United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, Magistrate Judge.
Pending before the court is a petition for writ of habeas corpus filed on July 15, 2013, by Steve Anthony Bonin, an inmate confined in the Arizona State Prison Complex in Florence, Arizona. (Doc. 1) Bonin claims the evidence presented against him at trial was insufficient to support his convictions and the trial court's jury instructions were error.
Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).
The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order denying the petition. Four of Bonin's claims should be denied on the merits. The remainder are procedurally defaulted.
Summary of the Case
Bonin was convicted after a jury trial of aggravated DUI with at least two prior DUI violations within 84 months, aggravated DUI with a blood alcohol concentration of 0.08 or higher with at least two prior DUI violations within 84 months, and DUI while a minor is present. (Doc. 20-3, p. 63) The trial court sentenced Bonin "to two terms of eight years' imprisonment and one term of three years' imprisonment, all to be served concurrently." Id.
On direct appeal, Bonin argued (1) the evidence was insufficient to prove he had two prior DUI convictions within 84 months of the current offense, (2) the lesser included jury instruction was misleading, (3) the trial court's supplemental instruction on the method for calculating the 84-month period was given at the wrong time, and (4) the jury should have accepted the testimony of his expert, Chester Flaxmayer. (Doc. 20-3, pp. 63-69) Nevertheless, the Arizona Court of Appeals affirmed Bonin's convictions and sentences on June 29, 2012. (Doc. 20-3, p. 62) Bonin did not seek review from the Arizona Supreme Court. (Doc. 20, p. 3)
On June 27, 2013, Bonin filed a notice of post-conviction relief. (Doc. 20, p. 3) The trial court dismissed the petition as untimely on July 24, 2013. Id. Bonin did not seek review from the court of appeals. (Doc. 20, p. 4)
On July 15, 2013, Bonin filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He argues (1)(a) the trial court erred by giving a supplemental jury instruction during closing arguments and (1)(b) trial counsel and (1)(c) appellate counsel were ineffective for failing to develop the issue on direct review; (2)(a) the jury erred in finding him guilty in light of the testimony of his expert, Chester Flaxmayer and (2)(b) trial counsel and (2)(c) appellate counsel were ineffective for failing to develop the issue on direct review; (3)(a) insufficient evidence was presented to establish the existence of his prior DUI convictions and (3)(b) trial counsel and (3)(c) appellate counsel were ineffective for failing to develop the issue on direct review; (4)(a) the lesser included jury instruction was error and (4)(b) trial counsel and (4)(c) appellate counsel were ineffective for failing to develop the issue on direct review; (5) appellate counsel was ineffective for failing to supply Bonin with transcripts of the voir dire; (6) appellate counsel was ineffective for failing to forward the case file within 30 days of the appellate court's decision, and (7) trial and appellate counsel were ineffective. (Doc 1)
On June 19, 2014, the respondents filed an answer arguing Bonin's trial claims are meritless and his ineffective assistance claims are procedurally defaulted. (Doc. 20) Bonin did not file a reply.
The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is in custody pursuant to the judgment of a state court, the writ will not be granted unless prior 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). The petitioner must shoulder an additional burden if the state court considered the ...