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Maytorena v. Ryan

United States District Court, D. Arizona

February 6, 2018

Cesar F. Maytorena, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE.

         On July 9, 2015, Petitioner Cesar F. Maytorena filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“§ 2254 Petition”). (Doc. 1.) On August 10, 2015, the Court ordered Respondents to answer the Petition. (Doc. 12.)[1] On November 23, 2015, Respondents filed an Answer limited to affirmative defenses. (Doc. 22.) Petitioner filed a Reply on April 22, 2016. (Doc. 28; see also Doc. 29.) On September 10, 2016, Petitioner filed a memorandum titled Supplemental Case Law. (Docs. 30, 31.) Respondents filed a Response to the Supplemental Case Law (Doc. 37), Petitioner filed a Reply (Doc. 40), and Respondents filed a Surreply (Doc. 49).

         I. Factual & Procedural Background

         A. Trial and Appeal

         Petitioner was found guilty after a jury trial of second-degree murder, eight counts of aggravated assault, and six counts of endangerment. (Doc. 1-2 at 26.)[2] The trial court sentenced him to aggravated, concurrent and consecutive prison terms totaling 145 years. (Id.) Petitioner was represented by attorney Eric Larsen during his trial and sentencing. The Arizona Court of Appeals summarized the facts established at trial as follows:[3]

The charges stemmed from two shooting incidents involving [Petitioner] and his friends and the victim, A., and his friends. The first incident began with a fist fight between the two groups in Rodeo Park in December 1998. As the fight ended and the parties began to disperse, [Petitioner] fired a shotgun at a car belonging to a member of the other group, leaving a large hole in the driver's-side door.
The second incident occurred a few days later on New Year's Eve. [Petitioner] celebrated the new year at a friend's house by drinking alcohol with his group of friends and firing shots into the air at midnight. At the same time, A. and his friends were celebrating by drinking alcohol and firing shots into the air at a New Year's Eve party in the back yard of a friend's house.
At some point during the evening, [Petitioner] and his friends drove to a local convenience store where they saw A. and his friends in two cars. After exchanging accusations about a prior shooting incident between them, the two groups drove away. With first one car leading and then another, the two groups fired multiple gunshots at each other before separating and returning to their respective parties. At around 3:45 a.m., [Petitioner] and a friend drove to the New Year's Eve party A. was attending. Shots were fired into the crowd, killing A and wounding seven others.

(Id. at 26-27.)

         On appeal, Petitioner-represented by attorney R. Lamar Couser-presented the following issues:

1. The trial court erred in holding an in camera, ex parte hearing with the prosecutor.
2. The trial court deprived Petitioner of his right to a speedy trial by granting a continuance due to the assigned prosecutor's unavailability, which is a legally inadequate excuse in light of the size of the County Attorney's staff.
3. The State committed prosecutorial misconduct by improperly molding the testimony of witnesses Omar Johansen and Ernesto Santa Maria through threats of prosecution for perjury.
4. The trial court deprived Petitioner of a fair and impartial judge and a fair trial by badgering witnesses Omar Johansen and Ernesto Santa Maria, accusing them of perjury and threatening them with contempt and/or prosecution.
5. The trial court erred in denying a mistrial after the State elicited testimony that witness DeAngelo Rivera had met Petitioner at the Department of Corrections.
6. The trial court erred in denying Petitioner's motion for judgment of acquittal as to counts 2, 3, and 4.

(See Doc. 22-1 at 3-106.)

         On April 30, 2003, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 1-2 at 25-41.) The appellate court found that the trial court's ex parte conference with the prosecutor did not comply with Arizona's Code of Judicial Conduct but that it did not require reversal of Petitioner's convictions because Petitioner had not established that the error was prejudicial. (Id. at 27-30.) The appellate court similarly rejected Petitioner's speedy trial claim for failure to establish prejudice. (Id. at 30-31.) The appellate court found that the prosecutor's conduct in relation to witnesses Johansen and Santa Maria was consistent with her ethical duties. (Id. at 38.) Although the appellate court criticized the trial court's lengthy admonitions of those witnesses, it found that the admonitions “were neither coercive nor personally threatening” and therefore did not require reversal. (Id. at 31-37.) The appellate court found no abuse of discretion in the trial court's denial of Petitioner's motion for mistrial (id. at 38-39) and no error in the trial court's denial of Petitioner's motion for judgment of acquittal (id. at 40-41).

         The Arizona Supreme Court summarily denied review on December 5, 2003. (Doc. 1-2 at 43.) Petitioner did not file a petition for writ of certiorari in the United States Supreme Court. The Arizona Court of Appeals issued its mandate on March 2, 2004. (Doc. 1-2 at 45.)

         B. State Post-Conviction Proceedings

         On May 11, 2001, Petitioner-represented by attorney R. Lamar Couser-filed a petition for post-conviction relief (“PCR Petition”) under Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 22-2 at 14-34.) In the PCR Petition, Petitioner argued that he was entitled to PCR relief by virtue of an in camera, ex parte hearing conducted by the trial judge with the prosecutor. (Id.) The Pima County Superior Court summarily denied post-conviction relief on November 19, 2001. (Doc. 1-2 at 49.) Petitioner did not file a petition for review of that decision in the Arizona Court of Appeals. (Doc. 1 at 10, 24.)

         On April 14, 2011, Petitioner-represented by attorney Thomas Higgins-filed a memorandum in support of Rule 32 PCR Petition. (Doc. 1-4 at 4-37.) Because there was no PCR Petition pending, the trial court ordered Petitioner's counsel to clarify the situation. (Doc. 22-2 at 66-67.)[4] On July 15, 2011, Petitioner filed a PCR Notice and PCR Petition. (Doc. 1-4 at 39-46; Doc. 22-2 at 67, 71-77.) On August 11, 2011, the Pima County Superior Court found that the PCR Petition was untimely under Rule 32.4(a) of the Arizona Rules of Criminal Procedure and gave Petitioner 60 days to file a new petition containing arguments addressing timeliness. (Doc. 22-2 at 66-68.) Petitioner filed a supplemental memorandum in support of his claims (Doc. 1-4 at 48-69) and later filed a new PCR Petition and supporting memorandum through current counsel, Stanley Bloom (Doc. 1-5 at 4-62; Doc. 1-6 at 1-21). Petitioner raised claims of ineffective assistance of trial counsel at the plea bargaining stage (Doc. 1-5 at 17-20); ineffective assistance of trial counsel for failing to object to Petitioner's statements to police and failing to move for redaction of the statements (id. at 21-33); ineffective assistance of trial counsel for failing to prevent testimony that DeAngelo Rivera met Petitioner in prison and for mishandling a related motion for mistrial (id. at 34-37); ineffective assistance of trial counsel for failing to object to improper prosecutorial closing argument (id. at 38-42); ineffective assistance of trial counsel for failing to object to erroneous jury instructions (id. at 42-46); ineffective assistance of trial counsel at sentencing (id. at 46-59); and an assortment of additional, miscellaneous ineffective assistance of counsel claims (id. at 59-62; Doc. 1-6 at 1-21).

         The Pima County Superior Court dismissed Petitioner's PCR Petition as untimely and successive. (Doc. 1-7 at 4-11.) The court later denied reconsideration of its decision. (Doc. 1-7 at 12-16.)

         The Arizona Court of Appeals granted review but denied relief in a memorandum decision filed on May 16, 2014. (Doc. 1-7 at 18-22.) The appellate court recognized that, pursuant to State of Arizona v. Bennett, 146 P.3d 63 (Ariz. 2006), ineffective assistance of appellate counsel claims can be raised in a successive Rule 32 proceeding if the defendant was represented by the same counsel both on appeal and in his first Rule 32 proceeding. (Doc. 1-7 at 20.) However, the court held that Bennett did not apply to Petitioner's second PCR Petition because the Petition was patently untimely. (Id.) The appellate court found that the untimeliness of the Petition precluded review of Petitioner's ineffective assistance of counsel claims, and it rejected Petitioner's claims under Rule 32.1(f) and 32.1(h). (Id. at 20-22.)

         The Arizona Supreme Court summarily denied review on January 6, 2015, although Vice Chief Justice Pelander voted to grant review. (Doc. 1-7 at 24.)

         C. Petitioner's Federal Habeas Petition

         Petitioner filed the currently pending habeas Petition pursuant to 28 U.S.C. § 2254 on July 9, 2015. (Doc. 1.) The Petition raises the following claims:

1. The Arizona courts erroneously denied Petitioner the right to challenge the ineffectiveness of his ...

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