Schafer v. Ryan

          ORDER

          Lynnette C. Kimmms United States Magistrate Judge

         Petitioner 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Schafer 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.)

         The Arizona Court of Appeals summarized the facts in support of Shafer's convictions:

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 Yvonne Lizama.

¶ 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 cards.

(Id., Ex. H at 2-3.)

         Schafer 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.)

         DISCUSSION

         Schafer 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.

         Respondents 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 ...