Pauley v. Ryan

• Decision Date: 16 December 2013
• Docket Number: No. CIV 10-390-TUC-AWT (LAB),CIV 10-390-TUC-AWT (LAB)
• Parties: Theodore Joseph Pauley, Petitioner, v. Charles L. Ryan; et al., Respondents.
• Court: U.S. District Court — District of Arizona

Theodore Joseph Pauley, Petitioner, v. Charles L. Ryan; et al., Respondents.

No. CIV 10-390-TUC-AWT (LAB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dated: December 16, 2013

REPORT AND

RECOMMENDATION

Pending before the court is an amended petition for writ of habeas corpus filed on September 27, 2010, by Theodore Joseph Pauley, an inmate confined in the Arizona State Prison Complex in Florence, Arizona. (Doc. 6)

Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate Judge Bowman for report and recommendation.

The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order denying the petition. Trial counsel was not ineffective for failing to discovery exculpatory evidence.

Summary of the Case

Pauley was convicted after a jury trial of "four counts of child molestation, one count of attempted sexual conduct with a person under 15, and two counts of public sexual indecency." (Respondents' answer, Exhibit A, pp. 1-2.); (Doc. 12-1, pp. 2-3) The trial court sentencedPauley to "consecutive prison terms of 17 years and 10 years on two of the courts, followed by consecutive terms of 35 years to life on two other counts, followed by concurrent six-year terms on additional counts, to be served consecutively to the prior sentences, followed finally by a consecutive term of 35 years to life on the final count." (Respondents' answer, p. 3.); (Doc. 12-1, p. 3)

Pauley filed a timely notice of direct appeal, but it was stayed when Pauley filed a petition for post-conviction relief alleging ineffective assistance of trial counsel. (Respondents' answer, p. 3.) The trial court denied the petition and subsequent motion for reconsideration. Id. When Pauley filed a petition for review, the court of appeals combined his petition with his direct appeal. Id.; (Doc. 12-1, p. 43)

In his combined appeal, Pauley argued (1) the trial court erred by admitting his statement at trial because it was hearsay, (2) the trial court erred by precluding exculpatory evidence offered the last day of trial, and (3) trial counsel was ineffective for failing to discover the exculpatory evidence earlier. (Respondents' answer, Exhibit J); (Doc. 12-2) The court of appeals affirmed his convictions and sentences and denied the petition for review on March 18, 1993. (Respondents' answer, Exhibit A.); (Doc. 12-1) The Arizona Supreme Court denied review on December 17, 1993. (Respondents' answer, p. 3.)

In November of 1995, Pauley filed a second notice of post-conviction relief citing a recent change¹ in the law. (Respondents' answer, p. 3.) In March of 1996, Pauley sent a letter to the court inquiring about the status of his case. Id. Three years later, he filed a petition for the production of documents. Id., pp. 3-4. On April 5, 1999, the trial court granted the petition and ordered that a transcript of the sentencing be prepared and sent to Pauley by May 17, 1999. (Respondents' answer, Exhibit S.) There are no further filings in the record relating to this post-conviction proceeding. (Respondents' answer, p. 4.)

On June 25, 2010, Pauley filed in this court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He filed an amended petition on September 27, 2010. He claims: (1) "The State violated the Double Jeopardy Clause . . . by charging Petitioner with multiple counts for the same offense"; (2) "The trial court erred in barring the testimony of a defense witness"; (3) "Trial counsel was ineffective by submitting into evidence an illegible copy of victim's statement thus preventing Petitioner from having a fair trial"; and (4) "The trial court committed reversible error by admitting Petitioner's statement into evidence." (Doc. 6)

On January 26, 2011, the respondents filed an answer arguing the petition is time-barred. (Doc. 12) They further argue Claims 1 and 2 are procedurally defaulted and Claim 4 is not cognizable. (Doc. 12) Pauley filed a reply on March 10, 2011. (Doc. 13)

On March 31, 2011, Magistrate Judge Edmonds, to whom the case was referred, issued a report and recommendation concluding the petition should be dismissed as time-barred. (Doc. 14) The District Court did not adopt the recommendation and referred the case for further proceedings. (Doc. 21) On January 22, 2013, the case was referred to Magistrate Judge Bowman. (Doc. 22)

Discussion

The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is in custody pursuant to the judgment of a state court, the writ will not be granted unless prior 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). The petitioner must shoulder an additional burden if the state court considered the issues and made findings of fact.

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination ofa factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C.A. § 2254 (e)(1).

A decision is "contrary to" Supreme Court precedent if the "state court confronted a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrived at a result different from Supreme Court precedent." Vlasak v. Superior Court of California ex rel. County of Los Angeles, 329 F.3d 683, 687 (9^th Cir. 2003). A decision is an "unreasonable application" if "the state court identified the correct legal principles, but applied those principles to the facts of [the] case in a way that was not only incorrect or clearly erroneous, but objectively unreasonable." Id. If the state court denied on the merits but did not explain its reasoning, this court must independently review the record to determine whether the state court clearly erred in its application of Supreme Court law. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9^th Cir. 2002), cert. denied, 539 U.S. 916 (2003). If the highest state court failed to explain its decision, this court looks to the last reasoned state court decision. See Brown v. Palmateer, 379 F.3d 1089, 1092 (9^th Cir. 2004).

Federal habeas review is limited to those issues that have been fully presented to the state court. This so-called "exhaustion rule" reads in pertinent part as follows:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State. . . .

28 U.S.C. § 2254(b)(1)(A). This rule permits the states "the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (internal punctuation removed).

To be properly exhausted, the federal claim must be "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971). In other words, the state courts must be apprised of the issue and given the first opportunity to rule on the merits. Id. at 275-76. Accordingly, the petitioner must "present the state courts with the same claim he urges upon the federal courts." Id. "The state courts have been given a sufficient opportunity to hear an issuewhen the petitioner has presented the state court with the issue's factual and legal basis." Weaver v. Thompson, 197 F.3d 359, 364 (9^th Cir. 1999).

In addition, the petitioner must explicitly alert the state court that he is raising a federal constitutional claim. Duncan v. Henry, 513 U.S. 364, 366 (1995); Casey v. Moore, 386 F.3d 896, 910-11 (9^th Cir. 2004), cert. denied, 545 U.S. 1146 (2005). The petitioner must make the federal basis of the claim explicit either by citing specific provisions of federal law or federal case law, even if the federal basis of a claim is "self-evident," Gatlin v. Madding, 189 F.3d 882, 888 (9^th Cir. 1999), cert. denied, 528 U.S. 1087 (2000), or by citing state cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9^th Cir. 2003) (en banc).

If the petitioner is in custody pursuant to a judgment imposed by the State of Arizona, he must present his claims to the state appellate court for review. Castillo v. McFadden, 399 F.3d 993, 998 (9^th Cir. 2005), cert. denied, 546 U.S. 818 (2005); Swoopes v. Sublett, 196 F.3d 1008 (9^th Cir. 1999), cert. denied, 529 U.S. 1124 (2000). If state remedies have not been exhausted, the petition may not be granted and ordinarily should be dismissed. See Johnson v. Lewis, 929 F.2d 460, 463 (9^th Cir. 1991). In the alternative, the court has the authority to deny on the merits rather than dismiss for failure to exhaust. 28 U.S.C. § 2254(b)(2).

A claim is "procedurally defaulted" if the state court declined to address the issue on the merits for procedural reasons. Franklin v. Johnson, 290 F.3d 1223, 1230 (9^th Cir. 2002). Procedural default also occurs if the claim was not presented to the state court and it is clear the state would now refuse to address the merits of the claim for procedural reasons. Id.

Procedural default may be excused if the petitioner can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Boyd v. Thompson, 147 F.3d 1124, 1126 (9^th Cir. 1998).

Discussion: Double Jeopardy

Pauley argues in Claim 1 that "the...