Opinion
CV-18-0519-TUC-JAS (JR)
05-18-2021
Scott Frederick Randall, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau, United States Magistrate Judge
Petitioner Richard Kenneth Randall, incarcerated at the Arizona State Prison in Tucson, Arizona, has filed a Petition for Writ of Habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court are the Amended Petition (Doc. 5), Respondents' Answer (Doc. 17), and Randall's reply (Doc. 21). Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Rateau for Report and Recommendation. Based on the unrebutted arguments in the Answer, the Magistrate Judge recommends the District Court, after its independent review of the record, dismiss the Petition.
The Court construes the petition liberally to effectuate Randall's apparent intent that the claims raised in the original Petition, which is attached to the Amended Petition, be considered along with the one claim raised in the Amended Petition. See United States v. Johnson, 988 F.2d 941, 943 (9th Cir. 1993) (remarking that the unfortunate mislabeling of a pro se prisoner's petition for habeas corpus relief “‘is not necessarily fatal to maintaining'” the prisoner's claims) (quoting United States v. Young, 936 F.2d 1050, 1052 (9th Cir. 1991) (overruled on other grounds by United States v. Vela, 624 F.3d 1148 (9th Cir. 2010))).
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I. Factual and Procedural Background
A. Trial and Sentence
On February 21, 2014, a Pima County grand jury charged Randall with two counts of sexual conduct with a minor under 15 involving victim S.L., and one count of sexual conduct with a minor under 15 and one count of sexual abuse involving victim A.L. Exs. A, B (Indictments). On March 5, 2015, a jury acquitted Randall on two counts of sexual conduct with a minor and found him guilty of the lesser-included offenses of child molestation. Ex. C. The jury also found Randall guilty on one count of sexual conduct with a minor under 15, as well as one count of sexual abuse. Id.
Following his trial, Randall filed a motion for mistrial or, in the alternative, a motion for a new trial, alleging potential juror misconduct on the basis that “Juror Number 12 failed to disclose the Court, despite repeated questioning, that she was a child victim of sexual assault.” Exs. D (motion), E (response). After conducting an evidentiary hearing, during which the juror in question testified, ex. F (hearing transcript), the trial court denied Randall's motion and concluded that “none of the juror's responses to any questions during voir dire were the result of any bias or an attempt to conceal a belief in the defendant's guilt.” Ex. G. The trial court additionally found that:
it was not a willful failure to respond fully to the question asked of the jury on voir dire examination about whether anyone had been a victim of child abuse, furthermore, the juror's letter shows no animosity toward the defendant and is in fact sympathetic asking for the Court to impose leniency. Furthermore on two of the charges, the jury found the defendant guilty of the lesser included offenses, thus giving the defendant the benefit of the doubt over the victim's testimony as to the other charges.Ex. G.
On August 3, 2015, the trial court sentenced Randall to a prison sentence of life without the possibility of parole for 35 years on the sexual conduct charge, to be followed by consecutive and concurrent terms on the remaining charges, totaling an additional 34 years' imprisonment. Exs. H, I, M (Memorandum Decision summarizing sentences). 2
B. Direct Appeal
On direct appeal, Randall raised two issues: (1) the trial court erred by not granting his motion for mistrial or, in the alternative, motion for new trial, based on juror misconduct; and (2) the trial court erred by failing to instruct the jury on the jurisdictional elements of the charged offenses. Exs. J, K, L.
By Memorandum Decision filed on October 5, 2016, the Arizona Court of Appeals affirmed Randall's convictions and sentences. Ex. M, p. 5. As to Randall's claim that the trial court erred by not granting his motion for a mistrial or for a new trial based on juror misconduct, the appeals court found that it lacked jurisdiction to address the claim because Randall's notice of appeal was untimely under Rule 24.1 and Rule 24.2, Ariz. R. Crim. P. Addressing Randall's contention that the jury was not properly instructed as to the jurisdictional elements of his offenses, the court found that the jury did find beyond a reasonable doubt that the crimes occurred in Pima County and that Randall had failed to establish error or show prejudice. Ex. M, pp. 4-5.
Randall did not seek review by the Arizona Supreme Court, and on January 9, 2017, the Court of Appeals issued its mandate. Ex. N.
C. Post-Conviction Proceedings
On November 3, 2016, Randall filed a notice of post-conviction relief Ex. O. On December 4, 2017, Randall's counsel filed a Notice of Review stating that she “finds no legal issues of merit exist.” Ex. P. On December 6, 2017, the court granted Randall 45 days in which to file a pro se petition for post-conviction relief. Ex. Q. On January 19, 2018, Randall filed another Notice of Post-conviction Relief along with a Request for Post-Conviction Relief. Exs. R, S. In his Request for Post-Conviction Relief, Randall contended that his trial counsel was ineffective by: (1) convincing him not to testify at trial; (2) failing to cross-examine the victims; (3) failing to present any defense witnesses; and (4) failing to “bring evidence forward that would have help[ed] the . . . outcome in the trial.” Ex. S, 3 p. 7. The State filed a response, which Randall moved to strike. Exs. T, U. The post-conviction court denied Randall's motion to strike. Ex. V, p. 2.
The Arizona Supreme Court amended the post-conviction relief rules, effective January 1, 2020. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). The rules relating to defendants who are found guilty at trial remain codified in Rule 32.
On May 17, 2018, the post-conviction court dismissed Randall's petition. Ex. V. In doing so, the court first found that “[t]he record . . . reflects [Randall] was aware of his right to testify, and it was his decision to not testify.” Ex. V, p. 3. Second, the court dismissed Randall's claim that counsel was ineffective by failing to cross-examine “the accusers, ” because “[t]he trial record contradicts [Randall's] allegation, as trial counsel cross-examined every witness that the State called.” Id. Third, the court dismissed Randall's claim that counsel was ineffective for failing to call any witnesses in his defense because “[t]he decision of which witnesses to call is a trial strategy within trial counsel's purview.” Id. The court additionally stated that Randall “does not propose any witness trial counsel should have called, nor does he provide any reasons to find trial counsel's failure to call witnesses was due to ineptitude, inexperience, or lack of preparation rather than trial strategy.” Id., p. 4. Fourth, the court concluded that Randall's claim that counsel was ineffective because he did not bring forward any evidence lacked merit “[b]ecause [Randall] does not indicate what proposed evidence trial counsel should have presented at trial, the Court must assume that counsel's decisions regarding evidence were tactical in nature.” Id. Finally, the court held that Randall was not prejudiced, stating, “taking the alleged errors and abundant evidence of guilt as a whole, [Randall] fails to establish he was prejudiced by his trial counsel's actions because he fails to establish a reasonable probability the results at trial would have been different but for trial counsel's alleged errors.” Id. (citation omitted).
On May 29, 2018, Randall filed another petition for post-conviction relief. Ex. W. On June 29, 2018, the post-conviction court summarily dismissed the petition, stating that it had already ruled on Randall's previous petition for post-conviction relief and that it therefore would “not consider [Randall's] most recent petition filed on May 29, 2018. Ex. X, p. 2. 4
II. Habeas Petition
On October 19, 2018, Randall filed a petition for writ of habeas corpus, which was subsequently dismissed with leave to amend because Randall had not named a proper respondent. Doc. 1 (original petition); Doc. 5 (dismissal order). On December 10, 2018, Randall filed the currently pending Amended Petition. Amended Petition, Doc. 7. In the Amended Petition, Randall alleges in Ground One that a “juror lied on the stand [and] the judge dismissed it saying that she was old and it wouldn't have change[d] her verdict” and that the State withheld a letter from the juror admitting to the lie. Doc. 7, p. 4. At the bottom of factual section of Ground One of the Amended Petition, Randall states “other things that happen[ed] in this case [are] listed in Ground One A.” Id. Randall's Ground One A claims are the claims he raised in his original Petition which is attached to the Amended Petition. In Ground One of the attached original Petition, Randall alleges that a witness was present during investigative questioning. In Ground Two he alleges that papers were passed during victim S.L.'s questioning. In Ground Three he alleges that when S.L. was questioned about any defects on Randall she stated that “there was a big defect you couldn't miss” and that “a picture was taken so the attorney could prove it but was never shown in court to the jury. In Ground Four, Randall argues that, if a crime had actually occurred, victim A.L. would not have needed to have her recollection refreshed using her previous statements. Amended Petition, Doc. 7. As discussed below, Respondents contend that none of the grounds raised in the Amended Petition are exhausted and that all the grounds are procedurally defaulted and are therefore not subject to habeas review. Randall does not argue otherwise in his Reply and, as explained below, the Court largely agrees with Respondents' arguments and fully agrees that all the claims are unexhausted, procedurally defaulted and not subject to review.
III. Exhaustion and Procedural Default
A. Legal Standards
With limited exceptions, a state prisoner must exhaust his available state remedies before a federal court may consider the merits of his habeas corpus petition. See 28 U.S.C. 5 § 2254(b)(1), (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim a petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest court” in a procedurally correct manner. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). For Arizona non-capital cases, the Ninth Circuit has concluded that the “highest court” requirement is satisfied if the petitioner presented his claim to the Arizona Court of Appeals, either in a direct appeal or in a petition for post-conviction relief. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).
“[A] petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citations omitted). To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). “If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). A “general appeal to a constitutional guarantee, ” such as due process, is insufficient to achieve fair presentation. Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see also Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) (“Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.”).
A federal habeas court also may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). As the United States Supreme Court explained in Coleman:
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism.6
Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-31.
The same concerns of comity and federalism apply to claims that have been procedurally defaulted in state court. Id. at 731-32. The procedural default doctrine limits a petitioner from proceeding in federal court where his claim is procedurally barred in state court and “has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). There are two types of procedural bars, “express and implied.” Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar “‘that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”). An implied procedural bar “occurs when the petitioner has failed to fairly present his claims to the highest state court and would not be barred by a state procedural rule from doing so.” Robinson, 595 F.3d at 1100. Procedural default also occurs when a petitioner did present a claim to the Arizona Court of Appeals, but the appellate court did not address the merits of the claim because it found the claim precluded by a state procedural rule. See, e.g., Atwood v. Ryan, 870 F.3d 1033, 1059 (9th Cir. 2017).
A procedural bar may also be applied to unexhausted claims where state procedural rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts “would now find the claims procedurally barred”). In Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims 7 fit in a narrow category of claims for which a successive or untimely petition is permitted. See Ariz.R.Crim.P. 32.1(b)-(h), 32.2(a), 33.1(b)-(h), 33.2 (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(b)(3) and 33.4(b)(3) (time bar). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001) (“We have held that Arizona's procedural default rule is regularly followed [“adequate”] in several cases.”) (citations omitted), reversed on other grounds, Stewart, 536 U.S. 856; see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not “strictly or regularly followed” Rule 32 of the Arizona Rules of Criminal Procedure); State v. Mata, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).
B. Procedural Status of Randall's Claims
1. Amended Petition - Ground One
In his Amended Petition, Randall raises one ground for relief, asserting that a juror lied during voir dire about being a victim of abuse and that the State withheld a letter from the juror admitting to the lie which resulted in Randall's inability “to have been able to file [for a mistrial].” Amended Petition, Doc. 7, p. 4. The latter assertion, that Randall was unable to file a timely mistrial, is belied by the record. An extensive motion was filed on his behalf on this issue. Ex. D. Randall's request for an evidentiary hearing was also granted. Ex. F (transcript of hearing). And, after finding no bias or willful failure by the juror to respond to questions asked in voir dire, the trial court denied the motion. Ex. G. Thus, Randall's claim that he was unable to file a motion for a mistrial due to the late receipt of the juror's letter is entirely undermined by the record.
Respondents contend that Randall did not exhaust his Ground One claims. The Court agrees. In his direct appeal, Randall contended that the trial court erred in denying his motion for a mistrial, or in the alternative, for a new trial, based on the juror's 8 misconduct. Ex. J. In his Opening Brief on appeal, Randall claimed that the trial court should have granted relief based on Rules 24.1 and 24.2, Ariz. R. Crim. P. Ex. J, p. 10. His supporting argument relies primarily on Rules 24.1, 24.2, and Arizona case law regarding peremptory challenges. Id., pp. 10-17. And, although he quotes from two United States Supreme Court decisions, his stated purpose for doing so is to illustrate that the “importance of the peremptory challenge has been discussed in multiple venues . . ..” Ex. J, p. 12. In the Answering Brief on direct appeal, the State noted that Randall's argument did not allege federal due process violations. Ex. K, p. 5, n. 6. On this point, Randall's Reply Brief was entirely consistent with the State's Answering Brief, as it relied entirely on Arizona authority and did not dispute the State's noted absence of a federal constitutional claim. Ex. L, pp. 1-3.
Predictably, in addressing Randall's argument that the trial court had erred in failing to grant his motion for a mistrial or for a new trial, the Arizona Court of Appeals made no mention of a federal aspect of the claim. Rather, that court found that it lacked jurisdiction to address the claim because Randall's notice of appeal was untimely under Rule 24.2(d), Ariz. R. Crim. P. Thus, there are at least two bases for finding that Ground One is not subject to habeas review. First, as Randall does not dispute, he did not assert in the Arizona Court of Appeals that his federal constitutional rights were violated by the juror who allegedly lied about her history as a victim of sexual abuse. Because Randall did not offer a specific federal legal theory underlying his claim, it was not fairly presented. See Baldwin, 541 U.S. at 32-33; Hiivala, 195 F.3d at 1106 (“The mere similarity between a claim of state and federal error is insufficient to establish exhaustion.”). Second, the appellate court did not address the merits of the claim because it found that it was without jurisdiction to do so because Randall's appeal from the trial court's denial of the motion for a new trial was untimely under Rule 24.2(d). Ex. M, p. 4. The Ninth Circuit has held that Arizona's procedural rules, including its timeliness rules, are “clear” and “well-established.” Simmons v. Schriro, 187 Fed.Appx. 753, 754 (9th Cir.2006). There is also nothing in Rule 24.2(d) that would indicate it is not “independent” of the merits of 9 Randall's claim or not an “adequate” basis for the Arizona Court of Appeals decision. See Harris, 489 U.S. at 260; see also State v. Wynn, 562 P.2d 734, 735 (Ariz. App. 1977) (explaining and applying Rule 24.2(d)); State v. Gwen, No. 1 CA-CR 18-0775, 2020 WL 207072 at *6 (Ariz. App. Jan. 14, 2020) (finding appeal untimely under Rule 24.2(d)). Accordingly, this claim is procedurally barred from habeas corpus review on this ground, as well. See Coleman, 501 U.S. at 537.
2. Original Petition Claims
In Ground One of the attached original Petition, Randall alleges that a witness was present during investigative questioning. In Ground Two he alleges that papers were passed during victim S.L.'s questioning. In Ground Three he alleges that when S.L. was questioned about any defects on Randall she stated that “there was a big defect you couldn't miss” and that “a picture was taken so the attorney could prove it but was never shown in court to the jury.” In Ground Four, Randall argues that, if a crime had actually occurred, victim A.L. would not have needed to have her recollection refreshed using her previous statements. Amended Petition, Doc. 7. These claims were not raised on direct appeal or in Randall's PCR petition. See Exs. J (Opening Brief on appeal) and S (Request for Post-Conviction Relief). Thus, they were not fairly presented in the state courts. See Baldwin, 541 U.S. at 32-33; Hiivala, 195 F.3d at 1106. Moreover, even if Randall's PCR petition could be construed as alleging any of the facts underlying these claims, each of the claims in that petition were based on allegations of ineffective assistance of counsel. See Ex. S. Because the claims he raises here are not based on ineffective assistance of counsel, they are different from those raised in state court and are therefore unexhausted. See Picard v. Connor, 404 U.S. 270, 276 (1971) (A habeas petitioner must “present the state courts with the same claim he urges upon the federal court.”). And, finally, Randall did not appeal the post-conviction court's denial of his PCR petition and the claims are therefore unexhausted for that reason, as well. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (holding that a claim remains unexhausted until the petitioner has given the highest available state court the opportunity to consider the claim through direct appeal or state collateral review 10 proceedings).
C. Cause and Prejudice
If Randall were to now return to state court to litigate his unexhausted claims, they would be found to be waived and untimely under Rules 32.1(b)-(h), 32.2(a), 33.1(b)-(h), 33.2 of the Arizona Rules of Criminal Procedure because they do not fall within an exception to preclusion, and time barred under Rules 32.4(b)(3) and 33.4(b)(3) (time bar). Randall's claims are therefore technically exhausted but procedurally defaulted. A federal court may not consider the merits of a procedurally defaulted claim unless the petitioner can demonstrate cause for his noncompliance and actual prejudice, or establish that a miscarriage of justice would result from the lack of review. See Schlup v. Delo, 513 U.S. 298, 321 (1995). To establish cause, a petitioner must point to some objective factor external to the defense impeded his efforts to comply with the state's procedural rules. Dretke, 541 U.S. at 393-94. “[C]ause is an external impediment such as government interference or reasonable unavailability of a claims factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations omitted). Ignorance of the state's procedural rules or lack of legal training do not constitute legally cognizable “cause” for a petitioner's failure to fairly present a claim. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908-10 (9th Cir. 1986); Schneider v. McDaniel, 674 F.3d 1144, 1153 (9th Cir. 2012). “Prejudice” is actual harm resulting from the constitutional violation or error. Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984); Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1996). Here, in his Amended Petition or Reply, Randall did not argue that cause and prejudice exist in this case. See Amended Petition, Doc. 1; Reply, Doc. 21. Therefore, the claims are not subject to review.
IV. Recommendation
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, deny and dismiss Randall's Petition for Writ of Habeas Corpus (Doc. 1) and direct the Clerk of Court to enter judgment in favor of Respondents and against Petitioner. 11
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Replies shall not be filed without first obtaining leave to do so from the District Court. If any objections are filed, this action should be designated case number: CV 18-0519-TUC-JAS. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District Court must “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” The undersigned recommends that, should the Report and Recommendation be adopted, a certificate of appealability be denied because Randall has not made a substantial showing of the denial of a constitutional right. 12