Opinion
CV-20-08284-PCT-DLR (MTM)
06-04-2021
“Maddi” Jeffrey Aaron Moore, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
HONORABLE MICHAEL T. MORRISSEY, UNITED STATES MAGISTRATE JUDGE
Petitioner Maddi Jeffrey Aaron Moore has filed a Second Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docs. 7, 12 [collectively, “Petition”]).
Petitioner originally filed a habeas petition on November 2, 2020. (Doc. 1). However, because that petition did not “substantially comply with court-approved form” in violation of LRCiv 3.5(a), the Court dismissed it without prejudice and granted Petitioner leave to amend. (Doc. 6). On December 14, 2020, Petitioner filed a First Amended Petition. (Doc. 7). On January 1, 2021, Petitioner moved for leave to amend the First Amended Petition (doc. 12), which the Court granted (doc. 15). The Second Amended Complaint comprises the claims of the First Amended Petition (doc. 7) and fourteen additional grounds raised in the motion for leave to amend (doc. 12). (See Doc. 15).
I. SUMMARY OF CONCLUSION.
In 2019, Petitioner was convicted and sentenced on one count of child molestation in Mohave County Superior Court. Petitioner's habeas petition presents one ground that has been exhausted in state court; the remaining twenty-six grounds are unexhausted. Because the Petition contains unexhausted claims, it is subject to dismissal pursuant to Rose v. Lundy, 455 U.S. 509 (1982). The Court recommends that Petitioner be given thirty (30) days to either: (a) move for leave to amend the Petition to delete the unexhausted claims and proceed with the properly exhausted claim or (b) move for a stay of the instant proceeding pursuant to Rhines v. Weber, 544 U.S. 269 (2005). In the event Petitioner fails to move to amend or move for a stay within the allotted timeframe, the Court recommends denial and dismissal of the Petition with prejudice.
II. BACKGROUND.
A. Conviction & Sentencing.
The Arizona Court of Appeals set forth the following facts in Petitioner's direct appeal:
The Court presumes the state court's recounting of the facts is correct. 28 U.S.C. § 2254(e)(1).
In June 2016, eleven-year-old D.N. was sleeping in an Amtrak train returning to Arizona from a volleyball tournament in California when she awoke to Moore touching her vagina over her jeans. Moore asked D.N. to come with him to the back of the train, but D.N. did not follow him and instead went back to sleep. She awoke a short while later to Moore again touching her vagina. During these incidents, D.N. observed Moore's size, facial hair, skin color, and clothing, which included a “big black cross on his shirt.” Moore left, and D.N. texted her mother to tell her what happened. Her mother told her to tell her coach, who was also on the train sitting near D.N.
D.N. texted her coach about what happened. The coach was sleeping and did not respond, so D.N. woke him and gave him a detailed description of Moore. While D.N. talked with her coach, Moore walked by them, first going towards the front of the train, and then returning to go to the back of the train. D.N. told the coach that Moore was the man who molested her.
An assistant train conductor was summoned, and D.N. described Moore to him. The assistant conductor searched the coach cars and located Moore, who fit D.N.'s description “spot on.” The assistant conductor brought D.N. to the back of the train, pointed to Moore, and asked her if it was the man who touched her. D.N. said it was.
When the train arrived at its destination in Flagstaff, the assistant conductor led police officers to Moore. After they removed Moore from the train, the
officers showed Moore to D.N. and asked her if he was the man who had touched her. D.N. affirmed that Moore was the man.
Grand jurors indicted Moore for two counts of molestation of a child under Arizona Revised Statutes (“A.R.S.”) sections 13-1410(A) and -705 (dangerous crimes against children), both class 2 felonies. The State alleged physical, emotional, or financial harm to the victim under A.R.S. § 13-701(D)(9) as an aggravating circumstance.
Defense counsel filed a motion to suppress the pretrial identifications. The court conducted an evidentiary hearing and denied the motion.
At the trial, the State offered the testimony regarding D.N.'s pretrial identifications. After the State's case, Moore moved for a judgment of acquittal alleging inadequate evidence, which the court denied. The jury found Moore guilty of the second child-molestation count. The jury also found the State had proven the aggravating circumstance under A.R.S. § 13-701(D) beyond a reasonable doubt. [On July 17, 2019, t]he court sentenced Moore to an aggravated sentence of 20 years' imprisonment as a dangerous crime against children (“DCAC”) offender under A.R.S. § 13-705(D), with 1121 days' presentence incarceration credit.
State v. Moore, No. 1 CA-CR 19-0444, 2020 WL 5242391, at *1 (Ariz.Ct.App. Sept. 3, 2020). (Doc. 22-2, Ex. W at 54-59 [court of appeals opinion]; Doc. 22-1, Ex. Q at 155-56 [trial court sentencing order]).
B. Direct Appeal.
Petitioner appealed his conviction and sentence to the Arizona Court of Appeals. (Doc. 22-1, Ex. R at 159). Petitioner asserted that the trial court erred by: (1) denying Petitioner's motion to suppress the “unduly suggestive and unreliable” pretrial identification of Petitioner, (2) denying Petitioner's motion for judgment of acquittal premised upon “insufficiency of evidence, ” and (3) sentencing Petitioner pursuant to A.R.S. § 13-705 “without this sentence enhancement first having been submitted to nor found by the jury.” (Id. at 162). On September 3, 2020, the Court of Appeals found no error or abuse of discretion and affirmed Petitioner's conviction and sentence. (Doc. 22-2, Ex. W at 54-59).
C. Post-Conviction Relief Proceedings.
On August 28, 2019, Petitioner filed a notice of request for post-conviction relief (“PCR”) in Superior Court. (Doc. 22-2, Exs. X, Y at 70-76). On March 30, 2020, Petitioner filed the PCR petition, asserting that the state court lacked jurisdiction to try Petitioner because the crime had allegedly occurred while on a train passing through tribal land. (Doc. 22-2, Ex. AA at 82). At a status conference on August 11, 2020, Petitioner's counsel informed the court that upon further investigation she believed that the train had, in fact, been on state land at the time of the crime. (Doc. 22-3, Ex. EE at 20-21). Accordingly, counsel requested to withdraw the PCR petition and to withdraw from representing Petitioner in light of Petitioner's accusations that counsel had engaged in wrongdoing. (Id. at 21-22, 27). The PCR court granted both requests. (Id. at 27-28, 39).
On August 17, 2020, Petitioner filed a second PCR notice. (Doc. 22-3, Ex. FF at 45). On September 25, 2020, newly appointed PCR counsel moved to withdraw from the representation due to “irreconcilable differences” and “a breakdown of the attorney/client relationship.” (Doc. 22-3, Ex. GG at 57). On October 13, 2020, Petitioner filed a “Special Action” in the Arizona Court of Appeals, raising a number of grievances with respect to the PCR court's handling of Petitioner's PCR petition, including, inter alia, an allegation that “counsel had no right to seek to withdraw a petition she had so little involvement in” and that the PCR court “erred by granting her motion [to withdraw the petition].” (Doc. 22-3, Ex. HH at 60-64). The Court of Appeals declined to exercise jurisdiction over Petitioner's special action. (Doc. 22-3, Ex. II at 66). As of the time of this Report, Petitioner's PCR proceeding remains pending in the state PCR court.
III. PETITION FOR WRIT OF HABEAS CORPUS.
The Petition raises twenty-seven (27) grounds for relief. (Docs. 7 [presenting Grounds 1-13], 12 [presenting Grounds 14-27]). The claims are:
Ground 1: The state trial court lacked jurisdiction to try Petitioner;
Ground 2: The indictment was “multiplicitous”;
Ground 3: Petitioner's Fourteenth Amendment rights were violated when the
investigating detective “operated outside [of] his jurisdiction without consent from [the] Sheriff”;
Ground 4: Petitioner's Sixth Amendment Confrontation Clause rights were violated when an investigating police officer was unavailable to testify at Petitioner's second trial and the officer's testimony from the first trial was read into the record;
Ground 5: Witnesses offered perjured testimony at Petitioner's trial;
Ground 6: A Coconino County Superior Court judge, without jurisdiction, issued a search warrant for property in Mohave County;
Ground 7: Petitioner's Fourteenth Amendment rights were violated when the State did not prove aggravating circumstances;
Ground 8: Petitioner's trial counsel was ineffective;
Ground 9: The prosecutor presented evidence he knew to be false;
Ground 10: The trial court erred by issuing a sentence grossly disproportionate to the alleged offense; Petitioner's speedy trial rights were violated; the trial court allowed a victim impact statement that Petitioner believes was authored by someone “who had intimate dealings with law/victim advocacy”; the trial court allowed the testimony “of a monolingual Chilean resident without providing an interpreter”; and the trial court did not intervene in juror misconduct;
Ground 11: The state statute under which Petitioner was convicted is overbroad and Petitioner's sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment;
Ground 12: Petitioner's Fourteenth Amendment right to present a defense was violated;
Ground 13: Petitioner's due process rights were violated by an unduly suggestive and unreliable pretrial [identification]”;
Ground 14: DNA evidence was not properly collected/stored;
Ground 15: A pretrial identification was not recorded;
Ground 16: Multiple suspects were identified but not interviewed;
Ground 17: Evidence was “fabricated”/unreasonable search;
Ground 18: Bail set was “unreasonable”';
Ground 19: Screenshots of text message evidence were not authenticated;
Ground 20: Forensic interviewer was biased;
Ground 21: The on-scene victim statement was forged;
Ground 22: The United States, not the State of Arizona, has jurisdiction for crimes occurring on a moving Amtrak train;
Ground 23: Police did not have Petitioner's correct height and Petitioner's driver's license height is incorrect;
Ground 24: Petitioner's “right to confrontation was violated by not providing counsel during ‘pretrial ID'”;
Ground 25: State's expert witness was not “qualified”;
Ground 26: Petitioner's civil cases against state actors were not disclosed during trial; and
Ground 27: The police investigation was “botched.”
On February 24, 2021, Respondents filed their Response. (Doc. 22). Petitioner replied on March 3, 2021 and filed a Supplement to the Reply on March 5, 2021. (Docs. 23, 24).
After briefing on the Petition was completed, Petitioner filed miscellaneous motions. (Docs. 18, 25, 26, 27, 28, 35). The Court addresses these motions in a separate Order issued contemporaneously with this Report.
IV. EXHAUSTION.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “To provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim.” Id. (internal citations omitted); see Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011) (“In order to fairly present a claim, the petitioner must clearly state the federal basis and federal nature of the claim, along with relevant facts.”). Generally, claims of Arizona state prisoners “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see Moreno v. Gonzalez, 962 P.2d 205, 207-08 (Ariz. 1998). Petitions containing unexhausted claims are subject to dismissal. Rose, 455 U.S. at 510. However, prior to dismissing a petition on such grounds, a district court should allow the petitioner to amend the petition and delete the unexhausted claims “if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief.” Rhines, 544 U.S. at 278. Alternatively, a district court “should stay, rather than dismiss, the mixed petition” where the petitioner shows: (1) “good cause for [the] failure to exhaust, ” (2) the unexhausted claims are “potentially meritorious, ” and (3) “there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id.
Here, in determining which claims have been exhausted, the Court looks to Petitioner's claims in his direct appeal to the Arizona Court of Appeals. (Doc. 22-1, Ex. S at 161-207). As discussed supra, Section (II)(B), Petitioner argued that the trial court erred by: (1) denying Petitioner's motion to suppress the “unduly suggestive and unreliable” pretrial identification of Petitioner, (2) denying Petitioner's motion for judgment of acquittal premised upon “insufficiency of evidence, ” and (3) sentencing Petitioner pursuant to A.R.S. § 13-705 “without this sentence enhancement first having been submitted to nor found by the jury.” (Id.). Comparing these arguments to those in the habeas Petition, the Court finds that the only exhausted claim in the Petition is Ground 13 in which Petitioner claims that the pretrial identification was “unduly suggestive and unreliable.' (Doc. 7 at 19). The remaining grounds of the Petition were not fairly presented to the Arizona Court of Appeals and are therefore unexhausted.
Because the Petition is not completely exhausted, the Court lacks jurisdiction under Rose to hear the Petition. However, because an unexhausted petition may either be amended to delete unexhausted claims or stayed pending resolution of state court proceedings, the Court should leave it for Petitioner to decide in the first instance which procedure is preferable. Therefore, the Court recommends that Petitioner be allowed to decide whether to amend the Petition to remove any unexhausted claims, or to seek a stay of the Petition pending conclusion of Petitioner's pending PCR proceedings. In the event Petitioner chooses neither option, the Court recommends the Petition be dismissed.
Petitioner argues that the Petition is exempt from the exhaustion requirement because “the process for seeking state correction for an unlawful conviction is ineffective at protecting the rights of the applicant.” (Doc. 12 at 3). While a federal court may entertain a habeas petition containing unexhausted claims if “there is an absence of available State corrective process” or “circumstances exist that render such process ineffective to protect the rights of the applicant, ” 28 U.S.C. § 2254(b)(1)(B), Petitioner fails to make such a showing here. The Court finds that the state PCR proceeding is an effective corrective process that is available to Petitioner. Petitioner's PCR proceeding is active in the Mohave County Superior Court; on December 16, 2020 the PCR court granted Petitioner's request for certain transcripts. (Doc. 22-3, Ex. JJ at 70-90). Accordingly, Petitioner is not exempt from the requirement that a petitioner must exhaust all claims prior to raising them in a federal habeas petition.
Accordingly, IT IS THEREFORE RECOMMENDED that the Second Amended Petition (docs. 7, 12) be DENIED and DISMISSED with prejudice unless, within thirty (30) days of the Order adopting this Report & Recommendation, Petitioner moves either: (a) to amend the Second Amended Petition to contain only fully exhausted claims or (b) for a stay and abeyance of the case while pursuing the unexhausted claims in state court.
IT IS FURTHER RECOMMENDED that if the Second Amended Petition is denied and dismissed that a Certificate of Appealability be denied because Petitioner has not made a substantial showing of the denial of a constitutional right and because reasonable jurists would not debate the conclusions of this Report & Recommendation.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.