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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Theodore R Rushing, 

Petitioner, 

v. 

Charles L Ryan, et al., 

Respondents.

No. CV-15-02484-PHX-ROS

ORDER 

 

 On May 2, 2017, Magistrate Judge John Z. Boyle issued a Report and 

Recommendation (“R&R”) recommending the petition for writ of habeas corpus be 

denied. Petitioner filed objections to the R&R as well as a motion to stay further 

proceedings while he returned to state court to exhaust certain claims. Petitioner’s 

objections are without merit and it would be futile for him to return to state court. 

Therefore, the R&R will be adopted in full and the petition dismissed with prejudice. 

 The R&R recounts the background concerning Petitioner’s criminal trials and his 

post-trial filings. Petitioner did not object to that background and the Court will adopt it 

in full. In brief, Petitioner shot and killed an individual during an altercation in a parking 

lot. Petitioner was charged with first-degree murder and five counts of aggravated 

assault. At the end of his original trial, the jury convicted Petitioner of three counts of 

aggravated assault and one count of the lesser-included offense of disorderly conduct. 

The jury acquitted Petitioner of one count of aggravated assault. The jury could not, 
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however, reach a verdict on the murder charge. Petitioner was then retried on the murder 

charge and he was convicted of the lesser-included offense of manslaughter. Petitioner 

was sentenced to the presumptive sentence for the manslaughter conviction and mitigated 

terms on the other convictions. Because the trial court ordered the sentences to run 

consecutively, Petitioner’s total sentence was approximately twenty-five years. 

 Petitioner filed a direct appeal but his convictions and sentences were affirmed. 

Petitioner also filed three petitions for post-conviction relief in state court, none of which 

were successful. Petitioner eventually filed this federal petition, asserting seven grounds 

for relief. The R&R concludes a few of those grounds were not exhausted but, even if 

the merits could be reached on all of the grounds, none of them meet the high bar for 

obtaining relief. Petitioner filed objections, largely rearguing the positions he asserted in 

his petition. Petitioner also filed a motion seeking to stay these proceedings while he 

returned to state court to exhaust some of his grounds. 

I. Ground One—Juror Qualification 

 Petitioner’s first ground for relief involves one of the trial jurors allegedly being 

unqualified to sit on one of the juries. The R&R construes this claim as exhausted and 

analyzes it on the merits. The R&R describes Petitioner as arguing the juror was not a 

resident of Maricopa County and, therefore, was ineligible to sit based on Arizona law. 

The R&R concludes that is not a viable basis for federal habeas relief. In his objections, 

Petitioner explains the R&R misinterprets his argument. Petitioner explains he is not 

arguing the juror’s presence violated Arizona law but that the juror’s presence meant 

Petitioner was “denied the right of a 12 person jury.” (Doc. 55 at 4). Regardless of 

Petitioner’s exact claim, he is not entitled to relief. 

 The R&R correctly concludes Arizona law, not federal law, required the trial 

jurors be residents of Maricopa County. This argument likely is unexhausted but the 

Court can reject the argument on its merits notwithstanding the exhaustion issue. 28 

U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the 

merits, notwithstanding the failure of the applicant to exhaust the remedies available in 
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the courts of the State.”). Petitioner has not cited any federal law imposing such a 

residency requirement. Moreover, federal law states a potential defect in a juror’s 

qualification to sit does not impact the validity of the verdict. Thus, even assuming the 

juror was not qualified to sit based on residency, that is not a basis for relief. See Kohl v. 

Lehlback, 160 U.S. 293, 301 (1895) (juror’s lack of citizenship did not violate federal 

constitution). 

 As for Petitioner’s argument that the Sixth Amendment required a twelve-person 

jury, that is incorrect. Again, this argument likely is unexhausted but it is easiest to 

address it on the merits. “[U]nder the Sixth Amendment to the United States Constitution 

a defendant in a criminal case has a right to a jury trial, but that does not even mean that a 

state is required to use the traditional twelve-person jury. Variations are permitted.” 

Lambright v. Stewart, 191 F.3d 1181, 1184 (9th Cir. 1999). Provided a criminal jury 

consisted of at least six persons, there is no federal constitutional issue. Id. Under 

Petitioner’s own argument, his jury had eleven persons. Therefore, even assuming 

Petitioner was only convicted by a jury of eleven persons, that does not establish a 

violation of his federal rights. 

II. Ground Two—Aggravated Sentence 

 Petitioner’s second ground for relief involves his belief that his sentences violated 

federal law because the trial court’s sentencing decision was based on aggravating factors 

not found by the jury. In addressing this argument, the Arizona Court of Appeal 

explained why it was baseless: “The obvious flaw in [Petitioner’s] argument is that the 

trial court did not impose any aggravated sentences; [Petitioner] received a presumptive 

prison term on the manslaughter conviction and mitigated prison terms on his other 

convictions.” State v. Rushing, No. 1 CA-CR 09-0601, 2011 WL 5299384, at *7 (Ariz. 

Ct. App. Nov. 3, 2011). The R&R believes this claim should be addressed on the merits 

but agrees with the Arizona Court of Appeals there was no sentencing error because 

Petitioner did not receive aggravated sentences. 

 In his objections, Petitioner seems to make two arguments. First, he claims the 
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trial court found aggravating circumstances that “removed the possibility of receiving the 

minimum sentence.” (Doc. 55 at 5). And second, the trial court impermissibly found 

aggravating factors to justify imposition of consecutive sentences. Neither argument is 

persuasive. 

 On the first argument, Petitioner has not established imposition of a presumptive 

sentence violated his federal rights. Upon being convicted of manslaughter, Petitioner 

was eligible for the presumptive 10.5 year sentence. The trial court imposed that 

sentence and the failure to impose less than the presumptive raises no federal 

constitutional issue. In other words, upon being convicted of manslaughter Petitioner 

was exposed to a sentence of 10.5 years without the need for any additional factual 

findings. The fact that Petitioner received that sentence, instead of a lesser sentence, does 

not violate federal law. Cf. Alleyne v. United States, 133 S. Ct. 2151, 2160 (2013) (trier 

of fact must find “any facts that increase the prescribed range of penalties to which a 

criminal defendant is exposed”) (emphasis added). 

 On the second argument, Petitioner claims the trial court found aggravating 

circumstances and then relied on that to impose consecutive, instead of concurrent, 

sentences. But the decision whether to impose consecutive or concurrent sentences is 

within the trial court’s discretion. State v. Cota, 272 P.3d 1027, 1043 (Ariz. 2012). And 

there is no federal right to have that discretion exercised in a particular way. Thus, the 

decision to impose consecutive sentences is not a basis for relief. 

III. Ground Three—Impeachment by Convictions 

Petitioner’s third ground involves use of his convictions from the first trial to 

impeach his testimony during the second trial. The R&R concludes this ground was 

unexhausted and, in any event, fails under existing law. In his objections, Petitioner does 

not establish this ground was exhausted. Instead, he focuses on his argument that the 

state’s use of his convictions was improper. 

 The R&R is correct that this ground was unexhausted and, therefore, Petitioner is 

not entitled to relief. But even if it had been exhausted, the fundamental flaw in 
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Petitioner’s argument is that, as of his second trial, he had been convicted of the crimes 

used to impeach his testimony. Having been convicted, the state was free to use those 

crimes to impeach his testimony. See United States v. Smith, 623 F.2d 627, 630 (9th Cir. 

1980) (permissible to use convictions for impeachment despite convictions not yet being 

final). There is no bar on using non-final convictions to impeach a witness. Petitioner is 

not entitled to relief on this ground. 

IV. Grounds Four and Six—Prosecution’s Comments 

 Petitioner’s fourth ground involves allegedly improper statements by the 

prosecutor during closing arguments and his sixth ground involves statements by the 

prosecutor during trial that Petitioner had a duty to retreat. The R&R concludes both of 

these grounds fail on their merits. Petitioner’s objections do not identify any error in the 

R&R’s analysis. 

 As explained by the Supreme Court, “a prosecutor’s improper comments will be 

held to violate the Constitution only if they so infected the trial with unfairness as to 

make the resulting conviction a denial of due process.” Parker v. Matthews, 567 U.S. 37, 

45 (2012) (quotation marks and citation omitted). The statements at issue fell well short 

of this demanding standard as they were made, in part, to respond to Petitioner’s own 

arguments during trial. And even accepting Petitioner’s current position that the 

comments were in error, they were a very small portion of the trial and cannot be viewed 

as “infect[ing] the trial with unfairness.” Id. The statements, therefore, are not a basis for 

relief. 

V. Ground Five—Exclusion of Evidence 

 Petitioner’s fifth ground involves the trial court’s refusal to admit evidence 

regarding the victim’s tattoo or prior convictions for armed robbery. The R&R concludes 

this claim was unexhausted but also fails on its merits. Petitioner’s objections address the 

exhaustion issue by claiming he “assumes” his appellate counsel exhausted this claim. 

As for the merits, the objections state the R&R misconstrues the basis on which 

Petitioner sought to introduce the evidence. 
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 Petitioner’s assumption regarding exhaustion is incorrect. There is no indication 

counsel presented the exclusion of the evidence as a matter of federal law. (Doc. 13-2 at 

266). Therefore, the ground is unexhausted. But even if it had been exhausted, the 

ground fails. Regardless of why Petitioner wished to introduce the tattoo and prior 

convictions, Petitioner has not identified any Supreme Court authority mandating the 

admission of this evidence. Therefore, Petitioner is not entitled to relief. See, e.g., Moses 

v. Payne, 555 F.3d 742, 757 (9th Cir. 2009) (Supreme Court has not established a 

“controlling legal standard” for admission of certain evidence where trial court must 

exercise its discretion). 

VI. Ground Seven—Lesser-included Offense 

 Petitioner’s seventh ground involves the trial court’s failure to instruct the jury 

regarding a lesser-included offense. The R&R concludes this claim was unexhausted and 

fails on the merits. The objections claim the ground was exhausted and that the R&R 

again misconstrued the argument Petitioner is attempting to make. 

 Having reviewed the record, Petitioner did not exhaust this claim. Thus, the Court 

need not address the merits. But assuming it had been exhausted, Petitioner is not 

entitled to relief. According to Petitioner, the trial court erred by giving a lesser-included 

instruction or, in the alternative, the trial court erred by not giving every possible lesserincluded instruction. Petitioner does not cite any authority establishing it violated his 

federal rights for the trial court to instruct the jury on a lesser-included offense. And to 

the extent Petitioner believes other lesser-included instructions should have been given, 

“the failure of a state trial court to instruct on lesser included offenses in a non-capital 

case does not present a federal constitutional question.” Windham v. Merkle, 163 F.3d 

1092, 1106 (9th Cir. 1998). Thus, Petitioner is not entitled to relief on this ground. 

VII. Stay for Further Exhaustion 

 Petitioner filed a motion seeking a stay of these proceedings while he returned to 

state court to exhaust some of his grounds. The Court has discretion to stay proceedings 

in such circumstances. Rhines v. Weber, 544 U.S. 269, 276 (2005). But a stay is 
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appropriate “only in limited circumstances” where “there was good cause for the 

petitioner’s failure to exhaust his claims first in state court.” Id. at 277. Petitioner has 

not established good cause to impose a stay. Moreover, any return to state court would 

be futile in that the grounds at issue will be procedurally barred. Thus, rather than 

returning to state court to attempt to exhaust, Petitioner should have attempted to 

establish cause and prejudice to allow for consideration of his grounds. See Cooper v. 

Neven, 641 F.3d 322, 327 (9th Cir. 2011) (“[I]f a claim is unexhausted but state 

procedural rules would now bar consideration of the claim, it is technically exhausted but 

will be deemed procedurally defaulted unless the petitioner can show cause and 

prejudice.”). In any event, the Court has determined all of Petitioner’s grounds fail on 

their merits, rendering the exhaustion issue irrelevant. In these circumstances, no stay is 

appropriate. 

VIII. Summary 

 Many of Petitioner’s grounds for relief are unexhausted and he has not established 

any plausible basis to excuse his failure to exhaust. But even overlooking the exhaustion 

issue and addressing the grounds on their merits, Petitioner has not established a violation 

of federal law. Given that all his grounds fail regardless of the exhaustion issue, there is 

no need to stay this case. 

 Accordingly, 

IT IS ORDERED the Report and Recommendation (Doc. 51) is ADOPTED IN 

FULL. The petition for writ of habeas corpus is DENIED. The Clerk of Court shall 

enter judgment in favor of Respondents. 

IT IS FURTHER ORDERED the Motion to Stay (Doc. 54) is DENIED. 

 IT IS FURTHER ORDERED that a Certificate of Appealability and leave to 

proceed in forma pauperis on appeal are DENIED because dismissal of portions of the 

petition is justified by a plain procedural bar and jurists of reason would not find the 

procedural ruling debatable and other portions of the petition do not make a substantial 

showing of the denial of a constitutional right. 
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IT IS FURTHER ORDERED the Motion to Publish (Doc. 43) is GRANTED. 

 Dated this 22nd day of November, 2017. 

Honorable Roslyn O. Silver

Senior United States District Judge