United States District Court, District of Arizona
For Faleh Hassan Al-Maleki, Petitioner: Michael D Kimerer, Rhonda Elaine Neff, LEAD ATTORNEYS, Kimerer & Derrick PC, Phoenix, AZ.
For Charles L Ryan, named as: Charles Ryan, Respondent: Julie Ann Done, LEAD ATTORNEY, Office of the Attorney General, Phoenix, AZ.
REPORT AND RECOMMENDATION
Bridget S. Bade, United
States Magistrate Judge.
Petitioner, through counsel, has filed a motion to stay the habeas corpus proceedings while he attempts to exhaust his state remedies. (Doc. 11.) Respondents do not oppose a stay of the proceedings while Petitioner's appeal of the denial of his petition for post-conviction relief is pending in the state courts. (Doc. 12 at 6.) As set forth below, the Court recommends granting Petitioner's motion to stay.
I. Factual and Procedural Background
A. Charges, Trial, and Sentencing
On December 17, 2009, Petitioner was indicted on the following five counts: (1) first-degree murder, a class one dangerous felony (Count One); (2) attempted first-degree murder, a class two dangerous felony (Count Two); (3) aggravated assault, a class three dangerous felony (Count Three), and (4) two counts of leaving the scene of a serious injury accident (Counts Four and Five). (Doc. 10, Exs. B.)
On Count One, the jury convicted Petitioner of the lesser-included offense of second-degree murder and found that the offense was dangerous. (Doc. 10, Ex. E.) The jury also convicted Petitioner of Counts Three, Four and Five, but acquitted him of Count Two, attempted first-degree murder. ( Id.) The jury found the following aggravating factors: (1) as to Count One, the offense involved multiple victims; and (2) as to Count three, the offense involved the infliction or threatened infliction of serious physical injury, the offense caused physical, emotional, or financial harm to the victim, and the offense involved multiple victims. (Doc. 10, Ex. F.)
On April 15, 2011, the court sentenced Petitioner to the presumptive term of sixteen years' imprisonment on Count One, an aggravated term of fifteen years' imprisonment on Count Three, and two presumptive, concurrent terms of three-and-one-half years' imprisonment on Counts Four and Five. (Doc. 10, Ex. G.) The trial court ordered the sentences on Counts One and Three to run consecutively to each other and consecutively to the concurrent terms of imprisonment on Counts Four and Five. ( Id.) Petitioner received 533 days of presentence incarceration credit. ( Id.)
B. Direct Appeal
On May 4, 2011, Petitioner's counsel filed a notice of appeal. (Doc. 10, Exh. I.) On February 6, 2012, counsel filed a notice with the Arizona Court of Appeals indicating that he had searched the record on appeal pursuant to Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), but was unable to find a question of law that was not frivolous to raise on Petitioner's behalf. (Doc. 10, Ex. J.) Counsel also filed a motion for leave to allow Petitioner to file a supplemental pro se brief. (Doc. 10, Ex. K.)
On March 21, 2012, Petitioner's current counsel, Michael Kimerer, filed a notice of appearance in the court of appeals, " entering his appearance on behalf of Faleh Hassan Almaleki" and directing that " [a]ny further correspondence should be directed to counsel at the above address." (Doc. 10, Ex. L.) On July 20, 2012, Petitioner filed a supplemental opening brief raising two issues: (1) whether the court erred by denying Petitioner's motion to dismiss Counts Two and Five when there was only one accident, but two discrete victim impacts within that scene; and (2) whether the trial court should have given a jury instruction concerning Ariz. Rev. Stat. § 13-71(D)(9), physical, emotional, or financial harm to the victim. (Doc. 10, Ex. M at iv.)
On March 5, 2013, the court of appeals issued a memorandum decision vacating Petitioner's conviction and sentence on Count Five, leaving the scene of an accident, as duplicitous to Count Four, and affirmed ...