Opinion
CV 21-0234-TUC-JCH (LAB)
05-11-2022
Michael Kellywood, Petitioner, v. James Kimble, Warden, Respondent.
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE
Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed on June 4, 2021, by Michael Kellywood. (Doc. 1) Kellywood is currently incarcerated in the Arizona State Prison Complex in Florence, Arizona. Id., p. 1
Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate Judge Bowman for report and recommendation. (Doc. 4); LRCiv 72.2(a)(2).
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition. Trial counsel was not ineffective for failing to compel production of the complainant's medical records. Kellywood's claim that trial counsel was ineffective for failing to impeach the complainant with a prior inconsistent statement is procedurally defaulted.
Summary of the Case
“After a jury trial, Kellywood was convicted of three counts of sexual conduct with a minor under the age of fifteen, and one count each of molestation of a child, continuous sexual abuse of a child, and sexual abuse of a minor under the age of fifteen.” State v. Kellywood, 2020 WL 4581241, at *1 (Ariz.Ct.App. 2020). “The victim was Kellywood's adopted daughter A.K., and the offenses were committed when she was between eleven and fourteen years old.” Id. “The trial court sentenced Kellywood to life imprisonment, in addition to a combination of consecutive and concurrent prison terms totaling sixty years . . . .” Id.
On direct appeal, “Kellywood argue[d] the trial court erred by denying his motion to compel production of the victim's medical and counseling records for in camera review because they possibly contained exculpatory evidence.” State v. Kellywood, 246 Ariz. 45, 46, 433 P.3d 1205, 1206 (Ct. App. 2018). “According to Kellywood's theory of defense, A.K. had recently fabricated her allegations, in part because he and his wife had taken away her cell phone after they discovered she had been using it to watch pornography.” Id. He hoped to find evidence that A.K. was asked by her health care providers if she was being abused, and she denied it. The Arizona Court of Appeals affirmed his convictions and sentences on December 12, 2018. Id., p. 45, 1205; (Doc. 1-1, pp. 35-43). The court explained that “the mere possibility A.K. could have said something exculpatory is not, as a matter of law, sufficient by itself to require her to produce the medical and counseling records sought by Kellywood.” (Doc. 1-1, p. 37) The Arizona Supreme Court denied his petition for review on July 8, 2019. (Doc 7-1, p. 41)
In his petition for post-conviction relief (PCR), Kellywood “argu[ed] trial counsel had been ineffective in failing to adequately investigate, prepare, and argue a motion to compel the production of the counseling and medical records of A.K.” State v. Kellywood, 2020 WL 4581241, at *1 (Ariz.Ct.App. 2020). The PCR court denied the petition on March 11, 2020. (Doc. 1-1, p. 59). The court explained that counsel's failure to include the name of A.K.'s counselor in the motion or his failure to familiarize himself with the proper method of securing documents from the Arizona Attorney General was not dispositive. (Doc. 1-1, pp. 61-62) Counsel's motion for documents was denied because he “did not articulate in the Motion to Compel anything from which the trial court could determine that a reasonable possibility existed that the records contained exculpatory evidence.” (Doc. 1-1, p. 62) On August 10, 2020, the Arizona Court of Appeals granted review but denied relief adopting the reasoning of the trial court below. (Doc. 1-1, pp. 44-49)
On June 4, 2021, Kellywood filed the pending petition for writ of habeas corpus. (Doc. 1) He claims (1)(a) counsel was ineffective when he “failed to compel production of the complainant's medical records” and (1)(b) counsel was ineffective when he “failed to impeach the complainant's prior inconsistent statement.” (Doc. 1, p. 6)
The respondent filed an answer on July 23, 2021, in which he argued that Kellywood's claims are procedurally defaulted or lacking in merit. (Doc. 7) Kellywood filed a reply on August 17, 2021 and a copy on August 18, 2021. (Doc. 9); (Doc. 10)
Standard of Review
The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is in custody pursuant to the judgment of a state court, the writ will not be granted unless prior adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). If the highest state court fails to explain its decision, this court looks to the last reasoned state court decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
“[The] standard is intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312, 135 S.Ct. 1372, 1376 (2015). “‘[C]learly established Federal law' for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of th[e] [Supreme] Court's decisions.” Id.
A decision is “contrary to” Supreme Court precedent if that Court already confronted “the specific question presented in this case” and reached a different result. Woods, 135 S.Ct. at 1377. A decision is an “unreasonable application of” Supreme Court precedent if it is “objectively unreasonable, not merely wrong; even clear error will not suffice.” Id. at 1376. “To satisfy this high bar, a habeas petitioner is required to show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. (punctuation modified)
If the petitioner argues that prior adjudication “resulted in a decision that was based on an unreasonable determination of the facts” pursuant to section 2254(d)(2) then “the petitioner must establish that the state court's decision rested on a finding of fact that is objectively unreasonable.” Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012) (punctuation modified) (emphasis in original).
Federal habeas review is limited to those claims for which the petitioner has already sought redress in the State courts. This so-called “exhaustion rule” reads in pertinent part as follows:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State. . . .28 U.S.C. § 2254(b)(1)(A).
“Exhaustion requires that a petitioner ‘fairly present' his federal claims to the highest State court available.” Davis v. Silva, 511 F.3d 1005, 1008-09 (9th Cir. 2008). “Fair presentation requires that the petitioner describe in the State proceedings both the operative facts and the federal legal theory on which his claim is based so that the State courts have a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Id. (punctuation modified). “Thus, for purposes of exhausting State remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.” Id. The petitioner must make the federal basis of the claim explicit either by citing specific provisions of federal law or federal case law, even if the federal basis of a claim is “self-evident, ” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), cert. denied, 528 U.S. 1087 (2000), or by citing State cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).
If the petitioner is in custody pursuant to a judgment imposed by the State of Arizona, he must present his claims to the Arizona Court of Appeals for review, which is the highest “available” State court. Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005), cert. denied, 546 U.S. 818 (2005); Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999), cert. denied, 529 U.S. 1124 (2000). If State remedies have not been properly exhausted, the petition may not be granted and ordinarily should be dismissed without prejudice. See Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). In the alternative, the court has the authority to deny on the merits rather than dismiss for failure to properly exhaust. 28 U.S.C. § 2254(b)(2).
A claim is “procedurally defaulted” if the State courts declined to address the claim on the merits for procedural reasons. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002). Procedural default also occurs if the claim was not presented to the State courts and it is clear the State would raise a procedural bar if it were presented now. Id.
Procedural default may be excused if the petitioner can “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998). “To qualify for the fundamental miscarriage of justice exception to the procedural default rule, however, [the petitioner] must show that a constitutional violation has probably resulted in the conviction when he was actually innocent of the offense.” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008).
If a claim is procedurally defaulted and is not excused, the claim should be dismissed with prejudice because the claim was not properly exhausted and “the petitioner has no further recourse in State court.” Franklin, 290 F.3d at 1231.
The respondent concedes that Kellywood's claim that trial counsel was ineffective for failing to secure A.K.'s medical and counseling records is properly exhausted. (Doc. 7, pp. 1011) He argues the remaining claims are procedurally defaulted. Kellywood filed a reply in which he argues generally that if his claims are procedurally defaulted, then the court should find that he has shown cause and prejudice to excuse the default. (Doc. 10)
Discussion: Motion to Compel Medical and Counseling Records
Kellywood argues first that counsel was ineffective for failing to file a successful motion to compel A.K.'s medical and counseling records. (Doc. 1, p. 6) The respondent concedes that this claim is properly exhausted. (Doc. 7, pp. 10-11) He argues it should be denied on the merits.
To succeed on an ineffective assistance claim, the habeas petitioner must prove “his counsel's performance was deficient in violation of the Sixth and F ourteenth Amendments” and “he was prejudiced by counsel's deficient performance.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014).
“Counsel is constitutionally deficient if the representation fell below an objective standard of reasonableness such that it was outside the range of competence demanded of attorneys in criminal cases.” Clark, 769 F.3d at 725 (punctuation modified). “When evaluating counsel's conduct, [the court] must make every effort to eliminate the distorting effects of hindsight, and to evaluate the conduct from counsel's perspective at the time.” Id.
“A defendant is prejudiced by counsel's deficient performance if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Clark, 769 F.3d at 725. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
“In determining whether the defendant received effective assistance of counsel, [the court] will neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight, but rather, will defer to counsel's sound trial strategy.” Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009) (punctuation modified) State court review of counsel's performance is therefore highly deferential. Federal court review on habeas is “doubly deferential.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010).
In this case, Kellywood acknowledges that counsel filed an unsuccessful motion before trial to compel production of the complainant's medical and counseling records. (Doc. 1-1, p. 4) He claims here that counsel should have done a better job. Specifically, Kellywood argues that counsel should have identified “the medical treatment provider or counselor who saw A.K., ” “the conditions for which A.K. was receiving medical treatment and counseling, ” and “the standard of care applicable to when and under what circumstances physicians and counselors should inquire about whether someone has suffered sexual abuse, or whether and how such inquires are routinely made.” (Doc. 1-1, pp. 11-12) Had he done so, “counsel would have been able to establish there was a reasonable possibility the records requested contained potentially exculpatory evidence . . . .” (Doc. 1-1, p. 13)
The Arizona Court of Appeals considered this issue on the merits. The court concluded that counsel's performance was not deficient and Kellywood did not show prejudice.
On the deficiency prong, the appellate court held that it was irrelevant that trial counsel could have employed “a better discovery strategy.” (Doc. 1-1, p. 46) “[T]he standard for evaluating a claim of ineffective assistance is not the best defense, [which might be] articulated with the benefit of hindsight, but only a reasonably competent one.” (Doc. 1-1, p. 46) (emphasis in original) Kellywood provided no evidence that counsel's performance was unreasonable considering the circumstances, only that it could have been better. Accordingly, he did not establish that counsel's performance was deficient.
On the prejudice prong, the appellate court held that even if counsel had bolstered his request with more specific information, the trial court still would have been justified in concluding that the petition was “supported by speculative facts layered upon more speculative facts.” (Doc. 1-1, p. 46) And even if an improved motion would have been granted, and even if the medical records revealed that A.K. did not disclose the abuse, Kellywood did not show that the results of the trial would have been different. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583 (1986) (Where counsel is accused of failing to file an evidentiary motion, the petitioner must show that the motion would have been granted and that “there is a reasonable probability that the verdict would have been different.”). A.K.'s failure to disclose the abuse would not have been “clearly exculpatory, ” contrary to Kellywood's assertion. (Doc. 1-1, p. 46) At best, it would have been an issue that A.K. would have been asked to explain to the jury. Id. And, as the trial court observed, A.K. was “a very believable witness.” (Doc. 1-1, p. 46, n.9)
Moreover, physical evidence was presented at trial that supported A.K.'s allegations. (Doc. 1-1, p. 63, n. 8) She identified precisely where Kellywood's semen was accidently spilled on the carpet at one of his worksites. Id. In addition, “[o]n cross examination, Petitioner also admitted to being alone with A.K. at all of the times and all of the places, she stated he had sexual intercourse with her.” Id. “He admitted doing everything with A.K, that she testified to, except he claims he did not have any sexual contact with her.” Id. Accordingly, the PCR court concluded that “even if certain documents had been allowed to be used for crossexamination of A.K., it is very likely the jury verdicts would have been the same.” (Doc. 1-1, p. 63); see also (Doc. 1-1, pp. 44-49) (The Arizona Court of Appeals adopted the reasoning of the PCR court below.)
Kellywood has not shown that prior adjudication of this issue “resulted in a decision that was contrary to or an unreasonable application of Supreme Court precedent” or that it “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Discussion: Impeachment
In Claim (1)(b), Kellywood argues that counsel failed to impeach A.K. with an inconsistent statement. (Doc. 1, p. 6) According to Kellywood, A.K. testified at trial to a particular instance when she was sexually assaulted when she was ten years old. Kellywood maintains that A.K. stated at trial that this incident occurred in the bedroom, but in her initial police interview, she stated that the assault occurred in a bathroom. (Doc. 1-1, p. 18) The respondent argues that this claim is procedurally defaulted. He is correct.
Kellywood did not raise Claim (1)(b) in his petition for post-conviction relief or in his petition for review with the Arizona Court of Appeal. See (Doc. 1-1, pp. 65-75); (Doc. 1-1, pp. 50-57) And, he cannot raise it now in a second PCR petition. See Ariz.R.Crim.P. 32.2(a), 32.4(a). This claim is procedurally defaulted. See Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002).
In his reply, Kellywood asserts in a conclusory fashion that his claims are not procedurally defaulted. (Doc. 10, p. 1) He then argues generally that if they are, then the court should excuse his default because “he has demonstrated cause and actual prejudice.” Id. Kellywood cites the rule that “cause” sufficient to overcome a procedural default may be found if the claim is “substantial” and post-conviction relief (PCR) counsel was “ineffective.” (Doc. 10, p. 2) (citing Trevino v. Thaler, 569 U.S. 413 (2013))
This court finds that Kellywood has not demonstrated that his claim is substantial and post-conviction relief (PCR) counsel was ineffective for failing to pursue it. See Martinez v. Ryan, 566 U.S. 1, 14, 132 S.Ct. 1309, 1318 (2012) (“[A] prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.”). First, Kellywood fails to properly support his claim. He does not cite to the trial record or provide any documentation of the “version of events, she had given the police in her initial interview.” (Doc. 1-1, p. 18) It is therefore impossible for this court to determine whether A.K. really made an inconsistent statement and if so, whether she materially changed her recollection of this event or simply made a slip of the tongue error.
Moreover, Kellywood fails to show that trial counsel's omission was ineffective assistance and PCR counsel was ineffective for failing to raise this issue. Kellywood states in his affidavit that he alerted trial counsel to the discrepancy, but counsel “told me it doesn't matter.” (Doc. 1-1, p. 30) It must be presumed, therefore, that counsel chose not to raise the issue for tactical reasons.
Where the petitioner challenges one of counsel's tactical decisions, he bears the burden of proving that counsel's trial strategy was deficient. “He bears the heavy burden of proving that counsel's assistance was neither reasonable nor the result of sound trial strategy.” Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009) (punctuation modified). “Because advocacy is an art and not a science, and because the adversary system requires deference to counsel's informed decisions, strategic choices must be respected in these circumstances if they are based on professional judgment.” Id.
In this case, Kellywood offers only his personal opinion that trial counsel's decision not to pursue this line of impeachment was error. This is insufficient. See also Duncan v. Ornoski, 528 F.3d 1222, 1234 (9th Cir. 2008) (“Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”); Thomas v. Schriro, 2009 WL 648512, at *10 (D. Ariz. 2009) (“Any issues of trial strategy and tactics are committed to defense counsel's judgment, and claims of ineffective assistance cannot be predicated thereon.”) (punctuation modified).
Finally, Kellywood fails to show that he would not have been found guilty of that particular charge if trial counsel had pursued this issue. If this discrepancy had been raised, A.K. would have had an opportunity to explain the apparent inconsistency. And as the trial court observed, A.K. was “a very believable witness.” (Doc. 1-1, p. 46) Kellywood's showing is insufficient to excuse his procedural default.
Discussion: Additional Claims
The respondent identifies two additional claims. He identifies as Ground (1)(c) a claim that counsel was ineffective for “failure to pursue potentially exculpatory evidence and show the court that the potential contents of the documents necessitated in camera review.” (Doc. 7, p. 11) This “claim” seems to be based on a section heading in the body of Kellywood's memorandum in support of his petition. See (Doc. 1-1, p. 9) The respondent argues that this claim is procedurally defaulted.
This “claim” is not listed in the petition itself as a separate ground for relief. (Doc. 1, p. 6) It appears to be simply a different way of describing Claim (1)(a). This court concludes that it is not a separate claim. Assuming in the alternative that it is a separate claim and it is not procedurally defaulted, the court finds that this claim must be denied for the same reasons that Claim (1)(a) should be denied. (see above)
The respondent identifies as Ground (1)(d) a claim that trial counsel was ineffective for “refusing to call character witnesses on his behalf' based on a footnote in the memorandum. (Doc. 7, p. 12), see (Doc. 1-1, pp. 16-17, n. 3) In that footnote, Kellywood asserts that counsel could have called to testify his best friend, Mr. Worden; his ex-wife, Mrs. Eddy; or his mother. (Doc. 1-1, pp. 16-17, n. 3) He maintains that trial counsel “said that he will not be calling any character witnesses on my behalf because there's no point.” (Doc. 1-1, p. 26) The respondent argues that this claim is procedurally defaulted.
In fact, the footnotes in the memorandum allege a number oftrial counsel's errors. (Doc. 1-1) The respondent assumes that one of these alleged errors, the failure to call character witnesses, is a separate ground for relief. In his reply brief, Kellywood provides no guidance as to which alleged footnote errors constitute formal grounds for relief and which do not. (Doc. 10) In other words, he does not complain that the respondent failed to recognize any of these other alleged errors as formal grounds for relief.
It is unclear to the court whether counsel's alleged failure to call character witnesses is a formal claim by itself or simply argument in support of Claims (1)(a) and (1)(b), which are the only claims that are actually listed in the petition as grounds upon which relief should be granted. (Doc. 1, p. 6) If Kellywood were appearing pro se, the court would construe the petition liberally and might consider the unusual placement of this “claim” as simply a product of his legal inexperience. Kellywood, however, is represented by counsel who presumably would put a formal ground for relief in the proper place. (Doc. 1, p. 11) Accordingly, the court concludes that this argument is not a proper claim. Assuming in the alternative that it is a claim, the court finds that it is procedurally defaulted. It was not raised before the state courts, and Kellywood cannot raise it now. (see above)
In his reply, Kellywood does not address directly the respondent's argument that this “claim” is procedurally defaulted. He simply asserts in a conclusory fashion that “if this Court finds any of his claims are defaulted, this Court should find that Mr. Kellywood may escape the consequences of any default because he has demonstrated cause and actual prejudice.” (Doc. 10, p. 1) He presents no argument as to whether his underlying claim is substantial. (Doc. 10) He presents no argument as to whether PCR counsel's failure to pursue the issue was ineffective assistance. Id. This is insufficient. Moreover, as the court noted above, a conclusory statement that counsel's trial strategy was ineffective assistance is not enough to carry the “heavy burden of proving that counsel's assistance was neither reasonable nor the result of sound trial strategy.” Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009) (punctuation modified); see also Thomas v. Schriro, 2009 WL 648512, at *10 (D. Ariz. 2009) (“The fact that defense counsel did not present witnesses does not establish ineffectiveness.”).
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order DENYING the petition for writ of habeas corpus. (Doc. 1) Trial counsel was not ineffective for failing to compel production of the complainant's medical records. Kellywood's claim that trial counsel was ineffective for failing to impeach the complainant with a prior inconsistent statement is procedurally defaulted.
Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection. They do not permit a reply to a response.