United States District Court, D. Arizona
O. Silver Senior United States District Judge
2, 2017, Magistrate Judge John Z. Boyle issued a Report and
Recommendation (“R&R”) recommending the
petition for writ of habeas corpus be denied. Petitioner
filed objections to the R&R as well as a motion to stay
further proceedings while he returned to state court to
exhaust certain claims. Petitioner's objections are
without merit and it would be futile for him to return to
state court. Therefore, the R&R will be adopted in full
and the petition dismissed with prejudice.
R&R recounts the background concerning Petitioner's
criminal trials and his post-trial filings. Petitioner did
not object to that background and the Court will adopt it in
full. In brief, Petitioner shot and killed an individual
during an altercation in a parking lot. Petitioner was
charged with first-degree murder and five counts of
aggravated assault. At the end of his original trial, the
jury convicted Petitioner of three counts of aggravated
assault and one count of the lesser-included offense of
disorderly conduct. The jury acquitted Petitioner of one
count of aggravated assault. The jury could not, however,
reach a verdict on the murder charge. Petitioner was then
retried on the murder charge and he was convicted of the
lesser-included offense of manslaughter. Petitioner was
sentenced to the presumptive sentence for the manslaughter
conviction and mitigated terms on the other convictions.
Because the trial court ordered the sentences to run
consecutively, Petitioner's total sentence was
approximately twenty-five years.
filed a direct appeal but his convictions and sentences were
affirmed. Petitioner also filed three petitions for
post-conviction relief in state court, none of which were
successful. Petitioner eventually filed this federal
petition, asserting seven grounds for relief. The R&R
concludes a few of those grounds were not exhausted but, even
if the merits could be reached on all of the grounds, none of
them meet the high bar for obtaining relief. Petitioner filed
objections, largely rearguing the positions he asserted in
his petition. Petitioner also filed a motion seeking to stay
these proceedings while he returned to state court to exhaust
some of his grounds.
Ground One-Juror Qualification
first ground for relief involves one of the trial jurors
allegedly being unqualified to sit on one of the juries. The
R&R construes this claim as exhausted and analyzes it on
the merits. The R&R describes Petitioner as arguing the
juror was not a resident of Maricopa County and, therefore,
was ineligible to sit based on Arizona law. The R&R
concludes that is not a viable basis for federal habeas
relief. In his objections, Petitioner explains the R&R
misinterprets his argument. Petitioner explains he is not
arguing the juror's presence violated Arizona law but
that the juror's presence meant Petitioner was
“denied the right of a 12 person jury.” (Doc. 55
at 4). Regardless of Petitioner's exact claim, he is not
entitled to relief.
R&R correctly concludes Arizona law, not federal law,
required the trial jurors be residents of Maricopa County.
This argument likely is unexhausted but the Court can reject
the argument on its merits notwithstanding the exhaustion
issue. 28 U.S.C. § 2254(b)(2) (“An application for
a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”).
Petitioner has not cited any federal law imposing such a
residency requirement. Moreover, federal law states a
potential defect in a juror's qualification to sit does
not impact the validity of the verdict. Thus, even assuming
the juror was not qualified to sit based on residency, that
is not a basis for relief. See Kohl v. Lehlback, 160
U.S. 293, 301 (1895) (juror's lack of citizenship did not
violate federal constitution).
Petitioner's argument that the Sixth Amendment required a
twelve-person jury, that is incorrect. Again, this argument
likely is unexhausted but it is easiest to address it on the
merits. “[U]nder the Sixth Amendment to the United
States Constitution a defendant in a criminal case has a
right to a jury trial, but that does not even mean that a
state is required to use the traditional twelve-person jury.
Variations are permitted.” Lambright v.
Stewart, 191 F.3d 1181, 1184 (9th Cir. 1999). Provided a
criminal jury consisted of at least six persons, there is no
federal constitutional issue. Id. Under
Petitioner's own argument, his jury had eleven persons.
Therefore, even assuming Petitioner was only convicted by a
jury of eleven persons, that does not establish a violation
of his federal rights.
Ground Two-Aggravated Sentence
second ground for relief involves his belief that his
sentences violated federal law because the trial court's
sentencing decision was based on aggravating factors not
found by the jury. In addressing this argument, the Arizona
Court of Appeal explained why it was baseless: “The
obvious flaw in [Petitioner's] argument is that the trial
court did not impose any aggravated sentences; [Petitioner]
received a presumptive prison term on the manslaughter
conviction and mitigated prison terms on his other
convictions.” State v. Rushing, No. 1 CA-CR
09-0601, 2011 WL 5299384, at *7 (Ariz.Ct.App. Nov. 3, 2011).
The R&R believes this claim should be addressed on the
merits but agrees with the Arizona Court of Appeals there was
no sentencing error because Petitioner did not receive
objections, Petitioner seems to make two arguments. First, he
claims the trial court found aggravating circumstances that
“removed the possibility of receiving the minimum
sentence.” (Doc. 55 at 5). And second, the trial court
impermissibly found aggravating factors to justify imposition
of consecutive sentences. Neither argument is persuasive.
first argument, Petitioner has not established imposition of
a presumptive sentence violated his federal rights. Upon
being convicted of manslaughter, Petitioner was eligible for
the presumptive 10.5 year sentence. The trial court imposed
that sentence and the failure to impose less than the
presumptive raises no federal constitutional issue. In other
words, upon being convicted of manslaughter Petitioner was
exposed to a sentence of 10.5 years without the need for any
additional factual findings. The fact that Petitioner
received that sentence, instead of a lesser sentence, does
not violate federal law. Cf. Alleyne v. United
States, 133 S.Ct. 2151, 2160 (2013) (trier of fact must
find “any facts that increase the prescribed
range of penalties to which a criminal defendant is
exposed”) (emphasis added).
second argument, Petitioner claims the trial court found
aggravating circumstances and then relied on that to impose
consecutive, instead of concurrent, sentences. But the
decision whether to impose consecutive or concurrent
sentences is within the trial court's discretion.
State v. Cota, 272 P.3d 1027, 1043 (Ariz. 2012). And
there is no federal right to have that discretion exercised
in a particular way. Thus, the decision to impose consecutive
sentences is not a basis for relief.