United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MICHELLE H. BURNS, Magistrate Judge.
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
Petitioner Reuben Cowan, who is confined in the Arizona State Prison, Cimarron Unit, Tucson, Arizona, has filed a pro se Amended Petition for Writ of Habeas Corpus (hereinafter "amended habeas petition") pursuant to 28 U.S.C. § 2254 (Doc. 4). Respondents filed an Answer on August 12, 2015 (Doc. 12). On August 27, 2015, Petitioner filed a Reply to Respondents' Answer (Doc. 13).
Petitioner lists two grounds for habeas relief, all which he claims resulted in a violation of his Sixth Amendment right to the effective assistance of counsel under the United States Constitution:
Ground One: Petitioner's counsel provided ineffective assistance at trial, when counsel failed to object to the presentation of highly prejudicial and multi-layered hearsay testimony from Detective Schira - specifically, Detective Schira was allowed to testify that another detective told him that he heard that "[s]omebody said a word on the street that [Petitioner] had bragged about doing this."
Ground Two: Because of trial counsel's ineffective assistance, Petitioner was unconstitutionally denied due process under the Fifth and Fourteenth Amendments of the United States Constitution when he was convicted based upon evidence insufficient to a finding of guilt beyond a reasonable doubt.
(Doc. 4 at 5, 7.)
Respondents assert that Petitioner has failed to exhaust ground one of his amended habeas petition and it is procedurally defaulted, and that ground two of Petitioner's amended habeas petition lacks merit. (Doc. 12 at 2.) Respondents request that the Court dismiss Petitioner's petition with prejudice.
I. Trial and Appellate Court Proceedings.
Petitioner was charged by indictment with one count of first degree murder, pled alternatively as premeditated and felony-murder (count 1), one count burglary in the first degree (count 2), two counts attempted armed robbery (counts 3 and 4), and as an accomplice to all counts. (Exh. G.) Petitioner went to trial on the charges, and was subsequently found guilty of felony-murder (count 1), burglary in the first degree (count 2), and two counts of attempted armed robbery (counts 3 and 4). (Exh. H at 10-11.) The trial court sentenced him to life in prison for the murder conviction, 10-and-a-half years for the burglary conviction, and 7-and-a-half years each for the attempted armed robbery convictions. (Exh. I at 39-40.) Petitioner, through counsel, raised one issue on appeal - that the state failed to produce substantial evidence to support a conviction, and thus the trial court erred in denying Petitioner's motion for judgment of acquittal. (Exh. K at 2.) The Arizona Court of Appeals affirmed, finding that the trial evidence was "sufficient to survive [Petitioner]'s motion for judgment of acquittal and to support his convictions for first-degree burglary and attempted armed robbery, and for felony murder, for causing the victim's death during the course of and in furtherance of these offenses." (Exh. N at 3.) The court further explained:
¶6 The victim's girlfriend testified that she and her boyfriend awoke sometime after 10 p.m. to the sound of a loud noise "like a crash or something breaking." Her boyfriend went to the living room, and she heard a male repeatedly asking, "Where's the money?" She then heard the sound of five or six gunshots. A man holding a gun then entered the master bedroom and also demanded of her, "Where's the money?" The victim's girlfriend heard the voice of only one person the entire time. The victim died of gunshot wounds to the chest and back.
¶7 Police identified [Petitioner]'s fingerprint in the blood on the master bedroom door. Police also identifed [Petitioner]'s fingerprint on the top part of the west security gate adjacent to the victim's apartment. The victim's DNA was identified as the major contributor to a bloodstain that also was found on the west security gate, and [Petitioner]'s DNA could not be excluded as a minor contributor.
¶8 Police found $10, 100 in cash in a drawer in the master bedroom and twelve pounds of marijuana elsewhere in the condominium. The condominium's back door was cracked as if it had been kicked in. A neighbor and her visitor saw two men running away from the rear of the condominium immediately after they heard the gunshots, but they could offer only a general description and could not identify anyone.
¶9 When he was arrested eight months after the murder, [Petitioner] first denied knowing the victim or ever having been to his condominium, but later equivocated and said it was possible that he purchased marijuana from the victim at some point. At trial, [Petitioner] testified he had gone to the condominium the night of the murder to buy marijuana, having purchased marijuana there two weeks earlier. He testified he entered the dark condominium through an open back door, heard shooting, and must have left his finger print on the master bedroom door by accident while he tried to avoid the gunfire. He said he saw a man holding a gun in the bedroom, and stumbled over a man lying on the floor on the way out. [Petitioner] did not claim to have sustained any injury causing him to bleed while at the condominium, and he explained that he did not realize blood was on his hands....,
¶11 It was for the jury, not us, to determine the credibility of [Petitioner]'s explanation of why his fingerprint was in blood on the bedroom door and on the gate with a bloodstain matching the victim's DNA (the west security gate). On this record, the jury could reasonably infer that [Petitioner] had gone to the condominium of a person whom he knew dealt marijuana with the intent of robbing him at gunpoint, kicked in the back door to gain entry, demanded money from the victim resulting in the victim's murder, and then entered the master bedroom wielding the firearm and demanded money from the victim's girlfriend. We find the evidence sufficient to support the denial of the motion for judgment of acquittal and to support the convictions.
(Id. at 4-6.)
Petitioner filed a petition for review to the Arizona Supreme Court, and that petition was summarily denied on July 23, 2013. (Exh. O.)
II. State Post-Conviction Proceedings.
On August 19, 2013, Petitioner filed a timely Notice of Post-Conviction Relief and Petition for Post-Conviction Relief ("PCR"). (Exhs. Q, R.) In his PCR, Petitioner checked 14 boxes on the form petition that denoted generic grounds for post-conviction relief. (Exh. R at 1-2.) On August 28, 2013, the trial court appointed counsel for petitioner and ordered that the petition for post-conviction relief be filed within 60 days. (Exh. S.) PCR counsel filed two subsequent motions to extend the deadline to file a petition, which were both granted by the court. (Exhs. T, U, V, W.) On March 28, 2014, PCR counsel filed a Notice of Completion of Post-Conviction Review and Request for Extension of Time to Allow Petitioner to Proceed Pro Per, indicating that he had "communicated with Petitioner, reviewed the transcripts and all relevant documents in this matter, and [was] unable to discern any colorable claim upon which to base a ...