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Stith v. State

United States District Court, D. Arizona

October 2, 2017

Toney Eugene Stith, Petitioner,
v.
State of Arizona; et al., Respondents.

          REPORT AND RECOMMENDATION

          LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE

         Pending before the court is an amended petition for writ of habeas corpus filed in this court on May 8, 2017, by Toney Eugene Stith, an inmate currently held in the Arizona State Prison Complex in Yuma, Arizona. (Doc. 10)

         Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).

         The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition. The evidence presented at trial was sufficient to sustain the verdict.

         Summary of the Case

         Stith was convicted after a jury trial of “felony murder and two counts each of attempted armed robbery, attempted aggravated robbery, and kidnapping.” (Doc. 21, p. 65) The trial court sentenced him to “life in prison with the possibility of release after twenty-five years on the murder charge” and concurrent prison terms, the longest of which was 15.75 years. (Doc. 21, p. 65)

         On direct appeal, Stith's counsel filed an Anders brief. (Doc. 21, p. 21); see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1969). Stith filed a brief, pro se, arguing the evidence was insufficient for conviction and his restitution order was illegal. (Doc. 21, p. 32) On July 15, 2013, the Arizona Court of Appeals affirmed his convictions and sentences except for his criminal restitution order, which was vacated. (Doc. 21, pp. 64-67) Stith filed a motion for reconsideration, which was denied on September 17, 2013. (Doc. 21, p. 76) He did not file a petition for review with the Arizona Supreme Court. (Doc. 20, p. 4)

         On September 23, 2013, Stith filed notice of post-conviction relief. (Doc. 21, p. 79) He filed a petition, which was fully briefed, and an amended petition, which was also fully briefed. (Doc. 32, p. 11) Stith argued (1) the trial court gave an erroneous jury instruction on felony murder, (2) counsel was ineffective for failing to impeach his girlfriend's testimony that she saw him the day of the robbery in the company of the co-defendant Carlos Peyron, and (3) counsel was ineffective for failing to argue that the real perpetrator was a black man named Torson Diaz. (Doc. 23, pp 11-15) On March 22, 2016, the trial court denied the petitions finding the jury instruction issue was waived and counsel was not ineffective. Id. On July 16, 2016, Stith filed an untimely petition for review. (Doc. 23, p. 1); see Ariz.R.Crim.P. 32.9(c) (thirty days to file petition for review) The name of the court, the Arizona Court of Appeals, appears in the title of the petition, but it appears from the clerk's filing stamp that the petition was erroneously filed in the Superior Court. (Doc. 23, p. 1); see Ariz.R.Crim.P. 32.9(c) (The petition for review . . . shall be filed in the appellate court.”) It does not appear that the petition for review was ever received by the court of appeals.

         On December 27, 2016, Stith filed in this court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He filed an amended petition on May 8, 2017. (Doc. 10) He claims (1) trial counsel was ineffective for failing to impeach his girlfriend's testimony that she saw Stith earlier on the day of the attempted robbery in the company of Carlos Peyron, his co-defendant, when, in fact, he was in the company of a different Carlos; (2) the trial court gave an erroneous instruction on felony murder; (3) the evidence was insufficient for a conviction; and (4) the state's failure to offer a plea violated the equal protection clause of the U.S. Constitution. (Doc. 10)

         On August 16, 2017, the respondents filed an answer to the petition arguing that it is time-barred and Claims (1), (2), and (4) are procedurally defaulted. (Doc. 20) At the court's instruction, the respondents filed a supplement to their answer on September 5, 2017. (Doc. 25) Stith filed a reply the same day, and the respondents filed a second supplement the next day on September 6, 2017. (Doc. 27); (Doc. 26)

         The respondents argue that Claim (4) is untimely, Claims (1), (2) and (4) are procedurally defaulted, and Claim (3) should be denied on the merits. (Doc. 26) The court agrees that Claim (3) should be denied on the merits and Claims (1), (2) and (4) are procedurally defaulted. The court does not reach the respondents' argument on timeliness.

         Discussion

         The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is in custody pursuant to the judgment of a state court, the writ will not be granted unless prior adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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