Opinion
CV-18-4667-PHX-DJH (JFM)
10-21-2019
Sean Richey, Petitioner v. Charles L. Ryan, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
James F. Metcalf United States Magistrate Judge.
I. MATTER UNDER CONSIDERATION
Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on December 13, 2018 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
Evidence at trial indicated that on May 24, 2014, Petitioner was driving a pickup truck in Phoenix, Arizona, struck another vehicle and continued driving. A witness reported to police the description and license of the truck. Eventually Petitioner's vehicle was spotted by police, and followed. Although proceeding with no sign of poor or evasive driving, Petitioner ignored the patrol car's lights and blasts from the siren, and finally pulled into a parking lot and eventually into a parking space. Petitioner exited the vehicle and began walking away despite commands to stop, until the officer grabbed his arm which 1 appeared to startle Petitioner. Petitioner and his vehicle smelled of alcohol. When placed in the patrol vehicle he fell on the floorboard. His vehicle had damage consistent with the collision and he was identified by the witness as the driver responsible for the collision. Petitioner admitted to the officer he had been drinking. Officers testified that although Petitioner refuse a breath test, he consented to a blood draw. The testing revealed a blood alcohol content of 0.24. (See Exh. S, Mem. Dec. 9/12/17 at 2-3; and Exh. E, R.T. 8/21/15.) (Exhibits to the Answer, Doc. 11, are referenced herein as “Exh. .”)
This factual background is based on the state appellate court's summary which was made in the light most favorable to sustaining the verdicts. It is offered as background and not as findings of the undersigned.
This case centers on whether Petitioner's consent was given, such that the warrantless blood draw was valid.
B. PROCEEDINGS AT TRIAL
Petitioner was indicted on charges of aggravated DUI and aggravated driving with Blood Alcohol Content greater than 0.08. (Exh. A, Indictment.)
Defense counsel Kyle Green filed a Motion to Suppress (Exh. C), seeking to suppress the blood tests as involuntary and warrantless. A hearing was held on August 22, 2015, which was continued to allow presentation of a video and argument. (Exh. E, R.T. 8/21/15.) During the suppression hearing, Officer Honeycutt testified:
Q. Okay. So did Officer Patterson ask the defendant if he would submit to a blood draw?
A. Yes.
Q. And what did the defendant say?
A. Yes.
Q. And you were right there when that happened?
A. I was. And I documented it in my report that he said yes when asked if he would submit to a blood draw.
(Exh. E, RT 8/21/15 at 26.)
On cross-examination, Honeycutt reconfirmed having overheard the consent elicited by Patterson:
Q. Okay. So ultimately my question is: When he's being read his Admin Per Se Affidavit -- let me back up. You didn't read him2
Admin Per Se?
A. No, I did not.
Q. Officer Patterson did?
A. Yes, he did.
Q. When he's being read this, where are you in relation to those two?
A. In the room near enough to hear Officer Patterson read it and the response of the defendant.
* * *
Q. Now you stated that when he was read his Admin Per Se Affidavit, his response was yes?
A. Correct.
Q. Correct. And it wasn't: I'll do whatever?
A. Can I refer to my report?
Q. Sure.
A. I documented he said, yes, when asked if he would submit to the blood draw.(Exh. E, RT 8/21/15 at 34.)
On redirect, Honeycutt recommitted to Petitioner's response being “yes, ” but did so based on his report rather than recollection.
Q. Okay. Now when you heard Officer Patterson ask the defendant if he would consent to the blood draw, is there any chance that you misheard the defendant when he said yes?
A. I clearly documented that he said yes. And - - and so, if he would have said something different, I would have clearly documented that. But I didn't document anything else. So I can't -- I can't -- I don't have an independent recollection of the of his statement other than what I documented. So I have to say that and go with what he said or I wrote.
* * *
Q. Okay. And, again, you said you were present when Officer Patterson read that to the defendant?
A. I was.
Q. So you heard that with your own ears?
A. Yes.
Q. And you heard with your own ears the defendant when he said that, yes, he would consent?
A. Yes.(Id. at 46.)
Officer Patterson (who Honeycutt testified had asked Petitioner for his consent to the blood draw), did not appear at the suppression hearing. At trial, he testified to the “I'll do whatever” response:
Q. And what was Mr. Richey's response to the implied consent?
A. Implied consent is, quote, I'll do whatever.
Q. I'll do whatever?
A. Correct.3
Q. And that's in quotes?
A. Yes.
Q. In quotation marks?
A. Yes.
Q. Okay. And what does that mean?
A. That's exactly what they tell me when I ask the question.
Q. And then again, you write it down as he's speaking to you?
A. Correct.(Exh. L, R.T. 10/2/15 at 134.) Patterson reconfirmed on redirect:
Q. Detective, you said when you explained to the defendant that he was required under Arizona law to submit to a chemical test or that's also called the implied consent, you said that his response was, in quotes, I'll do whatever. Is that correct?
A. Yes.
Q. Okay. And you wrote that down in quotes, didn't you?
A. I did.
Q. Okay. So he never said, no; is that correct?
A. Correct.
Q. Did he ever say at any point, no, you cannot have my blood?
A. No.
Q. If he had, would you have documented that?
A. Yes.(Id. at 139.)
On August 31, 2015, counsel Green filed a Motion to Withdraw (Exh. G), citing a breakdown in communications and conflict with Petitioner. Petition then filed a waiver of counsel. The court conducted a hearing on the matter, granted the motion to withdraw and accepted the waiver of counsel. Advisory counsel was nonetheless appointed. (Exh. H, M.E. 9/16/15.)
Petitioner then filed pro per a Motion to Suppress (Exh. I), again seeking to suppress the blood test and Motion to Subpoena Witnesses (Exh. J) to expand the record on the motion to suppress. Oral argument on the motions was held on October 2, 2015. The court refused to expand the evidentiary hearing, and denied the motion to suppress. Petitioner then sought reappointment of counsel, which was granted. (Exh. K, R.T. 10/2/15.)
Petitioner proceeded to trial with counsel, and was found guilty on both counts. (Exh. N, Verdicts.) On September 8, 2016 Petitioner was sentenced on both counts to concurrent sentences of 4.5 years. (Exh. O, Sentence.) 4
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal arguing error in giving a flight instruction to the jury. (Exh. Q, Opening Brief.) On September 12, 2017, the Arizona Court of Appeals affirmed the convictions and sentences. (Exh. S, Mem. Dec. 9/12/17.)
D. PROCEEDINGS ON POST-CONVICTION RELIEF
Petitioner then instituted a PCR proceeding and on September 29, 2017 filed an original PCR Petition (Exh. U) asserting a claim of ineffective assistance of appellate counsel based on failure to follow Petitioner's instruction to raise a Fourth Amendment claim based on the blood draw, and a “subclaim” asserting the Fourth Amendment claim. On October 17, 2017, Petitioner filed a “Revised” PCR Petition (Exh. W), adding a claim of ineffective assistance of pretrial counsel Green with regard to the motion to suppress. The PCR court found the underlying suppression claim waived by failure to raise it on direct appeal, and denied the related claim of ineffective assistance of appellate counsel. The PCR Court did not explicitly address the claim of ineffective assistance of PCR counsel. (Exh. AA, M.E. 2/20/18.)
Petitioner then sought review by the Arizona Court of Appeals asserting claims of ineffective assistance of appellate and PCR counsel with respect to his motion to suppress. (Exh BB, Pet. Rev.) The Arizona Court of Appeals granted review, but summarily denied relief. (Exh. CC, Mem. Dec. 7/19/18.)
Petitioner then sought review of his issued by the Arizona Supreme Court, which summarily denied review on December 3, 2018. (Exh. EE, Order 12/3/18.)
E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner's Petition (Doc. 1) asserts two grounds for relief: “In Ground One, he alleges that he received ineffective assistance of appellate counsel because his appellate attorney failed to “raise [the] issue of an illegal, warrantless blood draw.” In Ground Two, Petitioner contends that his ‘pretrial' counsel provided ineffective assistance 5 by ‘failing to make adequate pretrial investigation . . . vis a vis [his] failure to subpoena Officer Patterson to the suppression of evidence hearing.'” (Order 2/4/19, Doc. 4 at 1-2.)
Response - Respondents' Answer (Doc. 11) argues Petitioner's claims must be denied because they were addressed on the merits and Petitioner fails to show that the decisions were contrary to or an unreasonable application of Supreme Court law. Respondents argue that although not explicitly addressed, the trial court must be presumed to have disposed of the pre-trial counsel ineffectiveness claim on the merits.
Expansion - The Court issued a scheduling Order directing that motions to amend or supplement, motions for evidentiary hearings, motions to expand the record and the like be filed within 28 days of the filing of the Answer. (Order 2/11/19, Doc. 7.) No such motions were filed.
Reply - Petitioner's Reply (Doc. 13) argues various errors in the Answer, and the merits of his claims.
III. APPLICATION OF LAW TO FACTS
A. GROUND 1 - APPELLATE COUNSEL
In Ground 1, Petitioner argues that appellate counsel was ineffective for failing to challenge on appeal the admission of the blood draw. He argues the issue had merit because of the conflict between the officers as to Petitioner's response (“yes” vs. “I'll do whatever”), and because this did not provide sufficient evidence of consent.
1. State Court Decision
In evaluating state court decisions, the federal habeas court looks through summary opinions to the last reasoned decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Here, the last reasoned decision on Ground 1 was that of the PCR court. The PCR Court reasoned:
With regard to the statements of "yes" and "I'll do whatever", the Court finds they both manifest an agreement to go forward with the requested blood draw. While the words are not exactly the same, the verbal intention is to agree to the blood draw and not to challenge it. "Yes" is a clear and concise term of agreement. "I'll do whatever"6
suggests an agreement to go forward with the proposed action. Neither statement suggests a refusal, rejection, denial, or unwillingness to go forward with the proposed blood draw. Thus, the defense contention that these words are inconsistent or unequivocal is unsupported. The words uttered by a defendant to separate officers need not be exactly the same to indicate the same thing - in this case agreeing to a blood draw. Thus, there is no likelihood that if appealed the defense would have been successful in overturning the previous ruling on the admissibility of the blood draw. Therefore, there was no logical basis for the appellate attorney to file a challenge to the previous ruling. There is nothing to suggest the appellate attorney's failure to include the challenge to the blood draw was ineffective, deficient, or caused any prejudice to the defendant.
The court finds the defendant has failed to prove his appellate attorney engaged in any deficient performance that fell below an objective standard of reasonableness. The defendant has failed to meet the first prong of Strickland. With regard to the second prong, as there was no deficient attorney performance, the defendant suffered no prejudice due to his attorney's performance.(Exh. AA, M.E. 2/20/18 at 2-3.)
2. Standard Applicable on Habeas
That decision was on the merits of the claim
While the purpose of a federal habeas proceeding is to search for violations of federal law, in the context of a prisoner “in custody pursuant to the judgment a State court, ” 28 U.S.C. § 2254(d) and (e), not every error justifies relief. Rather, statutes limiting habeas review “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011). In particular, where a state court decision is “on the merits, ” only limited set of legal errors or factual errors justify relief.
Errors of Law - “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24- 25 (2002) (per curiam). To justify habeas relief, a state court's merits decision must be “contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” before relief may be granted. 28 U.S.C. §2254(d)(1).
Errors of Fact and Evidentiary Hearings - Federal courts are further authorized 7 to grant habeas relief in cases where the state-court merits decision “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)(2). "Or, to put it conversely, a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). “Moreover, implicit findings of fact are entitled to deference under § 2254(d) to the same extent as explicit findings of fact.” Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008). See also Watkins v. Rubenstein, 802 F.3d 637, 649 (4th Cir. 2015).
Moreover, a state prisoner is not free to attempt to retry his claims in the federal courts by presenting new evidence. “[W]hen we are reviewing state-court decisions under AEDPA.. .petitioners may introduce new evidence in federal court only for claims that we review de novo.” Murray v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014).
3. No Legal Error
Petitioner points to no remediable legal error in the rejection of this claim.
4. No Unreasonable Determination of Facts
Instead, Petitioner argues that the state court made “an unreasonable determination of the facts” when (in the course of finding no viable Fourth Amendment claim for appellate counsel to raise) it found that Petitioner had made statements to separate officers that indicated his consent to the blood draw, because: (1) this conclusion was not supported by the record (Petition, Additional Brief at 6-8); and (2) the responses of “yes” and “I'll do whatever” are irreconcilable false testimonies and thus inadequate evidence of consent (id. at 8-9).
Petitioner contends the state court got the facts wrong, perceiving two communications rather than one. Petitioner particularly takes issue with the PCR court's sentence: “The words uttered by a defendant to separate officers need not be exactly the 8 same to indicate the same thing.” (Exh. AA, M.E. 2/20/18 at 2 (emphasis added).)
“Where the state courts plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim, that misapprehension can fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable.” Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004), overruled on other grounds by Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014).
Indeed, the record indicates that there was only request for consent and one response, just two separate officers hearing the response. But the PCR court understood this when it found:
The defendant claims there were inconsistent statements by the two officers who heard the defendant's statements regarding the blood draw. The defendant states that during the trial one officer, Honeycutt, testified the defendant said "yes" and another officer, Patterson, testified that the defendant said "I'll do whatever" when asked whether he would consent to a blood draw.(Id. at 2.) This recitation indicates the PCR court's finding that there was one response by Petitioner, but two inconsistent reports of what the response was. In contrast, if the PCR court understood the evidence as showing two conversations and thus two statements by Petitioner, it would have spoken in terms of inconsistent statements by Petitioner rather than the officer.
Moreover, it was not an unreasonable determination of the facts to infer consent from both the “yes” and the “I'll do whatever” responses. “Recitation of magic words is unnecessary; the key inquiry focuses on what the typical reasonable person would have understood by the exchange between the officer and the suspect.” United States v. Stewart, 93 F.3d 189, 192 (5th Cir. 1996). Both phrasings indicate a willingness to participate in the blood draw. “I'll do whatever” may be less formal or eloquent, or more open ended than requested, but it plainly communicates to a reasonable person that the speaker is agreeing to whatever action has been requested. See e.g. U.S. v. Torres-Sanchez, 83 F.3d 1123, 1126 (9th Cir. 1996) (relying on consent phrased as “Yeah, go ahead, if you want to”). 9
It is true that because the officers recalled the assent in different terminology their testimony may have been less credible than it would have been if they reported the same words. But that is not necessarily so. Credibility can, in some instances, be supported by variances that demonstrate the normal defects in human memory and thus diminish the likelihood of a faked, or planted, or coached memory. Cf. Robert Aitken, Marilyn Aitken, The Triangle Fire Tragedy, Trial, and Triumph, 45 No. 3 Litigation at 21 (Spring 2019) (relating the discrediting effect of over-coached testimony). Thus, a reasonable factfinder could ignore the inconsistencies in the testimony on the form of consent and still conclude that the officers were credible in testifying that consent was given. See e.g. United States v. Delaney, 651 F.3d 15, 18 (D.C. Cir. 2011) (finding testimony on consent credible despite inconsistency between officers on who asked for consent).
Moreover, Officer Honeycutt disavowed any present recollection of the conversation, and relied solely on his notes from his report. The PCR could have reasonably concluded that Honeycutt's report contained only a paraphrase that consent was given, while Patterson's more detailed report, which designated Petitioner's response in quotations, was a verbatim record, and thereby reconciled the disparity.
Thus, it was not unreasonable for the PCR court to have concluded that regardless of the inconsistencies of their reports, what each officer perceived was consent, and that those perceptions were reasonable. With the only contrary evidence being Petitioner's selfserving denials of consent (further diminished by the evidence of his intoxication at the time), there was more than enough for the PCR court to conclude that a preponderance of evidence of consent was shown. See United States v. O'Looney, 544 F.2d 385, 388 (9th Cir. 1976) (on issue of consent to search, “the government had the burden of proof by a preponderance of the evidence”); and State v. Valenzuela, 239 Ariz. 299, 302-303, ¶ 11, 371 P.3d 627, 630-31 (2016) (same).
Moreover, here, the ultimate question is not whether the PCR court was right about the credibility of the officers. Rather, the ultimate question is whether the PCR court was 10 right about whether appellate counsel was ineffective in failing to pursue the claim. Even if there was some merit to the underlying consent issue, Petitioner was required to show that counsel's decision to forego the claim was objective unreasonable, and a reasonable probability that, but for that action, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “In many instances, appellate counsel will fail to raise an issue because she foresees little or no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely recognized as one of the hall marks of effective appellate advocacy.” Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). “The law does not require counsel to raise every available nonfrivolous defense. Counsel also is not required to have a tactical reason-above and beyond a reasonable appraisal of a claim's dismal prospects for success-for recommending that a weak claim be dropped altogether.” Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) (citations omitted). Given the foregoing discussion on the merits of the underlying claim, appellate counsel could have reasonably concluded that the claim of a lack of consent was not sufficiently meritorious to include it on appeal, and made a reasonable tactical decision to forego the claim.
Ground 1 is without merit and should be denied.
B. GROUND 2 - PRETRIAL COUNSEL
In Ground 2, Petitioner argues trial counsel Green was ineffective in failing to call Officer Patterson (who asked Petition for consent, and testified that his response was “I'll do whatever”) to testify at the hearing on the motion to suppress.
1. No State Court Decision on the Merits
Petitioner did not raise this claim in his original Petition for Post Conviction Relief, filed September 29, 2017, which was limited to arguing ineffective assistance of appellate counsel. (See generally Exh. U, PCR Pet.) The PCR court ordered a response to that Petition by November 17, 2017. (Exh. V, M.E. 10/3/17.) 11
Petitioner did, however, raise it in his “Petition for Post Conviction Relief (Revised)” filed October 17, 2017 (Exh. W), which he designated as an “addition and revision.” (Id. at 1.) Referencing both the original and revised petitions, the PCR court ordered “the State's Response to the revised Petition shall be filed no later than December 14, 2017.” (Exh. X, M.E. 10/30/17.)
The state responded on December 15, 2017, but only on the appellate counsel claim, and referenced only the original, September 29, 2017 Petition. (Exh. Y, Response at 4.) Petitioner noted the omission in his Reply (Exh. Z at 5). In denying the petition, the PCR court made no reference to the revised petition, citing only “defendant's Petition for PostConviction Relief, ” and addressed “the claim of ineffective assistance of appellate counsel only, ” refusing to address the underlying challenge to the “warrantless blood draw” as waived on appeal under Arizona Rules of Criminal Procedure 32.2(a)(3). (Exh. AA, M.E. 2/20/18.) No mention was made of the additional claim of ineffective assistance of trial (or “pretrial”) counsel.
Petitioner again raised the claim in his Petition for Review. (Exh. BB at 19.) Moreover, he argued that the PCR court had overlooked the claim. (Id. at 20.) The Arizona Court of Appeals granted review, but summarily denied relief, simply finding no “abuse of discretion.” (Exh. CC, Mem. Dec. 7/19/18.)
Petitioner again raised the claim in his Petition to the Arizona Supreme Court (Exh. DD at 18), who summarily denied review. (Exh. EE, Order 12/3/18.)
Thus, there was no explicit ruling at any level on Petitioner's claim in Ground 2.
“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Harrington v. Richter, 562 U.S. 86, 99-100 (2011).
Respondent argues that the PCR court recognized the revised PCR petition in 12 ordering a response to it, and opined in its denial that it was only addressing the appellate counsel claim, and thus this Court should conclude that the PCR court treated the appellate counsel and pretrial counsel claims as so closely related that disposing of one disposed of the other. (Answer, Doc. 11 at 22-23.)
Here, the more likely explanation for the PCR Court's failure to address the claim was that, like the state in its Response, the PCR court simply overlooked the revised petition. The Order (Exh. X) directing a response to the revised petition was issued October 31, 2017. The Order (Exh. AA) disposing of the case was not issued until some 112 days later, on February 20, 2018.
Moreover, the reference to deciding only the appellate counsel claim came at the end of the application of Arizona's waiver on appeal rule to the underlying substantive claim. That rule had no application to Petitioner's pretrial counsel claim, given Arizona's requirement that ineffective assistance claims be brought in PCR proceedings.
Finally, while both claims dealt with the consent for the blood draw, and ineffective assistance claims, the nature of the considerations was very different.
The appellate counsel claim dealt with the availability of an appellate claim based on the cold record on appeal. Prejudice would have been gauged based on the same record.
The pretrial counsel claim, on the other hand, relied on assertions of a failure to investigate before failing to call Officer Patterson at the motion to suppress hearing. Thus, that claim was not limited to the record on appeal, but could have been expanded to address pretrial counsel's investigation supporting the decision to not subpoena the central witness at the suppression hearing, as well as attempts to clarify the variations in the recalled responses, and to expand a basis for attacking both officers' credibility, and particularly to do so outside the hearing of the jury.
Thus, under Respondents' argument, this Court is faced with either concluding that the PCR court committed an oversight and thus failed to address the revised petition, or that the PCR court failed to grasp the nature of the two claims and the fundamentally different analyses applicable to each. The former conclusion is more in keeping with the 13 principles of comity.
Accordingly, the undersigned concludes that the more likely explanation for the failure to address the pretrial counsel claim was oversight, and not ignorance, and that the presumption of a silent disposal on the merits has been overcome.
Without a state court decision on the merits, the deferential review under 28 U.S.C. § 2254(d) does not apply.
2. Claim Without Merit
Here, however, Petitioner fails to establish his claim even on de novo review. Petitioner offers nothing to support his claim that counsel failed to investigate, and leaves the Court to speculate.
Further, Petitioner offers nothing to show what the result of further investigation or of subpoenaing Patterson would have been. He simply leaves this Court to speculate.
A habeas petitioner may not leave a court to speculate what evidence a purportedly deficient investigation would have discovered. In order to prevail on an allegation that defense counsel conducted an insufficient investigation resulting in ineffective assistance, the petitioner must show specifically what that investigation would have produced. A petitioner may not simply speculate about what a witness' testimony, but must adduce evidence to show what it would have been. Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997). “[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim.” U.S. v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991). A defendant cannot satisfy the Strickland standard by "vague and conclusory allegations that some unspecified and speculative testimony might have established his defense." Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.), cert. denied, 502 U.S. 902 (1991).
The only particular testimony of Patterson to which Petitioner points is that given 14 by Patterson at trial, i.e. that Petitioner responded, “I'll do whatever.” But, as discussed above with regard to Ground 1, that response reasonably indicates consent, and combined with the other available evidence met the preponderance of the evidence standard.
Moreover, while there were opportunities for impeachment based on the disparity between the officers, the evidence of the disparity was admitted at the suppression hearing through examination of Petitioner
Q. Okay. So the document that we looked at that is going to be marked as Exhibit 2 that Officer Patterson filled out, when he indicated that he read that to you, s that's -- he's not telling the truth there?
A. Correct. And if you also look at the -- if you can look at Phoenix Police Procedure, I think it's like 6.4 per the DUI Code, where it states these forms should with exact verbiage of what the suspect says when - - when he answers a question.
So if you look on the form, it says -- Officer Patterson put in there: I'll do whatever. Have - have you seen that?
Q. I have.
A. And so why -- why would Patterson's statement be different from Honeycutt's statement? Honeycutt is saying -- Honeycutt is saying he swears I said, yes, but it didn't happen. Patterson is saying he's going to swear that I said whatever. That's what his statement says.(Exh. E, R.T. 8/21/15 at 69-70.) The referenced exhibit was moved into evidence by pretrial counsel. (Id. at 52.) Indeed, pretrial counsel impeached Office Honeycutt on the disparity.
Q. Now you stated that when he was read his Admin Per Se Affidavit, his response was yes?
A. Correct.
Q. And it wasn't: I'll do whatever?
A. Can I refer to my report?
Q. Sure.
A. I documented he said, yes, when asked if he would submit to the blood draw.(Id. at 42-43.) Petitioner fails to explain what additional testimony would have been admitted had Patterson been subpoenaed.
Moreover, when Petitioner filed his pro per Motion for Suppression, he explicitly argued the disparity and raised it again at the resulting hearing. (Exh. K, R.T. 10/2/15 at 14-15.) Nonetheless, the trial court rejected it.
THE COURT: . . . I'm also noting many of Mr. Richey's arguments related to this, and the arguments that were included in his15
closing argument were actually not related to the actual motion that was filed. And in fact Mr. Richey seemed to take an opposing position from his attorney. Mr. Richey basically just said I knew exactly what was going on and I just absolutely did not consent to it.
However the testimony and evidence from the officers, I find to be more credible, and I am finding that there was consent and I am denying the motion to suppress.(Id. at 19-20.) Petitioner proffers no reason to believe that live testimony by Officer Patterson would have had a different outcome, and thus fails to show prejudice from the failure of pretrial counsel to subpoena Patterson.
Finally, the record reflects that counsel had selected a strategy that obviated the need to resolve the conflict between Honeycutt and Patterson, or even between the officers and Petitioner. Instead, counsel pursued a strategy at suppression that, even if given, Petitioner's consent could not have been voluntary. “We do not believe this Court would find Mr. Richey gave any voluntary consent to the blood draw. Mr. Richey was reportedly incoherent, could not understand basic instructions and was unable to sit still.” (Exh. C, Mot. Supp. at 4.) See e.g. U.S. v. Montgomery, 621 F.3d 568, 572 (6th Cir. 2010) (“medication or intoxication may diminish the capacity to consent to the extent it undermines an individual's grasp on the reality of what he is doing”); U.S. v. Rambo, 789 F.2d 1289, 1297 (8th Cir. 1986) (although not controlling, intoxication is relevant to voluntariness); and U.S. v. Gay, 774 F.2d 368, 377 (10th Cir. 1985) (“The issue squarely put is whether Gay was so intoxicated that his consent to search was not the product of a rational intellect and a free will.”). Petitioner proffers no reason why pursuing this strategy was unreasonable.
Accordingly, Petitioner's claim in Ground 2 is without merit and must be denied.
C. SUMMARY
Petitioner fails to show that the state court's merits determination of his claim of ineffective assistance of appellate counsel in Ground 1 was contrary to or an unreasonably application of federal law or an unreasonable determination of the facts. Petitioner fails to show ineffective assistance of pretrial counsel in Ground 2. Accordingly, the Petition should be denied. 16
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the “district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Such certificates are required in cases concerning detention arising “out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
Standard Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will on the merits. Under the reasoning set forth herein, jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong.
Accordingly, to the extent that the Court adopts this Report & Recommendation as 17 to the Petition, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the Petitioner's Petition for Writ of Habeas Corpus, filed December 13, 2018 (Doc. 1) be DENIED.
IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, 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. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). 18
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.” 19