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Arnold v. Ryan

United States District Court, D. Arizona

July 27, 2016

Frank John Arnold, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          MICHELLE H. BUMS UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE PAUL G. ROSENBLATT, UNITED STATES DISTRICT COURT

         Petitioner Frank John Arnold, who is confined in the Arizona State Prison Complex, filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and supplemental memoranda (Docs. 8, 12, 22, 23, 28). Respondents filed an Answer (Doc. 24), and Petitioner filed a Reply and another supplemental memorandum (Docs. 26, 32).

         BACKGROUND[1]

         The State indicted Petitioner with one count of conspiracy to commit first degree murder, a class 1 felony. (Exh. A.) The Arizona Court of Appeals summarized the evidence supporting Petitioner’s conviction as follows:

In late 2007, Angelica Rodriguez met defendant while working as a translator for Foreclosure Consulting Solutions. After completing two transactions together, defendant and Rodriguez developed a personal relationship.
As their relationship progressed, defendant frequently complained to Rodriguez about his wife. He was separated from his wife and “in the middle of a divorce.” When defendant told Rodriguez that his wife was “sexually abusing [their] children, ” she responded that “somebody should kill the bitch.” From that point forward, defendant became focused on killing his wife and all of his conversations with Rodriguez centered on finding a way to murder her “without [defendant] getting caught.”
Rodriguez quickly determined defendant’s interest in killing his wife provided her with a financial opportunity. She agreed to help him with the intent “to play him along and take money from him.” Defendant gave Rodriguez approximately $1000 and told her he would give her an additional $3000 if she killed his wife. Rodriguez initially agreed to kill defendant’s wife, because she “plan[ned] to string him along and take as much money from him as [she] could, ” but she later became “scared” and told defendant that she would find someone else to do it for him. Rodriguez’s primary motivation for “helping” defendant with his plans to murder his wife was to obtain money to support her drug addiction.
Although Rodriguez became scared and feared defendant might harm her, she chose not to go to the police because she is not lawfully in the country and feared she might be deported. In May 2008, however, Rodriguez was detained by police when she was found in an abandoned house after getting “high.” Initially, Rodriguez offered to become a confidential informant and provide the police information about drug dealers. Soon thereafter, Rodriguez informed the detective she was primarily working with that defendant planned to have his wife killed. Rodriguez then met with other police officers and they arranged to have Rodriguez call defendant to set up a meeting between defendant and a “hit man” with the nickname of “Phat Tony” who was, in actuality, Detective Salvadore Sanfillipo.
In the recorded telephone call, defendant expressed his dismay that Rodriguez was taking so long to arrange the murder and he asked whether the hit man she had found would be willing to kill his mother-in-law as well. Defendant also asked for reassurance that Rodriguez was not going to talk to the police. Later that day, defendant stopped by Rodriguez’s home and told her he wanted to meet the hit man. He also asked Rodriguez to celebrate with him that they had finally found someone to kill his wife.
At approximately 5:00 p.m. on May 28, 2008, defendant met Detective Sanfillipo at a restaurant parking lot. During their recorded meeting, Detective Sanfillipo provided defendant numerous “outs” to allow him to walk away from the situation. Nonetheless, defendant explicitly stated that he wanted his wife killed. Defendant agreed to pay the detective $1500 upfront and an additional $3000 after his wife was killed. When Detective Sanfillipo asked how defendant wanted his wife killed, defendant suggested that she could “die in a car accident, . . . overdose, or . . . shoot herself in the head.” Defendant also stated that Detective Sanfillipo “ought to” kill his wife’s mother as well. The following evening, defendant met with Detective Sanfillipo again and provided him with his wife’s address and photograph and $1500. As soon as defendant handed Detective Sanfillipo the envelope of money, other police officers placed him under arrest.

(Exh. L at ¶¶ 5-10.)

         A jury convicted Petitioner of conspiracy to commit first-degree murder. (Exh. C.) The trial court sentenced Petitioner to life imprisonment with the possibility of parole after 25 years. (Exh. D.)

         Petitioner filed a notice of appeal on June 16, 2010. (Exh. E.) On May 27, 2011, Petitioner’s counsel filed an opening brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating he had “found no arguable question of law that is not frivolous” and requested the court of appeals to “search the record for fundamental error.” (Exh. F at 9.) Additionally, Petitioner’s counsel stated that Petitioner had requested the following issues to be raised:

1. That the confidential informant, an agent of the State, intentionally caused a mistrial in the first trial by defying orders of the court and testifying there was an order of protection against Appellant; testifying Appellant had prior felony convictions; and testifying Appellant was a sex offender. See Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261 (1984).
2. That the confidential informant committed perjury in her testimony at trial.
3. That the prosecutor failed to “correct conflicting testimony of Detective Ott.” 4. That the prosecutor improperly argued the conspiracy was between Appellant and the confidential informant despite the fact the indictment alleged the conspiracy was between Appellant and the undercover police detective.
5. That the confidential informant lied about not getting any benefit for her testimony.
6. That the State failed to disclose all of the prior felonies of the confidential informant.
7. That at trial there was a failure to “correct conflicting testimony of Officer Brilhardt.” 8. That audiotapes and videotapes were improperly altered and improperly admitted at trial.
9. That the indictment was based on false testimony to the grand jury.
10. Ineffective assistance of defense counsel.

(Id.) Petitioner’s counsel also filed a “motion for leave to allow Appellant to file supplemental brief in propria persona.” (Exh. G.) The court of appeals granted Petitioner’s motion. (Exh. H.) Meanwhile, Petitioner’s counsel provided Petitioner with a copy of the record on appeal, including all of the photostated instruments and minute entries, and 18 volumes of reporter’s transcripts. (Exh. I.)

         On July 29, 2011, Petitioner’s counsel filed a “notice of filing: Appellant’s supplemental brief in propria persona, ” attaching Petitioner’s supplemental brief. (Exh. J.) On November 21, 2011, Petitioner filed another “opening brief, ” wherein he presented the same above-referenced 10 issues for review that his counsel had included in his Anders opening brief. (Exh. K at 16-17.) Petitioner attached a “motion to compel” to his pro per opening brief, alleging that his attorneys “refuse[d] to produce two transcripts, ” and set forth a “memorandum of points and authorities” to support his claims raised in his opening brief. (Exh. K.)

         The Arizona Court of Appeals issued a memorandum decision on December 22, 2011, affirming Petitioner’s conviction and sentence. (Exh. L.) The court noted that in resolving Petitioner’s appeal, it had considered the issues raised by Petitioner in his later-filed “opening brief.” (Id. at 2.) Petitioner filed a motion for reconsideration on March 5, 2012, and the court denied his motion on June 20, 2012. (Exh. OO.)

         Petitioner then filed a petition for review in the Arizona Supreme Court (Exh. M), but the court denied review on September 13, 2012. (Exh. N.)

         Petitioner initiated two PCR proceedings. Petitioner filed his first PCR notice in the trial court on January 10, 2012 - after the Arizona Court of Appeals issued its memorandum decision, but before Petitioner sought reconsideration of that decision and before he filed his petition for review in the Arizona Supreme Court. (Exh. O.) The trial court appointed counsel for Petitioner. (Exh. P.) On March 6, 2012, Petitioner filed a motion to withdraw his PCR notice without prejudice because his direct appeal was still pending. (Exh. Q.) On March 13, 2012, the trial court granted his motion to withdraw the PCR notice and dismissed the Rule 32 proceeding. (Exh. R.)

         Petitioner’s second PCR notice was filed on October 11, 2012 - approximately one month after the Arizona Supreme Court denied review of his petition for review. (Exh. S.) The trial court appointed counsel for Petitioner (Exh. T), and on March 20, 2013, Petitioner’s counsel filed a “notice of completion of post-conviction review and request for extension of time to allow Petitioner to proceed pro per.” (Exh. U.) The trial court ordered Petitioner’s counsel to remain in an advisory capacity for Petitioner and granted Petitioner an extension of time to file his pro per PCR petition. (Exh. V.)

         On April 30, 2013, Petitioner filed a “motion to enlarge time for filing petition for postconviction relief” (Exh. W), and the trial court granted Petitioner an extension of time to file his PCR petition (Exh. X). On May 28, 2013, Petitioner filed a “motion to enlarge and expand to allow missing transcripts to be produced that did not exist at defendant’s trial.” (Exh. Y.) The trial court denied his motion. (Exh. Z.) Petitioner filed a motion for reconsideration (Exh. AA), which the trial court denied on July 24, 2013 (Exh. BB).

         On August 5, 2013, Petitioner filed a “petition for review [of the] motion for reconsideration of motion to produce missing transcript from record of appeal.” (Exh. CC.) The State filed a “response/motion to strike petition for review, ” stating that Petitioner had not yet filed a PCR petition and that he was “seeking review of the trial court’s preliminary ruling that he is not entitled to pre-petition discovery, ” and argued that although he was permitted to file a petition for special action, he was not entitled to review of that ruling under Rule 32.9 of the Arizona Rules of Criminal Procedure. (Exh. DD.) The Arizona Court of Appeals agreed, granted the State’s motion to strike, and dismissed Petitioner’s petition for review on August 21, 2013. (Exh. EE.) Petitioner filed a petition for special action on September 12, 2013, but the court of appeals declined jurisdiction. (Exh. QQ.) On September 23, 2013, the trial court granted Petitioner an extension of time to file his PCR petition. (Exh. FF.)

         Petitioner filed a PCR petition on December 2, 2013, but on January 6, 2014, the trial court found that the petition was non-compliant with the Arizona Rules of Criminal Procedure, permitted Petitioner to “revise his petition [to] a maximum of 30 pages” in length, and granted ...


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