Bauer v. Ryan
| Decision Date | 05 May 2020 |
| Docket Number | No. CV-19-01155-PHX-JAT (MTM),CV-19-01155-PHX-JAT (MTM) |
| Parties | Scott Charles Bauer, Petitioner, v. Charles L Ryan, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
REPORT AND RECOMMENDATION
Petitioner Scott Charles Bauer has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).
Petitioner raises four grounds for relief, asserting a defective charging indictment, insufficient evidence to convict, an unconstitutional jury instruction, and ineffective assistance of counsel. All four grounds are without merit. Accordingly, the Court will recommend that the Petition be denied and dismissed with prejudice.
On December 19, 2014, Petitioner was convicted of nineteen (19) counts of sexual exploitation of a minor in violation of A.R.S. § 13-3553. (Doc. 10-2, Ex. Y at 271). The Arizona Court of Appeals set forth the following facts in Petitioner's direct appeal:
Following a jury trial, appellant Scott Bauer was convicted of nineteen counts of sexual exploitation of a minor, dangerous crimes against children. The trial court sentenced him to presumptive, consecutive terms totaling 323 years' imprisonment.
....
The evidence presented at trial showed Bauer had stored nineteen images of children under the age of fifteen engaged in exploitive exhibition or other sexual conduct on the hard drive of his computer.
State v. Bauer, No. 2 CA-CR 2015-0018, 2016 WL 1704613 *1 (Ariz. Ct. App. Apr. 28, 2016)(Bauer I).1
January 9, 2015, Petitioner filed a timely notice of appeal (doc. 10-3, Ex. AA at 2). Petitioner's counsel submitted a brief pursuant to Anders v. California, 386 U.S. 738 (1967) that indicated that counsel reviewed the trial record and found no arguable issues on appeal. (Doc. 10-3, Ex. BB at 11). On November 16, 2015, Petitioner filed a pro se brief with the Arizona Court of Appeals (Doc. 10-3, Ex. GG at 27). Petitioner raised three issues: (1) whether the State's failure to allege and prove the identities of the "actual minor" victims required reversal; (2) whether the indictment deprived the trial court of jurisdiction by failing to state the identities of the minor victims; and (3) whether the trial court committed reversible error by reading the permissive inference jury instruction drawn from A.R.S. § 13-3556. (Id. at 28).
On April 28, 2016, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. Bauer I, 2016 WL at *2. The Court concluded that the actual identities of the children in the images seized from Petitioner's computer did not need to be proven under A.R.S. § 13-3553; the indictment did not deprive the trial court of jurisdiction; and the jury instruction, while erroneous, was harmless error. Id. at *1-2. Petitioner sought review at the Arizona Supreme Court, which was denied. (See doc. 10-4, Ex. UU at 32). On January 9, 2017, the Arizona Court of Appeals issued its mandate. Id. The United StatesSupreme Court denied certiorari on May 15, 2017. Bauer v. Arizona, 137 S. Ct. 2123 (2017)(Mem.).
On January 9, 2017, Petitioner filed a Notice of Post-Conviction Relief ("PCR") under Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 10-6, Ex. ZZ at 20-22). Appointed counsel notified the Court on July 10, 2017 that the PCR notice presented no colorable claims for relief. (Doc. 10-6, Ex. AAA at 24). On August 31, 2017, Petitioner filed a pro per petition for post-conviction relief. (Doc. 10-7, Ex. DDD at 2). Petitioner raised the three issues from his direct appeal and raised an additional claim for ineffective assistance of counsel for failing to object to the indictment and failing to object to the trial on jurisdictional grounds. (Id. at 3-19).
On January 5, 2018, the Pinal County Superior Court rejected Petitioner's PCR petition. (Doc. 10-8, Ex. III at 30). The reviewing court determined that Petitioner's claims of ineffective assistance of counsel at both the trial and the PCR proceeding were without merit, and that even if counsel had made errors at trial, the errors were not prejudicial. (Id. at 31-32). Petitioner's Motion to Reconsider (doc. 10-8, Ex. JJJ at 34-39) was denied on January 29, 2018. (Doc. 10-8, Ex. KKK at 41).
On February 8, 2018, Petitioner filed a Petition for Review with the Arizona Court of Appeals. (Doc. 10-8, Ex. LLL at 43). On July 11, 2018, the Arizona Court of Appeals granted review but denied relief. State v. Bauer, No. 2 CA-CR 2018-0047-PR, 2018 WL 3409136 (Ariz. Ct. App. July 11, 2018)(Bauer II). Petitioner's motion for reconsideration was denied on August 2, 2018. (Doc. 10-9, Ex. QQQ at 2).
On February 19, 2019, Petitioner filed a Petition for Writ of Habeas Corpus (doc. 1). The Court in its March 15, 2019 Order (doc. 5) summarized Petitioner's claims as follows:
Petitioner raises four grounds for relief. In Ground One, Petitioner asserts that the indictment was insufficient as a matter of law, and the trial court therefore did not have subject-matter jurisdiction over his case. In Ground Two, Petitioner alleges that the evidence was insufficient to convict him. InGround Three, Petitioner claims the trial court committed reversible error when it gave an unconstitutional "permissible inference" jury instruction at Petitioner's trial. In Ground Four, Petitioner asserts that his trial counsel was ineffective for failing to know state law and advocate on Petitioner's behalf as to the insufficient indictment and allowing the trial to proceed in the absence of subject-matter jurisdiction.
(Id. at 1-2). On June 6, 2019, Respondents filed their Response (doc. 10). On October 17, 2019, Petitioner filed a Reply (doc. 18) to the Response, and a Memorandum in Support of the Reply (doc. 19)(Memorandum).
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. Whether a petition is barred by the statute of limitations is a threshold issue that must be resolved before considering other procedural issues or the merits of individual claims.
The Petition was timely filed. The AEDPA imposes a one-year limitation period, which begins to run "from the latest of . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The Arizona Court of Appeals affirmed Petitioner's conviction on April 28, 2016; the conviction became final on May 15, 2017, after the United States Supreme Court denied the petition for writ of certiorari. Petitioner therefore had until May 16, 2018 to file his Petition with this Court, unless Petitioner is entitled to statutory tolling.
Petitioner is entitled to statutory tolling, based on his filing of a timely notice of post-conviction relief in state court. The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). In Arizona post-conviction review is pending once a notice of post-conviction relief is filed. See Isley v. Arizona Dep't of Corr., 383 F.3d 1054, 1056 (9th Cir. 2004). See also Ariz. R.Crim. P. 32.4(a)("A proceeding is commenced by timely filing a notice of post-conviction relief with the court in which the conviction occurred"). The PCR proceeding concluded on August 2, 2018, upon denial of Petitioner's Motion for Reconsideration. Petitioner filed his timely Petition on February 19, 2019, well before the deadline of August 2, 2019.
Petitioner properly exhausted his state law remedies. Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless a petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's highest court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004)("To provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim"). In Arizona claims are considered "exhausted" in non-capital cases when considered by the Arizona Court of Appeals. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).
A claim has been fairly presented if the petitioner has described both the operative facts and the federal legal theory of the claim. Baldwin, 541 U.S. at 33. Thus, "a petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum . . . (2) through the proper vehicle, . . . and (3) by providing the proper factual and legal basis for the claim." Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005)(internal citations omitted).
Petitioner presented all four grounds for relief to the Arizona Court of Appeals; Grounds One through Three were presented in Petitioner's direct appeal2 (see doc. 10-3, Ex. GG at 28, 39-50), while Ground Four was presented in Petitioner's petition for reviewof the denial of post-conviction relief. (See doc. 10-8, Ex. LLL at 54-56). Petitioner's claims were properly exhausted in state court.
The court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court proceedings unless the state court reached a decision which was...
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