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Hales v. Ryan

United States District Court, D. Arizona

March 6, 2018

Donny Allen Hales, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          Honorable Rosemary Marquez United States District Judge.

         Pending before the Court is Petitioner Donny Allen Hales's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“§ 2254 Petition”). (Doc. 1.) Respondents filed a Limited Answer (Doc. 15) on June 30, 2016, and Petitioner filed a Reply (Doc. 27) on August 9, 2016.[1]

         I. Background and Procedural History

         Petitioner was convicted by a jury of disorderly conduct, unlawful discharge of a firearm in city limits, aggravated assault with a deadly weapon, and kidnapping. (Doc. 16-1 at 2; Doc. 16-2 at 2; Doc. 21-2 at 3.)[2] The jury also found beyond a reasonable doubt that Petitioner was on parole when he committed the offenses. (Doc. 16-2 at 3.) After the jury trial, Petitioner pled guilty to possession of a deadly weapon by a prohibited possessor, a charge which had been severed from the others. (Doc. 16-1 at 3; 16-3 at 2.) Petitioner's convictions stemmed from an incident outside a restaurant in which Petitioner, armed with a gun, physically pulled and shoved his estranged girlfriend into his truck. (Doc. 16-1 at 3.) The State presented evidence that Petitioner had grabbed his estranged girlfriend's hair, dragged her outside, hit her repeatedly, pointed his gun at her, and threatened to kill her. (Id.)[3] Judge Christopher Browning sentenced Petitioner to concurrent terms, the longest being 15.75 years. (Doc. 16-1 at 2-3; Doc. 16-4 at 3-6; Doc. 21-2 at 3.)

         Petitioner timely appealed, arguing that the trial court abused its discretion in failing to give a Willits [4] instruction; that there was insufficient evidence to support Petitioner's kidnapping and aggravated assault convictions; and that the jury's on-parole finding was deficient as a matter of law. (Doc. 16-6 at 3-4, 7, 16-38.) Petitioner's argument concerning the Willits instruction was premised on the alleged existence of a surveillance videotape from the restaurant at which the incident occurred. (Id. at 17-18.) The Arizona Court of Appeals affirmed Petitioner's convictions and sentences in a memorandum decision filed on May 24, 2012. (Doc. 16-1.) In rejecting Petitioner's argument that the trial court abused its discretion in failing to give a Willits instruction, the Court of Appeals found that Petitioner had failed to show that the alleged surveillance videotape was exculpatory; the court also discussed testimony indicating that the State never had the alleged surveillance videotape in its possession. (Id. at 6.) The Court of Appeals affirmed the trial court's denial of a judgment of acquittal on the kidnapping and aggravated assault charges, finding that substantial evidence supported Petitioner's convictions on those charges. (Id. at 7-12.) Finally, the Court of Appeals found that Petitioner had technically not been on parole at the time of the offenses but that Petitioner could not show prejudice to entitle him to relief under the fundamental error standard of review because, if he had raised the error at trial, the State could have proven that Petitioner was on community supervision at the time of the offenses. (Id. at 12-14.) Petitioner did not seek review in the Arizona Supreme Court, and the trial court issued its mandate on August 17, 2012. (Doc. 17-3.)

         Petitioner filed a Notice of Post-Conviction Relief (“PCR”) on August 23, 2012. (Doc. 17-4.) PCR Counsel was appointed (Doc. 17-5), and Petitioner filed his PCR Petition on May 13, 2013 (Doc. 17-7), raising three ineffective-assistance-of-counsel claims. Petitioner argued that trial counsel was ineffective in failing to demonstrate the necessity of a Willits instruction, failing to assure compliance with Petitioner's speedy trial rights, and failing to adequately advise Petitioner with respect to his decision to testify at trial. (Id. at 4-12) The trial court denied post-conviction relief (Doc. 19-5), and the Arizona Court of Appeals granted review but denied relief (Doc. 21-2). The Court of Appeals held that, given the speculative nature of Petitioner's alleged entitlement to a Willits instruction, and the strength of the evidence against him, Petitioner had not shown that he was prejudiced by trial counsel's performance with respect to the request for a Willits instruction. (Doc. 21-2 at 4-6.) The Court of Appeals also found that Petitioner had failed to demonstrate prejudice from trial counsel's alleged failure to safeguard Petitioner's speedy trial rights. (Id. at 6-7.) Finally, the Court of Appeals agreed with the trial court that the record contradicted Petitioner's arguments concerning trial counsel's alleged failure to adequately advise him regarding his decision to testify, and that Petitioner had not demonstrated prejudice from any deficient advice. (Id. at 7-8.) The Arizona Supreme Court summarily denied review on August 12, 2014. (Doc. 22-2.)

         II. Discussion

         Because Petitioner's federal habeas Petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this case is governed by AEDPA. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001).

         In their Limited Answer, Respondents argue that Petitioner's § 2254 Petition is barred by AEDPA's one-year statute of limitations, that Petitioner's claims are not cognizable on federal review, and that two of the claims are procedurally defaulted.

         A. Timeliness

         1. Legal Standard

         A one-year period of limitation applies to petitions for writ of habeas corpus filed by persons in custody pursuant to the judgment of a state court. 28 U.S.C. § 2244(d)(1). AEDPA's one-year limitation period runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

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