United States District Court, D. Arizona
Honorable Deborah M. Fine United States Magistrate Judge.
Dickinson filed a Petition for Writ of Habeas Corpus
(“Petition”), challenging his convictions and
sentences in Mohave County Superior Court. Because the Court
has concluded that it is likely to recommend that Dickinson
is entitled to relief under Martinez v. Ryan, 566
U.S. 1 (2012), the Court will order supplemental briefing on
the merits of the Petition's ineffective assistance of
trial counsel claim.
was run over by a truck and sustained multiple injuries.
According to a witness, Dickinson drove the truck and injured
C.H. deliberately because of a falling out they had had.
Based on that theory of the case, Dickinson was indicted in
Mohave County Superior Court for attempted second degree
murder and other felonies.
case proceeded to trial where C.H. testified that when he and
Dickinson had a confrontation at someone's house,
Dickinson “was telling me he's going to kill me,
and all this stuff, you know, and he cussed me and called me
names.” (Doc 6-2 at 56:11-13) The homeowner testified
that “they were both threatening each other” and
he broke up the fight. (Doc. 6-2 at 94:12) Later, Dickinson
told the homeowner “jokingly” that he was going
to run over C.H. (Doc. 6-2 at 98:24, 110:19)
testified that shortly thereafter, he was hit by a truck that
he recognized at Dickinson's. (Doc. 6-2 at 56-60) C.H.
testified that Dickinson smiled at him and the “next
thing I know, he revved up his motor and he shot towards me.
And I remember what happened. He hit the back of my bike, he
had spun me all the way around about ten feet in the first. I
landed on the dirt.” (Doc. 6-2 at 60:11-14) C.H.
testified that he got up and then the truck hit his bike from
behind and if the truck “would have turned two or three
feet, he would have totally hit me; but he didn't do
that.” (Doc. 6-2 at 61:8-10) C.H. testified that he
“felt threatened, seriously threatened, because-because
you know, at first I thought he was going to drive by, you
what I mean; but the first time he clipped me and he had that
look in his face like, you know, he was going to kill me,
man, he was going to kill me, and I seen that on his
face.” (Doc. 6-2 at 68-69)
did not testify, called no witnesses, and argued that this
was a case of mistaken identity. During the discussion about
jury instructions, conducted without the jury present, the
Superior Court described attempted second degree murder to
counsel as “conduct [that] will cause death or serious
physical injury.” (Doc. 6-3 at 112:11-13) Later, the
Judge told the lawyers, “I wouldn't be shocked if
they didn't find [him guilty of attempted second degree
murder]; but I believe there's sufficient evidence to
allow the case to go forward on the charge of attempted
second degree murder.” (Doc. 6-3 at 113:1-4)
Subsequently, the Judge informed the parties that he had
drafted the jury instruction. (Doc. 6-3 at 127-129) As relevant
here, the Dickinson's trial counsel did not object to the
attempted second degree murder jury instruction. (Doc. 6-3 at
Court read the following to the jury:
The crime of attempted second degree murder has three
elements. In order to find the defendant guilty of attempted
second degree murder, you must find that, number one, the
defendant intentionally did some act; and number two, the
defendant believed such act was a step in the course of
conduct planned to culminate in the commission of the crime
of second degree murder; and number three, the defendant did
so with the mental state required for the commission of the
crime of second degree murder.
It is not necessary that you find that the defendant
committed the crime of second degree murder; only that he
attempted to commit such crime.
The crime of second degree murder has the following elements:
Number one, the defendant caused the death of another person;
and number two, the defendant either, A, did so intentionally
or, B, knew that his conduct would cause death or
serious physical injury.
added). (Doc. 6-3 at 145:17-20)
end of a three day trial in Mohave County Superior Court, a
jury found Dickinson guilty of multiple felonies, including
attempted second degree murder. (Doc. 6-3 at 211, Ex. E)
Subsequently, Dickinson was sentenced to consecutive
sentences totaling 14 years. (Doc. 6-4 at 21-26)
direct appeal to the Arizona Court of Appeals, Dickinson was
represented by counsel who argued only that the attempted
second degree murder jury instruction was incorrect as a
matter of law. (Doc. 6-4 at 76, Ex. L) Because
Dickinson's trial counsel had not objected to the jury
instruction, the Court of Appeals reviewed for fundamental
error. (Doc. 6-4 at 149, Ex. O at ¶ 10) Under
fundamental error analysis, Dickinson had “the burden
to establish that “(1) error exists, (2) the error is
fundamental, and (3) the error caused him prejudice.”
(Doc. 6-4 at 149, Ex. O at ¶ 10) First, the Court of
Appeals concluded that the jury instruction was erroneous
because, under Arizona law, ...