Rimer v. Ryan
| Decision Date | 03 February 2017 |
| Docket Number | No. CV-14-01930-TUC-RCC (BGM),CV-14-01930-TUC-RCC (BGM) |
| Parties | Ignacio Esteban Rimer, Petitioner, v. Charles L. Ryan, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
Currently pending before the Court is Petitioner Ignacio Esteban Rimer's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Respondents have filed an Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 16). Petitioner did not file a Reply. The Petition 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 Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).
The Arizona Court of Appeal stated the facts2 as follows:
At trial, the state presented evidence that Rimer and his half-brother, codefendant Howard McMonigal, conducted an on-going methamphetamine and stolen-property business out of McMonigal's residence. The two utilized a number of women to assist in conducting the business, and when they did not perform as ordered, the women were punished in various ways, including rape. After their arrest, Rimer and McMonigal were charged with illegally conducting an enterprise as well as various counts of kidnapping, sexual assault, and aggravated assault.
Answer (Doc. 16), Ariz. Ct. of Appeals, Memorandum Decision 1/7/2011 (Exh. "A") at 1-2.
The Arizona Court of Appeal further noted:
After a jury trial, appellant Ignacio Rimer was convicted of one count of illegally conducting an enterprise, one count of kidnapping, one count of sexual assault, and one count of aggravated assault. The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling 23.75 years.
On April 1, 2010, Petitioner filed his Opening Brief with the Arizona Court of Appeals. Answer (Doc. 16), Appellant's Opening Br. 4/1/2010 (Exh. "B"). Petitioner presented the issues on appeal as follows:
Relying on the Arizona Rules of Criminal Procedure and Arizona state law, Petitioner argued that because "an allegation that [M.K. and W.H.] were co-conspirators on some counts and that [M.K.] was a victim in other counts [made the relationship between the alleged victim and the prosecutor] so severe as to deprive Appellant of fundamental fairness in a manner shocking to the universal sense of justice." Answer (Doc. 16), Appellant's Opening Br. 4/1/2010 (Exh. "B") at 44. In light of this, Petitioner further asserted that disqualification of the Pima County Attorney's Office was required. Id.
Petitioner also argued that "telephone calls from [Petitioner's co-defendant] McMonigal in which he made incriminating statements about Appellant and otherwise linked Appellant to McMonigal's alleged efforts to tamper with witnesses . . . deprived Appellant of his right to confront and cross-examine." Id., Exh. "B" at 45. Petitioner asserted that "[e]vidence for the charges in which McMonigal was charged alone clearly spilled over onto the charges involving [M.K.] because the types of criminal activity and modus operandi was repeated over and over by each of the female witnesses . . . ma[king] it more believable that the offenses occurred as [M.K.] described them when the jury had already heard testimony of [J.F.], [W.H.], and [L.K.]." Id. Petitioner further asserted that"[n]one of these witnesses would have testified against Appellant had he been on trial alone for the offenses involving [M.K.]". Petitioner also alleged that "counsel for the co-defendant raised certain matters which resulted in the admission of evidence that would not otherwise have been admitted." Id., Exh. "B" at 46. Finally, Petitioner asserted that witness L.K. and his co-defendant McMonigal winked and exchanged smiles during L.K.'s testimony which occurred to his detriment. Answer (Doc. 16), Exh. "B" at 46-47.
Petitioner also alleged that although "[t]he evidence of guilt as to all chargers was overwhelming with respect to Howard McMonigal[,] . . . there was very little evidence to establish Appellant's guilt as to any of the charges related to him." Answer (Doc. 16), Exh. "B" at 48. Petitioner argued that "for the vast majority of the time that Howard McMonigal was conducting his illegal enterprise, Appellant wasn't there." Id., Exh. "B" at 49. Petitioner asserted that DNA on the handle of a gun found in one of the stolen vehicles on McMonigal's property was linked to Petitioner, but not conclusively. Id., Exh. "B" at 50. Petitioner argued that "[t]his paltry bit of evidence [was] entirely insufficient to connect Appellant with the criminal enterprise conducted by his half-brother Howard McMonigal[,] . . . [and] the rub-off effect of McMonigal's extensive criminal activity and the fact that Appellant was related to him by blood no doubt resulted in the jury's conviction." Id. Petitioner's claims were based on Arizona state law. Id., Exh. "B" at 47-50.
Petitioner asserted that "the prosecutor argued facts not in evidence as it related tothe barred window." Answer (Doc. 16), Exh. "B" at 55. Petitioner argued that the prosecutor "waited until his rebuttal closing argument to present his expert opinion that the photographs showed tampering." Id., Exh. "B" at 56 (emphasis in original). Petitioner further argued that the prosecutor's "conclusions about the bars went far beyond a 'reasonable inference.'" Id., Exh. "B" at 56-57. As such, Petitioner asserted that "[b]ecause Appellant was denied his constitutional right to a fair trial by virtue of prosecutorial misconduct[,]" he was entitled to a new trial. Id., Exh. "B" at 58. Although Petitioner made passing reference to his right to due process and a fair trial, he relied solely on state law in his argument. See id., Exh. "B" at 54-58.
On January 7, 2011, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. Answer (Doc. 16), Ariz. Ct. App. Memorandum Decision 1/7/2011 (Exh. "A"). The court of appeals held that Petitioner "ha[d] failed to offer any apposite or persuasive authority demonstrating the trial court abused its discretion in denying his motion to disqualify the county attorney's office from prosecuting his case based on W.H.'s and M.K.'s status as both victims and co-conspirators." Id., Exh. "A" at 3. The court further noted that "[n]either the statutes granting rights to victims nor the cases upon which Rimer relies support his position and, to the extent they are applicable here, they instead inform a contrary conclusion." Id. The court also recognized that "the trial court instructed the jury to consider the evidence as to the charges against each defendant separately." Id., Exh. "A" at 7. As such, the court further held that "Because the jury was so instructed, it 'is presumed to have considered the evidence against eachdefendant separately in finding both guilty[,]' . . . and Rimer has failed to demonstrate the court abused its discretion in denying his motion to sever his trial from McMonigal's." Id., Exh. "A" at 7 (citing State v. Murray, 184 Ariz. 9, 25, 906 P.2d 542, 558 (1995)). The appellate court also noted that Petitioner waived his argument regarding severance of Count One by failing to renew his motion to sever during trial. Answer (Doc. 16), Ariz. Ct. App. Memorandum Decision 1/7/2011 (Exh. "A") at 5 n.2. The appellate further found Petitioner waived his argument regarding the introduction of telephone calls made by McMonigal depriving Petitioner of his right to confront and cross-examine because he failed to cite the record supporting such an argument or develop it adequately on appeal. Id., Exh. "A" at 6 n.3. Regarding sufficiency of the evidence, the court of appeals held that "[t]he record reflects that substantial evidence was presented at trial to support Rimer's conviction." Id., Exh. "A" at 8. This holding applied to all of the counts for which Petitioner was found guilty, including illegally conducting an enterprise. Id., Exh. "A" at 8-10. Finally, the court of appeals found that "by failing to object at trial and instead of raising th[e] issue [of the prosecutor arguing facts not in evidence] . . . for the first time in a motion for a new trial, Rimer ha[d] waived this issue for all but fundamental error." Id., Exh. "A" at 10. As such, the court held that "because Rimer ha[d] failed to argue that the alleged error here was fundamental, and because we find no error that can be so characterized, the argument is waived." Answer (Doc. 16), Ariz. Ct. App. Memorandum Decision 1/7/2011 (Exh. "A") at 11. The appellate court relied only on state court law and procedural rules throughout its decision. See Answer (Doc. 16), Exh. "A."
Petitioner did not seek review with the Arizona Supreme Court.
On January 21, 2011, Petitioner filed his Notice of Post-Conviction Relief ("PCR"). Answer (Doc. 16), Not. of PCR 1/21/2011 (Exh. "E"). On June 8, 2011, counsel for Petitioner filed a Rule 32 Montgomery Notice; Motion for Extension of Time to File pro se Brief; Motion to Withdraw. See Answer (Doc. 16), Rule 32 Montgomery Notice (Exh. "F"). Pursuant to Montgomery v. Sheldon (I),3 counsel stated that there were no issues to appropriate for Rule 32 relief.4 Id., Exh. "F" at 1. On November 14, 2011, Petitioner filed his pro se Petition for Post-Conviction Relief. See Answer (...
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