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Ross v. Ryan

United States District Court, D. Arizona

July 2, 2018

Tiaron Germaine Ross, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Eric J. Markovich, United States Magistrate Judge

         On January 13, 2016[1] Petitioner Tiaron Germaine Ross filed a pro se petition for a Writ of Habeas Corpus (“PWHC”) pursuant to 28 U.S.C. § 2254 challenging his conviction for second degree murder. (Doc. 1). Petitioner raises one ground for relief, alleging that his Sixth Amendment right to effective assistance of counsel was violated when trial counsel: a) failed to prepare a defense; b) objected to a lesser included instruction on any theory of manslaughter; c) failed to advise Petitioner on how to prepare for cross examination and impeachment; and d) failed to call witnesses for the defense. Respondents filed an Answer contending that all of Petitioner's claims are procedurally defaulted without excuse and that Petitioner has failed to show cause and prejudice or a fundamental miscarriage of justice to excuse the default of his claims. Petitioner concedes that his claims are procedurally defaulted but alleges that they are not barred from habeas review pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).

         Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for a Report and Recommendation. The undersigned finds that Petitioner's claims are procedurally defaulted and barred from this Court's review. The undersigned further finds that Petitioner does not demonstrate cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default of his claims. Accordingly, the Magistrate Judge recommends that the District Court deny the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A Pima County Superior Court jury found Petitioner guilty of second degree murder. (Ex. D).[2] Petitioner was sentenced to 16 years imprisonment. Id. The Arizona COA summarized the facts of the case as follows:

In 2003, Ross and the victim, D.H., were standing in the front yard of the house where Ross lived. Following an argument, both Ross and D.H. drew their guns. Many shots were fired. Ross shot D.H. six times; he died at the hospital. Ross was not injured.
Nearly six years later, Ross was indicted for first-degree murder. During trial, Ross moved for a judgment of acquittal. The trial court granted his motion as to the first-degree murder charge but allowed the trial to proceed on the lesser-included offenses. Ross asserted the justification defenses of self-defense and crime prevention. The jury ultimately found him guilty of second-degree murder.

(Ex. I).

         Following his conviction, Petitioner sought review in the Arizona COA. Appointed counsel filed a brief presenting four issues for review: 1) the court had a duty to sua sponte instruct the jury on the lesser included offense of manslaughter; 2) the court erred and abused its discretion by refusing to instruct the jury on the law of being a prohibited possessor; 3) the court erred and abused its discretion by denying Petitioner's Rule 20 motion when the evidence supported that Petitioner acted in self-defense; and 4) the court erred and abused its discretion by denying Petitioner's motion for a new trial because the court failed to conduct extensive voir dire to determine the effect of the Loughner case on the jurors' objectivity. (Ex. F).

         The COA found no reversible error and affirmed Petitioner's conviction and sentence. (Ex. I). Petitioner did not file a petition for review with the Arizona Supreme Court.

         B. First Petition for Post-Conviction Relief

         On March 15, 2011, Petitioner initiated proceedings in Pima County Superior Court for Rule 32 post-conviction relief (“PCR”).[3] (Ex. K). Appointed counsel filed a notice stating that she was unable to find any colorable claims for relief to raise in a Rule 32 petition, and requested additional time for Petitioner to file a pro se petition. (Ex. O). On February 14, 2013 Petitioner filed a motion to expand page limitations (Ex. R) and a pro se Rule 32 petition. (Ex. S). Petitioner presented three issues for review: 1) IAC at trial, sentencing, direct appeal, and Rule 32; 2) newly discovered evidence; and 3) sentencing error. (Ex. S). Petitioner specifically alleged that his trial counsel was ineffective for failing to impeach the State's witnesses, failing to call witnesses for the defense, and failing to request a lesser included instruction on manslaughter. Id. On February 21, 2013 Petitioner filed a motion to supplement his newly discovered evidence claim. (Ex. T). On March 4, 2013 the trial court issued an order ruling that it would not consider Petitioner's Rule 32 petition because it exceeded the 25-page limit, and further denying Petitioner's motion to supplement his newly discovered evidence claim. (Ex. U). The court granted Petitioner leave to file a petition that complied with the length requirements by April 8, 2013.

         On April 5, 2013[4] Petitioner filed a motion for leave to exceed the page limit (Ex. V) and a Rule 32 supplemental brief (Ex. W). On April 12, 2013 the trial court issued an order denying Petitioner's motion for leave to exceed the page limit and dismissing Petitioner's June 12, 2012 notice of PCR. (Ex. X). The court noted that in its previous order dismissing Petitioner's first Rule 32 petition for exceeding the page limit, the court clearly stated that no amendments would be permitted except by leave of the court upon a showing of good cause, and that Petitioner had failed to show good cause to exceed the page limitation. Id.

         On April 23, 2013 Petitioner filed a motion for rehearing and a new Rule 32 petition that complied with the page limitation and asked the court to reinstate his Rule 32 proceedings. (Exs. Y & Z). Petitioner alleged claims for: 1) IAC of trial, appellate, and Rule 32 counsel; 2) exclusion of African Americans on the jury; 3) denial of right to a public trial; 4) sentencing error; and 5) newly discovered evidence. (Ex. Z). On May 9, 2013, the trial court summarily denied Petitioner's motion for rehearing. (Ex. AA). The court noted that while Petitioner's amended Rule 32 petition complied with the 25-page limit, it was filed on April 30, 2013, [5] “long after” the court's April 8, 2013 deadline, and Petitioner had not shown good cause for failing to file a proper amended petition in the allotted time. The court further noted that while Petitioner cited Coleman v. Thompson, 501 U.S. 722, 750 (1991), in support of his claim that failure to consider the Rule 32 petition would result in a fundamental miscarriage of justice, Coleman only applies to federal claims, and even if it did apply to PCR proceedings, Petitioner had failed to show cause and prejudice or a fundamental miscarriage of justice.

         Petitioner did not file a petition for review with the Arizona COA.

         C. Second Petition for ...


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