Branham v. Gay

• Decision Date: 23 November 2011
• Docket Number: No. CV-10-501-PHX-ROS (LOA),CV-10-501-PHX-ROS (LOA)
• Parties: Ian Thomas Branham, Petitioner, v. John Gay, et. al., Respondents.
• Court: U.S. District Court — District of Arizona

Ian Thomas Branham, Petitioner,

v.John Gay, et. al., Respondents.

No. CV-10-501-PHX-ROS (LOA)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dated: November 23, 2011

ORDER

Pending before the Court is Magistrate Judge Anderson's Report and Recommendation ("R&R"). (Doc. 17). The R&R recommends the Petition for Writ of Habeas Corpus (the "Petition") (Doc. 1) be dismissed with prejudice. Petitioner filed objections to the R&R. (Doc. 18). For the reasons below, the Court will adopt the R&R.

BACKGROUND

A. Verdict, Sentence and Appeal

On June 23, 2003, the State of Arizona filed an indictment against Petitioner with five counts of sexual assault and one count of kidnapping. Before trial, the State dismissed one count of sexual assault, leaving four counts of sexual assault and one count of kidnapping against Petitioner.¹ The case proceeded to a jury trial, and the jury convicted Petitioner ofthese five counts, as charged. The jury subsequently found three aggravating factors: (1) the offense involved accomplices; (2) the offense was especially heinous, cruel, and depraved; and (3) Petitioner caused physical and emotional harm to the victim. Petitioner admitted a historical prior felony conviction for armed robbery. The trial court found no mitigating circumstances. The trial court imposed four consecutive, aggravated, 21-year prison terms for Petitioner's four sexual-assault convictions (Counts I, II, III and IV), and an 18.5-year prison terms for Petitioner's kidnapping conviction (Count V) to run concurrently with the sentence for Count I.

B. Direct Review

On July 6, 2005, Petitioner filed a timely notice of direct appeal. (Doc. 12, Ex. Y). On March 8, 2007, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 12, Ex. Z). The Arizona Court of Appeals held Petitioner's arguments had no merit, and additionally ruled Petitioner waived his federal constitutional arguments relating to two different claims: (1) the preclusion of allegedly exculpatory evidence regarding Damien King; and (2) the trial court's allegedly vague jury instruction defining the aggravating circumstances of "especially cruel, heinous, or depraved." (Id. at 8, 21, 29, 62-63.)

On April 20, 2007, Petitioner filed a pro per petition for review with the Arizona Supreme Court, which summarily denied review on August 8, 2007. (Doc. 12, Exs. AA and BB). Petitioner did not petition the United States Supreme Court for a writ of certiorari within the 90-day filing deadline. As such, Petitioner's conviction became final on direct review on November 6, 2006. See Jihad v. Hvass, 267 F.3d 803, 804-05 (8th Cir. 2001).

C. State Collateral Review

On June 26, 2007, Petitioner filed a notice of post-conviction relief in the trial court under Arizona Rule of Criminal Procedure Rule 32. (Doc. 12, Ex. CC). On July 10, 2007,the court assigned Petitioner counsel, Kerri Droban ("Droban"), for the Rule 32 proceedings. (Id., Ex. DD). On December 10, 2007, through counsel, Petitioner filed a petition for postconviction relief (Doc. 12, Ex. EE)

On March 17, 2008, the State filed its response in opposition to Petitioner's request for post-conviction relief. (Doc. 12, at Ex. FF). On May 12, 2008, the trial court denied relief and dismissed the petition, finding "no material issue of fact or law exists which would be served by any further proceedings."

On May 28, 2008, Petitioner petitioned the Arizona Court of Appeals to review the trial court's denial of post-conviction relief. (Doc. 1). The Arizona Court of Appeals summarily denied review on August 14, 2009. (Doc. 12, Ex. HH).

On November 30, 2009, Petitioner submitted a pro se petition for review to the Arizona Supreme Court, which was rejected for non-compliance with several procedural rules. (Doc. 12, Exs. II and JJ). Petitioner never corrected the defects and did not petition the Arizona Supreme Court for review of the trial court's denial of post-conviction relief.

D. Federal Habeas Petition

On February 23, 2010, Petitioner filed the pending § 2254 Petition. Petitioner raises the following grounds for relief:²

Ground I: Petitioner contends that he suffered violations of the Fifth Amendment "right to be free from double punishment" when the trial court abused its discretion in the following ways:

(A) The trial court disregarded the recommendations of defense counsel and the pre-sentence report writer that Petitioner receive concurrent prison terms for his convictions for Counts I, II, III, and V, allegedly because "they all occurred during one continuous episode," and because the sexual assaults underlying Counts II and III were the "ultimate crime" for his kidnapping conviction in Count V. (Doc.1, at 5.) [hereinafter referred to as "Ground (I)(A)"]

(B) "The trial court ran counts I and IV consecutive toeach other without any discussion as to whether he legally had discretion to do otherwise." (Id.) [hereinafter referred to as "Ground (I)(B)"].

(C) "The court did have the discretion to impose concurrent terms for Counts II and III, which were imposed due to other people's conduct." (Id.) [hereinafter referred to as "Ground (I)(C)"]

Ground II: Petitioner suffered alleged violations of his right to a fair trial, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments, when the trial court made the following rulings:

(A) The court refused to permit Petitioner "to call Andre Hamilton into court to be viewed by the jury." (Doc. 1, at 6.) [hereinafter referred to as "Ground (II)(A)"].

(B) The court "refused to declare a mistrial or impose other appropriate sanctions against the State (prosecutors) for their (mis)conduct which resulted in the loss of Hamilton's exculpatory testimony at trial." (Id.) [hereinafter referred to as"Ground (II)(B)"].

(C and D) The court refused to permit Petitioner "to present probative evidence and argument relevant to [his] misidentification defense regarding an uncharged assailant named Damian King. (Id.) In state court, this claim had two dimensions: (1) a challenge to the trial court's ruling that Petitioner could not call King to the stand for the express purpose of forcing King to invoke his Fifth Amendment privilege in the jury's presence; and (2) a challenge to the trial court's ruling granting the State's motion-in-limine to preclude Petitioner from eliciting testimony that King had not been charged with any crime in connection with the kidnapping and sexual assaults of [the victim]." [hereinafter referred to as

"Ground (II)(C)" and "Ground (II)(D)"].

(E) The court "erroneously refused to instruct the jury on [sexual assault's] lesser-included offense of sexual abuse" on Count II because "it was inconclusive whether Wooten or [Petitioner] ever penetrated the victim." (Id.) [hereinafter referred to as"Ground (II)(E)"].

Ground III: Trial counsel rendered ineffective assistance by failing to object to the admission of evidence of the abusive acts that Billy Watson and Rita Anthony committed against the victim on June 9, 2003, outside Petitioner's presence, which he contends prejudiced the jury and led to his convictions and the finding of the aggravating circumstance of especially cruel, heinous, or depraved. (Doc. 1, at 7).

Ground IV: The trial court violated Petitioner's right to a jury trial, due process, and a fair trial, as guaranteed by the Eighth and Fourteenth Amendments, by giving the followinginstructions to the jury:

(A) A reasonable-doubt instruction that contained "firmly convinced" language that allegedly lowered the State's burden of proof impermissibly to "clear and convincing evidence." (Doc. 1, at 8.) [hereinafter referred to as "Ground (IV)(A)"].

(B) A definitional instruction of the "especially cruel, heinous, or depraved" aggravating circumstance, which Petitioner claims to have been "unconstitutionally vague." (Id.) [hereinafter referred to as "Ground (IV)(B)"].

(Doc. 1); (Doc. 12, at 31-33). Respondents to filed an answer and Petitioner filed a reply.

ANALYSIS

A. Standard of Review

A district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). A court need review only those portions objected to by a party, meaning a court can adopt without further review all unobjected to portions. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

The Court's review of the Petition is constrained by 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under the law." Bell v. Cone, 535 U.S. 685, 693 (2002). The § 2254(d) standard is "difficult to meet." Harrington v. Richter, 131 S.Ct. 770, 786 (2011). "Section 2254(d) reflects the view that habeas corpus is a 'guard against extreme malfunction in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Id. (quoting Jackson v. Virginia, 443 U.S. 307 n. 5 (1979)).

Federal habeas corpus relief is only available where the earlier state court's decision "was contrary to" federal law clearly established by the Supreme Court, or "involved an unreasonable application of" such law, or "was based on an unreasonable determination ofthe facts in light of the state court record." 28 U.S.C. § 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. 362, 412 (2000); Richter, 131 S.Ct. at 785. "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.'" Richter, 131 S.Ct. at 786. To make such determinations, federal courts look to the holdings of the Supreme Court at the time of the state court's...