Opinion
CV-21-00436-PHX-MTL (JZB)
03-02-2022
Arthur L Vitasek, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE
REPORT & RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
Petitioner Arthur L. Vitasek has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docs. 1, 1-1, 1-2, 1-3.)
I. Summary of Conclusion.
Petitioner was convicted at trial and sentenced on various counts involving sexual misconduct with minors. Petitioner unsuccessfully sought relief in state court. Petitioner then filed a habeas petition in this Court asserting 12 multi-faceted grounds for relief. Because each ground and subpart is either non-cognizable, procedurally defaulted, or without merit, the Court recommends the petition be dismissed with prejudice.
II. Background.
A. Conviction & Sentencing.
The Arizona Court of Appeals summarized the facts of the case as follows:
The Court presumes the Arizona Court of Appeals' summary of the facts is correct. 28 U.S.C. § 2254(e)(1).
In 1999, Vitasek lived in an apartment near Pinnacle Peak where he met 9-year-old brothers C.K. and Ch.K. (and their older brother S.K.), whose father lived in the same complex. Vitasek became a father figure to them, and they would often visit him and stay at his apartment overnight. Almost immediately, Vitasek began to have sexual contact with the boys. Vitasek masturbated C.K. on several occasions over the next two years, and had oral sexual contact with C.K. at least once. Over the same period, Vitasek and Ch.K. masturbated together between 15 and 25 times, while Ch.K. was between 9 and 11 years old.
Vitasek then moved to Las Vegas for about two years, where he met M.E. 's mother through work and eventually began to sexually abuse M.E. M.E. nevertheless viewed Vitasek as a father figure, and other children would refer to him as M.E.'s dad.
In the fall of 2003, Vitasek moved back to the Phoenix area with M.E. and M.E.'s mother and sister, and the four lived together. Over the next approximately nine months, Vitasek perpetrated multiple sexual acts on 9-and 10-year-old M.E., including simultaneous masturbation, Vitasek masturbating M.E., Vitasek having oral contact with M.E.'s penis, and M.E. penetrating Vitasek's anus with his penis.
During this period from September 2003 to June 2004, Vitasek met other children through M.E., and he began to sexually abuse the other boys as well. Seven-year-old C.A. knew M.E. from school, and when C.A. visited M.E. at home, Vitasek attempted to reach up C.A.'s shorts to touch his penis on one occasion and reached under a towel to rub C.A.'s penis another time. When 10- or 11-year-old C.S. came over to the house to see M.E., Vitasek had him pull down his pants and proceeded to have oral contact with C.S.'s penis.
Vitasek and M.E.'s family moved out of the house to separate residences in the summer of 2004. In the fall of 2004, Vitasek continued to visit M.E. and his family at their new home, where he met brothers B.M. (12 years old) and CM. (11 years old) who lived in the same apartment complex. Vitasek had further sexual contact with the boys at M.E.'s apartment, including masturbating himself in front of M.E. and CM. and having M.E. put his penis in Vitasek's anus.
Through the fall of 2004, Vitasek also continued to have sexual contact with the boys at his own new apartment/condominium, including oral contact with C.A.'s penis, oral contact with B.M.'s penis, and penile penetration of M.E.'s anus. The sexual conduct continued after Vitasek moved into a different apartment in December 2004, including multiple instances of oral contact with C.A.'s penis (at least once with M.E. present) and an instance in which Vitasek masturbated himself while being anally penetrated by M.E. in mid-January 2005.
In January 2005, CM. told school officials that M.E.'s “dad” (Vitasek) was a child molester. Investigators interviewed, among others, M.E., Ch.K., C.K., S.K., B.M., CM., C.A., and C.S. After M.E.'s first interview, M.E.'s mother agreed to a safety plan that included preventing Vitasek from having contact with M.E. The next day, however, ME. 's mother allowed Vitasek to pick up M.E. and another boy to spend the night. Vitasek learned that the police were looking for him and dropped the other boy off in a public place and, after an Amber Alert issued for M.E., dropped M.E. off with another adult. Meanwhile, Vitasek hurriedly packed some belongings and attempted to sell
his car “for really cheap,” and he left Phoenix immediately.
Vitasek remained on the run for the next year and a half until he was found living in Texas under an assumed name. In September 2006, a 16-year-old boy in Texas told police that “Rich Loper” had manually touched the boy's penis and later penetrated the boy's anus with his penis. Investigating officers discovered that “Rich Loper” was Vitasek, and he was arrested and returned to Arizona to face criminal charges.
The State charged Vitasek with 3 counts of public sexual indecency to a minor, 3 counts of molestation of a child, 1 count of attempted molestation of a child, 1 count of continuous sexual abuse of a child, and 19 counts of sexual conduct with a minor, with C.S., C.A., B.M., CM., M.E., Ch.K., C.K., and S.K. as the alleged victims. [n.3: At the State's request during trial, the superior court dismissed with prejudice the four counts (all of which alleged sexual conduct with a minor) in which S.K. was the alleged victim.] At Vitasek's request, the case was designated complex. After a substantial period of pretrial proceedings, Vitasek requested to waive counsel and represent himself. The court, finding that his waiver of the right to counsel was knowing, intelligent, and voluntary, granted Vitasek's request to represent himself, and appointed advisory counsel to assist him. After further, extensive pretrial proceedings (largely involving Vitasek's numerous pretrial motions), the court allowed Vitasek to withdraw his waiver and proceed with retained counsel.
After a 27-day trial, the jury found Vitasek guilty as charged, found each victim of the sexual conduct with a minor counts had been under the age of 12, and further found multiple aggravating factors relating to 12 of the offenses. The court sentenced Vitasek to aggravated terms of imprisonment totaling 199.5 years, to be followed by 11 consecutive life sentences, and further ordered that Vitasek submit to and pay the cost of DNA testing.(Doc. 1-4, Ex. A, at 5-7; see Doc. 10-1, Ex. A, at 3-11 (indictment); id, Ex. B, at 12-25 (judgment).)
B. Direct Appeal.
On appeal, appointed counsel filed a brief pursuant to Anders v. State of California, 386 U.S. 738 (1967) finding no colorable claim. (Doc. 10-1, Ex. D, at 29-44.) Petitioner proceeded pro se and filed a supplemental brief and addendum presenting ten issues for review, as summarized by the Arizona Court of Appeals:
Petitioner was given leave “to file an addendum to his supplemental brief on or before November 1, 2013.” (Doc. 1-4, Ex. I, at 41.) Petitioner filed an addendum on November 1, 2013. (Doc. 10-3, Ex. F, at 3-17.) Months later, Petitioner filed a second addendum on January 6, 2014 (id, Ex. G. at 18-32) and a third addendum on April 24, 2014 (id, Ex. H, at 33-47). There is nothing in the record indicating the November 1, 2013 deadline had been extended or that Petitioner had been given leave to file additional addenda.
(1) an alleged speedy trial violation,
(2) the propriety of the superior court's ruling under Arizona Rule ofEvidence 404(b) and (c) allowing evidence of Vitasek's other, uncharged sex acts with the victims and others,
(3) a challenge to the constitutionality of Arizona Rule of Evidence 404(c),
(4) a challenge to the constitutionality of the provision of the Victims' Bill of Rights allowing victims to decline pretrial interviews,
(5) the propriety of the court's denial of a pretrial Dessureault hearing regarding victim C.S.'s anticipated in-court identification of Vitasek,
(6) a challenge to the constitutionality of the offense of continuous sexual abuse under Arizona Revised Statutes (“A.R.S.”) § 13-1417,
(7) the propriety of the court's ruling under A.R.S. § 13-1421 precluding evidence of the victims' prior sexual conduct,
(8) the propriety of the court's ruling allowing the State to play the victims' recorded pretrial interviews for the jury and use the victims' statements in those interviews as substantive evidence,
(9) the propriety of the court's ruling granting the State's mid-trial request to amend the dates of the indictment as to one charge, and
(10) prosecutorial misconduct.(Doc. 1-4, Ex. A, at 4-20; see Doc. 10-2, Ex. E, at 3-71; Doc. 10-3, Ex. F, at 2-17.) On February 9, 2017, the court of appeals affirmed the convictions. (Doc. 1-4, Ex. A, at 4-20.) On August 17, 2017, the Arizona Supreme Court denied review. (Id., Ex. B, at 22.) On January 8, 2018, the United States Supreme Court denied certiorari. (Id., Ex. C, at 24.)
State v. Dessureault, 104 Ariz. 380 (1969).
It corrected Petitioner's sentences to account for unawarded presentence incarceration credit and vacated the order requiring him to pay for DNA testing. (Doc. 1-4, Ex. A, at 19.)
C. Post-Conviction Relief. 1. Initial Proceeding.
On January 13, 2016, Petitioner filed a notice of post-conviction relief (“PCR”) in superior court pursuant to Ariz. R. Crim. P. 32. (Doc. 10-3, Ex. I, at 49-52.) In his PCR petition and supplements Petitioner asserted various claims of ineffective assistance of trial and appellate counsel. (Id., Ex. J, at 53-85; Id., Ex. L, at 90-101; Id., Ex. N, at 111-24.) On April 2, 2019, the PCR court dismissed the petition because his claims were without merit or precluded under Ariz. R. Crim. P. 32.2(a) (2019). (Doc. 1-4, Ex. D, at 26-30.)
Effective January 1, 2020, the Arizona Supreme Court abrogated former Rule 32, Ariz. R. Crim. P., and divided its substance among new Rule 32 (applying to defendants convicted at trial) and new Rule 33 (applying to pleading defendants). Ariz. Sup. Ct. Order No. R-19-0012, available at https://www.azcourts.gov/rules/Recent-Amendments/Rulesof-Criminal-Procedure. The new rules apply to proceedings initiated or pending on or after January 1, 2020 except where applying them “ would be infeasible or work an injustice.” Id. Citations to Rule 32 in this Report are to new Rule 32 unless noted otherwise.
“A defendant is precluded from relief under Rule 32 based on any ground: . . . (2) finally adjudicated on the merits in an appeal or in any previous collateral proceeding; or (3) waived at trial, on appeal, or in any previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a) (2019).
On July 31, 2019, Petitioner filed a petition for review in the Arizona Court of Appeals, which granted review but denied relief on February 27, 2020. (Doc. 10-4, Ex. O, at 3-47; Doc. 1-5, Ex. K, 5-8.) Petitioner unsuccessfully moved for reconsideration. (Doc. 1-5, Ex. U, at 53-54; Id., Ex. Q, at 35-37.) On February 9, 2021, Petitioner filed a “Petition for Special Action” in the Arizona Supreme Court, which construed it as a petition for review. (Doc. 10-5, Ex. Q, at 3-37; Doc. 1-5, Ex. X, at 61.) On February 26, 2021, the Arizona Supreme Court denied reconsideration of its treatment of the petition and stated the petition would be considered in due course. (Doc. 1-5, Ex. X, at 61.)
2. Successive Proceeding.
On December 2, 2020, Petitioner filed a second PCR notice and petition in superior court claiming its order requiring him to pay restitution to the Maricopa County Sherriff s Office violated his constitutional rights and state law and constituted an illegal sentence; he also claimed the court did not have jurisdiction to issue the order. (Doc. 10-5, Ex. R, at 41-47.) On February 25, 2021, the PCR court dismissed the petition and held that the restitution award, which covered the expenses incurred in extraditing Petitioner from Texas after he fled Arizona, was consistent with state law; any due process claim in connection with it was waived; and it had jurisdiction over Petitioner's case and therefore jurisdiction to issue the order. (Id., Ex. S, at 49-50.)
III. Petition for Writ of Habeas Corpus.
On March 12, 2021, Petitioner filed the instant habeas petition. (Docs. 1, 1-1, 1-2, 1-3.) As summarized by the Court in its April 8, 2021 Service Order, Petitioner raises 12 multi-faceted grounds for relief, asserting violations of his:
(1) Sixth Amendment right to counsel during cross-examination (Doc. 1 at 8-12);
(2) Fourteenth Amendment due process right of “access to the courts” because Arizona Court of Appeals Judge Randall Howe “refused to address GROUND ONE due to his clerk[‘]s scanning error” (Id. at 13- 17);
(3) Sixth Amendment right to confront witnesses when the trial court “changed his ruling” regarding the prosecutor's use of hearsay recordings “after all witnesses had testified, been excused, [and were] no longer available for cross-examination on the hearsay evidence” (Id. at 18-22);
(4) Fourteenth Amendment right to due process and Sixth Amendment right under the Confrontation Clause because the hearsay recordings “failed to meet Rule 803(5)'s requirements,” the trial court “failed to conduct the required hearing,” and the Arizona Court of Appeals “applied an unreasonable determination of the facts when evaluating this issue on appeal” (Doc. 1 at 18 to Doc. 1-1 at 4);
(5) Fourteenth Amendment right to due process and Sixth Amendment right to the effective assistance of counsel because the trial court's “findings on the denial of unchastity [were] unsupported by sufficient evidence in the record because the court[] refused to conduct a MANDATORY pretrial chastity hearing” and because “counsel failed to ensure the hearing was conducting prior to trial” (Doc. 1-1 at 5-10);
(6) Fourteenth Amendment right to due process and Sixth Amendment rights to confront witnesses, compulsory process to present a complete defense, and effective assistance of counsel because the trial court “precluded relevant unchastity evidence of the State's witnesses” (Id. . at 11-15);
(7) Fourteenth Amendment right to due process because the prosecutor failed to prove every element of the charged crimes beyond a reasonable doubt and, “[t]herefore[,] the Petitioner is innocent and no procedural default can be used to deny habeas corpus relief (Doc. 1-1 at 16 to Doc. 1-2 at 4);
(8) Sixth Amendment rights to due process, compulsory process, and confrontation because the trial court “allowed the prosecutor to play the alleged victims[‘] police interviews to the jury as evidence” and “allowed the improper sexual questioning to be redacted” (Doc. 1-2 at 5-9);
(9) Fourteenth Amendment right to due process and a fair trial because of the “enormous prosecutorial misconduct which had a substantial and injurious effect or influence on the jury's verdict and infected the integrity of the proceedings” (Doc. 1-2 at 10 to Doc. 1-3 at 1);
(10) Fifth Amendment right under the Grand Jury Clause “to be tried on charges presented within the indictment” (Doc. 1-3 at 2-7);
(11) Fourteenth Amendment right to due process and Sixth Amendment right to compulsory process because the trial court denied Petitioner's expert witness “due to late disclosure” (Id. at 8-10); and
(12) Sixth Amendment right to the effective assistance of counsel on appeal because “counsel filed an Anders brief when numerous
meritorious appellate issues existed” and Fourteenth Amendment right to due process because the Arizona Court of Appeals “failed to appoint new counsel to represent the Petitioner on those meritorious issues” (Id. . at 11-13).(Doc. 6 at 2-3.) On April 29, 2021, Respondents filed an Answer arguing the Petition should be dismissed because Petitioner's claims are non-cognizable, procedurally defaulted, or without merit. (Doc. 10; see also Docs. 30, 31, 34, 35.) On June 21, 2021, Petitioner filed a Reply. (Doc. 27.)
IV. Legal Standards.
A. Requisites for Federal Habeas Review.
1. Federal Claim.
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see 28 U.S.C. § 2254(a). “[F]ederal habeas corpus relief does not lie for errors of state law.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citations omitted); see Estelle, 502 U.S. at 63 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). “[T]he availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution.” Dugger v. Adams, 489 U.S. 401, 409 (1989). A petitioner “may not . . . transform a state-law issue into a federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
2. Exhaustion of State Remedies.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court.” Baldwin, 541 U.S. at 29 (citations omitted). Fair presentation requires a prisoner to “clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011).
“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). In non-capital cases, “claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007).
3. Absence of State Procedural Bar.
“A federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine.” Cooper, 641 F.3d at 327. Under this doctrine, a claim is procedurally defaulted and consequently barred from federal review “if the state court denied the claim on state procedural grounds” or “if [the] claim is unexhausted but state procedural rules would now bar consideration of the claim.” Id; see Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“[A] federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.”); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'” (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991))).
To preclude federal review, the state procedural rule must be a “nonfederal ground adequate to support the judgment” and “firmly established and consistently followed.” Martinez, 566 U.S. at 9. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). Under these rules, a defendant is precluded from relief on any constitutional claim “waived in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3). A defendant waives a claim by failing to assert it during the appropriate proceeding unless the claim implicates a “right . . . of sufficient constitutional magnitude to require personal waiver by the defendant,” e.g., the right to a jury and the right to counsel. Stewart v. Smith, 202 Ariz. 446, 449-50 (2002).
To obtain review of a procedurally defaulted claim, the prisoner must show “cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005). The latter requires a showing of actual innocence. Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997).
B. Standard for Merits Review.
To obtain relief, a petitioner must show the state courts' adjudication of a 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). “This ‘standard is difficult to meet.'” Mays v. Hines, 141 S.Ct. 1145, 1149 (2021) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). As explained by the Supreme Court:
The term “unreasonable” [in § 2254(d)] refers not to “ordinary error” or even to circumstances where the petitioner offers “a strong case for relief,” but rather to “‘extreme malfunctions in the state criminal justice system.'” In other words, a federal court may intrude on a State's “‘sovereign power to punish offenders'” only when a decision “was so lacking in justification . . . beyond any possibility for fairminded disagreement.”Id. (brackets omitted) (quoting Richter, 562 U.S. at 102-03). “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 324 (2003) (citing 28 U.S.C. § 2254(e)(1)). “[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Id. (citing 28 U.S.C. § 2254(d)(2)). Cf. Andrews v. Davis, 944 F.3d 1092, 1107 (9th Cir. 2019) (“Unreasonable determinations of material facts can occur where the state court plainly misapprehends or misstates the record in making its findings or where the state court has before it, yet apparently ignores, evidence that supports petitioner's claim.” (internal quotations and citations omitted)).
The subject of federal review is “the last reasoned state-court decision.” Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). “When at least one state court has rendered a reasoned decision, but the last state court to reject a prisoner's claim issues an order ‘whose text or accompanying opinion does not disclose the reason for the judgment,' [a federal court] ‘look[s] through' the mute decision and presume[s] the higher court agreed with and adopted the reasons given by the lower court.” Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 802-06 (1991)).
In this case, the Court reviews the decisions of the Arizona Court of Appeals on direct and collateral review (doc. 1-4, Ex. A, at 3-20; doc. 1-5, Ex. K, at 5-8.) as they are the last reasoned state-court decisions adjudicating Petitioner's claims in state court. See Murray, 745 F.3d at 996. The Arizona Supreme Court did not set forth its reasons for denying Petitioner's petition for review on direct review. (Doc. 1-4, Ex. B, at 22.) The Arizona Court of Appeals' decision on collateral review is the last decision of record.
V. Analysis.
A. Ground One.
In Ground One, Petitioner asserts a violation of his Sixth Amendment right to counsel and to confront witnesses because the Court allowed victims' statements in police recordings to be admitted for the truth of the matter asserted. (Doc. 1 at 8-12.) During trial, several victims testified regarding their prior sexual conduct with Petitioner. Petitioner's counsel cross-examined the victims regarding the soundness of their memory and allegations that the victims' testimony was a result of police coercion. On September 26, 2011, the prosecution filed a motion to admit and publish pretrial, recorded interviews of the victims. (Doc. 10-5, Ex. W, at 76.) On September 28, 2011, the parties argued the merits of the motion. (Doc. 30-10, Ex. L, at 11.) The Court orally ruled the recordings could be played to rebut Petitioner's challenges that the police used improper interview techniques on the victims. (Doc. 30-10, Ex. L, at 8.) Petitioner's counsel objected to the admission of the tapes as substantive evidence and the court deferred further ruling. (Id.) On October 3, 2011, the court ruled that “pursuant to Rule 801(d) and 803(5)” the recorded interviews of the victims “may be published to the jury[.]” (Doc. 10-5, Ex. W, at 76.) In his Petition, Petitioner argues that because of “Judge Reinstein's ruling and the prosecutor's motion to only play the hearsay recording as rebuttal evidence, [defense counsel] did not, nor did he have any reason to, cross-examine any witness on any count not proven by live, in-court, under oath, trial testimony.” (Doc. 1 at 9-10.) Petitioner argues that he “was denied his Constitutional Due Process Right to counsel during a critical stage of the proceedings, (i.e. confrontation), and effective assistance.” (Id. at 11.)
Petitioner's Anders brief provides a summary of the testimony of the victims. (Doc. 10-1, Ex. D, at 33-43.)
Arizona Rule of Evidence 803(5) provides that a “recorded recollection” is “not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness[.]” Ariz. R. Evid. 803(5). A “ recorded recollection” is defined as “[a] record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness's memory; and (C) accurately reflects the witness's knowledge.” Id. The rule further provides that “[i]f admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.” Id. The Arizona rule is identical to Federal Rule of Evidence 803(5).
After Petitioner's appellate counsel filed an Anders brief, Petitioner raised this confrontation claim in his supplemental brief. (Doc. 10-2, Ex. E, at 60.) The Arizona Court of Appeals denied relief on this claim.
Respondents argue that this claim is unexhausted but procedurally defaulted because “Vitasek did not raise this issue on direct appeal, (Exhs. E, F, G, H), in his petitions for post-conviction relief (Exhs. J, L, N), or in his petition for review (Exh. O). (Doc. 10 at 21.) But Petitioner did raise this claim. Specifically, Petitioner argued that “defendant's confrontation clause rights were violated,” and cited to Crawford v. Washington, 541 U.S. 36 (2004). (Doc. 10-2, Ex. E, at 60.) Additionally, the Arizona Court of Appeals ruled on the issue. See State v. Vitasek, 2017 WL 525963, at *8-9 (Ariz.Ct.App. 2017).
Here, the court did not abuse its discretion by admitting the recordings and allowing the State to play them for the jury. Although the victims were able to testify to the offenses in part, they indicated that they could not remember everything, that they remembered better at the time of the pretrial interviews, and that they had been truthful during the interviews. See Ariz. R. Evid. 803(5)(A)-(C); see also Alatorre, 191 Ariz. at 212, ¶ 10. Defense counsel acknowledged in the motion for new trial that these foundational requirements for admission under Rule 803(5) were met.
Vitasek argues that this procedure was improper to refresh the victims' recollections. See Ariz. R. Evid. 612 (“Writing Used to Refresh a Witness's
Memory”). But the recordings were not used to refresh the victims' memory under Rule 612, but rather were admitted as recorded recollections under Rule 803(5). And although Vitasek asserts that the court only allowed the recordings as rebuttal to the defense claim of improper interview technique and not as substantive evidence, the court's statement on which he relies was made in the context of deferring ruling on admissibility, and the court subsequently issued a written ruling finding the recorded statements to be admissible under Rule 803(5) and Alatorre.
Vitasek also argues that allowing the recorded interviews as substantive evidence violated the Confrontation Clause of the Sixth Amendment. But the victims testified at trial and were subject to cross-examination, so Vitasek's confrontation rights were preserved. See State v. Salazar, 216 Ariz. 316, 318-19, ¶¶ 7-10 (App. 2007) (as amended).State v. Vitasek, 2017 WL 525963, at *8-9 (Ariz.Ct.App. 2017).
Here, the decision of the Arizona Court of Appeals was not a violation of clearly established law as established by the Supreme Court of the United States. The admission of prior recorded statements for the truth of the matter asserted is permissible. See Fed. R. Evid. 803(5); United States v. Jones, 601 F.3d 1247, 1263 (11th Cir. 2010) (finding admission of prior videotape recording of witness statements under Fed.R.Evid. 803(5) did not violate petitioner's “Sixth Amendment right to confront witnesses against him”); Blowers v. United States, 600 Fed. App'x. 548 (9th Cir. 2015) (finding no ineffective assistance of counsel where a letter by a witness was admitted and “could have been read into evidence under Federal Rule of Evidence 803(5)”); United States v. Brown, 800 Fed. App'x. 455, 463 (9th Cir. 2020) (affirming adoptive admission and stating that “nor did admitting that statement violate the Confrontation Clause, because Rule 803(5) does not require further cross-examination of a witness once a statement is properly admitted as a past recollection recorded.”).
Petitioner's argument that the trial court assured the parties that the recordings would not be admitted as substantive evidence is not supported by the record or Petitioner's prior filings. On September 28, 2011, the court stated that “since these [recordings] are not admitted or at least seen at this point as the truth of the matter, then the Court wouldn't consider them as far as any type of Rule 20 motions that you may make at a later time.” (Doc. 30-10, Ex. L, at 11.) The prosecutor then argued that “part of the reason the State requested these be admitted is because they are prior inconsistent statements. And if they are admitted for prior inconsistent statements, they are also allowed to be used for substantive purposes.” (Id.) The court then said “I don't think I have to rule on this now, really. I try not to get ahead of myself on rulings. Let's see the tapes.” (Id.) The court then told defense counsel that “if you want to talk about this some more if you have some more on this, let's discuss it when we have some more time.” (Id.) In his Supplemental Opening Brief to the Arizona Court of Appeals, Petitioner acknowledged that the court deferred ruling on September 28, 2011 and then admitted recorded statements as substantive evidence under Rule 803(5). Petitioner stated that the court refused “to rule on this motion at this time (on September 28, 2011) even though just prior the court instructed Mr. Dossey the recordings could not be used to prove the state's case.” (Doc. 10-2, Ex. E, at 13.) Petitioner stated that “[b]ecause of the threats that would cost the court time[,] the court reverses his decision. RT 10-5-11 p28 21-25.” (Id.) Petitioner and his counsel were aware that the court (by written ruling) had admitted the recorded statements as substantive evidence.
On October 20, 2011 and October 26, 2011, Petitioner's counsel continued to assert that the recordings should not have been admitted as substantive evidence. (Doc. 31-3, Ex. Q, at 148, 152-163; doc. 31-5, Ex. S, at 178-179.) Petitioner's counsel stated
We think that you made a mistake in regard to the introduction of the video and audio recordings into the trial. . . .We did not make you aware of it until later in the trial after your decision had been made. However, because of [M.E.], it is very clear that the law in the State of Arizona is that recorded recollections. . . can only be used under 803-5 to refresh the recollection of a witness[.](Doc. 31-5, Ex. S, at 174.) The record demonstrates there was some confusion as to whether the recordings should also be admitted as exhibits that would be sent to the jury room during deliberations. The parties ultimately agreed that although the tapes had been played, they would not be received as exhibits.
The Arizona Court of Appeals found that “although Vitasek asserts that the court only allowed the recordings as rebuttal to the defense claim of improper interview technique and not as substantive evidence, the court's statement on which he relies was made in the context of deferring ruling on admissibility, and the court subsequently issued a written ruling finding the recorded statements to be admissible under Rule 803(5).” Vitasek, 2017 WL 525963, at *9. Here, the record does not support Petitioner's claim that the court had ruled on this issue (on September 28, 2011) and thus impaired his trial counsel's ability to confront and cross-examine the victims during trial. Accordingly, Petitioner is not entitled to habeas relief on this claim.
B. Ground Two.
In Ground Two, Petitioner asserts a violation of his “Fourteenth Amendment Due Process right to access the courts” when the Arizona Court of Appeals declined to address “Ground One” on post-conviction review. (Doc. 1 at 14.) Petitioner's claim is nearly identical to the claim raised in Ground One.
In the trial court, Petitioner filed a motion to amend his counsel's PCR petition. Petitioner argued that his appellate counsel provided ineffective assistance “by failing to submit” that the “trial court abused its discretion by allowing” the prosecution to play redacted recordings of the victims. (Doc. 10-3, Ex. L, at 92-94.) The trial court granted the motion to amend (doc. 10-3, Ex. M, at 108) but denied relief (doc. 10-4, Ex. O, at 31-33). In a Petition for Review to the Arizona Court of Appeals, Petitioner presented the same argument that was presented in Ground One of this habeas petition. (Doc. 10-4, Ex. O, at 20.) Petitioner argued that “counsel was rendered ineffective when the court changed its ruling on the use of hearsay recordings to prove the truth of the matter after all witnesses had testified. . . .” (Id.)
With respect to this issue, the court of appeals stated:
His claim about the admissibility of the victim's pretrial recorded interviews is precluded because it was adjudicated on the merits on direct appeal. . . .We also do not consider [Petitioner's] argument that trial counsel was rendered ineffective when the trial court changed its ruling on the pretrial recordings because his petition for review does not develop his argument and skips from page 18 to 21.Vitasek, 2020 WL 949561, at *1.
Petitioner argues that the omission of pages 19 and 20 was due to a scanning error by a clerk at the court of appeals. (Doc. 1 at 14.) In an April 6, 2020 email, a court of appeals staff member emailed Petitioner's advisory counsel stating that he found the original document with the missing pages and that the pages had been unintentionally omitted when the document was initially scanned. (Doc. 1-5, Ex. O, at 28; see Doc. 1-5, Ex. P at 30-33 (court of appeals correspondence with missing pages attached).) Petitioner filed a motion for reconsideration and reasserted his IACTC claim. (Doc. 1-5, Ex. Q, at 35-37.) On January 12, 2021, the Arizona Court of Appeals reviewed the full petition and summarily denied the motion to reconsider. (Doc. 1-5, Ex. U, at 53-54.) Petitioner now claims that denial was a violation of his Fourteenth Amendment rights to due process. (Doc. 1 at 14.)
Here, Petitioner was not denied access to the Arizona courts because his claim was reviewed on the merits by the Arizona Court of Appeals. As noted in a review of Ground One above, the ruling of the Arizona Court of Appeals on direct appeal was not a violation of clearly established law as established by the Supreme Court of the United States. On post-conviction review, the Arizona Court of Appeals reviewed the claim and found it had already been “adjudicated on the merits on direct appeal.” Vitasek, 2020 WL 949561, at *1. To the extent that the Arizona Court of Appeals on PCR review did not initially rule on the allegation that the “trial court changed its ruling on the pretrial recordings,” the court ultimately reviewed that issue when it denied the motion to reconsider. And the Arizona Court of Appeals had previously ruled that the trial court did not “change” its ruling during trial. Accordingly, Petitioner is not entitled to habeas relief on this claim.
C. Ground Three.
In Ground Three, Petitioner renews his claim that he “was denied his 6th Amendment right to confront the witnesses when the trial court judge changed his ruling from the prosecutor's inability to use hearsay recordings to prove the truth of the matter to her ability to do so after all witnesses had testified” and had been excused. (Doc. 1 at 18.) Petitioner reasserts that the judge initially ruled that the recordings could not be used as substantive evidence. (Id.) As discussed in Grounds One and Two, the Arizona Court of Appeals found that the trial judge deferred ruling on that issue and later admitted the recordings as substantive evidence under Rule 803(5). Vitasek, 2017 WL 525963, at *9.
In Ground Three, Petitioner advances two additional arguments. He asserts that “because there was no notice of intent to use the recordings to prove the truth of the matter or no ruling from the court, the Petitioner was denied his 6th Amendment right to effective assistance and his 6th Amendment right to confront the witnesses.” (Doc. 1 at 20.) Petitioner did not raise this claim in his pro se supplemental brief (doc. 10-2, Ex. E, at 60-64) or addendum (doc. 10-3, Ex. F, at 14). Thus, Petitioner's claim is unexhausted and procedurally defaulted. Also, unlike some other Rules of Evidence - such as Rule 807(b) -that may require a party to give notice to the opposing party prior to admission of certain statements, Federal Rule of Evidence 803(5), at issue here, has no such requirement. Compare Fed. R. Civ. P. 807(b) (requiring that statements admitted under that rule require the proponent provide “an adverse party reasonable notice of the intent to offer the statement . . . in writing before the trial or hearing[.]”) with Fed. R. Evid. 803(5) (which addresses the admission of a recorded recollection and provides no requirement of notice to the opposing party). The Court notes that Petitioner had notice of the issue when the court deferred ruling on September 28, 2011.
Petitioner next argues that the “court failed to provide Petitioner's counsel with an opportunity to recross the witness on the new material located within the interviews now being provided to the jury as evidence to prove the truth of the matter.” (Doc. 1 at 19.) Petitioner did not present an argument on direct appeal regarding the denial of “re-cross examination,” so that specific claim is unexhausted and procedurally defaulted. Even if this claim had been presented, there was no denial of Petitioner's right to confront the witnesses. See United States v. Brown, 800 Fed. App'x. 455, 463 (9th Cir. 2020) (“Nor did admitting that statement violate the Confrontation Clause, because Rule 803(5) does not require further cross-examination of a witness once a statement is properly admitted as a past recollection recorded.”). In his Reply, Petitioner states “[b]ecause counsel relied on the judge's ruling he did not have any reason to cross-examine any witness on any unproven count from the lack of in-court, under oath testimony because pursuant to the judge's ruling, these counts were being dismissed during a Rule 20 hearing.” (Doc. 27 at 16.) Even if counsel had no reason to cross-examine the witnesses when they testified, he could have asked that the witnesses be recalled during the State's case or recalled as witnesses in Petitioner's case in chief. The judge admitted the recordings under Rule 803(5) by written ruling on October 3, 2011. (Doc. 10-5, Ex. W, at 76.) The State rested its case on October 20, 2011. (Doc. 31-3, Ex. Q, at 137.) Petitioner called witnesses starting on October 19, 2011. (Doc. 31-2, Ex. P, at 32.) Petitioner's case closed after Petitioner testified on October 26, 2011. (Doc. 31-5, Ex. S, at 97.) Petitioner fails to cite to any portion of the trial record where the court precluded Petitioner from recalling witnesses either during the State's case or Petitioner's case. (Doc. 27 at 14-22.)
The Court notes that, in his Reply, Petitioner's counsel filed an affidavit stating the court “denied by request to re-open cross-examination of the said victims. . . .” (Doc. 1-5, Ex. S, at 46.) Petitioner does not cite to a record where the trial court denied a motion to recall the victims prior to Petitioner's close of his case. Also, denying re-cross examination is not the same precluding the calling of witnesses in Petitioner's case-in-chief, which Petitioner does not allege he requested.
D. Ground Four.
In Ground Four, Petitioner asserts a violation of the “the 14th Amendment right to due process and a 6th Amendment Confrontation Clause violation” because “the hearsay recorded evidence the Court allowed the prosecutor to use to prove the truth of the matter failed to meet Arizona Rule of Evidence 803(5)'s requirements.” (Doc. 1-1, at 1-3.) Respondents assert the claim was “not raised on direct appeal, in any petition for postconviction relief, or in his petition for review.” (Doc. 10 at 23.) But in his Supplemental Opening Brief, Petitioner argued the recordings were improperly admitted because they failed to meet the requirements of Rule 803(5) that the statements must fresh in the memory of the witness (doc. 10-2, Ex. E, at 61-62) and be adopted as true by the witness (id. at 62). Petitioner cited to the Sixth Amendment and federal law. (Id. at 63.) The Court finds Ground Four was properly exhausted.
With respect to this issue, the court of appeals stated:
Here, the court did not abuse its discretion by admitting the recordings and allowing the State to play them for the jury. Although the victims were able to testify to the offenses in part, they indicated that they could not remember everything, that they remembered better at the time of the pretrial interviews, and that they had been truthful during the interviews. See Ariz. R. Evid. 803(5)(A)-(C); see also Alatorre, 191 Ariz. at 212, ¶ 10. Defense counsel
acknowledged in the motion for new trial that these foundational requirements for admission under Rule 803(5) were met.Vitasek, 2020 WL 949561, at *1.
First, Petitioner claims the court was required to conduct a “trustworthiness hearing” to determine the admissibility of the statements. (Doc. 1-1 at 1.) The rule does not require a court to conduct a “trustworthiness hearing,” and Petitioner cites no established law of the Supreme Court of the United States to support his claim. Any claim that state rules of evidence were not followed is not cognizable. The “failure to comply with the state's rules of evidence is neither a necessary nor a sufficient basis for granting habeas relief.” Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991).
More broadly, Petitioner argues that the admission of the recordings of these witnesses violated his due process and Confrontation Clause rights. Petitioner “challenges the accuracy and contemporaneity of the hearsay” recordings. (Doc. 1-1 at 1-2.) He alleges the Arizona Court of Appeals unreasonably determined the facts “by stating the Rule 803(5) requirements were met.” (Id. at 3.) “It is well settled that a state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceeding so fundamentally unfair as to violate due process.” Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir. 1999).
Here, Petitioner has not identified any clearly established United States Supreme Court law holding that the admission of victim hearsay statements violates due process where the victim testified at trial. As such, Petitioner's is not entitled to habeas relief. See Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (holding that under AEDPA courts have no power to grant habeas relief for a claim premised on the erroneous admission of evidence because the United States Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ”); Zapien v. Martel, 849 F.3d 787, 794 (9th Cir. 2015) (holding that “[b]ecause there is no Supreme Court case establishing the fundamental unfairness of admitting multiple hearsay testimony,” claim was barred on federal habeas review).
Further, Petitioner fails to establish that the admission of the recording was so fundamentally unfair as to violate due process. See Dowling v. United States, 493 U.S. 342, 352 (1990) (explaining that due process is violated only when the introduction of evidence “is so extremely unfair that its admission violates fundamental conceptions of justice”) (additional quotation omitted). Petitioner does not deny the witnesses testified at trial and were subject to cross-examination. The admission of prior statements of these witnesses was not so fundamentally unfair to warrant habeas relief. United States v. Patterson, 678 F.2d 774, 779 (9th Cir. 1982) (noting that “[b]road discretion for the trial judge is clearly intended under Fed.R.Evid. 803(5)”).
Finally, Petitioner also fails to establish a violation of his confrontation rights. As explained in Grounds One and Three, Petitioner was capable of confronting the witnesses who were called to testify at trial. In California v. Green, the Supreme Court held that “the Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” 399 U.S. 149, 158 (1970). See also, United States v. Porter, 986 F.2d 1014, 1017 (6th Cir. 1993) (“While Rule 803(5) treats recorded recollection as an exception to the hearsay rule, the hearsay is not of a particularly unreliable genre. This is because the out-of-court declarant is actually on the witness stand and subject to evaluation by the finder of fact, in this case the jury”); Jones, 601 F.3d 1247 at 1263 (11th Cir. 2010) (finding admission of prior videotape recording of witness statements under Fed.R.Evid. 803(5) did not violate petitioner's “Sixth Amendment right to confront witnesses against him”).
Petitioner is not entitled to relief on Ground Four.
E. Ground Five.
In Ground Five, Petitioner alleges he was “denied a 14th Amendment right to Due Process and a 6th Amendment right to effective assistance” when the court failed to hold a hearing regarding the victim's chastity pursuant to A.R.S. § 13-1421(A), which generally prohibits a criminal defendant from introducing at trial evidence relating to a victim's reputation for chastity and opinion evidence relating to a victim's chastity. (Doc. 1-1 at 5.) Petitioner alleges the denial of “unchastity” was not supported in the record, the court refused to hold a “pretrial chastity hearing,” and counsel failed to ensure a chastity hearing was held. (Id.) Petitioner's allegations were raised on direct appeal as a federal claim when Petitioner cited to the Sixth Amendment and cited Davis v. Alaska, 415 U.S. 308 (1973). (Doc. 10-2, Ex. E, at 55.)
1. Background.
Petitioner filed a pre-trial motion on September 8, 2010 seeking permission to question the victims on their prior sexual activity and to introduce evidence of the same. (Doc. 10-6, Ex. Y, at 3-12.) Petitioner claimed “no sexual abuse occurred,” and that the victims' allegations were false and the product of improper police questioning. (Id. at 3-5.) Specifically, Petitioner alleged that during their police interviews, the victims were “forced” to disclose sexual activity that had occurred between one another and then “threatened” with criminal charges for that activity “if they failed to state [Petitioner] was involved.” (Id. at 4.) As a result, Petitioner claimed the victims “fabricate[d] abuse” to “appease the abusive officer” and “place the blame for the sexual activity on [Petitioner]” to avoid prosecution. (Id. at 5.) Petitioner argued it was “essential that [he] be permitted to prove the sexual activity among the children which led to the detectives' threats.” (Id.).
Evidence of a victim's prior sexual activity, however, is generally inadmissible pursuant to Arizona's rape-shield law, A.R.S. § 13-1421, which “dictates the circumstances under which [such evidence] may be admitted.” State v. Herrera, 307 P.3d 103, 116-17 (Ariz.Ct.App. 2013). To be admissible under A.R.S. § 13-1421, the evidence must fall into one of five categories: (1) evidence of past sexual conduct with the defendant; (2) evidence showing the source or origin of semen, pregnancy, disease or trauma; (3) evidence that supports a claim that the victim has a motive in accusing the defendant of the crime; (4) evidence offered for the purpose of impeachment when the prosecutor puts the victim's prior sexual conduct in issue; and (5) evidence of false allegations of sexual misconduct made by the victim against others. A.R.S. § 13-1421(A). Further, the evidence must be “relevant” and “material to a fact in issue” and “the inflammatory or prejudicial nature of the evidence [must] not outweigh [its] probative value.” Id. These requirements must be met “by clear and convincing evidence.” A.R.S. § 13-1421(B).
Petitioner argued the sexual activity he sought to prove was admissible under subsections (3), (4), and (5) of A.R.S. § 13-1421(A). (Doc. 10-6, Ex. Y, at 6-7.) On October 7, 2010, the court held a hearing on Petitioner's motion and denied it for lack of a sufficient basis to admit this evidence. (Doc. 27-5, Ex. LL, at 21-29; Doc. 10-6, Ex. Z, at 18-19.) In explaining its ruling, the court stated:
The Court doesn't have before it any evidence from these victims that they provided information because they felt threatened by the officer or believed that if they did not provide the information they were going to be criminally charged.
[W]ithout that evidence you can't establish that the evidence you're seeking to admit supports your claim that this is motive evidence. If the State does, during the trial, offer evidence that the victims learned sexual behavior solely because of their association with you or their involvement with you, then I think that you have a legitimate basis to impeach that testimony.
Similarly, if the State provides evidence or you can establish that these victims were threatened by the detective and only provided this information because they were threatened with criminal prosecution if they did not cooperate or provide information, then again, I think you have a basis for perhaps inquiring on cross-examination or impeaching with this information. Short of those two things, I don't see where the Court has any basis for allowing this evidence to come in.(Doc. 27-5, Ex. LL, at 24-25.)
Petitioner alleged the victims used “knowledge of prior sexual acts to accuse [him] of the same things that they were doing.” (Doc. 27-5, Ex. LL, at 22.) In response, the court noted the state was not intending to offer evidence that the victims had learned sexual behavior from Petitioner. (Id. at 23.)
Petitioner re-urged his motion at trial, but the court denied it. (Doc. 10-6, Ex. GG, at 86-87; Doc. 30-9, Ex. J, at 48-49, 66-75.) On cross-examination of the state's expert witness on interviewing child sexual abuse victims, defense counsel asked, “Do you see among juvenile sex offenders what I refer to as child sexual experimentation?” (Doc. 30-9, Ex. J, at 48.) The court sustained the state's objection to the question on relevance and A.R.S. § 13-1421 grounds. (Id. at 48-49.) Defense counsel objected to the court's ruling and argued that questioning and evidence related to certain victims' prior sexual activity was admissible under § 13-1421(A)(3) as motive evidence because of threats made to these victims during their police interviews. (Id. at 66-75.) However, the court noted that any alleged threats would go towards the integrity of the victims' interviews, which could be challenged during cross-examination of the officers who conducted them. (Id. at 72-75.)
On appeal, Petitioner argued the trial court abused its discretion in excluding this evidence because it “fail[ed] to conduct the mandatory hearing pursuant to A.R.S. [§] 13-1421(B).” (Doc. 10-2, Ex. E, at 44.) He claimed the trial court excluded the evidence “[w]ithout any reviewing any evidence or without knowing the facts of the case or without holding the mandatory chastity hearing.” (Id. at 47.) He claimed the exclusion of this evidence restricted his constitutional rights to present his defense and cross-examine witnesses, citing federal case law. (Id; see also Id. at 50-55.)
The Arizona Court of Appeals addressed Petitioner's challenges to the trial court's A.R.S. § 13-1421 rulings and found it “did not abuse its discretion by precluding evidence of the victims' prior sexual conduct.” (Doc. 1-4, Ex. A, at 14-15.) Specifically, the court of appeals stated:
Vitasek . . . challenges the superior court's rulings under Arizona's rape shield law, A.R.S.§ 13-1421, precluding evidence of the victims' prior sexual conduct. . . .
Vitasek claims that the § 13-1421 ruling impermissibly restricted his due process right to present evidence in his own defense and to cross-examine the victims. But these rights are subject to reasonable limitation based on evidentiary rules. See Holmes v. South Carolina, 547 U.S. 319, 326 (2006) [citation omitted]. And this court has previously rejected the same constitutional challenges to § 13-1421. Gilfillan, 196 Ariz. at 403, ¶ 23.
Vitasek further asserts that the evidence of the victims' prior sexual conduct was relevant to establish their motive to falsely accuse him because investigators threatened them with prosecution, which induced the allegations. See A.R.S. § 13-1421(A)(3). But, as the superior court noted, Vitasek failed to show (by clear and convincing evidence or otherwise) any link establishing that the allegations against him were motivated by particular prior acts by the victims. Moreover, even under Vitasek's theory, it was the alleged threats by the detectives, not the underlying prior acts, that arguably could bear on motive to fabricate. Vitasek was in fact permitted to point out perceived inadequacies in the detectives' interview techniques-including the so-called “threats”-to attempt to undermine the integrity of the interviews.
Accordingly, the superior court did not abuse its discretion by precluding evidence of the victims' prior sexual conduct.(Id.)
2. Discussion.
Petitioner's Ground Five claim (the failure to hold a hearing) is not supported in the record because the court held two hearings on the issue. On October 10, 2010, Judge Stephens held oral argument on Petitioner's motion (doc. 10-6, Ex. Y, at 3) but denied the motion (doc. 10-6, Ex. Z, at 19). During trial, on September 26, 2011, Petitioner's counsel asked Judge Reinstein for permission to question the state's expert witness about “juvenile sex offenders” to “use those answers . . . to then talk about some previous sex history of some of the victims that we think fits into one of the exceptions of 1421.” (Doc. 10-6, Ex. FF, at 73-74.) After a discussion with counsel, the court took the matter under advisement. (Id. at 74-83.) On September 27, 2011, the court denied, by written ruling, Petitioner's request to introduce the victim's “sexual activity with each other” pursuant to § 13-1421. (Doc. 10-6, Ex. GG, at 86.) Petitioner appears to allege that an evidentiary hearing was required, but neither Arizona nor federal law requires an evidentiary hearing with witnesses be held. See State v. Grove, 2007 WL 5582237, at *5 (Ariz.Ct.App. 2007) (“Section 13 -1421(B) does not require an evidentiary hearing prior to the exclusion of evidence.”); United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000) (an evidentiary hearing on a motion to suppress is not always required). Petitioner argues that the Court “ignored” the issue, but the record does not support this allegation. Accordingly, Petitioner's Ground Five claim fails.
Section 13-1421 (B) states: “Evidence described in subsection A shall not be referred to in any statements to a jury or introduced at trial without a court order after a hearing on written motions is held to determine the admissibility of the evidence.” (Emphasis added.)
F. Ground Six.
In Ground Six, Petitioner argues his Sixth and Fourteenth Amendment rights were violated when “the trial court judge precluded relevant unchastity evidence of the State's witnesses.” (Doc. 1-1 at 11.) Petitioner previously argued that when investigators spoke with the victims, the investigators threatened to prosecute the victims for sexual crimes against each other if they refused to talk about Petitioner. Because of these threats, Petitioner submits that the victims were induced to falsely accuse him. Judge Reinstein's mid-trial ruling stated: “The Court has reviewed the portions of the transcripts containing the police interviews of C.K., Ch.K, S.K. and M.E. as requested by the Defendant. After review, the Court finds that evidence proffered by the defendant, does not meet the requirements of A.R.S. § 13-1421(3) (or any of the other exceptions to the statue).” (Doc. 10-6, Ex. GG, at 86.) The court also found the evidence failed to meet the clear and convincing standard required under the statute.
As discussed under Ground Five, Petitioner cited to the Sixth Amendment, Davis v. Alaska, 415 U.S. 308 (1973), and argued the “total exclusion of the accuser's sexual activity violated the Defendant's Confrontation Clause rights….” (Doc. 10-2, Ex. E, at 55.)
With respect to this issue, the Arizona Court of Appeals ruled:
Vitasek further asserts that the evidence of the victims' prior sexual conduct was relevant to establish their motive to falsely accuse him because investigators threatened them with prosecution, which induced the allegations. See A.R.S. § 13-1421(A)(3). But, as the superior court noted, Vitasek failed to show (by clear and convincing evidence or otherwise) any link establishing that the allegations against him were motivated by particular prior acts by the victims. Moreover, even under Vitasek's theory, it was the alleged threats by the detectives, not the underlying prior acts, that arguably could bear on motive to fabricate. Vitasek was in fact permitted to point out perceived inadequacies in the detectives' interview techniques-including the so-called “threats”-to attempt to undermine the integrity of the interviews.
Accordingly, the superior court did not abuse its discretion by precluding evidence of the victims' prior sexual conduct. And preclusion of this evidence rendered irrelevant Vitasek's requested evidence of some victims' ADHD medications and expert testimony regarding potential sexual side effects (allegedly “creat[ing] propensity for these boy[s] to sexually molest one another”). Accordingly, his argument that the court erred by disallowing the ADHD evidence fails.Vitasek, 2020 WL 949561, at *8.
1.Right to Confrontation.
The Supreme Court has long recognized that the right of confrontation includes a right to an opportunity for effective cross examination of witnesses against the defendant. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.'” Crane, 476 U.S. at 690 (citations omitted) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). Moreover, the Court has recognized that this right extends to cross-examination on motives to falsely accuse the defendant.
But the “right to present relevant testimony is not without limitation. The right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. We have explained, for example, that trial judges retain wide latitude to limit reasonably a criminal defendant's right to cross-examine a witness based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Michigan v. Lucas, 500 U.S. 145, 149 (1991) (quotations omitted).
When a state evidence rule permits the exclusion of the evidence, a court conducting a Confrontation Clause analysis must go further and determine that the restriction on the defendant's right to confront the witness is not “arbitrary or disproportionate” to the purposes the state evidence rule was designed to serve. Id. at 151. “[S]tate and federal rule makers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quotation omitted). “Only rarely [has the Supreme Court] held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence.” Nevada v. Jackson, 569 U.S. 505, 509 (2013).
2. Petitioner's Claim.
Petitioner argues his Sixth and Fourteenth Amendment rights were violated when “the trial court judge precluded relevant unchastity evidence of the State's witnesses.” (Doc. 1-1 at 11.) The trial court summarized his claim: “The Defendant argues that the alleged victim's sexual activities with each other provide a motivation for the accusations made by them against the Defendant. The Defendant has further argued that evidence that S.K., one of the alleged victims in this case, was a victim of molestation by Jessica Jeffries is relevant as to S.K.'s credibility.” (Doc. 10-6, Ex. GG, at 86.) The court found “that evidence proffered by the defendant, does not meet the requirements of A.R.S. § 13-1421(3) (or any of the other exceptions to the statue).” (Id.)
Petitioner does not describe the specific evidence the court should have admitted. Instead, Petitioner states that “evidence of the unchastity which the petitioner was going to present during trial” can be found in “PCR Exhibits A,B,C,D, E and Exhibit ‘C of the petition for review filed with the Arizona Court of Appeals on 8-1-19.” (Doc. 1-1 at 12.) The PCR petition filed by counsel does not appear to reference or contain exhibits. (See Doc. 10-3, Ex. J, at 54-85.) Petitioner filed an amended petition (Doc. 10-3, Ex. L, at 90-101) and a supplement (doc. 10-3, Ex. N, at 111-124), but those filing do not reference or contain exhibits. The Petition for Review filed in the Arizona Court of Appeals contains “Exhibits A, B, C, and D.” (Doc. 10-4, Ex. O, at 30-46.) This Court has found examples of the factual allegations in the petition for review and trial transcripts. See e.g. doc. 30-4 at 58 (Opening statement: “[M.E.] and [S.K.] were threatened with criminal prosecution. . . for sex acts [they] engaged with other kids”); doc. 10-4 at 39 (Petition for Review Attachment -ME accuses SK and his friend Wes of performing oral sex on each other”); id. (“SK being masturbated by ME in the petitioner's truck”); id. at 40 (“BM was caught by the defendant molesting ME at the public pool”); id. at 41 (“BM, CM, and ME swimming naked at the pool”).
Petitioner fails to establish that the ruling of the Arizona Court of Appeals 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 Supreme Court has instructed that “[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, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). A federal court “may not grant the habeas petition unless the state court's decision was not merely wrong, but actually unreasonable.” Oliver v. Davis, 2022 WL 481457, at *5 (9th Cir. 2022) (citation and quotations omitted).
A fairminded jurist could have found that the exclusion of the victims' other acts pursuant to A.R.S. § 13-1421 did not deprive Petitioner of an opportunity to present a meaningful defense. As noted by the court of appeals, his due process rights to do so were “subject to reasonable limitation based on evidentiary rules.” (Id. at 14.) Indeed, in Holmes v. South Carolina, cited by the court of appeals, the Supreme Court stated that “[s]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” 547 U.S. at 324 (internal quotation marks and citations omitted). Further, the Supreme Court has recognized the legitimate interests a rape-shield law serves by restricting presentation of a rape victims' prior sexual acts, namely: “to protect victims of rape from being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior.” Lucas, 500 U.S. at 146; see also Anderson v. Morrow, 371 F.3d 1027, 1030 (9th Cir. 2004) (“A state passing a rape shield law makes a ‘valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy.'” (citations omitted)); Tavizon-Jimenez v. Schriro, No. CV 05-3573-PHX-JAT, 2006 WL 3490942, at *10 (D. Ariz. Dec. 1, 2006) (“[T]he State of Arizona has a legitimate interest in excluding certain evidence under its rape-shield law.”).
Also, the trial court did not preclude questioning regarding threats and interrogation techniques that were used by detectives when interviewing/questioning the victims. Petitioner's trial counsel questioned at least one detective regarding their interrogation techniques. (See Doc. 30-10, Ex. L, at 77 (September 28, 2011 Jury Trial Transcript - Cross Examination of Detective Thomas).) Specifically, on cross examination of Detective Thomas, Petitioner's trial counsel questioned the Detective about a transcript of his interview with one of the victims, asking: “[Y]ou actually do tell [Ch.K.] or ask him, ‘do you want to be a victim or a suspect;' right?” (Id.) When Detective Thomas denied calling the victim a suspect, defense counsel asked again “ . . . but you laid it out there that he could be a suspect?” (id.)
Petitioner's trial counsel was also afforded the opportunity to question the victims themselves about their interviews with the authorities. (See, e.g., Doc. 30-6, Ex. G, at 110 (September 8, 2011 Jury Trial Transcript - Cross Examination of Ch.K.).) On cross examination of victim, Ch.K., Petitioner's counsel pointedly asked “Did [the detective] ever threaten you during that interview with possible prosecution?” (Id.) Ch.K. answered “Not that I recall.” (Id. at 111.) Additionally, during closing argument, Petitioner's trial counsel discussed to the jury how detectives repeatedly threatened the victims. (See Doc. 31-6, Ex. at 70-74.) Specifically, trial counsel discussed, how “everyone one of [the victims] was threatened” (doc. 31-6, Ex. T, at 71.) and how “[t]hese weren't forensic interviews. They were police interrogations.” (id. at 73).
Petitioner fails to establish that the decision of the Arizona Court of Appeals was unreasonable. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult to meet” and “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt” (internal quotation marks and citations omitted)): Powell v. Ryan, No. CV-11-00271-TUC-FRZ, 2014 WL 4053446, at *14 (D. Ariz. Aug. 14, 2014) (“Where, as here, Petitioner fails to offer sufficient evidence of his motive-to-fabricate theory, it is not an unreasonable application of Supreme Court precedent to hold that sexual history impeachment evidence is not admissible.”).
3. Ineffective Assistance of Counsel.
Petitioner's allegation that counsel provided ineffective assistance by failing to ensure a chastity hearing was conducted fails on the merits. The Court finds that Petitioner raised this claim in PCR proceedings. Petitioner, though counsel, filed a PCR petition, where he did not raise this claim. (Doc. 10-3, Ex. J, at 53-85.) But Petitioner, filing pro se, filed a supplement to the PCR petition where he argued “counsel was ineffective” by failing to provide “correct rulings” to the court regarding a chastity hearing. (Doc. 10-3, Ex. N, at 114-115.) In a Petition for Review in the Arizona Court of Appeals, Petitioner argued counsel failed “to secure the admissibility of this evidence at a mandatory pretrial chastity hearing.” (Doc. 10-4, Ex. O, at 10.) On PCR review, the Arizona Court of Appeals ruled that his “ineffective assistance of counsel claim fails because he does not argue that trial counsel's performance fell below reasonable standards or caused him prejudice.” State v. Vitasek, 2020 WL 949561, at *2 (Ariz.Ct.App. 2020).
Here, counsel is not at fault where counsel notified the court of the § 13-1421 chastity issue, repeatedly requested a hearing, and argued on behalf of Petitioner. Under Strickland v. Washington, a petitioner must show that (1) “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment,” and (2) “the deficient performance prejudiced the defendant.” 466 U.S. 668, 687 (1984). Under the first prong, a petitioner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688-89. Federal habeas review of a state court ruling on a Strickland claim is also subject to “double deference” because “the federal court asks whether it was reasonable for the state court to find whether trial counsel's performance fell within the range of reasonable professional assistance.” Hardy v. Chappell, 849 F.3d 803, 825 (9th Cir. 2016).
Petitioner's claim fails because he does not demonstrate that counsel's conduct was objectively unreasonable. In the Petition, Petitioner argues counsel failed to “ensure a chastity hearing had been conducted prior to trial” but he submits that “Judge Stephens refused to conduct the chastity hearing” requested by the defense. (Doc. 1-1 at 7.) In fact, on October 7, 2010, Judge Stephens held oral argument on Petitioner's motion (doc. 10-6, Ex. Y, at 3) but denied the motion (doc. 10-6, Ex. Z, at 19). In his pro se PCR motion, Petitioner agreed that a “month into trial counsel argued the chastity hearing motion was filed and Judge Reinstein must conduct the hearing.” (Doc. 10-3, Ex. N, at 115.) During trial, on September 26, 2011, Petitioner's counsel asked the court for permission to question the state's expert witness about “juvenile sex offenders” to “use those answers . . . to then talk about some previous sex history of some of the victims that we think fits into one of the exceptions of 1421.” (Doc. 10-6, Ex. FF, at 73-74.) The record shows that the day after the September 26, 2011 argument, the court denied the motion by written ruling. (Doc. 10-6, Ex. GG, at 86.)
In his Reply, Petitioner submits that “even though Judge Reinstein was instructed numerous times, the chastity evidentiary hearing ha[d] yet to be conducted, he ignored the plight and merely precluded all chastity evidence.” (Doc. 27-1 at 7.) Although Petitioner is only partially correct, Petitioner's argument affirms that counsel repeatedly requested the court admit evidence regarding the victims' history.
The record shows that counsel repeatedly, though unsuccessfully, argued for the admissibility of this evidence at trial. (See Doc. 30-9, Ex. K, at 184-86; Doc. 30-9, Ex. J, at 48-49, 66-75.) Although counsel's arguments were ultimately unpersuasive, they reflected reasonable competence with respect to these issues, which is all the Sixth Amendment requires. See Buck v. Davis, 137 S.Ct. 759, 775 (2017) (“The lawyer has discharged his constitutional responsibility so long as his decisions fall within the ‘wide range of professionally competent assistance.'” (citation omitted)); Harrington, 562 U.S. at 110 (“Strickland does not guarantee perfect representation, only a ‘reasonably competent attorney.'” (citations omitted)); Valdez v. Ryan, No. CV-17-00509-TUC-RM (DTF), 2019 WL 6970947, at *15 (finding petitioner failed to establish deficient performance because he “fail[ed] to describe any specific evidence that his trial counsel could have presented to the trial court that fit[] within one of the exemptions to A.R.S. § 13-1421”), adopted by Valdez v. Brnovich, 2019 WL 6909573 (D. Ariz. Dec. 19, 2019).
4. Prescription Drug Use
Petitioner also argues that the court “precluded counsel from disclosing the prescription drugs the boys were taking without conducting a hearing. . . .” (Doc. 1-1 at 13.) He asserts that once “the Mesa detectives ‘forced' the boys to create false abuse claims, the side effects would cause the boys to believe the stories they were forced to create.” (Id.) In his pro se appellate brief, Petitioner argued that “the court precluded the information that there were a group of boys taking medication that caused them to molest one another.” (Doc. 10-2, Ex. E, at 57.) Petitioner argued that “Wendy Dutton had knowledge of ADHD medications and how this type of medicine affects children's sexual desires. . . .” (Id. at 56.) The Arizona Court of Appeals ruled: “[Preclusion of this evidence rendered irrelevant Vitasek's requested evidence of some victims' ADHD medications and expert testimony regarding potential sexual side effects (allegedly ‘‘creating] propensity for these boy[s] to sexually molest one another”). Accordingly, his argument that the court erred by disallowing the ADHD evidence fails.” (Doc. 1-4 at 15.)
When the court precluded other act evidence under § 13-1421, it was not unreasonable for the court to preclude testimony alleging certain drugs would cause them to engage in those other acts.
G. Ground Seven.
Petitioner claims he was denied due process under the Fourteenth Amendment “because the prosecutor failed to prove every element of the charged crimes beyond a reasonable doubt.” (Doc. 1-1 at 16.) Petitioner claims the evidence admitted under Rule 803(5) was not properly before the jury because the trial court “failed to conduct the Rule 803(5) reliability and trustworthiness hearing” and the evidence “failed to meet the rule's requirements [and therefore] should not have been used to refresh the witnesses' memories.” (Id.; Doc. 1-2 at 2.) Petitioner asserts that when this evidence is removed from consideration, “any count where the interviews were used. . . must be dismissed. . . .” (Doc. 1-1 at 16.)
As a result, Petitioner claims he “is innocent and no procedural default can be used to deny habeas corpus relief.” (Doc. 1-1 at 16.)
On appeal, Petitioner claimed the trial court erred in “allowing the state to use the children's recorded statements to prove the truth of the matter.” (Doc. 10-2, Ex. E, at 59.) As noted in Grounds Three and Four, the Arizona Court of Appeals denied relief and found that the trial court “did not abuse its discretion by admitting the recordings and allowing the State to play them for the jury” because they were properly admitted as substantive evidence under Ariz. R. Evid. 803(5) and “[d]efense counsel acknowledged in the motion for new trial that [the] foundational requirements for admission under Rule 803(5) were met.” (Doc. 1-4, Ex. A, at 15-16.)
Petitioner is not entitled to relief on Ground Seven because it is premised solely on the alleged inadmissibility of evidence under Ariz. R. Evid. 803(5). As explained above, the ruling of the Arizona Court of Appeals on this issue was not unreasonable. Petitioner does not argue the evidence was insufficient if the Rule 803(5) evidence is included in the sufficiency analysis. Given that the evidence before the jury contained the victims' recorded interviews during which the victims stated that Petitioner had sexually abused them, the evidence before the jury was sufficient for it to find Petitioner guilty as charged beyond a reasonable doubt.
Accordingly, the Court recommends that Ground Seven be dismissed for failure to make the showing required for habeas relief under 28 U.S.C. § 2254(d).
H. Ground Eight.
Petitioner claims the trial court violated his due process, compulsory process, and Confrontation Clause rights by allowing the State to redact certain portions of the recordings of the victims' police interviews before presenting them to the jury. (Doc. 1-2 at 5.) Petitioner largely repeats his claims that the court improperly excluded, under A.R.S. § 13-1421, other act evidence concerning the victims. (Id.) Petitioner further asserts that redacting the precluded evidence from the recordings rendered his counsel ineffective because his counsel was precluded from showing evidence of the “improper questioning technique[s]”; cross-examining the victims on the redacted portions that showed they had “a motive to lie”; and obtaining expert testimony on the redacted portions. (Id. at 7-8.)
The Court has already addressed the court's rulings regarding A.R.S. § 13-1421. (See supra Grounds Five and Six). Because Petitioner is not entitled to relief on the merits of the Arizona Court of Appeals decision, he is not entitled to relief on the same claim arguing the redactions were improper. Accordingly, the Court recommends that relief for Ground Eight be denied.
I. Ground Nine.
Petitioner claims he was denied his due process right to a fair trial due to alleged prosecutorial misconduct consisting of: (1) presentation of “false rulings” to the trial judge, (2) “manipulation]” of witness testimony, (3) Miranda violations, (4) “use of unauthenticated documents,” (5) “perjury to the grand jury,” (6) “improper use of recordings and improper redactions,” (7) “prosecutor testified during trial,” (8) “improper closing statement remarks,” (9) “discovery violations,” and (10) “concealment and deception.” (Doc. 1-2 at 10-24.) Each of these general assertions and the specific allegations underlying them will be addressed in turn below.
1. Procedural Status of Claims in Ground Nine.
As an initial matter, Petitioner did not expressly raise a claim of prosecutorial misconduct on direct appeal. Petitioner's appellate counsel filed an Anders brief that asked the court to review the entire record for fundamental error. (Doc. 13-1, Ex. O, at 74.) Subsequently, Petitioner inserted allegations throughout various claims in his pro se memorandum.
See, e.g., Doc. 10-2, Ex. E, at 18 (“The State refused every discovery requested and would not disclose anything without a court order.” & “On the court[-]ordered discovery the State either refused to disclose, i.e., CPS records, witnesses new stories, school records, prescription drug information, or reargued the motion before other judges before finally complying.”), 19 (“The prosecutor changed the boys trial testimony to swimming suits for the boys.”), 20 “The Court used summ[a]ries submitted by the state which were misleading and caused the court to misstate the facts located within the records.”), 29 (“During trial the state used the hearsay police reports which contained several unauth[e]nicated documents, i.e., a letter from somebody that the defendant did not know and had been tampered with.”), 33 (“The state used [the Arizona Victims Bill of Right] as a way to gain a tactical advantage at trial because the state knew what the witnesses] were going to testify to whereas the defendant did not.”), 33-34 (“This discovery was never disclosed and no immunity agreements or the disclosure of the interviews offering immunity were disclosed.”), 45 (“The state, taking advantage of the new judge's unfamiliarity of the case fed the court rulings from other courts that did not exist to [e]nsure they would win the A.R.S. [§] 13-1421 issues.”). On PCR review to the Arizona Court of Appeals, Petitioner alleged the “prosecutor committed misconduct to the point it denied the petition of his right to a fair trial.” (Doc. 10-3, Ex. L, at 93-94.)
A request for Anders review does not exhaust all claims. See Reed v. Schriro, 2008 WL 3977604, at *1 (9th Cir. Aug. 28, 2008) (“The fact that the Arizona Court of Appeals complied with [Petitioner's] [Anders] request to ‘search the record for fundamental error' was not sufficient to exhaust the claim.”); Smiley v. Ryan, 2014 WL 7272474, *13 (D. Ariz. Dec. 18, 2014) (“Petitioner's claims were not exhausted simply by virtue of the review for error pursuant to Anders.”). On Anders review, the Arizona Court of Appeals expressly found that Petitioner had “not shown misconduct, much less pervasive misconduct warranting relief.” (Doc. 1-4, Ex. A, at 17-18.)
The Court will review those claims addressed by the Arizona Court of Appeals. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available.”); Casey v. Moore, 386 F.3d 896, 916 n.18 (9th Cir. 2004) (“Of course, a claim is exhausted if the State's highest court expressly addresses the claim, whether or not it was fairly presented.”). Although the Arizona Court of Appeals did not expressly address each allegation of misconduct raised in finding no misconduct,Petitioner's burden of showing entitlement to relief under 28 U.S.C. § 2254(d) “still must be met by showing there was no reasonable basis for the state court to deny relief. This is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for § 2254(d) applies when a ‘claim,' not a component of one, has been adjudicated.” Richter, 562 U.S. at 98. Thus, rather than reviewing the merits of allegations of misconduct that the Arizona Court of Appeals did not expressly address de novo, the Court “must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. at 102. In any event, the issue of exhaustion is ultimately immaterial to some allegations in Ground Nine because they fail on their merits, even upon a de novo review, as explained below. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”).
For instance, the Arizona Court of Appeals summarily denied allegations of misconduct that were “premised on the alleged impropriety of the rulings” it had affirmed earlier in its decision. (Doc. 1-4, Ex. A, at 18.)
2. Analysis & Conclusions.
In reviewing a claim of prosecutorial misconduct on habeas review, “[t]he relevant question is whether the [challenged conduct] ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted). Relief is warranted only where the conduct “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (citation omitted).
a. Presentation of “False Rulings” to the Trial Judge.
Petitioner alleges the state “took advantage” of the newly-assigned trial judge by presenting the judge with “false rulings” purportedly made by previously-assigned judges in order to gain “a tactical advantage” and “ensure the court would not conduct the chastity hearing.” (Doc. 1-2 at 10-11.) Petitioner alleges these “false rulings” stated he “never requested a chastity hearing” and authorized the state to redact “improper sexual questioning” from the victims' recorded interviews. (Id.) As a result, Petitioner claims he was deprived of his “defense as well as all of the exculpatory evidence [he] needed to show [that the victims' allegations were false].” (Id. at 11; see also Id. at 14, 21-22.)
On appeal, Petitioner claimed that “[t]he state, taking advantage of the new judge's unfamiliarity of the case fed the court rulings from other courts that did not exist to [e]nsure they would win the A.R.S. [§] 13-1421 issues.” (Doc. 10-2, Ex. E, at 45; see also Doc. 10-3, Ex. F, at 6-8.) The Arizona Court of Appeals rejected this claim, stating:
Vitasek . . . claims that the State took advantage of newly assigned judges to undermine previous rulings and reargue motions that had been resolved in Vitasek's factor, particularly the admissibility of victims' prior sexual conduct under A.R.S. § 13-1421. The court had not, however, previously granted Vitasek's request to admit this evidence, and had in fact denied his “Motion to Allow Evidence of Complainant's Prior Sexual Conduct.” Although he asserts that the State improperly redacted the recordings of the interviews to remove references to the victims' prior sexual conduct, redaction was appropriate given the court's order precluding this material under § 13-142 1. To the extent Vitasek argues that these redactions unfairly undermined his defense by removing significant portions of the allegedly improper interview techniques, he offered only two examples for the superior court's consideration, which the court reasonably found insufficient to warrant admission. And Vitasek was in fact permitted to point out perceived inadequacies in the interview techniques to support his argument.\(Doc. 1-4, Ex. A, at 18.)
Petitioner is not entitled to relief because the court of appeals' decision is consistent with clearly established federal law and a reasonable determination of the facts. See 28 U.S.C. § 2254(d). There is no factual basis for Petitioner's claim that “false rulings” created by the state prevented the presentation of evidence of the victims' prior sexual acts. As noted in Ground Five above, the court held two hearings and denied admission of the evidence by written rulings. See United States v. Cabrera, 201 F.3d 1243, 1247 (9th Cir. 2000) (“[T]he prosecutor did not engage in misconduct. He did not seek to introduce evidence that had been ruled inadmissible.”). And, as discussed in Ground Six, the trial court's exclusion of this evidence did not deny Petitioner his constitutional rights to present his defense.
On October 7, 2010, Judge Stephens held oral argument on Petitioner's motion (doc. 10-6, Ex. Y, at 3) but denied the motion (doc. 10-6, Ex. Z, at 19). On September 27, 2011, after a discussion with counsel on the record, the court denied, by written ruling, Petitioner's request to introduce the victim's “sexual activity with each other” pursuant to § 13-1421. (Doc. 10-6, Ex. GG, at 86.)
Because Petitioner the Arizona Court of Appeals reasonably determined that Petitioner failed to show any misconduct, much less misconduct that “had substantial and injurious effect or influence in determining the jury's verdict,” Brecht, 507 U.S. at 623, Petitioner is not entitled to relief under 28 U.S.C. § 2254(d). Accordingly, the Court recommends that this claim be dismissed for lack of merit.
b. Manipulation of Witness Testimony.
Petitioner alleges the prosecutor “manipulated] the evidence to obtain what she wanted, not the truth.” (Doc. 1-2 at 12.) Specifically, Petitioner alleges the prosecutor “changed [Ch.K.'s] trial testimony from pants to shorts or a bathing suit” and “C.K.'s testimony several times from pants to bathing suit.” (Id. at 11.) Petitioner further alleges C.A. “did not want to testify to what the prosecutor wanted” and therefore the prosecutor used “the tainted interview to get [him] to get his story from apartment to house.” (Id. at 12.) Petitioner also alleges the prosecutor “provided question and answer sheets to the witnesses” and that the family of one of the witnesses “coerced him to testify to what they wanted him to say.” (Id.) Lastly, Petitioner alleges the prosecutor “provided immunity for the crimes they boys committed in exchange for the staged testimony.” (Id.)
On appeal, Petitioner claimed that “the prosecutor changed the boys' trial testimony to swimming suits for the boys.” (Doc. 10-2, Ex. E, at 19.) He also claimed the state “provided question and answer sheets to the children to [e]nsure the children provided the answers the state wanted.” (Id. at 14.) The Arizona Court of Appeals did not specifically address these allegations but held that Petitioner's “other examples of alleged misconduct are premised on the allegedly impropriety of the rulings we have affirmed above. Accordingly, [Petitioner] has not shown misconduct, much less pervasive misconduct warranting relief” (Doc. 1-4, Ex. A, at 18.)
“[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976). “[T]he petitioner must show that (1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) that the false testimony was material.” United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003).
Petitioner does not make the requisite showing on any of his claims. Petitioner fails to show that the challenged testimony is actually false; mere inconsistency does not demonstrate falsity, and particularly where several years had gone by between when the abuse occurred and when the victims testified at trial. See United States v. Croft, 124 F.3d 1109, 1119 (9th Cir. 1997) (“The fact that a witness may have made an earlier inconsistent statement, or that other witnesses have conflicting recollections of events, does not establish that the testimony offered at trial was false.”). Petitioner also does not explain how this allegedly false testimony could have affected the jury's verdict and therefore fails to demonstrate its materiality and any reasonable likelihood that it could have affected the judgment of the jury. See Agurs, 427 U.S. at 103; Zuno-Arce, 339 F.3d at 889; see also Dixon v. Ryan, No. CV-14-258-PHX-DJH, 2016 WL 1045355, at *38 (D. Ariz. Mar. 16, 2016) (“[T]he inconsistencies [in witness testimony] related to collateral matters and were not material.”).
Further, Petitioner does not proffer any evidence to support his claim that the prosecutor provided immunity to the witnesses in exchange for “staged” testimony, resting it on mere speculation that is insufficient. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief”); Ratliff v. Hedgepeth, 712 F.Supp.2d 1038, 1066 (CD. Cal. 2010) (“[Petitioner has presented absolutely no evidence demonstrating the prosecutor presented false testimony to the jury or that he induced [the witness] to change her testimony. Therefore, there is no merit to this prosecutorial misconduct claim.”). Petitioner argues that “immunity agreements” were withheld and directs the Court to a Reply filed on February 3, 2010, which is not included in the record before this Court. (Doc. 1-2 at 17-18.) Petitioner raised this argument on direct appeal. (See doc. 10-2 at 33-35.) But Petitioner fails to prove that immunity agreements existed and were not disclosed, or how their disclosure was required when the court precluded the victims' sexual history. Further, Petitioner is not entitled to relief on his claim that the family of one of the witnesses “coerced” the witness to testify because Petitioner does not allege or show any nexus between this alleged coercion and the state. See James, 24 F.3d at 26. Finally, Petitioner fails to articulate any legal theory or explanation as to how the prosecutor's provision of “question and answer sheets” to the state's witnesses constituted misconduct, much less misconduct having a substantial and injurious effect or influence on the jury's verdict. See Brecht, 507 U.S. at 623 (1993).
Therefore, the Court recommends that these claims be dismissed for lack of merit. See Agurs, 427 U.S. at 103; Zuno-Arce, 339 F.3d at 889.
c. Miranda Violations.
Petitioner alleges that when he was arrested in Texas he was “forced to conduct an interview in order to obtain some socks for his frozen feet” despite evoking his Miranda rights. (Doc. 1-2 at 12.) Petitioner further alleges the prosecutor “obtained testimony” from a detective in Texas “in violation of Miranda.” (Id. at 12-13.)
Petitioner did not present these claims claim to the Arizona Court of Appeals in his direct appeal or in his petition for review (see doc. 10-2, Ex. E, at 3-71; doc. 10-3, Ex. F, at 2-17; doc. 10-4, Ex. O, at 3-47) and therefore they are unexhausted. See Swoopes, 196 F.3d at 1010. Further, they are implicitly procedurally defaulted because Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from asserting them in state court now. See Hurles, 752 F.3d at 780; Cooper, 641 F.3d at 327; Beaty, 303 F.3d at 987 (“If [petitioner] has any unexhausted claims, he has procedurally defaulted them, because he is now time-barred under Arizona law from going back to state court.” (citing Ariz. R. Crim. P. 32.2(a))). The procedural default is not excused as Petitioner does not show cause and prejudice or a fundamental miscarriage of justice. See Moormann, 426 F.3d at 1058.
Also, Petitioner fails to establish misconduct because the matter was brought before the trial court, which allowed the introduction of brief testimony. The parties had a hearing before Judge Stephens, who permitted the government to introduce testimony that Petitioner gave a false name to law enforcement before he invoked his Miranda rights. (Doc. 34-3, at 59-61.) The State sought to admit the testimony to establish Petitioner had assumed a false name and had abused a boy in Texas. (Doc. 1-4, Ex. A, at 5-7.)
d. Use of Unauthenticated Documents.
Petitioner alleges a Texas detective “created evidence” that the prosecutor used to impeach him. (Doc. 1-2 at 13.) Specifically, Petitioner alleges the prosecutor impeached him with a letter that was “altered, redacted to remove the author's name, signed on a different day it was notarized, and not authenticated or placed into [the] record as evidence.” (Id.) Petitioner claimed the alleged non-disclosure of the author's name violated his constitutional right to cross-examine the author and that the prosecutor “testified” for the author by reading the letter at trial. (Id.) Petitioner also alleges the prosecutor “read some internet postings to the jury . . . obtained from the Texas detective” written by individuals unidentified to Petitioner and that the prosecutor “testified” by reading these postings at trial. (Id.)
As an initial matter, the portion of Ground Nine premised on the state's use of “internet postings” is unexhausted because Petitioner did not present this claim to the Arizona Court of Appeals in his direct appeal or in his petition for review (see doc. 10-2, Ex. E, at 3-71; doc. 10-3, Ex. F, at 2-17; doc. 10-4, Ex. O, at 3-47). See Swoopes, 196 F.3d at 1010. Further, it is implicitly procedurally defaulted because Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from asserting it in state court now. See Hurles, 752 F.3d at 780; Cooper, 641 F.3d at 327; Beaty, 303 F.3d at 987 (“If [petitioner] has any unexhausted claims, he has procedurally defaulted them, because he is now time-barred under Arizona law from going back to state court.” (citing Ariz. R. Crim. P. 32.2(a))). The procedural default is not excused as Petitioner does not show cause and prejudice or a fundamental miscarriage of justice. See Moormann, 426 F.3d at 1058. The Court therefore does not address this specific claim. Accordingly, the Court recommends this claim be dismissed.
However, Petitioner did claim on appeal that “[d]uring trial the state used the hearsay police reports which contained several unauth[e]nicated documents, i.e., a letter from somebody that the defendant did not know and had been tampered with.” (Doc. 10-2, Ex. E, at 29.) Therefore this portion of Ground Nine is exhausted. The portion of the trial transcript cited by Petitioner in his habeas petition indicates this “letter” was actually an affidavit written by Justin L., the boy in Texas mentioned earlier in the Arizona Court of Appeals' summary of facts, supra, who said he met someone named “Rich Loper” who later was discovered to be Petitioner. (Doc. 31-5, Ex. S, at 17, 20; see Doc. 1-2 at 13 (citing Doc. 31-5, Ex. S, at 10-33).) At trial, the state used the affidavit to impeach Petitioner when he denied knowing anyone named Justin L. (Id. at 16-17.) In the affidavit, Justin stated he and “Richard,” whom he met on Craigslist, had “consensual sex” on two occasions. (Id. at 21.) Defense counsel objected and argued the affidavit was “hearsay” and not “legitimate” because it was “misdated” since it was dated September 8, 2006 by Justin but notarized by a police officer on September 7, 2006. (Id. at 17-20.) The trial court ruled the state could impeach Petitioner using the affidavit without it being entered into evidence. (Id. at 19.) There was no misconduct where the court authorized the use of the document. See also United States v. Landof, 591 F.2d 36, 39 (9th Cir. 1978) (holding “the law is clear that recollection can be refreshed from documents made by persons other than the witness”). Moreover, there is no factual basis to Petitioner's claim that the state withheld the name of the author of the letter. On cross-examination, the state asked Petitioner, “You reviewed an affidavit that was signed by Justin L[.] in September of 2006; correct?” to which Petitioner responded, “That's what this document appears to be.” (Id. at 20.) Further, Defense counsel acknowledged that the letter “clearly” contained Justin's handwriting. (Id. at 18.) As such, Petitioner's claims of prosecutorial misconduct in connection with Justin's affidavit are plainly meritless. Accordingly, the Court recommends that this claim be dismissed.
The Arizona Court of Appeals did not expressly address this claim in its decision. (See Doc. 1-4, Ex. A, at 3-20.)
e. Perjury to the Grand Jury.
Petitioner claims the prosecutor “committed perjury” when she told the grand jury that Petitioner “was wanted for taking a child out of the state.” (Doc. 1-2 at 14.) Petitioner is not entitled to relief on this claim because any error, including constitutional error, occurring at the grand jury proceeding was rendered harmless because Petitioner was found guilty as charged by a petit jury. See United States v. Mechanik, 475 U.S. 66, 70 (1986) (holding that where a defendant was convicted at trial “any error in the grand jury proceeding connected with the charging decision [is] harmless beyond a reasonable doubt” because a subsequent guilty verdict by a petit jury “means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt”); Williams v. Stewart, 441 F.3d 1030, 1042 (9th Cir. 2006) (“[A]ny constitutional error in the grand jury proceedings is harmless because Williams was ultimately convicted of the offenses charged.”). Accordingly, the Court recommends that this claim be dismissed.
f. Improper Use of Recordings and Improper Redactions.
In this subsection of Ground Nine, Petitioner reiterates claims already addressed by the Court. Specifically, Petitioner claims:
As stated in Grounds 2-6, the prosecutor provided false rulings to the court which authorized her to: A) redact interviews under false pretenses, B) use the tainted interviews to change a witness'[s] testimony, C) use the tainted interviews to prove the truth of the matter with no prior notice of the intent of use, D) waited to notify the petitioner and the court on the use of the interviews until after the witnesses had testified, been excused, no longer available for cross-examination, E) manipulated the court to comply with demands through false statements of fact false rulings, threats, and cajoling, and G) the use of the GP. interview [Texas detective interview] in violation of Miranda.”(Doc. 1-2 at 14.) For the reasons stated above, Petitioner is not entitled to relief on these claims.
g. Prosecutor Testified During Trial.
Petitioner alleges a number of instances where the prosecutor “testified” and “vouched” for the victims during trial. (Doc. 1-2 at 15.) However, nowhere among Petitioner's numerous allegations of misconduct on appeal did he present one specifically premised on improper prosecutorial testimony or witness-vouching. (See Doc. 10-2, Ex. E, at 3-71; Doc. 10-3, Ex. F, at 2-17; Doc. 10-4, Ex. O, at 3-47). Therefore, the instant claims are unexhausted. See Swoopes, 196 F.3d at 1010. Further, they are implicitly procedurally defaulted because Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from asserting them in state court now. See Hurles, 752 F.3d at 780; Cooper, 641 F.3d at 327; Beaty, 303 F.3d at 987 (“If [petitioner] has any unexhausted claims, he has procedurally defaulted them, because he is now time-barred under Arizona law from going back to state court.” (citing Ariz. R. Crim. P. 32.2(a))). Petitioner does not show cause and prejudice for the procedural default of either claim or a fundamental miscarriage of justice. See Moormann, 426 F.3d at 1058.
h. Improper Remarks During Closing Argument.
Petitioner claims the prosecutor's statements during closing argument were “improper” and “nothing more than an attack on . . . Petitioner's character and had nothing to do with the facts or evidence presented during trial.” (Doc. 1-2 at 16.) Petitioner alleges the prosecutor: (1) referred to him as a “liar,” “child molester,” and “serial child molester”; (2) stated he “lied on the stand,” “was lying and making up a story,” and “should be placed in the Guinness Book of World Records as the unluckiest person on the planet or he is guilty”; and (3) “commented on [his] voice to show he was lying.” (Id. at 16-17.)
Specifically, the prosecutor stated, “Also, on direct [Petitioner] testified. I think he even raised his voice and looked you in the eyes because he wanted to make a point of this lie.” (Doc. 31-6, Ex. T, at 49.)
These claims were not raised before the Arizona Court of Appeals and are procedurally defaulted without excuse.
i. Discovery Violations.
Petitioner claims that “during pretrial proceedings the prosecutor did everything within her power to thwart [his] access to the information he needed to investigate why these boys made these false sex abuse claims” and that “[absolutely nothing was provided [to him] unless there was an order from the court.” (Doc. 1-2 at 17.) Specifically, Petitioner alleges the state withheld the victims' immunity agreements and discussions related to those agreements. (Id. at 17-18.) Petitioner also alleges that Ch.K changed his trial testimony from what he had said in his recorded interview, but that the prosecutor never disclosed the “new” allegation to him beforehand. (Id. at 18.) Petitioner further alleges the state withheld records from Child Protective Services (“CPS”) which allegedly indicated that some of the victims were “molesting” other victims. (Id. at 18-19.) And finally, Petitioner alleges the prosecutor misstated facts and concealed police manipulation in summaries of the victims' interviews that the court relied on in making its ruling on the 404(c) evidence. (Id. at 20.)
Specifically, Petitioner claimed these records showed that certain victims who were siblings “were removed from their mother's home and separated because of the sexual crimes the older boys were doing with the younger one.” (Doc. 10-2, Ex. E, at 54.)
Petitioner also alleges that he was not provided the name of the author of the letter previously, which was addressed in Section V(H)(2)(d), supra. (Doc. 1-2 at 18.)
On appeal, Petitioner claimed that the state “refused every discovery request[] and would not disclose anything without a court order” and “either refused to disclose, i.e., CPS records, witnesses' new stories, school records, prescription drug information, or reargued the motion before other judges before finally complying.” (Doc. 10-2, Ex. E, at 18; see also Id. at 33-36 (“At trial most of the alleged victims changed their story to some degree.”).) Petitioner further claimed the state, citing the Arizona Victims' Bill of Rights, refused to allow him conduct pre-trial interviews of the victims as a “tactical advantage” and withheld the victims' immunity agreements and discussions related to those agreements. (Id. at 33-34.) Petitioner claimed “the hindering of discovery and the inability to investigate [the content of those agreements and discussions] in a pretrial interview left [his] counsel unprepared at trial making him ineffective.” (Id. at 33, 35.) Finally, Petitioner claimed that the trial court used summaries submitted by the state which were misleading and caused the court to misstate the facts located within the records.” (Id. at 20.) Petitioner claimed these summaries omitted “the manipulation used by the police to obtain the allegations” and that the prosecutor “then concealed this unethical [omission] by convincing the court to seal her wrongdoing.” (Id. at 20-21.)
The Arizona Court of Appeals denied relief on these claims, stating:
Vitasek claims the State improperly extended the proceedings through alleged intransigence in responding to his repeated discovery requests. But the superior court repeatedly found that the State had complied with its disclosure and discovery obligations. He further asserts that the State improperly used the Victims' Bill of Rights to secure a tactical advantage by preventing pretrial defense interviews with the victims, and then wrongfully failed to disclose that the victims' testimony had changed since their recorded interviews. But he provides only speculation to support his claim, and the prosecutor flatly denied withholding such information.(Doc. 1-4, Ex. A, at 18.)
Petitioner presented his claims in the context of an alleged speedy trial violation. (See Doc. 1-2, Ex. A, at 16, 18.)
Petitioner is not entitled to relief on these claims because the court of appeals' rejection of them was not unreasonable or contrary to clearly established federal law. Petitioner merely reasserts his claim that “the prosecutor did everything within her power to thwart the Petitioner's access to the information he needed” in the case. (Doc. 1-2 at 18.) Petitioner acknowledges items were disclosed when “there was an order from the court.” (Id. at 17.) Petitioner does not argue how the ruling of the Arizona Court of Appeals was unreasonable.
Petitioner fails to establish that specific Brady evidence was withheld from him. “[Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v Maryland, 373 U.S. 83, 87 (1963). However, “[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality' in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10 (1976). The prosecution did not commit misconduct by invoking Arizona Revised Statute § 13-4433, which allows a victim to refuse a pretrial interview.
j. Concealment and Deception.
Petitioner claims the prosecutor “deceived the court into not viewing the recorded interviews to make its 404(c) ruling so she could conceal the manipulation by the police.” (Doc. 1-2 at 20.) On appeal, Petitioner claimed the summaries relied on by the court in making the 404(c) ruling “were misleading and caused the court to misstate the facts located within the records.” (Doc. 10-2, Ex. E, at 20.) Petitioner noted his counsel had stipulated to the court's use of the state's summaries in lieu of viewing the recordings itself, but argued the stipulation “was not binding” because counsel was “ineffective.” (Id. at 21.) In denying relief, the Arizona Court of Appeals noted that “defense counsel expressly stipulated to the accuracy of the summary [included in the state's motion] and agreed to a ruling based on the summary.” (Doc. 1-4, Ex. A, at 10.) It further noted that “any procedural error in the court's initial ruling is irrelevant because, after [Petitioner] moved for reconsideration, the cord in fact reviewed the recorded interviews and affirmed the Rule 404 ruling, finding that the recordings supported the factual findings in the initial ruling.” (Id.) Petitioner is not entitled to relief on this claim here because the court of appeals reasonably rejected it. There is no factual merit to his claim that the trial court did not initially view the recordings because the state “deceived” it; the trial court did not view the recordings because Petitioner, through his counsel, stipulated to the use of the state's summary of the interviews in lieu of the court viewing the recordings. Accordingly, the Court recommends that this claim be dismissed.
Further, Petitioner claims the prosecutor “deceived the court into believing [he] did not request a chastity hearing so she could conceal the chastity evidence which showed the boys' motive to lie, how they obtained the knowledge to create the allegations and the improper questioning technique the police used to obtain the false allegations.” (Doc. 1-2 at 21.) The Court addressed this claim above. For the reasons explained there, Petitioner is not entitled to relief on this claim.
J. Ground Ten.
Petitioner claims he “was denied his [Fifth] Amendment right under the Grand Jury Clause to be tried on charges presented within the indictment.” (Doc. 1-3 at 2-6.) Petitioner is not entitled to relief on this claim because it is not cognizable.
Petitioner raised this issue on appeal. (See Doc. 10-2, Ex. E, at 64.)
As federal courts have noted, there is “no due process right to a grand jury indictment before criminal prosecution in state court.” Peterson v. California, 604 F.3d 1166, 1170 (9th Cir. 2010) (citing Hurtado v. California, 110 U.S. 516, 534-35 (1884)). Although the Due Process Clause guarantees defendants a fair trial, “it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury.” Alexander v. Louisiana, 405 U.S. 625, 633 (1972); accord Gautt v. Lewis, 489 F.3d 993, 1003 n.10 (9th Cir. 2007) (The “Fifth Amendment right to presentment or indictment by a grand jury . . . has not been incorporated into the Fourteenth Amendment so as to apply against the states.”); Stumpf v. Alaska, 78 F. App'x. 19, 21 (9th Cir. 2003) (“First, the introduction of grand jury testimony that was later determined to be perjury did not violate Stumpf s right to due process. Because the right to a grand jury has not been applied to the states via the Fourteenth Amendment, Stumpf s Fifth Amendment challenge to the grand jury proceedings does not raise a question of federal law and is not cognizable on habeas review.” (citation omitted)); see also Lackey v. Noble, 2018 WL 3587014, at *2 (6th Cir. 2018) (unpublished) (“Because Lackey does not have a federal constitutional right to a grand jury indictment in state court, his claim that the amendment to his conspiracy charge violated his rights under the Fifth Amendment is not cognizable on habeas review.”); Goines, 2013 WL 1498909, at *4 (“Petitioner's challenge to the procedures used to amend the indictment involves the interpretation and application of Arizona law and is not cognizable on federal habeas corpus review.”).
Petitioner is entitled to a charging document that provides him with adequate notice and the opportunity to defend and protect himself against future prosecution for the same offense. “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation . . . .” See U.S. Const., amend. VI.
Therefore, the Court recommends that Ground Ten be dismissed as non-cognizable.
K. Ground Eleven.
Petitioner claims the trial court's exclusion of his expert witness, Dr. Richard Leo, due to late disclosure violated his rights to due process and compulsory process under the Fourteenth and Sixth Amendments, respectively. (Doc. 1-3 at 8-9.) Petitioner claims the expert testimony of Dr. Leo was “vital” in demonstrating that the questioning of the victims did not comply with applicable standards and improperly forced the victims to make the allegations of abuse. (Id.) Petitioner is not entitled to relief on Ground Eleven because these claims are procedurally defaulted.
On appeal-in an untimely addendum to his supplemental brief-Petitioner claimed the trial court abused its discretion in precluding Dr. Leo's testimony due to late disclosure in violation of his due process rights. (Doc. 10-3, Ex. G, at 23.) However, the Arizona Court of Appeals did not address this claim in its decision, presumably due to its untimely presentation. (See Doc. 1-4, Ex. A, at 3-20.) After filing his initial pro se supplemental brief (doc. 10-2, Ex. E), the Arizona Court of Appeals gave Petitioner until November 1, 2013 to file “an addendum to his supplemental brief.” (Doc. 1-4, Ex. I, at 41 (emphasis added).) On November 1, 2013, Petitioner filed an addendum. (Doc. 10-3, Ex. F, at 3.) The record does not contain any subsequent order from the court of appeals authorizing any additional or untimely addenda. Nonetheless, two months later, Petitioner filed a second addendum, on January 6, 2014, raising the present claim. (Id., Ex. G, at 19-31.)
On April 24, 2014, Petitioner filed a third addendum. (Doc. 10-3, Ex. H, at 33-47.)
Because the claim was not timely presented to the Arizona Court of Appeals, it is implicitly procedurally defaulted and consequently barred from this Court's review. See O 'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (“Boerckel's failure to present three of his federal habeas claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural default of those claims.”); Coleman, 501 U.S. at 732 (“[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.”); Kyzar v. Ryan, 780 F.3d 940, 946-47 (9th Cir. 2015) (“A habeas claim is procedurally defaulted if it was not fairly presented to the state courts in a timely fashion.”); Pinnell v. Belleque, 638 F.Supp.2d 1231, 1237 (D. Or. 2009) (“If a habeas petitioner failed to present his claims to the state courts in a procedural context in which the merits of the claims were considered, the claims have not been fairly presented to the state courts and, therefore, are not eligible for federal habeas review.”).
The Sixth Amendment claim of Ground Eleven is also procedurally defaulted. It was not raised in any filing before the Arizona Court of Appeals (see doc. 10-2, Ex. E, at 3-71; doc. 10-3, Ex. F, at 2-17; doc. 10-4, Ex. O, at 3-47) and therefore it is unexhausted. See Swoopes, 196 F.3d at 1010. Further, it is implicitly procedurally defaulted because Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from asserting it in state court now. See Hurles, 752 F.3d at 780; Cooper, 641 F.3d at 327; Beaty, 303 F.3d at 987 (“If [petitioner] has any unexhausted claims, he has procedurally defaulted them, because he is now time-barred under Arizona law from going back to state court.” (citing Ariz. R. Crim. P. 32.2(a))).
Petitioner does not show cause and prejudice for the procedural default of either claim or a fundamental miscarriage of justice. See Moormann, 426 F.3d at 1058. Accordingly, the Court recommends that Ground Eleven be dismissed as procedurally defaulted.
L. Ground Twelve.
Petitioner claims his appellate counsel rendered ineffective assistance by filing an Anders brief “when numerous meritorious appellate issues existed.” (Doc. 1-3 at 11; see Doc. 10-1, Ex. D, at 29-44.) Petitioner further claims he was denied due process because the state court “failed to appoint new counsel to represent [him] on these meritorious issues.” (Doc. 1-3 at 11.) Petitioner presented and exhausted these claims in his petition for review during his PCR proceeding. (See Doc. 10-4, Ex. O, at 25-26.) The Arizona Court of Appeals held his claims failed “because he did not argue how he was prejudiced by counsel's ineffectiveness,” noting that Petitioner “raised the issues himself in multiple supplemental briefs and presented no evidence that the outcome would have been different had counsel raised these issues.” (Doc. 1-5, Ex. K, at 7.)
As previously discussed, to prevail on a claim of ineffective assistance of counsel, a defendant must show (1) “that counsel's representation fell below an objective standard of reasonableness” under “prevailing professional norms” and (2) “that the deficient performance prejudiced the defense,” i.e., “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. 668, 687-90, 694 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
Petitioner is not entitled to relief on his ineffectiveness claim because he fails to show that the Arizona Court of Appeals' rejection of it was unreasonable. To the contrary, the court of appeals reasonably rejected it because Petitioner had not shown he was prejudiced by appellate counsel's decision to forego litigation of any issues on appeal. See generally Anders, 386 U.S. at 744 (“[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.”); Jones v. Barnes, 463 U.S. 745, 751 (1983) (“Neither Anders nor any other decision of this Court suggests . . . that the indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.”). Despite alleging in his Petition that “numerous meritorious appellate issues existed,” he does not identify any. Nor did the state courts find any meritorious appellate issues after review of the numerous claims Petitioner raised on direct and collateral review. And, as explained through this Report, Petitioner also fails to show any meritorious issue in the present Petition. Therefore, Petitioner's claim fails on both prongs of Strickland for failure to show counsel performed deficiently by failing an Anders brief and any prejudice resulting from that decision. See Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (“It should be obvious that the failure of an attorney to raise a meritless claim is not prejudicial”); Rupe, 93 F.3d at 1445 (“[T]he failure to take a futile action can never be deficient performance.”). Therefore, the Arizona Court of Appeals' rejection of his claim on collateral review was neither contrary to Strickland, or any other clearly established federal law, nor an unreasonable determination of the facts.
The due process claim of Ground Twelve is procedurally defaulted. Petitioner did not present this claim to the Arizona Court of Appeals in his direct appeal or in his petition for review (see doc. 10-2, Ex. E, at 3-71; doc. 10-3, Ex. F, at 2-17; doc. 10-4, Ex. O, at 3-47) and therefore it is unexhausted. See Swoopes, 196 F.3d at 1010. Further, it is implicitly procedurally defaulted because Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from asserting it in state court now. See Hurles, 752 F.3d at 780; Cooper, 641 F.3d at 327; Beaty, 303 F.3d at 987 (“If [petitioner] has any unexhausted claims, he has procedurally defaulted them, because he is now time-barred under Arizona law from going back to state court.” (citing Ariz. R. Crim. P. 32.2(a))). The procedural default is not excused as Petitioner does not show cause and prejudice or a fundamental miscarriage of justice. See Moormann, 426 F.3d at 1058. In any event, the right to counsel stems from the Sixth Amendment, not the Fourteenth Amendment.
Accordingly, the Court recommends that Ground Twelve be dismissed.
VI. Motion for Discovery.
Petitioner has filed a motion for discovery of records from Child Protective Services. (Doc. 9.) Therein, Petitioner states that on February 3, 2011, Petitioner filed a Motion for Discovery to “obtain the CPS records for the children of Julian and Fred Moore” to “substantiate arguments within the Petitioner's motion for chastity[].” (Id. at 1.) Petitioner now requests this Court “order the AG's Office to turn over these CPS records so this Court can conduct its own inspection” and disclose documents to Petitioner. (Id. at 6.) The Motion is fully briefed. (Docs. 12, 13.) The Court will recommend Petitioner's Motion be denied.
“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). But, a judge may authorize discovery for “good cause.” Rule 6(a), Rules Governing § 2254 Cases, 28 U.S.C. § 2254. Good cause exists “where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief. . . .” Bracy, 520 U.S. at 908-09 (citation omitted).
Petitioner sought these CPS records prior to trial, and the trial court ordered the disclosure of CPS records. (Doc. 9 at 9.) It appears undisputed the CPS records were not disclosed to any party. Petitioner did not raise an issue regarding CPS records on direct appeal. (Doc. 10-3, Exs. F-H, at 3-48.) On PCR review, the trial court denied relief regarding CPS records finding “[t]here is no evidence that the undisclosed CPS records say what the defendant believes they say.” (Doc. 1-4 at 30.) The Arizona Court of Appeals, on PCR review, found “the trial court [in PCR proceedings] did not abuse its discretion by denying Vitasek's motion for an in-camera inspection” of CPS records. (Doc. 10-5, Ex. Q, at 19.)
Here, the Arizona Court of Appeals ruled on the merits of Petitioner's claim regarding the victim's “chastity” and precluded the admission of other act evidence by the victims. In Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011), the Supreme Court held that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” This effectively precludes federal evidentiary hearings for such claims because the evidence adduced during habeas proceedings in federal court could not be considered in evaluating whether the claim meets the requirements of § 2254(d). See Id. at 187 n.11 (“[Petitioner] has failed to show that the [state court] unreasonably applied clearly established federal law on the record before that court, which brings our analysis to an end.”) (internal citations omitted). See also Gulbrandson v. Ryan, 738 F.3d 976, 993-94 (9th Cir. 2013) (when a state court has denied claims on their merits, Pinholster precludes “further factual development of these claims” through an evidentiary hearing to determine whether Section 2254(d)(1) or (d)(2) is satisfied); Runningeagle v. Ryan, 686 F.3d 758, 773-74 (9th Cir. 2012) (denying the petitioner's request for discovery, because the state courts denied his claim on its merits, and thus, the Pinholster rule limited review under Section 2254(d)(1) to the record before the state courts).
Because the state courts denied Petitioner's claim on the merits regarding the victim's other act evidence, Petitioner's request to open discovery should be denied.
In Ground Nine, Petitioner alleges the prosecution committed misconduct by engaging in “discovery violations,” which included doing nothing “to facilitate” obtaining CPS records and lying to the court. (Doc. 1-2 at 19.) Petitioner did not raise this specific claim of prosecutorial misconduct on direct appeal, and Petitioner fails to establish cause and prejudice to excuse the procedural default of this claim. Respondents also argue the request “ should be denied because the records and any questions related to those records are not relevant to Vitasek's procedurally defaulted” claim. (Doc. 12 at 5.)
VII. Motion for Evidentiary Hearing.
Petitioner has filed a motion for an evidentiary hearing. (Doc. 18.) Therein, Petitioner argues that the Court is required to conduct a hearing to resolve “factual disputes” between the parties. (Doc. 18 at 1.) The Motion is fully briefed. (See Docs. 19 (Response), 21 (Reply), 22 (Attachments to Reply), 23 (Additional Attachments to Reply).)
The record is sufficiently developed that an evidentiary hearing is unnecessary to resolve factual disputes alleged by Petitioner. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.”). Because the record refutes Petitioner's factual allegations, or otherwise precludes habeas relief as detailed in this report, the Court will recommend that Petitioner's Motion for an evidentiary hearing be denied.
VIII. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Hab. R. 11(a). The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Regarding habeas relief, the standard is whether “[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, 562 U.S. at 101.
The Court considered but rejected recommending a certificate of appealability for Petitioner's claim in Ground Six. The Court recognizes there is weight to both sides of the argument on this issue and whether Petitioner has made a substantial showing of the denial of a constitutional right. See, e.g., Ortiz v. Yates, 704 F.3d 1026, 1038 (9th Cir. 2012) (reversing habeas denial in non-rape-shield case where alleged threat by prosecutor to victim was unreasonably precluded). But the facts and arguments in this case confirm that fairminded jurists could disagree on the correctness of the state court's decision. See Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (holding that relief under AEDPA is warranted only where a state court's determination is “objectively unreasonable,” and not merely “incorrect or erroneous”); McGill v. Shinn, 16 F.4th 666, 703 (9th Cir. 2021) (“On AEDPA review, we may not grant relief unless the Arizona Supreme Court's application of federal law was flawed ‘beyond any possibility for fairminded disagreement.' Even if we thought the Arizona Supreme Court's conclusion was wrong . . . we could not issue relief. Rather, we can only review the decision to determine if it is an unreasonable application of [the applicable law].” (internal citation omitted)). Thus, because fairminded jurists may disagree on the correctness of the state court's decision on the issues raised by Petitioner in Ground Six, it is beyond debate that Petitioner is not entitled to habeas relief on those claims here. Accordingly, the Court must recommend that a certificate of appealability be denied. See Miller-El, 537 U.S. at 327.
As to all of Petitioner's remaining claims, Petitioner has also failed to make the requisite showing and the Court will recommend that a certificate of appealability be denied.
Accordingly, IT IS RECOMMENDED that the Petition for a Writ of Habeas Corpus (docs. 1, 1-1, 1-2, 1-3) be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that the Motion for Discovery (doc. 9) and Motion for Evidentiary Hearing (doc. 18) be denied.
IT IS FURTHER RECOMMENDED that a certificate of appealability be denied as to all of Petitioner's claims.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.