Schmallie v. Ryan

          ORDER

          Honorable Roslyn O. Silver, Senior United States District Judge

         In 2012, Petitioner Leonard Schmallie (“Schmallie”) was convicted in state court of four counts of aggravated driving under the influence (“aggravated DUI”). After extensive proceedings in state court, Schmallie filed a petition for writ of habeas corpus in this Court. (Doc. 1.) Magistrate Judge Bridget S. Bade issue a Report and Recommendation (“R & R”) concluding Schmallie is not entitled to relief. (Doc. 17.) Schmallie filed objections, (Doc. 18), but having reviewed each ground for relief, the Court agrees he is not entitled to relief.

         FACTUAL BACKGROUND

         Schmallie does not object to the R & R's recitation of facts, and therefore the Court adopts it summarily. (Doc. 17 at 1-8.) In February 2012, a jury convicted Schmallie in Maricopa County Superior Court on four counts of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs. The evidence at trial established that on September 15, 2008, at approximately 7:00 p.m., a single car crashed into a chain-link fence in Phoenix, AZ. Witness Rick Rausa (“Rausa”) observed this accident and saw one person in the car when it crashed. Rausa described the driver as an “American Indian” male with shoulder length dark hair-consistent with later descriptions of Schmallie at the scene-but could not identify Schmallie as the driver in a photographic lineup. According to Rausa, the driver appeared “disoriented”: after the crash, he exited through the driver's door, walked around the vehicle, and got back into the driver's side. Rausa testified that before the fire department responded, he saw a woman-later identified as Schmallie's sister Shannon Schmallie (“Shannon”)-dropped off at the scene by an unknown driver in a pickup truck.

         The fire department arrived at approximately 7:10 p.m. Paramedic captain Benjamin Marx (“Captain Marx”) saw Schmallie sitting in the driver's seat of the crashed car. Captain Marx observed the car keys were in the ignition. At approximately 8:00 p.m., Phoenix Police Officer Diane Day (“Officer Day”) arrived at the scene. Officer Day observed Schmallie exhibiting signs consistent with alcohol impairment and saw numerous cans of beer, some of which were open, in the car. Officer Day testified that Schmallie, who was then in the back seat of the driver's side of the car, told her that he had been “driving southbound.” (Doc. 17 at 3.) Officer Day further testified that Shannon was also at the scene and explained that before the accident, she and Schmallie had gotten into an argument in the car, Schmallie stopped the car and Shannon got out, and after the car crashed, Shannon walked up to the car. Still at the scene, Schmallie grabbed a can of beer and tried to open it. Officer Day told Schmallie he could not drink in public and Schmallie put the can on the ground. Officer Day testified she tried to administer field sobriety tests but Schmallie refused them. Schmallie was then brought to the police station. Officer Day testified that at the police station, she did not read Schmallie Miranda warnings and did not ask him questions about the car crash. After Schmallie refused to submit to a blood, breath, or urine test, Officer Christopher Talley (“Officer Talley”) obtained a search warrant and conducted a blood draw on Schmallie at 11:15 p.m.

         At trial, Schmallie stipulated that: (1) at the time of the incident, his privilege to drive in Arizona was revoked and he knew or should have known it was revoked, and (2) he was convicted of two previous DUI offenses in the Coconino County Superior Court. Schmallie admitted that on the day of the accident, he drank beer all day and was drunk by the evening. However, Schmallie denied that he drove the car when it crashed into the fence. Schmallie testified he was a passenger in the pickup truck that arrived at the scene shortly after the crash. According to Schmallie, a family friend named Daylene drove the pickup truck to the scene and Schmallie got out and walked up to the car. Schmallie further testified that Shannon's boyfriend, Martin, was near the car and told Schmallie it would not move. Martin, according to Schmallie's testimony, looked like he had been drinking. Schmallie testified that Shannon was not at the scene at that point. Schmallie further testified that while he was inspecting the car, Daylene and Martin left in the pickup truck without telling him, and that, at some point after the paramedics arrived, he saw Shannon “standing there” but he did not know how she got there. (Doc. 17 at 5.) Schmallie denied he told Officer Day that he had been driving the car and also denied hearing Shannon tell Officer Day that he was driving.

         After Schmallie was convicted by the jury, the trial court sentenced him to a presumptive term of ten years' imprisonment on all four counts and awarded him 211 days of presentence incarceration credit. Schmallie appealed to the Arizona Court of Appeals; his appellate counsel filed an opening brief asserting that the trial court failed to award him the correct amount of presentence incarceration credit. The Arizona Court of Appeals concluded Schmallie was entitled to an additional 69 days of presentence incarceration credit.

         On August 9, 2013, Schmallie filed a notice of post-conviction relief (“PCR”) in the trial court. The court appointed PCR counsel. In December 2013, PCR counsel filed a notice advising the court that he had reviewed the record and could not find any colorable claims for relief. Schmallie then filed a PCR petition pro se. On his PCR petition form, Schmallie indicated he was raising the following claim: “adoptive admission-ineffective appellat[e] attorney-Miranda issues.” In support, Schmallie “submitted an attachment containing numerous factual assertions and legal arguments in a narrative form, ” identifying various instances of his counsel's alleged ineffective assistance. (Doc. 17 at 6.) On July 16, 2014, the superior court dismissed Schmallie's petition and rejected his ineffective assistance of counsel (“IAC”) claims as lacking merit. Schmallie appealed and in October 2016, the Arizona Court of Appeals granted review but denied relief.

         On January 9, 2017, Schmallie filed a petition for writ of habeas corpus in this Court. (Doc. 1.) Schmallie's single ground for relief is IAC at the trial and appellate level and Schmallie asserts five arguments in support. (Doc. 1 at 6-23.) Magistrate Judge Bade issued a Report and Recommendation (“R & R”), recommending the petition be denied. Schmallie filed an objection to the R & R. (Doc. 18.)

         STANDARD OF REVIEW

         The Court “must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b)(1)(C). A proper rejection requires “specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b); see Warling v. Ryan, No. CV 12-01396, 2013 WL 5276367, at *2 (9th Cir. 2013). A general objection, on the other hand, “has the same effect as would a failure to object.” Warling, 2013 WL 5276367, at *2 (citation omitted).

         ANALYSIS

         A federal court may not grant habeas relief unless the petitioner “has exhausted available state remedies as to any of his federal claims.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). To exhaust state remedies in Arizona, the petitioner must “fairly present” his claims to the Arizona Court of Appeals. Castillo v. McFadden, 399 F.3d 993, 998- 1000 (9th Cir. 2004). This requires a description of “both the operative facts and the federal legal theory on which his claim is based so that the state courts [could] have a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Id. at 999 (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)). If the petitioner fails to “fairly present” his claims to the state court, they are procedurally defaulted and generally barred from federal habeas review. Id. at 998. Exceptions arise where the petitioner can “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.

         With regard to IAC claims, “each ‘unrelated alleged instance . . . of counsel's ineffectiveness' is a separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (citation omitted). To show cause for procedural default in Arizona, a petitioner must demonstrate: (1) “counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984)”; and (2) “the underlying [IAC] claim is a substantial one, which is to say that the ...