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Lebario v. Ryan

United States District Court, D. Arizona

December 12, 2017

Juan Jesus Lebario, Petitioner,
v.
Charles Ryan, et al., Respondents.

          ORDER

          Eric J. Markovich, United States Magistrate Judge

         Petitioner Juan Jesus Lebario filed an amended pro se petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for attempted first degree murder, aggravated assault with a deadly weapon, drive-by shooting, theft of a means of transportation, feeling from law enforcement, and criminal damage. (Doc. 11). Petitioner raises six grounds for relief: (1) due process and 14th amendment violations at trial where two witnesses made in-court identifications of Petitioner that were allegedly based on an unduly suggestive lineup; (2) 5th, 6th, and 14th amendment violations where the trial court precluded evidence that an officer took a photo of Petitioner that may have been sent to another officer before he identified Petitioner at the lineup; (3) 5th and 14th amendment violations where the trial court improperly considered Petitioner's use of a weapon as an aggravating factor at sentencing; (4) ineffective assistance of counsel (“IAC”) based on trial counsel's failure to file a motion for a new trial when exculpatory DNA evidence was found after trial; (5) violation of Petitioner's 5th amendment due process right to a fair trial because the DNA evidence constitutes newly discovered evidence regardless of the IAC issue; and (6) violation of Petitioner's 5th and 14th amendment due process rights where the trial court failed to hold an evidentiary hearing during the Rule 32 proceedings. Respondents filed an Answer contending that Petitioner failed to properly exhaust some of his claims and that they are procedurally barred without excuse, and that Petitioner's remaining claims that are properly exhausted are either without merit or not cognizable in federal habeas proceedings. (Doc. 17).

         The Court finds that Petitioner properly exhausted his claims in Grounds One and Two of the petition, but failed to show that the state court's decision was contrary to clearly established federal law, an unreasonable application of that law, or based on an unreasonable determination of the facts. The Court also finds that Petitioner properly exhausted his claims in Ground Four, but failed to show that the state court's decision was based on an objectively unreasonable application of Strickland v. Washington. As to Grounds Three, Five, and Six, the Court finds that these claims are unexhausted and procedurally defaulted and thus not properly before this Court 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 October 1, 2010, a Pima County Superior Court jury found Petitioner guilty of attempted first degree murder, aggravated assault with a deadly weapon, drive-by shooting, theft of means of transportation, fleeing from law enforcement vehicle, and criminal damage. (Doc. 17 Ex. B). Petitioner was sentenced to a combination of concurrent and consecutive terms totaling 50 years in prison. (Doc. 17 Ex. D).

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

Lebario stole a truck from M.B. at gunpoint. A witness, M.M., followed him, but Lebario soon stopped, got out of the truck, and pointed his gun at her, at which point she drove away. The following day, an Arizona Department of Public Safety (“DPS”) officer, K.L., saw the truck on the highway, verified it was stolen, and pursued it. K.L. attempted to stop the truck, but the driver, whom he later identified as Lebario, refused to stop. K.L. then pulled his patrol car up next to the truck and Lebario fired shots at him. Law enforcement officers continued to pursue the vehicle, and ultimately stopped and arrested Lebario.

(Doc. 17 Ex. G at 2).

         Following his conviction, Petitioner sought review in the Arizona COA. Appointed counsel filed a brief presenting three issues for review: (1) the trial court should have suppressed the two witnesses' in-court identifications because they were tainted by an unduly suggestive lineup procedure; (2) the trial court erred by precluding exculpatory evidence that a DPS officer took a cell phone photo of Petitioner which he may have sent to other officers before Lankow identified Petitioner as the person who shot at his patrol car; and (3) the trial court's use of the weapon involved in the attempted murder charge to aggravate Petitioner's sentence was improper under State v. Harvey and A.R.S. § 13-701(D)(2). (Doc. 17 Ex. F). On November 8, 2011, the COA found no reversible error and affirmed Petitioner's conviction and sentence. (Doc. 17 Ex. G).

         Petitioner filed a Petition for Review with the Arizona Supreme Court and presented three issues: (1) whether the witnesses' in-court identifications should have been suppressed because they were tainted by an unduly suggestive lineup; (2) whether Petitioner should have been allowed to present exculpatory evidence that an officer took a photo that might have been sent to Lankow; and (3) whether the COA should have remanded the case for resentencing rather than finding harmless error. (Doc. 17 Ex. H). The Arizona Supreme Court denied the Petition for Review. (Doc. 17 Ex. I).

         B. Petition for Post-Conviction Relief

         On November 2, 2010, Petitioner initiated proceedings in Pima County Superior Court for post-conviction relief (“PCR”). (Doc. 17 Ex. K). The trial court appointed counsel to represent Petitioner, and counsel filed the Rule 32 petition on October 23, 2012. (Doc. 17 Exs. L, M, & O). Petitioner raised three issues: (1) IAC based on trial counsel's failure to file a motion for new trial after exculpatory DNA evidence was found; (2) the DNA evidence constitutes newly discovered evidence regardless of the IAC issue; and (3) Petitioner is entitled to an evidentiary hearing because he has stated a colorable claim for relief for both IAC and newly discovered evidence. (Doc. 17 Ex. O). The trial court denied PCR on March 28, 2013. (Doc. 17 Ex. Q).

         Petitioner filed a petition for review with the Arizona COA and alleged abuse of discretion by the trial court for: (1) denying PCR based on the newly discovered DNA evidence; (2) denying PCR based on IAC; and (3) dismissing the Rule 32 Petition without holding an evidentiary hearing. (Doc. 17 Ex. R). On November 13, 2013 the COA issued its decision granting review and denying relief. (Doc. 17 Ex. S). Petitioner did not file a petition for review with the Arizona Supreme Court.

         C. Habeas Petition

         Petitioner filed his first Petition for Writ of Habeas Corpus (PWHC) in this Court on October 23, 2014, asserting three grounds for relief. (Doc. 1). The Court dismissed the Petition with leave to amend to identify the constitutional right allegedly violated in each ground. (Doc. 6). Petitioner subsequently filed his amended PWHC on April 20, 2015 and alleges six grounds for relief. (See pgs 1-2 above). Petitioner requests an evidentiary hearing and states that the ultimate issue is whether he received a just sentence.

         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. Additionally, if the petition includes a claim that was adjudicated on the merits in state court proceedings, federal court review is limited by section 2254(d).

         A. Exhaustion

         A state prisoner must exhaust his state remedies before petitioning for a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1) & (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by fairly presenting them to the state's highest court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“[t]o provide the State with the necessary opportunity, the prisoner must fairly present her claim in each appropriate state court . . . thereby alerting the court to the federal nature of the claim.”). In Arizona, unless a prisoner has been sentenced to death, the highest court requirement is satisfied if the petitioner has presented his federal claim to the Arizona COA, either through the direct appeal process or post-conviction proceedings. Crowell v. Knowles, 483 F.Supp.2d 925, 931-33 (D. Ariz. 2007).

         A claim is fairly presented if the petitioner describes both the operative facts and the federal legal theory upon which the claim is based. Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). The petitioner must have “characterized the claims he raised in state proceedings specifically as federal claims.” Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), opinion amended and superseded, 247 F.3d 904 (9th Cir. 2001). “If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). “Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion.” Hivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).

         However, “[a] habeas petitioner who [fails to properly exhaust] his federal claims in state court meets the technical requirements for exhaustion” if there are no state remedies still available to the petitioner. Coleman v. Thompson, 501 U.S. 722, 732 (1991). “This is often referred to as ‘technical' exhaustion because although the claim was not actually exhausted in state court, the petitioner no longer has an available state remedy.” Thomas v. Schriro, 2009 WL 775417, *4 (D. Ariz. March 23, 2009). “If no state remedies are currently available, a claim is technically exhausted, ” but, as discussed below, the claim is procedurally defaulted and is only subject to federal habeas review in a narrow set of circumstances. Garcia v. Ryan, 2013 WL 4714370, *8 (D. Ariz. Aug. 29, 2013).

         B. Procedural Default

         If a petitioner fails to fairly present his claim to the state courts in a procedurally appropriate manner, the claim is procedurally defaulted and generally barred from federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991). There are two categories of procedural default. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, the claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Id. at 735 n. 1; O'Sullivan, 526 U.S. at 848 (when time for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for post-conviction relief barred petitioner from returning to state court to exhaust his claims).

         When a petitioner has procedurally defaulted his claims, federal habeas review occurs only in limited circumstances. “A state prisoner may overcome the prohibition on reviewing procedurally defaulted claims if he can show cause to excuse his failure to comply with the state procedural rule and actual prejudice resulting from the alleged constitutional violation.” Davila v. Davis, 137 S.Ct. 2058, 2064 (2017) (internal quotations and citation omitted); Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012) (“A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.”). Cause requires a showing “that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule . . . [such as] a showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials made compliance impracticable.” Murray v. Carrier, 477 U.S. 478, 488 (1986) (internal quotations and citations omitted). Prejudice requires “showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). The Court need not examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir. 1991). Additionally, a habeas petitioner “may also qualify for relief from his procedural default if he can show that the procedural default would result in a ‘fundamental miscarriage of justice.'” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). This exception to the procedural default rule is limited to habeas petitioners who can establish that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327; see also Murray, 477 U.S. at 496; Cook, 538 F.3d at 1028.

         C. Adjudication on the Merits and § 2254(d)

         The Ninth Circuit has held that “a state has ‘adjudicated' a petitioner's constitutional claim ‘on the merits' for purposes of § 2254(d) when it has decided the petitioner's right to post-conviction relief on the basis of the substance of the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other rule precluding state court review of the merits.” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).

         If a habeas petition includes a claim that was properly exhausted, has not been procedurally defaulted, and was “adjudicated on the merits in State court proceedings, ” federal court review is limited by § 2254(d). Under § 2254(d)(1), a federal court cannot grant habeas relief unless the petitioner shows: (1) that the state court's decision was contrary to federal law as clearly established in the holdings of the United States Supreme Court at the time of the state court decision, Greene v. Fisher, 565 U.S. 34, 38 (2011); (2) that it “involved an unreasonable application of” such law, § 2254(d)(1); or (3) that it “was based on an unreasonable determination of the facts” in light of the record before the state court, 28 U.S.C. § 2254(d)(2); Harrington v. Richter, 562 U.S. 86 (2011). This standard is “difficult to meet.” Richter, 562 U.S. at 102. It is also a “highly deferential standard for evaluating state court rulings . . . which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (internal quotations and citation omitted).

         III. ANALYSIS

         A. Ground One

         In Ground One, Petitioner contends that his 14th amendment due process rights were violated when two witnesses were allowed to make in-court identifications of Petitioner after viewing an unduly suggestive lineup. Petitioner specifically alleges that prior to viewing the lineup, the witnesses watched news programs about the crimes and were told that Petitioner had been arrested. Petitioner also alleges that the lineup procedure was flawed because Petitioner was the only person wearing prison orange, Petitioner's photo was placed in the middle of the top row, the detective prepared the lineup himself, the lineup was not tested on mock witnesses, and the lineup was not recorded.

         Respondents concede that Petitioner has fully exhausted his claims in Ground One but contend that the claim has no merit. Respondents first note that the detective did not tell either witness that a suspect had been arrested until after they made their identifications, and further that neither witness saw any news reports about the crimes or Petitioner until after the lineup. Respondents next note that the COA found that Petitioner's orange t-shirt did not look like a prison uniform, and that both witnesses testified that they made their identifications based on Petitioner's face, not his clothing.

         Finally, Respondents note that the state courts applied an express procedural bar and declined to address the merits of Petitioner's arguments that the detective failed to follow the proper procedures and that he erred by placing Petitioner's photo in the center row. i. Law “When a witness identifies the defendant in a police-organized photo lineup . . . the identification should be suppressed only where ‘the photographic identification procedure was so [unnecessarily] suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'” Perry v. New Hampshire, 565 U.S. 228, 238 (2012) (quoting Simmons v. United States, 390 U.S. 377, 384-85 (1968)). “[D]ue process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary. Even when the police use such a procedure, . . . suppression of the resulting identification is not the inevitable consequence.” Id. at 238- 39 (citations omitted). “[T]he Due Process Clause requires courts to assess, on a case-by-case basis, whether improper police conduct created a substantial likelihood of misidentification.” Id. at 239 (internal quotations and citation omitted). “Where the indicators of a witness' ability to make an accurate identification are outweighed by the corrupting effect of law enforcement suggestion, the identification should be suppressed. Otherwise, the evidence (if admissible in all other respects) should be submitted to the jury.” Id. at 239 (internal quotations and citation omitted).

         “[R]eliability is the linchpin in determining the admissibility of identification testimony . . . .” Manson v. Brathwaite, 432 U.S. 98, 114 (1977). However, “[t]he due process check for reliability, Brathwaite made plain, comes into play only after the defendant establishes improper police conduct.” Perry, 565 U.S. at 241.[1] The due process check does not apply “to suspicion of eyewitness testimony ...


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