Williams v. Shinn

Opinion

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

9 Irvin Darryl Williams, Sr., No. CV-17-01834-PHX-DWL

10 Petitioner, ORDER

11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 On June 13, 2017, Petitioner filed a petition for a writ of habeas corpus under 28 16 U.S.C. § 2254. (Doc. 1.) Later, Petitioner filed an amended petition. (Doc. 17.) On 17 September 30, 2020, after years of extensive motions practice, Magistrate Judge Metcalf 18 issued a 205-page Report and Recommendation (“R&R”) concluding the amended petition 19 should be denied and dismissed with prejudice. (Doc. 125.) Afterward, Petitioner filed 20 objections to the R&R (Doc. 127) and Respondents filed a response (Doc. 132). For the 21 following reasons, the Court will overrule Petitioner’s objections, adopt the R&R, and 22 terminate this action. 23 I. Background 24 The Underlying Crime. Petitioner was married to BW, who had a daughter (MH) 25 and a step-daughter (AW). (Doc. 125 at 2.) In April 2014, MH and AW disclosed to BW 26 that Petitioner had inappropriately touched them. (Id.) In response, BW confronted 27 Petitioner, forced him to leave the house, and took MH and AW to the police station, where 28 they were forensically interviewed. (Id.) A few days later, Petitioner received a phone call 1 from BW that, unbeknownst to him, was being monitored by the police. (Id.) During this 2 call, Petitioner admitted that he had touched MH and AW inappropriately. (Id.) 3 The Charges, Trial, And Sentence. Petitioner was indicted in Maricopa County 4 Superior Court on one count of sexual abuse and two counts of molestation. (Id.) The 5 charges pertained only to Petitioner’s acts toward MH. 6 Petitioner represented himself, with counsel remaining in an advisory capacity, 7 during most of the pretrial proceedings. (Id. at 3.) During this period, Petitioner also filed 8 a series of unsuccessful special action petitions. (Id. at 4) 9 During voir dire, Petitioner requested reappointment of counsel. (Id. at 3.) This 10 request was granted. (Id.) Thus, Petitioner was represented by counsel during trial. (Id.) 11 The jury eventually convicted Petitioner on all three counts. (Id.) 12 One of the key witnesses at trial was MH, who testified “that when she and her 13 family lived in a house in Laveen, Arizona, between July 1, 2013 and November 30, 2013, 14 [Petitioner] rubbed her stomach, while she was sick, laying on a couch. [Petitioner] then 15 rubbed her breasts and vagina under her clothes. Afterward, [Petitioner] took MH’s hand 16 and made MH rub his penis. MH was fourteen years old at the time. MH testified 17 [Petitioner] also abused her prior to their move to Arizona.” (Id. at 2.) 18 Another witness was the police officer who monitored BW’s confrontation call to 19 Petitioner. This officer “testified that during the confrontation call, [Petitioner] denied 20 having sex with the girls, but . . . did not deny touching MH’s breasts and vagina . . . [and] 21 also stated he needed help regarding his sexual aberration.” (Id.) 22 Finally, the jury also heard testimony from AW, who “testified that as a young 23 teenager she had a good relationship with Petitioner who she trusted more than her own 24 mother who was harsh with her. When she was 15, while they lived in Illinois, after BW 25 and Petitioner found out that she had lost her virginity, Petitioner took her to their church. 26 She thought they were there to talk or pray. But Petitioner ordered her to take off her pants, 27 made her watch him masturbate in front of her, and afterward hugged her while his penis 28 was still exposed, pressing it on her chest. AW testified that on another occasion Petitioner 1 grabbed her as they passed in the hallway of the home, brushing his clothed penis against 2 her and told her ‘just like last time, you just have to watch.’” (Id. at 154-55.) During cross- 3 examination, “AW admitted that she originally denied abuse to her mom, but after hearing 4 that MH had been abused, she told her. She asserted she did not report her abuse just to 5 support her sister, but because it was true.” (Id. at 155.) 6 On January 22, 2016, Petitioner was sentenced to concurrent 20-year terms of 7 imprisonment on the molestation charges and to lifetime probation on the sexual abuse 8 charge. (Id.) 9 The Direct Appeal. Petitioner timely appealed his conviction and sentence. (Id. at 10 4.) After Petitioner’s appointed counsel filed an Anders brief “advising . . . that after a 11 search of the entire appellate record, no arguable ground for reversal exists,” Petitioner 12 filed a pro se supplemental brief. State v. Williams, 2017 WL 34857, *1 (Ariz. Ct. App. 13 2017). This brief raised the following assignments of error: 14 (1) Insufficient evidence. 15 (2) Denial of the right to a speedy trial. 16 (3) Error in the trial court’s rulings on: (A) the motions to suppress the 17 confrontation call; (B) the sanctions imposed on the prosecution for untimely 18 disclosures of portions of the confrontation call; (C) failure to admit evidence 19 of other abuse charges involving AW (Petitioner’s victim’s sister) as a 20 victim; (D) failure to disclose administrative investigations regarding 21 Detective Fiore’s handling of other investigations; (E) holding a 22 voluntariness hearing regarding the confrontation call; (F) a request to 23 impeach AW regarding delay in report; and (G) admission of prior acts 24 evidence. 25 (4) Due process violations based on: (A) perjury at the grand jury; (B) perjury at 26 trial; (C) failure to strike a juror; (D) denial of right to self-representation at 27 bench conferences. 28 (5) Prosecutorial misconduct regarding: (A) comments on statements to the 1 police; (B) comments on witness credibility; (C) misstatements of the 2 evidence. 3 (6) Judicial bias. 4 (7) Cumulative error. 5 (Doc. 125 at 5.) 6 On January 4, 2017, the Arizona Court of Appeals issued a memorandum decision 7 affirming Petitioner’s convictions and sentences. (Id.) Afterward, Petitioner filed a motion 8 for reconsideration, which was denied. (Id.) 9 On September 12, 2017, the Arizona Supreme Court summarily denied Petitioner’s 10 petition for review. (Id.) The mandate issued on October 19, 2017. (Id.) 11 The First PCR Proceeding. On January 22, 2016, while his direct appeal was still 12 pending, Petitioner filed notice of post-conviction relief (“PCR”). (Id. at 6.) Petitioner 13 later filed a corresponding PCR petition. (Id.) 14 On August 24, 2016, the trial court summarily dismissed the PCR petition on 15 various grounds. (Id.) Petitioner also filed a motion for reconsideration, which was denied. 16 (Id.) 17 The Second PCR Proceeding. On June 21, 2017, Petitioner filed another PCR 18 notice. (Id.) Afterward, Petitioner filed a corresponding PCR petition. (Id.) 19 On March 7, 2018, the trial court summarily dismissed the PCR petition. (Id.) 20 The Petition For Review. On January 12, 2018, while his second PCR proceeding 21 was still pending, Petitioner filed a motion to extend time to seek review. (Id.) 22 On January 16, 2018, while the motion was still pending, Petitioner filed a petition 23 for review with the Arizona Court of Appeals. (Id. at 7.) 24 On January 23, 2018, the appellate court dismissed the petition as premature. (Id.) 25 Petitioner thereafter filed a motion for clarification, prompting the appellate court to issue 26 an order clarifying that the dismissal should have been on the basis that the petition was 27 delinquent, not premature. (Id.) 28 In February 2019, Petitioner filed a second motion for clarification with the 1 appellate court. (Id.) The motion was stricken because the appellate case was closed. (Id.) 2 At the same time, Petitioner filed a motion for clarification with the trial court, 3 seeking clarification as to why his motion to extend time to seek review had not been 4 addressed. (Id.) On March 8, 2019, the motion was summarily denied. (Id.) 5 The Habeas Claims. On June 13, 2017, Petitioner initiated this action by filing a 6 habeas petition. (Doc. 1.) In the amended petition (Doc. 17), Petitioner asserts 26 grounds 7 for relief, which actually “contain some 60 separate claims.” (Doc. 125 at 9.) A summary 8 of those claims is set forth in the R&R. (Id. at 9-11.) 9 The R&R. The 205-page R&R concludes that some of Petitioner’s claims should 10 be dismissed with prejudice and the remaining claims should be denied. (Id. at 203-04.) 11 Rather than summarize each claim on an individual basis, the Court will simply address, 12 in Part III below, the subset of claims as to which Petitioner has now lodged objections. 13 II. Legal Standard 14 A party may file written objections to an R&R within fourteen days of being served 15 with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 Rules”). Those 16 objections must be “specific.” See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being 17 served with a copy of the recommended disposition, a party may serve and file specific 18 written objections to the proposed findings and recommendations.”). 19 District courts are not required to review any portion of an R&R to which no specific 20 objection has been made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does 21 not appear that Congress intended to require district court review of a magistrate’s factual 22 or legal conclusions, under a de novo or any other standard, when neither party objects to 23 those findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 24 (“[T]he district judge must review the magistrate judge’s findings and recommendations 25 de novo if objection is made, but not otherwise.”). Thus, district judges need not review 26 an objection to an R&R that is general and non-specific. See, e.g., Warling v. Ryan, 2013 27 WL 5276367, *2 (D. Ariz. 2013) (“Because de novo review of an entire R & R would 28 defeat the efficiencies intended by Congress, a general objection ‘has the same effect as 1 would a failure to object.’”) (citations omitted); Haley v. Stewart, 2006 WL 1980649, *2 2 (D. Ariz. 2006) (“[G]eneral objections to an R & R are tantamount to no objection at all.”).1 3 III. Analysis 4 A. Ground 2 5 Ground 2 of the amended petition asserts that Petitioner’s right to due process was 6 violated because the trial judge in his case (Commissioner Otis) previously served as the 7 prosecutor in a different case in which a different man (Moses Hall), who is BW’s ex- 8 husband, was accused of sexually abusing AW. (Doc. 205 at 47, 56-63.) The R&R 9 concludes this claim should be denied for the following reasons: (1) “the existing record 10 (and even the new records supplied by Petitioner) shows only that Commissioner Otis had 11 sufficient involvement in the Moses Hall case to be identified on the Court’s docket after 12 appeal and on ‘disposition papers,’ but nothing to indicate her involvement in charging, or 13 trying Hall, or handling his appeal or PCR proceeding, or performing any other particular 14 task,” and thus “the record fails to reveal that Commissioner Otis had any personal 15 involvement in a critical decision in the Moses Hall case that create a tendency to protect 16 the Moses Hall conviction”; (2) alternatively, “even if it were assumed that the 17 Commissioner was involved in every critical decision in the Moses Hall case,” such 18 involvement would not violate due process because AW was only a witness in Petitioner’s 19 case, not a charged victim; (3) although Petitioner sought to rely on federal cases to support 20 his claim that Commissioner Otis should have been disqualified, those cases “apply a 21 statutory disqualification of federal judges under 28 U.S.C. § 455, which has no application 22 in Petitioner’s state court case”; and (4) to the extent Petitioner’s claim is that 23 Commissioner Otis’s “sarcastic and inappropriate comments” and incorrect rulings during 24 trial were proof of her bias, those claims are conclusory and unfounded. (Id.) 25 Petitioner raises various objections to the R&R’s rejection of Ground 2. (Doc. 127 26 1 See generally S. Gensler, 2 Federal Rules of Civil Procedure, Rules and 27 Commentary, Rule 72, at 422 (2018) (“A party who wishes to object to a magistrate judge’s ruling must make specific and direct objections. General objections that do not direct the 28 district court to the issues in controversy are not sufficient. . . . [T]he objecting party must specifically identify each issue for which he seeks district court review . . . .”). 1 at 2-3). First, Petitioner argues that the R&R’s statement that Commissioner Hall played 2 a limited role in the Moses Hall case is factually inaccurate in light of Commissioner Hall’s 3 statement that “I prosecuted Moses Hall” and in light of the fact that she had “familiarity 4 with this defendant’s name from at least 7 years prior.” (Id. at 2-3.) This argument fails 5 for the reasons set forth in the R&R—Commissioner Hall explained that she had only a 6 hazy recollection of the case and the underlying documents reveal that her role was, in fact, 7 quite limited. Petitioner also contends that Commissioner Hall and the prosecutor in his 8 case both admitted that Commissioner Hall had a conflict requiring disqualification. (Id.) 9 This argument lacks merit and is based on out-of-context quotations. Finally, Petitioner 10 argues that Williams v. Pennsylvania, 136 S.Ct. 1899 (2016), supports his position. (Id. at 11 2-3.) But in Williams, the judge had, in his previous role as a prosecutor, authorized the 12 pursuit of the death penalty against the defendant. Id. at 1905 (“The Court now holds that 13 under the Due Process Clause there is an impermissible risk of actual bias when a judge 14 earlier had significant, personal involvement as a prosecutor in a critical decision regarding 15 the defendant’s case.”). Here, in contrast, there is no allegation that Commissioner Otis 16 had any involvement in the case against Petitioner. The bottom line is that Petitioner has 17 not established that the Arizona state courts’ rejection of his due process claim under these 18 circumstances was contrary to, or involved an unreasonable application of, clearly 19 established federal law. 20 B. “Overwhelming” Evidence Of Guilt 21 The R&R concludes that Ground 8(A) of the amended petition, which involves a 22 claim of prosecutorial misconduct, should be denied for several reasons, including that 23 “[e]ven if the undersigned could find a remediable error, the undersigned would find the 24 error harmless” because “the other evidence of Petitioner’s guilt was overwhelming, 25 including clear and convincing testimony from the victim MH, her step-sister, AW, and 26 her mother BW, as well as Petitioner’s admission in the confrontation call. Indeed, the 27 defense was left to quibbling in closing argument over [a] jurisdictional issue, with no real 28 attack on the other essential facts of the prosecution’s case.” (Doc. 125 at 109-119.) 1 Petitioner raises various objections to the R&R’s statement that the evidence of his 2 guilt was “overwhelming.” (Doc. 127 at 3-8.) These efforts to relitigate the case fall flat. 3 Even accepting that each witness’s testimony may have had some ambiguities and minor 4 inconsistencies, the case involved two different children accusing Petitioner of sexual 5 abuse, Petitioner’s wife testifying that he admitted to the abuse, and a police officer 6 testifying that Petitioner made damning statements during a secretly monitored phone call. 7 It was not error for the magistrate judge to deem such evidence overwhelming. See also 8 Williams, 2017 WL 34857 at *7 (“We have read and considered counsel’s brief, carefully 9 searched the entire record for reversible error and found none. All of the proceedings were 10 conducted in compliance with the Arizona Rules of Criminal Procedure and substantial 11 evidence supported the finding of guilt.”) (emphasis added). 12 C. Ground 4 13 In Ground 4 of the amended petition, Petitioner asserts that “the prosecution violated 14 Brady v. Maryland, 373 U.S. 83 (1963) by failing to preserve or produce four categories 15 of information: (A) the confrontation call and information concerning the loss of the 16 confrontation call; (B) records from the Moses Hall prosecution; (C) disciplinary action 17 against the lead investigator, Detective Fiore; and (D) the victim’s counseling records.” 18 (Doc. 125 at 82.) The R&R concludes that some of these claims fail on the merits and 19 others are procedurally defaulted. (Id. at 82-95.) 20 Petitioner raises various objections to the R&R’s rejection of these claims. (Doc. 21 127 at 8-9.) First, with respect to the confrontation call, Petitioner asserts that the 22 prosecution’s failure to preserve the recording was “intentional” and “done in bad faith,” 23 that the chain of custody wasn’t properly disclosed to him, and that he suffered prejudice 24 as a result of these violations. (Id. at 8.) These arguments lack merit. As the R&R correctly 25 concludes, the state court’s factual determinations concerning the loss of the recording are 26 entitled to deference, and in any event the loss of the recording was disclosed to Petitioner 27 in sufficient time for use at trial—indeed, the jury was told about the loss. 28 As for the Moses Hall records, Petitioner argues that even if the records were 1 publicly available, the prosecution was required under Brady to disclose them. (Id. at 8- 2 9.) The problem with this argument is that the R&R concludes that Petitioner’s Brady 3 claim related to the Moses Hall records also fails for the independent reason that the records 4 were not exculpatory (in light of the inadmissibility of the information contained in those 5 records). (Doc. 125 at 89-90.) Because Petitioner does not object to this portion of the 6 R&R’s analysis, his claim fails. 7 Finally, as for the complaints against Detective Fiore, Petitioner argues the 8 suppression of these records was prejudicial because it is “common knowledge that 9 complaints can be used for effective impeachment” and because he “had a trial strategy to 10 use the information.” (Doc. 127 at 9.) These arguments are unavailing. The R&R contains 11 a thorough and compelling explanation of why the complaints had no material 12 impeachment value—they included “vague allegations of some impropriety” with “no 13 pattern of offenses.” (Doc. 125 at 92-93.) Petitioner’s conclusory assertions do not 14 undermine this careful analysis. 15 D. Ground 6 16 Ground 6 of the amended petition is a claim under Napue v. Illinois, 360 U.S. 264, 17 269 (1959), that prosecutors presented “the following false testimony: (1) by B.W. about 18 her lack of familiarity with being involved in such a case; (2) by Detective Fiore about the 19 reasons for B.W.’s failure to appear for an appointment; and (3) by A.W. about her reasons 20 for failing to earlier report the abuse”. (Doc. 125 at 98.) The R&R concludes that Petitioner 21 fairly presented these claims during the state-court proceedings (id. at 98-101) but also 22 concludes these claims fail on the merits because (1) the challenged statements of B.W. 23 and Detective Fiore were elicited during cross-examination, and Napue only applies to 24 testimony elicited by the prosecutor, and (2) as for A.W., the record merely shows that she 25 made inconsistent statements concerning why she initially failed to report the abuse, which 26 does not establish that the later statement was false or that the prosecution knew it was 27 false (id. at 101-05). 28 Petitioner raises various objections to the R&R’s rejection of his Napue claims. 1 (Doc. 127 at 9-11.) As for B.W. and Detective Fiore, Petitioner argues that Napue requires 2 a prosecutor to correct false testimony even if the prosecutor did not elicit it. (Id. at 9-10.) 3 However, Petitioner does not cite any Ninth Circuit or Supreme Court law supporting his 4 position. See generally United States v. Aichele, 941 F.2d 761, 766 (9th Cir. 1991) 5 (affirming conviction because “the alleged perjury Aichele claims. . . was prompted by 6 Aichele’s cross-examination; even assuming the testimony was perjured, the government 7 did not elicit it”); United States v. O’Keefe, 128 F.3d 885, 894 (9th Cir. 1997) (“Along with 8 other circuits, we have limited material lies to those that occur as a part of the prosecution’s 9 case. . . . Thus, when the defense elicits the alleged perjury on cross-examination, no 10 material falsehood has occurred because the government has not itself knowingly presented 11 false testimony.”) (citing Aichele, 941 F.2d at 766). Moreover, even if Petitioner’s view 12 of the law were correct, his Napue claims as to B.W. and Detective Fiore would fail for the 13 independent reason that the challenged testimony was not material. United States v. Renzi, 14 769 F.3d 731, 751 (9th Cir. 2014) (“To establish a Napue violation, a defendant must show: 15 (1) that the testimony was actually false, (2) that the government knew or should have 16 known that it was false, and (3) that the testimony was material, meaning there is a 17 ‘reasonable likelihood that the false testimony could have affected the judgment of the 18 jury.’”). The Arizona Court of Appeals specifically found that BW’s alleged perjury 19 concerning her “experience with the judicial system” was not prejudicial because it did 20 “not go to the foundation of the case” and that Detective Fiore’s alleged perjury concerning 21 “the time arrangements of the confrontation call” was not prejudicial for similar reasons. 22 Williams, 2017 WL 34857 at *5. These factual findings are entitled to deference under 28 23 U.S.C. § 2254(d) and seem, in any event, correct to the Court, particularly in light of the 24 overwhelming evidence of Petitioner’s guilt. 25 As for AW, Petitioner argues that her alleged lies were highly prejudicial to his case. 26 (Doc. 127 at 10-11.) This argument, however, fails to address (let alone undermine) the 27 R&R’s conclusion that Napue wasn’t violated because “the mere fact that a witness has 28 made a prior inconsistent statement does not establish that the prosecution knows the trial 1 testimony is false” and “[w]hen faced with a prior inconsistent statement, a prosecutor is 2 not required to accept the truth of the former statement as opposed to the trial testimony.” 3 (Doc. 125 at 104.) 4 E. Ground 8 5 In Ground 8 of the amended petition, Petitioner asserts a host of different 6 prosecutorial misconduct claims. (Doc. 125 at 109-31.) The R&R concludes that all of 7 these claims lack merit. (Id.) 8 Petitioner raises various objections to the R&R’s rejection of Ground 8. (Doc. 127 9 at 11-14.) First, Petitioner argues, at some length, that the R&R should have concluded 10 that the prosecutor’s statements during closing argument amounted to an improper 11 comment on his post-arrest silence. (Id. at 11-14.) It is unnecessary to resolve this 12 contention because the R&R identified two independent reasons for rejecting Petitioner’s 13 closing argument-related misconduct claim: (1) no error occurred, and (2) any error was 14 harmless in light of the overwhelming evidence of Petitioner’s guilt. (Doc. 125 at 115-19.) 15 As discussed in Part III.B above, the Court has already rejected Petitioner’s objection to 16 the R&R’s finding of overwhelming evidence. Thus, even if Petitioner had demonstrated 17 that the prosecutor’s challenged comments were improper, he would not be entitled to 18 habeas relief. 19 Next, Petitioner challenges the R&R’s rejection of his claim that the prosecutor 20 improperly vouched for AW, arguing that (1) no deference should have been afforded to 21 the state appellate court’s rejection of this claim because the court didn’t explicitly discuss 22 it in the opinion, and (2) the “comparable” decision in United States v. Martinez Medina, 23 279 F.3d 105 (1st Cir. 2002), shows that relief is warranted here. (Doc. 127 at 14.) This 24 argument fails because, as the R&R correctly concludes, the prosecutor did not vouch for 25 AW—rather than “appl[y] its own assurances or extra-judicial knowledge to argue the 26 credibility of the witnesses,” the prosecution merely urged the jury to accept AW’s 27 testimony by identifying other evidence in the record that supported her claims. (Doc. 125 28 at 130-31.) 1 F. Ground 10 2 In Ground 10 of the amended petition, “Petitioner argues his due process rights were 3 violated when the trial court denied his requests for continuances (to allow for witness 4 interviews, and to allow review of recently disclosed evidence of the recording), forcing 5 Petitioner to give up his right of self-representation.” (Doc. 125 at 136.) The R&R 6 concludes this claim is procedurally defaulted as to the witness interviews (Ground 10(A)). 7 As for the recording (Ground 10(B)), the R&R concludes that Petitioner’s claim fails on 8 the merits because (1) “Petitioner fails to show how additional time would have avoided 9 the change in the game. Petitioner does not suggest that he had a better defense, that 10 additional time would have allowed him to develop and present to the jury. He simply 11 complains that the new damning evidence made his position worse than it had been 12 before”; (2) “although the Court denied Petitioner a continuance, the timing of the decision 13 meant that Petitioner had four calendar days (including Thursday, October 29, 2015, 14 through Sunday, November 1, 2015) between the disclosure and opening statements, to 15 adjust his defense”; and (3) “[t]his was no general continuance. It was in the midst of trial. 16 The jury had been impaneled, subjected to voir dire, and were awaiting opening statements. 17 Witnesses had been subpoenaed. A continuance would have caused disruption to not only 18 the litigants and the court, but to the jurors and witnesses. The case had already been long 19 delayed in coming to trial, with substantial portions of that delay attributable to Petitioner.” 20 (Id. at 136-42.) 21 Petitioner objects to the R&R’s rejection of Ground 10(B). (Doc. 127 at 14-15.) 22 Specifically, Petitioner contends that the prosecution was to blame for some of the earlier 23 trial continuances and that the denial of the continuance was prejudicial because it 24 effectively precluded him from testifying. (Id.) These arguments lack merit. As 25 Respondents correctly note in their response: “Regardless of an extension, [Petitioner] 26 would have faced the limitations on his ability to testify because of the risk of impeachment 27 by the confrontation call recording. . . . [G]iven that the trial court ultimately suppressed 28 the newly discovered portions of the confrontation call, and [Petitioner] does not suggest 1 that it contained any exculpatory statements, he cannot possibly demonstrate any resulting 2 prejudice.” (Doc. 132 at 15.) 3 Near the end of his objections, Petitioner also objects to the R&R’s rejection of 4 Ground 10(A). (Doc. 125 at 20.) Petitioner’s only argument on this point is that his 5 appointed counsel should have raised this issue during his direct appeal and that this 6 omission has resulted in a miscarriage of justice. (Id.) This argument lacks merit for the 7 reasons stated in Respondents’ response: “[Petitioner’s] conclusory statement that a failure 8 to review his habeas claims will result in a fundamental miscarriage of justice is unavailing. 9 This is particularly so in light of the fact that the R & R considered the principle of 10 miscarriage of justice, and rejected it.” (Doc. 132 at 22-23.) 11 G. Ground 7 12 In Ground 7 of the amended petition, Petitioner “argues that his due process rights 13 were violated by the denial of a hearing to contest the voluntariness of his statements in the 14 confrontation call.” (Doc. 125 at 105.) The R&R concludes this claim is procedurally 15 defaulted in part and otherwise fails on the merits, because Petitioner was not in custody 16 when he made the challenged statements. (Id. at 105-09.) 17 Petitioner objects to this analysis, arguing that because his voluntariness claim was 18 based in part on the alleged presence of “promises and undue pressures,” the trial court was 19 required to hold a voluntariness hearing and then suppress the resulting statements. (Doc. 20 127 at 15-16.) This argument fails for the reasons outlined in Respondents’ response— 21 Petitioner “was driving his own car, speaking on his own cell phone, and has shown no 22 other form of compulsion to render his statements involuntary,” the conversation was “with 23 the victim’s mother, not police officers,” and “even if the police were trying to trick 24 [Petitioner], police officers often use deception during interrogation, and the Supreme 25 Court has held that such tactics are well within the range of permissible conduct.” (Doc. 26 132 at 16.) 27 H. Ground 12 28 “In Ground 12, Petitioner argues that his 6th Amendment rights of confrontation 1 and cross-examination were violated when the trial court precluded evidence of the Moses 2 Hall case, involving allegations by MH, AW and [BW] against the biological father of 3 MH.” (Doc. 125 at 143.) The R&R concludes that, even though the Arizona Court of 4 Appeals applied the wrong legal standard when rejecting this claim (by assuming that 5 “adherence to the state evidentiary [rape shield law] was sufficient, without the need to 6 evaluate on a case-by-case basis the legitimate interests in enforcing the state rule and 7 evaluating whether the limits were reasonable and proportionate in light of those needs”), 8 the claim fails on the merits because (1) Petitioner did not offer any evidence that MH’s, 9 AW’s, and BW’s allegations pertaining to Moses Hall were false, and indeed “[t]he jury 10 conviction in the Moses Hall case attests otherwise”; (2) Petitioner also did not offer any 11 “evidence that, prior to the allegations, there was marital discord between Petitioner and 12 BW that would prompt false allegations”; and (3) Petitioner also “proffer[ed] no reason to 13 believe that had impeachment been allowed, that the witnesses would have conceded the 14 falseness of the Moses Hall accusations, or a motivation to concoct the allegations in either 15 that case or this.” (Id. at 143-53.) Alternatively, the R&R concludes that Petitioner is not 16 entitled to habeas relief because any error was harmless in light of the overwhelming 17 evidence of his guilt. (Id. at 153.) 18 Petitioner objects to this analysis, arguing that his intent in seeking to introduce the 19 Moses Hall-related evidence wasn’t to show that MH, AW, and BW had made false 20 allegations during that case, but instead was to show that their experiences during that case 21 showed they “possessed the knowledge needed to successfully fabricate allegations 22 necessary for a conviction in a he said/she said child molestation case.” (Doc. 127 at 16.) 23 Petitioner also faults his appointed counsel for not raising this issue during his direct 24 appeal. (Id. at 20-21.) These arguments are easily rejected. Petitioner does not explain 25 why a witness’s truthful testimony in an earlier case would be helpful in showing that the 26 witness knows how to manipulate the legal system through lies and false allegations. In 27 any event, Petitioner does not identify any clearly established federal law holding that the 28 Confrontation Clause is violated when state rape-shield laws are applied under these factual 1 circumstances. Additionally, Petitioner does not challenge the R&R’s alternative finding 2 that Ground 12 fails because any error was harmless in light of the overwhelming evidence 3 of guilt. 4 I. Ground 13 5 “In Ground 13, Petitioner argues that his 6th Amendment cross-examination rights 6 were violated when he was precluded from impeaching AW about her allegations of abuse, 7 based upon: (A) delay in reporting; (B) failure to report the abuse when reporting her 8 mother for physical abuse; (C) discrepancies between statements in her interview and at 9 trial (i.e. going to CPS to report her mother for abuse vs. going with Petitioner to the 10 hospital for HIV and pregnancy testing); (D) her making a report of statutory rape to the 11 Illinois police department.” (Doc. 125 at 155.) The R&R concludes this claim should be 12 denied because the Arizona appellate court’s determination that the proffered evidence 13 would have been ineffective in impeaching AW was not contrary to, or an unreasonable 14 application of, Supreme Court law: “AW consistently offered her reasons for not 15 previously reporting the abuse, and her reasons for choosing to do so once told about the 16 abuse of MH. AW made plain she had concluded to not report the abuse to protect her 17 mother and family, and did not falter in that plan until made aware that MH was being 18 abused. Even in the context of a CPS complaint against BW and a rape police report against 19 a third party, those reasons would have remained just as rational and convincing.” (Id. at 20 155-59.) 21 Petitioner objects to this analysis, arguing in conclusory fashion that it would have 22 been “effective” to cross-examine AW because “why did she fear breaking up the family 23 so much that she did not report her stepfather for exposing himself to her but did not fear 24 that reporting her biological mother for child abuse?” (Doc. 127 at 17.) This argument is 25 unavailing. AW was examined, and cross-examined, at length concerning the delayed 26 disclosure of her allegations against Petitioner. It was not contrary to, or an unreasonable 27 application of, Supreme Court law for the Arizona Court of Appeals to conclude that 28 additional lines of inquiry on this topic would not have resulted in the jury reaching a 1 significantly different impression of AW’s testimony. 2 J. Ground 20 3 “In Ground 20, Petitioner argues that his Due Process rights under [Youngblood] 4 and [Trombetta] were violated by the denial of his Motion to Suppress Confrontation Call, 5 resulting in the allowance of testimony on the recovered portions of the confrontation call, 6 and admission of the remainder of the call.” (Doc. 125 at 180-81.) The R&R concludes 7 this claim should be denied for the independent reasons that (1) “Petitioner never argued 8 facts to show the exculpatory nature of the lost call to the appellate court or trial court, let 9 alone introduced evidence of them”; and (2) “[e]ven if the evidence were exculpatory, the 10 uncontroverted evidence is that the evidence was lost through a technological glitch. There 11 is nothing to show that Detective Fiore (or some other officer) intentionally, or even 12 negligently, disposed of the recording. On this basis alone, the undersigned finds that 13 Petitioner fails to show ‘bad faith.’” (Id. at 180-88.) 14 In his objections, Petitioner argues the trial court abused its discretion by denying 15 the suppression motion because “[a]t the time of the denial there was no opposition . . . and 16 all that was known was that in bad faith the State refused to disclosed ‘what happened’ or 17 the ‘chain of custody’ and only 6 vague minutes of a 55 minute recording existed.” (Doc. 18 127 at 17.) This argument lacks merit. Plaintiff makes no effort to show that the lost call 19 was exculpatory and his “bad faith” arguments pertain to the prosecutor’s arguments in 20 court, not to the underlying explanation of why the evidence was lost. 21 K. Ground 25 22 “In Ground 25, Petitioner argues his rights under Anders were violated when, once 23 Petitioner raised arguable grounds the appellate court was obligated to require counsel to 24 argue them, but failed to do so. Petitioner asserts that the arguable nature of his claims is 25 shown by the appellate court’s 13 page decision with 20 legal citations . . . .” (Doc. 125 at 26 194.) The R&R concludes this claim should be denied because “the state court’s reasoned 27 (and authority supported) rejection of Petitioner’s claims on their merits does not amount 28 to a finding that the claims were not frivolous. The fact that Petitioner still fails to show a 1 meritorious claim supports the conclusion that his claims were frivolous. Therefore, 2 Anders imposed no requirement for further briefing by counsel.” (Id. at 194-96.) 3 Petitioner objects to the R&R’s rejection of Ground 25. (Doc. 127 at 17-19.) 4 Although his argument is not entirely clear, he appears to argue that Judge Metcalf’s 5 allowance of extensive briefing in this case shows that his underlying claims were not 6 frivolous—and, thus, the Arizona Court of Appeals should have required an attorney to 7 litigate them. (Id.) This argument misses the mark. The Court fully agrees with, and 8 adopts, Judge Metcalf’s analysis of this issue. 9 L. Ground 1 10 “In Ground 1, [Petitioner] argues: (A) the statutes under which Petitioner was 11 convicted, Ariz. Rev. Stat. § 13-1401 and 13-1404, ‘are vague, do not specify an actual 12 crime, and allow a burden-shifting scheme’ in violation of Due Process; and (B) the trial 13 court erroneously instructed the jury [on various issues].” (Doc. 125 at 41.) The R&R 14 concludes these claims should be rejected because “Grounds 1A (burden shifting) and 15 Ground 1B(1) (instruction on inferring intent) . . . were procedurally barred in Petitioner’s 16 first PCR proceeding on the basis of the untimeliness of the PCR petition for review” and 17 “Petitioner’s state remedies on Ground 1B(2) (instruction on bearer of burden of proof on 18 intent) were not properly exhausted on direct appeal or either PCR proceeding, nor was a 19 procedural bar applied to this claim. Accordingly, the claim is now procedurally defaulted 20 under Arizona’s timeliness and waiver bars.” (Id. at 47.) 21 In his objections, Petitioner argues that his counsel should have raised a 22 constitutional challenge to A.R.S. §§ 13-1401, -1404 during his direct appeal and the 23 “failure to decide this issue will result in a miscarriage of justice.” (Doc. 127 at 19.) This 24 argument lacks merit. Cf. May v. Ryan, 807 Fed. App’x 632, 634-35 (9th Cir. 2020). 25 M. Ground 3 26 “In Ground 3, Petitioner asserts his speed trial rights were violated because of the 27 530 days between arrest and the start of trial, over his repeated objections, resulting in the 28 loss of evidence, faded memories.” (Doc. 125 at 64-65.) The R&R concludes this claim 1 should be rejected, even though the Arizona courts applied the wrong legal standard when 2 rejecting it during Petitioner’s direct appeal, because (1) “of the delay attributable to 3 matters other than the ordinary time required to prosecute the case, almost two thirds (278 4 days) are attributable to Petitioner, and only one third (142 days) to the state”; (2) 5 “Petitioner did not begin asserting his speedy trial rights until February 27, 2015, at which 6 point 303 days of the 575 had already expired”; and (3) “Petitioner points to no specific 7 prejudice that he ties to the delay occasioned by the state.” (Id. at 64-82.) 8 In his objections, Petitioner argues that “[t]his was not a complicated case” and that 9 “[t]he factual background was adopted strictly from Respondents’ Answers and is not 10 factual.” (Doc. 127 at 19.) These objections lack merit. Petitioner has not identified any 11 specific flaw or error in the R&R’s painstaking analysis of this issue. 12 N. Ground 5 13 “In Ground 5, Petitioner contends his due process rights were violated by the use of 14 perjured testimony by Detective Fiore before the Grand Jury, regarding: (1) admissions by 15 Petitioner that his accuser was telling the truth; and (2) statements by MW that Petitioner 16 squeezed her breasts.” (Doc. 125 at 95.) The R&R concludes this claim should be rejected 17 because the Fourteenth Amendment doesn’t require states to use the grand jury process, a 18 violation of state-law grand jury rights is generally not cognizable in a federal habeas 19 proceeding, and “even it were assumed that some violations of due process could occur at 20 a grand jury proceeding based on an effect on the reliability of the trial itself, Petitioner 21 fails to suggest how the purported perjury by Detective Fiore affected his trial.” (Id. at 95- 22 98.) 23 In his objections, Petitioner does not identify any cases suggesting the R&R’s legal 24 analysis was incorrect. (Doc. 127 at 20-21.) Instead, Petitioner simply questions, 25 rhetorically, whether the legal principles outlined in the R&R are fair. (Id.) Such argument 26 does not provide a basis for overruling the R&R’s conclusions. 27 O. Ground 9 28 “In Ground 9, Petitioner argues that ‘the cumulative effect of the State’s Brady 1 violations and misconduct at trial violated due process and guaranteed an unfair trial.’ He 2 cross references the facts underlying Grounds 4 (Brady) and 8 (Prosecutorial 3 Misconduct).” (Doc. 125 at 131.) The R&R concludes this claim should be rejected 4 because (1) this particular claim (as opposed to a more generalized claim of cumulative 5 error) “was never fairly presented to the state appellate court, and was not ruled on by the 6 state court,” and is therefore “not properly exhausted” and “now procedurally defaulted”; 7 and (2) alternatively, “the claim in Ground 9 is without merit because the undersigned has 8 concluded that all of the underlying claims of Brady violations and prosecutorial 9 misconduct are without merit. Thus, there is no effect of errors to be considered 10 cumulatively.” (Id. at 131-36.) 11 In his objections, Petitioner doesn’t dispute the R&R’s conclusion that he failed to 12 present Ground 9 during the state-court proceedings. (Doc. 127 at 20.) Instead, Petitioner 13 faults his appointed counsel for failing to raise this point. (Id.) This argument fails 14 because, among other things, it doesn’t address the R&R’s alternative finding that Claim 9 15 fails on the merits (which the Court now reaffirms, having rejected Petitioner’s other 16 objections to the R&R’s analysis of Claims 4 and 8). 17 Accordingly, IT IS ORDERED that: 18 (1) Petitioner’s objections to the R&R (Doc. 127) are overruled. 19 (2) The R&R’s recommended disposition (Doc. 125) is accepted. 20 (3) The amended petition (Doc. 17) is denied and dismissed with prejudice. 21 (4) A Certificate of Appealability and leave to proceed in forma pauperis on 22 appeal are denied because dismissal is justified by a plain procedural bar and reasonable 23 jurists would not find the procedural ruling debatable and because Petitioner has not made 24 a substantial showing of the denial of a constitutional right. 25 … 26 … 27 … 28 … 1 (5) | The Clerk shall enter judgment accordingly and terminate this action. 2 Dated this 27th day of November, 2020. 3 4 Lom ee” 5 f t _ Dominic W. Lanza 6 United States District Judge 7 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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