Nevarez v. Ryan, CV-13-2286-PHX-DLR (JFM)

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
PartiesRuben Nevarez, Petitioner v. Charles L. Ryan, et al., Respondents.
Docket NumberCV-13-2286-PHX-DLR (JFM)
Decision Date05 December 2014

Ruben Nevarez, Petitioner
Charles L. Ryan, et al., Respondents.

CV-13-2286-PHX-DLR (JFM)


December 5, 2014

Report & Recommendation on Petition for Writ of Habeas Corpus


Petitioner, presently incarcerated in the Arizona State Prison Complex at Tucson, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 7, 2013 (Doc. 1). Respondents filed a Limited Response (Doc. 13) on April 1, 2014, a Supplement to the Record (Doc. 15) on April 17, 2014, and a Supplemental Response (Doc. 21) on October 2, 2014. Petitioner filed a Reply on April 21, 2014 (Doc. 16) and a Supplemental Reply (Doc. 22) on October 23, 2014.

The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.



In disposing of Petitioner's direct appeal, the Arizona Court of Appeals described the factual background as follows:

Nevarez's convictions stem from two armed robberies committed on

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the same day. Nevarez was one of three suspects apprehended by the police shortly after the second robbery. The police brought the victims individually to where the suspects were in custody to determine whether they were the robbers. One of the victims, J. L., identified Nevarez as having participated in the robbery.

(Exhibit BB, Mem. Dec. at 2.) (Exhibits to the Supplemental Response, Doc. 21, are referenced herein as "Exhibit ___." Exhibits to the Limited Response, Doc. 13, are referenced herein as Exhibit LR-___.")1


Petitioner was indicted in Maricopa County Superior Court on five counts of armed robbery, and five counts of aggravated assault. (Exhibit X, Indictment.)

Counsel filed a request for a hearing to determine the suggestiveness of the pre-trial identification procedures (a "Dessureault hearing"),2 which was held on November 6, 2009. (Exhibit LR-O, Motion; Exhibit A, R.T. 11/6/09.) "Although Nevarez's Dessureault motion focused on the out-of-court show-up identifications in general, the testimony at the hearing focused solely on J.L.'s identification of Nevarez." (Exhibit BB, Mem. Dec. at 3, n. 1.) The trial court found that the identification was not unduly suggestive. (Id. at 3; Exhibit A, R.T., 11/6/096 at 28.)

Trial proceeded, and during the direct ·examination of J. L., the prosecutor showed him three pictures: one of Nevarez and one of each of the other co-defendants. On cross examination, when J. L. was asked whether the prosecutor had spoken to him before his testimony about the pictures., J . L. answered affirmatively. J.L. testified that the prosecutor had asked whether he remembered the faces of the people who robbed him. J. L. was then asked "Did [the prosecutor] tell you that these were the people that robbed you?" to which J.L. responded, "[y]es." The prosecutor clarified there may have been an issue with the phrasing or interpretation of the question.

(Exhibit BB, Mem. Dec. at 4.) Petitioner moved to strike the in-court identification, but

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he trial court denied the motion. (Id. at 5.)

Petitioner proceeded through the jury trial, and was convicted on four of the five counts of armed robbery, and two counts of aggravated assault. (Exhibit BB, Mem. Dec. at 2.) On February 26, 2010, Petitioner was sentenced to a combined total of 11 years in prison. (Exhibit LR-I, Sentence.)


Petitioner filed a direct appeal, challenging the pre-trial identification procedure, the in-court identification, and the amount of pretrial incarceration credit. (Exhibit Y, Opening Brief.) The Arizona Court of Appeals modified the amount of pretrial incarceration credit, but otherwise affirmed his convictions and sentences. (Exhibit BB, Mem. Dec. at 13.)

Petitioner filed a Petition for Review with the Arizona Supreme Court (Exhibit CC). The Arizona Supreme Court denied review on September 27, 2011. (Exhibit BB, Mandate.)


On October 6, 2011, Petitioner filed a Notice of Post-Conviction Relief (Exhibit DD). Counsel was appointed, but filed a "Notice of Completion" (Exhibit EE) evidencing an inability to find a claim for review, and seeking leave and extension for Petitioner to file a pro per petition. On January 23, 2012, Petitioner filed a pro per Petition for Post-Conviction Relief (Exhibit FF), asserting claims of: (1) unconstitutional search and seizure; (2) unconstitutional use of perjured testimony; (3) improper sentence and sentencing procedures; (4) unduly prejudicial evidence; (5) false testimony to the grand jury; (6) failure of the victim to testify in violation of the Confrontation Clause; and (7) improper conviction of two offenses based on same conduct with a weapon. In addition, Petitioner asserted claims of ineffective assistance of counsel based upon: (1) failure to adequately investigate; (2) failure to file a motion to suppress; and (3) failure to

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permit Petitioner to testify at trial.

The PCR court found that the first seven claims were precluded under Arizona law because they "either were, or could have been previously litigated." (Exhibit II, M.E. 4/8/12 at 2.)3 The PCR court rejected the claims of ineffective assistance on their merits, and summarily dismissed them with the remainder of the Petition. (Id. at 2-3.)

Petitioner filed a Petition for Review (Exhibit LL), rearguing his claims of ineffective assistance of trial counsel, and asserting that his claims were improperly precluded because he had asserted them as instances of ineffective assistance of appellate and PCR counsel. The Arizona Court of Appeals summarily denied review. (Exhibit NN, Order 10/3/13.)

Petitioner did not seek further review. (Petition, Doc. 1 at 5.)


Petition - Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 7, 2013 (Doc. 1). Petitioner's Petition asserts the following eight grounds for relief, based on his Fifth, Sixth, and Fourteenth Amendment rights::

(1) The "one-on-one" identification, apparently of Petitioner by a victim, was "inherently suggestive," and the state failed to meet its burden that the identification was reliable;
(2) Prosecutorial misconduct resulted in a victim's in-court identification of Petitioner, and the trial court abused its discretion in denying a defense motion to strike the identification;
(3) Evidence from an unconstitutional search and seizure of Petitioner's vehicle was introduced at trial;
(4) Petitioner's trial counsel was ineffective by failing to conduct a pre-trial investigation and appellate counsel was ineffective for failing "to litigate claims that would better help Petitioner on appellate level";
(5) Petitioner's indictment was based on "false and misleading testimony" by an officer;
(6) "Unduly prejudicial evidence was admitted in violation of Evidence Rule 403";
(7) Petitioner was improperly convicted of armed robbery and aggravated assault "based on the same conduct with a weapon";
(8) Petitioner's rights under the Confrontation Clause were violated

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when a victim failed to show up in court to testify and to be cross examined by the defense attorney.

(Order 1/2/14, Doc. 4 at 2.)

Response - On April 1, 2014, Respondents filed their Response ("Answer") (Doc. 13). Respondents argue that Petitioner has procedurally defaulted his state remedies on the claims in: (1) Grounds 2(a) (prosecutorial misconduct re in-court identification) (id. at 15-16); (2) Ground 4(b) (ineffective assistance of appellate counsel re failure to litigate claims) (id. at 16-17); (3) Ground 3 (unconstitutional search and seizure); (4) Ground 5 (false testimony at grand jury); (5) Ground Six (unduly prejudicial evidence); (6) Ground 7 (dual convictions on same weapons conduct); (7) Ground 8 (Confrontation Clause) (id. at 17-19). Respondents further argue that the following grounds are without merit: (1) Ground 1 (pretrial identification) (id. at 22-31); (2) Ground 2(b) (in-court identification) (id. at 31-36); (3) Ground 4(a) (ineffective assistance of trial counsel) (id. at 36-40).

Supplement to Record - In an Order filed April 3, 2014 (Doc. 14), the Court directed Respondents to supplement the record with briefs in the appellate and PCR proceeding. On April 17, 2014, Respondents complied, and submitted Exhibts SE-A through SE-D (Doc. 15).

Reply - On April 21, 2014, Petitioner filed a Reply (Doc. 16). Petitioner argues: (1) that the allegations of the petition should be taken as true for purposes of summary dismissal (id. at 2-3); (2) he fairly presented on direct appeal his claims concerning the pretrial identification (Ground One) and the in-court identification (Ground Two) (id. at 4-6); (3) he failed to presented his claims in his PCR proceeding (id. at 6-7); (4) the ineffective assistance of PCR counsel is cause to excuse his procedural defaults, citing Martinez v. Ryan, 566 U.S. - - - (2012) (Reply, Doc, 16 at 7); and (5) his claim in Ground 5 (unduly prejudicial evidence) affects "a number of due process and other federal constitutional rules" (id. at 7-8).

Supplemental Answer - On August 12, 2014, the Court advised the parties that a tentative conclusion had been reached that Petitioner's claims in Grounds 3, 5, 6, 7, and

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8 were not procedurally barred as argued by Respondents, and directed a supplemental response on the merits of those claims. (Order, Doc. 18.)

On October 2, 2014, Respondents filed their Supplemental Response (Doc. 21). Respondents argue that: (1) the claim in Ground Three was waived at trial, is non-cognizable, and is without merit (id. at 6-10); (2)...

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