United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MARK E. ASPEY, Magistrate Judge.
TO THE HONORABLE NEIL V. WAKE:
Petitioner docketed a petition seeking a petition for writ of habeas corpus on April 23, 2014. Respondents docketed an answer (Doc. 18) to the habeas petition on September 8, 2014. Petitioner docketed a reply to the answer to his petition on October 17, 2014. See Doc. 19.
I Procedural background
A Maricopa County grand jury indictment returned December 13, 2006, charged Petitioner with one count of armed robbery, a class 2 dangerous felony (Count 1), one count of theft of a means of transportation, a class 3 felony (Count 2), and one count of misconduct involving weapons, a class 4 dangerous felony (Count 3). See Doc. 18, Exh. A. On January 23, 2007, the state filed allegations of historical priors and also alleged aggravating circumstances other than prior convictions. Id., Exh. B & Exh. C. On January 29, 2007, the state trial court appointed a Spanish-language interpreter to assist Petitioner in his criminal proceedings. Id., Exh. D.
Petitioner refused to cooperate with his assigned counsel, and on June 1, 2007, the trial court assigned new counsel. Id., Exh. E & Exh. F. On February 19, 2008, Petitioner's new counsel moved for a determination of competency to stand trial pursuant to Rule 11, Arizona Rules of Criminal Procedure. Id., Exh. G. Counsel reported that Petitioner claimed "he hears voices around the clock and has suicidal thoughts." Counsel further averred he had "questions about [Petitioner's] ability to understand him and assist in his defense." Id., Exh. G at 1-2.
On February 26, 2008, the trial court ordered a Rule 11 evaluation and, on March 4, 2008, the trial court appointed two mental health physicians to conduct an evaluation. Id., Exh. H & Exh. I. The parties stipulated that the court could determine competency based on the report of one of the appointed doctors. On April 4, 2008, the trial court found Petitioner incompetent and ordered that he be committed and receive treatment to be restored to competency. Id., Exh. J & Exh. K at 2.
On May 20, 2008, upon stipulation of the parties, the trial court found that Petitioner had been restored to competency. Id., Exh. L & Exh. M. On September 10, 2008, and again on January 28, 2009, Petitioner expressed dissatisfaction with his counsel, however, the trial court denied his requests to change counsel on both occasions. Id., Exhs N, O, P.
Petitioner's trial began on July 28, 2009, resulting in guilty verdicts on all three charges. Id., Exhs TT, UU, VV, WW.
The Arizona Court of Appeals summarized the facts adduced at Petitioner's trial as follows:
Late on December 4, 2006, the victim parked her car in her driveway. As she got out, Pina-Aguirre pointed a handgun at her and demanded the keys. After she relinquished her keys and purse, Pina-Aguirre got into her car and drove away. The victim called police and activated her "LoJack" GPS tracking device.
The car was quickly located in front of of a house. As police approached, Pina-Aguirre fled out the back door. He was captured in a nearby backyard and was subsequently identified by the victim.
Answer at 3-4, quoting Exh. BB at 2.
On September 2, 2009, the state court sentenced Petitioner to the presumptive sentence of 15.75 years of imprisonment pursuant to his conviction for armed robbery, to the presumptive sentence of 11.25 years of imprisonment pursuant to his conviction for theft of a means of transportation, and to the presumptive term of 10 years of imprisonment pursuant to his conviction for misconduct involving weapon, all sentences were ordered to be served concurrently. Id., Exh. U at 2-3.
Petitioner took a timely, counseled direct appeal of his convictions and sentences. Id., Exh. W. Petitioner, through counsel, asserted the trial court erred by failing to sua sponte conduct a hearing to determine the voluntariness of Petitioner's post-arrest statements to police. Id., Exh. Y. On January 20, 2011, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. Id., Exh. BB. Petitioner did not seek review of this decision by the Arizona Supreme Court.
On March 30, 2011, Petitioner initiated a timely action for state post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. Id., Exh. DD. On April 4, 2011, the trial court appointed counsel to represent Petitioner in his Rule 32 proceedings. On October 27, 2011, counsel filed a notice averring to the court that they could find no "meritorious issue, including a claim of ineffective assistance of counsel, to justify the filing of a petition in this matter." Id., Exh. EE & Exh. FF. On December 15, 2011, Petitioner filed a pro per pleading in his Rule 32 action, checking the following boxes on the standard form as grounds for relief: 1) admission at trial of an unconstitutional identification; 2) ineffective assistance of counsel; 3) unconstitutional suppression of evidence by the state; 4) unconstitutional use by the state of perjured testimony; 5) newly discovered evidence (video and audio recording of his interview with police); 6) denial of his "right" to test for DNA and fingerprint evidence; and 7) denial of "right to change my lawyer." Id., Exh. HH at 1-2. The trial court construed the issues as asserting claims of newly discovered evidence, ineffective assistance of trial counsel, and a faulty police investigation. Id., Exh. LL at 3, 4, 7.
On April 6, 2012, the trial court dismissed Petitioner's Rule 32 action. The trial court (the same judge before whom the case was tried) recounted the facts of Petitioner's case as follows:
At approximately 11:30 p.m. on December 4, 2006, the victim, upon arriving home from work, got out of her car and walked to her front door. As she did so she saw a car by her house. According to the victim, Defendant jumped the fence, came into her front yard, ran up to her, pointed a gun at her face and demanded her car keys. The victim relinquished to Defendant her car keys, purse and a video camera she was holding. Defendant then got into the victim's car and drove away. The other car that the victim had noticed followed behind. The victim then called the police and activated the "LoJack" GPS tracking device in her car.
The victim's car was quickly located by the police in front of a house. As police began setting up a perimeter around the house, Defendant and at least one other man ran out of the house's back door. Defendant was captured in a nearby backyard. At the time he was captured Defendant had on [sic] his possession a speed loader with 45 caliber ammunition.
Defendant was subsequently identified by the victim in a one-on-one identification. Defendant was then taken to the police station, read his Miranda rights and questioned by police.
Inside the house that Defendant fled from, the police found a silver 45 caliber handgun and a black leather jacket (according to the victim, the Defendant was wearing a black leather jacket when he accosted her). The police also found the victim's cell phone, name tag, keys, credit cards and driver's license. Tools that had been in the victim's vehicle at the time it was stolen were found in the house's garage.
Upon being questioned by police, Defendant initially denied any involvement in the armed robbery and theft. Ultimately, Defendant acknowledged that he was there at the victim's house and that he knew a robbery was going to occur and he was going to get a couple hundred dollars for his involvement in the robbery. However, Defendant continued to deny that he was the one who confronted the victim, contending that he stayed in the vicinity of the other vehicle while the robbery was going on.
Id., Exh. LL at 2.
The trial court rejected all of the grounds for relief asserted by Petitioner in his pro per petition for Rule 32 relief, finding the alleged newly discovered evidence did not constitute newly discovered evidence pursuant to Rule 32.1(e) and, therefore, that the claim was procedurally barred. The trial court found that, even if the evidence qualified under the rule, the claim was meritless. The court also concluded each allegation of ineffective assistance of counsel was meritless. The court further determined Petitioner's claim regarding a "faulty" police investigation was not cognizable ...