 731 (1991). To properly exhaust, a petitioner must “fairly 13 present” the operative facts and the federal legal theory of his claims to the state’s highest 14 court in a procedurally appropriate manner. O’Sullivan v. Boerckel, 526 U.S. 838, 848 15 (1999); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277- 16 78 (1971). 17 In Arizona, there are two primary procedurally appropriate avenues for petitioners 18 to exhaust federal constitutional claims: direct appeal and PCR proceedings. A habeas 19 petitioner’s claims may be precluded from federal review in two ways. First, a claim may 20 be procedurally defaulted in federal court if it was raised in state court but found by that 21 court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, a 22 claim may be procedurally defaulted if the petitioner failed to present it in state court and 23 “the court to which the petitioner would be required to present his claims in order to meet 24 the exhaustion requirement would now find the claims procedurally barred.” Id. at 735 n.1; 25 see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (stating that the district court 26 must consider whether the claim could be pursued by any presently available state remedy), 27 overruled on other grounds by Apelt v. Ryan, 878 F.3d 800, 827 (9th Cir. 2017). If no 28 remedies are currently available pursuant to Rule 32, the claim is “technically” exhausted 1 but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1; see also Gray v. 2 Netherland, 518 U.S. 152, 161-62 (1996). 3 Because the doctrine of procedural default is based on comity, not jurisdiction, 4 federal courts retain the power to consider the merits of procedurally defaulted claims. 5 Reed v. Ross, 468 U.S. 1, 9 (1984). However, the Court will not review the merits of a 6 procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the 7 failure to properly exhaust the claim in state court and prejudice from the alleged 8 constitutional violation or shows that a fundamental miscarriage of justice would result if 9 the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750. 10 ANALYSIS 11 In Baldwin v. Reese, the Supreme Court stated that the purpose of the exhaustion 12 requirement is to give states the opportunity to “pass upon and correct” alleged 13 constitutional errors. 541 U.S. 27, 29 (2004); see also Lopez v. Schriro, 491 F.3d 1029, 14 1040 (9th Cir. 2007) (“a petitioner may provide further facts to support a claim in federal 15 district court, so long as those facts do not fundamentally alter the legal claim already 16 considered by the state courts.”). Therefore, if a petitioner did not present the federal habeas 17 claim to the state court as asserting the violation of a specific federal constitutional right, 18 as opposed to violation of a state constitutional right or state law, the federal habeas claim 19 was not “fairly presented” to the state court. See Baldwin, 541 U.S. at 33; Castillo v. 20 McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (“[n]either did Castillo cite relevant state or 21 federal cases that might have alerted the Arizona court to his claim.”). Although a habeas 22 petitioner need not recite “book and verse on the federal constitution” to the state courts, 23 they must do more than present the facts necessary to support the federal claim. See Picard, 24 404 U.S. at 277-78; Anderson, 459 U.S. at 6. A petitioner’s general reference to 25 “constitutional error,” “deprivation of a fair trial,” or “due process,” without more, does 26 not fairly present a federal constitutional claim. Casey v. Moore, 386 F.3d 896, 913 (9th 27 Cir. 2004); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000). 28 1 Claims 1 and 2(a) 2 In Claim 1, Petitioner alleges his 6th and 14th Amendment rights were violated by 3 the trial court’s admission of other act evidence, that he had sexually abused another victim 4 in the 1980s. On direct appeal, Petitioner argued that admission of this evidence violated 5 the state rules against the admission of propensity evidence. (Doc. 10, Ex. F at 7.) The 6 appellate court found this evidence was admissible under the state rules of evidence 7 because the acts were similar enough to the charged offense to infer aberrant sexual 8 propensity. (Id., Ex. K at 14.) 9 In Claim 2(a), Petitioner alleges his 5th, 6th, and 14th Amendment rights were 10 violated based on newly discovered evidence entitling him to relief. In his PCR Petition, 11 Petitioner alleged that a photograph of his uncircumcised penis constituted newly 12 discovered evidence. (Id., Ex. M.) In his Petition for Review to the appellate court, 13 Petitioner argued that the PCR court incorrectly analyzed the circumcised status of 14 Petitioner’s penis as the newly discovered evidence rather than the photographic evidence, 15 and that he is entitled to a fair trial where he can present the newly discovered evidence. 16 (Id., Ex. Q at 27.) The appellate court found that the photograph did not constitute newly 17 discovered evidence because the photograph did not exist at the time of the trial and 18 Petitioner’s circumcision status was known and considered at trial. (Id., Ex. R at 6.) 19 In state court, Petitioner presented Claims 1 and 2(a) as based solely on state law. 20 Therefore, he did not fairly present these federal claims in state court. If Petitioner were to 21 return to state court now to allege that his convictions were invalid on the grounds alleged 22 in Claims 1 and 2(a), these claims would be found waived and untimely under Rules 23 32.2(a)(3) and 32.4(b)(3) of the Arizona Rules of Criminal Procedure because they do not 24 fall within an exception to preclusion, Ariz. R. Crim. P. 32.2(b); 32.1(b)-(h). See State v. 25 Bennett, 146 P.3d 63, 67, 213 Ariz. 562, 566 (2006) ("As a general rule, when 'ineffective 26 assistance of counsel claims are raised, or could have been raised, in a Rule 32 post- 27 conviction relief proceeding, subsequent claims of ineffective assistance will be deemed 28 waived and precluded.'") (quoting State v. Spreitz, 39 P.3d 525, 526, 202 Ariz. 1, 2 (2002)). 1 Therefore, the claims raised before this Court– that Petitioner's convictions are invalid due 2 to other act evidence and a related IAC claim – are technically exhausted and procedurally 3 defaulted. See Gray, 518 U.S. at 161-62; Coleman, 501 U.S. at 735 n.1. 4 Claim 2(b) 5 In Claim 2(b), Petitioner alleges his 5th, 6th, and 14th Amendment rights were 6 violated because he received IAC. In his PCR Petition, Petitioner alleged that if the court 7 were to find that the photograph was not newly discovered evidence, it should instead find 8 he received IAC. (Doc. 10, Ex. M.) In his Petition for Review to the appellate court, 9 Petitioner argued that trial counsel failed to secure and present the photographic evidence 10 at trial, which he argues was the most critical evidence for his defense. (Id., Ex. Q at 37.) 11 The appellate court found Petitioner had waived the IAC claim because he did not develop 12 any argument as to why the PCR court erred in its reasoning. (Id., Ex. R at 11.) Because 13 the state court imposed a procedural bar based on Arizona law as to Claim 2(b), it is 14 procedurally defaulted in this Court. 15 Cause and Prejudice and Fundamental Miscarriage of Justice 16 The Court found that Claims 1 and 2 are procedurally defaulted. The Court now 17 examines whether Petitioner has a ground to excuse the defaults. 18 Cause and Prejudice 19 Petitioner did not identify cause to overcome the default of any of his claims. Rather, 20 Petitioner alleges he has exhausted both of his claims. (Doc. 11.) Therefore, cause and 21 prejudice can not operate to excuse the defaults of Claims 1 and 2. 22 Fundamental Miscarriage of Justice 23 Petitioner did not argue that a fundamental miscarriage of justice would result if his 24 claims were not addressed on the merits. However, he has maintained his innocence and 25 suggests that he would not have been found guilty if the photographic evidence of his 26 uncircumcised penis were admitted at trial. (Doc 10, Ex. M.) Although Petitioner did not 27 28 1 assert this allegation as a means to overcome default, the Court will briefly evaluate it for 2 that purpose. 3 To demonstrate a fundamental miscarriage of justice to excuse a procedural default, 4 the petitioner must show that “a constitutional violation has probably resulted in the 5 conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995). To 6 establish the requisite probability, the petitioner must show that “it is more likely than not 7 that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” 8 Id. The Supreme Court has characterized the exacting nature of an actual innocence claim 9 as follows: 10 [A] substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. . . . To be credible, such a claim requires 11 petitioner to support his allegations of constitutional error with new reliable evidence – whether it be exculpatory scientific evidence, trustworthy 12 eyewitness accounts, or critical physical evidence – that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of 13 cases, claims of actual innocence are rarely successful. 14 Id. at 324; see also House v. Bell, 547 U.S. 518, 538 (2006). Petitioner does not identify 15 any new reliable evidence to support such a claim. His assertion that a photograph of his 16 uncircumcised penis is newly discovered evidence is insufficient. That evidence was 17 presented in a different form at trial, through Petitioner’s testimony. Even if the photograph 18 constituted newly discovered evidence, it is not sufficient evidence of actual innocence. 19 See Sistrunk v. Armenakis, 292 F.3d 669, 676 (9th Cir. 2002) (holding that evidence of the 20 condition of Petitioner’s penis to impeach the victim’s testimony was insufficient to raise 21 a claim of actual innocence). Therefore, Petitioner has not established a fundamental 22 miscarriage of justice will occur if his defaulted claims are not heard on the merits. 23 CONCLUSION AND RECOMMENDATION 24 Petitioner failed to fairly present Claims 1 and 2(a); therefore, they are technically 25 exhausted and procedurally defaulted. Claim 2(b) was barred in state court and is, 26 therefore, procedurally defaulted. Petitioner has not established cause and prejudice to 27 overcome the defaults or that a fundamental miscarriage of justice will occur if these claims 28 1 || are not addressed on the merits. Based on the foregoing, the Magistrate Judge recommends || that the District Court enter an order DISMISSING the Petition for Writ of Habeas Corpus. 3 Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file 4|| written objections within fourteen days of being served with a copy of the Report and || Recommendation. A party may respond to the other party’s objections within fourteen 6|| days. No reply brief shall be filed on objections unless leave is granted by the District 7\| Court. If objections are not timely filed, they may be deemed waived. If objections are 8 || filed, the parties should use the following case number: CV-23-207-JCH. 9 Dated this 22nd day of July, 2024. 10 1] * = Lifaaiell 0. ip □ onorable Lynnette C. Kimmins 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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