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Fernandez v. Ryan

United States District Court, Ninth Circuit

January 8, 2014

David Charles Fernandez, III, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

MICHELLE H. BURNS, Magistrate Judge.

TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT COURT:

Petitioner David Charles Fernandez, III, who is confined in the Arizona State Prison Complex, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 15), and Petitioner has filed a traverse (Doc. 29).

BACKGROUND[1]

After drinking alcohol and taking various drugs one night in January 2002, Petitioner physically assaulted his girlfriend by banging her head against a doorway, after which he retrieved an AK-47 rifle, approached a group of children and teenagers standing on an apartment balcony, and opened fire, killing an 11-year old boy. See State v. Fernandez , 216 Ariz. 545, 547-48, ¶¶ 1-6, 169 P.3d 641, 643-44 (App. 2007). He then approached a vehicle in which two adults and three children were seated. See id. After a brief conversation with the front-seat passenger, Petitioner proceeded to the back of the car and fired numerous shots into the car, wounding the driver, front-seat passenger, and two of the children. See id.

For his actions, Petitioner was convicted following a jury trial of one count of first degree murder and ten counts of attempted first degree murder. See id. Petitioner was sentenced to multiple terms of imprisonment, the longest of which is natural life. (Exh. A.)

On direct appeal, Petitioner raised three claims: (1) the trial court abused its discretion in allowing supplemental closing argument from both parties in response to a juror question concerning the first degree murder element of premeditation; (2) the jury's findings that Petitioner's crimes qualified as dangerous crimes against children were erroneous as a matter of state law; and (3) the trial court erred in failing to give an aggravated assault instruction as a lesser included offense of attempted first degree murder.[2] (Exh. B.) On October 18, 2007, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences with the exception that it vacated his sentence on Count 2 (attempted first degree murder) and remanded for resentencing.[3] See Fernandez , 216 Ariz. at 548-55, ¶¶ 7-33, 169 P.3d at 644-51.

The Arizona Supreme Court denied review on March 18, 2008, and the United States Supreme Court denied certiorari on October 20, 2008. See Fernandez , 216 Ariz. at 545, 619 P.3d at 641; Fernandez v. Arizona , 555 U.S. 970 (2008). (Exh. E.)

On December 5, 2008, Petitioner completed the Notice of Post-Conviction Relief form and filed the Notice on January 6, 2009. (Exhs. C, E.) On October 14, 2011, Petitioner, through counsel, filed a PCR petition alleging (1) ineffective assistance of trial and appellate counsel; and (2) that there was a change in the law that rendered the supplemental closing arguments harmful and in violation of due process. (Exhs. D, E.) On August 2, 2012, the trial court found Petitioner's ineffective assistance claims precluded for untimeliness under Ariz.R.Crim.P. 32.4. (Exh. E.) Specifically, the trial court stated,

Defendant provides no explanation or reason as to why the petition was untimely, and he certainly provides no explanation indicating that he was "without fault" pursuant to Rule 32.1(f). Defendant indicates he was told by counsel that he could file his Rule 32 petition after his "direct appeal and Habeas Corpus was denied." His direct appeal was complete by May 19, 2008 and his appeal to federal court was completed by October 20, 2008. He nevertheless failed to file a timely petition. The Court finds that defendant has not presented a colorable claim that his attorney's advice was erroneous or that his delayed filing was without fault.... As a result, the petition is untimely. Any claim of ineffective assistance of trial or appellate counsel is thereby untimely and precluded.

(Exh. E.) The trial court further rejected Petitioner's claims of a significant change in the law and denied his PCR petition.[4] (Exh. E.) Petitioner did not seek review before the Arizona Court of Appeals.

On February 20, 2013, Petitioner filed the instant federal habeas corpus petition. (Doc. 1.) Petitioner raises four grounds for relief: (1) Petitioner's Fifth and Sixth Amendment rights were violated when the trial court provided the jury with erroneous instructions; (2) Petitioner's trial counsel was ineffective, in violation of the Sixth Amendment; (3) Petitioner's Fifth Amendment rights were violated when he was compelled to be a witness against himself; and (4) Petitioner's trial counsel was ineffective, in violation of the Sixth Amendment, for failing to adequately prepare and for failing to call available defense witnesses. (Doc. 1 at 6-10.) Respondents filed an Answer (Doc. 15), and Petitioner has filed a traverse (Doc. 29).

DISCUSSION

In their Answer, Respondents contend that Petitioner's claims are procedurally defaulted. As such, Respondents request that the Court deny and dismiss ...


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