Opinion
CV-20-08284-PCT-DLR (MTM)
07-08-2022
“Maddi” Jeffrey Aaron Moore, Petitioner, v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION
DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
Petitioner “Maddi” Jeffrey Aaron Moore has filed a Third Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 78).
I. SUMMARY OF CONCLUSION
Petitioner's claims that a pretrial identification procedure violated due process and of insufficiency of evidence are meritless. The Court recommends the petition be denied and dismissed with prejudice.
II. BACKGROUND
The facts of the case were summarized by the Arizona Court of Appeals:
The Court presumes the Arizona Court of Appeals' recounting of the facts is correct. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.” (citing 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. . . . gave [her coach] 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 [felony] counts of molestation of a child under . . . (“A.R.S.”) sections 13-1410(A) and -705 (dangerous crimes against children) . . . . 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. The court sentenced Moore to an aggravated sentence of 20 years' imprisonment as a dangerous crime against children (“DCAC”) offender . . . .Doc. 78-7 at 21-22.
Relevant state records predate Petitioner's transition from male to female. The Court will use Petitioner's preferred feminine pronouns where possible.
On direct appeal, Petitioner asserted the trial court violated her due process rights by denying her motion to suppress D.N.'s pretrial identifications and her motion for acquittal alleging insufficient evidence. Doc. 78-5 at 2-18. The Arizona Court of Appeals affirmed Petitioner's conviction and sentence. Doc. 78-7 at 20-25. Petitioner did not seek review by the Arizona Supreme Court. Doc. 22-2 at 61.
III. PETITION FOR WRIT OF HABEAS CORPUS
In Ground One, Petitioner claims her due process rights were violated by the State's presentation of D.N.'s “unduly suggestive and unreliable” pretrial identifications. Doc. 78 at 2, 8-22. In Ground Two, Petitioner claims the evidence was insufficient to support her conviction. Id. at 2, 23-25 to Doc. 78-1 at 1-3; see also Doc. 87 (December 1, 2021 Order summarizing claims). Petitioner exhausted both claims. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (“[C]laims of Arizona state prisoners [not sentenced to death] are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”).
Petitioner includes a “Declaration” expressing “concerns” with the District Court's September 22, 2021 Order accepting this Court's June 4, 2021 R&R recommending dismissal of her Second Amended Petition. Doc. 78-1 at 13-23; see Docs. 7 & 12 (Second Amended Petition); 38 (R&R); 76 (Order). These “concerns” are not properly before the Court. A challenge to a ruling of the Court must be brought in a motion under Fed.R.Civ.P. 59 or 60 or LRCiv 7.2(g), as appropriate.
IV. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), to obtain a federal writ of habeas corpus, a petitioner must show that the state court's 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)(1), (2).
“‘[C]learly established federal law' is limited to Supreme Court authority that ‘squarely addresses' the claim at issue and provides a ‘clear answer.'” Yun Hseng Liao v. Junious, 817 F.3d 678, 689 (9th Cir. 2016) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008)). “While Supreme Court precedent is the only authority that is controlling under AEDPA, [a habeas court may] look to Ninth Circuit case law as ‘persuasive authority for purposes of determining whether a particular state court decision is an “unreasonable application” of Supreme Court law.'” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (citation omitted)); see also Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (“[A]n appellate panel may. . . look to circuit precedent to ascertain whether it has already held that the particular point in issue is clearly established by Supreme Court precedent”).
A decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an “unreasonable application of” clearly established federal law “if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. The decision must be “objectively unreasonable, not merely wrong; even clear error will not suffice.” Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017) (citation omitted). “[W]hether a state court's decision was unreasonable must be assessed in light of the record the court had before it.” Hollandv. Jackson, 542 U.S. 649, 652 (2004). “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.” Miller-El, 537 U.S. at 340 (citing 28 U.S.C. § 2254(e)(1)). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citation omitted).
V. DISCUSSION
A. Petitioner is not entitled to relief on Ground One.
D.N. identified Petitioner twice out-of-court: first to the assistant train conductor and then to police when the train arrived in Flagstaff. Doc. 78-7 at 21-22. Petitioner argues the identifications should have been excluded as “unduly suggestive and unreliable.” Doc. 78 at 8-22. This Court recommends that Ground One be dismissed because the Arizona Court of Appeals' decision finding that the identifications did not violate due process was not an unreasonable application of clearly established federal law.
1. Suppression Hearing
At the evidentiary hearing on Petitioner's motion to suppress, the State introduced a photograph of Petitioner at the time of her arrest and the testimony of three witnesses: (1) D.N.; (2) Paul Barnard, the Amtrak assistant conductor; and (3) Flagstaff Police Officer Emanuel. See Doc. 97-1, Ex. A, at 7 (photograph); Ex. B, at 18-144 (hearing transcript); Doc. 78-2 at 24-26 to Doc. 78-3 at 1-10 (motion).
a. D.N.
D.N. testified she had been asleep on the train when she was woken up twice to someone touching her private area, the same person both times. Doc. 97-1, Ex. B, at 2628. D.N. testified she had been able to get a good look at her assailant. Id. at 28-29. She had been laying down across two seats with her head facing the aisle; the assailant had been facing her. Id. at 27-29. She described her assailant as a “light” complected “man” with “light brown” hair and “short” facial hair who was “tall” (in comparison to her height of about 4'8” at the time) and “more on the heavy side.” Id. at 29-32. She testified this person had been wearing shorts, “dark brown” shoes (though she could not recall what kind), and a beige short-sleeved shirt with a large black cross on the left shoulder. Id. at 31-32.
After this person touched her a second time, D.N. texted her mother who told her to report what had happened to her coach. Id. at 34-35. While D.N. was describing her assailant to the coach, the assailant walked by, looked at her with an “angry” expression, and then departed toward the back of the train. Id. at 35-36. The coach located a train employee, assistant conductor Paul Barnard. Id. at 36-37. D.N. told Barnard what had happened and provided him with a detailed description of the assailant. Id. Barnard escorted her through the train and then, pointing to Petitioner, asked her if that was the person who had touched her; she said yes. Id. at 38-39.
In Flagstaff, D.N. provided police with a description of the assailant. Id. at 40. The police asked D.N. if Petitioner, who had been standing approximately twelve feet away from D.N. (by her estimate), was the person who touched her; she said yes. Id. at 42. The police told D.N. to tell them if Petitioner was not the person who touched her. Id. But D.N. was “110 percent” sure it was Petitioner. Id. at 42-43. D.N. confirmed the State's photograph of Petitioner depicted her assailant. Id. at 33. However, although Petitioner was physically present at the hearing, D.N. stated she did not see the person who touched her in the courtroom. Id. at 21, 34. On redirect, D.N. confirmed that the individual pointed out to her by both Barnard and police was indeed the person who had touched her. Id. at 57.
b. Assistant Conductor Paul Barnard
Barnard testified that D.N. had provided him with “very detailed” description of the assailant. Doc. 97-1, Ex. B, at 60. Barnard walked through the coach cars and located a person (Petitioner) that matched D.N.'s description “spot on” in the coach car behind D.N.'s. Id. at 61. He walked through the remaining coach cars “to make sure [he] didn't see anybody else that matched that description,” and no one else did. Id. at 62.
Barnard did a second walkthrough, this time with D.N. Id. at 62-63. During it, D.N. identified Petitioner as her assailant. Id. at 63. Barnard confirmed the State's photograph of Petitioner depicted the person he had spotted during his walkthrough and who D.N. had identified as her assailant. Id. at 65-66. However, he was “not really sure” if that person was present in the courtroom. Id. at 66. Barnard denied that his walkthrough with D.N. had been done at the direction of any law enforcement agency and denied being a member of any law enforcement agency. Id. at 72.
c. Officer Drew Emanuel
Flagstaff Police Officer Emanuel testified D.N. gave a detailed description of her assailant consistent with a description provided by Barnard. Doc. 97-1, Ex. B, at 77-78. Officer Emanual, with another officer, escorted Petitioner off the train; he denied guns were drawn on Petitioner. Id. at 89. Outside, Officer Emanuel asked D.N. to look toward Petitioner, who was about “30 or so feet” away, to confirm whether Petitioner was the person that had touched her. Id. at 80. He testified that he told D.N., “‘If this is not the right person, let us know.'” Id. at 80-81. D.N. confirmed Petitioner was the person who had touched her. Id. at 81.
Officer Emanuel testified a “one-man show[-]up” was appropriate under the circumstances, and that other identification procedures would not have been practical. Id. at 81-83. He explained:
When we [the police] are dealing with a victim and a suspect that don't know each other, we want to confirm that that suspect that we remove from the train is in fact the person we're looking for so we don't have the wrong person detained unlawfully; and furthermore in our case, the train didn't leave with our potential suspect on it.Id. at 83. Officer Emanuel identified Petitioner as the person identified by D.N. as her assailant. Id. at 83-84.
The defense objected to Officer Emanuel's identification, arguing it lacked foundation as to his belief that the person seated at the defense table was the same person he had arrested. See Doc. 97-1, Ex. B, at 84 (“If [Officer Emanuel] says that [Petitioner] looks different, how does he know he's the same? Other than the fact that he's seated at [the] defense table?”). The court overruled the objection, noting that Officer Emanuel was not suggesting that the person seated at the defense table was a different person than the one he had arrested, just that this person looked different compared to how they looked when Officer Emanuel arrested them. See id. (“[Officer Emanuel] didn't say [Petitioner] looked different. He just said he looks different with glasses and more hair.”).
d. The Trial Court's Findings
The court declined to find that Barnard was a law enforcement employee, reasoning that Amtrak has its own police force that Barnard did not testify to being part of and that federal employees are not “automatically” law enforcement. Doc. 97-1, Ex. B, at 116. The court found Barnard's role more akin to that of a security guard. Id. at 116-18. The court held that D.N.'s identification to Barnard “was not a law enforcement identification,” and therefore the two-step inquiry under Manson v. Brathwaite, 432 U.S. 98 (1977) did not apply to that identification. Id. at 118.
However, the court later stated it was “willing to agree with defense counsel that the identification could be suggestible.” Doc. 97-1, Ex. B, at 126. However, it again emphasized that Barnard “was not acting in the capacity of a federal law enforcement officer or an Amtrak officer.” Id.
The court found that D.N.'s identifications were sufficiently reliable. Id. at 118132. The court placed considerable significance on D.N.'s identification of the “prominent,” “gigantic,” “black and orange and white cross” on Petitioner's shirt, noting that this symbol was “unmistakable,” “[n]o matter what color the shirt looked like.” Id. at 122-23.
The court stated it was not considering “anything about the shoes.” Doc. 97-1, Ex. B, at 130. It also did not find any “huge significance” to whether Petitioner had been escorted off the train at gunpoint. Id. at 128.
The court noted D.N. had seen Petitioner “at least three times; the two times that he touched her, the one time where he started to go forward and then went back to the back of the cars,” and up close, as her head was facing toward the aisle when Petitioner woke her up. Id. at 29, 119. It also noted the time between the act and the identification was a “very very short time,” between one and two hours. Id. at 130. The court also noted D.N.'s statement that she was “110 percent sure” the person in the State's photograph was the person that molested her. Id. at 128, 130.
The court found that the one-person show-up as an identification procedure was justified under the circumstances, noting it would have been “unreasonable” for the police to take passengers off the train to be part of a photo lineup. Id. at 131.
Finding that the State had satisfied its burden in proving the reliability of D.N.'s identifications under each of the Brathwaite factors, the court denied Petitioner's motion to suppress the identifications. Id. at 132.
2. The Arizona Court of Appeals Decision
The Arizona Court of Appeals found no abuse of discretion in the denial of the suppression motion, as both identifications “were sufficiently reliable to satisfy due-process requirements.” Doc. 78-7 at 23. It stated, in relevant part:
The Due Process Clause of the Fourteenth Amendment precludes the admission of pretrial identifications conducted in a fundamentally unfair manner. State v. Lehr, 201 Ariz. 509, 520, ¶ 46 (2002) (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). The admission of testimony concerning an out-of-court identification violates due process if, under the totality of the circumstances, the identification procedure was unduly suggestive and created a substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 198-99 (1972); Lehr, 201 Ariz. at 520, ¶ 46.
[T]he factors to be considered [in evaluating the likelihood of misidentification] include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.Lehr, 201 Ariz. at 521, ¶ 48 (alterations in original) (quoting Brathwaite, 432 U.S. at 114).
From the evidence presented at the suppression hearing, D.N. provided her coach with a detailed description of Moore shortly after he molested her. When Moore walked by D.N. and her coach, she stated she was sure Moore was the culprit. The assistant conductor, after searching the train, soon found a man who (1) matched D.N.'s description “spot on” with a large, identifiable black cross on his shirt and (2) was seated in the back of the train where D.N. described her assailant had gone. These facts provided substantial evidence for the court to determine D.N. 's identification of Moore to the assistant conductor was sufficiently reliable, regardless of the suggestiveness of the identification procedure and whether it was subject to due-process analysis.
Furthermore, substantial evidence supported the court's finding that D.N.'s identification of Moore to the officers was sufficiently reliable because she made the identification after already viewing Moore clearly during the times he touched her and as he walked by her and her coach afterward. She said she was sure the man who walked by her was the man who touched her. She had also already identified him in-person with the assistant conductor.Doc. 78-7 at 23-24.
3. Clearly Established Federal Law
For identification, “the primary evil to be avoided” is irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 198 (1972). In general, “it suffices to test [an identification's] reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.” Perry v. New Hampshire, 565 U.S. 228, 233 (2012). However, if the identification was made to law enforcement during a “suggestive and unnecessary” identification procedure, due process requires a court to “screen the evidence for reliability pretrial.” Id. at 232, 238-39. “Even when an unnecessarily suggestive procedure was used, ‘suppression of the resulting identification is not the inevitable consequence.'” Sexton v. Beaudreaux, 138 S.Ct. 2555, 2559 (2018) (quoting Perry, 565 U.S. at 239). Rather, courts must “assess, on a case-by-case basis, whether improper police conduct created a ‘substantial likelihood of misidentification.'” Perry, 565 U.S. at 239 (quoting Biggers, 409 U.S. at 201). The relevant question is “whether under the ‘totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive.” Biggers, 409 U.S. at 199. “The factors to be considered . . . include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Brathwaite, 432 U.S. at 114 (citing Biggers, 409 U.S. at 199-200). “[Reliability is the linchpin in determining the admissibility of identification testimony.” Id. Accordingly, “if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.” Perry, 565 U.S. at 232.
4. Analysis Under 28 U.S.C. § 2254(d)(1)
The Arizona Court of Appeals' conclusion that both of D.N's pretrial identifications were sufficiently reliable to satisfy due-process requirements was not an objectively unreasonable application of clearly established federal law.
a. Identification to Assistant Conductor Barnard
“[T]he Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.” Perry, 565 U.S. at 248 (emphasis added); see also Walden v. Shinn, 990 F.3d 1183, 1201 (9th Cir. 2021) (“Because the Arizona Supreme Court reasonably determined that the three identifications at issue were not the product of impermissibly suggestive police procedures, there was no need for the court to assess the reliability of each identification under the totality of the circumstances.”); Benjamin v. Gipson, 640 Fed.Appx. 656, 659 (9th Cir. 2016) (“courts suppress eyewitness identifications only when they are the product of improperly suggestive conduct by the police”).
At the suppression hearing, Barnard denied being a member of law enforcement or acting at the direction of law enforcement. Doc. 97-1, Ex. B, at 72. Petitioner, however, argues that Barnard was “law enforcement” for purposes of the due-process analysis. Doc. 78 at 8-12. However, the Court need not resolve this issue because Arizona Court of Appeals' analysis encompassed the reliability of the identification, without reference to whether Barnard was properly considered as law enforcement. See Doc. 78-7 at 23-4. (“D.N.'s identification of Moore to the assistant conductor was sufficiently reliable, regardless of. . . whether it was subject to due-process analysis.”) (emphasis added).
In finding there was substantial evidence that D.N.'s identification to Barnard was “sufficiently reliable,” the Arizona Court of Appeals noted:
D.N. provided her coach with a detailed description of Moore shortly after he molested her. When Moore walked by D.N. and her coach, she stated she was sure Moore was the culprit. The assistant conductor, after searching the train, soon found a man who (1) matched D.N.'s description “spot on” with a large, identifiable black cross on his shirt and (2) was seated in the back of the train where D.N. described her assailant had gone.Doc. 78-7 at 23-24.
It was not objectively unreasonable for the court of appeals to conclude D.N.'s identification to Barnard was reliable based on the fact that her description of Petitioner was consistent with how Petitioner actually appeared that day, as evident by the fact that Barnard was able to identify and locate Petitioner based on that description, and based on the fact that D.N. was “sure” that Petitioner was her assailant. See Brathwaite, 432 U.S. at 114 (permitting courts to consider “opportunity of the witness to view the criminal at the time of the crime,” “the accuracy of [the witness's] prior description of the criminal,” and “the level of certainty demonstrated at the confrontation”); Biggers, 409 U.S. at 199 (same); Swoopes v. Ryan, Fed.Appx. 732, 733 (9th Cir. 2018) (“[The victim's] description of her attacker, the opportunity she had to view Petitioner during the crimes, and her degree of certainty, outweigh the unreliability stemming from the year and a half between the crime and the identification, and the inherent problems in cross-racial identifications.”); United States v. Stuker, 545 Fed.Appx. 609, 611 (9th Cir. 2013) (“Regardless of whether the procedure here was unnecessarily suggestive, it was sufficiently reliable given that the witness had a sufficient opportunity to observe Stuker, had a sufficient view of Stuker to identify him, and expressed no hesitancy when he identified Stuker.”). The fact that there were slight inconsistencies in D.N.'s statements at the suppression hearing regarding the precise color of Petitioner's shirt at that time does not render the court of appeals' conclusion that her identification was sufficiently reliable objectively unreasonable. See Walden, 990 F.3d at 1199 (“[M]ere variations in appearance among persons or photographs presented to a witness do not automatically invalidate a pretrial identification.” (citation omitted)); cf. United States v. Ginn, 87 F.3d 367, 369 (9th Cir. 1996) (“The evidence is not rendered insufficient simply because there are discrepancies in the eyewitnesses' descriptions of the robber.”).
b. Identification to Police
In finding there was substantial evidence that D.N.'s identification to Officer Emanual and Flagstaff police was “sufficiently reliable,” the Arizona Court of Appeals noted that D.N. “made [this] identification after already viewing [Petitioner] clearly during the times he touched her and as he walked by her and her coach afterward” and that D.N. “said she was sure the man who walked by her was the man who touched her.” Doc. 78-7 at 24. It also noted D.N. “already identified [Petitioner] in-person with the assistant conductor.” Id.
It was not objectively unreasonable for the court of appeals to conclude D.N.'s identification to police was reliable based on the fact that she had been able to view and identify Petitioner more than once and was “sure” that Petitioner was her assailant. See Brathwaite, 432 U.S. at 114 (permitting courts to consider “opportunity of the witness to view the criminal at the time of the crime,” “the accuracy of [the witness's] prior description of the criminal,” and “the level of certainty demonstrated at the confrontation”); Biggers, 409 U.S. at 199 (same); United States v. Drake, 543 F.3d 1080, 1089 (9th Cir. 2008) (finding no clear error in district court's finding of reliability where robbery victim's “initial description of the robber's age, complexion, and clothing matched [defendant's] physical characteristics” and where victim “had ample opportunity to view the robber as they were standing face to face in close proximity to each other,” notwithstanding that victim had “significantly underestimated [defendant's] height”); United States v. Morgan, 248 F.Supp.3d 208, 214 (D.D.C. 2017) (“[T]he victim . . . had close contact with her assailant for an extended period of time and was able to report on their interactions in detail, so there is good reason to believe that she knows what he looks like.”); Martinez v. Ryan, No. CV-12-00254-TUC-JGZ, 2014 WL 1713559, at *18 (D. Ariz. Apr. 30, 2014) (concluding state court's finding that “the likelihood of irreparable misidentification [was] insubstantial because [the witness] had already identified [the petitioner]” was not an objectively unreasonable application of clearly established federal law).
c. Conclusion
Because the Arizona Court of Appeals' rejection of Ground One was not an unreasonable application of, or contrary to, clearly established federal law, the Court recommends Ground One be dismissed for lack of merit.
B. Petitioner is not entitled to relief on Ground Two.
Petitioner claims there was insufficient evidence to support her conviction. Doc. 78 at 23-25 to Doc. 78-1 at 1-3.
1. The Arizona Court of Appeals Decision
The Arizona Court of Appeals found no error in the denial of Petitioner's motion for acquittal based upon insufficient evidence. Doc. 78-7 at 24. It stated:
The question before us is whether, viewing the evidence in the light most favorable to the State, the jury could have reasonably found the elements of the crime proven beyond a reasonable doubt.
“A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact ... with a child who is under fifteen years of age.” A.R.S. § 13-1410(A). “[A] jury is free to credit or discredit testimony....” State v. Bass, 198 Ariz. 571, 582, ¶ 46 (2000). If found credible by the jury, one witness's testimony is sufficient to support a conviction. State v. Montano, 121 Ariz. 147, 149 (App. 1978). A defendant's conduct is evidence of his criminal intent. State v. Routhier, 137 Ariz. 90, 99 (1983).
Jurors could reasonably credit D.N. 's testimony regarding her age and that Moore touched her vagina and find Moore intentionally or knowingly engaged in sexual contact with D.N. while she was under fifteen. Therefore, the court did not err by denying Moore's motion for judgment of acquittal.Doc. 78-7 at 24 (alterations in original).
2. Clearly Established Federal Law
“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Federal courts “look to state law” in determining the elements of an offense. Coleman v. Johnson, 566 U.S. 650, 655 (2012). On habeas review, sufficiency claims “are subject to two layers of judicial deference.” Id. at 651.
First, on direct appeal, it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. And second, on habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.'Id. (quotation marks and citation omitted); see also Emery v. Clark, 643 F.3d 1210, 121314 (9th Cir. 2011) (“When we undertake collateral review of a state court decision rejecting a claim of insufficiency of the evidence pursuant to 28 U.S.C. § 2254(d)(1), . . . our inquiry is even more limited; that is, we ask only whether the state court's decision was contrary to or reflected an unreasonable application of Jackson to the facts of a particular case.”).
3. Analysis Under 28 U.S.C. § 2254(d)(1)
The Arizona Court of Appeals' conclusion that the evidence was sufficient to convict Petitioner was not an unreasonable application of, or contrary to, Jackson.
Petitioner was convicted of child molestation under A.R.S. § 13-1410(A). Doc. 787 at 22. A.R.S. § 13-1410(A) provides: “A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact . . . with a child who is under fifteen years of age.” “[S]exual contact” was defined as “any direct or indirect touching, fondling or manipulating of any part of the genitals . . . by any part of the body . . . .” A.R.S. § 13-1401(A)(3) (2016). The court of appeals found “[j]urors could reasonably credit D.N.'s testimony regarding her age and that [Petitioner] touched her vagina and find [Petitioner] intentionally or knowingly engaged in sexual contact with D.N. while she was under fifteen.” Doc. 78-7 at 24. This was not an objectively unreasonable application of, or contrary to, Jackson.
D.N. testified that Petitioner had engaged in sexual contact with her, as defined by A.R.S. § 13-1401(A)(3) (2016), and that this occurred while she was under fifteen. See Doc. 97-2, Ex. C, at 37-38, 43, 48, 54, 58. Jurors crediting this testimony could therefore find each element of A.R.S. § 13-1410(A) proven beyond a reasonable doubt. As such, the court of appeals' conclusion that D.N.'s testimony was sufficient to convict Petitioner was not objectively unreasonable. See United States v. McClendon, 782 F.3d 785, 790 (9th Cir. 1986) (“The evidence against [defendant] was sufficient to support a conviction under [the Jackson ] standard. From the eyewitness testimony alone, a jury could rationally conclude that [defendant] had waited for the robber outside the bank and helped him to escape.”); see also Benedetto v. Arizona, No. CV-14-0033-PHX-JAT, 2015 WL 1508847, at *13 (D. Ariz. Apr. 1, 2015) (“The strength or weakness of testimony is not measured by the number of witnesses; one witness, if relevant and credible, is sufficient to support a conviction.”); Jordan v. Evans, 2007 WL 2703118, at *5 (S.D. Cal. Sept. 14, 2007) (“A single eyewitness's testimony is sufficient to prove the identity of a crime's perpetrator, even if that witness's testimony is contested.”).
Petitioner's only challenge to the sufficiency of D.N.'s testimony is that it was allegedly false, incredible, and made up of “delusions.” Doc. 78 at 25. Among other things, Petitioner speculates the sensation D.N. felt on her vagina was not someone touching her but rather symptoms of a UTI. Id. However, in reviewing a challenge to the sufficiency of the evidence, a habeas court “must presume . . . that the trier of fact resolved any . . . conflicts in favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326. Witness credibility was for the jury to decide. See Oliva v. Hedgpeth, 600 F.Supp.2d 1067, 1087 (C.D. Cal. 2009) (“Although Petitioner points to alleged discrepancies in the witnesses' testimony, it was the province of the jury to credit the evidence showing that Petitioner was the [perpetrator of the offense].”); see also Cavazos v. Smith, 565 U.S. 1, 2 (2011) (“[I]t is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial.”).
This Court finds that the Arizona Court of Appeals' rejection of Ground Two was not an unreasonable application of, or contrary to, clearly established federal law. Accordingly, the Court recommends Ground Two be denied for lack of merit.
VI. CERTIFICATE OF APPEALABILITY
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Proceedings, 28 U.S.C. § 2254. The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327. Because Petitioner has not made the requisite showing here, the Court recommends that a certificate of appealability be denied.
VII. CONCLUSION
The record is sufficiently developed for resolution of the petition; therefore, an evidentiary hearing is not necessary. See Clark v. Chappell, 936 F.3d 944, 967 (9th Cir. 2019). Because Petitioner fails to present a meritorious ground for habeas relief, IT IS RECOMMENDED that the Third Amended Petition for a Writ of Habeas Corpus (Doc. 78) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability 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 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.