United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Michelle H. Bums United States Magistrate Judge.
TO THE
HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT COURT:
On
February 5, 2018, Petitioner, Luis Angel Toledo, who is
confined in the Arizona State Prison, Santa Rita Complex,
Tucson, Arizona, filed a pro se Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (hereinafter
“habeas petition”)[1]. (Doc. 1.) On June 28, 2018,
Respondents filed a Limited Answer. (Doc. 9.) Petitioner did
not file a Reply.
BACKGROUND
Petitioner
was indicted in November, 2011, on four felony counts:
burglary in the first degree, a class 2 felony; trafficking
in stolen property, a class 2 felony; misconduct involving
weapons, a class 4 felony; and possession of burglary tools,
a class 6 felony. (Exh. A.)[2] A four-day jury trial commenced
on August 28, 2013, at the conclusion of which Petitioner was
convicted on all charges. (Exhs. H-K.) After further
deliberation, the jury found the following aggravating
circumstances: the burglary offense was committed as
consideration for the receipt, or in the expectation of the
receipt, or anything of pecuniary value, and caused physical,
emotional, or financial harm to the victim; the trafficking
in stolen property offense caused physical, emotional, or
financial harm to the victim; and, the possession of burglary
tools offense was committed as consideration for the receipt,
or in the expectation of the receipt, or anything of
pecuniary value. (Exh. K at 5-8.) A trial on Petitioner's
prior conviction commenced on December 6, 2013, with the
trial court finding that the “[s]tate had established
the Defendant was previously convicted of Solicitation to
Commit Burglary a Class 6 Felony committed on
03/23/2008.” (Exh. L.) On January 24, 2014, Petitioner
was sentenced to 14 years in prison for the burglary and
trafficking in stolen property convictions, 4.5 years for the
weapons offense, and 1.75 years for the possession of
burglary tools offense, all sentences to run concurrently.
(Exh. N.)
On
appeal to the Arizona Court of Appeals, Petitioner's
appointed counsel filed an opening brief pursuant to
Anders v. California, 386 U.S. 738 (1967),
indicating that he had “searched the record, . . . and
found no arguable question of law that is not
frivolous.” (Exh. P at 8.) On February 3, 2015, in a
Memorandum Decision, the appellate court affirmed
Petitioner's convictions and sentence, noting that after
defense counsel had filed his Anders brief,
“[Petitioner] was given the opportunity to file a
supplemental brief but he did not do so.” (Exh. Q.)
Thereafter Petitioner filed a motion for reconsideration,
which the Arizona Court of Appeals summarily denied on
February 27, 2015. (Exhs. R, S.) The court's mandate
issued on April 1, 2015. (Exh. T.)
On
April 13, 2015, Petitioner filed a Notice of Post-Conviction
Relief (hereinafter “PCR”). (Exh. V.) Thereafter,
on August 24, 2015, appointed counsel filed a Notice of
Completion of Post Conviction Review by Counsel; Request for
Extension of Time to Allow Petitioner to File Pro
Per Petition for Post-Conviction Relief, in which she
indicated she was unable to find a colorable issue to raise.
(Exh. W.) Petitioner subsequently filed a timely PCR
petition, in which he raised the following issues:
(1) Petitioner was denied a fair and impartial trial under
the Fifth Amendment when his attorney did not object and a
juror was allowed to serve on his trial when that juror went
to high school and college with the prosecutor, and when his
attorney did not challenge another juror for cause;
(2) the jury was never polled individually as to their
verdict, in violation of the Fifth and Sixth Amendments;
(3) Petitioner's appointed appellate attorney had a
conflict of interest because he was from the same public
defender office of two attorneys Petitioner had fired before
trial;
(4) Petitioner's trial attorney was ineffective in
failing to file a response to the state's 609 and 403
motions;
(5) Petitioner's trial attorney was ineffective in not
showing the jury a video of Petitioner's statements to
police detectives;
(6) Petitioner's trial attorney was ineffective by not
objecting to issues that Petitioner thought were
objectionable;
(7) Petitioner's trial counsel pressured him into not
taking the stand and testifying at trial in violation of the
Fourth Amendment;
(8) Petitioner was subject to an unlawful arrest and search
and seizure and therefore evidence seized from him upon his
arrest should have been suppressed.
(Exh. Y.)
On
March 2, 2016, the trial court dismissed Petitioner's PCR
petition, finding that Petitioner had failed to raise a
colorable claim, reasoning as follows:
As the State correctly notes, for example, the
Defendant's challenge to the purportedly
“unconstitutional search and seizure” at the time
of his arrest, see Petition at p. 6, is waived
because it was not raised on appeal. Response at p. 10.
See Rule 32.2(a)(3), Ariz.R.Crim.P. Likewise as the
State correctly notes, the Defendant's complaint that
“[t]he jury was never poled [sic] after the
trial. . . .”, Petition at p.2, is belied by the record
in this matter. See Response at p. 7. After the
guilty verdicts were read at trial, the Defendant's
lawyer requested that the jurors be polled. They were, and
each juror affirmed his or her ...