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Romeo v. Ryan

United States District Court, D. Arizona

October 28, 2016

James Elliott Romeo, Petitioner,
v.
Charles Ryan, et al., Respondents.

          ORDER

          ERIC J. MARKOVICH JUDGE.

         Petitioner James Elliott Romeo filed a pro se petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for armed robbery, aggravated robbery, kidnapping, and aggravated assault. (Doc. 1). Petitioner raises four grounds for relief: (1) ineffective assistance of trial counsel (“IAC”); (2) prosecutorial misconduct; (3) abuse of discretion by the trial court; and (4) trial counsel's low standard of performance.[1] Respondents filed an Answer contending that Petitioner failed to properly exhaust his claims and that all of the claims are therefore procedurally defaulted and barred from review by this Court. (Doc. 19).

         As to Grounds One and Two of the petition, and sub claims (c) through (f) of Ground Three, the Court finds that Petitioner failed to properly present these claims to the Arizona Court of Appeals (“COA”); thus, the claims are procedurally defaulted and barred from this Court's 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. As to sub claims (a) and (b) in Ground Three and sub claims (a) and (b) in Ground Four, the Court finds that while Petitioner arguably presented these claims to the Arizona COA, he failed to describe the federal basis for these claims, 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 these claims. Accordingly, the petition will be denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Trial, Sentencing, and Appeal

         On August 29, 2011, a Cochise County Superior Court jury found Petitioner guilty of five counts of armed robbery, five counts of aggravated robbery, nine counts of kidnapping, and twelve counts of aggravated assault. (Doc. 1; Doc. 19 Ex. J at ¶1). Petitioner was sentenced to a combination of concurrent and consecutive presumptive prison terms for a total of 104 years. (Doc. 19 Ex. D; Ex. J at ¶1).

         The Arizona COA summarized the facts of the case as follows:

The evidence shows that, in November 2009, Romeo and several accomplices entered a residence and bound the four adults in the home with duct tape. Four minors in the home- two under the age of fifteen-also were taken captive, as was a fifth adult who had arrived during the incident. Romeo punched and kicked one of the victims several times, and punched another, also using a taser on that victim. At least one of Romeo's accomplices carried a gun throughout the incident, threatening several victims. The assailants took items from the adult victims.

(Doc. 19 Ex. J at ¶3).

         Following his conviction, Petitioner sought review in the Arizona COA. Appointed counsel filed a brief stating that he had searched the record and found no errors or arguable questions of law, and asked the court to review the record for reversible error. (Doc. 19 Ex. H). Appointed counsel further requested that Petitioner be allowed to file a pro se supplemental brief. Petitioner filed his brief on February 15, 2012 and argued that the trial court improperly denied his motion for a new attorney, that his speedy trial rights were violated, and that there were two jurors who stated that they were friends with the victims and that while one juror was dismissed, the other juror remained on the jury and Petition believed the juror's judgment was affected. (Doc. 19 Ex. I). On May 4, 2012, the COA found no reversible error and affirmed Petitioner's conviction and sentence. (Doc. 19 Ex. J).

         B. Petition for Post-Conviction Relief

         On February 8, 2012, Petitioner initiated proceedings in Cochise County Superior Court for post-conviction relief (“PCR”). (Doc. 19 Ex. L). The trial court appointed counsel to represent Petitioner, and counsel filed the Rule 32 petition on October 15, 2012. (Doc. 19 Exs. M, N). Petitioner raised issues of abuse of discretion by the trial court, prosecutorial misconduct, and IAC. Petitioner first alleged that the trial court abused its discretion by 1) failing to hold a hearing on Petitioner's motion for new counsel and 2) by designating the case “complex” and thereby violating Petitioner's speedy trial rights. (Doc. 19 Ex. N). Petitioner also alleged prosecutorial misconduct based on the prosecutor allegedly giving the trial court false information regarding the standard applicable to Petitioner's motion for new counsel. Finally, Petitioner alleged IAC based on trial counsel's 1) failure to make sure that Petitioner had a hearing on his motion for new counsel; 2) failure to effectively argue and make a record for appeal regarding the motion for new counsel; 3) failure to alert the trial court the prosecutor's misstatement of law, thus failing to preserve a record of the issue for appeal; 4) failure to argue against the complex case designation and demand written, supportive findings for the designation, thereby waiving the issue for appeal; 5) general ineffective investigation; 6) failure to disclose, subpoena, and call as a witness victim-witness Michael Bejarano, Jr.; and 7) failure to request a hearing or otherwise litigate whether the in-court identification of Petitioner by the juvenile victims was the result of undue suggestion.

         The trial court denied PCR on January 17, 2013. (Doc. 19 Ex. O). Petitioner did not file a petition for review with the Arizona COA. Instead, on August 23, 2013, Petitioner filed a motion in Cochise County Superior Court requesting that counsel be appointed to file a petition for review on his behalf. (Doc. 19 Ex. P). On November 18, 2013, Petitioner filed a motion requesting leave to file a delayed petition for review. (Doc. 19 Ex. Q). In his motion, Petitioner alleged that he had previously filed three motions requesting appointment of counsel, [2] but that the trial court had never responded, and that he had recently been advised by the prison paralegal to file a motion for permission to file a delayed petition for review. On November 20, 2013, the court denied Petitioner's motion to file a delayed petition for review. (Doc. 19 Ex. R).

         C. Habeas Petition

         Petitioner filed his Petition for Writ of Habeas Corpus (PWHC) in this Court on January 9, 2014, asserting four grounds for relief. (Doc. 1). In Ground One, Petitioner contends that trial counsel was ineffective for: (a) failing to file a motion to suppress testimony or impeach witness Lashawn Smith; (b) failing to filing a motion for a special jury instruction; (c) failing to file a motion opposing the complex case designation; (d) failing to file a motion to subpoena victim Michael Bejarano; (e) failing to file a motion for hardship; and (f) failing to file a motion regarding the denial of Petitioner's speedy trial rights. In Ground Two, Petitioner alleges that the prosecutor: (a) offered a witness immunity; (b) threatened to take a witness's children; (c) caused Petitioner's attorney to prove that Michael Bejarano was a victim; (d) filed for a complex case hearing without having reasonable cause to do so; (e) called Lashawn Smith to testify when there was an ongoing custody battle between Ms. Smith and Petitioner; (f) denied Petitioner the right to confront his accuser at trial; and (g) failed to identify who called 911. In Ground Three, Petitioner argues the trial court abused its discretion by: (a) denying Petitioner's request for a speedy trial; (b) denying Petitioner's request to change counsel; (c) failing to give a jury instruction on the prosecutor's duty to prove every element of the charges beyond a reasonable doubt; (d) failing to grant Petitioner's request for a Rule 20 hearing; (e) running some of Petitioner's sentences consecutively; and (f) disproportionately sentencing Petitioner and not making some of his sentences concurrent. In Ground Four, Petitioner alleges his trial counsel had a low standard of performance because she: (a) failed to disqualify a juror who admitted to being a friend of one of the victims; and (b) failed to disqualify a juror who had limited understanding of English. Petitioner states that not all of the grounds in his Petition were presented to the Arizona COA because his trial counsel did not make a record on motion for appeals purposes.

         Respondents contend that all of Petitioner's claims are unexhausted and procedurally defaulted. Respondents specifically state that in the Rule 32 Petition, the only IAC claim Petitioner presented was counsel's failure to call one of the victims as a witness. However, because Petitioner failed to file a petition for review with the COA after the trial court denied his Rule 32 Petition, this claim is unexhausted and procedurally defaulted. Respondents also note that Petitioner raised prosecutorial misconduct claims in his Rule 32 Petition, but that the trial court found the claims precluded by Rule 32.2(a), and Petitioner failed to file a petition for review with the COA. Finally, Respondents note that Petitioner did present claims to the COA regarding the trial court's failure to grant a change in counsel, the trial court's abuse of discretion in denying Petitioner's speedy trial rights, and trial counsel's failure to challenge the two jurors, but allege that Petitioner did not present these claims as specifically federal claims. Respondents further state that the COA found Petitioner had waived these claims by failing to comply with Rule 31.13(c), and that the claims are therefore precluded by the COA's express finding of procedural default.

         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. ...


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