United States District Court, D. Arizona
REPORT AND RECOMMENDATION
J. Markovich, United States Magistrate Judge
January 13, 2016 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
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.
FACTUAL AND PROCEDURAL BACKGROUND
County Superior Court jury found Petitioner guilty of second
degree murder. (Ex. D). 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.
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).
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.
First Petition for Post-Conviction Relief
March 15, 2011, Petitioner initiated proceedings in Pima
County Superior Court for Rule 32 post-conviction relief
(“PCR”). (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.
April 5, 2013 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.
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,  “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.
did not file a petition for review with the Arizona COA.
Second Petition for ...