Hauss v. Shinn

Decision Date18 November 2022
Docket NumberCV-20-0097-TUC-JGZ (EJM)
PartiesGeorge M. Hauss, Petitioner, v. David Shinn, et al., Respondents.
CourtU.S. District Court — District of Arizona

George M. Hauss, Petitioner,
v.
David Shinn, et al., Respondents.

No. CV-20-0097-TUC-JGZ (EJM)

United States District Court, D. Arizona

November 18, 2022


REPORT AND RECOMMENDATION

Eric J. Markovich United States Magistrate Judge

Currently pending before the Court is Petitioner George M. Hauss's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (“Petition”) (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 9) and Petitioner replied (Doc. 10). The Petition is ripe for adjudication.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,[1] this matter was referred to Magistrate Judge Markovich for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1) as untimely.

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I. FACTUAL AND PROCEDURAL BACKGROUND

A. Initial Charge, Trial, and Sentencing

The Arizona Court of Appeals stated the facts[2] as follows:

[I]n the early morning hours between December 1980 and September 1981, [Hauss] broke into the homes of ten different female victims in Tucson and terrorized them. His case became widely known as the “foot fetish” case since in almost every instance, as part of the ritual activity appellant, kissed, fondled and/or masturbated against the victims' feet. He usually used lotion and often put stockings and or shoes on the women's feet. The weapon used in the dangerous counts was a knife. The victims were bound and gagged, usually with socks or stockings. Only one victim positively identified [Hauss] with a composite drawing, in a photo lineup and in court. Other victim identifications were consistent with [Hauss's] general appearance. [Hauss] was tied to each of the crimes by various pieces of evidence. For example, he left his tennis shoe footprints outside several of the crime scenes. The footprints were even traced to and from [Hauss's] apartment and the residence of the last victim. Tennis shoes seized from [Hauss's] residence matched these footprints Also found in [Hauss's] apartment were items taken from the victims' residences including keys, jewelry and stereo equipment. [Hauss] sold one victim's tape recorder to his co-worker. He sold another victim's rare Russian 100 ruble coin to a coin dealer and signed a receipt for it He still had a copy of this receipt on him in his possession when he was arrested. Some victims had described their attacker as wearing red shorts with white stripes. Such shorts were seized from [Hauss's] residence. [Hauss] also left his fingerprints inside or at the points of entry to several of the crime scenes. Hair analysis and analysis of semen stains were consistent with [Hauss] having been the attacker in various cases.
Other facts also tied the incidents together. For example, [Hauss] had disabled the telephone in several of the residences, and usually carried a flashlight to help him rummage around. He invariably asked for food, money and valuables and attempted to disguise his identity by changing his voice, pretending to be unfamiliar with the area, or making derogatory comments about white people. There were also indications that he had watched the victims and knew that they were living alone or with only their minor
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children or a female roommate. Furthermore, in a conversation which was taped by the police, [Hauss] admitted to his girlfriend that he did touch the feet of these women but denied that he had ever raped any of them.

State v. Hauss, 688 P.2d 1051, 1053 (Ariz.Ct.App. 1984). Petitioner “was convicted, by a jury, of three counts of second-degree burglary, class 3; one count of aggravated assault, class 6; nine counts of kidnapping, class 2; five counts of sexual abuse, class 5; three counts of sexual assault, class 2; six counts of first-degree burglary, class 2; and one count of attempted sexual abuse, class 6.” Id. at 1052-53. “Some of the crimes were found to be repetitive and dangerous and [Petitioner] was given aggravated, concurrent sentences on the first group of crimes which range[d] from 1.875 years to 35 years in prison.” Id. at 1053. “The sentences on the second group of crimes range[d] as high as 35 years in prison, [and] were concurrent with each other, but consecutive to the sentences imposed for the first group of crimes. Id. On August 27, 1982, Petitioner's sentence was imposed and totaled seventy (70) years imprisonment. Petition (Doc. 1) at 1.

B. Direct Appeal

Petitioner filed a direct appeal “contending] that the trial court erred by (1) admitting into evidence a taped statement between [Hauss] and his girlfriend in violation of [Hauss's] rights under the United States Constitution, the Arizona Constitution and federal law; (2) failing to grant a mistrial when the state referred in closing argument to evidence which had been excluded by the trial court; (3) failing to grant [Hauss's] motion for directed verdict for the failure of the state to prove that [Hauss] was not the spouse of the alleged victims; (4) allowing L.K. to identify [Hauss] as the perpretrator [sic] of the assault against her, and (5) denying him a fair trial due to the state's failure to adequately preserve evidence which may have been exculpatory in nature.” State v. Hauss, 688 P.2d 1051, 1053 (Ariz.Ct.App. 1984). On May 24, 1984, the Arizona Court of Appeals affirmed Petitioner's convictions and sentence. See id.

The court of appeals addressed each of these allegations in turn. See id. Petitioner claimed that the trial court erred in denying his motion to suppress the tape recording. Id. at 1053-54. The appellate court observed that:

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[The] facts show that after being arrested and transported to the police station, [Hauss] was placed in an interview room. One of the officers, Sergeant Johnson, related some of the evidence against appellant and gave him his Miranda warnings. Appellant stated he would discuss the crimes with the police if they would first let him speak with his live-in girlfriend. The police agreed and allowed appellant to telephone her. When she arrived, she was escorted to the interview room. Johnson told her he did not want any “funny business”, and did not want her to pass a weapon or anything else to appellant. He told her that the room was being monitored, and she replied either “OK” or “All right”. . . . Appellant and his girlfriend were left alone in the room. The tape recording reveals that they whispered during part of their conversation.

Id. at 1054. The appellate court agreed with the trial court's findings that “(1) The girlfriend was aware the conversation would be monitored and impliedly consented to the recording; (2) she was not an agent of the state; (3) there was no government interrogation nor were the statements elicited by a functional equivalent of governmental interrogation nor government conduct; (4) the monitoring was a reasonable means of maintaining security at the police station; (5) any expectation of privacy was outweighed by the need to maintain security; [and] (6) the statements were not obtained in violation of any constitution or statute.” Hauss, 688 P.2d at 1054. The appellate court concluded that “[once] the government establishes that its intrusion is for a justifiable purpose of imprisonment or prison security, the Fourth Amendment question is essentially resolved in its favor.” Id. at 1055 (citing United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977)). Regarding Petitioner's contention that the tape recording was a violation of federal wiretap law, the appellate court concluded that “[i]t [wa]s clear that the tape recording did not constitute a wire communication within the meaning of the act, since it involved no facility furnished or operated by a common carrier[,] . . . [and] the conversation was outside the statutory definition of ‘oral communication' since there was no reasonable expectation of privacy in a situation such as this[.]” Id. at 1056 (citations omitted). The appellate court reiterated its finding that Hauss and his girlfriend could not have had a reasonable expectation of privacy in the interview room, and held that there was no violation of

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Arizona state law. Id. Regarding Hauss's constitutional claims, the appellate court further found that because his girlfriend was not an agent of the state, and there was no interrogation by her, Hauss's rights to remain silent and be free of self-incrimination were not violated. Id. Because Hauss had not been charged, the appellate court held that his Sixth Amendment right to counsel had not attached. Hauss, 688 P.2d at 1056 (citing State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1981)). Additionally, the appellate court determined that his confrontation rights were not violated, because Hauss's girlfriend's “statements on tape were not offered for the truth of any material fact asserted[,] [t]hey were merely offered to show that they were spoken.” Id. at 1056-57.

Next, the appellate court considered the prosecutor's reference to the transcript of Hauss and his girlfriend's tape recorded conversation. Id. at 1057. “During the trial the state sought to introduce into evidence not only the tape recording but also the state-prepared transcript of that conversation[,] [but] [t]he trial court ruled that the transcript of the conversation would not be admitted into evidence.” Id. Petitioner's counsel moved for a mistrial at the close of the prosecution's closing argument because the prosecutor referenced the transcript, and such reliance was improper and prejudicial. Id. The trial court denied the motion for mistrial. Hauss, 688 P.2d at 1057. The appellate court upheld the trial court's ruling that “for all the jury knew, [the prosecutor] had been reading from her notes, and since the jurors were instructed that statements of counsel were not...

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