Dominguez-Osorio v. Ryan

          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 ...