Hall v. Ryan

Marc Adam Hall, Petitioner, v. Charles L Ryan, et al., Respondents.

No. CV-17-00420-TUC-BPV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

October 19, 2018

ORDER

On October 11, 2017, Petitioner Marc Adam Hall, through counsel, filed an Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. (Doc. 12.) Respondents filed a limited answer. (Doc. 13.) Petitioner submitted a reply (Doc. 36) and a supplemental reply (Doc. 40). The parties have consented to Magistrate Judge Bernardo P. Velasco's jurisdiction over all proceedings in this matter, including entry of final judgment. (Doc. 35.) For the reasons stated herein, the Court denies Petitioner's § 2254 Petition in its entirety.

I. Factual and Procedural History

Sometime in November 2009, Petitioner's wife, Jennifer Bennett, caught him watching what she thought was child pornography.¹ (Ex. A, Doc. 14 at ¶¶2-3.) After searching the Windows Media Player on his computer, Mrs. Bennett discovered a historylog that also appeared to contain child pornography. Id. When she attempted to open the files, however, the computer displayed an error message indicating "file does not exist." Id. Upset, Mrs. Bennett called two friends who helped her and her children move out. Id. In the meantime, Petitioner reinstalled Windows on his computer. Id. Mrs. Bennett subsequently left the house and called the police. Id. Thereafter, a forensic examiner inspected Petitioner's computer and found several images determined to be images of child sexual abuse. Id.

On September 11, 2012, Petitioner was indicted on ten counts of Sexual Exploitation of a Minor, a Class Two felony, in violation of A.R.S. § 13-3553(A)(2). (Ex. B, Doc. 14 at 18-20.) A jury convicted Petitioner on three of these counts, but acquitted him of the other seven. (Ex. C, Doc. 14 at 22-24). On July 8, 2013, Petitioner was sentenced to ten years' incarceration for each, the minimum sentence under A.R.S. § 13-70(D). (Ex. D, Doc. 14 at 26-27.) All three sentences were to run consecutively. Id.

a. Direct Appeal

Petitioner filed a direct appeal challenging his sentence on four grounds. (Ex. F, Doc. 15 at 4.) First, he claimed there was not sufficient evidence that he knowingly possessed the images on his computer. Id. Second, Petitioner contended that the trial court erroneously admitted 192 uncharged images of child pornography without evidence that he knowingly possessed such images and despite the likelihood of prejudice. Id. Third, he asserted the trial court erred when it precluded Mrs. Bennett's prior encounters with Child Protective Services. Id. Finally, Petitioner posited that the sentencing statute for sexual exploitation of a minor as applied to possession of child pornography was a violation of Petitioner's Eighth Amendment and equal protection rights. Id.

The Arizona Court of Appeals affirmed Petitioner's convictions and sentences in a memorandum decision on June 3, 2014. (Ex. A, Doc. 14.) The appellate court first found there was substantial evidence that Petitioner knew he possessed child pornography. Id. at 6. Second, it found that the trial court's admission of uncharged images found on Plaintiff's computer was within the trial court's discretion because it was used for the proper purpose of demonstrating knowledge and the court appropriately weighed itsprobative value against possible prejudice. Id. at 10-12. Third, the appellate court stated that the trial court had not abused its discretion when it prevented inquiry into Mrs. Bennett's involvement with Child Protective Services because it was irrelevant, there was sufficient evidence demonstrating the wife's ulterior motives, and Petitioner had not demonstrated prejudice. Id. at 15. Finally, the appellate court stated that the Arizona Supreme Court found the statute for which Petitioner was sentenced under was constitutional, and the appellate court had no authority to overturn the Arizona Supreme Court decision. Id. at 18. Nevertheless, even if the court had authority, Petitioner had not provided a compelling reason for overturning precedential law. Id. at 16. Petitioner did not file a petition for review to the state supreme court, and the mandate issued on August 11, 2014. (Ex. I, Doc. 16.)

b. Petition for Post-Conviction Relief

Petitioner filed a Petition for Post-conviction Relief ("PCR Petition") with the trial court on October 23, 2015, arguing that trial counsel rendered ineffective assistance of counsel ("IAC") for the following reasons:

1. Counsel was unable to advise Petitioner about a plea agreement. Because of this, Petitioner erroneously believed that if he rejected the plea, he would either receive a better plea agreement, or his attorney would win at trial. (Ex. Q, Doc. 17 at 22-23.)

2. Counsel was ineffective during jury selection because she did not submit written voir dire questions, did not utilize her strikes efficiently, and did not ask to have a juror removed for cause when it was discovered the juror knew Petitioner's former wife. Id. at 23-26.

3. Counsel did not effectively cross-examine witnesses because she failed to object to leading questions and hearsay. Id. at 27-31.

4. Counsel failed to impeach Petitioner's ex-wife effectively because she did not question why Mrs. Bennett stated she never used Petitioner's computer and then contradicted herself by stating she used it when hers was not working. Id.5. Counsel forced Plaintiff to waive his constitutional right to testify because counsel told Plaintiff she could either prepare him to testify or prepare for trial. Id. at 31-33.

6. Counsel erred when she did not request a limiting instruction on evidence of 192 images of sexual abuse which were not charged. Id. at 34-35.

7. Counsel failed to object when the prosecutor engaged in vouching and prosecutorial misconduct during closing arguments. Id. at 35-37.

8. Counsel failed to challenge the constitutionality of the sentencing statute as applied to the facts of Petitioner's case. Id.at 37-38.

9. Counsel's failures resulted in cumulative error. Id. at 39.

For each ground, the trial court denied Petitioner's PCR Petition on April 20, 2016. (Ex. T, Doc. 18.) The trial court stated that Petitioner had not demonstrated prejudice from counsel's actions. It explained that counsel was not ineffective because:

1. Petitioner admitted there were many other reasons he relied on when rejecting the plea, not just counsel's advice. Therefore, Petitioner could not demonstrate prejudice. Id. at 13-14.

2. Petitioner could not demonstrate he was prejudiced by the selected jurors, and their impartiality was demonstrated by the fact that they acquitted Petitioner of seven charges. Further, the juror who knew Petitioner's ex-wife explained she was sure she could remain impartial despite knowing Mrs. Bennett. The trial court was satisfied that her response demonstrated she could be impartial. Therefore, any argument of prejudice was merely speculative. Id. at 14-15.

3. Objecting to leading and hearsay statements during cross-examination would not have changed the outcome of the trial because the statements were already in evidence. Id. at 15-16.

4. Counsel presented a great deal of impeachment evidence against Petitioner's former wife and any further impeachment was speculative, cumulative, and did not result in prejudice. Id.5. Petitioner's argument that counsel violated his constitutional rights by forcing him not to testify was waived because this issue was not brought up on direct appeal, as necessary under Arizona Rule of Criminal Procedure 32.2. Also, Petitioner's contention that counsel's action was ineffective failed because Petitioner could not prove prejudice. Id. at 19-20.

6. Petitioner suffered no prejudice by the admission of the uncharged images of child abuse because defense counsel made it clear which images were charged and which were additional images. Furthermore, Petitioner was only convicted of three of the ten charges, which showed that the uncharged images did not prejudice the jury. Id. at 17.

7. The trial court found the prosecutor's closing arguments were "relevant, permissible, and thus not prosecutorial misconduct" and Petitioner could not show he was prejudiced by them. Id. at 17-18.

8. Counsel's failure to challenge the constitutionality of Arizona's sentencing scheme under A.R.S. § 13-3553 did not cause prejudice because Arizona Supreme Court case law determined the statute is constitutional, and the trial court could not overturn the higher court's decision. Id. at 18-19.

9. Cumulative error was not recognized by the Arizona courts. Regardless, because the trial court did not find any of counsel's actions were ineffective as a whole counsel's actions could not then constitute cumulative error. Id. at 20-21.

On May 4, 2016, Petitioner filed a Motion for Reconsideration arguing he had not waived his right to testify. (Ex. U, Doc. 18.) The trial court denied the motion on June 15, 2016, stating it was not convinced Petitioner was forced not to testify, and so much evidence was presented against him that his testimony could not have affected the result of the proceedings. (Ex. Y, Doc. 18, at 44.)

c. Arizona Court of Appeals Petition for Review

On July 5, 2016, Petitioner filed a petition for review to the Arizona Court of Appeals. (Ex. Y, Doc. 19.) Petitioner argued that the trial court erred because theStrickland standard was not the appropriate standard of review for determining ineffective assistance. Id. at 4-5, 6-7. Instead, the trial court should have found that Petitioner had presented a colorable claim for relief and granted him an evidentiary hearing. Id. at 5.

The court of appeals denied relief in a memorandum opinion on October 12, 2016. (Ex. Z, Doc. 19.) The appellate court agreed that in order to grant an evidentiary hearing, Petitioner needed to demonstrate he raised a colorable claim. Id. at 21. However, a colorable claim of IAC needed to show that (1) "counsel's performance fell below objectively...