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Ashmeade v. Ryan

United States District Court, D. Arizona

March 22, 2016

Duane Ashmeade, Petitioner,
v.
Charles Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

JOHN Z. BOYLE, Magistrate Judge.

Petitioner Duane Ashmeade has filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254. (Doc. 17.)

I. SUMMARY OF CONCLUSION

Petitioner asserts he was improperly tried in absentia in 1997, his rights are "affected" by the lack of transcripts from his trial, and his rights to choice of counsel and confrontation were violated. Petitioner's claims are meritless. Therefore, the Court will recommend that the Amended Petition be denied and dismissed with prejudice.

II. BACKGROUND

a. Facts and Procedural History

On June 21, 1996, Petitioner was indicted on nine felony counts related to Transportation of Marijuana for Sale. (Doc. 18-1, Ex. A, at 3.) The Arizona Court of Appeals found the following fact and procedural history as true:[1]

The trial court released Ashmeade conditioned on the posting of a $159, 000 secured appearance bond.... Subsequently, Ashmeade submitted a signed and notarized acknowledgement to the trial court, and acknowledged his then September 26, 1996 "non-firm" trial date, and confirmed he was aware he could be tried in absentia if he failed to appear for trial.
....
On December 9, 1996, having failed to waive his presence or appear, the trial court issued a bench warrant for Ashmeade's arrest, set a bond forfeiture hearing for February 6, 1997, vacated the non-firm trial date, and set a firm trial date for February 3, 1997. It also ordered that if Ashmeade failed to appear, trial would "proceed in absentia." The trial court sent a copy of its December 9, 1996 minute entry to Ashmeade. At defense counsel's request, the trial court rescheduled the firm trial date to March 10, 1997.
Subsequently, the trial court ordered defense counsel to send Ashmeade a registered letter, return receipt requested, and to try to telephonically contact him to "apprise" him of his new firm trial date, and that trial would proceed in absentia if he failed to appear. On February 14, 1997 defense counsel filed an affidavit stating he had "sent a registered, return receipt requested letter to [Ashmeade] advising him of his trial date and that... if he failed to appear he would be tried in absentia." Defense counsel also stated "[i]n the meantime, I have attempted to telephonically reach [Ashmeade] on a daily basis with no success."
....
Ashmeade failed to appear for trial on March 11, 1997. After being advised by defense counsel that "the last contact his office had with [Ashmeade] was on or about December 4, 1996, " the trial court found Ashmeade's failure to maintain contact with his attorney and failure to appear demonstrated a knowing, intelligent, and voluntary waiver of his right to be present for trial and ruled "trial may proceed in his absence" (absentia finding"). On March 26, 1997, the jury found Ashmeade guilty as charged. Based on Ashmeade's failure to appear, the trial court reaffirmed the bench warrant for Ashmeade's arrest and ordered sentencing to be set upon his appearance in court.
....
On September 24, 2013-over 16 years after his trial in absentia-Ashmeade was taken into custody after being extradited from Texas. On January 24, 2014, in response to Ashmeade's motion challenging the trial court's absentia finding, the sentencing court held an evidentiary hearing to determine whether Ashmeade had been voluntarily absent from trial.
At the evidentiary hearing, Ashmeade testified he had been in constant contact with his bail bondsman in New York and had not learned about his trial date until after the trial was over. He admitted signing the first two acknowledgements listing the non-firm trial dates but denied signing the third, notarized acknowledgement. Ashmeade said he had never been able to reach his attorney despite calling "thousands of times, " and after he discovered he had been tried was "scared." Ashmeade also denied knowing about the bench warrant until he was apprehended in 2013.
....
On January 30, 2014 the sentencing court denied Ashmeade's motion, found his absence from trial voluntary, and affirmed his convictions... At the sentencing hearing, ... the court sentenced Ashmeade to five years imprisonment on counts one through eight, and to two and a half years on count nine, with all sentences to run concurrently.

State v. Ashmeade, No. 1 CA-CR 14-2015, 2015 WL 2381222, at *1-3 (Ariz.Ct.App. May 14, 2015).

b. Appeal and Post-Conviction Relief Proceeding

On April 10, 2015, Petitioner filed an opening brief with the Arizona Court of Appeals. (Doc. 18-2, Ex. PP, at 196.) Pursuant to Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), counsel stated he searched the record on appeal and "found no arguable question of law that is not frivolous." ( Id. at 202.) The appeal was submitted on a reconstructed record pursuant to Rule 31.8(f) of the Arizona Rules of Criminal Procedure because the court reporter notes were no longer available. ...


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