Earl Richard Shupe, Petitioner, v. Pima County Adult Probation Department, et al., Respondents.
No. CV-22-00529-TUC-RM
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
Filed 03/11/25
ORDER
Pending before the Court is a Report and Recommendation (“R&R“) by Magistrate Judge Michael A. Ambri (Doc. 22), recommending that this Court dismiss Petitioner Earl Richard Shupe‘s Amended Petition Under
I. Background
Petitioner was convicted after a bench trial in the Pima County Consolidated Justice Court on June 11, 2019, of one count of misdemeanor assault. (Doc. 7-2 at 4; Doc. 18-1 at 14.)1 The trial court sentenced him to 12 months of supervised probation and ordered him to attend 26 sessions of domestic violence offender treatment. (Doc. 7-2 at 4; Doc. 18-1 at 14.) The Pima County Superior Court affirmed his conviction on direct appeal. (Doc. 18-1 at 3-10.)2 The Superior Court described the facts of Petitioner‘s case
On July 29, 2018, Mr. Shupe was angry that his wife, Maria Shupe (“Mrs. Shupe“) had received an order of protection against him and was considering divorce. He became more angry when Mrs. Shupe tried to prevent him from taking the family dog with him as he was leaving. Mr. Shupe put his hands around Mrs. Shupe‘s neck and strangled her. He also pushed Mrs. Shupe‘s sister, Maria Macias. Mr. Shupe then fled in his vehicle. Mrs. Shupe and her sister phoned the police to report the assaults. The State filed charges against Mr. Shupe, alleging two counts of misdemeanor assault under
A.R.S. § 13-1203(A)(1) .Prior to trial, after having worked with multiple attorneys, Mr. Shupe chose to represent himself. He filed multiple motions on his own behalf, including motions for production of SD cards, medical records and CDs; funds for expert witnesses, transcription of tape recordings; and to continue and stay the proceedings. On April 11, 2019, the trial judge set the case for trial on June 11, 2019, without objection from Shupe. On May 15, 2019, the trial court affirmed the trial date for an estimated length of one hour. On May 28, 2021, after Mr. Shupe requested more time for trial, the Court enlarged the time for trial to two hours.
On June 11, 2019, the trial court conducted the bench trial. Mr. Shupe, representing himself, continuously interrupted as the trial judge tried to control the courtroom, and demonstrated confusion or lack of knowledge concerning applicable rules of evidence and trial procedure. Ultimately, when all evidence had been presented, the trial court found Mr. Shupe guilty of assault against Mrs. Shupe, and not guilty of assault against Mrs. Shupe‘s sister.
(Doc. 18-1 at 3-4.)
After the Superior Court affirmed his conviction, Petitioner filed a notice of appeal, but the Arizona Court of Appeals found that it lacked jurisdiction and dismissed the appeal. (Doc. 18-1 at 47, 49, 51.)4 Petitioner avers that he filed a Rule 32 Petition for Post-Conviction Relief on May 9, 2022. (Doc. 7 at 4; Doc. 21 at 5.) In support of this averment, Petitioner points to a docket entry from his Pima County Consolidated Justice Court case labeled “CRM-PETITION.” (Doc. 21-1 at 26.) He also submits an unsigned and undated Rule 32 Petition that does not bear a judicial time-stamp. (Id. at 30-56.)
On January 4, 2023, Petitioner filed a petition for writ of mandamus, arguing that the trial court‘s requirement that he participate in domestic violence classes violated his right to religious freedom. (Doc. 18-1 at 53-56.) The petition was construed as a Rule 32 petition for post-conviction relief and was denied on June 12, 2023. (Id. at 61-62; Doc. 21-1 at 19-21.)
Petitioner initiated the above-captioned habeas action on November 22, 2022 (Doc. 1), and he filed the operative Amended Petition on January 27, 2023 (Doc. 7).6
II. Standard of Review
A district judge must “make a de novo determination of those portions” of a magistrate judge‘s “report or specified proposed findings or recommendations to which objection is made.”
- 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
- 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.
Federal habeas claims are subject to the “exhaustion rule,” which requires, with limited exceptions, that a petitioner exhaust state judicial remedies before seeking federal habeas relief.
A claim is technically exhausted but procedurally defaulted if the petitioner failed to raise it in state court and independent and adequate state procedural rules would now bar the state court‘s consideration of the claim. Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). A federal habeas court may not review a procedurally defaulted claim unless the habeas petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). To establish “cause,” a petitioner must demonstrate that “some objective factor external to the defense impeded” the petitioner‘s “efforts to comply with the State‘s procedural rule.” Id. at 753. To establish “prejudice,” a petitioner must demonstrate actual, not possible, harm resulting from the alleged violation. See Murray v. Carrier, 477 U.S. 478, 494 (1986). To establish a “fundamental miscarriage of justice,” a petitioner must “show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327 (1995).
III. Jurisdiction
The in-custody requirement of
In a memorandum in support of his Amended Petition, Petitioner avers that, at the time of filing, he “remain[ed] to be under supervision” and that he “ha[d] yet to begin” his domestic violence classes and “thereby ha[d] on-going consequences of sentence.” (Doc. 7-1 at 1.) Respondents aver in their Response to Petitioner‘s Amended Petition that Petitioner had not begun to serve his sentence of probation at the time he filed this habeas action, because the sentence was stayed until the appeal process was completed and/or abandoned, and Petitioner had a pending state-court post-conviction proceeding at the time he filed this action. (Doc. 18 at 3 n.2.)
The record reflects that, on July 5, 2019, the trial court suspended Petitioner‘s term of supervised probation until completion or abandonment of the appeal process. (Doc. 18-1 at 16.) It appears that the stay was lifted on November 6, 2022, shortly before Petitioner initiated this habeas action. (See Doc. 21-1 at 28.) Accordingly, the record indicates that at the time Petitioner initiated this habeas action, he was still serving his 12-month term of probation. Accordingly, the Court finds that it has jurisdiction under
IV. Objection to R&R
In the R&R, Magistrate Judge Ambri finds that some of Petitioner‘s claims are non-cognizable on federal habeas review, some are procedurally defaulted, and others fail on the merits. (Doc. 22.) Petitioner raises specific objections to some but not all portions of the R&R. (Doc. 27.) The Court has reviewed all unobjected-to portions of the R&R for clear error and has found none.7
The Court reviews the objected-to portions of the R&R de novo, as follows.
In Claim I of his Amended Petition, Petitioner alleges: “Stare Decisis; Denial of Exculpatory Evidence,” including (1) denial of a Drexel Fire Department run report; (2) denial of funds to transcribe a tape recording; (3) denial of an SD card; and (4) denial of evidence that Mrs. Shupe was having an affair. (Doc. 7 at 5.)8
1. Denial of Drexel Fire Department Run Report
In Claim I(1) of his Amended Petition, Petitioner argues that the trial court precluded him from introducing into evidence a “run report” from the Drexel Fire Department, which Petitioner avers would have shown that, upon the arrival of paramedics at the scene, Mrs. Shupe showed no signs of having been strangled. (Doc. 7 at 5; Doc. 7-1 at 2-5.) Petitioner asserts that the trial court‘s failure to allow him access to the run report violated his right to obtain impeachment evidence, his right to present a defense, and his rights under Brady v. Maryland, 373 U.S. 83 (1963). (Doc. 7-1 at 3.) Petitioner raised this claim in his opening brief on direct appeal in the Pima County Superior Court (Doc. 21-1 at 72-73), although Respondents argue that he failed to sufficiently exhaust it as a federal constitutional claim (Doc. 18 at 12-13). The Superior Court interpreted the claim as asserting a Brady violation and rejected the claim on the merits, finding that Petitioner “failed to establish the existence of the report or that the State had access to it.” (Doc. 18-1 at 8.) The Superior Court also found generally that Petitioner “failed to meet his burden of showing trial error,” and “failed to establish a due process violation based upon the trial court‘s rulings on the admission of evidence at trial, judicial misconduct, or prosecutorial misconduct.” (Id. at 5, 8.)
The R&R assumes without deciding that this claim was properly exhausted and recommends denying it on the merits, finding that the state court‘s rejection of the claim
Under Brady, the prosecution must disclose evidence in the government‘s possession if the evidence is material and favorable to the defendant. Woods v. Sinclair, 764 F.3d 1109, 1127 (9th Cir. 2014). To prevail on a Brady claim, a petitioner must prove (1) the evidence at issue is exculpatory or impeaching; (2) the prosecution willfully or inadvertently suppressed the evidence; and (3) “there is a reasonable probability that the result of the trial would have been different if the suppressed evidence had been disclosed to the defense.” Id. (citing Strickler v. Greene, 527 U.S. 263, 281-82, 289 (1999)) (internal quotation and alteration marks omitted). “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985). A habeas petitioner cannot establish a Brady claim by merely speculating that withheld evidence would have been favorable or material. Runningeagle v. Ryan, 686 F.3d 758, 767 (9th Cir. 2012).
Here, Petitioner merely speculates that the run report exists and that it contains exculpatory information, which is insufficient to establish a Brady claim. Furthermore, even if Petitioner could prove that the Drexel fire department‘s run report exists and that the report shows paramedics did not find “any of the over twenty symptoms” that
To the extent Petitioner is arguing in Claim I(1) that the trial court erred in refusing to allow him to introduce the Drexel fire department run report into evidence, Petitioner is not entitled to habeas relief on that claim. “[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotation marks omitted). But “[a] defendant‘s right to present relevant evidence is not unlimited[.]” United States v. Scheffer, 523 U.S. 303, 308 (1998). The Constitution leaves judges with “wide latitude to exclude evidence that is repetitive, only marginally relevant, or poses an undue risk of harassment, prejudice, or confusion of the issues.” Crane, 476 U.S. at 689-90 (1986)
The Court will overrule Petitioner‘s Objection and adopt the R&R‘s recommendation to deny Claim I(1) of the Amended Petition.
2. Denial of Funds to Transcribe Tape Recording
In Claim I(2) of the Amended Petition, Petitioner argues that the trial court violated his constitutional right to present evidence by refusing to provide him with funds to transcribe a tape recording of a conversation he had with his wife two days prior to the alleged incident. (Doc. 7-1 at 5-6.) In his opening brief on direct appeal in the Pima County Superior Court, Petitioner argued that the denial of funds to transcribe the tape recording violated his due process right to impeach Mrs. Shupe. (Doc. 21-1 at 74.) The Superior Court interpreted this claim as a Brady claim and rejected it on the merits. (Doc. 18-1 at 8.) The Superior Court also found generally that Petitioner “failed to meet his burden of showing trial error,” and “failed to establish a due process violation based upon the trial court‘s rulings on the admission of evidence at trial, judicial misconduct, or prosecutorial misconduct.” (Id. at 5, 8.) The Superior Court noted that Petitioner never disclosed the tape recording at issue to the prosecution. (Id. at 7.)
The R&R assumes without deciding that this claim was properly exhausted and recommends denying it on the merits, finding that the state court‘s rejection of the claim was not unreasonable under AEDPA standards because Petitioner presents no evidence to support his assertion that the tape recording contains exculpatory material. (Doc. 22 at 7-8.) In his Objection, Petitioner argues that he could have used a transcript of the tape
“[W]hen a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense.” Ake v. Oklahoma, 470 U.S. 68, 76 (1985). “[A] criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense.” Id. at 77. But here, there is no evidence in the record supporting Petitioner‘s self-serving assertions that the tape recording at issue contains relevant, exculpatory material. Petitioner has not even shown that the recording contains admissible evidence, much less that obtaining a transcription of the tape recording was integral to his ability to mount an effective defense. The Court will overrule Petitioner‘s Objection and adopt the R&R‘s recommendation to deny Claim I(2) of the Amended Petition.
3. Denial of SD Card
In Claim I(3) of his Amended Petition, Petitioner argues that the trial court violated his due process right to present evidence when it refused to allow him to introduce an SD memory card that Petitioner asserts he could have used to impeach Mrs. Shupe at trial. (Doc. 7-1 at 6.) In his opening brief on direct appeal in the Pima County Superior Court, Petitioner argued that the SD card constituted exculpatory impeachment evidence, and that “the deprivation of it to the [Petitioner] was a violation of his rights.” (Doc. 21-1 at 76.) The Superior Court found generally that Petitioner “failed to meet his burden of showing trial error,” and “failed to establish a due process violation based upon the trial court‘s rulings on the admission of evidence at trial, judicial misconduct, or prosecutorial misconduct.” (Doc. 18-1 at 5, 8.)
The R&R assumes without deciding that this claim was properly exhausted and recommends denying it on the merits, finding that the state court‘s rejection of the claim was not unreasonable under AEDPA standards because Petitioner presents no evidence to
Petitioner failed to properly exhaust this claim in state court. Although Petitioner raised the claim in his direct appeal, he alleged only that the trial court‘s failure to order production of the SD card violated his rights, without specifying any federal right. (See Doc. 21-1 at 76.) Petitioner did not alert the state court to the fact that he was asserting a claim under the United States Constitution. See Duncan, 513 U.S. at 365-66. Petitioner cannot return to state court to exhaust the claim now. See Ariz. R. Crim. P. 32.2(a), 32.4(b)(3). The claim is procedurally defaulted, and Petitioner has not shown cause and prejudice or a miscarriage of justice to overcome the procedural default. Even assuming, as does the R&R, that this claim is properly exhausted, it fails on the merits because Petitioner presents no evidence to support his assertions concerning the SD card. Accordingly, the Court will overrule Petitioner‘s Objection and adopt the R&R‘s recommendation to deny Claim I(3) of the Amended Petition.
4. Failure to Disclose Evidence of Affair
In Claim I(4) of the Amended Petition, Petitioner argues that the prosecution failed to disclose to him that his wife was having an affair, which Petitioner argues shows that Mrs. Shupe had a motive for filing false charges of domestic violence against him. (Doc. 7-1 at 6.) In his opening brief on direct appeal in the Pima County Superior Court, Petitioner argued that the prosecutor failed to disclose a romantic relationship in which Mrs. Shupe was involved, and that the failure to disclose the relationship denied Petitioner his right to effectively cross-examine Mrs. Shupe. (Doc. 21-1 at 81.) The Superior Court found that Petitioner failed to establish a Brady claim because he “failed to demonstrate that the State had evidence of an extra-marital affair,” failed to
The R&R assumes without deciding that this claim was properly exhausted and recommends denying it on the merits, finding that the state court‘s rejection of the claim was not unreasonable under AEDPA standards because Petitioner presents no evidence to show that the prosecution had evidence of an affair at the time of his trial. (Doc. 22 at 9.) In his Objection, Petitioner argues that the prosecution was in contact, on numerous occasions, with a man named Mr. Atkinson, with whom Petitioner alleges Mrs. Shupe was having an affair. (Doc. 27 at 6.) Petitioner argues that evidence of an affair between Mr. Atkinson and Mrs. Shupe was exculpatory because it would have undermined Mrs. Shupe‘s testimony and character. (Id.)
Petitioner has failed to show that the Pima County Superior Court‘s rejection of this claim was contrary to or an unreasonable application of United States Supreme Court precedent, or that the Superior Court‘s decision was based on an unreasonable determination of the facts in light of the evidence presented in state court. See
B. Claim III: Prosecutorial Misconduct—Enlarged Photograph
In Claim III of his Amended Petition, Petitioner alleges that the prosecution committed misconduct in a variety of ways. (Doc. 7 at 8; Doc. 7-1 at 10-15.) The R&R addressed each subpart of Claim III (Doc. 22 at 11-12), but Petitioner raises a specific objection only to the R&R‘s analysis of the portion of Claim III that alleges the prosecution engaged in misconduct by introducing an enlarged photograph of red marks on Mrs. Shupe‘s collarbone area. (Doc. 27 at 6-8; see also Doc. 7-1 at 10-12.) In his
The R&R recommends finding that the state court‘s rejection of the claim was not unreasonable under AEDPA standards because Petitioner has not shown that enlarging the photograph rendered the photographic evidence false. (Doc. 22 at 11-12.) In his Objection, Petitioner avers that the prosecution enlarged a photograph showing “tiny red marks” on Mrs. Shupe‘s collarbone and, in doing so, made it appear as if the red marks were actually on Mrs. Shupe‘s neck. (Doc. 27 at 7.)
“[A] conviction obtained through use of false evidence, known to be such by representatives of the State,” violates the Fourteenth Amendment. Napue v. Illinois, 360 U.S. 264, 269 (1959). To prevail on a Napue claim, a habeas petitioner must show (1) that the evidence at issue “was actually false“; (2) that the prosecution knew or should have known that the evidence was false; and (3) that the false evidence was material. Catlin v. Broomfield, 124 F.4th 702, 741 (9th Cir. 2024).
Petitioner has not shown that the Pima County Superior Court‘s rejection of this claim was contrary to or an unreasonable application of United States Supreme Court precedent, or that the Superior Court‘s decision was based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceeding. Petitioner fails to explain how enlarging a photograph could alter it in such a way that red marks on a person‘s collarbone could instead appear to be on the person‘s neck, and the record does not support Petitioner‘s contention that the prosecution enlarged a photograph in a misleading manner. During Petitioner‘s trial, Mrs. Shupe identified the photographs at issue and testified that they fairly and accurately showed her appearance
Petitioner attached two photographs to his original § 2254 Petition in the above-captioned case, with notations indicating the first photograph was the original version of the prosecution‘s Exhibit 3 before enlargement, and the second photograph was a “fbracated [sic] enlargement of original State[‘]s exhbit [sic] 3.” (Doc. 1-7 at 50-51.) However, the second photograph appears to be a different photograph taken at a slightly different angle, rather than an enlargement of the first photograph. (See id.) The photographs are not marked as trial exhibits, and the record lacks sufficient foundation for the Court to determine whether the photographs were part of the state-court record and whether Petitioner‘s notations are accurate.
Because the Pima County Superior Court‘s rejection of this claim was reasonable under AEDPA standards, the Court will overrule Petitioner‘s Objection and adopt the R&R‘s recommendation to deny Claim III of the Amended Petition.
IT IS ORDERED that Petitioner‘s Objection (Doc. 27) is overruled, and Magistrate Judge Ambri‘s Report and Recommendation (Doc. 22) is accepted and adopted, as set forth above.
IT IS FURTHER ORDERED that Petitioner‘s Amended Petition Under
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Dated this 10th day of March, 2025.
Honorable Rosemary Márquez
United States District Judge