United States District Court, D. Arizona
ERIC J. MARKOVICH UNITED STATES MAGISTRATE JUDGE
Petitioner Chad Lucas Harrison filed a pro se petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for theft of a means of transportation, third-degree burglary, criminal damage, simple assault, attempted armed robbery, attempted aggravated robbery, theft of a credit card, and taking the identity of another. (Doc. 1). Petitioner raises four grounds for relief: (1) ineffective assistance of counsel (“IAC”); (2) insufficient indictment; (3) unlawfully imposed sentence/double jeopardy; and (4) unlawful use of stale priors. Petitioner’s IAC claim includes a number of sub claims: (a) counsel failed to object to the sufficiency of the indictment; (b) counsel failed to object to the trial court’s abuse of discretion in imposing an unlawful sentence; (c) counsel failed to object to the unlawful use of stale priors; (d) counsel failed to discover that one of Petitioner’s priors was a misdemeanor; (e) counsel failed to notice that Petitioner was sentenced for a dangerous felony even though the jury found no dangerous nature; (f) counsel failed to raise the issue that the jury found Petitioner did not have a weapon but was guilty of armed robbery and aggravated robbery; and (g) counsel failed to interview witnesses.
Respondents filed their response contending Grounds Two, Three, and Four are not cognizable on habeas review because Petitioner fails to specify the nature of the constitutional violations alleged in these counts. Respondents further note that at the state level, Petitioner did not describe any federal basis for these claims separate from his IAC claims, and the state courts only addressed these claims as IAC claims. As to Petitioner’s IAC claims in Ground One, Respondents contend that sub claims (a), (b), and (c) were properly presented to the Arizona Court of Appeals (“COA”) and are thus properly before this Court for review; that sub claims (d) and (g) are unexhausted and procedurally defaulted because Petitioner failed to present them in his Rule 32 petition for post-conviction relief (“PCR”); that sub claim (e) is moot because Petitioner has already been resentenced on count five of the indictment; and that sub claim (f) is unexhausted and procedurally defaulted because Petitioner only presented this claim in his petition for review to the Arizona Supreme Court, which does not meet the requirement of fairly presenting the claim to the state courts.
As to the sub claims in Ground One of the petition that are properly exhausted and not procedurally defaulted, the Court finds that Petitioner has failed to establish a violation of Strickland v. Washington, 466 U.S. 668 (1984), and that the state courts did not err in their resolution of Petitioner’s Strickland claims. As to Grounds Two, Three, and Four of the petition, the Court finds that Petitioner failed to describe the federal basis for these claims in his state court proceedings, and thus they were not fairly presented to the state courts for review. The Court further finds that Petitioner does not demonstrate cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default of his claims. Accordingly, the petition will be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Trial, Sentencing, and Appeal
On June 27, 2008 a Pima County Superior Court jury found Petitioner guilty of theft of means of transportation, burglary in the third degree, criminal damage, simple assault, attempted armed robbery, attempted aggravated robbery, theft of a credit card, and taking the identity of another. (Doc. 15 Ex. B). Petitioner was sentenced to a total of 15 years imprisonment. (Doc. 15 Exs. C and II).
The Arizona COA summarized the facts of the case as follows:
So viewed, the evidence established that Shawna C. had stopped at a convenience store at about 9:00 p.m. on January 26, 2008, and left her sedan running in the store’s parking lot while she went inside. She noticed two men at the counter and saw them leave the store. She also saw one of the men place his hands on the handlebars of a bicycle outside. When Shawna walked out to the parking lot moments later, her car was gone, and she reported the theft to the Tucson Police Department.
The next morning, Harrison was driving Shawna’s sedan with codefendant Zachary Waggoner as his passenger. Waggoner called out the vehicle’s window to Doug Z. and offered him a ride. Doug accepted the offer and got into the vehicle, noticing that the back seat was full of what he described as bicycle parts.
Harrison told Doug the vehicle was a “G-ride, ” and a police detective testified this term was slang for a stolen vehicle, with the “G” signifying “grand theft auto.” Although Doug had expected a ride home, Harrison stopped the car in a railroad underpass. Waggoner, who had been stabbing the dashboard with a screwdriver during the ride, held it to Doug’s ear and threatened to “shove it through” unless Doug gave him money. As Doug struggled to get out the passenger-side door, Waggoner used the screwdriver to stab him in the chest and legs. After Doug escaped from the vehicle by climbing through the window, Harrison got out as well and kicked and punched Doug, telling him, “We are serious.” Doug had understood this to mean the two men were serious about getting his money. Doug whistled for aid and told the men he knew someone who lived nearby, and Harrison and Waggoner got back into the vehicle and drove away.
A few minutes later, a Pima County Sheriff’s deputy noticed the same vehicle being driven erratically and then parked behind a dumpster at a convenience store. The deputy checked the vehicle’s license plate, learned the vehicle had been stolen, and called for backup. He watched as Harrison and Waggoner got out of the vehicle and walked into the store.
Once inside, Harrison attempted to make a purchase with a bank card in the name of Fidel C. but presented his own driver’s license as identification, and store employees refused the sale. Harrison and Waggoner left the store, walked past the dumpster and the vehicle, and went down an alley where they were stopped and arrested by police officers. Officers later found Fidel’s bank card, work identification card, and other cards in his name, as well as Harrison’s driver’s license, on the lid of the dumpster Harrison had passed. Fidel later testified he had lost a wallet containing these cards.
Shawna was asked to come to the scene and, once there, identified her vehicle, stating that the bicycle in the back seat was not hers. She positively identified Waggoner as one of the men she had seen at the convenience store just before her car was stolen. She could not positively identify Harrison but testified his appearance was consistent with that of the man she had seen with Waggoner the night before. Harrison stipulated that the damage to Shawna’s vehicle exceeded $2, 000.
(Doc. 15 Ex. H at 3-4).
Following his conviction, Petitioner sought review in the Arizona COA and argued that the trial court had erred by denying his Rule 20 motion for a directed verdict. (Doc. 15 Ex. E). On August 27, 2009, the COA found no reversible error and affirmed Petitioner’s conviction and sentence. (Doc 15 Ex. H).
B. Petition for Post-Conviction Relief
On February 22, 2010, Petitioner initiated proceedings in Pima County Superior Court for post-conviction relief (“PCR”). (Doc. 15 Ex. J). The trial court appointed counsel to represent Petitioner, and counsel subsequently filed a notice that he found no good faith basis in law or fact for relief under Rule 32. (Doc. 15 Exs. K, N). Counsel also requested that Petitioner be granted leave to file a pro se petition for PCR, and, after several extensions granted by the court, Petitioner timely filed his Rule 32 petition on October 19, 2011. (Doc. 15 Ex. U).
Petitioner raised the following IAC issues based on trial counsel’s failure to challenge: a) the indictment as duplicitous and insufficient; b) the court’s allowance of a dangerous nature finding after it dismissed the jury; c) the court’s failure to orally pronounce the sentence; d) the use of stale priors to enhance Petitioner’s sentence; e) the dangerousness of counts 5 and 6; and f) the unlawfully imposed sentences that should have been imposed pursuant to former A.R.S. § 13-702.02 and not former A.R.S. § 13- 604. Id. Petitioner also raised claims of insufficient indictment, unlawful conviction, unlawfully imposed sentence, and unlawful use of priors. Id.
The trial court denied PCR on May 30, 2012. (Doc. 15 Ex. X). Petitioner then filed a motion requesting an addendum to his Rule 32 petition to request dismissal of count five of the indictment, and a motion requesting modification of his sentence. (Exs. Y, Z). The court denied both motions, and noted that Petitioner would be resentenced on count five. (Ex. AA, BB). On July 30, 2012 the court resentenced Petitioner on count five of the indictment. (Ex. CC).
Petitioner filed a petition for review with the Arizona COA on June 28, 2012. (Ex. DD). Petitioner argued that his trial counsel was ineffective for: a) failing to challenge the indictment as insufficient because of duplicitousness; b) failing to challenge Petitioner’s sentence as unlawful where the court failed to orally pronounce it; c) failing to challenge the unlawful use of stale priors; and d) failing to note that dangerous nature was not proven. Petitioner also argued that the indictment was insufficient, that his sentence was unlawful because it was not orally pronounced, that his sentence was illegally enhanced with stale priors, and that the court improperly allowed dangerous nature allegations for counts 5 and 6 of the indictment after the jury was released. The COA granted review but denied relief on October 25, 2012. (Ex. EE). Petitioner sought review by the Arizona Supreme Court, which denied review on March 25, 2013. (Exs. FF, GG).
C. Habeas Petition
Petitioner filed his Petition for Writ of Habeas Corpus (PWHC) in this Court on April 11, 2013, asserting four grounds for relief. (Doc. 1). In Ground One, Petitioner argues his trial counsel was ineffective for: (a) failing to object to the sufficiency of the indictment; (b) failing to object to the trial court’s abuse of discretion in imposing an unlawful sentence; (c) failing to object to the unlawful use of stale priors; (d) failing to discover that one of Petitioner’s priors was a misdemeanor; (e) failing to notice that Petitioner was sentenced for a dangerous felony even though the jury found no dangerous nature; (f) failing to raise the issue that the jury found Petitioner did not have a weapon but was guilty of armed robbery and aggravated robbery; and (g) failing to interview witnesses. In Ground Two, Petitioner argues that the indictment was insufficient and duplicitous because it charged the same conduct twice in counts one through three. In Ground Three, Petitioner alleges that his sentences were unlawfully imposed because: a) the trial court did not orally pronounce the sentences; b) the court resentenced petitioner on count five but never vacated the original sentence; and c) the jury was released before the dangerous nature findings were read. Finally, in Ground Four, Petitioner argues that the court unlawfully allowed the use of stale prior convictions at sentencing.
Respondents argue that Grounds Two, Three, and Four are unexhausted and procedurally defaulted because, at the state level, Petitioner did not describe the federal constitutional nature of these claims, and did not allege any basis for these claims separate from his IAC claims. Respondents also note that the state court only addressed these claims as IAC claims. As to Petitioner’s IAC claims in Ground One, Respondents contend that sub claims (d) and (g) are unexhausted and procedurally defaulted because Petitioner failed to present them in his Rule 32 petition; that sub claim (e) is moot because Petitioner has already been resentenced on count five of the indictment; and that sub claim (f) is unexhausted and procedurally defaulted because Petitioner only presented this claim in his petition for review to the Arizona Supreme Court, which does not meet the requirement of fairly presenting the claim to the state courts. Respondents concede that sub claims (a), (b), and (c) of Ground One were fairly presented to the Arizona COA and are thus properly exhausted.
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits the federal court’s power to grant a petition for a writ of habeas corpus on behalf of a state prisoner. First, the federal court may only consider petitions alleging that a person is in state custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Sections 2254(b) and (c) provide that the federal courts may not grant habeas corpus relief, with some exceptions, unless the petitioner exhausted state remedies. ...