Olmos v. Ryan

• Decision Date: 24 June 2013
• Docket Number: No. CV-11-00344-PHX-GMS,CV-11-00344-PHX-GMS
• Parties: Timothy Paul Olmos, Plaintiff, v. Charles L. Ryan, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Timothy Paul Olmos, Plaintiff,

v.Charles L. Ryan, et al., Defendants.

No. CV-11-00344-PHX-GMS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dated: June 24, 2013

ORDER

Pending before this Court is a Petition for Writ of Habeas Corpus filed by Petitioner Timothy Paul Olmos. (Doc. 1.) Magistrate Judge Bridget S. Bade has issued a Report and Recommendation ("R & R") in which she recommended that the Court deny the petition with prejudice; Solis has objected to the R & R. (Docs. 67, 75.) Because objections have been filed, the Court will review the petition de novo. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). For the following reasons, the Court accepts the R&R in large part, with slight modifications, denies the petition in part, and refers this case back to Magistrate Judge Bade. See 28 U.S.C. § 636(b)(1) (stating that the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate"); Fed. R. Civ. P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.").

BACKGROUND

Olmos was indicted on one count of child molestation, one count of sexual conduct with a minor, and one count of sexual abuse in Maricopa County Superior Courton August 20, 2004. (Doc. 40-1, Ex. A.) With each count, the State alleged that Olmos had committed a dangerous crime against children. (Id.) After all the evidence was presented, the jury came back on February 25, 2005, with a verdict of guilty on the charges of child molestation and sexual abuse, but were unable to arrive at a verdict on the charge of sexual conduct with a minor.¹ (Id., Ex. C.) The trial court imposed a mitigated 15-year prison sentence, placed Olmos on lifetime probation, and required him to register as a sex offender. (Doc. 40-4, Exs. E, F.)

Olmos appealed. With the aid of counsel, he raised the following issues before the Arizona Court of Appeals: (1) the trial court lacked jurisdiction to hear the case because it allowed testimony on evidence of other sexual contact between Olmos and the victim that was not presented to the grand jury; (2) the trial court should have granted a mistrial on the same basis; (3) the sexual abuse charge was duplicitous; (4) the trial court erred by not continuing sentencing to allow further investigation; (5) the sentence of 15-year imprisonment and lifetime probation constituted cruel and unusual punishment under the Eighth Amendment; (6) there were discrepancies between the trial transcript and the minute entry regarding the lifetime probation sentence. (Doc. 40-5, Ex. H.) In a memorandum decision filed on August 17, 2006, the Arizona Court of Appeals rejected all of Olmos's substantive claims, but corrected the minor discrepancy regarding the probationary sentence. (Doc. 40-4, Ex. G.) The Arizona and United States Supreme Courts denied review. (Doc. 40-5, Ex. I.)

On March 8, 2007, Olmos filed his first petition for post-conviction relief ("PCR 1") in Maricopa County Superior Court, raising a host of claims. (Doc. 40-6, Ex. J.) The court found that "defendant's claims for relief are either procedurally precluded or fail to raise any material issues of fact or law which would entitle the defendant to post-conviction relief . . . . For that reason and for the reasons set forth in the State's response," the petition was denied. (Doc. 41-2, Ex. L.) The Arizona Court of Appealsdenied review on March 4, 2010. (Id., Ex. M.)

While PCR 1 was still pending, Olmos filed a second petition for post-conviction relief ("PCR 2") in Superior Court on August 27, 2009, that raised five additional grounds for relief. (Id., Ex. N.) The trial court found that "none [of the claims in PCR 2] fall within any of the exceptions for a successive Rule 32 petition" and denied the petition (Id., Ex. O.) Once again, on May 4, 2010, the Arizona Court of Appeals denied review because Olmos had filed his petition for review late. (Doc. 41-2, Ex. P.)

Olmos filed a petition for post-conviction relief for the third time ("PCR 3") on October 5, 2010. (Id., Ex. Q.) He asserted a single treaty-related issue. (Id.) The state court dismissed the petition on November 10, 2010, as both untimely and without merit. (Id., Ex. R.) The Arizona Court of Appeals denied review. (Id., Ex. S.)

Finally, Olmos filed a fourth petition ("PCR 4") on January 21, 2011, that raised two federal constitutional issues. (Id., Ex. T.) On February 18, 2011, the state court dismissed the petition because the petition was untimely and raised issues that Olmos could have raised on direct appeal. (Id., Ex. U.) The Arizona Court of Appeals declined to review that determination. (Id., Ex. V.)

Olmos next filed the instant petition for writ of habeas corpus in federal court on February 22, 2011. (Doc. 1.) The petition asserts 14 grounds for relief that are discussed in detail below. (Id.) After the briefing completed, Magistrate Judge Bade issued an R&R in which she recommended denial of the petition and certificate of appealability. Olmos timely filed objections and this Court will now review the petition de novo.

DISCUSSION

I. LEGAL STANDARDS

The writ of habeas corpus affords relief to persons in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3) (2006). Review of Petitions for Habeas Corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Id. U.S.C. § 2244 et seq.

Under AEDPA, the Court may not grant habeas relief unless it concludes that thestate's adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1)-(2). Nor may the Court grant habeas relief under AEDPA unless the petitioner has first exhausted his claim in state court. 28 U.S.C. § 2254(b)(1)(A); see O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999).

A. Federal Habeas Corpus Review

A court reviewing a petition alleging that a state court violated a constitutional rule² can grant relief only if the state court decision was "contrary to, or involved an unreasonable application of" clearly established law. Williams v. Taylor, 529 U.S. 362, 391 (2000). 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." Id. at 405-06. "Clearly established Federal law" in § 2254(d)(1) refers to the Supreme Court's precedents in effect at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); Greene v. Fisher, __ U.S. __, __, 132 S. Ct. 38, 44 (2011). "A legal principle is 'clearly established' within the meaning of this provision only when it is embodied in a holding of this Court." Thaler v. Haynes, 559 U.S. 43, 47 (2010). In applying these standards, the federal habeas court reviews the last reasoned decision by the state court. Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005).

A state court's decision is an unreasonable application of clearly established federal law "if the state court identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case." Lockyer, 538 U.S.at 75. The "unreasonable application" clause requires the state court's application of federal law to be more than incorrect or erroneous in the eyes of the reviewing court; it must be objectively unreasonable. Id. Habeas is not granted merely when a federal court disagrees with a state court's constitutional interpretation: "the most important point is that an unreasonable application of federal law is different than an incorrect application of federal law." Williams, 529 U.S. at 410.

B. Exhaustion and Procedural Default

A petitioner is required to exhaust his claims in state court before bringing them in a federal habeas action. 28 U.S.C. § 2254(b)(1)(A). In this context, exhaustion requires a petitioner to "give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan, 526 U.S. at 842. In Arizona, a petitioner is required to "fairly present" all claims he seeks to assert in his habeas proceeding first to the Arizona Court of Appeals either through direct appeal or the state's post-conviction relief proceedings. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).

For a petitioner to have fairly presented his claims to the appropriate state courts, he must have described the operative facts and the federal legal theory that support his claim. See Baldwin v. Reese, 541 U.S. 27, 29, 31 (2004); Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009) (per curiam), cert. denied sub nom Ryan v. Scott, 558 U.S. 1091. The petitioner must alert the state court to the federal nature of the right he claims, and broad appeals to "due process" and similar concepts are insufficient. See Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996) ("While he did assert that the admission of the prior act evidence 'infringed on his right to present a defense and receive a fair trial,' the assertion was made in the course of arguing that the evidentiary error was not harmless under state law. Because Johnson never apprised the state court of the federal nature of his claim, he has not satisfied the fair presentation prong of the exhaustion requirement."); Hivala v. Wood, 195...