Petition for Writ of Certiorari — Clifford Allen Follansbee, Petitioner v. Charles L. Ryan, Director, Arizona Department of Corrections, et al.

Supreme Court briefNov 27, 2017

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UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

SEP 82017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

CLIFFORD ALLEN FOLLANSBEE,

Petitioner-Appellant,

CHARLES L. RYAN and ATTORNEY

GENERAL OF THE STATE OF

ARIZONA,

No. 17-15827

D.C. No. 3:15-cv-08082-GMS

District of Arizona,

Prescott

pJ Wi I

Respondents-Appellees.

Before:

CALLAHAN and M. SMITH, Circuit Judges.

The request for a certificate of appealability (Docket Entry Nos. 2 & 3) is

denied because appellant has not shown that "jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484

(2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41

(2012); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

Any pending motions are denied as moot.

DENIED.

Case 3:15-cv-08082-GMS Document 33 Filed 04/18/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Clifford Allen Follansbee,

Petitioner,

Charles L Ryan, et al.,

No. CV-15-08082-PCT-GMS

ORDER

Respondents.

Pending before the Court is Petitioner Clifford Allen Follansbee's Motion to

Amend Findings pursuant to Federal Rule of Civil Procedure 52(b), (Doc. 32). For the

reasons discussed below, Petitioner's Motion is denied.

Motions under Rule 52(b) are designed to correct findings of fact which are

central to the ultimate decision; the Rule is not intended to serve as a vehicle for a

rehearing. ATS Prods. Inc. v. Ghiorso, No. CIO-4880 BZ, 2012 WL 1067547, at *1

(N.D. Cal. Mar. 28, 2012); Davis v. Mathews, 450 F. Supp. 308, 318 (E.D. Cal. 1978).

They are granted to correct manifest errors of law or fact or to address newly discovered

evidence or intervening case law. Ghiorso, 2012 WL 1067547 at *1. A motion to amend

cannot be used to "introduce evidence that was available at trial but was not proffered, to

relitigate old issues, to advance new theories, or to secure a rehearing on the merits."

Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir. 1986).

I/I

Case 3:15-cv-08082-GMS Document 33 Filed 04/18/17 Page 2 of 4

To the extent that Petitioner seeks reconsideration,' "[t]he Couit will ordinarily deny

a motion for reconsideration of an Order absent a showing of manifest error or a showing

of new facts or legal authority that could not have been brought to its attention earlier with

reasonable diligence." L.R. Civ. P. 7.2(g)(1); see also Sch. Dist. No. 1J Multnomah Cty.,

Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (noting that motions to reconsider

are appropriate only if the Court "(1) is presented with newly discovered evidence, (2)

committed clear error or the initial decision was manifestly unjust, or (3) if there is an

intervening change in controlling law"), cert. denied, 512 U.S. 1236; Motorola, Inc. v. J.B.

Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003) (holding that a

motion for reconsideration is appropriate only when there is newly-discovered fact or law,

newly-occurring facts, a material change in the law, or upon a convincing showing that the

Court failed to consider material facts that were presented before the initial decision). A

motion for reconsideration is an inappropriate vehicle to ask the Court to "rethink what the

court has already thought through—rightly or wrongly." See United States v. Rezzonico,

32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998) (quoting Above the Belt, Inc. v. Mel Bohannon

Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)).

Nothing Petitioner raises merits amendment or reconsideration. Petitioner begins

by stating that he "may have confused the legal theory of judicial bias with a colorable

claim of fair trial," but that a stand-alone fair trial claim was sufficiently raised, and that

by "overlook[ing]" it, the Court failed to "reasonably read" his Objection as stating a

colorable argument. (Doc. 32 at 1-2.)

Petitioner's argument that the Court misunderstood his inartfully expressed legal

theory is unpersuasive in light of the numerous times he cogently and forcefully

emphasized that his claim was one of an unfair trial as a result ofjudicial bias.

In his Petition, Petitioner described his Ground One thus:

The trial court deliberately tipped the scales of justice in favor of the state

of Arizona: Judicial bias in violation of Defendant's right to due process

The Court construes Petitioner's motion liberally, as is proper for pro se filings. See,

e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007).

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Case 3:15-cv-08082-GMS Document 33 Filed 04/18/17 Page 3 of 4

and a fair trial as guaranteed by the Fifth and Fourteenth Amendments of

the United States Constitution; the trial court failed to properly disclose

bench conference decisions that favored the Defendant to the t[r]ier-of-fact.

(Doc. 1 at 11.)

In his reply to the State's response, Petitioner clarified his judicial bias argument

and cited to a dictionary definition of "judicial bias." (Doc. 20 at 9 n.17.) He asserted

that the "trial court, by design, condoned testimony it considered to be improper [and]

prejudicial to enter jury deliberation." (Doc. 20 at 20.) Concluding, he argued that "the

high degree of favoritism displayed in this case exceeds mere abuse of discretion and

firmly sets its footing as 'judicial bias,' whereas, the trial court intentionally tipped the

scales of justice in favor of the state's case-in-chief." (Doc. 20 at 35.) He continued:

The record definitively depicts the preliminary jury instructions setting the

trial judge up as the sole, lone authority (a demi-god of sorts) as to what

evidence is admissible in the trial phase, but, even demi-gods have limits

the[y're] not suppose[d] to over-step. To circumvent these limits the

Honorable Slayton manipulated the one area most susceptible to a judge's

influence—the admissibility of testimonial evidence; whereupon, decisions

made outside the purview of the factfinders are the easiest to manipulate;

only requiring non-conveyance of such.

The Honorable Slayton cannot say his actions were inadvertent or harmless

It reveals a high-degree of favoritism for the State. ..

Petitioner does not attempt to ascertain the motivating factor behind the

Honorable Slayton placing the integrity of the judiciary at issue, wherein,

any explanation would be speculation.

Fortunately, the Petitioner is not

required to prove motivation, only that a bias has occurred. The foregoing

illustrates the Honorable Slayton intentionally tipped the scales of justice in

favor of the state. Therefore, bias does exist.

(Doc. 20 at 37-38.) And, in his Objection to the magistrate judge's Report &

Recommendation, Petitioner again reiterated what he saw as the central issue:

If a trial court fails to instruct the factfinders of its sidebar decision(s), as to

the admittance of witness testimony and, only applies this prejudicial

practice against the defense case-in-chief; does this act or acts constitute

bias on the judge's part, resulting in structural error.

(Doc. 25 at 9.)

To be sure, Petitioner did argue that he received an unfair trial. The claim of

judicial bias would make little sense if the actions the judge took did not allegedly

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Case 3:15-cv-08082-GMS Document 33 Filed 04/18/17 Page 4 of 4

actually "tip the scales of justice." But Petitioner also very cogently expressed

throughout these proceedings that his theory of relief was a violation of his fair trial

rights because ofjudicial bias. In any event, the Court's analysis already demonstrates

why any fair trial claim is not colorable. The claim of judicial bias is unconvincing in

part because the trial judge's actions did not cause any prejudice or harm to Petitioner.

Petitioner has made no "showing of manifest error," L.R. Civ. P. 7.2(g)(1), with respect

to the judicial bias (or, alternatively, fair trial) claim.

Nor has Petitioner caught a "manifest error" with respect to the certificate of

appealability. A habeas petitioner may merit a certificate of appealability if he makes a

"substantial showing of the denial of a constitutional right," which "includes showing

that reasonable jurists could debate whether.

a different manner.

contends that because the Court noted that "reasonable people could disagree" over

. . ."

. .

the petition should have been resolved in

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner

14 whether an additional curative instruction would have been helpful or harmful at one

point during the trial, the Court should have found that reasonable people could disagree

over whether Petitioner had made a substantial showing of the denial of a constitutional

17 right. The two matters of "reasonable debate" are, however, of very different

magnitudes. That reasonable jurists could debate whether a particular curative instruction

would be helpful or harmful does not mean that reasonable jurists could debate whether a

decision on that debatable instruction deprived Petitioner of his right to a fair trial.

IT IS THEREFORE ORDERED that the Motion to Amend Findings, (Doc. 32),

of Petitioner Clifford Allen Follansbee is DENIED.

Dated this 18th day of April, 2017.

28 11

Honorable G. Murray $now

United States District fudge

Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 1 of 15

1 WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Clifford Allen Follansbee,

Petitioner,

Charles L. Ryan, et al.,

No. CV-15-08082-PCT-GMS

ORDER

Respondents.

Pending before the Court are Petitioner Clifford Allen Follansbee's ("Petitioner")

Petition for Writ of Habeas Corpus ("Petition"), (Doc. 1), and Motion for Evidentiary

Hearing, (Doe. 21); and United States Magistrate Judge Deborah M. Fine's Report and

Recommendation ("R & R"), (Doe. 22). The R & R recommends that the Court deny and

dismiss the Petition with prejudice, and deny the Motion for Evidentiary Hearing as

moot. (Doe. 22 at 23.) Petitioner filed a timely objection ("Objection") to the R & R.

(Doe. 25.) Thus, the Court will make a de novo determination of those portions of the

R & R to which an objection is made. 28 U.S.C. § 636(b)(1); United States v. Reyna-

Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en bane). For the following reasons, the

Court accepts the R & R and denies and dismisses the Petition with prejudice, and denies

the Motion for Evidentiary Hearing as moot.

BACKGROUND

The R & R sets forth a detailed factual and procedural background of this case, to

which neither party objected. The Court therefore adopts this background as an accurate

Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 2 of 15

recital, but will provide a brief summary here.

In January 2008, Petitioner was convicted in Coconino County Superior Court of

sexual assault, sexual conduct with a minor, sexual exploitation of a minor, kidnapping,

and obstructing a criminal investigation. These charges arose out of two incidents where

Petitioner forced his fifteen-year-old stepdaughter to engage in sexual conduct with him.

Petitioner was sentenced to 256 years in prison. His conviction was affirmed on direct

appeal by the Arizona Court of Appeals. Petitioner then filed a petition for review in the

Arizona Supreme Court, which was denied.

Petitioner then filed for post-conviction relief ("PCR") in Coconino County

Superior Court. His appointed PCR counsel filed a notice of review and of no colorable

claims, and was appointed to act as advisory counsel. The PCR petition was denied by

the trial court and denied by the Arizona Court of Appeals; and again, the Arizona

Supreme Court declined review.

Petitioner filed the instant Petition in this Court on May 13, 2015. He alleges six

grounds for relief: (1) judicial bias as evidenced by the trial judge's failure to announce

certain evidentiary rulings to the jury, (2) prosecutorial misconduct in alluding to the

victim's chastity, (3) the admission of expert testimony that improperly vouched for the

victim's credibility, (4) prosecutorial misconduct in insinuating that Petitioner had

drugged the victim, (5) actions of the victim, her mother, and her friends in the gallery

that improperly swayed the jury's sympathies, and (6) double jeopardy.

The magistrate judge submitted an R & R to this Court. The R & R recommends

that Grounds 2, 3 and 5 be denied as procedurally defaulted, and that Grounds 1, 4 and 6

be denied as failing to demonstrate that the Arizona Court of Appeals' decision affirming

Petitioner's conviction was contrary to, or an unreasonable application of, clearly

established federal law, or based on an unreasonable determination of the facts.

DISCUSSION

Legal Standard

This Court "may accept, reject, or modify, in whole or in part, the findings or

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Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 3 of 15

recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that

the district judge must review the magistrate judge's findings and recommendations de

novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d

1114, 1121 (9th Cir. 2003) (en banc). District courts are not required to conduct "any

review at all.

U.S. 140, 149 (1985).

of any issue that is not the subject of an objection." Thomas v. Am, 474

Under the Antiterrorism and Effective Death Penalty Act of 1996, the Court may

not grant habeas relief unless it concludes that the state's adjudication of the 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).

II.

Analysis

The magistrate judge found that Petitioner's Grounds 2, 3 and 5 were unexhausted

and procedurally barred. (Doe. 22 at 7-12.) Petitioner made no objection to this finding.

(Doe. 25 at 3.) This relieves the Court of its obligation to review this portion of the

R & R. Nevertheless, the Court has reviewed the magistrate judge's finding as to

Grounds 2, 3 and 5 and finds that it is well-taken. The Court therefore adopts the

magistrate judge's finding and recommendation as to Grounds 2, 3 and 5.

Grounds 2, 3, 4, 5 and 6

The magistrate judge found that Petitioner's Grounds 1, 4 and 6 were exhausted,

but that Petitioner failed to demonstrate an entitlement to habeas relief on these Grounds.

(Doe. 22 at 19-23.) As to these Grounds 4 and 6, the Objection states "Petitioner rests on

the argument of his argument." (Doe. 25 at 23.) Simply reasserting the grounds of the

Petition is not an effective objection necessitating de novo review. See, e.g., Bryant v.

Ryan, No. CV-08-831-PHX-DGC (JJM), 2009 WL 1856603, at *1 (D. Ariz. June 29,

2009) ("Merely reasserting the grounds of the petition as an objection provides this Court

with no guidance as to what portions of the R & R Petitioner considers to be incorrect.");

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Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 4 of 15

see also Fed. R. Civ. P. 72(b)(2) (requiring "specific written objections to the proposed

findings and recommendations"). This relieves the Court of its obligation to review this

portion of the R & R. Nevertheless, the Court has reviewed the magistrate judge's

finding as to Grounds 4 and 6 and finds that it is well-taken. The Court therefore adopts

the magistrate judge's finding and recommendation as to Grounds 4 and 6.

To understand Petitioner's objections to the magistrate judge's findings on Ground

1, it is necessary to understand the precise argument Petitioner makes in Ground 1.

Ground 1 is a claim of judicial bias on the part of the trial court judge who presided over

Petitioner's trial. Specifically, Petitioner argues that "[t]he trial court deliberately tipped

the scales of justice in favor of the State of Arizona [by] fail[ing] to properly disclose

bench conference decisions that favored the Defendant to the t[r]ier-of-fact." (Doc. 1 at

11.) Petitioner lists nine sidebar conferences; six occurring after a defense objection, and

three after a State objection. (Id. at 16.) He argues that "the trial court established a

distinct pattern" by failing to announce the judge's sustaining of defense objections and

issuing no curative instructions, but announcing the sustaining of State objections and/or

issuing curative instructions. (Id.) The problem, as Petitioner sees it, is that while the

jury was instructed that "[i]f the Court sustained an objection to a lawyer's question, you

must disregard it and any answer given," (Doc. 15-15 at 45, Ex. I [R.T. 01/17/08] at 44),

the jurors would not know to disregard the answer that had been given if they did not

know that the objection had been sustained.

Ground 1

Petitioner asserts that the trial judge's "conscious act" of failing to convey his

rulings on these defense objections constituted "egregious violations of due process and

fair trial" which could only be the product of incompetence or bias. (Doc. 25 at 21-23.)

Because of the trial judge's "numerous years" on the bench, Petitioner reasons, he could

not be incompetent and must therefore be biased. (Id. at 22-23.)

The bulk of Petitioner's objection, liberally construed, is that the magistrate judge

dismissed Ground 1 on the basis that the jurors were instructed not to speculate on what

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Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 5 of 15

the answers to objected-to questions might have been, when the heart of Petitioner's

Ground 1 argument addresses the answers that jurors actually heard. He makes several

ancillary objections regarding the magistrate judge's reasoning and citations to the

record.

Preliminary matters

Review of state court decisions

Petitioner's Objection, and indeed all of his filings, express frustration that the

8 various courts reviewing his claims have allegedly misunderstood or simply failed to

address his judicial bias argument. The magistrate judge noted that the "absence of

explicit rulings" on Petitioner's judicial bias claims in PCR proceedings may have been

due to waiver under Arizona Rule of Criminal Procedure 32.2(a)(3). (Doe. 22 at 15.)

The state courts did not, however, make an explicit finding of waiver. (Id.) Thus, as the

magistrate judge explained, this Court may still address the merits of Petitioner's claim

under the rule of Harris v. Reed, 489 U.S. 255, 261-62 (1989).

Petitioner argues that it makes no sense to find that the state court decisions

upholding his convictions against claims of judicial bias were not contrary to clearly

established federal law when those decisions did not explicitly discuss the merits of the

18 judicial bias argument. (Doc. 25 at 17-18.) But "[w]hen a federal claim has been

presented to a state court and the state court has denied relief, it may be presumed that the

state court adjudicated the claim on the merits in the absence of any indication or state-

law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 99

(2011). Section 2254(d) "does not require a state court to give reasons before its decision

can be deemed to have been 'adjudicated on the merits." Id. at 100. Therefore, it is

proper to consider whether the Arizona Court of Appeals decision denying Petitioner

relief on his judicial bias claim was "contrary to, or involved an unreasonable application

of, clearly established Federal law," or was "based on an unreasonable determination of

the facts in light of the evidence presented." 28. U.S.C. § 2254(d).

III

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Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 6 of 15

The magistrate judge's citations to the record

Petitioner also asserts that several of the magistrate judge's record citations point

to irrelevant portions of the record and therefore do not support the magistrate judge's

4 decision. This assertion appears to be based on some unfortunate confusion on

Petitioner's part, rather than any error on the part of the magistrate judge. The paper

copy of the record filed by the State is separated into Exhibits, A through U, with each

Exhibit paginated beginning at 1. The electronic docket further separates some of the

Exhibits into multiple PDF files, which are each individually paginated beginning at 1.

For example, Exhibit H comprises electronic Documents 15-12, 15-13, and 15-14. Page

1 of Document 15-14 is page 210 of Exhibit H. On the occasions Petitioner argues that

the magistrate judge's record citations do not support the magistrate judge's assertions,

this appears to be because the magistrate judge used the electronic PDF page numbers,

while the Petitioner thought these were the paper copy Exhibit page numbers. All of the

magistrate judge's record citations do, in fact, support the assertion for which they are

cited. To the extent that Petitioner did not raise further arguments about the citations he

could not find,' the Court will nevertheless discuss each in full in its de novo analysis.

For sake of clarity, parallel citations using each format will be used when referencing this

record, along with the accompanying trial date.

The merits of the judicial bias argument

Case law

Moving to the merits of the judicial bias claim, as an initial matter, Petitioner cites

no cases where a judge's failure to announce evidentiary rulings made at sidebar has been

held to be either error in its own right or evidence of judicial bias. The Court has

likewise found none. This is not surprising. "[J]udicial rulings alone almost never

constitute a valid basis" for finding bias or partiality. Liteky v. United States, 510 U.S.

540, 555 (1994). Thus, had the trial judge here simply overruled the defense objections,

That being said the majority of the citations Petitioner misinterpreted were to the

very same portions of the record Petitioner cited as the basis for his Petition and

discussed elsewhere in his Objection.

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Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 7 of 15

a claim of bias would be difficult if not impossible to make. In such a factual context, it

2 would not be logical to say that an unfavorable ruling cannot serve for a basis for a

finding of bias while a favorable ruling can.

This is especially so given the high bar for demonstrating judicial bias. There is a

"presumption of honesty and integrity" accorded to adjudicators. Withrow v. Larkin, 421

U.S. 35, 47 (1975). Overcoming this presumption on federal habeas review of a state

court decision is particularly difficult. A federal court on direct review will only lose this

presumption when the judge demonstrates "an 'extremely high level of interference' by

the trial judge which creates 'a pervasive climate of partiality and unfairness." Duckett

v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995) (quoting United States v. DeLuca, 692 F.3d

1277, 1282 (9th Cir. 1982)). But even that stringent showing falls short of demonstrating

the required Due Process violation to justify habeas relief from a state court judgment.

Id. Various Ninth Circuit cases illustrate just how high this bar is. See, e.g., id. at 740-

41 (no Due Process violation where trial court judge "expressed clear frustration and

hostility" toward one defense witness and, during examination of another, "told the

prosecution to 'once in a while throw in an objection for the heck of it"); United States v.

Martin, 278 F.3d 988, 996-97 (9th Cir. 2002) (no Due Process violation where trial judge

at sentencing called defendant's testimony a "crock of baloney"); United States v.

Wilkerson, 208 F.3d 794, 798-99 (9th Cir. 2000) (no Due Process violation where trial

judge suggested the prosecution add a charge against defendant and commented that the

community was "tired" of the charged crime).

Petitioner's argument falls short of demonstrating any kind of judicial bias, let

alone bias that goes beyond even a "pervasive climate of partiality and unfairness" to rise

to the level of a Due Process violation. This becomes abundantly clear through a close

review of the sidebars Petitioner cites as evincing judicial bias.

The sidebars

The first of the nine sidebars came on direct examination during the State's case-

in-chief. The witness was testifying about a text message conversation with the victim,

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Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 8 of 15

and the State sought to bring out testimony about the "tone" in the victim's text

messages. (Doe. 15-6 at 29, Ex. E [R.T. 01/10/08] at 28.) The exchange leading to the

sidebar was as follows:

Q: You said you had two separate conversations, first if we

can talk about the tone of the first conversation.

A: The one where it was the "good night" talk.

Q: That is the last one and let's talk about the middle of the

night now?

A: The middle of the night.

[Defense counsel]: Can I be heard at sidebar?

(Doe. 15-6 at 29, Ex. E [R.T. 01/10/08] at 28.) At sidebar, defense counsel raised

objections on hearsay and foundation grounds, as he had done prior to the sidebar and

continued to do subsequent to it. (Doe. 15-6 at 29-31, Ex. B [R.T. 01/10/08] at 28-30.)

The objection was sustained on foundation, but the judge did note that the evidence mitht

be admissible once proper foundation were laid. (Doe. 15-6 at 31, Ex. E [R.T. 01/10/08]

at 30.) This ruling was not announced to thejy, but there was no need to announce it.

No testimony had been elicited prior to the request for sidebar; there was nothing for the

jury to disregard.

The second sidebar came soon after, during the same section of testimony:

Q: From your conversation with [the victimj during this 4:00

hour, can you describe your impression of the tone of the

conversation?

A: The tone that came off to me was a sense of being scared.

[Defense counsel]: Same objection as to hearsay. Your honor,

can I approach again?

(Doe. 15-6 at 33-34, Ex. E [R.T. 01/10/08] at 32-33.) Again, the trial judge sustained

27 defense counsel's objection on foundation, while noting that the evidence might be

admissible if proper foundation were laid. (Doe. 15-6 at 36-37, Ex. E [R.T. 01/10/08] at

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Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 9 of 15

35-36.) Subsequently, the State laid additional foundation and elicited testimony as to

the tone of the text message conversation:

Q: Did she seem to—the tone of those various [prior]

conversations is what I am looking for, was that tone

consistent what your description of her personality, bright,

funny, happy? Or was it different or varying?

[Defense counsel]: Same objection, foundation.

The Court: Overruled.

The Witness: As we were first going out up until the 11th

there was no problems, we got along and she was just like

you said, mostly happy for the most part.

[ ... ]

Q: Just let me ask this general question. The conversation

that you had with her by text message, after midnight on

October 12th, was that a different type of tone from previous

conversations?

A: Very much so.

Q: What did that conversation make you feel like or make

you want todo?

A: It made me very nervous, very frustrated.

Q: What did you want to do?

A: I knew that she was alarmed by something.

(Doc. 15-6 at 41-42, Ex. E [R.T. 01/10/08] at 40-41.) Thus there was no harm in failir,g

to instruct the jury to disregard testimony as to a "scared" tone, since similar testimony

was soon admitted.

The third sidebar occurred the following day, when the State elicited on direct

22 examination of a police detective that Petitioner had been interviewed by the police

twice. (Doc. 15-8 at 104, Ex. F [R.T. 01/11/08] at 103.) Defense counsel objected and

asked for a sidebar. (Doc. 15-8 at 105. Ex. F [R.T. 01/11/081 at 104.) At sidebar, the

trial judge sustained the objection and offered to give a curative instruction, but defense

counsel agreed that this might do more harm than good:

The Court: . . fl]f you want to form some form of curative

instruction that is fine, I can certainly do one. But the only

problem is, again the curative instruction it brings attention to

the ringing of a bell that should not have been rung, so I will

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Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 10 of 15

allow, if you want to have a curative instruction, no problem.

[Defense counsel]: Your Honor, I should put on there I agree,

once the bell is rung, it makes it worse.

(Doc. 15-8 at 106-07, Ex. F [R.T. 01/11/08] at 105-06.) Thus this sidebar, far from

indicating bias, shows the trial judge's deference to defense counsel concerning how he

wished to proceed to avoid prejudice to his client. Petitioner certainly cannot complain

of the judge's failure to give a curative instruction when that failure was at the reasonable

behest of defense counsel.

The fourth sidebar occurred during the State's direct examination of a witness who

conducted a medical examination of the victim. It was triggered by this exchange:

Q: If a person has never had sexual relationships before, they

have a sexual relationship, is there something physical that

changes as a result of their first sexual experience?

A: Not necessarily.

Q: Do you have any analogy of statistics and research on that

subject?

A: There is a growing body of medical literature that

references the number of abnormal exams, meaning genital

injury, after abuse or after vaginal penetration.

[Defense counsel]: I will object and ask to approach sidebar.

(Doc 15-11 at 27, Ex. G [R.T. 01/15/08] at 26.) The sidebar that followed demonstrates

that defense counsel's objection was not directed at the content of the witness's answer

but rather where he believed the course of questioning was improperly heading:

[Defense counsel]: Any objection is that any evidence of

actual numbers, percentages of examinations that are normal

or abnormal following sexual encounter actual numerically

stating that violates what I believe is set forth by our Supreme

Court.

[...]

The Court: How . . is he prejudiced by giving out this

information because the question is, can you have a normal

genital examination after having sex?

[Defense counsel]: That is not objectionable, that particular

question. What is objectionable is, have you read about

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Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 11 of 15

I don't believe he can go into exact

(Doc. 15-11 at 27-28, Ex. G [R.T. 01/15/08] at 26-27 (emphasis added).) The sidebar

ended with the judge cautioning the prosecutor not to delve any further into statistics, but

there was no ruling that the testimony that had thus far been elicited Was improper, and

thus no need to instruct the jury to disregard it.

The fifth sidebar followed almost immediately. In continuing to question the

witness, theprosecutor again used the phrase "first sexual encounter," to which defense

counsel objected, and the judge called for a sidebar. (Doc. 15-11 at 31, Ex. G [R.T.

01/15/08] at 30.) The sidebar discussion concerned the judge's prior ruling that the

victim's virginity was not to be raised.

particular statistics.

numbers.

[The State]: I was speaking not [sic] in general terms, I am

trying to establish it you look, and you see an injury, does

that tell you sex or no sex. I can back off of that. The issue

of virginity] is not where I was intending to go.

The Court: Then back off of first sexual experience, I think

your first question regarding injury to the hymen was

appropriate. I think the following of it, "first sexual

experience" so on and so forth, I think you are close to that

issue of my ruling, and so I am going to sustain the objection.

If you will just confine it to generalities, I think you will

probably be safer on this. Okay?

(Doc. 15-11 at 32, Ex. G [R.T. 01/15/08] at 31.) As before, the problem was not with any

testimony elicited from a witness but rather with the prosecutor's question, from which

thejury might have inferred4 facts about the victim's virginity. But the jury had been

instructed at the beginning of trial that statements, arguments and questions made by the

lawyers were not evidence. (Doc. 15-4 at 26-27, Ex. D [R.T. 01/09/08] at 150-5 1.) The

jury was again so instructed at the end of the trial. (Doc. 15-15 at 44-45, Ex. I [R.T.

01/17/08] at 43-44.) Juries are presumed to follow instructions they are given. See

Weeks v. Angelone, 528 U.S. 225, 234 (2000). Whether an additional curative instruction

at the end of this sidebar would have beneficially augmented the preliminary and final

jury instructions, or instead would simply have re-rung a bell that should not have been

-11-

Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 12 of 15

rung in the first place, is a matter over which reasonable people could disagree. That the

trial judge reasonably declined to give an additional curative instruction is not indicative

of judicial bias.

The sixth and final sidebar on a defense objection came during the State's cross-

examination of Petitioner. Unlike the previous five sidebars, here the objection was

made before the witness had a chance to answer the objected-to question. There was thus

no improperly elicited evidence for the jury to disregard, and no need for a curative

instruction. (Doc. 15-13 at 81-85, Ex. H [R.T. 01/16/08] at 200-04.) As Petitioner

acknowledges, the jury was instructed not to speculate on the answers to any questions

which were objected to. (Doe. 15-4 at 26-27, Ex. D [R.T. 01/09/08] at 150-51; Doe. 15-

15 at45,Ex. I [R.T. 01/17/08] at 44.)

Thus, with respect to the six sidebars that came as a result of defense objections,

13 there was only one where any ultimately inadmissible witness testimony had been

elicited. And that sidebar concluded with defense counsel asking the judge not to issue a

curative instruction.

By contrast, of the three sidebars Petitioner cites that arose from a State objection

where the judge did announce his ruling, the first involved the admission of an exhibit.

(Doc. 15-12 at 100-02, Ex. H [R.T. 01/16/08] at 99-101.) The second and third sidebars

came in the same line of questioning as each other. The latter of these involved an

extremely prejudicial answer given by the Petitioner as witness, where he stated that the

victim had done something "illegal." (Doc. 15-13 at 32, Ex. H [R.T. 01/16/08] at 151.)

Immediately prior to that, there was a brief sidebar over a line of questioning defense

counsel had begun, which the prosecutor apparently foresaw as leading to impermissible

testimony regarding bad acts. (Doe. 15-13 at 31, Ex. H [R.T. 01/16/08] at 150.) At the

end of this sidebar, the judge announced that he had sustained the Siateis_objection. This

did not benefit the State to the detriment of the Petitioner.2

The magistrate judge also noted that "in at least one instance the State asked to

28 approach the bench, counsel argued an evidentiary issue, and the jude made no

announcement regarding the resolution of that issue once the sidebar ended.' (Doe. 22 at

Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 13 of 15

'Thus, the magistrate judge was correct in concluding that any concerns arising out

of the sidebar conferences Petitioner cites were properly addressed by jury instructions,

and Petitioner's objection on this point is overruled.

Petitioner does make an ancillary objection to this point which must be addressed.

He argues that the R & R is "trying to claim both sides of the same coin" on the

-6

speculation issue. Petitioner contends that the magistrate judge's finding that the jury

was effectively instructed not to speculate on matters not on evidence, on one hand, is

inconsistent with the magistrate judge's noting that the jury could "infer" from

subsequent questioning whether an unannounced ruling was sustained or overruled.

(Doc. 25 at 4-5.) But this is not inconsistent. Inferring what an evidentiary ruling was

from subsequent questioning does not lead to the consideration of facts not in the record;

speculation about matters not in evidence, by definition, does. Petitioner's objection on

this point is overruled.

The trial record as a whole

More broadly, the trial record as a whole does not support Petitioner's claim of

judicial bias. The record reflects numerous occasions where the judge, in his discretion,

made decisions favorable to Petitioner. Prior to the start of trial, when Petitioner was

representing himself, Petitioner requested that his investigator be allowed (at the expense

of the County Legal Defender's Office) to accompany him during the entire trial. (Doc.

15-2 at 8-12, Ex. C [R.T. 01/08/08] at 7-11.) Although the Legal Defender's Office

expressed unease at the "highly unusual" request, the judge granted it, acknowledging the

importance of putting Petitioner on as fair a footing as possible:

In this case Mr. Pizzi has been involved extensively with I

think almost every aspect of Mr. Follansbee's defense, much

like the Flagstaff Police Department has been involved with

the State's investigation, so the county will just have to

recognize it in this case and the county will have to—I think

18.) Petitioner finds the citation "perplexing and difficult to comprehend," (Doc. 25 at

18-19), likely because of the contusion discussed earlier. The instance the magistrate

cites occurred during the defense's closing argument. (Doc. 15-16 at 12-14, Ex. I [R.T.

01/17/08] at 108-10.) It further supports the finding that there was no unfair difference

in the trial judge's treatment of the parties.

Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 14 of 15

..,.

the county has an obligation to make sure, under these

circumstances, sufficient funds are available for this, so I will

authorize six days. If you need more, believe me, if you need

more than that, you can bring that up at that time.

(Doc. 15-2 at 12, Ex. C [R.T. 01/08/08] at 11.)

The trial judge cautioned the prosecutor at the close of the State's opening against

any improper vouching and offered to give a curative instruction:

The Court: Listen Ted, when you were doing your opening

statement I heard you use the phrase, "You will see that

certain evidence is entirely consistent with [the victim's]

statement," there wasn't an objection by Brad, but I want to

caution you from engaging in any kind of vouching for the

credibility of your witness, or the direct of the evidence that

you believe—I don't know if [defense counsel wants] any

kind of instruction or you—

[Defense counsel]: I will let it go for now. Your Honor,

obviously I didn't hear what you-1 typically always object to

vouching and I thought you said the evidence would be

consistent with her statements, other than her statements

were—I believe her statements are true, but I appreciate the

Court's concern.

(Doc. 15-4 at 66, Ex. D [R.T. 01/09/08] at 190.)

The trial judge again called a sidebar and cautioned the prosecutor when he grew

concerned that the prosecutor's direct examination of a police detective was approaching

impermissible topics:

The Court: I'm a little concerned with some of his answers,

they are getting too close to the fact that he is in custody, and

received from the jail property room, his answer on that, and

so you really need to run a tight questioning on him, on this,

okay, Ted? And make sure he doesn't go any further with

this.

[Defense counsel]: I appreciate that, I certainly don't want to

overemphasize the fact that he was in custody or I certainly

don't want that to, in any ways, know he was in custody all

this time.

(Doc. 15-7 at 97-98, Ex. E[R.T. 01/10/08] at 217-18.)

There is no reasonable basis to find that the trial judge harbored any bias against

Case 3:15-cv-08082-GMS Document 30 Filed 03/22/17 Page 15 of 15

Petitioner. The Arizona Court of Appeals decision affirming Petitioner's conviction was

therefore not contrary to, or an unreasonable application of, clearly established federal

law, or based on an unreasonable determination of the facts.

CONCLUSION

Petitioner's objections to the R & R are overruled, and the R & R is adopted in

full.

IT IS ORDERED:

Magistrate Judge Fine's R & R, (Doc. 22), is ACCEPTED.

Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

§ 2254, (Doc. 1), is DENIED and DISMISSED WITH PREJUDICE.

Petitioner's Motion for Evidentiary Hearing, (Doc. 21), is DENIED AS

12 MOOT.

accordingly.

5..

The Clerk of Court shall terminate this action and enter judgment

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the

event Petitioner files an appeal, the Court declines to issue a certificate of appealability

because reasonable jurists would not find the Court's procedural ruling debatable. See

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Dated this 22nd day of March, 2017.

Honorable G. Murray snow

United States District Judge

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Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Clifford Allen Follansbee,

Petitioner,

Charles L. Ryan, et al.,

No. CV 15-8082 GMS DJH (DMF)

REPORT AND

RECOMMENDATION

Respondents.

TO THE HONORABLE G. MURRAY SNOW, U.S. District Judge:

Clifford Follansbee filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 ("Petition") challenging his convictions in the Coconino County Superior

Court on seven (7) counts of sexual assault, seven (7) counts of sexual conduct with a

minor, seventeen (17) counts of sexual exploitation of a minor, and one (1) count each of

kidnapping and obstructing a criminal investigation. (Doc. 1 at 3-5; Doe. 15, Aft. 18

[R.T. 02/13/08] at 84-89) As explained below, the Court recommends that Follansbee's

Petition be denied and dismissed with prejudice. The Court further recommends that

Follansbee's Motion for Evidentiary Hearing (Doe. 21) be denied as moot.

I. BACKGROUND1

The allegations that led to Follensbee's convictions after a jury trial were that he

forced his step-daughter to engage in sexual conduct with him during the night of

October 11 and morning of October 12, 2006. (Doe. 15, Aft. 4 [R.T. 01/09/08] at 20-22;

Unless otherwise noted, the following facts are derived from the exhibits

submitted with Respondents' Answer, Doe. 15.

Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 2 of 24

Au. 1 at p. 3, ¶ 2) The charges were based on two separate incidents during that period.

(Id.) After his convictions in January 2008 and sentencing to 256 years' incarceration in

February 2008, Follensbee timely appealed to the Arizona Court of Appeals. (Doe. 15,

Au. 17[R.T. 01/18/08] at 29-42; Au. 1, p.2atJ 3)

On appeal, Follensbee raised a number of issues, including: (1) his indictments

and sentences violated the Double Jeopardy clauses of the U.S. and Arizona Constitutions

by charging him both with counts of sexual assault and of sexual conduct with a minor;

(2) he was denied his rights to due process and a fair trial when: (a) the prosecution made

references to the victim's chastity; (b) the prosecution improperly insinuated that

Follansbee had drugged the victim; (c) the jury was subjected to improper influence when

the victim's mother cried in court and when the victim whispered to her friends while in

the gallery during Follansbee's testimony; and (d) prosecution witnesses gave improper

testimony regarding the victim's credibility, descriptions of the sexual assault, and the

identification of Follansbee; and (3) the trial court erred regarding aggravating factors

used in sentencing Follansbee. (Doe. 15, Au. 19 at 5-55; Att. 1 at 4, 9, 10-11, 13, 15, 17

and 22)

The Arizona Court of Appeals issued a memorandum decision rejecting

Follanbee's claims and affirming his convictions and sentences. (Id., Aft. 1 at 2-24)

19 Follensbee filed a petition for review in the Arizona Supreme Court, which the court

denied. (Id., Aft. 20 at 23)

Follansbee next initiated a timely notice in Coconino County Superior Court for

22 post-conviction relief ("PCR") pursuant to Rule 32, Arizona Rules of Criminal

Procedure. (Id. at 25-29) In his notice of PCR, Follansbee answered "yes" to the question

"[i]s the defendant raising a claim of ineffective assistance of appellate counsel? (Id. at

27) The substantive claims Follansbee described in the notice all involved allegations of

court errors leading to prejudice such that the jury could be neither fair nor impartial,

violating his rights under the United States and Arizona Constitutions to due process, to

equal protection, and to a fair and impartial jury. (Id. at 28)

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Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 3 of 24

Follansbee was appointed counsel for his state post-conviction relief action. (Doc.

20, Att. 1 [R.T. 11/21/12] at 9-10) That counsel filed a notice of review and of no

colorable claims, after which he was appointed to act as advisory counsel. (Id.)

Follansbee filed a supplemental petition for PCR on May 31, 20.11, which

apparently asserted primarily claims and argument directed at ineffective assistance of

trial counsel for not raising the trial judge's errors resulting in violations of Follansbee's

constitutional rights. (Doe. 15, Att. 20 at 31)

At a hearing held on November 21, 2012, before the trial judge, Judge Slayton, it

9 became apparent that Follansbee's arguments regarding the judge's errors included a

stand-alone claim of judicial bias against Follansbee by failing to adequately instruct the

jury regarding his rulings. (Doc. 20, Att. 2 [R.T. 11/21/12] at 13-17) Follansbee requested

12 an evidentiary hearing during which he would seek testimony from both his appellate

counsel and from Judge Slayton. (Id.) Follansbee explained that his prior motion for

reassignment of his PCR action to another judge was intended to facilitate that testimony.

(Id.)

Judge Slayton advised Follansbee that the claim of judicial bias was not clear

17 within his May 31, 2011, supplemental petition for PCR. (Id. at 16-18) Judge Slayton

further advised Follansbee to amend his petition to more clearly describe and support his

claim of judicial bias, to file with the presiding judge (Judge Moran) a motion to compel

Judge Slayton's testimony, and to file a separate motion for reassignment of his case.

(Id.) Judge Slayton and Follansbee were in agreement that if the motions to compel and

for reassignment were denied, that Follansbee's PCR action would "proceed on the basis

of what [Follansbee] outlined in [his] supplement to the petition." (Id. at 17) Follansbee

filed his Amended Supplemental Petition for Post-Conviction Relief in December 2012.

(Id., Aft. 20 at 31-43)

In an order dated January 18, 2013, Presiding Judge Moran denied Follansbee's

motion to compel, stating that his review of the trial transcripts attached to the motion

28 and purporting to demonstrate intentional bias by Judge Slayton did not support a

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C--

Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 4 of 24

colorable claim. (Doc. 21 at 46-47) The order remanded the matter back to Judge Slayton

for all further proceedings. (Id. at 47)

Judge Slayton ruled on Follansbee's PCR petition as follows:

[t]he Defendant alleged that appellate counsel was ineffective in failing to

raise judicial bias against the Defendant. Specifically, appellate counsel

should have raised that this Court's viewing of a photograph of his victim

somehow led this Court to become so prejudiced against the Defendant that

it calculatingly and knowingly sustained and over-ruled certain objections

at side-bar conferences in such a way that the jury was led to speculate

about the answer/rulings to those objections and, disregarding all other jury

instructions, the evidence and testimony, found the Defendant guilty. Judge

Moran specifically found that "a review of the attached transcripts to the

motion which purport to demonstrate a basis for bias by Judge Slayton does

not support a colorable claim of bias by Judge Slayton against the

Defendant."

(Doc. 15, Att. 20 at 52) Relying on Judge Moran's order that Follansbee had failed to

present a colorable claim of judicial bias, Judge Slayton concluded that there could also

be no colorable claim for ineffective assistance of appellate counsel for failure to raise the

judicial bias claim. (Id.) Accordingly, he denied Follansbee's PCR petition. (Id.)

Follensbee then sought review of this decision in the Arizona Court of Appeals.

(Doc. 20, Aft. 2 at 44-5 1 and Aft. 3 at 1-11) The Arizona Court of Appeals granted

review and denied the petition in an unpublished opinion. (Doe. 15, Aft. 20 at 54-55)

Applying the standards set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984),

the court of appeals determined that Follansbee had failed to offer evidence that his

appellate counsel's representation "fell below professional norms" or that the result of his

appeal would have changed if he had raised the issue of judicial bias. (Id.)

Follensbee then petitioned for review by the Arizona Supreme Court. (Doe. 20,

Aft. 3 at 15-27) The court summarily denied his petition. (Doe. 15, Aft. 20 at 57)

Follensbee filed his Petition for Writ of Habeas Corpus with this Court on May 13, 2015.

(Doe. 1)

II. LEGAL FRAMEWORK

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Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 5 of 24

A. Exhaustion of Remedies & Procedural Default

Exhaustion of Remedies. A state prisoner must properly exhaust all state court

remedies before this Court may grant an application for a writ of habeas corpus. 28

U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v.

Thompson, 501 U.S. 722, 731(1991). Arizona prisoners properly exhaust state remedies

by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate

manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196

F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). To

9 be fairly presented, a claim must include a statement of the operative facts and the

specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v.

Netherland, 518 U.S. 152, 162-63 (1996); Duncan, 513 U.S. at 365-66.

Procedural Default. A claim can also be subject to an express or implied

procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (91, Cir. 2010). An express

procedural bar exists if the state court denies or dismisses a claim based on a procedural

bar "that is both 'independent' of the merits of the federal claim and an 'adequate' basis

for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536

U.S. 856, 860 (2002) (Arizona's "Rule 32.2(a)(3) determinations are independent of

18 federal law because they do not depend upon a federal constitutional ruling on the

merits"); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) ("adequate" grounds exist

when a state strictly or regularly follows its procedural rule). See also Ylst v.

Nunnemaker, 501 U.S. 797, 801 (1991); Robinson, 595 F.3d at 1100.

An implied procedural bar exists if a claim was not fairly presented in state court

and no state remedies remain available to the petitioner. Teague v. Lane, 489 U.S. 288,

298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d

975, 987 (9th Cir. 2002); Poland v. Stewart, 169 F.3d 573, 586 (9th Cir. 1999); White v.

Lewis, 874 F.2d 599, 602 (9th Cir. 1989).

This Court can review a procedurally defaulted claim if the petitioner can

demonstrate either cause for the default and actual prejudice to excuse the default, or a

miscarriage of justice. See Schiup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S.

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Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 6 of 24

at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986); States v. Frady, 456 U.S. 152,

167-68 (1982).

B. Ineffective Assistance of Counsel

Under clearly established Federal law on ineffective assistance of counsel

("IAC"), a petitioner must show that his trial counsel's performance was both (a)

objectively deficient and (b) caused him prejudice. Strickland v. Washington, 466 U.S.

668, 687 (1984). This results in a "doubly deferential" review of counsel's performance.

Cullen v. Pinhoister, 131 S. Ct. 1388, 1403 (2011). The Court has discretion to determine

which Strickland prong to apply first. LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir.

1998). A habeas court reviewing a claim of ineffective assistance of counsel must

determine "whether there is a reasonable argument that counsel satisfied Strickland's

deferential standard, such that the state court's rejection of the IAC claim was not an

unreasonable application of Strickland. Relief is warranted only if no reasonable jurist

could disagree that the state court erred." Murray v. Schriro, 746 F.3d 418, 465-66 (9th

Cir. 2014) (internal citations and quotations omitted).

C. 28 U.S.C. § 2254 Habeas Petition

On habeas review, this Court can only grant relief if the petitioner demonstrates

Legal Standard of Review

prejudice because the adjudication of a claim either "(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 is a "highly

deferential standard for evaluating state court rulings' which demands that state court

decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24

(2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)).

III. FOLLENSBEE'S HABEAS CLAIMS

Follensbee's federal habeas petition raises the following grounds for relief:

(Ground 1) The trial judge failed to disclose to the jury his decisions after several

bench conferences, thereby demonstrating judicial bias and violating Follansbee's right to

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Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 7 of 24

due process and a fair trial pursuant to the Fifth and Fourteenth Amendments of the U.S.

Constitution (Doc. 1 at 11-16);

(Ground 2) The State committed prosecutorial misconduct when it deliberately

misled the trial court and the defense about evidence it intended to introduce regarding

the victim's chastity, in violation of Follansbee's rights to due process and a fair trial

under the Fifth and Fourteenth Amendments of the U.S. Constitution (Id. at 17-19);

(Ground 3) The jury heard opinion testimony of the State's expert witness which

had the effect of bolstering the victim's credibility, thus violating Follansbee's rights to

due process and a fair trial under the Fifth and Fourteenth Amendments of the U.S.

Constitution (Id. at 20-22);

(Ground 4) The State committed prosecutorial misconduct when it improperly

insinuated that Follansbee had drugged his victim for the purpose of incapacitation, in

violation of Follansbee's rights to due process and a fair trial under the Fifth and

Fourteenth Amendments of the U.S. Constitution (Id. at 23-24);

(Ground 5) Certain actions of the victim and her friends, and of the victim's

mother while in the gallery improperly influenced the jury in violation of Follansbee's

rights to due process and a fair trial under the Fifth and Fourteenth Amendments of the

U.S. Constitution (Id. at 25-26); and

(Ground 6) The State improperly and repeatedly charged two counts for the same

offense, violating Follansbee's protection against double jeopardy and rights to due

process pursuant to the Fifth and Fourteenth Amendments of the U.S. Constitution (Id. at

27-29).

A. Follanbee's Unexhausted/Defaulted Claims

As is discussed in greater detail with respect to each ground below, Follansbee did

not exhaust on direct appeal to the Arizona Court of Appeals the issues underlying

Grounds 2, 3 and 5. Because Follansbee cannot now return to the state courts, these

claims are subject to a procedural bar. This Court, however, can review a procedurally

defaulted claim if the petitioner can demonstrate either cause for the default and actual

prejudice to excuse the default, or a miscarriage of justice. Schiup v. Delo, 513 U.S. at

-7-

Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 8 of 24

321; Murray v. Carrier, 477 U.S. at 495-96; States v. Frady, 456 U.S. at 167-68.

Follansbee does not argue cause for his failure to exhaust a federal claim on these

grounds. (Doc. 20 at 39-40) Instead, he specifically relies on "the merits of his appellate

-4.. brief'

exhaustion.. KId.) Even if Follansbee

for

exhaustion, the record fails to demonstrate prejudice such that a constitutional error

"worked to his actual and substantial disadvantage, infecting his entire trial with error of

constitutional dimensions." Frady, 456 U.S. at 170. Neither has Follansbee established

for Grounds 2, 3 or 5 that "a constitutional error has probably resulted in the conviction

9 of one who is actually innocent." Murray, 477 U.S. at 496. Accordingly, this Court

cannot review further Grounds 2, 3 and 5 of Follansbee's petition.

(i)

Follansbee asserts that the State committed prosecutorial misconduct by failing to

disclose, without an offer of proof, its intention to introduce evidence bearing on the

victim's chastity. (Doc. 1 at 17) In a pre-trial minute entry, Judge Slayton ordered that no

questions could be asked regarding the victim's chastity or whether she was a virgin at

the time of the alleged assaults without a sidebar conference to ask for an offer of proof.

Ground 2

Prosecutorial Misconduct Regarding Victim's Chastity

(Doc. 20, Att. 5 [R.T. 01/09/08] at 24) Despite this order, the prosecutor said in his

opening statement that Follansbee had "taken [the victim's] virginity in a vicious rape."

(Doc. 15, Aft. 4 [R.T. 01/09/08] at 44) The next day, Follansbee's counsel moved for a

mistrial "pursuant to the due process clause of the State Constitution." (Doe. 15, Aft. 6

[R.T. 01/10/08] at 13) Judge Slayton denied that motion, gave the jury a curative

instruction, and ordered again that the victim's virginity not be put in issue without a

request and an offer of proof. (Id. at 13-18)

Later during the trial, the prosecutor asked a witness who had conducted a genital

exam on the victim after the assault, whether the hymen is "always injured or changed as

a result of the first sexual encounter?" (Id., Aft. 11 [R.T. 0 1/15/08] at 31) Follansbee's

counsel objected and reasserted his motion for a mistrial on the basis that the questioning

about a first sexual encounter violated the court's order. (Id. at 32-33) Judge Slayton

sustained Follansbee's objection at sidebar, but denied the motion for mistrial. (Id.) The

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Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 9 of 24

judge explained that the prosecutor's questioning was less prejudicial because it

addressed the issue generally, rather than specific to the victim. (Id.)

Follansbee raised this issue on direct appeal and argued that the State's

prosecution of its case violated his rights to due process and to a fair trial under the Fifth

and Fourteenth Amendments to the U.S. Constitution, and Article 2 §4 and 24 of the

Arizona Constitution. (Doc. 15, All. 19 at 31-33) He also cited the U.S. Supreme Court in

Lisenba v. California, 314 U.S. 219, 236 (1941), for the test of a denial of due process

and resulting constitutionally unfair criminal trial: that due process .is denied when errors

resulted in fundamental unfairness that "fatally infected the trial." (Id.)

Follansbee's citations to the U.S. and Arizona Constitutions and to Lisenba were

made in an introductory paragraph that applied to subsequent discussion and arguments

under each of the following four claims: prosecutorial misconduct regarding the victim's

chastity, improper insinuation that Follansbee had drugged the victim, improper influence

of the jury by the victim and her mother, and improper testimony regarding the victim's

credibility. (Id. at 31-47) Follansbee asserts each of these four claims as grounds in his

habeas petition here. (Doc. 1 at 17-26 (Grounds Two through Five))

Follansbee is required to have exhausted his claim of prosecutorial misconduct

regarding evidence of the victim's chastity in state court. 28 U.S.C. § 2254(b)-(c). That

means he must have fairly presented this argument as a federal claim to the state court.

See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). Isolated citations to federal

provisions or cases do not create a federal claim; instead, Follansbee must have

articulated a federal theory for his federal habeas claim. See Castillo v. McFadden, 399

F.3d 993, 1002 (9th Cir. 2005). Further, mere "general appeals to broad constitutional

principles, such as due process, equal protection, and the right to a fair trial," do not

establish exhaustion. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999) (citation

omitted). Nor is it enough to raise a state claim that is analogous or closely similar to a

federal claim. Castillo, 399 F.3d at 999.

Within his appellate brief, Follansbee asserted that after the prosecutor's opening

Case 3:15-cv-08082-GMS Document 22 Piled 08/26/16 Page 10 of 24

statement, Follansbee moved for mistrial based on a violation of A.R.S. § 1314212 as

well as a denial of his right to a fair trial. (Doe. 15, Att. 19 at 32) As noted, on the issue

of evidence regarding the victim's chastity, Follansbee's trial counsel argued a violation

of his right to due process under the Arizona Constitution, and did not mention the U.S.

Constitution. (Id., Aft. 6 [R.T. 01/10/08] at 13) The appellate brief further asserts that

Follansbee's subsequent objection to the prosecution's question regarding a first sexual

encounter represented violations of the court's order, of A.R.S. 13-1421, and of his

agreement with defense counsel. (Id., Aft. 19 at 32)

Follansbee's argument in his appellate brief specific to prosecutorial misconduct

regarding the victim's chastity is supported by just two cases. (Id.) Each case is a state

court decision that addresses the defense of harmless error. (Id.) The Arizona Court of

Appeals analyzed and ruled on Follansbee's claim solely on the basis of Arizona law.

(Id., Aft. 1 at 9-10) Despite his introductory citation to the U.S. Constitution, the

arguments Follansbee presented to the Arizona Court of Appeals on direct appeal did not

fairly present or articulate a claim based upon federal constitutional law or statutes. His

claim was not exhausted as intended by §2254(b)-(c). See Scott v. Schriro, 567 F.3d 573,

582 (91h Cir. 2009); Castillo v. McFadden, 399 F.3d 993, 1002 (9th Cir. 2005); Hiivala v.

Wood, 195 F.3d 1098, 1106 (9th Cir.1999).

(ii) Ground 3 Improper Testimony Regarding Victim's Credibility

Follansbee argues that the trial court erred when it allowed the testimony of the

State's expert witness Diane Holt. (Doe. 1 at 20) Ms. Holt was permitted to testify that

the victim had told her that she had been sexually assaulted by Follansbee. (Doe. 15, Aft.

11 [R.T. 0 1/15/08] at 20-2 1) He complains this testimony was improper, was not relevant

to the diagnosis and medical treatment purposes of Ms. Holt's examination, and had the

improper effect of bolstering the victim's credibility. (Doe. 1 at 20) Ms. Holt had

This section of the Arizona Criminal Code is entitled "Evidence relating to

victim's chastity; pretrial hearing," and requires, in part: "[e]vidence of specific

27 instances of the victim's prior sexual conduct may be admitted only if a judge finds the

evidence is relevant and is material to a fact in issue in the case and that the inflammatory

28 or prejudicial nature of the evidence does not outweigh the probative value of the

evidence.. ."A.R.S. 13-1421(A)

Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 11 of 24

conducted a genital examination as a part of the victim's medical evaluation performed at

a clinic that took referrals for children with "suspected abuse or neglect concerns." (Doc.

15, Att. 11 [R.T. 01/15/08] at 15)

Before this-testimony was elicited at trial, defense counsel objected, noting that he

had already made a record of the reasons underlying the objection. (Id. at 21) In the

course of assessing juror questions for Ms. Holt, defense counsel reasserted his

opposition to Ms. Holt's testimony about the victim's having identified Follansbee as her

assailant, and again moved for a mistrial. (Id. at 54-56) Defense counsel complained that

this testimony deprived Follansbee of a fair and impartial jury as guaranteed by the Fifth

and Fourteenth Amendments to the U.S. Constitution and by Article 2, Section 4 of the

Arizona Constitution. (Id. at 55)

As is discussed supra under Ground 2, Follansbee raised this issue on direct

appeal and, in a general introduction, asserted a violation of his rights to due process and

to a fair trial under the both the U.S. and Arizona Constitutions, also citing Lisenba v.

California, 314 U.S. 219, 236 (1941) for the test applicable to a claim of a

constitutionally unfair trial. (Doc. 15, Att. 19 at 31-33)

However, Follansbee's lengthy argument to the Arizona Court of Appeals was

supported by Arizona state court caselaw alone. (Id., Att. 19 at 38-47) The argument was

based on an issue turning on the Arizona Rules of Evidence, and neglected to fairly

20 present or articulate an issue grounded in federal constitutional or statutory law.

Follansbee has not exhausted his federal claim set forth in Ground 3. See Scott v. Schriro,

567 F.3d 573, 582 (9th Cir. 2009); Castillo v. McFadden, 399 F.3d 993, 1002 (9th Cir.

2005); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).

(iii) Ground 5 Due Process Violation Related to Victim's and Victim's

Mother's Behavior in the Courtroom

Follansbee argues that his due process and fair trial rights were fundamentally

compromised when: (1) the victim's mother became emotional and left the courtroom

during opening statements; and (2) three jurors observed and heard snippets of the

victim's conversation while sitting in the gallery with two friends during Follansbee' s

-11-

Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 12 of 24

testimony in the defense case. (Doc. 1 at 25-26) In each instance, the court took

corrective action. (Doc. 15, Aft. 6 [R.T. 01/10/08] at 7-10; Aft. 13 [R.T. 01/16/08] at 49-

61) Although defense counsel was not aware of the victim conversing with her friends

during Mr. Follansbee's testimony, he moved for a mistrial after the trial judge conducted

voir dire with the three affected jurors. (Id., Aft. 13 [R.T. 01/16/08] at 57-59)

When defense counsel orally moved for a mistrial, he based his motion for a fair

7 and impartial jury on the Sixth Amendment to the U.S. Constitution and Article 2,

Section 24 of the Arizona Constitution, and for due process on the Fifth and Fourteenth

9 Amendments to the U.S. Constitution and Article 2, Section 4 of the Arizona

Constitution. (Id., Art. 13 at 59) Again, as is discussed supra under Ground 2, Follansbee

raised this issue on direct appeal and, in a general introduction, asserted a violation of his

rights to due process and to a fair trial under the both the U.S. and Arizona Constitutions,

also citing Lisenba v. California, 314 U.S. 219, 236 (1941). (Doc. 15, Art. 19 at 31-33)

Follansbee's argument on appeal cited exclusively state caselaw and statute. Under these

circumstances, Follansbee has failed to fairly present or articulate an issue grounded in

federal constitutional or statutory law. Follansbee has not exhausted his federal claim set

forth in Ground 5. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Castillo v.

McFadden, 399 F.3d 993, 1002 (9th Cir. 2005); Hiivala v. Wood, 195 F.3d 1098, 1106

(9th Cir. 1999).

B. Follansbee's Exhausted Claims

(i)

Ground 1 - Judicial Bias

Follansbee argues that his rights to due process and a fair trial guaranteed by the

Fifth and Fourteenth Amendments of the U.S. Constitution were violated by the trial

24 judge when he sustained six defense objections on evidentiary grounds during bench

25 conferences, but then did not announce his ruling to the jury before continuing with

witness examination. (Doc. 1 at 11-16) Follansbee argues in part that this indicated

judicial bias because in three other contemporaneous instances in which the State

objected, after a bench conference the judge announced to the jury that the objection had

been sustained. (Id.)

Case 3:15-cv-08082-GMS Document 22 Piled 08/26/16 Page 13 of 24

In the preliminary jury instructions, the jury was instructed that "[i]f an objection

to a question is sustained, you must disregard the question, and you must not guess what

the answer to that question might have been." (Doc. 15, Alt 4 [R.T. 01/09/08] at 27)

Substantially the same instruction was given in the final jury instructions: "[i]f the Court

sustained an objection to a lawyer's question, you must disregard it and any answer

given." (Id., Au. 15 [R.T. 01/17/08] at 45) Notwithstanding the fact that the judge had

sustained defense objections, and gave preliminary and final instructions regarding

objections, Follansbee urges that the failure of the judge to announce his rulings to the

jury or to provide a specific curative instruction in these six instances misled the jury and

created fundamental error. (Doc. 1 at 16)

As Follansbee explains within his petition, this claim of judicial bias was included

as the basis for an ineffective assistance of appellate counsel claim in his PCR petition to

the trial court. (Doc. 1 at 16; Doc. 15, Au. 20 at 31-43) After the trial court permitted him

to amend his supplemental PCR petition, Follansbee asserted both a stand-alone claim of

judicial bias and an ineffective assistance of appellate counsel claim for counsel's failure

to raise this same judicial bias claim on direct appeal. (Id.) The trial judge denied relief,

relying in part on Judge Moran's finding of no colorable claim of judicial bias, and in

turn found no basis for a claim of ineffective assistance of appellate counsel for failure to

raise the judicial bias issue. (Doc. 15, Au. 20 at 52)

Here, Respondents urge that Follansbee's claim of judicial bias in Ground 1 was

not raised in either his direct appeal or in his PCR action, and is unexhausted. (Doc. 15 at

8) The record supports the assertion that a stand-alone claim was not raised on direct

23 appeal, and was thus subject to waiver under Arizona Rule of Criminal Procedure

32.2(a)(3). When the judicial bias issue was raised in Follansbee's amended supplemental

PCR petition as both a stand-alone claim and as the subject of an ineffective assistance of

appellate counsel (IAAC) claim, the PCR court ruled summarily that the claim of bias

"undergirding" Follansbee's IAAC claim had been found not colorable, and found no

colorable claim of IAAC for failure to raise that same judicial bias claim. (Id, Aft. 20 at

52) In its denial of Follansbee's petition for relief, the Arizona Court of Appeals' analysis

Case 3:15-cv-08082-GMS Document 22 Piled 08/26/16 Page 14 of 24

addressed the IAAC claim but not the judicial bias claim. (Id. at 54-55) The Arizona

Supreme Court denied Follansbee's petition for relief without comment. (Id. at 57)

Arizona Rule of Criminal Procedure 32.2(a)(3) provides that a claim that could

4 have been raised on direct appeal, but was not, is waived and precluded from

consideration in a Rule 32 PCR proceeding absent a showing of cause and prejudice or of

a fundamental miscarriage of justice. See Poland v. Stewart, 169 F.3d 573, 578 (91h Cir.

1998). The fact that a federal habeas petitioner did not comply with a state procedural

rule does not alone prevent review of his claim: "[t]he state court must actually have

relied on 'the procedural bar as an independent basis for its disposition of the case."

Harris v. Reed, 489 U.S. 255, 261-62 (1989). In Harris, the Court declared that "a

procedural default does not bar consideration of a federal claim on

unless the last state court rendering a judgment in the case clearly and expressly states

that its judgment rests on a state procedural bar." Id. at 263 (citations and internal

quotation marks omitted).

habeas review

The trial court's January 22, 2013 order denying relief on Follansbee's Amended

Supplemental Petition for Post-Conviction Relief (Doc. 15, AU. 20 at 52) is ambiguous

.28

regarding whether it is addressing Follansbee's claim of judicial bias as a stand-alone

claim or rather merely as the basis for his claim of ineffective assistance of appellate

counsel for not raising the judicial bias claim on direct appeal. Judge Slayton captioned

his single-page summary ruling as "Ruling Re: Petition for Post-Conviction Relief Re:

Ineffectiveness of Appellate Counsel," but also stated "[a]s this 'claim of bias'

undergirding Defendant's claim of ineffective assistance of counsel was specifically not

found by Judge Moran, this Court finds no colorable claim of ineffectiveness of appellate

counsel for failing to raise such a claim." (Id., emphasis in original omitted)

The Arizona Court of Appeals provided a more detailed discussion to support its

denial of relief, but addressed only Follansbee's IAAC claim, even though Follansbee's

petition for review plainly advanced the judicial bias claim as a stand-alone issue. (Id.,

AU. 20 at 55) The Court concluded its memorandum decision by stating, "[w]hile the

petition for review presents additional issues, Follansbee did not raise those issues in the

Case 3:15-cv-08082-GMS Document 22 Piled 08/26/16 Page 15 of 24

petition for post-conviction relief filed below." As noted, however, Follansbee in fact did

raise the judicial bias claim in his amended supplemental petition for PCR. (Id.)

One possible explanation for the absence of explicit rulings on Follansbee's stand-

alone judicial bias issue by the trial and appellate courts is that this issue was subject to

waiver under Rule 32.2(a)(3) for not having been raised on direct appeal. This potential

6 ground for denial would have been obvious, as Follansbee's ineffective assistance of

appellate counsel claim raised in his Rule 32 action was based on the fact that appellate

counsel did not assert the judicial bias claim on direct appeal. However, neither court's

order even suggested that Follansbee's stand-alone judicial bias claim had been subject to

10 a procedural bar. The last court rendering a reasoned judgment on Follansbee's PCR

petition was the Arizona Court of Appeals. Therefore, under the rule announced in Harris

v. Reed, 489 U.S. 255, 261-62 (1989), this Court is not barred from habeas review of the

merits of Follansbee's stand-alone judicial bias claim.

Although the Arizona Court of Appeals did not rule separately on Follansbee's

15 stand-alone judicial bias claim, that court expressly applied the Strickland v. Washington

16 two-part test to determine whether Follansbee had asserted a colorable IAAC claim.

(Doc. 15, Aft. 20 at 54-55) Strickland's two-part test requires the claimant to "establish

that (1) counsel's performance fell below an objective standard of reasonableness and (2)

there is a reasonable probability that, but for counsel's errors, the outcome of the

proceeding would have been different." Hain v. Gibson, 287 F.3d 1224, 1231 (10th Cir.

2002) citing Strickland, 466 U.S. at 688, 694. A proper determination of Strickland's

standard of reasonableness prong requires the court to examine the merits of the claim not

raised. (Id.) In fact, the Arizona Court of Appeals concluded that Follansbee had not

offered evidence sufficient to show that his appellate counsel's decision not to appeal the

judicial bias issue either fell below prevailing professional norms or that the trial outcome

would have differed if his appellate counsel had raised that issue. (Doc. 15, Aft. 20 at 55)

Supreme Court caselaw clearly recognizes a criminal defendant's right to a fair

and impartial jury as guaranteed by the Due Process Clause. Larson v. Palmateer, 515

F.3d 1057, 1067 (9th Cir. 2008) (citing In re Murchison, 349 U.S. 133, 136 (1955)). To

Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 16 of 24

succeed on his claim of judicial bias, Follansbee must overcome the presumption that the

trial judge acted with "honesty and integrity." Withrow v. Larkin, 421 U.S. 35, 47 (1975).

"In the absence of any evidence of some extrajudicial source of bias or partiality," a

judge's adverse rulings are generally insufficient to overcome the presumption of judicial

integrity. Liteky v. United States, 510 U.S. 540,' 555 (1994). On federal habeas review, the

Court "must ask whether the state trial judge's behavior rendered the trial so

7 fundamentally unfair as to violate federal due process under the United States

Constitution." Duckett v. Godinez, 67 F3d 734, 740 (9th Cir.1995). "To sustain a claim

of this kind, there must be an 'extremely high level of interference' by the trial judge

which creates 'a pervasive climate of partiality and unfairness." Id. (quoting United

States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir.1982)).

In Ground 1, Follansbee contends that Judge Slayton impermissibly favored the

State when he announced his rulings sustaining the prosecutor's objections after three

bench conferences, but failed to announce his rulings after 'six bench conferences on

defense objections. (Doc. 1 at 11-16) In his'reply to Respondents' Answer, Follansbee

16 argues that the judge's failure to announce his rulings on the defense objections led the

17 jury to speculate about what the sidebar rulings actually were, which Follansbee

concludes represented an abuse of the judge's discretion, and also improperly influenced

the jurors to the extent that the fairness of the trial was compromised. (Doc. 20 at 31-34)

A thorough review of the trial transcripts, however, demonstrates no basis for a finding of

fundamental unfairness.

In four of the six defense objections followed by a idebar, either defense counsel:

(1) did not make an objection and merely asked to be heard at sidebar; or (2) stated only

that he objected and asked to approach without explaining any ground for or details about

ç objection. (Doc. 15, Aft. 6 [R.T. 01/10/081 at 29-31: Att. 8 [R.T. 01/11/081 at 105;

A. 11 [R.T. 01/15/081 at 27;'Att. 13 [R.T. 01/16/081 at 81) Accordingly, because

27 defense counsel did not provide any details for his objection, there was simply no

obvious issue on which the jury might speculate.

Regarding the two remaining defense objections, defense counsel ,asserted a

-16-

Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 17 of 24

ground for the objection before the bench conference. (Id., Att. 6 [R.T. 01/10/08] at 33-

37; Aft. 11 [R.T. 01/15/08] at 31-33) The first of- these two sidebars merely involved an

objection asserting the need for the prosecutor to lay additional foundation before asking

a question. _(Id., Att. 6 [R.T. 01/10/08] at 33-37). The second objection was to the use of

the phrase "first sexual encounter." (Id., Aft. 11 [R.T. 01/15/081 at 31) After the second

sidebar, subsequent questioning by the prosecutor would have allowed the jury to infer

that the defense objection had been sustained.

The first State objection occurred when defense counsel moved to admit

Follansbee's military discharge papers. (Id., Aft. 12 [R.T. 01/16/08] at100-101) Because

the objection was sustained, the jury knew only that the papers would not be admitted.

(Id., Att. 12 [R.T.0 1/16/08] at 102) The second State objection was made during the

sidebar, thus providing no realistic basis for jury speculation. (Id., Aft. 13 [R.T. '01/16/08]

at 31) The third State objection was made when Follansbee testified that an argument he

had with the victim involved something the victim did that was "illegal." After the judge

called counsel to sidebar and the sidebar ended, the judge instructed the jury, "[t]he last

answer that Mr. Follansbee gave and he believed that [the victim] did something illegal is

stricken from the record and the jury is ordered to disregard it." (Id.)

The thrust of Follansbee's complaints about Judge Slayton's treatment of the

specific defense and State objections set forth in Ground 1 is directed to how the

20 objections were handled by the judge rather than how he ruled on them. There is no

substantive difference in how the judge handled the defense and State's objections on

which Follansbee bases his argument. Importantly, "[t]he trial judge has wide latitude in

the admission of evidence." Kanekoa v. City and-County of Honolulu, 879 F.2d 607, 613

(9th

Cir. 1989). In fact, the judge's handling of defense objections at sidebar, including his

decision not to announce to the jury how he ruled on these defense objections, is more

reasonably viewed as judicial impartiality and fairness.

Viewed as a whole, the trial record also fails to support a claim of judicial bias.

For instance, the defense made over a hundred objections during the trial, and greater

than half of those were sustained. (Id., Atts. 3-16 [R.T. 01/09/08

01/17/08]) The judge

Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 18 of 24

sua sponte cautioned the prosecutor on his questioning on at least two occasions. (Id.,

Att. 4 [R.T. 01/09/08] at 66; Att. 7 [RT. 01/.10/08] at 97-98) Although the State made

very few evidentiary objections during the defense case, in at least one instance the State

asked to approach the bench, counsel argued an evidentiary issue, and the judge made no

announcement regarding the resolution of that issue once the sidebar ended. (Id., Aft. 16

[R.T. 01/17/08] at 12-14)

The preliminary and final jury instructions are pertinent to Follansbee's claim of

bias. The preliminary instructions included that it is the jury's "duty to decide the facts,"

that the jury "must decide the facts only from the evidence produced in Court," that the

jury "must not speculate or guess about any fact," that the jury "must determine the facts

only from the testimony of witnesses and from exhibits admitted in evidence[,]" and that

"questions by a witness or to a witness" are not evidence. (Doc. 15, Aft. 4 [R.T. 01/09/08]

at24,26)

Further, the preliminary instructions included that "[i]f a lawyer objects to a

question and I do not allow the witness to answer, you must not try to guess what the

answer might have been. You must also not try to guess the reason the lawyer objected in

the first place." (Id. at 27) Significantly, preliminary instructions also included the

admonition to "not 'concern yourself with the reasons for my rulings on the admission of

evidence. Do not regard those rulings as any indication from me of the credibilitjof the

witnesses or the weight that you should give to any evidence that has been admitted." (Id.

at 28)

The final jury instructions included that the jury must "[d]etermine the facts only

from the evidence produced in Court[,]" should "not guess about any fact[,]" and must

"not be concerned .with any opinion that you feel I have about the facts." (Doc. 15, Aft.

15 [R.T. 01/17/08] at 44)

Follansbee's argument that he was prejudiced by the judge's not announcing to the

jury what his ruling on an objection was, or how a bench conference issue was resolved,

in the few instances he specifies in Ground 1 ignores the jury instructions considered as a

whole. The jury instructions expressly and appropriately addressed any .concerns about

Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 19 of 24

1 jury speculation regarding questions asked but not answered, the reasons why counsel

may have objected to a question or testimOny, the judge's reasons for ruling on objections

regarding either witness credibility or the weight accorded evidence admitted, and jurors

guessing about facts. Cts presume that juries follow instructions that are given. See

Weeks v. Angelone, 528 U.S. 225, 234 (2000)..

Based on this Court's thorough reviewOf the trial transcripts, the Court concludes

that Follansbee has failed to overcome the resumption that the trial judge acted with

honesty and integrity. The trial judge's conduct regarding the rulings on objections of

which Follansbee complains was neither partial nor unfair and did not violate federal due

10 process. Any concerns regarding potential jury speculation about rulings on defense

objections were clearly and adequately addressed within the jury instructions.

Follansbee has failed to show, and the record does not support, that the Arizona

Court of Appeal's decision affirming Follansbee's convictions and sentences were

contrary to clearly established federal • law, or were based on an unreasonable

determination of the facts.

(ii) Ground 4— Prosecution Improperly Insinuated that Follansbee Drugged

the Victim

In Ground 4 of his habeas petition, Follansbee asserts that the prosecutor engaged in

19 misconduct by improperly insinuating at trial that Follansbee had drugged a beverage

consumed by the victim, intending to incapacitate her to facilitate his sexual assault on

her. (Doe. 1 at 23)

The basis for Follansbee's argument included:

(1) The prosecutor's discussion in his opening statement of defendant providing to

the victim and her friend, E.G., pink wine coolers in glasses on the night of the assaults.

The prosecutor stated this was something Follansbee had never done before and left the

girls feeling uncharacteristically extremely tired after drinking an additional bottle of

wine cooler apiece. (Doc. 15, Aft. 4 [R.T. 01/09/08] at 45-48)

(2) The victim's testimony that Follansbee brought the two girls each a glass of

pink margherita cooler and allowed them to each consume most of another bottle of

Case 3:15-cv-08082-GMS Document 22 Piled 08/26/16 Page 20 of 24

margherita cooler, which rapidly left the victim feeling "very tired" and "really groggy,"

rather than drunk or "buzzed." (Id., Att. 6 [R.T. 01/10/08] at 64-69)

(3) The victim's further testimony that when Follansbee woke her up during the

4 night and made her come into his bedroom she felt groggy and "couldn't walk or

anything." (Id. at 73)

(4) The victim's testimony that after she was assaulted and returned to her

bedroom, she was still tired and groggy and "could not focus or see hardly." (Id. at 78)

(5) E.G.'s testimony that on the evening in question, Follansbee brought her and

the victim a pink wine cooler each, in glasses, and told them they could have the other

10 two bottles of cooler in the refrigerator downstairs, which they also consumed, after

which E.G. felt really tired as opposed to drunk. (Doc. 15, Aft. 4 [R.T. 01/09/08] at 80,

Aft. 5 [R.T. 01/09/08] at 1, 5, 7-8)

(6) The prosecutor's discussion in closing argument that the girls testified they did

not feel drunk after consuming the wine coolers, and instead felt "really weird, different,

fast, really groggy, sleepy." (Id., Aft. 15 [R.T. 01/17/08] at 62)

Follansbee's trial counsel did not object to the victim's or E.G.'s testimony

regarding the drinks and how they felt after consuming the drinks, or to the prosecutor's

related statements and argument.

In his direct appeal to the Arizona Court of Appeals, Follensbee argued that the

State's questioning at trial and argument related to the girls' testimony about how they

felt after drinking the coolers was improper because "the State possessed absolutely no

evidence to support its insinuation that [Follansbee] had drugged either minor by placing

something in the single wine cooler he personally served them, on ice." (Id., Aft. 19 at

34-35) Follansbee expressly relied on federal caselaw to support his argument that "the

25 government may not 'suggest that information not in evidence supports its case," and

that "such suggestion violates due process where it gives the jury a 'false impression."

(Id.) Follansbee's reliance on federal caselaw to support his argument indicates that his

claim was sufficiently grounded in federal constitutional law. His claim was therefore

exhausted for the purposes of §2254(b).

Case 3:15-cv-08082-GMS Document 22 Piled 08/26/16 Page 21 of 24

Ruling on Follansbee's arguments, the Arizona Court of Appeals first established

that, because Follansbee failed to object at trial, it would review the arguments only for

fundamental error. (Id., Aft. 1 at 10- 11) The test applied by the court was that the error

ust have been such_that Follansbee "could not possibly have received a fair trial."(M.,

citing State v. Henderson, 210 Ariz. 561, 567, 115 P.3d 601, 607 (Ariz. 2005)). The court

6 held that the girls' testimony regarding the drinks and the drinks' effect on them was

7 properly admitted relevant evidence and that the prosecutor's comments in closing

argument urging the jury members to draw their own inferences were proper. (Id. at 12)

Noting that the "lack of certainty as to whether the drinks were actually drugged goes

only to the weight of the evidence, not its admissibility[,]" the court concluded that the

trial court did not err by failing, sua sponte, to preclude admission of this evidence or to

preclude the use of the evidence by the State in closing argument. (Id.)

On allegations of prosecutorial misconduct in violation of a defendant's federal

due process rights, a court will consider "whether the prosecutor's actions 'so infected the

trial with unfairness as to make the resulting conviction a denial of due process." Hein v.

Sullivan, 601 F.3d 897, 912 (9th Cir. 2010), quoting Darden v. Wainwright, 477 U.S. 168,

181 (1986) (additional citation and internal quotation marks omitted).

The trial record shows that the prosecutor asked the girls open-ended questions

19 about what happened and how the drinks made them feel. (Doc. 15, Att. 6 [R.T.

01/10/08] at 64-69, 73, 78; Aft. 4 [R.T. 01/09/08] at 80, Aft. 5 [R.T. 01/09/08] at 1, 5, 78) He did not elicit any testimony about why the girls felt more tired and groggy, rather

than drunk. (Id.) The prosecutor's closing argument did not urge the jury to connect the

fact that Follansbee provided the girls with the first pink coolers and their subsequent

feelings of tiredness or grogginess. (Id., Aft. 15 [R.T. 01/17/08] at 61-63; Aft. 16 [R.T.

01/17/08] at 55) If there were an inference to be drawn, the State left it to the jury to

make.

Applying the deferential standard to the Arizona Court of Appeals' finding of no

prejudicial, fundamental error, the Court concludes that Follansbee has failed to

demonstrate that state court review was contrary to, or involved the unreasonable

-21

Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 22 of 24

application of, relevant federal law; or that such review was based on an unreasonable

determination of the facts. See 28 U.S.C. § 2254(d).

(iii) Ground 6— Double Jeopardy

-4

In his petition, Follansbee complains that the State improperly charged multiple

counts for a single offense, causing him to be subject to double jeopardy in violation of

his due process rights as guaranteed by the Fifth and Fourteenth Amendments of the U.S.

Constitution. (Doc. 1 at 27) Specifically, he argues that he should not have been charged

and convicted on counts of both sexual assault pursuant to A.R.S. § 13-1406(A) and

sexual conduct with a minor pursuant to A.R.S. § 13-1405(A), because the counts

"pertained to the identical single act." (Id.)

The Arizona Court of Appeals assessed Follansbee's identical argument on direct

appeal by applying the U.S. Supreme Court case Blockburger v. United States, 284 U.S.

299 (1932). Under Blockburger, the Arizona court stated, "[w]hen an act or omission

violates two statutory sections, we determine 'whether each provision requires proof of a

fact which the other does not." (Doc. 15, Aft. 1 at ¶ 8 (quoting Blockburger, 284 U.S. at

304)). Put another way, "even when the same conduct forms the basis for two charges,

the two charges do not necessarily entail the 'same offense' for double jeopardy

purposes". United States v. Ant, 252 F.3d 1032, 1039 (9th Cir. 2001) (citing United States

v. Dixon, 509 U.S. 688, 703-04 (1993)) "What is determinative under the Court's double

jeopardy doctrine is simply whether the statutes involved require satisfaction of the same

statutory elements, or whether each statute requires proof of an element that the other

does not." Id.

The Arizona Court of Appeals reasoned:

A conviction for sexual assault requires proof that the defendant (1)

knowingly or intentionally engaged in sexual intercourse or oral sexual

conduct (2) without consent of the other person. A.R.S. § 13-1406(A)

(2001). By contrast, a conviction for sexual conduct with a minor requires

proof that the defendant (1) knowingly or intentionally engaged in sexual

intercourse or oral sexual conduct (2) with a person under the age of

eighteen. A.R.S. § 13-1405(A) (2001).

Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 23 of 24

Each of these statutes contains an element that the other does not. Lack of

consent is not an element of sexual conduct with a minor, and the age of the

victim is not an element of sexual assault, thus the two crimes constitute

separate offenses under the Blockburger test.

(Doe. 15, AU. 1, p. 6 at ¶J 9-10)

Follansbee offers no legal argument on why the Arizona Court of Appeals'

judgment affirming his convictions and sentencing was contrary to or involved an

unreasonable application of established federal law or that it involved a decision based on

an unreasonable determination of the facts adduced in his trial.

IT IS THEREFORE RECOMMENDED that Clifford Allen Follansbee's

Petition for Writ of Habeas Corpus be denied and dismissed with prejudice.

IT IS FURTHER RECOMMENDED that a Certificate of Appealability be

denied because dismissal of the Petition is justified by a plain procedural bar and jurists

of reason would not find the ruling debatable.

IT IS FURTHER RECOMMENDED that Follansbee's Motion for Evidentiary

Hearing (Doc. 21) be denied as moot.

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 fourteen (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); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the

parties have fourteen (14) days within which to file a response to the objections. Failure

23 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 or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule

-23-

•

Case 3:15-cv-08082-GMS Document 22 Filed 08/26/16 Page 24 of 24

72, Federal Rules of Civil Procedure.

Dated this 26th day of August, 2016.

Honorable Deborah M. Fine /

United States Magistrate Judge

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.