United States District Court, D. Arizona
REPORT AND RECOMMENDATION
BRIDGET S. BADE, Magistrate Judge.
On October 5, 2015, Petitioner Jermaine Pledger filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 raising four grounds for relief. (Doc. 12.) On November 13, 2015, Respondents filed an answer arguing that the Court should deny relief. (Doc. 14.) Although Petitioner filed a "supplement" and a "clarification" to his Amended Petition, he did not file a reply. On February 11, 2016, Petitioner filed a "Voluntary Dismissal for (Records), " which referred to an "extension of time to answer Petition for Writ of Habeas Corpus" and, therefore, the Court construed it as a motion for extension of time to file reply in support of the Amended Petition. (Doc. 20.) The Court granted Petitioner until February 26, 2016 to file a reply, but he did not file a reply by the deadline. ( Id. )
Instead, on March 7, 2016, he filed a "Voluntary Dismissal for (Records) Amended 28 U.S.C. § 2254 (Expeditiously), " which refers to the February 26, 2016 reply deadline, and states that "Petitioner set forth (Expeditiously) Motion for Records and Voluntary Dismissal for purpose of State post-conviction relief Fundamental Error Rule 32.1(a) has not been responded to." (Doc. 21.) To the extent Petitioner seeks to dismiss this proceeding, the Court recommends that the request be denied because dismissal would be prejudicial to Respondents who filed an answer to the Amended Petition in November 2015. (Doc. 14.) Accordingly, the Court recommends that, to the extent Petitioner seeks to dismiss the Amended Petition, that request be denied. The Court also recommends that the Amended Petition be dismissed. (Doc. 17.)
I. Factual and Procedural Background
A. Charges, Trial, and Sentencing
In December 2012, the State indicted Petitioner in Maricopa County Superior Court on conspiracy to possess marijuana for sale, a class two felony (Count One), armed robbery, a class two dangerous felony (Count Two), aggravated assault, a class three dangerous felony (Count Three), kidnapping, a class two dangerous felony (Count Four), possession of marijuana for sale, a class two felony (Count Five), aggravated assault, a class two dangerous felony (Count Six), misconduct involving weapons, a class four felony (Count Seven), and misconduct involving body armor, a class four felony (Count Eight). (Doc. 14, Ex. A.)
A jury found Petitioner guilty of the charged offenses, and found aggravating circumstances on some counts. (Doc. 14, Ex. C.) The trial court sentenced Petitioner to concurrent terms of nine years' imprisonment on Counts One and Five, fifteen years' imprisonment on Counts Two, Four, and Six, ten years' imprisonment on Count Three, and two-and-one-half years' imprisonment on Counts Seven and Eight. (Doc. 14, Ex. D.)
The Arizona Court of Appeals summarized the events leading to Petitioner's conviction as follows. Petitioner sought to purchase approximately 170 pounds of marijuana from a person known as Ruiz. (Doc. 14, Ex. N.) At Petitioner's direction, Ruiz drove a car containing the marijuana into a residential garage. ( Id. ) Petitioner closed the garage door and as Ruiz walked into the house, another person put a gun to Ruiz's chest and told him it was "a rip, " meaning they were going to steal the marijuana. ( Id. ) Petitioner and two other armed men held Ruiz inside the house at gunpoint. ( Id. ) At that time, they did not know that Ruiz was a paid informant working with an undercover police officer who was monitoring the house from an unmarked car parked up the street. ( Id. ) Ruiz later escaped through the back door of the house. Petitioner and the other two men also left the house. ( Id. ) Petitioner and one of the men left in Petitioner's car, and the other man left in Ruiz's car with the marijuana. ( Id. )
Ruiz approached the undercover officer and told him it was a "drug rip." ( Id. ) Ruiz and the undercover officer followed Petitioner and eventually found his car stopped in a cul-de-sac. The officer stopped his car near the cul-de-sac, retrieved a bullet-proof vest from the trunk, and put it on. ( Id. ) The vest was emblazoned in yellow letters with the word "Police." ( Id. ) After the officer got back in his car, Petitioner drove straight toward him. ( Id. ) As Petitioner approached the officer's vehicle, he lowered his window, held a gun out the window, and pointed it at the officer. Petitioner did not shoot. ( Id. ) Other officers subsequently apprehended Petitioner. ( Id. )
B. Direct Review
Petitioner filed a timely notice of appeal. (Doc. 14, Ex. E.) In July 2013, Petitioner filed an opening brief, asserting that the prosecutor committed misconduct during closing argument by impermissibly vouching for Ruiz, and the trial court erred by ruling that the aggravated assault statute under which Petitioner was convicted, Ariz. Rev. Stat. § 13-1204(E), did not require the State to prove that Petitioner knew the victim was a police officer. (Doc. 14, Ex. F.) On December 10, 2013, the Arizona Court of Appeals rejected Petitioner's claims in a memorandum decision. (Doc. 14, Ex. I.) Petitioner filed a petition for review in the Arizona Supreme Court. (Doc. 14, Ex. J.) The State filed a motion to redesignate the December 10, 2013 court of appeals' decision as an opinion; the court of appeals granted the motion and replaced that decision with an opinion and a memorandum decision issued on January 8, 2015. (Doc. 14, Exs. M, N, O, V.) In its memorandum decision and opinion, the court of appeals rejected Petitioner's claims and affirmed his convictions and sentences. (Doc. 14, Exs. N, O.) On March 17, 2015, the Arizona Supreme Court denied the petition for review. (Doc. 14, Ex. P.)
C. Post-Conviction Proceedings
On May 14, 2015, Petitioner filed a notice of post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 14, Ex. Q.) The trial court issued a minute entry noting that Petitioner "does not wish for the Court to appoint a lawyer" and ordered Petitioner to file a petition by July 17, 2015. (Doc. 14, Ex. R.) On September 18, 2015, Petitioner filed a motion to voluntarily dismiss the post-conviction proceeding. (Doc. 14, Ex. S.) That same day, the trial court dismissed the post-conviction proceeding, noting that the court had ordered Petitioner to file a petition by July 17, 2015, and that "[t]he due date ha[d] passed and the defendant ha[d] not filed a petition and ha[d] not secured any additional extensions from the Court." (Doc. 14, Ex. T.)
D. Federal Petition for Writ of Habeas Corpus
On October 5, 2015, Petitioner filed an Amended Petition for Writ of Habeas Corpus in this Court raising the following claims: (1) the prosecutor committed misconduct by impermissibly vouching for a paid informant during closing argument (Ground One); (2) the trial court erred by ruling that the State, in establishing that Petitioner had committed aggravated assault on a peace officer, was not required to prove Petitioner knew that the victim was a police officer when he pointed a gun at him (Ground Two); (3) Petitioner was deprived of due process and equal protection because he did not receive a Donald hearing or a settlement conference (Ground Three); and (4) there was insufficient evidence to support Petitioner's conviction for possession of marijuana for sale (Ground Four). (Doc. 12 at 6-9.)
In their answer, Respondents argue that the Amended Petition should be denied for the following reasons: (1) the Arizona Court of Appeals' rejection of Ground One was not contrary to, or an unreasonable application of clearly established Supreme Court precedent, and did not involve an unreasonable determination of facts; (2) Ground Two is not cognizable on habeas corpus review; (3) Ground Three fails to state a claim upon which relief may be granted; and (4) Grounds Three and Four are procedurally defaulted and barred from federal habeas corpus review. (Doc. 14.)
As set forth below, the Court finds that Petitioner is not entitled to habeas relief on Ground One, Ground Two is not cognizable on federal habeas corpus review, and Grounds Three and Four are procedurally barred from federal habeas corpus review. Therefore, the Court recommends that the Amended Petition be dismissed and does not consider Respondents' alternative argument pertaining to Ground Three.
II. Petitioner's Claims
A. Ground One
As Respondents note, Ground One is properly before the Court because Petitioner presented it to the Arizona Court of Appeals on direct review. The appellate court rejected that claim. Therefore, Ground One was adjudicated on the merits by the state courts and this Court's reviews that claim under 28 U.S.C. § ...