James v. Shinn

• Decision Date: 26 April 2023
• Docket Number: CV-21-0091-TUC-JCH (EJM)
• Parties: Terry Dale James, Petitioner, v. David Shinn, et al. Respondents.
• Court: U.S. District Court — District of Arizona

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Terry Dale James, Petitioner, v. David Shinn, et al. Respondents.

No. CV-21-0091-TUC-JCH (EJM)

United States District Court, D. Arizona

April 26, 2023

REPORT AND RECOMMENDATION

Eric J. Markovich United States Magistrate Judge

Currently pending before the Court is Petitioner Terry Dale James's pro se Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Amended Petition”) (Doc 6). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 21), and Petitioner has replied (Doc. 24). The Amended Petition (Doc 6) 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 dismiss the Amended Petition (Doc.6).

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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:

In 2014, James was charged in Pima County with two offenses arising from a single episode against T.H., his step-granddaughter, at some point between 2002 and 2007. T.H. was born in 1997, and she was between six and ten years old at the time of the incident. Count one alleged James had committed child molestation by touching her vulva with his finger; count two alleged sexual conduct with a minor based on him licking her vulva.

Before trial, the state sought to introduce evidence of other sex acts James had committed against T.H. around the same period of time. Those acts had been reported to, and investigated by, police in Mesa in 2006. Because T.H. was reluctant to participate in that investigation, no charges were brought in that jurisdiction. The state further sought to introduce evidence of various sex offenses James had committed against his stepdaughter A.H., who is T.H.'s mother, when she was a child in the 1980s. Those acts against A.H. had resulted in James pleading guilty to attempted sexual abuse.

James opposed the state's motion and requested an evidentiary hearing in which A.H. and T.H. would testify and be subject to crossexamination. He asserted, inter alia, that without such testimony the trial court could not find he had committed the other acts by clear and convincing evidence.

After hearing argument on the motion, the trial court denied James's requested hearing. The court then ruled the other-act evidence admissible under Rule 404(c) and made the findings required by that provision. The court based its ruling on “the documents that the State submitted as an offer of proof.”[2] James had referred to several of those documents during the hearing, and he made no objection based on a lack of disclosure. With two exceptions, however, those materials were never entered into the trial court's record.[3]

At trial, A.H. testified that, from the time she was about seven years old until she was sixteen, James “would fondle [her] . . . fondle [her] vagina . . . grab [her] breast . . . try to lick [her] . . . [and] take pictures of [her].” A.H. further testified that James had been convicted based on those acts. As to the Mesa incidents, T.H. testified James had touched and licked her vagina, he had rubbed his penis against her vagina on three separate occasions, and he had taken photographs of her vagina.

With regard to the charged offenses in Pima County, T.H. testified that James had told her parents he was taking her to a store in his pickup truck. He then drove her to a remote area in the desert, stopped the truck, removed her pants, licked her vagina, and touched it with his finger. In a recorded telephone conversation or “confrontation call” from 2014 admitted at trial, James apologized to T.H. for touching and licking her vagina when she was younger. He also apologized when she stated he had done “it” to her “every time” she had visited him.

When T.H. asked why he had acted this way, James explained he was sexually attracted to young girls and he found it difficult to control his impulses around them. He acknowledged he had been similarly attracted to T.H.'s mother when she was a child and, as a result, he had been convicted as a sex offender for “messing around” with her. The record of conviction the state entered into evidence showed that James had pleaded guilty in 1991 to attempted sexual abuse committed against A.H. in 1989.

[2] According to the trial court's remarks at the hearing, it had “read” T.H.'s statements in a forensic interview regarding the present offenses, a transcript of T.H.'s “confrontation call” with James, an interview between A.H. and a detective in this matter, police reports regarding the crimes against A.H., documents related to his conviction for that abuse, and police reports regarding the Mesa offenses against T.H.

[3] The parties acknowledge that a record of James's prior conviction was later admitted into evidence, and the audio recording of the telephone call between T.H. and James was admitted at trial, but not the transcript of it.

State v. James, 393 P.3d 467, 469-70 (Ariz.Ct.App. 2017) (alterations in original except for footnote notations).

Following a jury trial, Petitioner was found guilty of child molestation and sexual conduct with a minor under the age of twelve. Id. at 469. Petitioner was sentenced to enhanced, consecutive sentences with imprisonment in the Arizona Department of Corrections of twenty-one (21) years for the child molestation conviction and life with the possibility of release after thirty-five years for the sexual conduct with a minor under the age of twelve conviction. Id.

B. Direct Appeal

On July 7, 2016, counsel for Petitioner filed an Opening Brief asserting three (3) issues for review. Answer (Doc. 21), Appellant's Opening Br., State v. James, No. 2 CA-CR 2015-0447 (Ariz.Ct.App. July 7, 2016) (Exh. “B”) (Doc. 21-1). First, Petitioner asserted that the trial court erred when it admitted evidence of “multiple acts of uncharged, aberrant sexual propensity acts under Rule 404(c) . . . based on the prosecutor's submission of secret, outside-the-record materials, and after refusing to hold a hearing at which Appellant could challenge the State's documentary evidence and cross-examine the State's witnesses.” Id., Exh. “B” at 23, 28-45.^[3] Petitioner challenged the trial court's admission of other-act evidence under Rule 404(c), Arizona Rules of Evidence, which permits propensity evidence in sexual offense prosecutions. Id., Exh. “B” at 33. Petitioner asserted that:

A trial court may admit Rule 404(c) evidence only if it first finds that: (1) clear and convincing evidence shows that the evidence is sufficient to permit the trier of fact to find that the defendant committed the other act, see State v. Terrazas, 189 Ariz. 580, 582, 944 P.2d 1194, 1996 (1997); (2) the commission of the other act provides a reasonable basis to infer that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the crime charged; and (3) the evidentiary value of proof of the other act is not substantially outweighed by danger of unfair prejudice, confusion of issues, or other factors mentioned in Rule 403. Ariz. R. Evid. 404(c)(1)(A)-(C).

Answer (Doc. 21), Exh. “B” at 34. Relying on State v. Aguilar, 97 P.3d 865 (Ariz. 2004), Petitioner argued that “due to the guilty-verdict-compelling nature of 404(c) evidence, the threshold admissibility of contested 404(c) evidence must be demonstrated by clear and convincing evidence at a pretrial hearing based on live witness testimony or former witness testimony, subject to cross examination, with a sufficient record to permit effective appellate review.” Answer (Doc. 21), Exh. “B” at 36 (citing State v. Williams, 526 P.2d 714, 716-17 (Ariz. 1974)).

Petitioner urged that “[t]he trial court abused its discretion . . . in refusing Appellant's request for live testimony and cross-examination of the State's 404(c) witnesses.” Answer (Doc. 21), Appellant's Opening Br. at 36, State v. James, No. 2 CA-CR 2015-0447 (Ariz.Ct.App. July 7, 2016) (Exh. “B”) (Doc 21-1). Petitioner further argued that “the trial court . . . abused its discretion in basing its decision [to admit the 404(c) evidence] on unidentified ‘police reports' and ‘witness statements' in lieu of the live testimony and opportunity for cross-examination repeatedly requested by defense counsel.” Id., Exh. “B” at 37 (citing Merlina v. Jejna, 90 P.3d 202, 204 (Ariz.Ct.App. 2004); then citing State v. Garza, 962 P.2d 898, 902 (Ariz. 1998)). Petitioner acknowledged that subsequent to Aguilar, the Arizona Court of Appeals “held that live testimony or prior testimony is not an absolute prerequisite for the clear and convincing evidence threshold of admissibility required by Rule 404(c).” Answer (Doc. 21), Exh. “B” at 37 (citing State v. LeBrun, 213 P.3d 332 (Ariz.Ct.App. 2009)). Petitioner contended, however, that LeBrun was wrongly decided and urged the court not to follow it. Answer (Doc. 21), Exh. “B” at 37-38. Petitioner further asserted that even if the court found LeBrun to be good law, it is distinguishable because 1) there were no constitutional arguments made to the trial court, whereas Petitioner “specifically argued he was entitled to evidence brought through cross-examinable witnesses because of his constitutional rights to due process of law and the Sixth Amendment's confrontation clause”; 2) the LeBrun court “relied on audio and video recordings of statements by the victims in concluding that clear and convincing evidence existed to support a finding that defendant committed the offenses”; and 3) in LeBrun “there was no material issue of fact as to the nature of the...