Swoopes v. Ryan

• Decision Date: 21 July 2011
• Docket Number: CV-93-471-TUC-DCB
• Parties: Samuel Swoopes, Petitioner, v. Charles L. Ryan, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Samuel Swoopes, Petitioner,

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

CV-93-471-TUC-DCB

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

DATED: July 21, 2011

ORDER

This matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b) and the local rules of practice of this Court for a Report and Recommendation (R&R) on the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254. In the R&R, the Magistrate Judge recommends to the Court that the amended petition should be denied and the action should be dismissed. Before the Court is the Magistrate Judge's R&R, Petitioner's Objections and Respondent's Response to the Objections. Having conducted a de novo review, this Court will adopt the Report and Recommendation in its entirety, deny the amended habeas petition and dismiss this action.

STANDARDS OF REVIEW

When objection is made to the findings and recommendation of a magistrate judge, the district court must conduct a de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

On habeas review, a state court's findings of fact are entitled to a presumption of correctness when fairly supported by the record.Wainwright v. Witt, 469 U.S. 412, 426 (1985). The presumption of correctness also applies to a state appellate court's findings of fact. Sumner v. Mata, 449 U.S. 539, 546 (1981). The question presented in a state prisoner's petition for a writ of habeas corpus is "whether the state proceedings satisfied due process." Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir.1991).

Federal courts may entertain a state prisoner's petition for habeas relief only on the grounds that the prisoner's confinement violates the Constitution, laws, or treaties of the United States. Reed v. Farley, 512 U.S. 339 (1994). General improprieties occurring in state proceedings are cognizable only if they resulted in fundamental unfairness and consequently violated the petitioner's Fourteenth Amendment right to due process. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)("[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions."); Bonin v. Calderon, 77 F.3d 1155, 1158 (9th Cir.1996). The Supreme Court has held in the habeas context that "this Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). The provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) govern this case and pose special burdens. Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir.2004) (en banc). Under AEDPA, when reviewing a state criminal conviction, a federal court may grant a writ of habeas corpus only if a state court proceeding "(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 UnitedStates; 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).

Under § 2254(d)(1), a state court decision is "contrary to" clearly established Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court cases or "if the state court confronts a set of facts that are materially indistinguishable from" a Supreme Court decision but "nevertheless arrives at a result different from" that precedent. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an unreasonable application of clearly established federal law if "the state court identifies the correct governing legal principle" from a Supreme Court decision "but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. In considering whether a state court has unreasonably applied Supreme Court precedent, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411; Bell v. Cone, 535 U.S. 685, 694 (2002). In conducting habeas review, we "presum[e] that state courts know and follow the law." Woodford v. Visciotti, 537 U.S. 19, 24 (2002).

SUMMARY

The Court will adopt the thorough and complete Summary of the Case in the R&R, as follows:

Swoopes was convicted after a jury trial of "first-degree burglary, sexual assault, aggravated robbery, three counts of armed robbery, and three counts of kidnapping." [doc. # 150, p. 2] The trial court imposeda combined sentence totaling 42 years. Id. At trial, the state presented evidence that Swoopes and two accomplices committed an armed home invasion. [doc. # 150, p. 2] Swoopes was the only one of the three whose face was uncovered. [doc. # 154, p. 3] The main issue at trial was identification. Swoopes' accomplices have never been identified.

Swoopes, the gunman, ordered the victims, a married couple and their male guest, to lie down on the floor of the living room under a blanket. Arizona v. Swoopes, 155 Ariz. 432, 433, 747 P.2d 593, 594 (App. 1987); [doc. # 154, p. 3]. After the victims were robbed of their money and jewelry, the robbers proceeded to ransack the house. Id. [At] one point, one of the robbers took the wife into the bedroom and sexually assaulted her. Id. Swoopes remained in the living room to keep the husband and friend from interfering. Id.

Approximately five minutes after the wife was taken away, the guest decided to escape and summon help. [doc. 150, Exhibit C, p. 158] He fought his way outside, broke free from two of the intruders, and ran for help. Id., pp. 158-160. He noticed a vehicle parked just adjacent to the house. Id., p. 167. The vehicle was gone two or three minutes later when he returned to the house. Id., p. 168.

When the husband heard the sounds of the struggle, he got off the floor and ran to the front door intending to lock the intruders out and again confronted Swoopes, who was standing in the doorway. Id., p. 119. When Swoopes left, the husband locked the door and went to check on his wife. Id., pp. 121-122. After determining that she was safe, he ran outside and saw the robbers drive away in a mid to late '60s light colored Plymouth Valiant. Id., pp. 123-124 After the robbery, the three victims were unable to clearly describe the gunman and failed to identify Swoopes in a photographic lineup. Arizona v. Swoopes, 216 Ariz. 390, 393, 166 P.3d 945, 948 (App. 2007). None of the victims reported the gunman as having any facial blemishes or scars. Id. It is undisputed that Swoopes has a scar above his right eye.

Sixteen months after the robbery, the husband and his friend learned that a similar home invasion occurred in their neighborhood on that same night and a suspect in that crime was currently on trial. Id.; [doc. # 154, p. 3] The two men went to the courthouse and recognized Swoopes as the man who robbed them. Swoopes, 216 Ariz. at 393, 166 P.3d at 948. The police then arranged a live lineup for the wife, who identified Swoopes explaining she was looking for a man with a facial scar. Id.

At trial, the three victims identified Swoopes as the gunman. Id. On cross examination, the wife admitted that after the robbery she did not tell police the gunman had a scar. [doc. # 150, Exhibit C, p. 228-230] She was not specifically asked if she ever told police the gunman had a blemish. During his closing argument, Swoopes' counsel reminded the jury that the wife admitted that she told detectives the gunman had no scars. [doc. # 150, Exhibit D, p. 119] He argued, this was strong evidence that her later identification of Swoopes was erroneous.

The prosecutor tried to address this inconsistency in his rebuttal closing. He conceded that the wife did not tell detectives the gunman had a scar, but argued her identification was nevertheless accurate because her memory was refreshed when she saw Swoopes in the physical lineup.

During deliberations, the jury sent a written question to the trial judge asking to see "any statement made by [the wife] of a blemish before the physical lineup." Swoopes, 216 Ariz. 390, 393, 166 P.3d 945, 948. The court responded that "the statement is not admissible" and further instructed the jurors to "rely on their collective memories." Id. It is undisputed that the wife did not make a statement about a blemish to the police immediately after the robbery.

After the trial and sentencing, Swoopes filed a direct appeal arguing (1) "the court erred in imposing consecutive sentences," (2) "the court erred in convicting him of sexual assault as an accomplice, and (3) "the victims' in-court identification of him was tainted." Arizona v. Swoopes, 155 Ariz. 432, 434, 747 P.2d 593, 596 (App. 1987); [doc. # 150, p. 2, n. 1] During the briefing process, the appeal was inadvertently transferred to the Arizona Supreme Court before being returned to the court of appeals. [doc. # 11, p. 3, n. 3] During this period, Swoopes filed a supplemental brief arguing (4) the prosecutor engaged in misconduct, (5) the court erred in instructing the jury on the issue of identification evidence, (6) the state improperly excluded counsel from the trial lineup, and (7) the aggravated robbery conviction violated double jeopardy. [doc. # 11, p. 3, n. 3]; [doc. # 150, p. 2, n. 1] The court of appeals refused to entertain the additional claims. Id.; [doc. # 7, p. 5, n.1] On July 21, 1987, the court of appeals affirmed Swoopes' convictions and sentences in Arizona v. Swoopes, 155 Ariz.432, 747 P.2d 593 (App 1987) (Swoopes I). The Arizona Supreme Court denied review on January 13, 1988. [doc. # 150, p. 2]

In his first post-conviction relief petition, filed on February 1, 1989, Swoopes argued (1) trial counse

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