Korelc v. Ryan

• Decision Date: 07 March 2018
• Docket Number: CIV 17-00355-PHX-JJT (MHB)
• Parties: Randall Mark Korelc, Petitioner, v. Charles Ryan, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Randall Mark Korelc, Petitioner, v. Charles Ryan, et al., Respondents.

CIV 17-00355-PHX-JJT (MHB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

March 7, 2018

REPORT AND RECOMMENDATION

TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT COURT:

Petitioner Randall Mark Korelc, who is confined in the Corrections Corporation of America's Red Rock Correctional Center, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 7), and Petitioner has filed a Reply (Doc. 10).

BACKGROUND

On March 11, 2011, Petitioner was convicted in Maricopa County Superior Court, case #2007-172851-001, of second-degree murder. He was sentenced to an 18-year term of imprisonment. The Arizona Court of Appeals described the facts of this case as follows:

¶2 In November 2007, Korelc was living in an apartment with R.G., his girlfriend. Late in the afternoon on November 9, 2007, Korelc drove to the home of his son, C.K., and told him R.G. had "shot herself" and "was dead." Korelc told C.K. she had picked up his gun, pointed it at him, then "turned the gun on herself." When he arrived at C.K.'s home, Korelc had in his hand his pistol, which police later confirmed through ballistics testing fired the shot that killed R.G. Korelc told C.K. he had taken the gun out of R.G.'s hand and left the apartment. C.K. then asked his brother to call the police while he drove Korelc to the apartment.

¶3 A police sergeant who arrived at the apartment testified it was "orderly" and he did not see "any signs of a struggle." When police entered the apartment, they found R.G. dead, sitting on a couch in the living room, with one leg up on the couch and one foot on the floor. R.G. had a single gunshot wound to the right side of her jaw, which the medical examiner testified "would kill somebody instantly." He further testified the crime scene photos "led [him] to believe ... [R.G.] did not move [after she was shot], which goes along with having been shot through the cervical spine and resulting in paralysis." And, the medical examiner and a detective both testified the position of the body, the location and type of wound, and the lack of gunshot residue on the body all negated the possibility of suicide.

¶4 In speaking with police after returning to the apartment, Korelc initially told them R.G. shot herself. When detectives interviewed Korelc later that evening, however, he said he had taken the gun from R.G. and admitted he was holding it four to five feet away from her when it went off.

(Doc. 7, Exh. EE at 2-3.)

On direct appeal, Petitioner raised the following claims: (1) the trial court erred when it allowed the State to introduce other act evidence; (2) the trial court abused its discretion when it precluded Petitioner from calling the murder victim's physicians to testify at trial; and (3) the trial court abused its discretion when it found that his statements to police were voluntary. (Doc. 7, Exh. BB.) The Arizona Court of Appeals rejected Petitioner's claims and affirmed his convictions, (Doc. 7, Exh. EE), and the Arizona Supreme Court denied review, (Doc. 7, Exh. FF).

Petitioner filed a timely notice of post-conviction relief and was appointed counsel. (Doc. 7, Exhs. GG, HH.) Petitioner's counsel, subsequently, filed a "Notice of Completion of Post-Conviction Review by Counsel," indicating she could not find any claims to raise. Counsel also requested additional time for Petitioner to file a pro se PCR petition. (Doc. 7, Exh. II.) Petitioner was granted three extensions of time, and he ultimately filed his PCR petition on September 24, 2013. (Doc. 7, Exhs. JJ-MM.) The trial court struck the petition because it was oversized and Petitioner failed to certify that he had raised all grounds known to him. (Doc. 7, Exh. NN.) Thereafter, Petitioner filed a revised PCR petition, which was accepted by the court. (Doc. 7, Exhs. OO, PP.) After briefing was completed, the trial court denied the PCR petition. (Doc. 7, Exhs. SS.) The court also denied a subsequent request for reconsideration. (Doc. 7, Exhs. TT, UU, WW.) The Arizona Court of Appeals acceptedreview of Petitioner's delayed petition for review, but denied relief. (Doc. 7, Exhs. VV, XX, YY.)

In his habeas petition, Petitioner raises four grounds for relief. In Ground One, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated when the trial court admitted evidence of prior bad acts to demonstrate that Petitioner had a propensity for violence. (Doc. 1 at 6; Doc. 4.) In Ground Two, Petitioner claims that his Fifth, Sixth, and Fourteenth Amendment rights were violated when the trial court precluded the testimony of two expert witnesses that Petitioner wished to call. (Doc. 1 at 7; Doc. 4.) In Ground Three, he alleges that his Fifth and Sixth Amendment rights were violated when the trial court denied his motion to suppress evidence of involuntary statements he made to law enforcement officers. (Doc. 1 at 8; Doc. 4.) In Ground Four, Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated when he received ineffective assistance of counsel. (Doc. 1 at 9; Doc. 4.) According to Petitioner, his counsel's performance was deficient because counsel failed to call certain witnesses and failed to request certain jury instructions. (Doc. 1 at 9; Doc. 4.)

In their Answer, Respondents argue that all of the claims alleged in Petitioner's habeas petition fail on the merits. Respondents additionally contend that Petitioner's Miranda claim alleged in Ground Three is procedurally defaulted.

DISCUSSION

A. Standards of Review

1. Merits

Pursuant to the AEDPA¹, a federal court "shall not" grant habeas relief with respect to "any claim that was adjudicated on the merits in State court proceedings" unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state courtproceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). This standard is "difficult to meet." Harrington v. Richter, 562 U.S. 86, 102 (2011). It is also a "highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted). "When applying these standards, the federal court should review the 'last reasoned decision' by a state court ... ." Robinson, 360 F.3d at 1055.

A state court's decision is "contrary to" clearly established precedent if (1) "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent." Williams, 529 U.S. at 404-05. "A state court's decision can involve an 'unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable." Hernandez v. Small, 282 F.3d 1132, 1142 (9^th Cir. 2002).

2. Exhaustion and Procedural Default

A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9^th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9^th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9^th Cir. 1994).

Proper exhaustion requires a petitioner to have "fairly presented" to the state courts the exact federal claim he raises on habeas by describing the operative facts and federal legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78 (1971) ("[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts."). A claim is only "fairly presented" to the state courts when a petitioner has "alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution." Shumway v. Payne, 223 F.3d 982, 987 (9^th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9^th Cir. 1996) ("If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.").

A "general appeal to a constitutional guarantee," such as due process, is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9^th Cir. 2005) ("Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory."). Similarly, a federal claim is not exhausted merely because its factual basis was presented to the state courts on state law grounds - a "mere similarity between a claim of state and federal error is insufficient to establish exhaustion." Shumway, ...