Free Report and Recommendation - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 TO THE HONORABLE MARY H. MURGUIA, U.S. DISTRICT JUDGE. 14 Bruce Lee Scott ("petitioner"), currently confined at the 15 Arizona State Prison Complex in Yuma, Arizona, filed a pro se 16 Third Amended Petition for Writ of Habeas Corpus. 17 raises four grounds for relief in the third amended petition. 18 (Doc. 23 at pp. 5-8). 19 granting of habeas relief. 20 I. BACKGROUND 21 Petitioner was charged with the first-degree murder of 22 Charlie Bremer. 23 the lesser-included offense of second degree murder. 24 Exhibit A at pp. 1-2; Exhibit C at p. 9). 25 conviction, petitioner was sentenced to 18 years in prison. 26 23 at p. 1; Doc. 30, Exhibit A at p. 2; Exhibit C at p. 9). 27 Petitioner appealed his conviction to the Arizona Court of 28 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 1 of 25 (Doc. As a result of this (Doc. 30, On April 13, 2000, petitioner was convicted of (Doc. 30). Respondents filed an answer opposing the Petitioner ) ) Petitioner, ) ) v. ) ) Deputy Warden Ryder, et al., ) ) Respondents. ) Bruce Lee Scott, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

CIV 04-376 PHX MHM (VAM) REPORT AND RECOMMENDATION

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Appeals raising the following grounds for relief: ARGUMENT I THE FIRST DEGREE MURDER STATUTE VIOLATES DUE PROCESS BY ELIMINATING ACTUAL REFLECTION AS A REQUIREMENT TO PROVE PREMEDITATION. ARGUMENT II APPELLANT WAS DENIED DUE PROCESS OF LAW BY THE COURT'S REFUSAL TO ADMIT POLYGRAPH EVIDENCE. ARGUMENT III

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00376-MHM Document 31 2 Filed 09/19/2006 Page 2 of 25 THE COURT ERRED IN ADMITTING BAD ACTS EVIDENCE AGAINST [PETITIONER], VIOLATING [HIS] DUE PROCESS RIGHTS. ARGUMENT IV DEATH QUALIFYING JURORS IN A JUDGE SENTENCING STATE VIOLATES DUE PROCESS AND DEPRIVED [PETITIONER] OF A FAIR TRIAL. (Doc. 30, Exhibit C at pp. 12,18,28 and 33). In a memorandum decision filed on June 28, 2001, the Arizona Court of Appeals affirmed petitioner's convictions and sentences. (Doc. 30, Exhibit A at p. 12). The Arizona Supreme Court likewise

denied review and the Arizona Court of Appeals entered its order and mandate on November 29, 2001. (Id. at Exhibit D).

On November 29, 2001, petitioner initiated state postconviction relief proceedings when he filed a Notice of PostConviction Relief pursuant to Ariz.R.Crim.P. 32.1 in the state trial court. (Doc. 30 at Exhibit E). Petitioner filed a Rule 32

petition on January 26, 2003, raising the following claim: In the aftermath of Apprendi v. New Jersey, 530 U.S. 466 ..., and Ring v. Arizona, ___ U.S. ___, 122 S.Ct. 2428, 2439, ..., the procedure by which the trial court alone determined the aggravating circumstances at sentencing deprived Petitioner of his right to a jury trial and to a determination of their truth beyond a reasonable doubt

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An amended petition filed March 24, 2003, raised the same issue. (Doc. 30, Exhibit F). The trial court dismissed the petition in a

minute entry entered on May 19, 2003, finding "no claim presents a material issue of fact or law that would entitle [petitioner] to relief ..." (Id. at Exhibit G). In addition, the trial court

concluded that petitioner's Apprendi/Ring claim is not "colorable" and the claim was "precluded under Rule 32.2(A)(3), Arizona Rules of Criminal Procedure, as having been waived at trial or upon appeal." (Id.).

The Arizona Court of Appeals denied a petition for review without comment on June 29, 2004. (Doc. 30 at Exhibit H). The

Arizona Supreme Court also denied review without comment on April 20, 2005. (Id. at Exhibit I). Petitioner filed this Third

Amended Habeas petition on April 21, 2006, raising the following grounds: GROUND I [Petitioner] was Denied Due Process [by] the Court's Refusal to admit Polygraph Evidence, Violating Fifth & Fourteenth Amendments GROUND II The Court Erred in Admitting Bad Acts Evidence Against [petitioner] Violating [petitioner's] due process rights. Also violating Fifth & Fourteenth Amendments GROUND III Death Qualifying Jurors in a Judge sentencing state Violate[s] Due process and deprived [petitioner] of a fair trial. Violates Sixth Amendment, Fifth & Fourteenth Amendments GROUND IV

26 Fifth, Sixth, and Fourteenth Amendments 27 28 Case 2:04-cv-00376-MHM Document 31 3 Filed 09/19/2006 Page 3 of 25

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[The trial courts summary dismissal of petitioner's Apprendi/Ring claim in his Rule 32 petition on the ground that it was not a "colorable" claim and was waived because it was not presented at trial or on appeal was error because "[a]t the time petitioner was sentenced (May 17, 2000), Apprendi v. New Jersey ... had not been decided, and he could not assert an as yet unrecognized basis for a constitutional claim."]. II. DISCUSSION

6 Respondents first seek denial of Grounds I, II and IV of the 7 third amended petition on the basis that the claims presented in 8 these grounds have not been properly exhausted in state court and 9 are now procedurally defaulted. 10 A. Anti-Terrorism and Effective Death Penalty Act of 1996 11 Pursuant to 28 U.S.C. § 2254(d), the following standard for 12 granting a federal habeas petition originating from a state court 13 conviction applies: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00376-MHM Document 31 (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 interpretation of the facts in light of the evidence presented in the State court proceedings. The Act also codifies a presumption of correctness of state court findings of fact. 28 U.S.C. § 2254(e)(1) states that "a An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-(Doc. 30 at pp. 4-9).

determination of a factual issue made by a State court shall be presumed to be correct" and the petitioner has the burden of proof to rebut the presumption by "clear and convincing evidence." As

discussed more fully below, these provisions of the Act set the 4 Filed 09/19/2006 Page 4 of 25

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standard for the Court's evaluation of the merits. The Act limits the district court's discretion to hold evidentiary hearings. 28 U.S.C. § 2254(e)(2) states:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-(A) the claim relies on--

7 8 9 10 11 12 13 14 A petition may be denied on the merits even though it 15 contains unexhausted claims, and the state does not waive 16 exhaustion except by an express waiver on the record. 17 §2254(b)(2) and (3). 18 B. Exhaustion and Procedural Default 19 1. Law Generally 20 A federal court has authority to review a federal 21 constitutional claim presented by a state prisoner if available 22 state remedies have been exhausted. 23 U.S. 1, 3 (1981)(per curiam); McQueary v. Blodgett, 924 F.2d 829, 24 833 (9th Cir. 1991). 25 case law and codified at 28 U.S.C. § 2254, now states: 26 27 28 Case 2:04-cv-00376-MHM Document 31 (b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment 5 Filed 09/19/2006 Page 5 of 25 The exhaustion doctrine, first developed in Duckworth v. Serrano, 454 28 U.S.C. (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable; or

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ways.

of a State court shall not be granted unless it appears that-(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available state corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. ....... (c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented. The exhaustion requirement can be satisfied in one of two First, a petitioner can fairly present his or her claims to

the Arizona Court of Appeals by properly pursuing them through either the state's direct appeal process or through appropriate post-conviction relief. 1010 (9th Cir. 1999). See Swoopes v. Sublett, 196 F.3d 1008,

Only one of these avenues of relief must be

exhausted before bringing a habeas petition in federal court. This is true even where alternative avenues of reviewing constitutional issues are still available in state court. Brown

v. Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989). Claims presented in habeas petitions are considered exhausted if they have been ruled upon by the Arizona Court of Appeals. However, if the sentence received is life imprisonment, the claims must be presented to the Arizona Supreme Court. at 1010. Swoopes, 196 F.3d

Although a federal habeas petitioner may reformulate 6

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somewhat the claims made in state court, Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986), rev'd in part on other grounds by Duncan v. Henry, 513 U.S. 364 1995), the substance of the federal claim must have been "fairly presented" in state court. Anderson

v. Harless, 459 U.S. 4, 6 (1982)(per curiam); Picard v. Connor, 404 U.S. 270, 278 (1971). While the petitioner need not recite

"book and verse on the federal constitution," Picard, 404 U.S. at 277-78 (quoting Daugherty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary to support the federal claim were before the state courts or that a "somewhat similar state law claim was made." Anderson, 459 U.S. at 6.

As an alternative to presenting his claims to the highest state court, a petitioner can satisfy the exhaustion requirement by demonstrating that no state remedies remained available at the time the federal habeas petition was filed. Engle v. Isaac, 456

U.S. 107, 125 (n. 28)(1982); White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989). However, this path is fraught with danger:

If state remedies are not available because the petitioner failed to comply with state procedures and thereby prevented the highest state court from reaching the merits of his claim, then a federal court may refuse to reach the merits of that claim as a matter of comity. Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988); see also Swoopes, 196 F.3d at 1010 (determining that the exhaustion requirement is satisfied if a petitioner presented a claim to the Arizona Court of Appeals either on direct review or via a petition for post-conviction relief). This failure to comply with

reasonable state procedures is usually characterized as "procedural default," "procedural bar," or a "waiver." 7 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 7 of 25 As

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discussed, exhausting state remedies by means of a procedural default is risky. The burden is on the petitioner to show that he Dismissal of the

or she has properly exhausted each claim.

petition is proper when the record does not show that the exhaustion requirement is met. Cartwright v. Cupp, 650 F.2d 1103,

1104 (9th Cir. 1981)(per curiam), cert. denied, 455 U.S. 1023 (1982). If the unavailability of state remedies is in no way the

fault of the petitioner or his or her counsel, the exhaustion requirement will likely be satisfied and a federal court may reach the merits of the petitioner's habeas claims. In many cases, however, the lack of available state remedies is a direct result of the petitioner's failure to avail himself of the state remedies in a timely or procedurally correct manner. In

such instances, the petitioner has procedurally defaulted, and may not obtain federal habeas review of that claim absent a showing of "cause and prejudice" sufficient to excuse the default.1 Reed v.

Ross, 468 U.S. 1, 11 (1984); Wainwright v. Sykes, 433 U.S. 72, 9091 (1977); see also Teague v. Lane, 489 U.S. 288, 298 (1989); Tacho v. Martinez, 862 F.2d 1376, 1380 (9th Cir. 1988). is the legitimate excuse for the default. F.2d 1119, 1123 (9th Cir. 1991). "Cause"

Thomas v. Lewis, 945

"Prejudice" is actual harm Id.

resulting from the alleged constitutional violation.

"Because of the wide variety of contexts in which a procedural default can occur, the Supreme Court `has not given the

Appellate defaults are examined under the same standards that apply when a defendant fails to preserve a claim during trial. Smith v. Murray, 477 U.S. 527, 533 (1986). 8 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 8 of 25

1

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term "cause" precise content.'" Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir.)(quoting Reed, 468 U.S. at 13), cert. denied, 498 U.S. 832 (1990). The Supreme Court has suggested, however, that

cause should ordinarily turn on some objective factor external to petitioner, for instance: ... a showing that the factual or legal basis for a claim was not reasonably available to counsel, (citation omitted), or that "some interference by officials," (citation omitted), made compliance impracticable, would constitute cause under this standard. Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Harmon, 894 F.2d at 1275; Allen v. Risley, 817 F.2d 68, 69 (9th Cir. 1987). The standard is one of discretion intended to be flexible and yielding to exceptional circumstances. Hughes v. Idaho State The

Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986).

"cause and prejudice" standard is equally applicable to pro se litigants, Harmon, 894 F.2d at 1274; Hughes, 800 F.2d at 908, whether literate and assisted by "jailhouse lawyers," Tacho, 862 F.2d at 1381; illiterate and unaided, Hughes, 800 F.2d at 909, or non-English speaking. Vasquez v. Lockhart, 867 F.2d 1056, 1058

(9th Cir. 1988), cert. denied, 490 U.S. 1100 (1989). Finally, if a claim has been found to be procedurally defaulted, the failure to establish cause for the default may be excused under exceptional circumstances. For instance:

... in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of showing cause for the procedural default. Murray, 477 U.S. at 496; see also Schlup v. Delo, 513 U.S. 298, 327 (1995)(to meet the Murray standard, "the petitioner must show 9 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 9 of 25

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that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence"). 2. Application of Law to Grounds I, II and IV a. Grounds I and II Respondents first contend the claims presented in Grounds I and II are procedurally defaulted because they were not raised in state court as violations of federal law or petitioner's federal constitutional rights. disagrees. (Doc. 30 at p. 8). The Magistrate Judge

Upon review, petitioner presented both of these claims With respect

as violations of his federal constitutional rights.

to Ground I (alleging a violation of his Fifth and Fourteenth Amendment rights when the court refused to admit polygraph evidence of another man, Ramon Alvas), petitioner on direct appeal alleged that the trial court's failure to admit this evidence "denied [him] a fair trial in violation of the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution as well as Art. II, §§ 4 and 24 of the Arizona Constitution." (Doc. 30, Exhibit C at p. 18). In addition and of

considerable note, in disposing of this claim on appeal, the Arizona Court of Appeals cited U.S. Supreme Court precedent as well as Arizona cases which, in turn, specifically cited federal precedent. (Doc. 30, Exhibit A at pp. 4-5 (n. 2)). Thus, in

addition to petitioner's assertion of a federal violation, the state court's consideration of the federal aspects of this claim leads to the conclusion that the federal nature of this claim was squarely before the state courts. Similarly, with respect to Ground II (alleging the trial 10 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 10 of 25

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court violated his due process rights under the Fifth and Fourteenth Amendments of the U.S. Constitution when it admitted "Bad Acts" evidence against him at trial), petitioner specifically couched this claim in his appellate brief as a "violat[ion] [of] [his] right to due process under the Fifth and Fourteenth Amendments to the United States Constitution ..." Exhibit C at p. 28). Although, respondents quote Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999), this case does not support their contention that petitioner failed to exhaust the federal nature of Grounds I and II in state court. In Lyons v. Crawford, 232 F.3d 666 (9th Cir. (Doc. 30,

2000), modified on other grounds, 247 F.3d 904 (9th Cir. 2001), the Court noted that Hiivala predicated its determination that a habeas petitioner had not "fairly presented" a federal claim to the fact that the petitioner in that case "'did not refer to the Due Process Clause of the United States Constitution' and 'cited [neither] the Fourteenth Amendment nor any federal case law ..." Lyons, 232 F.3d at 668. In this case, petitioner's specific

invocation of a violation of due process guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution, clearly raised the federal nature of his claim. b. Ground IV Respondents also contend petitioner procedurally defaulted Ground IV of the Third Amended Petition. In Ground IV, petitioner

asserts his sentences violate his federal constitutional rights because the Arizona sentencing laws permitted the judge to impose sentence based on aggravating factors determined by the judge 11 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 11 of 25

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instead of the jury.

Petitioner contends this is in violation of

the holding of the U.S. Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002). (See Doc. 23 at p. 8). Respondents contend that when petitioner raised this claim in his Rule 32 proceeding, the state courts found the claim procedurally deficient. Specifically, the trial court held that

the claim was barred from consideration pursuant to Ariz.R.Crim.P. 32.2(a)(3) "as having been waived at trial or upon appeal." 30, Exhibit G at p. 1). The trial court noted that "[t]rial (Doc.

counsel raised the issue for Jury determination of aggravating factors, the motion was denied, and was not appealed." Ariz.R.Crim.P. 32.2 states, in pertinent part: a. Preclusion. A defendant shall be precluded from relief under this rule based upon any ground: ..... (Id.).

16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00376-MHM Document 31 (3) That has been waived at trial, on appeal, or in any previous collateral proceeding. The state court's finding that petitioner's Apprendi claim was precluded from consideration on the merits will prevent federal habeas review if the state procedural bar is independent of federal law and adequate to warrant withdrawal of federal relief, that is, the bar is regularly applied by the state courts. Ariz.R.Crim.P. 32.2(a)(3) is an independent and adequate state bar. See Stewart v. Smith, 536 U.S. 856, 860 (2002) (finding

Ariz.R.Crim.P. 32.2(a)(3) determination independent of federal law); Ortiz v. Smith, 149 F.3d 923, 932 (9th Cir. 1998) (finding Rule 32.2(a)(3) regularly followed and adequate). 12 Filed 09/19/2006 Page 12 of 25

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However, in analyzing the "waiver" bar of Ariz.R.Crim.P. 32.2(a)(3), the Ninth Circuit Court of Appeals has stated that "[u]nder Arizona law, a claim that is of 'sufficient constitutional magnitude' can only be waived 'knowingly, voluntarily, and intelligently.'" 614, 622 (9th Cir. 2005). Cassett v. Stewart, 406 F.3d

The court went on to hold that "[i]f

the right asserted 'is of sufficient constitutional magnitude to require personal waiver by the defendant and there has been no personal waiver, the claim is not precluded." Id.

The Cassett Court did not provide specific guidance on what type of claim is of sufficient magnitude to require a personal waiver, however, the court stated that making such a determination is a "fact-intensive inquiry" that "Arizona state courts are better suited to make ..."2 The court went on to conclude that

"[b]ecause it is not clear that the Arizona courts would hold Cassett's federal due process claim barred under Ariz.R.Crim.P. 32.2(a)(3), we conclude that his claim is not procedurally defaulted." Cassett, 406 F.2d at 623.

In this case, unlike Cassett, the trial court specifically determined that petitioner's Apprendi claim was precluded pursuant to Ariz.R.Crim.P. 32.2(a)(3). Thus, unlike Cassett, the state

court in this case expressly concluded petitioner waived his Apprendi claim by failing to present it on direct appeal. 30 at Exhibit G). (Doc.

Recently, one court held a habeas petitioner's

The issue involved in Cassett was a claim of violation of due process by admission at trial of evidence of a prior guilty plea. See Cassett, 406 F.3d at 619-20. 13 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 13 of 25

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claim procedurally defaulted, distinguishing Cassett because "Cassett did not involve the actual finding of preclusion by the state court. Here, the Court clearly found preclusion." Bailey

v. Schriro, 2006 WL 1663484 (D.Ariz., June 7, 2006 at *21 (n. 4)). The present case mirrors Bailey, in that the state courts clearly found petitioner's Apprendi claim precluded pursuant to Ariz.R.Crim.P. 32.2(a)(3). (Doc. 23, Exhibit G at p. 1). As a

result, this claim should be procedurally barred from federal habeas review. C. Merits 1. Habeas Standard of Review Under the AEDPA the issuance of a writ of habeas corpus is limited to circumstances in which the state court adjudication "resulted in a decision that was contrary to, or involved and unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States ... or resulted in a decision that was an unreasonable determination of the facts ..." 28 U.S.C. §2254(d)(1) and (2). "[A] state court

decision applies 'clearly established' Supreme Court law under the AEDPA when it 'applies a rule dictated by [Supreme Court] precedent existing at the time the defendant's conviction became final." Campbell v. Rice, 265 F.3d 878, 889 (9th Cir. As

2001)(citing Williams v. Taylor, 529 U.S. 362, 376 (2001)). stated by the U.S. Supreme Court: Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially 14 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 14 of 25

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indistinguishable facts. Under the 'reasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. ... [A]n unreasonable application of federal law is different from an incorrect application of federal law ...a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, the application must also be unreasonable. Williams, 529 U.S. at 411, 412-13 (O'Connor, J., concurring in part, and concurring in the judgment). "In order for a state

court's application of federal law to be unreasonable, it must have been clearly erroneous." 1152-54 (9th Cir. 2000). Van Tran v. Lindsey, 212 F.3d 1143,

"Petitioner cannot meet his burden by

simply convincing the federal court that he has the better of two reasonable legal arguments." Wildman v. Johnson, 261 F.3d 832,

837 (9th Cir. 2001)(citing Van Tran, 212 F.3d at 1154)). 2. Petitioner's Properly Exhausted Claims a. Ground I In Ground I, petitioner contends that his due process rights under the Fifth and Fourteenth Amendments were violated when the trial court refused to admit the results of a polygraph test administered to a prosecution witness, Ramon Alva. Petitioner

argues this evidence revealed Alva was not truthful when he denied during a polygraph exam that he shot the victim, Charlie Bremer, and when he responded affirmatively when asked if petitioner shot the victim. (Doc. 23 at p. 5). (Doc. 30,

Petitioner raised this claim on direct appeal. 15 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006

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Exhibit C at p. 18). claim.

The Arizona Court of Appeals rejected his This court must uphold this

(Id., Exhibit A at p. 4).

determination if it was neither contrary to or an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court, or an unreasonable determination of the facts in light of the evidence presented. 2254(d)(1) and (2). In rejecting this claim, the Arizona Court of Appeals held that the Arizona Supreme Court previously found that "as a matter of law polygraph evidence is not reliable" and "is inadmissible [under Arizona law] absent stipulation of the parties." (Doc. 23, See 28 U.S.C. §

Exhibit A at p. 4 (Citing State v. Rodriguez, 186 Ariz. 240, 250, 921 P.2d 643, 653 (1996)). The court also cited the U.S. Supreme

Court in U.S. v. Scheffer, 523 U.S. 303, 317 (1998) for the proposition that a per se rule against the admission of polygraph evidence is constitutional. (Doc. 23, Exhibit A at p. 4 (n. 2)).

This court must defer to the Arizona Court of Appeals interpretation of state law on this point. McGuire, 502 U.S. 62, 67 (1991). See Estelle v.

Moreover, the Arizona Court of

Appeals' determination that barring polygraph evidence comported with federal law as interpreted by the U.S. Supreme Court is not an unreasonable application of that court's holding in Scheffer. In Scheffer, the court noted that "[a] defendant's right to present relevant evidence is not unlimited, ..." The court held

that "state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials" and that such exclusions do not abridge a defendant's 16 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 16 of 25

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constitutional rights "so long as they are not 'arbitrary' or 'disproportionate to the purposes they are designed to serve." Scheffer, 523 U.S. at 308. The court noted a "lack of scientific

consensus is reflected in the disagreement among state and federal courts concerning both the admissibility and reliability of polygraph evidence" and observed that "[m]ost states maintain per se rules excluding polygraph evidence." 310-11. Scheffer, 523 U.S. at

The court concluded by noting that "the degree of

reliability of polygraph evidence may depend upon a variety of identifiable factors" and that "certain doubts and uncertainties plague even the best polygraph exams." Id. at 312. For these

reasons, the court held that "a per se rule excluding all polygraph evidence [does not violate the U.S. Constitution]." Scheffer, 523 U.S. at 312. As a result, the Arizona Court of Appeals' rejection (upheld on review by the Arizona Supreme Court) of petitioner's claim alleging his constitutional right to due process of law was denied when the trial court refused to admit polygraph evidence was a reasonable application of Scheffer and should be upheld. b. Ground II In this ground, petitioner alleges that the trial court erred in "admitting" several examples of "bad act" evidence, violating his Fifth and Fourteenth Amendment right to due process of law. (Doc. 23 at p. 6). examples: (1) the prosecutor elicited from [witness] Leon Taylor ... a nonresponsive answer that [petitioner] got out of his car with a shotgun. 17 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 17 of 25 Petitioner cites the following specific

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(2) ... Leon Taylor testified that when he came outside, there was a shotgun in his vehicle and [petitioner] was about to get into his vehicle .... (3) While questioning witness Melinda Shaw, the prosecutor approached and asked the court to be allowed to elicit [from her] that [petitioner] threatened someone with a shotgun. (4) ... the prosecutor elicited from [witness] Crystal Long that, at a block party [petitioner] was in possession of a "sawed off" shotgun. (5) Detective Steve Lewis testified that during a search of [petitioner's] home he found some shotgun shells in the bedroom of [petitioner's] grandmother. (Id.). Petitioner notes that objections were sustained to some,

10 if not all of this "shotgun" testimony and that the Court even 11 ordered some testimony be stricken. 12 However, petitioner contends that in spite of this "the jury was 13 well aware that [he] had a 'sawed off shotgun,'" and argues this 14 prejudiced him because "there was no connection what so-ever 15 between [him] carrying a shotgun and the commission of the crime. 16 The crime wasn't comitted [sic] with a shotgun." 17 In rejecting these claims of error in admitting3 allegedly 18 "bad act" evidence, the Arizona Court of Appeals focused on state 19 law, namely Ariz.R.Evid. 404(b). 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00376-MHM Document 31 The Court notes the trial court did not admit the evidence complained of in numbers (2) and (3) above and there was no objection to items (4) and (5) above. Therefore, the only issue preserved is item number (1) above. 18 Filed 09/19/2006 Page 18 of 25
3

(See Doc. 23 at p. 6).

(Id.).

Rule 404(b) states:

Except as provided in Rule 404(c) evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

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The language of this rule tracks to a great extent the language of Fed.R.Evid. 404(b). The court rejected each of these "five Regarding the first instance of

instances cited by [petitioner]." alleged error the court stated:

... witness L.T. [Leon Taylor] testified that [petitioner] "had told me that he had gone out and killed (the victim) and that he was the triggerman." L.T. further testified that approximately three weeks later, he and several other people saw [petitioner] at a McDonald's restaurant. L.T. stated, in a nonresponsive answer, that [petitioner] "got out of the car with a shotgun in his hand." Defense counsel objected pursuant to Rule 404(b) and moved for a mistrial. After a lengthy discussion held at the bench, the trial court denied the motion. L.T. then testified that [petitioner] appeared serious and "asked me if I told anyone about what I knew [about the murder]." When L.T. replied that he had not, [petitioner] "got back in the car and left." [Petitioner's] actions (including his demeanor, his use of the shotgun, his question, and his subsequent departure after a negative response from L.T.) were relevant to show his consciousness of guilt .... We conclude that this testimony constitutes direct evidence that [petitioner] committed the charged offense. [Citation omitted]. Thus, we find that the trial court did not abuse its discretion by admitting this evidence. (Doc. 30, Exhibit A at pp. 6-7). Concerning the second instance, the Arizona Court of Appeals stated: L.T. later described an occasion in which he gave [petitioner] a ride and [petitioner] possessed a shotgun. L.T. stated that he was about to deliver some pizzas ... when [petitioner] appeared and requested a ride. L.T. stepped inside to get some sodas, and when he came back outside "there was a shotgun in my vehicle and [petitioner] was about to get in the vehicle." L.T. gave [petitioner] a ride and then [he] exited the vehicle with a shotgun. Defense counsel objected to the testimony and requested it be stricken and the jury be instructed to disregard the whole matter as irrelevant. The court granted defense counsel's request and advised the jury that the proffered testimony was "ordered stricken ... and you [the jury] are not to consider that as testimony 19 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 19 of 25

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..." The record also reveals that, both in its preliminary and final jury instructions, the court advised the jury to disregard questions and answers for which an objection had been sustained and to not consider any testimony stricken from the record. We presume that the jury followed the court's instructions. [Citations omitted]. "Experience teaches us that they possess both common sense and a strong desire to properly perform their duties." [Citation omitted]. Accordingly, we find no abuse of discretion in the method used by the trial court to cure the error. (Doc. 30, Exhibit A at p. 7). The third instance cited by petitioner concerns testimony from Melinda Shaw. The Arizona Court of Appeals stated:

While questioning M.S. [Shaw] on redirect, the prosecutor, at a side bar conference requested that the court allow him to elicit testimony that [petitioner] had a shotgun and had threatened people with it, because on cross-examination defense counsel had asked questions for the purpose of indicating that [petitioner] "isn't tough, he just does things without anything to back it up." Defense counsel objected, arguing that [Shaw's] "knowledge comes from somebody else," and the court sustained the objection. Because the court disallowed the proffered evidence, and the jury did not hear it, no error exists in this instance. (Doc. 30, Exhibit A at p. 8).

17 In the fourth instance, regarding testimony from Crystal 18 Long (C.L.), the Arizona Court of Appeals stated: 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00376-MHM Document 31 Witness C.L. testified that, at a teenage drinking party, "some kid" threatened [petitioner], and petitioner replied "I'm going to do you like I did that kid (the victim) up on Happy Valley." C.L. asked [petitioner] whether he actually killed the victim, and petitioner replied, "[J]ust you don't worry about it." Petitioner also showed C.L. a sawed-off shotgun in the back of his truck .... We find that [petitioner's] verbal and demonstrative response to C.L.'s query was relevant both as an admission, [citation omitted], and to show his consciousness of guilt. [Citation omitted]. We conclude that this testimony constitutes direct evidence that [petitioner] committed the charged offense .... (Doc. 23, Exhibit A at p. 8). 20 Filed 09/19/2006 Page 20 of 25

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In the final instance, concerning testimony from Phoenix Police Detective Steve Lewis, the Arizona Court of Appeals stated: ... Lewis testified that during a search of the residence where [petitioner] lived, he found, among other things, some shotgun shells in [petitioner's] grandmother's bedroom .... Viewing the record as a whole, [citation omitted], we cannot say that introduction of the shotgun shell testimony reached the foundation of [petitioner's] case, deprived him of any right essential to his defense, or deprived him of a fair trial. (Doc. 30, Exhibit A at p. 9). "A state court's procedural or evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process." Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995).

As a result, petitioner cannot prevail on his contention that the above-described testimony violated his constitutional right to due process of law and denied him a fair trial in violation of the Fifth and Fourteenth Amendments unless he shows that state court's decision to admit the "prior bad acts evidence ... was arbitrary or so prejudicial that it rendered the trial fundamentally unfair." Id.

Review of these claims shows the trial court's action did not render his trial fundamentally unfair. Concerning the testimony

of Leon Taylor and Crystal Long, the Arizona Court of Appeals held this testimony amounted to direct evidence of guilt. In addition,

the court's conclusion that Long's testimony that she heard petitioner tell another person at a party "I'm going to do you 21 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 21 of 25

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like I did that kid (the victim) ..." was an admission showing consciousness of guilt admissible under Ariz.R.Evid. 801(a)(2) and (d)(2) is reasonable. In another instance, concerning the

prosecution's request to question witness Melinda Shaw, the Arizona Court of Appeals correctly noted that the trial court denied the motion and the jury never knew about the question the prosecution sought to ask. In each of these instances, the Arizona Court of Appeals' determination was a reasonable application of state evidentiary law and, as such, did not violate petitioner's due process right to a fair trial. See Walters, 45 F.3d at 1357.

Finally, with respect to Detective Lewis' testimony about finding shotgun shells in petitioner's house (grandmother's bedroom), in light of other admissible testimony heard by the jury concerning petitioner's possession/ownership of a shotgun (the testimony of Taylor and Long), testimony that ammunition for the shotgun was found in petitioner's home was not prejudicial. In

sum, the Arizona Court of Appeals' conclusion that this testimony by Lewis did not deprive petitioner of a fair trial is a reasonable conclusion based on the law and facts and this claim should be denied. c. Ground III In Ground III, petitioner contends that "[d]eath qualifying jurors in a judge sentencing state violate[s] due process and deprived [him] of a fair trial" in violation of his Fifth, Sixth and Fourteenth Amendment rights. (Doc. 23 at p. 7).

Specifically, petitioner asserts that since the jurors determined 22 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 22 of 25

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only his guilty or innocence "questioning [them] regarding the[ir] views on death penalty" was not appropriate and was "unnecessary."4 (Id.). Petitioner contends that"studies ... show

that death qualifying juries results in a 'conviction prone' jury" and that a "considerable body of research has been conducted, and it indicates that individuals who favor the death penalty have correlated attitudes which may bias them towards the prosecution." (Id.). The Arizona Court of Appeals rejected this claim on appeal. The court stated: A court may question prospective jurors regarding capital punishment where their attitude concerning the death penalty might prevent them from performing their duties and making an impartial decision. [Citation omitted]. "The United States Supreme Court has held that the Sixth Amendment is violated if the trial jury in a capital case is chosen by excluding for cause persons who have general objections to the death penalty. State v. Anderson, 197 Ariz. 314, 318, para. 6, 4 P.3d 369, 373 (2000) (emphasis added) (citing Witherspoon v. Illinois, 391 U.S. 510, 521-23 (1968)). "However, this rule is not applicable to prospective jurors who state unequivocally that they could never impose the death penalty regardless of the facts in a particular case." Id. at para. 7 (citing Witherspoon, 391 U.S. at 514). The Arizona Supreme Court has repeatedly approved the death qualification process in Arizona, even though juries do not sentence. [Citations omitted] .... Moreover, the United States Supreme Court has "rejected the argument that the process produces conviction-prone jurors." [State v.] Jones, 197 Ariz. at 309 ... [citing Lockhart v. McCree, 476 U.S. 162, 168-73 & nn. 4-5 (1986)). The U.S. Supreme Court has held that "the Constitution does

24 25 26 27 28 Case 2:04-cv-00376-MHM Document 31 Petitioner was convicted in 2000, prior to the U.S. Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002) requiring that a jury determine the factors warranting imposition of a death sentence instead of the judge. See Ring, 536 U.S. at 609. 23 Filed 09/19/2006 Page 23 of 25
4

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not prohibit the States from "death qualifying" juries in capital cases." Lockhart, 476 U.S. at 173. In upholding the

constitutionality of this practice, the court distinguished "death qualifying" from exclusion of groups based on factors such as race or gender, because "[d]eath qualification, unlike the wholesale exclusion of blacks, women, or Mexican-Americans from jury service, is carefully designed to serve the State's concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial." U.S. at 175-76. Petitioner does not allege that the trial court engaged in improper conduct in "death qualifying" the jury. He merely Lockhart, 476

asserts that the act of "death qualifying" denied him a fair trial because it created a likelihood of stacking the jury with members predisposed to side with the prosecution. The U.S. Supreme Court

has held that "death qualifying" a jury does not violate the U.S. Constitution. The Arizona Court of Appeals determination that

this claim was without merit was a reasonable interpretation of the holding in Lockhart and this claim should be denied. IT IS THEREFORE RECOMMENDED that the Third Amended Petition for Writ of Habeas Corpus be denied. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of

appeal filed pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's order and judgment. The parties shall have ten (10) days from the 24 Case 2:04-cv-00376-MHM Document 31 Filed 09/19/2006 Page 24 of 25

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date of service of this recommendation within which to file specific written objections with the Court. Thereafter, the

parties have ten (10) days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues 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 Magistrate Judge's Report and Recommendation. DATED this 18th day of September, 2006.

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