Hawkins v. Shinn

• Decision Date: 01 July 2022
• Docket Number: CV-21-01299-PHX-DLR (DMF)
• Parties: Arnold Terrell Hawkins, Petitioner, v. David Shinn, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Arnold Terrell Hawkins, Petitioner, v. David Shinn, et al., Respondents.

No. CV-21-01299-PHX-DLR (DMF)

United States District Court, D. Arizona

July 1, 2022

THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE

REPORT AND RECOMMENDATION

Honorable Deborah M. Fine United States Magistrate Judge

This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 5 at 4)^[1]

Petitioner Arnold Terrell Hawkins (“Petitioner”), who is confined in the Arizona State Prison Complex in Florence Arizona, filed a pro se Petition Under 28 U.S.C § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”) on July 23, 2021. (Doc. 1)^[2] On August 6, 2021, the Court ordered Respondents to answer the Petition. (Doc. 5)

Respondents filed their Limited Answer to the Petition on July 2, 2021. (Doc. 7) Petitioner filed his Reply to the Limited Answer on September 23, 2021. (Doc. 8) The Court ordered Respondents to file a supplemental answer addressing the merits of Grounds 2, 5, 6, 8, and 14 of the Petition, as well as the transcripts listed on page three of the Limited Answer (Doc. 7 at 3) for November 4, 5, and 6, 2015, and for February 2, 2016. (Doc. 9) Respondents filed the aforementioned transcripts (Doc. 10) and a Supplemental Answer on March 21, 2022 (Doc. 11). Petitioner filed a Reply to the Supplemental Answer on April 19, 2022. (Doc. 12)

For the reasons set forth below, it is recommended that the Petition be denied and dismissed with prejudice and that a certificate of appealability be denied.

I. BACKGROUND

A. Charged Events

In its memorandum decision on Petitioner's direct appeal of his conviction and sentence, the Arizona Court of Appeals summarized the events leading to the charges, convictions, and sentences in Pinal County Superior Court, case number CR201502452, on which Petitioner's habeas claims are based:

Between May 2012 and September 2013, [Petitioner] engaged in ongoing sexual abuse of his live-in girlfriend's daughter, who turned fifteen in May 2014. He digitally penetrated her, had intercourse with her on at least two occasions, performed oral sex on her, placed his mouth on her breasts, and caused her to touch his penis.

(Doc. 7-1 at 2)^[3]

Petitioner's first jury trial resulted in a juror impasse, leading the presiding judge to declare a mistrial. (Doc. 7-1 at 212) At Petitioner's second trial in November 2015 following a new indictment, the victim's mother testified that she became concerned when she found the victim's bra in the couch and the victim's shorts on the bed that the victim's mother shared with Petitioner. (Doc. 10 at 4, 214-15) After confronting the victim, the victim's mother spoke with a detective in the Casa Grande Police Department, who scheduled the victim for forensic interviews and a medical examination. (Id. at 241-47) In the initial forensic interview the victim claimed that Petitioner had caught her masturbating and had given her a dildo (id. at 191-96), but in a follow-up interview, the victim stated that Petitioner had sex with her (id. at 197-98). At trial, the victim testified that Petitioner had called her after she reported the sexual conduct to her mother, and Petitioner had urged the victim to report that he had caught her masturbating. (Id. at 195) The victim testified that Petitioner had performed various sexual acts with her beginning when she was thirteen years old, including that he massaged the victim's leg and inserted his fingers into her vagina (id. at 179-80), wrapped his penis in plastic wrap before performing sexual intercourse on the victim, hurting the victim (id. at 182-83), asked the victim to place her mouth on his penis, which the victim refused to do (id. at 184), performed oral sex on the victim (id. at 185), asked the victim to touch his penis (id. at 185-86), and had sexual intercourse with the victim on the bed that Petitioner shared with the victim's mother (id. at 186-88). Nurse Jacqueline Hess, who examined the victim, testified that the victim was missing a quarter of her hymen, likely due to blunt force trauma. (Id. at 159)

Petitioner testified in his defense at his first trial, which resulted in a hung jury (Doc. 7-1 at 165, 212), but Petitioner did not testify at his second trial. (Doc. 10 at 386) Petitioner was represented by the same appointed counsel at both trials. (Doc. 7-1 at 174; Doc. 7-2 at 6)

B. Petitioner's Convictions and Sentences

The Arizona Court of Appeals explained that:

[a]fter a jury trial, [Petitioner] was convicted of four counts of sexual conduct with a minor, one count of sexual abuse, and one count of child molestation, all dangerous crimes against children. The trial court sentenced him to concurrent and consecutive prison terms totaling ninety-seven years.

(Doc. 7-1 at 2; see also Doc. 10) Petitioner's sentencing hearing was conducted in the Pinal County Superior Court on February 2, 2016. (Id. at 7-15; Doc. 10 at 463-74)

C. Direct Appeal and Post-Conviction Relief (“PCR”) Action

1. Petitioner's direct appeal

On February 4, 2016, Petitioner's appointed trial counsel filed a timely notice of appeal of Petitioner's judgment and sentence. (Doc. 7-1 at 17-18)^[4] On appeal, Petitioner was represented by different counsel than his trial counsel. (Doc. 7-1 at 20) Appellate counsel for Petitioner filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), advising the court of appeals that counsel was unable to identify any non-frivolous question of law to assert on Petitioner's behalf on appeal. (Id. at 20-28) Appellate counsel wrote that he “advised [Petitioner] about the nature of an Anders brief and the various issues available on direct appeal. [Petitioner did] not intend to file a supplemental brief on his own behalf.” (Id. at 28) Consistent with the representation of his appellate counsel, Petitioner did not file a supplemental brief. (Id. at 4)

In a memorandum decision issued February 13, 2017, the Arizona Court of Appeals reviewed the record for fundamental error and determined that sufficient evidence supported Petitioner's convictions. (Id. at 4-5) The court of appeals modified Petitioner's sentence for sexual abuse, finding that “the trial court incorrectly stated that sentence would be ‘flat time,' but pursuant to § 13-705(F), [Petitioner] is eligible for earned release credits for that count.” (Id.) The court of appeals also corrected Petitioner's sentence insofar as it erroneously stated that Petitioner's consecutive sentences each began at the date of the pronouncement of sentence. (Id. at 5) The court of appeals otherwise affirmed Petitioner's convictions and sentences as modified. (Id.)

Petitioner did not file a petition for review with the Arizona Supreme Court. (Id. at 30)

2. Petitioner's post-conviction relief (“PCR ”) action

Through his appellate counsel, Petitioner timely filed a PCR notice in the superior court on March 22, 2017. (Doc. 7-1 at 34-35) Through different counsel, Petitioner filed his PCR petition on July 13, 2018. (Id. at 37-73)

In his PCR petition, Petitioner argued several claims of ineffective assistance of his trial counsel, including that trial counsel should have questioned the victim's mother about: the victim being messy; the victim's mother's infidelity; inconsistencies in the victim's statements; whether the victim's mother had forced the victim to report Petitioner; and whether the victim's mother believed the victim. (Id. at 40-41) As for trial counsel's cross-examination of the victim, Petitioner argued that counsel should have questioned the victim about: a rash she had on her legs; past lies; her delayed disclosure of allegations; her decision to recant allegations; and her school performance as well as social interactions. (Id. at 42-43) Petitioner also argued that trial counsel should have cross-examined Detective Knauber in more detail, should have cross-examined “cold expert” Dr. Wendy Dutton, and should have introduced evidence of a kidney disorder that made Petitioner impotent or caused erectile dysfunction. (Id. at 43-45)

After the state filed a response (id. at 75-90) and Petitioner filed a reply (id. at 9295), the superior court found “a colorable claim as to at least one issue” and ordered an evidentiary hearing.^[5] (Id. at 97) At the hearing Petitioner's trial counsel, Petitioner's appellate counsel, and Petitioner's sister testified. (Id. at 99-100, 102-90) Petitioner's appellate counsel critiqued Petitioner's trial counsel's cross-examination of the witnesses, including that of Dr. Dutton; testified that he would have requested additional medical records for Petitioner; and testified that trial counsel's opening and closing arguments were insufficient. (Id. at 112-20, 122-32, 135-38, 140-44) Petitioner's sister testified that she told trial counsel about Petitioner's erectile dysfunction and about a conversation in which the victim's mother told Petitioner's sister that she had reported Petitioner to the police detective due to relationship issues. (Id. at 153-54, 157-58) Petitioner's trial counsel testified that her approach to the case was that the victim was lying (id. at 164); that the medical records only indicated kidney disease, not erectile dysfunction (id. at 165); that the first jury hung because Petitioner testified that he had not called the victim (id. At 164-66); that it was best to let witness Dr. Dutton talk and lose the jury (id. at 167); that trial counsel kept her opening statement brief because she could not interview the victim or the victim's mother (id. at 168-69); that trial counsel did not recall Petitioner's sister relaying a conversation with the...