Melville v. Shinn

2 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Paul Melville, Jr., No. CV-18-01703-PHX-JGZ 10 Petitioner, ORDER v. Charles L Ryan, et al., 13 Respondents.

15 Pending before the Court is Petitioner Paul Melville Jr.’s Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody. (Doc. 1.) The petition is fully briefed. (Docs. 6, 41, 44.) The Court will deny the petition and dismiss this case.

18 1. BACKGROUND 19 In early November 2012, J.R. and L.N. stopped by an apartment to pick up L.C. on their way to a bar. State v. Melville, No. 1 CA-CR 13-0639, 2014 WL 3881977, at ¶ 2 (Ariz. Ct. App. July 29, 2014).1 The three were talking in the living room, just inside the doorway, when Melville and his father burst through the front door, guns drawn, and ordered them to the ground. Id. Melville put a gun to J.R.'s head and ordered him to lie on the ground and be quiet, and Melville's father similarly ordered L.N. to the ground at gunpoint. Id. Melville then pulled zip-ties from his waistband and bound all three victims' hands behind their backs. Id. 1 The Court adopts the facts in the background section as recited by the Arizona Court of Appeals. See 28 U.S.C. § 2254(e)(1). The facts are afforded a presumption of correctness that may be rebutted only by clear and convincing evidence. Id.; Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007). Petitioner does not to challenge these facts.

1 Melville searched J.R.'s pockets, taking the victim's keys, cell phone, and wallet.

2 Id. at ¶ 3. Melville or his father also searched L.N., taking keys, $200 cash, and a cell phone, which Melville's father crushed with his foot. Id. Melville's father took D.C. upstairs briefly, then returned and laid D.C. on the ground in the living room. Id. After warning the victims to stay where they were and to not call the police, Melville and his father left the apartment. Id. 7 Around the same time, R.C. was walking from a different apartment toward his car, parked one space away from the Melvilles' vehicle. Id. at ¶ 4. Melville's father followed R.C. to his car and, when R.C. unlocked the car, grabbed the car door, and got in. Id. Melville's father searched through R.C.'s briefcase bag, then got out of the car and pulled a gun on R.C. Id. R.C. turned to see Melville's uncle, in the driver's seat of the Melvilles' vehicle, pointing another gun through the window. Id. Melville said, “he's not the one” or “I don't think he is one of them,” and Melville's father moved to the Melvilles' car, and they drove away. Id. 15 When J.R., L.N., and D.C. removed the zip-ties, they left the apartment and found R.C. on the phone with 911, and the police arrived within minutes. Id. at ¶ 5. Melville, his father, and his uncle were later arrested, and each charged with first-degree burglary, three counts of kidnapping, three counts of armed robbery, and four counts of aggravated assault.

19 Id. 20 Prior to trial, the State alleged that in 2005 Melville was convicted in New York of Criminal Possession of a Loaded Firearm, a felony, and requested a ruling under Arizona Rule of Evidence 609 allowing the State to impeach Melville with the conviction. Id. at ¶ 6. Melville moved to preclude use of the conviction, but after Melville testified at trial on direct, the trial court allowed the State to impeach Melville with the fact of the conviction.

25 Id. at ¶¶ 6, 8.

26 After all the evidence was presented, the trial court provided the jurors with copies of the final jury instructions and read the instructions. (Doc. 41-1 at 108.) During instruction, the court misread the instruction pertaining to a defendant’s right to not testify.

1 The correct instruction, included in the juror’s instructions, read: 2 DEFENDANT NEED NOT TESTIFY 3 The State must prove guilt beyond a reasonable doubt based on the evidence. You must not conclude that the defendant is likely to be guilty 4 because the defendant did not testify. The defendant is not required to testify.

The decision on whether or not to testify is left to the defendant acting with 5 the advice of an attorney. You must not let this choice affect your deliberations in any way.

7 (Doc. 41-1 at 28.) The court incorrectly read the first sentence, stating, according to the transcript: “The State has proved guilt beyond a reasonable doubt based upon the evidence.” (See Doc. 41-1 at 111:20-21(emphasis added).) None of the attorneys objected to the court’s mistake.

11 Prior to the misread instruction, the court had correctly instructed the jury on the State’s burden to prove guilt beyond a reasonable doubt. (Doc. 41-1 at 110:20-111:5.)2 After the misread instruction, the court’s other instructions referred to the state’s obligation to prove the defendants’ guilt. (See generally id. at 111-118.) The prosecutor and defense counsel argued the correct burden of proof in closing arguments. (Id. at 142, 154, 161.)

16 The jury found Melville guilty of two counts of armed robbery and four counts of aggravated assault, acquitted him of one count of first-degree burglary, and could not reach a verdict on the three kidnapping charges. Melville, No. 1 CA-CR 13-0639, 2014 WL 19 2 According to the transcript, the court stated: 20 The law does not require a defendant for [sic] prove innocence. Every defendant is presumed by law to be innocent. You must start with the 21 presumption that the defendants are innocent. The State has the burden of proving the defendant guilty beyond a reasonable doubt. This means that the 22 State must prove each element of each charged [sic] of each charge beyond a reasonable doubt. In civil cases it is only necessary to prove that a fact is 23 more likely true than not or that its truth is highly probable. In criminal cases such as this, the State’s proof must be more powerful than that. It must be 24 beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendants’ guilt.

25 There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes 26 every doubt. If based on your consideration of the evidence you are firmly convinced tat the defendant is guilty of the crime charged you must find him 27 guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. (Doc. 41-1 at 110:17-111:14.)

1 3881977, at ¶ 10.

2 2. PROCEDURAL HISTORY 3 A. Direct Appeal 4 Melville timely filed an appeal with the Arizona Court of Appeals, presenting only one issue for review: whether the trial court abused its discretion in permitting the State to use his prior conviction for impeachment. See Melville, No. 1 CA-CR 13-0639, 2014 WL 7 3881977. On July 29, 2014, the Arizona Court of Appeals affirmed Melville’s convictions and sentences. Id at ¶ 18. Melville did not seek review by the Arizona Supreme Court.

9 B. Post-Conviction Relief 10 On September 26, 2014, Melville timely filed a Notice of Post-Conviction Relief (PCR). (Doc. 14-1 at 67-68.) On December 3, 2014, Melville’s counsel filed a petition alleging two claims for relief: (1) ineffective assistance of trial counsel based on counsel’s failure to move for a mistrial after the judge “improperly commented on the evidence and gave erroneous jury instructions” and (2) ineffective assistance of appellate counsel based on counsel’s failure to raise trial counsel’s ineffectiveness on appeal. (Id. at 73-74.) On March 18, 2015, the PCR court issued an order holding that Melville’s claims were meritless and that he failed to prove deficient performance or prejudice by either of his attorneys. (Id. at 96-97.)

19 Melville filed a pro per petition for review with the Arizona Court of Appeals, raising the same ineffective assistance of counsel claims as well as a new claim that his counsel was also ineffective during plea bargaining. (Id. at 118, 120.) On April 18, 2017, the Arizona Court of Appeals denied Melville’s petition finding no abuse of discretion by the PCR court. (Id. at 120.) Melville did not file a motion for reconsideration or petition for review by the Arizona Supreme Court, and the Court of Appeals issued its mandate on June 7, 2017. (Id. at 122.)

26 C. Federal Habeas Corpus Petition 27 On June 4, 2018, Melville filed a federal habeas corpus petition, asserting three grounds for relief. (Doc. 1.) In Ground One, Melville argues the state court abused its discretion in allowing the State to impeach him with his prior conviction. (Id. at 6.) In Ground Two, Melville argues that his trial counsel was ineffective in failing to object or move for a mistrial after the state court erroneously instructed the jury that the state had met its burden of proof. (Id. at 7.) In Ground Three, Melville asserts that his appellate counsel was ineffective in failing to raise trial counsel’s ineffectiveness and in failing to communicate with him about the claims to be raised. (Id. at 8.)

7 After counsel was appointed to represent Melville, (Doc. 34), Melville filed a Supplemental Reply in Support of the Petition, (Doc. 44). In the Supplemental Reply, Melville concedes that Ground One is noncognizable and the failure-to-communicate component of Ground Three does not state a valid claim of ineffective assistance of appellate counsel. (Doc. 44 at 1-2, 5-6.) Consequently, the Court will only address Melville’s remaining claims of ineffective assistance of counsel in Grounds Two and Three.

14 3. LEGAL STANDARD 15 Federal district courts are instructed to entertain habeas applications on behalf of persons in custody pursuant to state court judgments “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A court may not grant habeas relief unless the state court’s decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 22 2254(d); Cullen v. Pinholster, 563 U.S. 170, 181 (2011). A decision involves an unreasonable application of clearly established federal law if it “identifies the correct governing legal principle but unreasonably applies that principle to the facts of the prisoner's case.” Vega v. Ryan, 757 F.3d 960, 965 (9th Cir. 2014) (cleaned up). Under the reasonable determination clause, a state court’s factual finding is not unreasonable simply because the federal habeas court reaches a different conclusion. Id. Courts are to presume that the state court’s factual findings are correct unless the petitioner “rebuts the presumption of correctness by clear and convincing evidence.” Id. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as fair-minded jurists could disagree on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (cleaned up). In analyzing a § 2254 petition, review is limited to the record that was before the state court that adjudicated the merits of the claim.

6 Pinholster, 563 U.S. at 181.

7 4. DISCUSSION 8 When reviewing a state court’s resolution of an ineffective-assistance-of-counsel claim, the Court considers whether the state court applied Strickland v. Washington, 466 10 U.S. 668 (1984), unreasonably. See Pinholster, 563 U.S. at 189. Under Strickland, a petitioner must show both that (1) counsel’s performance was deficient under prevailing professional standards, and (2) he suffered prejudice as a result. Strickland, 466 U.S. at 687. To prove prejudice, petitioner must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

15 Id. at 694.

16 The Arizona Court of Appeals reasonably applied the Strickland standard in denying Melville’s claims of ineffective assistance of counsel. The appeals court noted the trial court’s finding that, despite the apparent faulty instruction, the judge verbally instructed the jury repeatedly that the State had the burden to prove Melville's guilt beyond a reasonable doubt, and the jurors each had written jury instructions, which also correctly set forth the State's burden. State v. Melville, No. 1 CA-CR 15-0259, 2017 WL 1381256, at ¶ 3 (Ariz. Ct. App. April 18, 2017). In affirming the trial court’s findings, the appeals court agreed that “the record supports the superior court's findings regarding the otherwise properly instructed jury.” Id. at ¶ 6.

25 In his Supplemental Reply, Melville argues that the trial court’s misreading of the jury instruction amounted to a directed verdict by the judge in favor of the prosecution, which could only be remedied by declaration of a mistrial or granting of a new trial. (Doc.

28 44 at 2-3.) Melville argues the Arizona Court of Appeals should have considered “how reasonable jurors could have understood the charge as a whole,” instead of focusing on whether the jury had been “otherwise properly instructed.” He relies on Sullivan v. Louisiana, 508 U.S. 275 (1993) and Cage v. Louisiana, 498 U.S. 39, 40 (1990), (standard of review disapproved by Estelle v. McGuire, 502 U.S. 62, n.4 (1991)). Sullivan and Cage are inapposite.

6 The Sullivan and Cage juries did not receive a proper instruction on the burden of proof required for a criminal conviction. In Cage, the court found that the reasonable doubt instruction could have been interpreted by the jury “to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.” 498 U.S. at 41. In Sullivan, which involved the same defective reasonable-doubt instruction, the Supreme Court concluded that the constitutionally-deficient instruction could not be harmless error because a jury cannot reach a proper verdict in the absence of a proper burden-of-proof instruction. Id. at 280-82. The court reasoned that, when there is no jury verdict within the meaning of the Sixth Amendment, there is no basis for a harmless error analysis; the entire premise of harmless error is simply absent. Id. at 278-280.

16 Unlike Sullivan and Cage, Melville’s jury was “otherwise properly instructed” on the burden of proof. The trial judge verbally instructed the jury that the State had the burden to prove Melville's guilt beyond a reasonable doubt, the jurors each had the written instructions which also correctly set forth the State's burden (as well as the correct version of the misread instruction), and the attorneys argued the correct burden of proof. Thus, the question in Melville’s case is whether the trial court’s misreading affected the jury’s understanding of the reasonable doubt instruction.

23 On this record, the Arizona Court of Appeals reasonably concluded that the jurors properly understood the jury instructions as a whole. The court stated that the prosecutor and defense counsel's statements during closing arguments reminded the jury of the State's burden of proof, and the fact that the jury found Melville not guilty on one count and could not reach a unanimous verdict on three other charges also indicated the jurors understood the instructions and the State’s burden of proof. (Doc. 14-1 at 125 & n.1.) Given the jury’s □□ split verdicts and acquittal, the Court of Appeals reasonably concluded that Melville could 2|| not show prejudice from his attorneys’ failure to object to or appeal the apparent || misreading. Accordingly, the Court concludes Melville has failed to establish that he is 4|| entitled to habeas relief.

5|| 5. Certificate of Appealability 6 Before Petitioner can appeal this Court’s judgment, a certificate of appealability (COA) must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the || Rules Governing Section 2254 Cases. “The district court must issue or deny a certificate 9|| of appealability when it enters a final order adverse to the applicant.” Rule 11(a) of the Rules Governing Section 2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may |} issue only when the petitioner “has made a substantial showing of the denial of a || constitutional right.” The court must indicate which specific issues satisfy this showing.

13 || See 28 U.S.C. §2253(c)(3). With respect to claims rejected on the merits, a petitioner “must demonstrate that reasonable jurists would find the district court’s assessment of the || constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). || For procedural rulings, a COA will issue only if reasonable jurists could debate whether || the petition states a valid claim of the denial of a constitutional right and whether the court’s || procedural ruling was correct. Id. Applying these standards, the Court concludes that a certificate should not issue, as the resolution of the petition is not debatable among || reasonable jurists.

21 IT IS ORDERED Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is || denied.

23 Dated this 4th day of September, 2024.

26 /, Jennifer G. 71 United States District Judge -8-