United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MICHELLE H. BURNS, Magistrate Judge.
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT COURT:
Petitioner Shaun Michael Harris, who is confined in the Arizona State Prison Complex, Browning Unit, in Florence, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Docs. 1, 6). Respondents filed an Answer on July 25, 2014 (Doc. 31), but despite having the opportunity to do so, Petitioner has not filed a reply.
The following facts were found by the Arizona Court of Appeals:
J.S. waited outside his apartment for a friend because he had plans to "kick it with some females." [Petitioner] approached J.S. and told him to "[t]ake [his] business elsewhere." [Petitioner] then hit J.S. in the side of the head with a closed fist. J.S. went inside to get his older brother, S.S., to diffuse the situation.
S.S. went outside to talk to [Petitioner]. [Petitioner] lifted his shirt and S.S. saw the handle of a gun. S.S. spoke with [Petitioner] and told J.S. to go back inside because [Petitioner] would not bother him anymore. The confrontation ended peacefully. S.S. and J.S. returned to their apartment.
Sometime later, J.S. went outside a second time and waited for his friend to pick him up. [Petitioner] approached J.S. again, pulled out a gun, and aimed it at his chest. J.S. then ran inside and told his brothers, S.S. and E.S., what had happened.
As the brothers talked in the hallway of their apartment, S.S. looked out the bedroom window and saw a gun in the shadow. S.S. told his brothers to move, and as they ducked, all three brothers heard a shot fired. The bedroom window cracked and S.S. and J.S. called the police on separate phones to report the shooting. Officers J.H. and R.R. were the first to arrive at the scene. They, along with other officers, were unable to find the bullet or the bullet casing.
Meanwhile, [Petitioner] attempted to join a nearby gathering. The group did not allow [Petitioner] to join them because no one at the gathering knew him. On [Petitioner's] third attempt to join, he saw City of Phoenix Officers D.H. and M.W. approaching the group. The officers had responded to the police report and were asked to find someone with [Petitioner's] general description. [Petitioner] turned and headed toward a nearby patio. The officers saw [Petitioner] walk away from the gathering and decided to follow him. [Petitioner] scurried into a corner of the patio, and Officer D.H. heard what "[s]ounded like a metal object hitting something hard." When Officer D.H. got to the corner of the patio, he saw [Petitioner] grab a black shirt off the clothesline and put it on. [Petitioner] then pretended to talk on his cell phone. Officer D.H. apprehended [Petitioner] and had him sit down on the curb. A short time later, Officer D.H. went back to the patio and found a.22 caliber gun.
After [Petitioner] was apprehended, Officer J.H. drove J.S. and S.S. separately to [Petitioner's] location. Each brother identified [Petitioner] as the man who was at the apartment earlier that evening. Four of the five officers that testified at trial stated that they saw a picture on [Petitioner's] cell phone of [Petitioner] holding a.22 caliber gun similar to the one found by Officer D.H.
On March 13, 2006, Petitioner was indicted in the Maricopa County Superior Court with one count of assault, a class 3 dangerous misdemeanor (Count 1); three counts of aggravated assault, class 3 dangerous felonies (Counts 2-4); one count of discharge of a firearm at a structure, a class 2 dangerous felony (Count 5); and one count of misconduct involving weapons, a class 4 dangerous felony (Count 6). (Exh. A.) The State, however, successfully moved to dismiss Counts 2 and 3 following its case-in-chief. (Exh. N.)
After a 3-day trial, the jury failed to reach a verdict on Counts 1 and 4, but found Petitioner guilty as to Counts 5 and 6. (Exh. P.) The jury further found that both felonies were dangerous. (Id.)
On September 13, 2007, the trial court sentenced Petitioner, with two prior historical felony convictions, to an aggravated 17-year term of imprisonment for Count 5, and a concurrent, presumptive 6-year term of imprisonment for Count 6. (Exh. R.) The trial court credited Petitioner with 558 days of presentence incarceration. (Id.)
On September 21, 2007, Petitioner filed a timely notice of appeal from his convictions and sentences. (Exh. S.) On March 20, 2008, Petitioner's attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 451 P.2d 878 (Ariz. 1969), asking the court to search the record for fundamental error, and requesting that Petitioner be permitted to file a supplemental brief, raising any issues he believed to have merit. (Exh. T.) In his pro per supplemental brief, Petitioner requested the court consider whether: (1) the warrantless search and seizure of his cellular phone violated the Fourth Amendment; (2) he was unduly prejudiced when the jurors saw him escorted by sheriff's deputies during a court recess; (3) the trial court should have ordered a separate mental health evaluation when considering mitigating factors; and (4) his right to a speedy trial was violated pursuant to Rule 8 of the Arizona Rules of Criminal Procedure. (Exhs. T, U.)
Finding no fundamental error and no merit in Petitioner's claims, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences in a memorandum decision issued on September 23, 2008. (Exh. V.) Specifically, the court held that: (1) the search of Petitioner's cell phone incident to arrest was sufficiently analogous to that of a closed container, which was authorized by New York v. Belton, 453 U.S. 454, 460-61 (1981); (2) Petitioner could not demonstrate that he was actually prejudiced when a juror saw him, out of handcuffs, standing near a deputy sheriff; (3) the trial court did not err when it did not sua sponte order a mental health evaluation, and Petitioner's claim regarding what a further mental health evaluation might have shown was entirely speculative; and (4) insofar as was apparent from the record, Petitioner's right to a Rule 8 speedy trial was not violated. (Id.)
Petitioner did not petition for review in the Arizona Supreme Court. (Exh. X.) On November 14, 2008, the Arizona Court of Appeals issued its order and mandate. (Id.)
On October 17, 2008, Petitioner commenced his sole PCR proceeding by filing a timely PCR notice. (Exh. W.) On March 2, 2009, Petitioner's appointed counsel notified the state court that she had completed her review and was unable to discern any colorable claim upon which to base a PCR petition. (Exh. Y.) Appointed counsel further requested an extension of time for Petitioner to file a pro per PCR petition. (Id.) On July 28, 2010, Petitioner filed his PCR petition. (Exh. AA.) In his petition, he argued that: (1) the State submitted, without proof, that he had a third prior felony conviction and gang affiliation, which resulted in an aggravated sentence; (2) the police illegally seized and searched his cellular phone; (3) the trial court erred in refusing to allow Petitioner to impeach Officer Hamernick with his misdemeanor conviction for DUI; (4) his constitutional right to a fair trial was violated when the trial court failed to investigate the fact that a juror observed Petitioner in the hallway being escorted by a sheriff's deputy; (5) the State should not have been allowed to inform the jury that he had prior felony convictions because he did not take the stand; (6) the State presented insufficient evidence to establish that he discharged a firearm at a structure; (7) the trial court erred in refusing to provide the jury with a Willits instruction; and (8) trial counsel was ineffective for failing to request a mental health evaluation to establish mitigation at sentencing, request a photo lineup, ...