Espinoza v. Attorney General of Arizona

          HON. JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          Hon. John Z. Boyle, United States Magistrate Judge

         Petitioner Jorge A. Espinoza has filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 8.)

         I. Summary of Conclusion.

         Petitioner raises four grounds for relief in his timely Petition. Petitioner alleges juror bias, ineffective assistance of counsel, and insufficient evidence to sustain his convictions. Petitioner's claims are meritless. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

         II. Background.

         A. Facts of the Crimes.

         The Arizona Court of Appeals found:

Around 4:30 p.m. on May 6, 2013, Espinoza began his shift as a commercial truck driver hauling petroleum products. After completing a pre-trip inspection of the tanker truck, he began driving from Yuma to Phoenix. At the same time, emergency personnel and various officers with the Arizona Department of Public Safety (DPS) responded to an unrelated single-vehicle rollover accident on eastbound Interstate 8 outside of Yuma.

At the accident scene, Officer Tim Huffman reported to Captain Anderson that a teenage girl was texting on her cell phone when she rear-ended another vehicle, causing her to lose control and roll over onto the shoulder. The local fire department had arrived to provide emergency assistance. The girl was airlifted to the hospital, and Huffman asked Anderson to block the far right lane of travel so the occupants of the other involved vehicle could be safely loaded into the waiting ambulance.

Captain Anderson backed up his patrol vehicle approximately one hundred and fifty feet, parked diagonally across the outside lane with his emergency lights activated, and, wearing his DPS-issued reflective vest, manually directed drivers to merge left, away from the accident scene. Officer Simpson stood in the outside lane farther down the highway to prevent motorists from moving back into the right lane too soon. By this time, several vehicles driven by individuals working at the accident scene were lined up on the shoulder of the highway, including one involved in the original accident, plus an ambulance, a fire truck, three DPS patrol vehicles, and the ambulance company chief's personal pick-up truck, all of which were equipped with and operating their emergency lights.

It was a clear day, and traffic was complying with Captain Anderson's direction to merge left. After a few minutes, Anderson and Officer Simpson observed a commercial tanker truck approaching the accident scene in the outside lane. When the driver did not respond to Anderson's direction to merge left, Anderson became frantic, “jumping up and down and waiving [his] arms trying to get [the driver's] attention.” At some point, Anderson realized the truck driver could not respond in time to avoid a collision and ran off the road just in time to avoid being hit. Both Anderson and Simpson testified the driver never looked up, never slowed down, and never took any evasive action.

Immediately thereafter, there was a “tremendous explosion … like a train, a freight train came through there” as the twelve-ton tanker truck, still traveling sixty-five miles per hour, collided first with Captain Anderson's patrol vehicle and then with Officer Huffman's patrol vehicle. Officer Simpson, as well as emergency medical personnel on scene, including Barry A., John N., Cody P., and Donald P., all testified they heard the noise and watched as the truck skidded sideways toward them, jackknifed, and crushed the pick-up truck and Simpson's patrol vehicle into the fire truck, throwing up a cloud of dust and debris. Anderson quickly discovered Huffman in his patrol vehicle - now an unrecognizable “mangled ball of metal” - gasping for breath and crushed against the dashboard. Huffman died from blunt force trauma and internal injuries before he could be extricated from the vehicle. The tanker truck contained volatile gasoline fumes, and the scene was closed for more than six hours while the hazmat team worked to evaluate and eliminate the attendant dangers before further investigation took place.

State v. Espinoza, 2016 WL 3264113, at *1 (Ariz.Ct.App. 2016).^[1]

         B. Jury Trial and Sentencing.

         After a jury trial, Petitioner was convicted of Negligent Homicide, six counts of Endangerment, and six counts of Criminal Damage. (Doc. 17-1, Ex. C, at 24-25.) The court sentenced Petitioner to 6 years of imprisonment. Espinoza, 2016 WL 3264113, at *3.

         C. Direct Appeal.

         On June 14, 2016, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 8, Ex. C, at 15-18.)

         D. Petitioner's Post-Conviction Relief Proceeding.

         Petitioner did not initiate post-conviction review proceedings. (Doc. 8 at 3.)

         E. Petitioner's Federal Habeas Petition.

         On July 17, 2017, Petitioner filed a Petition. (Doc. 1.) On August 25, 2017, Petitioner filed Arguments in support of the Petition. (Doc. 3.) On October 26, 2018, the Court dismissed the Petition because “Petitioner has not named his custodian as Respondent.” (Doc. 6 at 2.) The Court dismissed the Petition without prejudice, giving Petitioner the “opportunity to amend his Petition to name a proper Respondent.” (Id.)

         On November 20, 2017, Petitioner timely filed an Amended habeas Petition, raising four claims. (Doc. 1.) The Court has summarized these claims as follows:

(1) Petitioner's Fifth and Fourteenth Amendment rights were violated when the trial court failed to remove jurors 5, 6, and 14, who had personal ...