Tracy v. Shinn

• Court: District Court, D. Arizona
• Decided: September 29, 2020
• Docket: 3:19-cv-08074
• Status: Unknown

Opinion

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

9 Todd Tracy, No. CV-19-08074-PCT-JAT

10 Petitioner, ORDER

11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 Pending before the Court is Todd Tracy’s (“Petitioner”) Petition for Writ of Habeas 16 Corpus. (Doc. 1). The Magistrate Judge to whom this case was assigned issued a Report 17 and Recommendation (“R&R”) recommending that the petition be denied. (Doc. 17). 18 Petitioner filed objections, (Doc. 21), and Respondents responded to those objections, 19 (Doc. 22). The Court now rules on the petition. 20 I. LEGAL STANDARD 21 This Court “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). However, a 23 district court is required to review the Magistrate Judge’s recommendations “only when a 24 party object[s].” Peretz v. United States, 501 U.S. 923, 939 (1991). If a party objects, “the 25 district judge must review the magistrate judge’s findings and recommendations de novo.” 26 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). “Absent an objection 27 or request for review . . . the district court [is] not required to engage in any more formal 28 review” of the magistrate judge’s recommendations. Id. (quoting United States v. Ciapponi, 1 77 F.3d 1247, 1251 (10th Cir. 1996)). 2 The petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is 3 incarcerated based on a state-court conviction. Section 2254 permits a grant of a writ of 4 habeas corpus in only specific circumstances. A petition must not be granted “unless . . . 5 the applicant has exhausted the remedies available in the courts of the State.” Id. § 6 2254(b)(1)(A) (subject to certain exceptions that allow Petitioner to come overcome his 7 failure to exhaust in state court). Even where the petitioner has exhausted state-court 8 remedies, a district court cannot grant relief unless the state conviction “resulted in a 9 decision that was contrary to, or involved an unreasonable application of, clearly 10 established Federal law, as determined by the Supreme Court of the United States.”1 Id. § 11 2254(d)(1). An unreasonable application of law must be “objectively unreasonable, not 12 merely wrong.” White v. Woodall, 572 U.S. 415, 419 (2014). Instead, the state court’s 13 ruling must be “so lacking in justification that there was an error well understood and 14 comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 15 420. 16 II. FACTUAL BACKGROUND 17 The R&R recounts the factual and procedural history of this case, as well as the 18 governing law, at pages 1–4. (Doc. 17 at 1–4). Neither party objected to this portion of the 19 R&R, and the Court hereby accepts and adopts it. In brief, that history is as follows: 20 Petitioner was indicted on two counts of aggravated assault and three counts of 21 hindering prosecution of a murder. (Id. at 1). Based on the evidence at trial, Petitioner, his 22 son Jade, and Jade’s friend, Eric, brutally assaulted victim M.C. after Petitioner’s girlfriend 23 told them that M.C. had made unwanted sexual advances. (Doc. 13-8 at 118). After the 24 assault, Jade and Petitioner put M.C. into the back of a pickup truck, which Jade drove and 25 then “braked sharply, ejecting M.C. from the back of the truck.” (Id.). Jade left M.C. in 26 the road before returning to Petitioner’s home and recounting the incident to Petitioner. 27 1 A district court may also grant relief if a state-court conviction “resulted in a decision that 28 was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 1 (Id.). M.C. later died from blunt force trauma. (Id.). 2 After the incident, Petitioner ordered his other son, Cole, to clean up the crime scene. 3 (Id.). Cole dumped M.C.’s possessions, and Petitioner abandoned the pickup truck in 4 Golden Valley. (Id.) Petitioner then drove Jade to a friend’s house in Kingman to avoid 5 arrest. (Id. at 118–19). 6 Although Petitioner testified that he never assaulted M.C., he admitted that he had 7 directed Cole to clean up the crime scene to protect his eight-year-old daughter, who had 8 not yet returned home. (Id. at 119). Petitioner also testified that he drove his pickup truck 9 to Golden Valley to avoid being fined $500 for having an unlicensed truck on his property, 10 not to hinder the investigation. (Id.). However, Petitioner admitted that he had helped 11 conceal Jade from the police after learning of M.C.’s death. (Id.). 12 A jury convicted Petitioner of two counts of misdemeanor assault and three counts 13 of hindering prosecution. (Id.). Petitioner appealed, arguing that (1) the trial court erred by 14 ruling Petitioner’s statements to police voluntary; (2) the trial court violated Petitioner’s 15 due process rights by giving erroneous jury instructions; and (3) the trial court violated 16 Petitioner’s due process rights by failing to cure “jury irregularities.” (Id. at 119–20, 122). 17 The Arizona Court of Appeals (“Court of Appeals”) rejected all of Petitioner’s claims. (Id. 18 at 125). 19 Petitioner then filed a petition for post-conviction relief, arguing ineffective 20 assistance of trial counsel. (Doc. 13-9 at 19). The petition alleged that trial counsel erred 21 by (1) not objecting to the trial court’s decision to reduce the number of jurors from 12 to 22 8 and (2) failing to rehabilitate a dismissed juror prior to her dismissal. (Id. at 19, 22). The 23 petition was denied, with the court relying on the Court of Appeals’ finding that not only 24 was there “no fundamental error but no error at all.” (Id. at 37). Petitioner appealed, arguing 25 the same grounds as his direct appeal, as well as the new ineffective assistance of counsel 26 claims. (Id. at 46, 49, 51, 53). The Court of Appeals summarily denied relief. (Id. at 61). 27 After another failed petition for postconviction relief, (Id. at 141), Petitioner filed 28 the current habeas petition, alleging: 1 (1) the trial court abused its discretion in finding that his statements to police were voluntary in violation of the Fourteenth Amendment of the 2 Constitution, (2) the trial court denied Petitioner’s right to due process by failing to give a lesser-included instruction in violation of his Sixth 3 Amendment rights, and (3) the trial court abused its discretion in regards to the jury irregularities in violation of his Sixth Amendment rights. 4 5 (Doc. 17 at 3–4). 6 III. ANALYSIS 7 As a preliminary matter, the Court hereby adopts the Magistrate Judge’s findings 8 that (1) the petition was timely; (2) the jury instruction was not erroneous; and (3) the jury 9 irregularities did not violate the Sixth Amendment. Neither party objects to these findings. 10 Instead, Petitioner objects to the Magistrate Judge’s recommendation on the voluntariness 11 of his statements to police. He also raises two additional claims for the first time: that a 12 juror’s recognition of him from an Alcoholics Anonymous meeting “tainted the other 13 jurors” and that his trial counsel was ineffective for (1) “neglecting to challenge the 14 credibility of the officers,” (2) “neglecting to set forth a Defense of premises [d]efense,” 15 and (3) for spending only seven minutes explaining the jury instructions to Petitioner. The 16 Court considers each claim in turn. 17 A. Voluntariness of Statements 18 Due process requires that statements made to police be made voluntarily. Lee v. 19 Mississippi, 332 U.S. 742, 745–46 (1948). Statements are involuntary when a defendant’s 20 will is overborne “by the circumstances surrounding the giving of the [statements].” 21 Dickerson v. United States, 530 U.S. 428, 434 (2000). In making this determination, courts 22 must consider the “totality of the circumstances—[including] the characteristics of the 23 accused and the details of the interrogation.” Id. After considering the totality of the 24 circumstances, the court should “weigh . . . the circumstances of pressure against the power 25 of resistance of the person confessing.’” Id. Based on this assessment, the court must 26 conclude that the statement was “made freely, voluntarily[,] and without compulsion or 27 inducement of any sort” to be admissible at trial. Haynes v. Washington, 373 U.S. 503, 513 28 (1963). 1 Police conducted three interviews of Petitioner. (Doc. 13-8 at 119). During the 2 second interview, Petitioner asked for the charges to be dropped in exchange for his 3 cooperation with the police’s efforts to locate Jade. (Doc. 13-1 at 83). Instead, police agreed 4 that Petitioner could spend the night at home if he cooperated. (Doc. 13-1 at 88). The Court 5 of Appeals, in applying the totality of the circumstances test, determined that Petitioner’s 6 statements were voluntary. (Doc. 13-8 at 119). Unless this conclusion “involved an 7 unreasonable application of[] clearly established Federal law,” or an unreasonable 8 determination of the facts, relief on this claim must be denied. See 28 U.S.C. § 2254. 9 As stated in the R&R, the Court of Appeals identified the correct constitutional test 10 in its opinion; the fact that the opinion cites to Arizona—not federal—cases is of no object. 11 See Early v. Packer, 537 U.S. 3, 8 (2002). The Court of Appeals noted that during the first 12 interview, one of the officers stated that “any chance” Petitioner had of “reconciling, seeing 13 [his daughter]” depended on his cooperation with officers. (Doc. 13-1 at 38). In the same 14 interview, an officer later asked Petitioner whether he had “seen [his daughter] off to 15 school” because it would “be the last time [he] saw her” if he did not tell the truth. (Doc. 16 13-1 at 60). Although these statements, by themselves, might be indicative of coercion, 17 voluntariness requires an evaluation of the “totality of the circumstances.” The statements 18 had “no discernible effect on [Petitioner] or his responses to officer’s questions” (Doc. 13- 19 8 at 120): Petitioner’s responses remained largely the same after these statements were 20 made. (See, e.g., Doc. 13-1 at 38–39, 62). It was not until the second interview that 21 Petitioner, not police, offered to reveal Jade’s location in exchange for dropped charges. 22 (Doc. 13-1 at 83). 23 The statements about Petitioner’s daughter appear to be coercive on the surface, but 24 they had no discernible effect until hours later, in a separate interview. There is thus no 25 evidence that shows these statements overbore Petitioner’s will. Therefore, the Court of 26 Appeals could not have unreasonably applied “clearly established Federal law” or made an 27 unreasonable determination of the facts by finding the statements voluntary. Accordingly, 28 the Court denies Petitioner’s request for relief and adopts the R&R on this claim. 1 B. Claims First Raised in Petitioner’s Objections 2 Petitioner raises ineffective assistance of counsel claims and another jury 3 irregularities claim for the first time in his objections. “A district court has discretion, but 4 is not required, to consider evidence or claims presented for the first time in Objections to 5 a Magistrate Judge’s [R&R].” Moore v. Chrones, 687 F. Supp. 2d 1005, 1016 (C.D. Cal. 6 2010) (citing Brown v. Roe, 279 F.3d 742, 744–45 (9th Cir. 2002); United States v. Howell, 7 231 F.3d 615, 621–22 (9th Cir. 2000)). The Court exercises its discretion and will not 8 consider the claims because, as discussed below, they are procedurally barred without 9 excuse. Moreover, because the claims are procedurally barred without excuse, even if the 10 Court were to exercise its discretion and consider the claims, relief would be denied. 11 For a claim to be successful on habeas, petitioners must first have “exhausted the 12 remedies available in the courts of the State.” § 2254(b). Petitioner has not done so here. 13 1. Ineffective Assistance of Counsel 14 Arizona requires ineffective assistance of counsel claims to be raised in a petition 15 for post-conviction relief. State v. Spreitz, 202 Ariz. 1, 3, 39 P.3d 525, 527 (2002). 16 However, a petitioner’s “assertion of a claim of ineffective assistance of counsel based on 17 one set of facts[] does not exhaust other claims of ineffective assistance based on different 18 facts.” Date v. Schriro, 619 F. Supp. 2d 736, 788 (D. Ariz. 2008). 19 Petitioner’s three claims for ineffective assistance of counsel raised for the first time 20 in his objections to the R&R were not presented in the state courts. Although Petitioner 21 raised ineffective assistance of counsel claims in his petition for post-conviction relief, they 22 rested on a different factual predicate: failure to object to the jury irregularities. The claims 23 raised for the first time in his objections are factually distinct—involving the failure to 24 challenge a witness’s credibility, raise a certain defense, and take more time to explain the 25 jury instructions. There is no factual overlap between these claims and the jury 26 irregularities claim, therefore they were not properly presented in state court. Petitioner did 27 not exhaust this claim in state court, and has not shown cause and prejudice or actual 28 innocence to overcome this failure to exhaust, so relief must be denied. See Gray v. 1 Netherland, 518 U.S. 152, 161–62 (1996); Murray v. Carrier, 477 U.S. 478, 495–96 2 (1986). 3 2. Juror Recognition Issue 4 Petitioner next argues that a juror’s recognition of him from an Alcoholics 5 Anonymous meeting violated his Sixth Amendment rights. However, this claim was not 6 presented to the state courts at any point and is raised for the first time in Petitioner’s 7 objections. Thus, this claim has not been exhausted in the state courts, and Petitioner has 8 not shown cause and prejudice or actual innocence to overcome this failure to exhaust. See 9 Gray v. Netherland, 518 U.S. 152, 161–62 (1996); Murray v. Carrier, 477 U.S. 478, 495– 10 96 (1986). Because no exception applies to cure this default, the Court declines to exercise 11 its discretion to hear the claim, and relief is denied. 2 12 C. Certificate of Appealability 13 An appeal may not be taken from this order unless this Court issues a certificate of 14 appealability (“COA”). 28 U.S.C. § 2253(c)(1). A court may issue a COA only if a 15 petitioner has made a “substantial showing of the denial of a constitutional right.” Id. § 16 2253(c)(2). “[T]he petitioner must demonstrate that reasonable jurists would find the 17 district court’s assessment of the constitutional claims debatable or wrong.” Silva v. 18 Woodford, 279 F.3d 825, 833 (9th Cir. 2003) (quoting Slack v. McDaniel, 529 U.S. 473, 19 484 (2000)). However, “[a judge] must deny a COA, even when the habeas petitioner has 20 made a substantial showing that his constitutional rights were violated, if all reasonable 21 jurists would conclude that a substantive provision of the federal habeas statute bars relief.” 22 Miller-El v. Cockrell, 537 U.S. 322, 349–50 (2003) (Scalia, J., concurring). 23 The Court denies the COA as to all claims because Petitioner has not made a 24 substantial showing that his constitutional rights were violated and reasonable jurists would 25 not find this Court’s conclusions regarding the claims debatable under AEDPA’s standards. 26 Therefore, the COA is denied.

27 2 Although the Court does not reach the merits of this claim, the Court notes that the juror was mistaken in thinking she recognized Petitioner because Petitioner had not attended any 28 such meetings. (Doc. 22 at 3). Nonetheless, to avoid any potential for prejudice due to her belief, the juror was designated as an alternate and did not participate in deliberations. (Id.). IV. CONCLUSION 2 For the foregoing reasons, 3 IT IS ORDERED that the Report and Recommendation (Doc. 17) is accepted and 4|| adopted. The objections (Doc. 21) are OVERRULED. 5 IT IS FURTHER ORDERED that the petition in this case (Doc. 1) is DENIED 6|| and dismissed with prejudice, and the Clerk of the Court shall enter judgment accordingly. 7 IT IS FINALLY ORDERED that pursuant to Rule 11 of the Rules Governing 8 || Section 2254 Cases, in the event Petitioner files an appeal, the certificate of appealability is DENIED as to all claims. 10 Dated this 29th day of September, 2020. 11 12 A 13 James A. Teilborg 14 Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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