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Glaser v. Ryan

United States District Court, D. Arizona

April 30, 2018

Marco Antonio Glaser, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          ERIC J. MARKOVICH UNITED STATES MAGISTRATE JUDGE

         Petitioner Marco Antonio Glaser filed a pro se Petition for a Writ of Habeas Corpus (“PWHC”) pursuant to 28 U.S.C. § 2254 on December 14, 2016.[1] (Doc. 1). Petitioner raises four grounds for relief: (1) ineffective assistance of counsel (“IAC”) based on counsel's failure to object to the jury seeing Petitioner in shackles and abuse of discretion by the trial court for allowing the jury to see Petitioner in shackles; (2) IAC based on counsel's failure to strike a juror who knew one of the witnesses; (3) IAC when counsel left the trial to attend another hearing, left due to illness, and told irrelevant stories during closing argument; and (4) the trial court committed fundamental error by allowing the jury to see Petitioner in shackles, by failing to strike the juror for cause, and by sending unadmitted exhibits to the jury and then refusing to grant a mistrial. (Doc. 1). Respondents filed an Answer contending that the PWHC is untimely, and further that all of Petitioner's claims are procedurally defaulted without excuse. (Doc. 10). Petitioner did not file a reply.

         Also pending before the Court is Petitioner's Motion to Withdraw Waiver of Article III Review by Magistrate Judge and for Leave to File First Amended Petition Proceeding Under 28 U.S.C. § 2254. (Doc. 13). Petitioner alleges that the government failed to file a complete and cognizant answer to his petition and that the undersigned failed to issue a disposition on the petition within 180 days. Petitioner's proposed amended petition states additional claims for insufficient evidence, error by the trial court for allowing a witness to testify to hearsay statements, IAC based on the unadmitted exhibits being mistakenly admitted to the jury deliberation room, and structural error by the trial court because the trial judge gave the same jury instructions that were used in Petitioner's first trial, which was a death penalty case. (Doc. 14).

         The Court concludes that Petitioner's PWHC is untimely and that Petitioner has not shown that he is entitled to statutory or equitable tolling. Accordingly, the petition will be denied. The Court further finds that granting Petitioner leave to file an amended petition would be futile because the original petition is untimely. Finally, there is no absolute right to withdraw a valid consent to a magistrate judge and Petitioner's request to reassign this matter to a district judge is denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A Pima County Superior Court jury found Petitioner guilty of two counts of first degree murder and three counts of aggravated assault. (Doc. 7 Ex. B). On April 11, 2011, Petitioner was sentenced to two terms of life imprisonment for the murders and three concurrent sentences of 7.5 years for the aggravated assault charges, to run consecutively with the natural life sentences. Id.

         The Arizona Court of Appeals (“COA”) summarized the facts of the case (Doc. 7 Ex. G) as noted in Respondent's Answer (Doc. 7 at 4-5). All parties are familiar with the facts and for brevity's sake the Court will not repeat them here.

         Following his conviction, Petitioner sought review in the Arizona COA. (Doc. 7 Ex. C). Appointed counsel filed a brief presenting two issues for review: 1) insufficient evidence to find premeditation for first degree murder and 2) the trial court erroneously permitted a witness to testify to hearsay statements. (Doc. 7 Ex. D). On August 31, 2012, the COA found no reversible error and affirmed Petitioner's conviction and sentence. (Doc. 7 Ex. G).

         Petitioner filed a petition for review with the Arizona Supreme Court on September 26, 2012. (Doc. 7 Ex. H). In addition to the claims Petitioner raised in his brief on direct appeal, Petitioner also raised a new claim that no physical or substantial evidence connected him to the crime scene and that he was innocent. Petitioner filed a second petition for review with the Arizona Supreme Court on September 27, 2012 (Doc. 7 Ex. I) and a third petition for review on September 28, 2012 (Doc. 7 Ex. J). All three petitions presented the same claims. On February 15, 2013 the Arizona Supreme Court denied all three petitions for review. (Doc. 7 Ex. K). Petitioner did not file a petition for review with the United States Supreme Court.

         A. First Petition for Post-Conviction Relief

         On February 17, 2013, Petitioner initiated proceedings in Pima County Superior Court for post-conviction relief (“PCR”). (Doc. 7 Ex. L). On February 17, 2014, Petitioner's appointed counsel filed an Anders brief stating that she had searched the record and found no errors or arguable questions of law, and asked the court to review the record for fundamental error. (Doc. 7 Ex. M). Counsel further noted that Petitioner raised three IAC claims for relief and requested that Petitioner be given additional time to file a pro se petition: 1) counsel failed to request a mistrial based on a witness knowing a juror; 2) counsel failed to cross-examine Petitioner's sister and her motives for testifying against him; and 3) counsel failed to delineate the lack of physical evidence against Petitioner in his closing argument.

         On June 4, 2014, the trial court issued an order denying Petitioner's second request for an extension of time to file a pro se petition and summarily dismissed the PCR petition pursuant to Ariz. R. Crim. P. 32.6(c). (Doc. 7 Ex. N). Petitioner did not file a petition for review with the Arizona COA.

         B. Second Petition for Post-Conviction Relief

         On July 3, 2014 Petitioner filed a second notice of PCR. (Doc. 7 Ex. O). Petitioner alleged newly discovered material facts and stated that the failure to timely file a petition in his first PCR proceedings was not his fault because appointed counsel filed an Anders brief and Petitioner's second request for more time was denied and he did not have access to case law. Petitioner alleged three claims for relief: 1) a jury member knew a witness; 2) the jury saw Petitioner in shackles; and 3) abuse of discretion by the trial court.

         On July 24, 2014 the trial court issued an order dismissing Petitioner's second notice of PCR as successive and untimely pursuant to Ariz. R. Crim. P. 32.4(a). (Doc. 7 Ex. P). The court further held that Petitioner failed to identify a specific exception or meritorious reason substantiating his claim and that he failed to state a colorable claim for relief, thus no further proceedings were warranted. Id. (citing Ariz. R. Crim. P. 32.2(b)).

         On August 5, 2014 Petitioner filed a petition for review with the Arizona COA. (Doc. 7 Ex. Q). The COA issued a memorandum decision on November 14, 2014, granting review and denying relief. (Doc. 7 Ex. R). The court noted that Ariz. R. Crim. P. 32.1(f) did not apply to Petitioner's case because that rule only applies to of-right, direct appeals, and further would not apply because Petitioner's first PCR notice was timely. The COA agreed with the trial court that Petitioner had failed to show why the claims in his second PCR notice were not precluded under Rule 32.2(b), and therefore concluded that the trial court properly dismissed Petitioner's second PCR notice.

         Petitioner then filed a petition for review with the COA on November 18, 2014, asking the court to reconsider its decision, and alleging that he had provided proof of IAC and abuse of discretion by the trial court. (Doc. 7 Ex. S). Petitioner also filed a petition for review with the Arizona Supreme Court on December 8, 2014. (Doc. 7 Ex. T). Petitioner stated that he was unable to timely file his first PCR petition due to limited access to legal materials, and alleged claims of newly discovered material facts under Ariz. R. Crim. P. 32.1(e) and IAC. On May 26, 2015 the Arizona Supreme Court issued an order denying the petition for review. (Doc. 7 Ex. V).

         C. Third Petition for Post-Conviction Relief

         On July 27, 2015, Petitioner filed his third notice of PCR. (Doc. 7 Ex. W). The PCR petition alleged claims for IAC, denial of Petitioner's right to a fair trial, and abuse of discretion by the trial court. (Doc. 7 Ex. X). On September 9, 2015, the trial court issued an order denying Petitioner's request for counsel and a new trial, and dismissing Petitioner's third PCR notice. (Doc. 7 Ex. Y). The court noted that while Petitioner alleged that his first two PCR notices were incorrectly filed because he did not have counsel, Petitioner did have counsel for his first PCR proceeding but failed to file a pro se petition. The court also noted that Petitioner never filed a petition in the second proceeding and that his second PCR notice was untimely and dismissed. The court held that Petitioner failed to set forth the substance of any specific exception under Ariz. R. Crim. P. 32.2(b) under which his third PCR should be allowed to go forward, and further that Petitioner failed to give any meritorious reasons substantiating his claims or explaining why his claims were not timely filed in his prior PCR proceedings. The court also held that the claims ...


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