Opinion
CV 22-08014-PCT-JJT (MTM)
08-28-2023
Philip John Martin, Petitioner, v. Attorney General of the State of Arizona, Respondents.
HONORABLE MICHAEL T. MORRISSEY, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
Petitioner Philip John Martin has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. SUMMARY OF CONCLUSION
Petitioner was convicted in Mohave County Superior Court, case #CR 2012-01326, of second-degree murder and sentenced to a 16-year term of imprisonment. Petitioner raises two grounds for relief. However, Ground One does not meet the extraordinarily high bar to allege a freestanding claim of actual innocence, and Ground Two is non-cognizable. Accordingly, the Court will recommend that the Petition for Writ of Habeas Corpus be denied and dismissed with prejudice.
II. BACKGROUND
A. Facts
The Arizona Court of Appeals found the following facts:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C.
¶ 2 Martin and the victim were neighbors and used the same rough dirt access road to reach their homes. Martin routinely placed railroad ties and other debris in the road in front of his driveway to counteract ruts that would form when motorists drove their vehicles on the road after a rainstorm. The victim removed a railroad tie from the road in front of Martin's driveway while driving home in his Jeep. The victim told his friend Brian he was “gonna go ask why he keeps doing that.” As the victim started walking down Martin's driveway, Brian heard and saw “the muzzle blast of the gun out the front window” of Martin's house and saw the victim “hit the ground.” The victim died of a shotgun wound to his abdomen.
¶ 3 A grand jury indicted Martin for first degree, premeditated, murder. Martin admitted shooting the victim, but testified at trial that he did so because the victim ignored his demands that he get off his property and because he believed the victim was armed and was coming towards his home to harm him. The superior court instructed the jury on the use of physical force and deadly physical force in self-defense pursuant to A.R.S. §§ 13-404 (2010), 13-405 (Supp. 2014), and in defense of premises pursuant to 13-407 (2010). It rejected Martin's request, however, that it also instruct the jury on the use of force and deadly force in crime-prevention under A.R.S. § 13-411 because it found the evidence insufficient to warrant that instruction. The jury found Martin guilty of the lesser included offense of second degree murder.State v. Martin, 2014 WL 7277831, *1 (Ariz.Ct.App. Dec. 23, 2014).
B. First Direct Appeal
Petitioner timely appealed his conviction and sentence, arguing that the superior court (1) should have instructed the jury on the crime-prevention defense under A.R.S. § 13-411 (Supp. 2014), and (2) should not have admitted the victim's dying declarations over his Confrontation Clause objection. Id. On December 23, 2014, the Arizona Court of Appeals reversed Petitioner's conviction and remanded the matter for a new trial, finding that the superior court's refusal to instruct the jury on the crime-prevention justification defense under A.R.S. § 13-411 amounted to reversible error. Id. The Arizona Supreme Court summarily denied the State's petition for review on July 10, 2015. (Doc. 28-1 at 182, § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court's opinion should not be afforded the presumption of correctness). Exh. H.)
As to issue number two, the court found the victim's dying declarations to the officers were not testimonial. “[T]he victim made them during an ongoing emergency and the primary purpose of his exchange with police officers was to enable them to react and respond to this emergency.” Therefore, the superior court did not violate Petitioner's Confrontation Clause rights by admitting the statements into evidence. Martin, 2014 WL 7277831, *4.
C. Trial on Remand
Before the second trial, the superior court granted the State's motion to retry Petitioner for first-degree murder. State v. Martin, 424 P.3d 443, 444 (Ariz.Ct.App. 2018). The jury subsequently convicted Petitioner of first-degree murder, and the court sentenced him to natural life. Id.
D. Second Direct Appeal
Petitioner appealed his conviction and sentence, arguing (1) double jeopardy barred his second trial for first-degree murder because the first jury's inability to agree on first-degree murder constituted an implied acquittal; (2) the superior court abused its discretion in refusing to strike the entire jury panel and grant a mistrial after jurors' answers in voir dire tainted the panel; and (3) the superior court violated his confrontation rights by admitting the victim's dying declarations. Id. at 444-47 (opinion addressing the double jeopardy claim); State v. Martin, 2018 WL 3031568 (Ariz.Ct.App. June 19, 2018) (memorandum decision addressing the juror taint and confrontation rights claims).
On June 19, 2018, the Arizona Court of Appeals affirmed Petitioner's conviction and sentence, rejecting Petitioner's double jeopardy claim in a published opinion and his other two claims in a concurrently filed memorandum decision. Id. The Arizona Supreme Court subsequently granted review of Petitioner's double jeopardy claim, and found “trying Martin a second time for first-degree murder under the circumstances here violated his constitutional right to be free from double jeopardy.” State v. Martin, 446 P.3d 806, 811 (Ariz. 2019). The court vacated the Court of Appeals' decision and remanded to the trial court to consider “whether to reduce Martin's conviction to the lesser-included offense, or, if Martin can show prejudice, to order a new trial.” Id. The United States Supreme Court denied the State's petition for writ of certiorari on May 18, 2020. (Doc. 283 at 107-08, Exh. V.)
E. Resentencing on Remand
After considering Petitioner's memorandum in support of a new trial and the State's memorandum in support of reducing Petitioner's conviction to the lesser-included offense, (doc. 28-3 at 123-40, Exh. W; doc. 28-4 at 2-12, Exhs. X, Y), the superior court found Petitioner failed to show prejudice that would warrant a third trial. (Doc. 28-4 at 14-18, Exh. Z.) Specifically, the court stated, in pertinent part,
[T]he defendant admitted that he shot and killed the victim. Clearly the elements of Second Degree Murder (and First Degree Murder) were established by the State. The defendant raised three different legal justifications for killing the victim; however, the jury rejected each justification. The Court finds no prejudice to the defendant. ... The Court finds there is no probability that the defendant would not have been convicted of Second Degree Murder in the absence of the jeopardy-barred offense. There was no evidence that was admitted that otherwise would not have been admitted in the absence of the jeopardy-barred offense.(Id.) Accordingly, the court reduced Petitioner's conviction from first-degree murder to second-degree murder. (Id.) On November 18, 2020, the superior court resentenced Petitioner to a presumptive 16-year prison term. (Doc. 28-4 at 20-23, Exh. AA.)
F. Third Direct Appeal
Petitioner filed a timely appeal arguing that the superior court erred by reducing his conviction to second-degree murder instead of granting a third trial. State v. Martin, 2021 WL 6143052, *1-2 (Ariz.Ct.App. Dec. 30, 2021). He contended that the improper presence of the first-degree murder charge at the second trial was prejudicial and “changed the landscape of the trial, making it more likely that [the jurors] convicted rather than continu[ing] to debate his innocence[.]” Id.
After briefing was completed, Petitioner filed a letter with the court raising issues of prosecutorial misconduct and ineffective assistance of trial counsel. (Doc. 28-4 at 9394, Exh. DD.) The court declined to consider the letter “[b]ecause Martin is represented by appellate counsel and he has not timely requested to proceed in propria persona ... .” Martin, 2021 WL 6143052, *1 n.1. The record also reflects that Petitioner filed a “Request for Special Action” in which he requested review of the trial court's order resentencing him without a new trial. (Doc. 28-4 at 25-29, Exh. BB.) The Arizona Supreme Court dismissed the special action finding that Petitioner's appeal of the same issue was currently pending in the Arizona Court of Appeals. (Doc. 28-4 at 31, Exh. CC.)
On December 30, 2021, the Arizona Court of Appeals affirmed Petitioner's conviction and sentence, finding that Petitioner had not demonstrated prejudice from the superior court amending Petitioner's conviction from first to second-degree murder. Id. On July 26, 2022, the Arizona Supreme Court denied Petitioner's petition for review. (Doc. 28-4 at 121, Exh. GG.)
G. Post-Conviction Relief Proceedings
On February 16, 2022, Petitioner initiated post-conviction relief proceedings by filing a notice of PCR and a PCR petition. (Doc. 28-4 at 132-38, Exh. II; Doc. 28-5 at 2-8, Exh. JJ.) Petitioner checked the following boxes as grounds for relief: (1) ineffective assistance of counsel; (2) the State used evidence at trial it obtained during an unlawful arrest; (3) the State suppressed favorable evidence; (4) the State used perjured testimony; (5) double jeopardy violation (6) Defendant's sentence was aggravated based on a prior conviction that was obtained in violation of the United States or Arizona Constitution or Arizona statutes; (7) newly discovered material facts; (8) actual innocence; and (9) under the “other grounds” category, that he was “sentence[d] without trial after double jeopardy.” (Doc. 28-5 at 2-3, Exh. JJ.) Thereafter, appointed counsel filed a notice of completion notifying the court that, after a review of the record, he could find no claims for relief to raise in PCR proceedings. (Doc. 28-5 at 14-18, Exh. LL.) Petitioner was afforded a 45-day extension of time to file a supplemental PCR petition, but did not t do so. (Doc. 28-5 at 2023, Exhs. MM-NN.)
On November 29, 2022, the superior court dismissed Petitioner's PCR petition, stating, in pertinent part:
Many of the claims that the defendant is now presenting have already been litigated in the appellate courts ... and are, therefore, precluded from postconviction relief. Further, the defendant has not presented a factual basis for the remaining claims. ... There was overwhelming evidence of the defendant's guilt[] presented during the jury trial and the jury rejected all justification defenses. The defendant is essentially attempting to relitigate the facts of this case and reargue legal justification which are not post-conviction issues. The Court finds that the defendant has failed to establish a colorable claim for post-conviction relief.
(Doc. 28-6 at 15-16, Exh. QQ.) Petitioner did not file a petition for review to the Arizona Court of Appeals. (Doc. 28-6 at 18, Exh. RR.)
III. DISCUSSION
On January 31, 2002, Petitioner filed his Petition for Writ of Habeas Corpus, raising two grounds for relief. (Doc. 1.) In Ground One, Petitioner simply states, “Violation of right to due process. Appellant is innocent.” In Ground Two, Petitioner contends that “Police reports contain[ed] lies and tainted evidence.” (Id. at 6, 8; Doc. 9.) Respondents filed their Limited Answer on February 6, 2023. (Doc. 28.) Petitioner has not filed a reply.
Because Petitioner's direct appeal and post-conviction relief proceedings were still pending in state court, the matter was stayed until January 13, 2023. (Docs. 13, 20, 23, 27.)
A. Ground One
Petitioner claims his due process rights were violated when he was convicted even though he is innocent. As support for his claim, Petitioner states, “Two appeals courts rulings of appellants right to due process having been denied. Having been committed by superior court. Above rulings vacating two convictions because of denial of due process by the state.” (Doc. 1 at 6.) The Court construes Ground One as asserting a freestanding claim of actual innocence.
Neither the Supreme Court nor the Ninth Circuit has resolved whether a freestanding claim of actual innocence is legally cognizable. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013); Herrera v. Collins, 506 U.S. 390, 400 (1993); Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014). However, even if such a right exists, “the threshold for a freestanding claim of innocence would have to be ‘extraordinarily high'” and “contemplates a stronger showing than insufficiency of the evidence to convict.” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (quoting Herrera, 506 U.S. at 417). The Ninth Circuit has held that “at a minimum, the petitioner must ‘go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.'” Jones, 763 F.3d at 1246 (quoting Carriger, 132 F.3d at 476). “Evidence that merely undercuts trial testimony or casts doubt on the petitioner's guilt, but does not affirmatively prove innocence, is insufficient to merit relief on a freestanding claim of actual innocence.” Jones, 763 F.3d at 1251.
Petitioner has failed to meet the threshold here. Petitioner appears to reference decisions from the Arizona Court of Appeals finding that trial court erred by failing to instruct the jury on a justification defense and from the Arizona Supreme Court finding that Petitioner could not be charged again for first-degree murder after the first jury impliedly acquitted him of that charge. However, this Court does not find those facts relevant to Petitioner's habeas claim in Ground One, as neither court vacated his conviction due to a violation of due process or actual innocence.
Petitioner fails to present any new, additional evidence establishing actual innocence. Thus, Petitioner does not meet the “extraordinarily high” bar to establish a freestanding claim of actual innocence. See, e.g., Gimenez v. Ochoa, 821 F.3d 1136, 1146 (9th Cir. 2016) (noting the evidence required to establish a freestanding actual innocence claim might be “a persuasive alibi, exculpatory physical evidence or a credible confession from another suspect”); Carriger, 132 F.3d at 477 (holding that the type of proof required would, “for example, demonstrat[e] [petitioner] was elsewhere at the time of the murder,” or provide “new and reliable physical evidence, such as DNA, that would preclude any possibility of [petitioner's] guilt.”). Accordingly, Petitioner is not entitled to relief, and the Court will recommend that Ground One be denied.
B. Ground Two
Petitioner asserts “Police reports contain lies and tainted evidence.” Petitioner's entire argument consists of the following two sentences: “Police and attorneys had proofs of dishonesty by main witness Brian [Knaak] but failed to act on it. 911 records - original search warrants and police reports interviews Oct. 18th 2012 Mohave County AZ.” (Doc. 1 at 8.)
“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); Engle v. Isaac, 456 U.S. 107, 119 (1982) (“A state prisoner is entitled to relief under 28 U.S.C. § 2254 only if he is held ‘in custody in violation of the Constitution or laws or treaties of the United States.'”). Errors of state law are not cognizable in habeas proceedings. Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have stated many times that federal habeas corpus relief does not lie for errors of state law.”) (quotation marks and citations omitted); 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.”).
In Ground Two Petitioner fails to adequately allege that he is in custody in violation of the Constitution, laws or treaties of the United States. The very brief facts Petitioner provides in support of Ground Two are not connected to any constitutional provision or law upon which Petitioner might claim to be in custody in violation of the Constitution, laws or treaties of the United States. Significantly, Petitioner fails to explain what lies and tainted evidence he alleges were in the police reports, and he does not assert that the alleged false evidence was used at trial to secure his conviction. Accordingly, Petitioner has not stated a cognizable habeas claim. The Court will recommend that Ground Two be denied.
IV. CONCLUSION
Based on the above analysis, the Court finds that Ground One does not meet the extraordinarily high bar to allege a freestanding claim of actual innocence, and Ground Two is non-cognizable.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) be DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, 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 Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.