United States District Court, D. Arizona
HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE
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.
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:
[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learned that Pelayo's privilege to drive had been
revoked.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.)
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.)
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.)
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.)
Report and Recommendation
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