Higdon v. Diaz

• Decision Date: 30 March 2015
• Docket Number: No. CV-11-0821-TUC-FRZ,CV-11-0821-TUC-FRZ
• Parties: David Higdon, Petitioner, v. Tara Diaz, et al., Respondents.
• Court: U.S. District Court — District of Arizona

David Higdon, Petitioner, v. Tara Diaz, et al., Respondents.

No. CV-11-0821-TUC-FRZ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

March 30, 2015

ORDER

On February 20, 2011, Petitioner David Higdon, who is confined in the Arizona State Prison Complex-Lewis, Buckeye, Arizona, filed his Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 (Non-Death Penalty) ("Petition") (Doc. 1). On April 27, 2012, Respondents filed their Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 12). Petitioner subsequently filed his Traverse re: State Prisoner Habeas Petition (Doc. 23). The Petition is ripe for adjudication.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Arizona Court of Appeals stated the facts¹ as follows:

In the early morning hours of June 12, 2002, a stranger found the victim, P., lying on the ground, having been severely beaten; his shoes, watch, keys, and identification were missing. P. died shortly thereafter from "cranial cerebral injuries due to blunt force injuries of the head." The autopsy revealed fifty-one different injury sites on P.'s body, some of which had been caused by a "slender object," consistent with a baseball bat.

Katie Farabaugh, a friend of Higdon's, told police during a videotaped interview[1] that was played for the jury that she and Higdon had been "cruising" in his truck when they met P. early in the morning on June 12, 2002, and that Higdon had invited P. to smoke marijuana with him. Katie remained in the cab of the truck while P. and Higdon smoked in the bed of the truck. The truck then began shaking, and Katie saw Higdon hitting P. on the side of the head with a baseball bat and kicking him in the face. P. screamed for Higdon to stop and attempted to run away from Higdon, who chased him and continued to beat him with the bat. Katie added that she guessed Higdon may have attacked P. because he "was gay," a fact that was undisputed at trial. Katie also stated that, after the incident, Higdon had cut out articles from the newspaper about the killing and had left them, along with P.'s personal belongings, at his father's home where he was staying at the time. Upon searching the home and the yard behind it, police officers found P.'s driver's license, his obituary, and other news articles describing the murder, as well as his key chain, keys, shorts, shoes, socks, watch, glasses, and a baseball bat. The shorts, shoes, socks, watch, and bat all contained P.'s blood.

[1] Although Katie provided various versions of the events leading to P.'s death, this version, along with another similar one, was presented to the jury, as well as her confession to Higdon's former attorney that she had killed P. and her subsequent recantation of that admission.

Answer (Doc. 12), Ct. App. Mem. Decision 5/25/2006 (Exh. "A") at ¶¶ 2-3.

A jury convicted David A. Higdon of "first-degree murder and armed robbery." Id. at ¶ 1; see also Answer (Doc. 12) Hr'g Tr. 1/27/2005 (Exh. "N") 9:25-10:21. Petitioner was sentenced "to natural life in prison for the murder conviction and to a concurrent, 15.75-year presumptive term for the armed robbery conviction." Answer (Doc. 12), Exh. "A" at ¶ 1; see also Answer (Doc. 12), Hr'g Tr. 3/28/2005 (Exh. "P") 43:12-45:21.

A. Direct Appeal

Petitioner appealed his convictions to the Arizona Court of Appeals, raising the single claim that the trial court erred in admitting evidence regarding Petitioner's actions while incarcerated in the Pima County Jail, as well as evidence regarding skinheads in generall,because it was improper other acts evidence used to show Petitioner's bad character, and its prejudice outweighed its probative value. Answer (Doc. 12), Appellant's Opening Brief (Exh. "Q") at 13-16.

On May 25, 2006, the Arizona Court of Appeals affirmed Petitioner's convictions. See Answer (Doc. 12), Exh. "A." The Arizona Court of Appeals found that "the [trial] court did not err in refusing to exclude the evidence either [Rule 403 or Rule 404(b), Arizona Rules of Evidence]." Id. at ¶ 9. Furthermore, "[t]he trial court found the evidence relevant, admitted it for a purpose other than proving Higdon's criminal propensity in this matter, and correctly noted that it was up to the jury to assess the 'motivation behind' and the 'truthfulness' of the evidence." Id. The Arizona Court of Appeals also noted that "the evidence was clearly admissible under 404(b) to show motive and identification" and the trial court gave the jury a limiting instruction. Id. at ¶¶ 9-10.

On June 26, 2006, Petitioner filed his Petition for Review by the Arizona Supreme Court. Answer (Doc. 12), Exh. "R." On February 8, 2007, Petitioner's petition for review was denied by the Arizona Supreme Court without comment. See Answer (Doc. 12), Ariz. Supreme Ct. Minutes 2/8/2007 (Exh. "S").

B. Post-Conviction Relief Proceeding

On April 26, 2007, Petitioner filed his Notice of Post-Conviction Relief. Answer (Doc. 12), Exh. "T." On May 1, 2009, Petitioner filed a Partial Petition for Post-Conviction Relief. Answer (Doc. 12), Exh. "U." Petitioner claimed, inter alia, that 1) his "rights to due process, fair trial, confrontation, and assistance of counsel were violated by prosecutorial misconduct and Strickland error relating to Thompson; 2) his rights to due process and a fair trial were violated because the prosecution introduced misleading or foundationless evidence regarding the line of sight between cells 21/28 and trial counsel was ineffective regarding the same; 3) trial counsel was ineffective by failing to challenge premeditation; 4) insufficient evidence supported Petitioner's felony murder conviction and trial counsel was ineffective regarding the same violating Petitioner's right to due process and counsel; 5) trial counsel was ineffective regarding Petitioner's "mere presence" and Farabaugh's allegedresponsibility; 6) trial counsel was ineffective by failing to object to various arguments made by the prosecution; 7) trial counsel's failure to investigate and impeach Leyden's testimony regarding skinhead culture violated Petitioner's right to a fair trial and confrontation and rendered counsel's assistance ineffective; 8) ineffective assistance of counsel based on trial counsel's failure to adequately challenge aggravating factors in sentencing; 9) ineffective assistance of counsel based on trial counsel's failure to present "more and better mitigation" and obtain a more lenient sentence; and 10) ineffective assistance of appellate counsel. Answer (Doc. 12), Exh. "U."

On August 6, 2009, the trial court dismissed Petitioner's post-conviction relief petition. See Answer (Doc. 12), In Chambers Ruling, Re: Pet. for PCR 8/6/2009 (Exh. "O"). As an initial matter, the court found that all of Petitioner's prosecutorial misconduct claims, as well as his claims regarding the sufficiency of the evidence to support his first-degree murder conviction on a felony murder theory, and whether the trial court erred when it determined that Farabaugh was unavailable to testify and allowed the State to play her videotaped deposition were precluded pursuant to Rule 32.2(a), Arizona Rules of Criminal Procedure, because Petitioner failed to raise them on direct appeal. Id. at 4. The trial court also noted that Petitioner's claim regarding insufficiency of the evidence to support the jury's finding of guilt on the first-degree murder charge based on a theory of felony murder lacks merit, because the jury's finding of guilt was based on both premeditation and felony murder, and as such even if the evidence was insufficient with regard to felony murder Petitioner did not suffer any prejudice. Id. The trial court also noted it devoted an entire hearing to whether Farabaugh would invoke her right to remain silent and whether this must occur before the jury, and reviewed its previous orders and confirmed the sound reasoning therein. Id.

The court analyzed Petitioner's claims of newly discovered evidence as witnesses Marshall Thompson and Thomas Leyden pursuant to State v. Saenz, 197 Ariz. 487, 489, 4 P.3d 1030, 1032 (Ct. App. 2000) and Rule 32.1(e), Arizona Rules of Criminal Procedure. Answer (Doc. 12), Exh. "O" at 5-6. Regarding Thompson's pre-sentence reports andPetitioner's claim that Leyden "may" have committed perjury based on a CNN interview, the court found that Petitioner "failed to meet his burden of showing by a preponderance of the evidence that any of his new claims based on the existence of newly-discovered evidence are colorable." Id. at 6. The court further stated that Petitioner "failed to raise a material issue of fact or law which would entitle him to an evidentiary hearing on this basis." Id.

The court delineated the standard for ineffective assistance of counsel as follows: [Petitioner] must show that counsel's performance fell below objectively reasonable standards, and that this poor performance prejudiced him." Id. at 7 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); State v. Jackson, 209 Ariz. 13, 14, 97 P.3d 113, 114 (2005); State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985)). The court noted that Thompson's pre-sentence reports were inadmissible hearsay and his juvenile records were also inadmissible. Id. at 8. The court further found that Petitioner's claim that "Thompson was granted 'tacit transactional immunity,' as well as his claim that "Thompson lied about the amount of time he faced in his pending cases[,]" were baseless, and "that trial counsel's efforts to impeach Thompson were more than adequate." Answer (Doc. 12), Exh. "O" at 8-9. The court found that counsel argued "that Thompson was less credible because the sentencing hearing in his pending case was continued until after he testified against the Petitioner." Id. at 10. Accordingly, "[b]ecause counsel advanced the exact argument proposed by the Petitioner, [the] [c]ourt finds that he has failed to show that her representation was substandard or that he...