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Amarillas v. Ryan

United States District Court, D. Arizona

February 27, 2019

Johnny Dominguez Amarillas, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT COURT:

          REPORT AND RECOMMENDATION

          Michelle H. Bums United States Magistrate Judge

         On February 12, 2018, Petitioner Johnny Dominguez Amarillas, who is confined in the Arizona State Prison, Yuma-Cheyenne Complex, Yuma, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (hereinafter “habeas petition”). (Doc. 1.) On May 31, 2018, Respondents filed a Limited Answer, and on August 15, 2018, Petitioner filed a Reply. (Docs. 10, 15.)

         BACKGROUND

         On November 5, 1995, Petitioner was indicted, along with a co-defendant, by a Maricopa County Grand Jury on three counts of armed robbery, class 2 dangerous felonies, and one count of aggravated assault, a class 3 dangerous felony. (Doc. 10, Exh. A.) The victims of the three robberies and assault were, as identified by their initials: JB (count one); JM (count two - aggravated assault); PM (count three); and CF (count four). (Id.) The facts adduced at trial in support of conviction were as follows[1]:

         Robbery One - Subway - 9/30/95

          On September 30, 1995, JB and JM were working their shifts at a Subway store in Glendale, Arizona. At 10:30 p.m., JM was outside smoking a cigarette and getting ready to close the store when a male and female approached the store. (Exh. D at 186.) JM testified that the female pushed him into the store and toward the back, meanwhile lifting her shirt to display a black semi-automatic 9- or 3-millimeter gun. (Id. at 187-88.) JM described the female as 5' 3"-4" tall, 120-130 pounds, late 20's, wearing a white t-shirt and black pants, and possibly having a teardrop tattoo on her face. (Id.) JM identified Petitioner's co-defendant Garza in court as the female robber. (Id.) JM described the male robber as 5' 5"-6" tall, thin, white t-shirt, tattoos up and down his arms, late 30's-early 40's, Hispanic with a mustache. (Id. at 190.) JM was unable to identify Petitioner in court, but had picked Petitioner's recent photograph out of a lineup on October 26, 1995, presented to him by Detective Bruce Lowe. (Exh. E. at 215-219.)

         The male robber instructed JM to put all of the money into a Subway bag. (Exh. D at 192.) JM's coworker JB took the cash out of the register and safe, totaling approximately $300-$400. (Id. at 192-94.) The male robber then instructed JM and JB to get on the floor and to not look up until he and the female robber were gone. JB testified similarly that he was working his shift inside the Subway that night when the female robber began pushing JM back into the store from outside. (Exh. G at 8-10.) He described the female as Hispanic, curly long black hair, 5' 8"-9", medium built, 20-26 years old, wearing a white shirt and black pants. (Id.) JB identified Petitioner's co-defendant Garza in court. (Id. at 10.) JB described the male as shorter than Garza, with a shaved head, black mustache, medium build, 5'5"-6" tall, with tattoos on his arms and maybe one on his neck, wearing a white t-shirt and black pants. (Id. at 12.) JB identified Petitioner in court. (Id. at 14.)

         JB testified that he had seen both Petitioner and his co-defendant many times shopping the area of the Subway. (Exh. G at 15, 24.) He also picked Petitioner and his co-defendant out of the photo lineup shown to him by Detective Lowe on October 31, 1995. (Exh. E at 218-220.) Petitioner was charged with and convicted of one count of armed robbery (count one), and one count of aggravated assault on JM (count two) relating to this incident.

         Robbery Two - Subway - 10/1/1995

         On October 1, 1995, PM was working his shift at Subway in Sun City, Arizona, at 8:30 p.m. when a male carrying an ice cream cone, and a female entered the store together. (Exh. E. at 129-31.) The female was described as Hispanic, early 20's, 5' 8" tall, approximately 135 pounds, black hair tied up, wearing a white t-shirt and baggy pants. (Id. at 131-32.) PM identified Petitioner's co-defendant Garza in court. (Id.) PM described the male as Hispanic, with a buzz hair cut, black air, mustache, with tattoos on his right arm from upper elbow to lower arm, wearing a navy t-shirt. (Id. at 132.) The female demanded all the money, and brandished a gun from under her shirt that had a black or brown grip. (Id. at 133-34.) The male robber demanded PM's wallet, watch and ring, and the money from the safe in the back, and then ordered PM to lay on the floor as the robbers exited the store. (Id. at 139-140.) PM selected Petitioner's photo as the male robber out of a photographic lineup presented to him by Detective Bruen on October 26, 1995. (Id. at 143.)

         When Petitioner was arrested on October 26, 1995, he was found wearing a watch that was seized by Detective Lowe. (Exh. E. at 221-22.) PM identified that watch as the one taken from him during the robbery on October 1, 1994. (Id. at 144.) PD was called as a witness to the events of October 1, 1995. She testified that she was working at a Baskin and Robbins ice cream store just three doors down from the Subway. (Id. at 58.) She sold ice cream to a male and female at approximately 8:30 p.m. (Id. at 59.) She described the male as approximately 5' 7" tall, Hispanic with short dark hair, a mustache, wearing a dark t-shirt and baggy pants. (Id.) PD identified both Petitioner and his co-defendant in court. (Id. at 60-61.) She also had selected Petitioner's photograph out of a lineup presented to her on October 25, 1995 by Detective Strang. (Id., 231-33.)

         Petitioner was charged with and convicted of one count of armed robbery (count three) relating to this incident.

         Robbery Three - Subway - 10/7/1995

         On October 7, 1995, CF was working her shift at the same Subway in Sun City, that was robbed on October 1, 1995, when at 10:15 p.m., a male and female entered the store. (Exh. D. at 138-39.) The male yelled “I will knock this fucking shit off, ” and displayed a gun handle. (Id. at 143.) The female began telling her what to do, to take money out of the register and put it into plastic Subway bags. (Id.) The robbers demanded her watch and fanny pack, and instructed her to lay on the floor face-down until they left exited the building. (Id. at 143-46.) She described the female as tall, Hispanic, long black hair with a grey streak in it, with a tattoo on the side of her fact. (Id. at 139-41.) CF described the male as shorter, with crew-cut hair, mustache wearing a white t-shirt. (Id. at 142-43.) CF was unable to identify Petitioner in court, and identified a woman in the back of the courtroom as the female robber. (Id.)

         A store videotape of the incident was played for the jury, after which CF identified both Petitioner and his co-defendant in court as the male and female robbers. (Exh. D. at 162-66.) Petitioner was charged and convicted of one count of armed robbery (count four) relating to this incident.

         Detective Bruce Lowe testified that when he arrested Petitioner, he observed that Petitioner had a “sleeve” tattoo on his left arm and tattoos on his right arm, a small cross tattoo on the corner of his right eye, and some tattoos on his neck. (Exh. E. at 211-12.)

         On July 10, 1996, the jury found Petitioner guilty on all counts. (Exh. F. at 179-81.) At sentencing, the trial court found as aggravating factors on each count that Petitioner had numerous prior felony convictions, the presence of an accomplice, and that the crimes were committed for pecuniary gain, and found no mitigating factors. (Exh. G at 15.) On August 30, 1996, Petitioner was sentenced to 12 years' imprisonment on Count One, 8 years' imprisonment on Count Two, 14 years' imprisonment on Count Three, treating it as a second dangerous felony offense for A.R.S. § 13-702.02 purposes, and 21 years' imprisonment on Count 4. (Id. At 15-16.) The trial court ordered Counts One and Two to be served concurrently, and that Count Three and Four be served concurrently, but consecutive to Counts One and Two. (Id.) Petitioner's counsel then advised the court that it had a duty, pursuant to A.R.S. § 13-702.02, to confer with counsel prior to imposing an aggravated sentence. (Id. At 19.) The trial court agreed and reset sentencing on Counts Three and Four. (Id.)

         On October 3, 1996, sentencing resumed, and the trial court again sentenced Petitioner to 14 years' imprisonment on Count Three, and 21 years' imprisonment on Count Four; however, the sentence on Count Four was made to run consecutive to the sentence on Count Three. (Exh. H at 5-6.). The trial court later, on its own motion, reduced the sentence on Count Four to be 18 years. (Exh. I. at 12.)

         A. ...


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