United States District Court, D. Arizona
Lynnette C. Kimmms United States Magistrate Judge
Michael Schafer has filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. Before the Court
are the Petition (Docs. 1, 24), Respondents' Answer
(Docs. 17-21), and Petitioner's Reply (Doc. 22). The
parties have consented to Magistrate Judge jurisdiction.
(Doc. 9.) The Court finds the Petition should be dismissed.
AND PROCEDURAL BACKGROUND
was convicted in the Pima County Superior Court on one count
of conspiracy to commit burglary, aggravated robbery, and
aggravated assault; one count of burglary; one count of
aggravated robbery; and one count of aggravated assault.
(Doc. 18, Ex. B.) He was sentenced to concurrent prison
terms, the longest of which is 11.25 years. (Id.)
Arizona Court of Appeals summarized the facts in support of
In June 2013, after dating for eight years, Schafer and J.W.
ended their relationship. J.W. tried to arrange a meeting to
give Schafer his belongings, including a basket of unwashed
clothes and a box of NASCAR cards, which he had left at her
house. Instead, Schafer approached Shannon Adkins and asked
her to “go collect [his belongings].” He also
said he wanted J.W.'s cell phone because “she kept
calling him and wouldn't stop” and he wanted Adkins
to “whip [J.W.'s] ass.” Schafer offered
Adkins $150: $50 for his belongings, $50 for the cell phone,
and $50 for the “ass whipping.” After Schafer
showed Adkins a photo of J.W., Adkins recognized J.W. from
when they used to live in the same housing complex. Adkins
agreed to Schafer's plan and solicited the assistance of
¶ 3 At approximately 1:00 p.m. on June 15, Adkins and
Lizama knocked on J.W.'s door. Recognizing Adkins, J.W.
opened the door, and Adkins asked, “Hey, do you want to
get high?” After J.W. refused, Adkins punched her in
the eye and pushed her into the house. The two struggled, and
Adkins pinned J.W. to the ground and continued to hit her in
the head. Meanwhile, Lizama searched for Schafer's
belongings. Lizama asked J.W. for “a wicker basket and
dirty clothes, ” and, after realizing that she wanted
Schafer's belongings, J.W. told her where to find the
clothes and NASCAR cards. Lizama grabbed the items, as well
as J.W.'s purse, which contained her cell phone, car
keys, credit cards, and blank checks.
¶ 4 Adkins and Lizama later met up with Schafer and gave
him the clothes, NASCAR cards, and cell phone in exchange for
$150, which the two women divided equally. Adkins kept the
other items from J.W.'s purse, and, later that day, she
used J.W.'s credit cards and forged checks to make
purchases. A few days later, an acquaintance of Adkins used
J.W.'s car keys to steal her car from her house.
¶ 5 J.W. reported the incident to the Tucson Police
Department. During a subsequent interview with investigating
officers, Schafer admitted saying “out loud” to a
group of people that he would “pay somebody to go down
there and ... take care of this.” He said J.W.
“had [him] so upset that [he] just ... wan[ted to] be
done with her.” Schafer also acknowledged paying Adkins
and Lizama $150 when they gave him his clothes and NASCAR
(Id., Ex. H at 2-3.)
appealed, and the Arizona Court of Appeals affirmed his
convictions and sentences. (Id., Exs. E, H.) Schafer
filed a Notice of Post-conviction Relief (PCR).
(Id., Ex. J.) Appointed counsel filed a PCR Petition
alleging ineffective assistance of counsel (IAC).
(Id., Ex. J.) The PCR court denied the IAC claims on
the merits, finding that counsel's performance was not
deficient. Schafer's Petition for Review restated the IAC
claims verbatim from the PCR Petition and argued review
should be granted because the PCR court erred in failing to
hold an evidentiary hearing. (Id., Ex. N.)
raises one claim in his Petition, that his Sixth Amendment
rights were violated by counsel's ineffectiveness in
failing to call witness Ann Davis to testify.
contend Schafer failed to fairly present this claim in the
Petition for Review and it is, therefore, procedurally
defaulted. The Court finds this claim is most expeditiously