United States District Court, D. Arizona
THE
HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT COURT
JUDGE.
REPORT AND RECOMMENDATION
MICHELLE H. BURNS UNITED STATES MAGISTRATE JUDGE.
On
April 18, 2018, Petitioner Rudy Dominguez-Osorio, who is
confined in the Arizona State Prison, Lewis Complex, Buckeye,
Arizona, filed a pro se Petition to Seek Assistance
of the Court, in the Northern District of California District
Court. (Doc. 1.) In his pleading, Petitioner asserted his
innocence and requested “assistance” from the
Court in vacating his conviction. (Id.) Because
Petitioner is confined in Arizona, the Northern District of
California transferred Petitioner's case to this Court.
(Doc. 6.) The Clerk of Court thereafter directed Petitioner
to file a complaint or petition on the proper form, and
provided Petitioner a blank petition for writ of habeas
corpus form. (Doc. 3.) Petitioner was also provided an
Application for In Forma Pauperis form, and was directed to
respond to the notice of deficiencies within 28 days. (Doc.
4.)
On May
3, 2019, the Court construed Petitioner's initial filing
as a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, and directed Petitioner fo file an amended
petition within thirty (30) days, and furthermore directed
Petitioner to pay the $5.00 filing fee or file a completed
application to proceed in forma pauperis. (Doc. 9.)
Petitioner's pro se Amended Petition for Writ of
Habeas Corpus (“amended habeas petition”) was
ultimately filed on August 10, 2018. (Doc. 18.) Respondents
filed a Limited Response on December 18, 2018. (Doc. 30.)
Petitioner has not filed a Reply.
BACKGROUND
Petitioner
was convicted in the Maricopa County Superior Court, State of
Arizona, after a jury trial on seven felony counts: Count 1,
second-degree murder, Count 2, assisting a criminal street
gang, and Counts 3-6, aggravated assault. (Doc. 30-1, Exh.
B[1] at
4.) Petitioner also accepted a guilty plea to Count 7,
misconduct involving weapons. (Id.) On July 27,
2011, Petitioner was sentenced to a total of 142 years in
prison. (Id; Exh. O at 2.) He timely appealed his
convictions and sentence to the Arizona Court of Appeals, and
was appointed counsel. Appointed counsel subsequently filed
an opening brief pursuant to Anders v. California,
386 U.S. 738 (1967), indicated that he had searched the
record and was unable to find any arguable question of law
that is not frivolous, and requested that the appellate court
review the proceedings for fundamental error. (Doc. 30-1,
Exh. B at1-15.) Petitioner was given an opportunity to file a
pro se supplemental opening brief. In his
Supplemental Brief, Petitioner raised one issue, that the
trial court erred by admitting gang evidence, and that the
evidence introduced at trial was not sufficient to prove his
actions were gang motivated. (Id. at Exh. C.)
On
December 19, 2013, the Arizona Court of Appeals reviewed
Petitioner's convictions and sentence for fundamental
error and affirmed, although the Court modified his sentence
on Count 2 by crediting Petitioner with 984 days of
presentence incarceration credit. (Doc. 30-1, Exh. D.)
Petitioner filed a Petition for Review in the Arizona Supreme
Court, which was summarily denied on November 13, 2013. (Doc.
30-1, Exh. F.)
While
Petitioner's appeal was pending, on January 17, 2012,
Petitioner filed a Notice of Post-Conviction relief in the
trial court. (Doc. 30-1, Exh. G at 1-3.) Appointed counsel
then filed a request to extend the time to file a Rule 32
petition until the conclusion of Petitioner's direct
appeal. (Id., Exh. I.) The trial court granted the
request for additional time; however, it dismissed the Rule
32 proceedings with leave to re-file within 30 days following
the conclusion of the direct appeal proceedings.
(Id., Exh. J.) On December 13, 2013, Petitioner
timely re-filed his Notice of PCR, and counsel was again
appointed. (Id., Exhs. K-L.)
On July
7, 2014, Petitioner's appointed counsel then filed a
Notice of Completed Review, in which she indicated that she
had reviewed the transcripts, case history, and had spoken
“extensively with the trial attorney, ” but that
she found no issues to pursue. (Doc. 30-1, Exh. M.) Counsel
requested that Petitioner be given 45 days to file a pro per
petition for post-conviction relief. (Id.) On
November 17, 2014, Petitioner filed a Memorandum in Support
of Pro-Se Petition for Post-Conviction Relief. (Id.,
Exh. N at 1-14.) In his PCR petition, Petitioner raised two
claims: (1) that he received ineffective assistance of trial
counsel, in that she failed to properly investigate his case,
failed to object to a faulty reasonable doubt instruction,
and denied Petitioner his right to testify, and, (2) that he
received ineffective assistance of appellate counsel.
(Id.)
On
April 22, 2015, the trial court issued its ruling, denying
relief. As to Petitioner's claim of ineffective
assistance of trial counsel, the court reasoned as follows:
While Defendant claims generally that counsel failed to
properly investigate his case, the only specific allegations
that Defendant brings out in support of this claim are his
assertions that counsel failed to interview potentially
exculpatory witnesses. As to each of those witnesses,
Defendant presents only his own, speculative contentions as
to what those witnesses would have testified to had they been
called to testify at trial. In the absence of any additional,
corroborative evidence (such as affidavits from one or more
of the witnesses), Defendant's self-serving statements do
not present a colorable claim of ineffective assistance of
counsel for failure to properly investigate.
Defendant's next claim of ineffective assistance of
counsel is based on his assertion that counsel failed to
object to a “constitutionally deficient reasonable
doubt instruction”. Defendant fails, however, to
establish the factual predicate that the instruction given
was constitutionally deficient.
Accordingly, Defendant fails to state a colorable claim that
counsel's failure to object was conduct that “fell
below objectively reasonable standards”.[]
Finally, Defendant contends that the trial counsel denied him
his right to testify in his own behalf. Even accepting
Defendant's contention as true (and the Court expresses
significant doubt as to Defendant's inability to have
presented this conflict to the Court at trial, if it in fact
existed), Defendant has failed to make any showing as to how,
if ...