Toledo v. Ryan

          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 ...