Wahl v. Ryan

1

Mickey Wahl, Petitioner, v. Charles Ryan, et al., Respondents.

No. CV-18-0046-TUC-DCB (JR)

United States District Court, D. Arizona

January 18, 2021

REPORT AND RECOMMENDATION

HONORABLE JACQUELINE M. RATEAU, UNITED STATES MAGISTRATE JUDGE

Petitioner Mickey Wahl, incarcerated at the Arizona State Prison in Yuma, Arizona, has filed a Petition for Writ of Habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), a Supplement to Petition (Doc. 17), and Respondents' Answer (Doc. 26). No reply was filed. Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Rateau for Report and Recommendation. Based on the thorough and unrebutted arguments in the Answer, the Magistrate Judge recommends the District Court, after its independent review of the record deny the Petition.

I. Factual and Procedural Background

A. Trial and Sentencing

On November 1, 2012, the State indicted Wahl for manslaughter, a Class 2 felony, and negligent homicide, a Class 4 felony. Ex. A, p. 1 (Indictment). The Arizona Court of Appeals' decision on direct appeal summarized the circumstances of the crime as follows:

In the fall of 2011, victim S.C. was dating Wahl's former girlfriend, [Shanda]. [FN1].^[1] After Wahl's breakup with [Shanda], he dated [Jenny], who had previously dated S.C. There was considerable animosity among and between these couples because of their prior relationships with each other. On December 11, 2011, SC and [Shanda] were at a bar. Wahl and [Jenny] later arrived at the bar, but only [Jenny] went inside. [Shanda] and [Jenny] got into a physical altercation and went out to the parking lot where the fight continued.

Wahl intervened, picking up [Jenny] and placing her in the passenger side of her truck. S.C. followed, arguing with Wahl. Wahl got in the driver's side of the truck and at some point, S.C.'s arm became trapped when Wahl rolled up his window. Despite S.C.'s arm being caught in the truck, Wahl started driving away. Initially, SC ran alongside the truck, but eventually his arm loosened from the window and he fell. S.C.'s head was run over by the truck, and he died at the scene. Sheriff's deputies later found Wahl at his home.

In October 2011, Wahl and S.C. had a disagreement at the bar, which resulted in Wahl physically throwing S.C. out of the bar. Wahl and two of the state's witnesses testified about this disagreement. On October 19, 2011, Wahl posted a message on his Facebook page that stated, “Thank you [S.C.], for helping me rid myself of [Shanda], and I owe you a drink, for throwing you out the bar on your face.” He later posted, “I really felt bad, about throwing him so far out the door . . . lmao!” [FN7: “LMAO” is an abbreviation for “laughing my ass off.” Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dicitonary/lmao (last visited Sept. 30, 2015).] Additionally, Wahl texted [Shanda] that he “felt . . . bad about throwing [S.C.] out on his face.”

One of the state's witnesses testified that in November 2011, [Jenny] was banned from the bar after she backed into a car in the parking lot. Wahl texted [Shanda] a vague message about the incident, implying that he knew [Jenny] had hit the car. Additionally, the state introduced earlier Facebook messages between Wahl and [Jenny] that intimated [Jenny] had been banned from the bar even before she hit the other car, but that Wahl and [Jenny] thought it would be “funny” to try to go to the bar anyway, apparently to make [Shanda] angry.

Eyewitness [Victor Pallanes] testified that S.C. had approached Wahl in the truck, and the two of them began fighting. S.C.'s arm was then pinned in Wahl's rolled-up window while Wahl drove off, speeding up to the point where S.C. could no long[er] run next to the truck. S.C. eventually fell and was run over by the truck, and Wahl did not stop. Testimony by several other witnesses and evidence of Wahl's Facebook and text message history established Wahl did not like S.C. because he had dated [Shanda], and that they had a disagreement months earlier.

State v. Wahl, No. 2 CA-CR 2014-0138, 2015 WL 6687551 (Ariz. App. Oct. 30, 2015); Ex. J, ¶¶ 2-3, 10, 12, 38. After a ten-day jury trial, Wahl was convicted of manslaughter and sentenced to a presumptive prison term of 10.5 years. Exs. C, D.

B. Direct Appeal

A timely notice of appeal was filed on April 17, 2014. Ex. G. In this direct appeal, Wahl argued the state trial court erred by denying his motion to preclude the State from introducing other act evidence-specifically, text messages and Facebook posts-under Rule 404(b) of the Arizona Rules of Evidence, and by denying his new trial motion. Ex. G, pp. 15-22, 41-43. He also asserted numerous claims of prosecutorial misconduct and challenged the sufficiency of the evidence on state law grounds. Id., pp. 23-42, 43-46. In a decision filed on October 30, 2015, the Arizona Court of Appeals rejected Wahl's arguments and affirmed his conviction and sentence. Ex. J. Wahl did not petition the Arizona Supreme Court for review. Ex. K (Court of Appeals Mandate).

C. Post-Conviction Relief

Wahl filed a notice of post-conviction relief, ex. K, and in a petition filed December 1, 2016, Wahl, through counsel, alleged his trial counsel rendered ineffective assistance because he failed to have swabs taken from his truck's left rear tire tested for the presence or absence of blood and/or DNA. Ex. M, pp. 20-25. Post-trial tests showed no blood on the swab from the tire that had run over victim S.C. Id., pp. 24-25. Wahl argued that these results would directly contradict the testimony of Victor Pallanes that Wahl drove over S.C.'s head and would corroborate his own testimony that S.C. assaulted him through the truck's open window. Id.

In response to Wahl's contentions, the State pointed out that on the night of the offenses, it had rained and snowed, the roads were wet, that police found Wahl's truck parked in a puddle on a wet driveway. Ex. N. The State argued that the potential absence of blood on swabs taken from the tires of Wahl's truck “could have easily explained away” by the effects of the wet weather. Id., pp. 4-5. The trial court found that Wahl had not presented a colorable claim of ineffective assistance of trial counsel and dismissed the petition without a hearing. Ex. O.

Wahl petitioned the Arizona Court of Appeals for review, contending that the trial court abused its discretion by not granting a hearing on his claim of ineffective assistance of counsel. Ex. P. The appellate court granted review, examined Wahl's claim and found it was not colorable, and denied relief. Ex. Q.

D. Habeas Petition

On January 29, 2018, Wahl filed his original Petition. Doc. 1. In Grounds One of through Ten and Thirteen of the petition, Wahl alleges that his trial counsel was ineffective. In Ground Eleven he alleges that his rights to due process were violated based on prosecutorial misconduct. In Ground Twelve he contends that the evidence at trial was insufficient to support his conviction.

On January 29, 2019, exactly one-year after the filing of the original Petition, Wahl, through counsel, filed a Supplement to Petition for Writ of Habeas Corpus. Doc. 17. The Supplement contains no additional enumerated claims, but contends that Wahl's conviction was a “miscarriage of justice” and that the case “never should have been charged.”

II. Exhaustion and Procedural Default

Respondents contend that Wahl's Ground Twelve due process claim and his Ground Thirteen IAC claim and are exhausted but do not merit relief under Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). Respondents also contend that none of Wahl's other IAC claims, which are admittedly unexhausted, are “substantial” pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), and are therefore defaulted and not subject to review. The Court agrees.

A. Exhaustion and Procedural Default

A state prisoner must exhaust his available state remedies before a federal court may consider the merits of his habeas corpus petition. See 28 U.S.C. § 2254(b)(1) & (c); Nino v. Galaza, 183 F.3d 1003, 1004 (9th Cir. 1999). “[A] petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citations omitted).

Exhaustion requires that a habeas petitioner present the substance of his claims to the state courts in order to give them a “fair opportunity to act” upon these claims. See O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). “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 pursuant to Rule 32,” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994), and then present his claims to the Arizona Court of Appeals, see Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). A habeas petitioner's claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted and not subject to federal review if it was raised in the state court but found to be defaulted on state law grounds. Coleman v. Thompson, 501 U.S. 722, 729730 (1991). Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would not find the claims procedurally barred.” Id. at 735 n. 1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998).

Other than the IAC claim in Ground...