United States District Court, D. Arizona
Honorable Roslyn O. Silver, Senior United States District
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.
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.
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.
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.
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.
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.
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.)
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
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.
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 ...