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Pelayo v. State

United States District Court, D. Arizona

March 8, 2019

Manuel Jose Pelayo, Petitioner,
v.
State of Arizona, et al., Respondents.

          ORDER

          HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE

         Pending before the Court is Petitioner Manuel Jose Pelayo's pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 5.) On November 27, 2018, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation, recommending that the § 2254 Petition be denied because all of Petitioner's claims are procedurally defaulted. (Doc. 18.) Petitioner filed an Objection (Doc. 19), to which Respondents filed a Reply (Doc. 22).

         I. State Proceedings

         Petitioner was convicted following a jury trial of two counts of aggravated driving while under the influence and sentenced to concurrent 10-year terms of imprisonment. (Doc. 12-1 at 15, 20.) The Arizona Court of Appeals summarized the evidence presented at Petitioner's trial as follows:[1]

[I]n February 2013, R.S. was in the area of 51st Avenue and Northern, traveling northbound. A truck was traveling southbound through the intersection when R.S. saw a white Dodge, traveling east, run a red light and hit the white truck. R.S. testified that he saw a Hispanic male, medium build, about five-nine or ten, get out of the driver's door of the white Dodge.
A Glendale Police Officer (Officer) arrived at the scene shortly after the incident. R.S. identified Pelayo as the driver of the white Dodge. Officer then approached Pelayo, noting that Pelayo was swaying and had an odor of alcohol on him. Furthermore, Officer noted that Pelayo's eyes were bloodshot and watery, and [that he was] slurring his speech, consistent with impairment.
Officer asked Pelayo what happened, and Pelayo responded that he did not know and that he was not driving. Pelayo also told Officer that the car belonged to his friend and handed Officer his Arizona identification card from which Officer learned that Pelayo's privilege to drive had been revoked. This was confirmed by the deputy custodian of records with the Motor Vehicle Division (MVD) who testified that Pelayo's driving privileges were revoked and suspended on the day of the accident. The deputy custodian of records testified that Pelayo had been sent multiple notices that his privilege to drive had been suspended or revoked. There was evidence that multiple letters had been mailed to Pelyao's [sic] most current address on file with the MVD.
Pelayo refused to perform field sobriety tests and was placed under arrest. Pelayo's blood was drawn at 9:10 in the morning, within two hours of the accident. Testing by the Arizona Department of Public Safety Crime Lab in Phoenix found that the blood alcohol concentration of Pelayo's blood was 0.296, over three times the legal limit.

(Id. at 26-27.)

         Petitioner appealed his convictions and sentences. (Id. at 25-27.) Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), advising the Arizona Court of Appeals that he had reviewed the entire record and had failed to find any colorable issues to raise. (Id. at 33-62.) Petitioner thereafter filed a pro se supplemental brief, arguing ineffective assistance of trial and appellate counsel. (Doc. 12-2 at 2-23.) The Arizona Court of Appeals affirmed Petitioner's convictions and sentences, finding no reversible error in the record and declining to consider Petitioner's ineffective-assistance-of-counsel claims because such claims must be brought in post-conviction relief proceedings rather than on direct appeal. (Id. at 25-28.)

         Petitioner thereafter initiated post-conviction relief proceedings. (Id. at 32-34.) He was appointed post-conviction counsel, but he instead elected to proceed pro se. (Id. at 36-37, 39-40, 42.) In his pro se post-conviction relief petition, Petitioner argued that the trial court erred by failing to grant a mistrial, that the prosecution presented insufficient evidence to prove he was driving the white Dodge, and that his appellate counsel was ineffective for failing to raise these issues. (Doc. 12-2 at 44-78.) The post-conviction court denied the petition, finding that defense counsel was not ineffective and that the trial court did not err in refusing to declare a mistrial. (Doc. 12-2 at 104.) The court also referred to the Court of Appeals' decision affirming Petitioner's convictions, in which the Court of Appeals had held that the convictions were supported by the evidence presented at trial. (Id. at 28, 104.)

         Petitioner filed a petition for review of the denial of post-conviction relief, raising the same claims concerning denial of a mistrial, insufficient evidence, and ineffective assistance of appellate counsel. (Doc. 12-2 at 109-156.) The Arizona Court of Appeals granted review but denied relief, finding that the post-conviction court did not abuse its discretion. (Doc. 12-2 at 158-159.)

         II. Report and Recommendation

         In each of the four claims presented in his § 2254 Petition, Petitioner asserts violations of the 4th, 5th, 6th, and 14th Amendments to the United States Constitution. (Doc. 5 at 6-9.) Petitioner alleges that these violations stemmed from judicial malice (Claim 1), a lack of evidence (Claim 2), ineffective assistance of counsel (Claim 3), and tampering with a jury (Claim 4). (Id.) In support of Claim 1, Petitioner alleges that the jury in his case was improperly instructed, that the trial court failed to correct errors and erroneously allowed prior convictions to affect Petitioner's sentence, that witnesses were not made available, and that evidence relevant to Petitioner's innocence was withheld and suppressed. (Id. at 6.) In support of Claim 2, Petitioner alleges that blood samples were improperly tested, that the arresting officer falsified witness statements, that Petitioner was denied the right to face accusers, and that evidence was withheld and suppressed. (Id. at 7.) In support of Claim 3, Petitioner alleges that his trial attorney was improperly prepared and that the trial court interfered with his attorney's ability ...


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