United States District Court, D. Arizona
J. MARKOVICH UNITED STATES MAGISTRATE JUDGE
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. (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.
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).
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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).
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
First Petition for Post-Conviction Relief
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.
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
Second Petition for Post-Conviction Relief
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
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)).
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.
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.
Third Petition for Post-Conviction Relief
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 ...