United States District Court, D. Arizona
Dominic W. Lanza, United Slates District Judge.
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).
explained below, the Court will deny Petitioner's
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.
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.
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
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.)
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.)
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.)
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).
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
Ground Two. The trial court violated
Petitioner's rights under the Fifth, Sixth, and
Fourteenth Amendments when it ...