Opinion
CV 20-01414 PHX MTL (CDB)
07-08-2021
Terry Lee Haver, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE MICHAEL T. LIBURDI:
Petitioner Terry Haver, proceeding pro se, seeks relief from his state court conviction pursuant to 28 U.S.C. § 2254. Respondents answered the amended petition on December 22, 2020 (ECF No. 12), and the time for filing a reply expired January 22, 2021.
I. Background
[Haver] was the owner of a general contracting company hired to build an additional wing onto a hotel project for client World Travel Inns (client). In order to be paid, [Haver] had to submit monthly fee applications and lien waivers from various subcontractors. Each pay application required certification that [Haver]'s company would, and did, use the disbursed money to pay the subcontractors in a full and timely manner.
Over time, the bank that was processing the applications became suspicious that the work being billed for was either not done and/or the subcontractors['] invoices and waivers were being forged. Subcontractors were complaining to the client and the building superintendent that they were not being paid or were being underpaid. The architect noticed discrepancies between the work that was billed as completed and work that was actually
completed. The bank ultimately instituted a dual-check system to ensure subcontractors got paid.
Not long thereafter, [Haver] approached the client asking for additional retainage funds to be released to him, even though the project was not done. [Haver] advised the client that without the additional monies, he would have to file bankruptcy. [Haver] next demanded $100,000 from the client or told the client he could not finish the building. Within a couple of days of the client's denial of that request, [Haver] walked off the job. Neither the client nor most of the subcontractors heard from him again. [Haver] moved to Indiana.
[Haver] received thirteen disbursements totaling in excess of two million dollars. An investigation put the amount of unaccounted for money, between what [Haver] said he paid the contractors and what he actually paid, at $528,595.18. [Haver] later admitted to the police that he had used some of the money to pay subcontractors on other jobs and that he had signed some of the lien waivers. In testifying, he again admitted he had used some of the disbursed money to pay subcontractors on other jobs but indicated those payments would have been out of his profits on the hotel job.
This matter was designated a complex case. Over one hundred exhibits were introduced into evidence and testimony was taken from over a dozen witnesses. [Haver] testified, for four days, in his own defense.
After a fourteen-day jury trial, [Haver] was convicted of theft against the client, and theft and forgery as to each of the five impacted subcontractors. . . .State v. Haver, 2017 WL 6459789, at *1 (Ariz.Ct.App. Dec. 19, 2017). Haver was sentenced to a slightly mitigated aggregate term of 7.5 years' imprisonment. (ECF No. 12-1 at 93-94; ECF No. 12-2 at 13).
On appeal Haver asserted “the trial court erred in giving a flight or concealment instruction over his objection, ” and that he was not given correct presentence incarceration credit. Haver, 2017 WL 6459789, at *1-2. The appellate court denied the first claim as follows:
. . . First, appellant claims that the trial court erred in giving a flight or concealment instruction over his objection. Appellant argues that he merely closed the business and returned to Indiana where he retained a residence and where there was an opportunity for construction work. He maintains that there was insufficient evidence in the record to warrant a flight or concealment instruction, that such an instruction was unfairly prejudicial, and that it permitted the jury to wrongly consider his move as consciousness
of guilt. We review the trial court's decision to give a jury instruction for an abuse of discretion. State v. Parker, 231 Ariz. 391, 409, ¶ 44 (2013).
The jury instruction read:
In determining whether the State has proved the defendant guilty beyond a reasonable doubt, you may consider any evidence of the defendant's running away, hiding, or concealing evidence, together with all the other evidence in the case . . . Running away, hiding, or concealing evidence after a crime [ ] does not by itself prove guilt.
It was undisputed that appellant left the jurisdiction, despite being the general contractor in a project underway. He left the job without giving notice to the client or the subcontractors. It was undisputed that after failing to obtain additional funds from the client, he never again had contact with the client or most of the subcontractors. He did not leave them additional contact information.
The trial court gave appellant's counsel the opportunity to address the instruction before the jury. He said:
this instruction is really completely inapplicable in this case. You heard testimony that because of what happened with the Sahuaro Group project, or I'm sorry, the SpringHill Suites project, the Sahuaro Group had to close their doors, they closed business, Lee moved back to Indiana where he was from. He didn't take off and move to Mexico. He didn't just turn off all his phones and leave. He had forwarding addresses, he still had the same phone number or presumably an easy enough phone number to find. Detective Bermudez called him up. He did not run away, hide, or conceal evidence in this case. This instruction is just completely inapplicable to the facts of this case.
We agree with the state that the evidence of guilt was such that even had the instruction been erroneous, that the convictions could be maintained as the error was harmless. State v. Solis, 236 Ariz. 285, 287-88, ¶¶ 13-14 (App. 2014) (citing State v. Valverde, 220 Ariz. 582, 586, ¶ 16 (2009) (flight instruction did not contribute to or affect the verdict)). For these reasons, the trial court is affirmed.Id., 2017 WL 6459789, at *2.
Because the State agreed with Haver regarding presentence incarceration credit, the appellate court remanded the matter for a recalculation of that credit. Id.
The State sought restitution on behalf of four of Haver's victims. The trial court conducted an evidentiary hearing on July 13, 2018, and in a memorandum opinion issued July 30, 2018, ordered Haver pay restitution totaling $199,393.64. (ECF No. 12-1 at 125-27, 129-34).
Haver, through counsel, filed an appeal subsequent to the issuance of the restitution order. (ECF No. 12-2 at 7-26). In that appeal Haver asserted only that his “convictions should be overturned as there was insufficient evidence to establish that [Haver] intended to commit the offenses.” (ECF No. 12-2 at 8, 18-24).
The state appellate court found and concluded:
. . . Haver argues the State failed to present sufficient evidence to support the charges against him and, as a result, the trial court erred in denying the motion for acquittal he made under Arizona Rule of Criminal Procedure (“Rule”) 20(a)(1). The trial court's ruling on a Rule 20 motion is directly appealable, however, and would have been properly before this Court in his prior appeal. See Haver I, 1 CA-CR 16-0419 at *2, ¶¶ 8, 12; Ariz. R. Crim. P. 31.2; State v. Cannon, 192 Ariz. 236, 238, ¶¶ 5-7 (direct appeal from trial court's ruling on a Rule 20 motion). Thus, Haver's July 2018 notice of appeal could not serve as a timely appeal of his June 2016 convictions and sentences.
Haver waived any arguments he failed to raise regarding the propriety of his convictions and sentences in his prior appeal. State v. Nirschel, 155 Ariz. 206, 208 (1987) (failure to argue a claim generally constitutes waiver). In this subsequent appeal from the July 2018 restitution order, Haver cannot challenge the denial of his Rule 20 motion addressing the underlying criminal offenses. State v. Youngblood, 173 Ariz. 502, 504 (1993) (“All claims or issues arising out of the same nucleus of operative facts must be presented at the same time, or else they are precluded.”). Moreover, we do not permit defendants to re-challenge their convictions in an appeal from restitution when we have previously affirmed those convictions. See State v. Dann, 220 Ariz. 351, 360, ¶ 26 (2009).State v. Haver, 2019 WL 3231714, at *1 (Ariz.Ct.App. July 18, 2019).
On October 17, 2017, while his first appeal was pending, Haver filed a pro per notice of post-conviction relief in the state trial court, in which he summarily stated: “ineffective assistance of counsel, evidence not presented in trial, witnesses not called, civil issues not criminal.” (ECF No. 12-2 at 48). The record indicates the state trial court did not address this petition and the record indicates Haver did not take further action on the petition. (ECF No. 12-2 at 92-93).
On February 21, 2018, after his first appeal was denied and before his second appeal was adjudicated, Haver filed a pro per petition for state post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (ECF No. 12-2 at 48-50, 52-54). Haver asserted: “Evidence not presented at trial would have changed the verdict. Misint[erpre]tation of evidence at trial. Conviction obtained by disregarding fundamental fairness. Ineffective counsel.” (ECF No. 12-2 at 54). To explain the untimely filing of his notice, Haver alleged the existence of newly-discovered material facts “which would probably . . . change[] the verdict or sentence.” (ECF No. 12-2 at 53).
Haver was appointed post-conviction counsel (ECF No. 12-2 at 56), who informed the court they could find no meritorious claims to assert on Haver's behalf. (ECF No. 12-2 at 59-60). Although Haver was allowed additional time to file a pro per brief, he failed to do so, and the state trial court dismissed the Rule 32 petition on January 24, 2019. (ECF No. 12-2 at 65).
On January 25, 2019, Haver's appointed appellate counsel asked the state trial court to allow Haver to “refile the Rule 32 Petition.” (ECF No. 12-2 at 67). On February 2, 2019 the state trial court granted the request, vacated its order dismissing the Rule 32 action, and “reinstated” the Rule 32 action. (ECF No. 12-2 at 70). The court “[d]ismiss[ed] the Rule 32 proceeding without prejudice so that [Haver] may refile at any time within 30 days following the issuance of the order and mandate on direct appeal from 1 CA-CR 18-0604, pursuant to Ariz. R. Crim. P. 32.4(a)(2)(c).” (ECF No. 12-2 at 71). However, Haver did not file any further Rule 32 notice or petition.
In his amended federal habeas petition Haver asserts:
1. A violation of his right to due process of law. (ECF No 6-1 at 6). Haver asserts the charges against him were brought in an “improper jurisdiction, ” arguing that the matter involved a “construction contract dispute” which was a civil matter rather than a criminal matter. (Id.). Haver contends that had the case been “remand[ed] back to the grand jury, ” as the “original defense attorney, ” prosecutor, and judge had “all agreed” it should be, the case would have been tried in civil court. (Id.). Haver contends that, had the matter been remanded, the result would have been “a reduction of charges and classification of charges if not transference to the civil court.” (Id.)
Respondents contend:
The state record does not support an all-agreed-upon remand to the grand jury, as Haver asserts. The record does show the following: (1) one of the attorneys appointed to represent Haver early on in the trial proceedings requested an extension of time to file such a remand motion, not because he definitively believed a remand to the grand jury was necessary, but because he needed more time to the review the complex case files so that he may determine whether he should request such a remand, Exh. C; (2) the trial court did not express any opinion about a remand to the grand jury when it granted the defense's extension request, Exh. D; and (3) the parties met and resolved any issues that might have caused the defense to request a remand to the grand jury, see Exhs. C, E.(ECF No. 12 at 7).
2. He was denied due process because the trial court “failed to analyze and understand” construction concepts, leading to his being charged with “more severe felony classifications than necessary.” (ECF No. 6 at 7).
3. He was denied his right to the effective assistance of trial counsel. (ECF No. 6 at 8). Haver contends his trial counsel lacked expertise in contract law, and he assert counsel's performance was deficient for failing to call witnesses, failing to question “jury comments, ” failing to contest the charges, failing to contest the “flight or concealment” jury instruction, and failing to challenge the sufficiency of the evidence. (Id.).
4. He was denied his right to due process because his numerous counsel and all four of the prosecutors assigned to the case did not understand the underlying contracts. (ECF No. 6 at 9). Haver also asserts there was “no indication” either his defense counsel or the prosecutor reviewed the evidence prior to trial.
Respondents maintain Haver's federal habeas claims were not properly exhausted in the state courts and that Haver's claims are procedurally defaulted. (ECF No. 12 at 8).
II. Analysis
Absent specific circumstances, the Court may only grant federal habeas relief on the merits of a claim which has been “properly” exhausted in the state courts. See 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, the 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. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim later presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to present the substance of his claim to the state courts, including a reference to the operative federal constitutional guarantee relied on by the petitioner and a statement of the facts supporting the claim. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007). In non-capital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008).
Because Arizona's rules regarding the waiver and preclusion of claims prevent Haver from returning to the state courts to attempt to exhaust any previously unexhausted claims, any federal habeas claims which were not previously properly exhausted are procedurally defaulted.
[The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010).
To the extent Haver's federal habeas petition may be read as asserting a claim of insufficiency of the evidence, Haver raised this claim in his second appeal and the Arizona Court of Appeals found the claim waived and relief precluded because Haver failed to present the claim in his first appeal.
Procedural default of a federal habeas claim 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); McNeill v. Polk, 476 F.3d 206, 211 (4th Cir. 2007) (“The doctrine of procedural default provides that a federal habeas court may not review constitutional claims when a state court has declined to consider their merits on the basis of an adequate and independent state procedural rule.”). Absent a showing of both cause and prejudice, federal habeas relief is unavailable when the state appellate court declined to address a claim because the defendant failed to meet a state procedural requirement, or when the state judgment rests on independent and adequate state ground. See, e.g., Walker v. Martin, 562 U.S. 307, 315-16 (2011).
The state law ground may be substantive or procedural. Coleman, 501 U.S. at 729-30. To be “independent, ” “the state law basis for the decision must not be interwoven with federal law.” LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). “To be deemed adequate, the state law ground for decision must be well-established and consistently applied.” Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003). See also Ford v. Georgia, 498 U.S. 411, 424 (1991); Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1999). Federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman, 501 U.S. at 728. The Arizona Rule of Criminal Procedure applied by the Arizona Court of Appeals to Haver's insufficiency of the evidence claim, i.e., Rule 32.2(a)(3), is independent of federal law, firmly established, and regularly followed. See, e.g., Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014); Stewart v. Smith, 536 U.S. 856, 860 (2002).
In his amended habeas petition, Haver asserts due process claims and claims of ineffective assistance of counsel. Haver failed to fairly present any of his federal habeas claims to the state courts in a procedurally correct manner, as the claims presented in his amended petition are not the substantial equivalent of the claims presented to the state appellate court. The only issues properly presented to the state appellate court in a procedurally correct manner were the two claims presented in Haver's first appeal, i.e., that the trial court erred in giving a flight or concealment instruction over Haver's objection and that he was not given correct presentence incarceration credit.
In his second appeal, Haver asserted the State failed to present sufficient evidence to support his conviction. The appellate court found this claim waived and relief precluded by operation of a state procedural rule. Additionally, in his federal habeas petition, Haver presents this claim as one of ineffective assistance of counsel and, arguably, as a claim that the claims against him were improperly brought in the wrong venue, in violation of his right to due process. Accordingly, the claims raised in the federal habeas petition are not the substantial equivalent of the claims raised in the state appellate court. Similarly, although Haver properly exhausted a claim that the jury was improperly given a flight or concealment instruction over defense counsel's objection, in his amended habeas petition he asserts he was denied the effective assistance of counsel because defense counsel failed to object to the jury receiving this instruction, a claim not substantially equivalent to the claim raised in the state appellate court. Additionally, the record indicates that, in fact, counsel did object to the instruction. None of Haver's other federal habeas claims were presented to the state court in any fashion.
If a prisoner has procedurally defaulted a claim in the state courts, he is not entitled to a review of the merits of the claim in a federal habeas action absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). The Court may also consider the merits of a procedurally defaulted claim if the failure to consider the merits of the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). “Cause” is a legitimate excuse for the petitioner's procedural default of the claim, i.e., an objective factor outside of his control, and “prejudice” is actual harm resulting from the alleged constitutional violation. Cooper, 641 F.3d at 327. To establish prejudice, the petitioner must show that the alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998).
A petitioner meets the “fundamental miscarriage of justice” exception by “establish[ing] that under the probative evidence he has a colorable claim of factual innocence.” Sawyer v. Whitley, 505 U.S. 333. 339 (1992) (internal quotation marks omitted). To satisfy the “fundamental miscarriage of justice” standard, a petitioner must establish by clear and convincing evidence that no reasonable fact-finder could have found him guilty of the charged offenses. See Dretke v. Haley, 541 U.S. 386, 393 (2004); Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001).
Haver did not file a reply to the answer to his petition presenting an argument regarding cause for or prejudice arising from his procedural default of his federal habeas claims. Nor does Haver assert his factual innocence of the crimes of conviction.
III. Conclusion
All of Haver's federal habeas claims are procedurally defaulted. Haver fails to establish cause for or prejudice arising from his procedural default of his claims, and he does not assert his actual factual innocence of the crimes of conviction.
IT IS THEREFORE RECOMMENDED that amended petition seeking a federal writ of habeas corpus at ECF No. 6 be DENIED.
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.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
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 and, should Haver seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.