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Will v. Ryan

United States District Court, D. Arizona

April 17, 2018

Robin P. Will, Petitioner,
v.
Charles Ryan, et al., Respondents.

          ORDER

          Honorable James A Soto United States District Judge

         Pending before the Court is Petitioner Robin P. Will's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Respondents have filed an Answer to the Petition for Writ of Habeas Corpus (“Answer”) (Doc. 13). Petitioner filed a reply (Doc. 14). The Petition is ripe for adjudication.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Trial

         The Arizona Court of Appeal stated the facts[1] as follows:

In March 2010, the victim, [Mr. Towne], was living with his girlfriend [Ms. Sperle]. Following an argument with [Ms. Sperle], [Mr. Towne] left in [Ms. Sperle]'s car. While [Mr. Towne] was away from the residence, [Ms. Sperle] telephoned [Petitioner] and asked him to come over. [Mr. Towne] returned home later that evening and attempted to enter. [Petitioner] opened the door, put a knife to [Mr. Towne]'s throat and ordered him to “drop the keys.” [Petitioner] kept the knife at [Mr. Towne]'s throat and, when [Mr. Towne] sat down on the couch, [Petitioner] cut his throat. [Mr. Towne] began to struggle with [Petitioner] and suffered additional cuts to his hand. [Ms. Sperle], who witnessed the attack, dialed 9-1-1 and told [Petitioner] to leave. [Mr. Towne] sought treatment for his injuries, which were not life-threatening.

Answer (Doc. 13), Ariz. Ct. of Appeals, Mem. Decision 05-10-2012 (Ex. “A”) at ¶ 2.

         On March 18, 2010, a Cochise County Grand Jury indicted Petitioner and charged him with Count I - Attempted First Degree Murder with premeditation, Count II - Aggravated Assault with a deadly weapon, Count III - Aggravated Assault causing serious physical injury, Count IV - Aggravated Assault causing serious physical injury, and Count V - Misconduct Involving Weapons by knowingly possessing a deadly or prohibited weapon by a prohibited possessor. Answer (Doc. 13), Appellant's Opening Brief (Ex. “H”) at 7. Counts III and IV were later dismissed and Count V was renumbered as Count III; hereafter the Court shall refer to this as Count III or the “prohibited possessor” count. Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise, Tr. 08-23-2010 (Ex. “C”) at 3:13-19.

         On the first day of trial, Petitioner requested “an order to disclose state's file or disclosure of file in reference to Jerry Towne, who was on trial last week and was convicted of a number of the counts in the Indictment, all but one.” Id. at 12:17-21. The court then put on the record “that the [S]tate is ordered to disclose the file on Mr. Towne.” Id. at 13:1-2. Mr. Towne had been convicted of several counts, including three felonies, the week prior. Id. at 12:19-21; Answer (Doc. 13), Pet. for Post-Conviction Relief (Ex. “N”) at 11.[2]

         On the second day of trial, Mr. Towne testified. Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise, Tr. 08-24-2010 AM (Ex. “D”) at 36. During his testimony, the State pointed out that Mr. Towne was “wearing jail clothes” and asked “have you been convicted of a felony?” Id. at 36:11-15. Petitioner's attorney did not ask Mr. Towne about his criminal record. See id. at 44-50.

         The State presented five witnesses in total: Detective Damian Barron, Jerry Towne, Megan Sperle, Deputy Weston Ress, and Detective Timothy Wachtel. Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise, Tr. 08-24-2010 AM (Ex. “D”) at 2, 88:15-17. Additionally, the State admitted various pictures and Petitioner's alleged knife. Id.

         After the close of evidence, Petitioner asked for several jury instructions, including justification of use of force in crime prevention and in defense of third parties.[3]Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise, Tr. 08-24-2010 PM (Ex. “E”) at 48:7-12. The court agreed to instruct the jury on defense of third parties and refused to instruct the jury regarding justification of use of force for crime prevention. Id. at 55:7-16, 58:14-59:5.

         During deliberation the jury asked, “does the term, ‘prohibited possessor' include a knife?” Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise, Tr. 08-25-2010 (Ex. “F”) at 21:4-5. The court directed the jury to review the instructions on the definition of a deadly weapon and misconduct involving weapons. Id. at 21:24-22:1.

         The jury found Petitioner not guilty on Count I - Attempted murder, and guilty on Count II - Aggravated Assault by using a deadly weapon or dangerous instrument (“Aggravated Assault”) and Count III - Misconduct Involving Weapons by knowingly possessing a deadly or prohibited weapon by a prohibited possessor (“Prohibited Possessor”). Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise, Tr. 08-26-2010 (Ex. “G”) at 2:16-3:16.

         On November 15, 2010, the court sentenced Petitioner to concurrent, presumptive terms of incarceration of 7.5 years on Count II and 10 years on Count III. Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise, Tr. 11-15-2010 (Ex. “J”) at 67:12-14.

         B. Direct Appeal

         On November 21, 2011, Petitioner filed his Opening Brief with the Arizona Court of Appeals. Answer (Doc. 13), Appellant's Opening Br. (Ex. “H”). Petitioner presented two issues on appeal. Id. at 6. Petitioner challenged “the trial court's refusal to instruct the jury on justification - crime prevention, ” and the sufficiency of the evidence for Petitioner's conviction for weapons misconduct. Id.

         Relying on Arizona state law, Petitioner asserted that Petitioner “came within the privilege of A.R.S. § 13-411, as well as its presumption of reasonableness, under the facts of this case.” Id. at ¶ 45. Further, Petitioner asserted that “[t]he failure to give [Petitioner]'s requested instruction was not harmless error. The facts of this case permitted the inference that [Petitioner] acted under the reasonable apprehension that a crime was going to occur in Ms. Sperle's home if Mr. Towne entered the home; that crime being an aggravated assault upon Ms. Sperle causing serious physical injury or perhaps even a homicide given Mr. Towne's earlier threats and his violent nature, both of which were known to [Petitioner].” Id. at ¶ 47. Finally, “[i]t cannot therefore be said beyond a reasonable doubt that had the Jury been instructed on justification - crime prevention, it would have convicted [Petitioner] of Aggravated Assault. He is, therefore, entitled to a new trial on the Aggravated Assault offense.” Id. at ¶ 52.

         On May 10, 2012, the Arizona Court of Appeals affirmed Petitioner's convictions. See Answer (Doc. 13), Ariz. Ct. of Appeals, Mem. Decision 05-10-2012 (Ex. “A”). The court rejected Petitioner's argument by stating that “[n]o evidence indicated that [Petitioner], at the time he put the knife to [Mr. Towne]'s throat, had reason to believe force was immediately necessary to prevent [Mr. Towne]'s commission of aggravated assault or murder of [Ms. Sperle]. . . . Thus, we cannot say the trial court abused its discretion in finding there was insufficient evidence that [Petitioner] reasonably believed he was acting to prevent an aggravated assault or murder, and that an instruction pursuant to § 13-411 therefore was not warranted.” Id. at ¶ 6 (footnotes omitted). The court also stated that there “was sufficient evidence from which the jury could conclude the knife was designed for lethal use.” Id. at ¶ 9.

         Petitioner appealed to the Arizona Supreme Court, who denied review in a minute order. See Answer (Doc. 13), Ariz. Supreme Ct., Min. Order 09-13-2012 (Ex. “L”).

         C. State Post-Conviction Relief Proceedings

         On December 3, 2012, Petitioner filed his Notice of Intent to File for Post-Conviction Relief (“PCR”). Answer (Doc. 13), Not. of Intent to File PCR (Ex. “M”). On August 9, 2013, Petitioner filed his Petition for PCR. Answer (Doc. 13), Pet. for PCR (Ex. “N”). Petitioner presented three arguments:

Argument I. [Petitioner's trial attorney] was ineffective in failing to file a motion to sever the prohibited possessor count from the remaining counts. [Petitioner] was prejudiced by trial counsel's failure because in order to prove the prohibited possessor count, the State had to introduce evidence of at least one of [Petitioner]'s prior convictions.

Id. at 7.

Argument II. At the time of trial Mr. Towne had five prior felony convictions and numerous misdemeanor convictions which were not disclosed prior to trial. The prosecutor committed misconduct in failing to disclose Mr. Towne's prior convictions and in eliciting misleading testimony from Mr. Towne about his prior convictions. [Petitioner's trial attorney] was ineffective in failing to investigate Mr. Towne's criminal history, in failing object to Mr. Towne's misleading testimony about his prior convictions and in filing an untimely motion to vacate judgment which the court was unable to rule on due to the untimeliness of the motion.

Id. at 11.

Argument III. Trial counsel was ineffective during closing arguments.

Id. at 17. Further, Petitioner argued prejudice and fundamental error resulting from the above errors. Id. at 20-24.

         Petitioner first argued that “[i]n order to present sufficient evidence to the jury to establish the elements of the Prohibited Possessor count, the State had to establish that [Petitioner] had a prior felony conviction . . . . Although the State alleged that [Petitioner] was a Prohibited Possessor, the fact that [Petitioner] did or did not possess a weapon illegally was not a fact necessary for the proof of the remaining counts.” Id. at 7-8. Further, “[t]here was no proper purpose for the admission of the evidence necessary to prove the Prohibited Possessor count at the trial on the remaining counts. Therefore, admission of such evidence violated [Petitioner]'s Due Process guarantees.” Id. at 10. Petitioner concluded his first argument by asserting that his trial counsel “was ineffective in failing to move to sever the Prohibited Possessor count from the remaining counts.” Id.

         Second, Petitioner argued that “[t]he Prosecutor committed misconduct by asking Mr. Towne a misleading question. The response to that question mislead the jury into believing that Mr. Towne only had one prior felony conviction.”[4] Id. at 11. “The Prosecutor . . . asked Mr. Towne, ‘. . . have you been convicted of a felony?' Mr. Towne responded, [‘][y]es, I have.'” Id. at 12 (second alteration in original). Additionally, Petitioner argued that “[t]he Prosecutor committed misconduct if he failed to disclose Mr. Towne's criminal history.”[5] Id. Petitioner argued that those acts of misconduct denied him his right to due process. Id. at 14. Next, Petitioner argued that his trial attorney was ineffective in failing to properly investigate Mr. Towne's criminal record. Id. at 15. Then, Petitioner argued that his trial attorney was untimely in filing a motion to vacate judgment based on new evidence regarding Mr. Towne's criminal history. Id. at 16. The trial court stated, “[t]he [c]ourt in considering arguments presented is disturbed with the non-disclosure of Mr. Towne's previous criminal history.” Id. (first alteration in original) (quoting ROA, Doc. 79). The court then found that it lacked the authority to extend the time to file a motion to vacate. Id.

         Finally, Petitioner argued that his “[t]rial counsel was ineffective during closing arguments.” Id. at 17. Petitioner argued that his trial counsel failed to sufficiently distinguish the knife in his case from a weapon “designed for lethal use, such as a saber.” Id. Additionally, Petitioner argued that his attorney should have presented the potential absurd results from finding that any knife was a deadly weapon. Id.

         On May 20, 2014, the Rule 32 court denied, in part, and granted, in part, Petitioner's PCR petition. Answer (Doc. 13), Superior Ct. for the State of Ariz. for the County of Cochise, Decision Re: Rule 32 Pet. 05-20-2014 (Ex. “S”). The Rule 32 court reversed and set aside Petitioner's conviction on Count II - Aggravated Assault. Id. at 7. The Rule 32 court did not reverse Petitioner's sole remaining conviction, the Prohibited Possessor count. See id.

         First, the Rule 32 court stated that trial counsel's decision to not file a motion to sever did not fall below the “strong presumption” that the assistance was effective and that the decision did not prejudice Petitioner. Id. at 3 (quoting Strickland v. Washington, 466 U.S. 611, 689 (1984)).

         Second, the Rule 32 court found that Petitioner “did not include in his appeal the issue of prosecutorial misconduct and has, therefore, waived such issue.” Id. at 4. The Rule 32 court considered the prejudice caused by counsel failing to timely investigate Mr. Thorne's criminal history and failing to timely alert the court to the State's failure to disclose. Id. at 5. The court stated:

Overall, as to the aggravated assault count, if the State's key witness had been further impeached with his two additional out-of-state felonies or if the [c]ourt had been timely requested to vacate the conviction for aggravated assault, there is more than a “mere possibility” that the jury would have more fully considered [Petitioner]'s justification defense and acquitted him of the charge. The State has failed to establish that, beyond a reasonable doubt, the above constitutional defect was “harmless”.
As to the prohibited possessor count, based on the [c]ourt's FINDING, in A above and the nature of the elements of such crime, the lack of disclosure of Mr. Towne's prior felonies or the inability to further impeach Mr. Towne is of no consequence. The evidence submitted by the State on this count did not depend on the credibility of Mr. Towne's testimony and stands separate from the evidence submitted on the aggravated assault. It is not necessary or appropriate to grant a new trial a6s to all counts when the State has failed to produce required Brady[6] evidence. [Arizona] v. Jones, 170 Ariz. 556, 560, 587 P.2d 742, 746 (Ariz. 1978). [Petitioner] failed to prove by a preponderance of the evidence, that trial counsel's performance as to the prohibited possessor count was deficient.

Id. at 6.

         Finally, the Rule 32 court considered trial counsel's effectiveness during the closing argument. The Rule 32 court found “that [Petitioner] has failed to prove that [trial counsels closing argument was deficient as measured by a reasonableness standard of prevailing professional norms.” Id. Additionally, the court reasoned that the jury had the knife in question and photographs of Mr. Thorne's injuries caused by the knife. Id. at 6-7.

         On June 19, 2014, Petitioner's counsel moved to withdraw because “he [saw] no legitimate issue upon which to file a Petition for Review.” Answer (Doc. 13), Mot. To Withdraw as Counsel for the Def and for Addditional (sic) Time for ...


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