Whitehead v. Ryan

• Decision Date: 07 November 2018
• Docket Number: No. CV-14-2481-TUC-LCK,CV-14-2481-TUC-LCK
• Parties: Cassius Clayton Whitehead, Petitioner, v. Charles L. Ryan, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Cassius Clayton Whitehead, Petitioner, v. Charles L. Ryan, et al., Respondents.

No. CV-14-2481-TUC-LCK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

November 7, 2018

ORDER

Petitioner Cassius Whitehead has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), Respondents' Answer (Doc. 20), and Petitioner's Reply and accompanying declaration (Docs. 29, 30). The parties have consented to Magistrate Judge jurisdiction. (Doc. 34.)

FACTUAL AND PROCEDURAL BACKGROUND

Whitehead was convicted in the Pima County Superior Court on four counts of armed robbery, five counts of kidnapping, ten counts of aggravated assault, and five counts of attempted first-degree murder. (Doc. 20, Ex. U.) The trial judge sentenced Whitehead to prison terms totaling 118 years. (Id.)

The Arizona Court of Appeals summarized the facts in support of Whitehead's convictions:

Whitehead entered a bank wearing a ski mask and gloves. He pointed a gun at bank employees and ordered them to give him cash from the bank vault and cash drawers. Some of these items included tracking devices. A key from the bank also fell in the bag. Whitehead left the bank in a car that police officers found abandoned about ten minutes later.

Using the tracking system from the bank, officers found Whitehead riding a bicycle away from where a car matching the description of the one driven by the bank robber was parked. The officers saw Whitehead get off the bicycle, pull a gun from his bag and jump over a wall into a residential area. Soon after, he began firing at the officers, injuring two of them. Whitehead then began running away, and an officer shot him, stopping him.

(Id., Ex. A at 2.)

Whitehead appealed and the Arizona Court of Appeals affirmed his convictions and sentences. (Id., Exs. A, E.) Whitehead's Petition for Review to the Arizona Supreme Court was denied. (Id., Exs. B, C.) Whitehead filed a Notice of Post-conviction Relief (PCR). (Id., Ex. V.) He then filed a pro se PCR petition, which he subsequently amended. (Id., Exs. W, X.) After a multi-day evidentiary hearing, the PCR court denied relief. (Id., Ex. Y.) Whitehead appealed and the Arizona Court of Appeals affirmed, adopting the PCR court's ruling. (Id., Exs. Z, AA.)

DISCUSSION

Whitehead raises six claims. (Doc. 1.) Without conceding the point, Respondents do not contend that Whitehead failed to exhaust any of the claims. (Doc. 20 at 11.) Thus, the Court will review all six claims on the merits.

Legal Standards for Relief under the AEDPA

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) created a "highly deferential standard for evaluating state-court rulings' . . . demand[ing] that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)). Under the AEDPA, a petitioner is not entitled to habeas relief on any claim "adjudicated on the merits" by the state court unless that adjudication:

(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 last relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 (9th Cir. 2005).

"The threshold test under AEDPA is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final." Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under subsection (d)(1), the Court must first identify the "clearly established Federal law," if any, that governs the sufficiency of the claims on habeas review. "Clearly established" federal law consists of the holdings of the Supreme Court at the time the petitioner's state court conviction became final. Williams, 529 U.S. at 365; see Carey v. Musladin, 549 U.S. 70, 74 (2006).

The Supreme Court has provided guidance in applying each prong of § 2254(d)(1). The Court has explained that a state court decision is "contrary to" the Supreme Court's clearly established precedents if the decision applies a rule that contradicts the governing law set forth in those precedents, thereby reaching a conclusion opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Williams, 529 U.S. at 405-06; see Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). Under the "unreasonable application" prong of § 2254(d)(1), a federal habeas court may grant relief where a state court "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular . . . case" or "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend the principle to a new context where it should apply." Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent "unreasonable," the petitioner must show that the state court's decision was not merelyincorrect or erroneous, but "objectively unreasonable." Id. at 409; Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Visciotti, 537 U.S. at 25. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as '"fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state court decision was based on an unreasonable determination of the facts. Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (Miller-El II). In considering a challenge under § 2254(d)(2), state court factual determinations are presumed to be correct, and a petitioner bears the "burden of rebutting this presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Landrigan, 550 U.S. at 473-74; Miller-El II, 545 U.S. at 240.

Claim 1

Whitehead alleges trial counsel was ineffective for the following reasons: (a) counsel did not conduct sufficient voir dire or strike jurors with law enforcement backgrounds; (b) Whitehead was denied unrestricted access to counsel; (c) counsel failed to preserve a Batson challenge based on religious affiliation; (d) counsel failed to conduct an adequate investigation; and (e) counsel failed to communicate and collaborate with co-counsel. Whitehead was represented at trial by Kyle Ipson as lead counsel and Somer Chyz. All of the IAC claims are based on Ipson's performance.

Standard for IAC Claims

IAC claims are governed by Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a petitioner must show that counsel's representation fell below an objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at 687-88.

The inquiry under Strickland is highly deferential, and "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances ofcounsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. Thus, to satisfy Strickland's first prong, deficient performance, a defendant must overcome "the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id.

A petitioner must affirmatively prove prejudice. Id. at 693. To demonstrate prejudice, he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

a. Jury Selection

Whitehead alleges counsel should have explored the law enforcement connections of jurors Glenn, Sonntag, Fancher, and Wakefield, in light of the victims being police officers.

During jury selection, juror Wakefield stated that she worked for the Attorney General's office as a legal assistant in the civil division and that the agency represented corrections officers and probation officers. (RT 11/3/08 at 116-17, 175.)¹ Juror Fancher stated that her son-in-law was with the Pima County Sheriff but that would not influence her and she had no doubt she could be fair to the defendant. (RT 11/4/08 at 35-36, 172.) In ruling on this claim, the PCR court noted that jurors Fancher and Wakefield were alternates;² therefore, Petitioner was not prejudiced by their presence on his jury. (Doc. 20, Ex. Y at 4.) Because they did not serve on the jury that deliberated, there is not areasonable likelihood Whitehead would not have been convicted if counsel had challenged these jurors for cause.

Juror Sonntag disclosed that he had worked with potential witness Donald Bley for 15 years but stated that would not cause a problem in evaluating his testimony.³ (RT 11/4/08 at 92-93.) As a contract officer for Raytheon he had contact with federal agents but had no doubt he could be fair to the defendant. (Id. at 102.) Also, he had taken business law classes. (Id. at 147-48.) During voir dire, juror Glenn stated that he owned "a lot" of guns and shooting was his hobby. (RT 11/4/08 at 131, 154.) He had been employed by the Arizona Department of Corrections for 11 years. (Id. at 135-36, 154.) He had knowledge of the law in relation to corrections work and a brother-in-law that was a district attorney out of...