United States District Court, D. Arizona
JAMES A. TEILBORG, District Judge.
Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus. (Doc. 1). Magistrate Judge Eileen S. Willett issued a Report and Recommendation ("R&R") recommending that the Court deny the Petition. (Doc. 16). Petitioner has filed objections to the R&R. (Doc. 17).
In 2007, Petitioner was indicted with multiple charges, including first-degree felony murder and attempted first-degree burglary. (Doc. 13-1 at 11). These charges originated from a shootout that occurred in a Phoenix apartment. (13-4 at 284). Petitioner was actively involved in the gun-battle, which resulted in the death of a man named Luis. ( Id. ).
The predicate felony for the first-degree murder charge was attempted burglary in the first-degree. (Doc. 13-1 at 11). The attempted burglary charge was grounded in the accusation that Petitioner, with a deadly weapon and the "intent to commit a theft or felony[, ]... enter[ed] or remain[ed] unlawfully in... [a] fenced residential yard." ( Id. ).
Trial by jury began in 2008. ( Id. at 25). At trial, Petitioner's counsel moved to dismiss the burglary charge, arguing that no evidence established that the crime was committed in a fenced area. (Doc. 13-3 at 308-10). The court agreed and dismissed the charge. ( Id. at 309). Counsel then moved to dismiss the felony murder charge, claiming that attempted burglary in the first-degree was the predicate felony. The Court declined to dismiss this charge because a felony murder conviction could be based on a different predicate felony. ( Id. )
The jury found Petitioner guilty of, inter alia, first-degree felony murder. (Doc. 13-4 at 5). For this charge Petitioner was sentenced to twenty-five years in prison. ( Id. at 95). Petitioner appealed his conviction, ( Id. at 100), which the Arizona Court of Appeals affirmed, ( Id. at 189-90). Petitioner filed a petition of review with the Arizona Supreme Court, ( Id. at 194), which was denied, ( Id. at 216).
Subsequently, Petitioner filed a notice of post-conviction relief in Maricopa County Superior Court. ( Id. at 261). Petitioner's appointed counsel was "unable to raise any viable issues under" Arizona's Rule 32 habeas corpus statute. ( Id. at 268). Petitioner proceeded without counsel, and submitted a petition for post-conviction relief making two ineffective assistance of counsel ("IAC") claims. ( Id. at 273-80). First, Petitioner alleged that his trial and appellate counsel were ineffective for not highlighting the State's failure to meet its burden of proof with regard to the predicate felony of burglary. ( Id. at 273-76). Second, Petitioner claimed that trial counsel was ineffective for failing to argue for the inclusion of second-degree murder on the verdict form as a lesser included offense. Additionally, Petitioner alleged that appellate counsel neglected to argue that the trial judge abused his discretion in failing to include second-degree murder on the verdict form. ( Id. at 277-79).
The Maricopa County Superior Court denied the petition for post-conviction relief, adopting the reasoning from the State's Response. ( Id. at 313-14). Petitioner submitted a petition for review to the Arizona Court of Appeals, ( Id. at 316), which denied review, ( Id. at 350).
Petitioner now comes before the Court by way of his Petition for Writ of Habeas Corpus, requesting "[d]ismissal of Count One, Felony Murder or remand for New Trial on Count One, Felony Murder." (Doc. 1 at 21).
II. Review of Report and Recommendation
The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (emphasis in original); accord 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the... [R&R] to which objection is made.").
A. Habeas Corpus Standard
Petitioner is a state prisoner filing a habeas corpus petition after April 24, 1996, therefore the Antiterrorism and Effective Death Penalty Act ("AEDPA") applies. Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). Under the AEDPA, the Court may grant a writ of habeas corpus for claims adjudicated on the merits in state courts only if those proceedings:
(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 ...