Villa-Inzunza v. Ryan

          ORDER

          Dominic W. Lanza, United Slates District Judge.

         On March 9, 2017, Petitioner filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 (“the Petition”). (Doc. 1.) On February 23, 2018, Petitioner (now represented by counsel) filed a supplemental memorandum in support of the Petition. (Doc. 23.) On July 31, 2018, Magistrate Judge Fine issued a 35-page Report and Recommendation (“R&R”) concluding the Petition should be denied and dismissed with prejudice. (Doc. 30.) Afterward, Petitioner filed objections to the R&R (Doc. 42), and Respondents filed a response (Doc. 46).

         As explained below, the Court will deny Petitioner's objections.

         I. Background

         In September 2012, a friend of Petitioner sold methamphetamine to an undercover officer. State v. Villa, 335 P.3d 1142, 1144 (Ariz.Ct.App. 2014). Petitioner drove his friend to the meeting but maintained “that he did not know the vehicle contained drugs or that his friend was involved in a drug deal.” Id. at 1148.

         In May 2013, Petitioner went to trial in Pinal County Superior Court on the charges of (1) transportation of a dangerous drug for sale and (2) conspiracy to transport a dangerous drug for sale. (Doc. 30 at 2.) This trial resulted in a hung jury. (Id.)

         In August 2013, the retrial occurred. (Id.) At the close of evidence, the trial judge instructed the jury on both of the original charges plus the lesser-included offense of possession of a dangerous drug. (Id.) During deliberations, the jury asked a question about those charges. (Id. at 3.) At the request of the prosecution (and over Petitioner's objection), the trial judge responded in part by instructing the jury on a different lesser-included offense: the crime of possession of a dangerous drug for sale. (Id.) When doing so, the trial court told the jury it had simply “neglected” to include this crime in its original charge. (Id.) The trial judge also offered the parties an opportunity to reopen the case for further closing argument (in order to address the new charge), but Petitioner's counsel declined this offer. (Id. at 5-6.) The jury ultimately voted to convict on one of the original charges (conspiracy to transport a dangerous drug for sale) and on the new lesser-included charge (possession of a dangerous drug for sale). (Id. at 3.) Although the former charge resulted in a sentence of only 5 years' imprisonment, the latter charge resulted in a sentence of 12 years' imprisonment, which were ordered to run concurrently. (Id.)

         Petitioner appealed his conviction to the Arizona Court of Appeals. His direct appeal raised two issues: (1) whether the trial court abused its discretion by instructing the jury on the new lesser-included charge after deliberations began, and (2) whether the trial court violated Petitioner's right to due process by introducing this new charge without giving his counsel an opportunity to offer further closing argument. (Id. at 3-4.)

         In October 2014, the Court of Appeals affirmed. Villa, 335 P.3d at 1142. The Arizona Supreme Court later summarily denied Petitioner's pro se petition for review. (Doc. 30 at 6.)

         In December 2015, after Petitioner's court-appointed counsel had filed a notice averring she was unable to locate any colorable PCR claims, Petitioner filed a pro se PCR petition with the Pinal County Superior Court. (Id. at 6.) It raised the following six claims for relief: (1) during the first trial, Petitioner's constitutional right to a fair trial was violated when the prosecutor knowingly and intentionally engaged in “egregious conduct” contributing to the jury's inability to reach a verdict, and that he was exposed to double jeopardy by being re-tried; (2) during the second trial, Petitioner's constitutional rights under the 5th, 6th, and 14th Amendments were violated when the trial court instructed the jury on the lesser-included offense during deliberation; (3) Petitioner's sentence was improperly aggravated using offenses that were elements of the charges on which he had been convicted; (4) ineffective assistance of counsel (“IAC”) by his trial, appellate, and PCR counsel in violation of the 6th and 14th Amendments; (5) violation of Petitioner's rights to due process and a fair trial pursuant to the 6th and 14th Amendments when, at the second trial, the court ruled that Petitioner's testimony at his first trial could be admitted, even though Petitioner was present at the second trial; and (6) Petitioner's rights to equal protection and access to the courts pursuant to the 14th Amendment were violated when he was unable to obtain documents related to his trials, and the superior court did not respond to a motion requesting permission for him to file a pro per PCR petition. (Id. at 6-7.)

         In March 2016, the superior court denied the petition without discussion. (Id. at 7.) In August 2016, the Arizona Court of Appeals affirmed. State v. Villa, 2016 WL 4570433 (Ariz.Ct.App. 2016).

         In March 2017, Petitioner filed the Petition. (Doc. 1.) It asserts the following seven grounds for relief:

Ground One. The trial court erred when it instructed the jury on a new, lesser-included charge during deliberations.

Ground Two. The trial court violated Petitioner's rights under the Fifth, Sixth, and Fourteenth Amendments when it ...