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Dawood v. Ryan

United States District Court, D. Arizona

December 17, 2018

Stef Boris Dawood, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Honorable John Z. Boyle United States Magistrate Judge

         TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:

         Petitioner Stef Boris Dawood has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

         I. Summary of Conclusion.

         Petitioner raises four grounds for relief in his timely Petition. All of Petitioner's claims are unexhausted and procedurally defaulted because he did not raise them in the state courts. Petitioner fails to demonstrate cause and prejudice to excuse the default. Petitioner alleges ineffective assistance of counsel to excuse the default, but Petitioner fails to raise a substantial claim regarding ineffective assistance of counsel. Petitioner's Fourth Amendment claims are not cognizable. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

         II. Background.

         A. Factual and Procedural Background.

         The Arizona Court of Appeals found:

D.B. worked the night shift at a convenience store in Mesa, along with her daughter, S.H. Around 7:30 p.m., a man entered the store wearing a white “hoodie” with the hood pulled over his head, blue jeans, and a green bandana covering most of his face. D.B. heard a “clicking sound” and looked up to see the man pointing a gun at her. The man demanded the money in the register. D.B. put the money on the counter. The man grabbed $160 in bills and stuck them in the hoodie's front pocket. He then turned to S.H., pointed the gun at her, and told her to open her register. S.H. responded that the register was broken and that she did not have a key to open it.
The man turned the gun back to D.B. and demanded “Newport cigarettes.” D.B. set four packs on the counter. The man put the cigarettes in the hoodie pocket and left the store. Outside, he turned right toward newspaper stands in front of the store.
D.B. called 9-1-1 and described the man as Hispanic, with dark hair, in his 20s, approximately 5'9” to 5'10” tall, and weighing approximately 150 pounds. Officers responded to the scene. En route, Officer Kirkpatrick saw two men fitting the description near the store; one wore a white hoodie. The officer stopped the men, but determined they were likely not involved in the robbery and continued to the convenience store.
At the store, D.B. and S.H. described the suspect as a Hispanic male in his 20s who was approximately 5'8” tall, weighing about 150 pounds, with brown eyes and short black hair. D.B. described the gun as a silver semiautomatic .32 or .38 with a black grip. Officers found an unopened box of Newport cigarettes a few yards from the front entrance of the store and a newspaper stand that was knocked over “as though somebody had ran by it and knocked it over in the process.” A crime scene specialist collected two fingerprints from the cigarette box, one of which was matched to Dawood.
Dawood was indicted on two counts of armed robbery, both class 2 dangerous felonies. A jury trial ensued. At the conclusion of the State's casein-chief, Dawood moved for a judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure (“Rule”). The motion was denied.
Dawood testified he did not remember anything that happened in November 2011 because it was “too long” ago, but he denied committing the robbery. He testified that he smoked Newport cigarettes, but preferred “Newport 100[s]” over the Newport brand sold at the convenience store. He further testified that his fingerprint could have ended up on the cigarette box because the store gave him the wrong type of Newport cigarettes and he gave them back.
The jury found Dawood guilty of both counts. It found two aggravators for sentencing purposes: that the offense was committed for pecuniary gain and that it caused physical, emotional, or financial harm to the victims. Dawood was sentenced to a presumptive, concurrent term of 10.5 years on each count, with 263 days' pre-sentence incarceration credit.

State v. Dawood, 2013 WL 4611240, at *2 (Ariz.Ct.App. 2013).

         B. Direct Appeal.

         On May 21, 2013, Petitioner's counsel filed an Anders' brief stating there was “no arguable question of law that is not frivolous.” (Doc. 13-4, Ex. S, at 54.) On July 1, 2013, Petitioner filed a pro se appellate brief (1) arguing that the latent print examiners were not qualified as experts and (2) attacking the sufficiency of the evidence. (Doc. 13-4, Ex. T, at 62.)

         On August 29, 2013, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 13-4, Ex. U, at 75; Dawood, 2013 WL 4611240, at *3.) On October 22, 2013, the mandate issued. (Doc. 13-4, Ex. V, at 85.)

         C. Petitioner's Post-Conviction Relief Proceeding.

         On September 4, 2013, Petitioner filed a notice of post-conviction relief. (Doc. 13-4, Ex. X, at 99.) On December 20, 2013, Petitioner's counsel filed a notice of completion stating “undersigned counsel does not believe that a sufficient factual or legal basis exists upon which to ground a good faith Rule 32 claim in light of the requirements of that rule.” (Doc. 13-4, Ex. Y, at 104.) On February 14, 2014, Petitioner filed a pro se petition arguing counsel provided ineffective assistance by failing to (1) challenge whether the jury verdicts were coerced, (2) challenge a prior felony conviction, (3) file a motion for new trial based on jury questions, (4) object to answers to jury questions, (5) to call a police officer as a trial witness regarding photographic line ups, and (6) act professionally during trial. (Doc. 13-5, Ex. AA, at 2-17.) On May 5, 2014, Petitioner mailed an amended petition, which was filed on July 1, 2014. (Doc. 13-5, Ex. BB, at 41.) In the amended petition, Petitioner advanced the same arguments presented in the petition, and also argued counsel failed to (1) challenge the photograph line-ups, (2) obtain an expert to challenge the state's expert, (3) object to witness descriptions, (4) object to an officer's failure to appear, (5) introduce DNA results, and (6) object to limitations on line-up identifications. (Id. at 60.)

         On November 25, 2014, the court denied the petition on the merits. (Doc. 13-5, Ex. HH, at 132.)

         On November 4, 2015, Petitioner filed a Petition for Review in the Arizona Court of Appeals. (Doc. 13-6, Ex. NN, at 9.) On April 17, 2017, the Arizona Court of Appeals granted review but denied relief. (Doc. 13-6, Ex. RR, at 54; State v. Dawood, 2017 WL 1376362, at *2 (Ariz.Ct.App. 2017).) On ...


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