United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Michelle H. Bums, United States Magistrate Judge
HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT COURT:
Jesus Eduardo Pino, who is confined in the Arizona State
Prison Complex, has filed a pro se Amended Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 10).
Respondents filed a Limited Answer on April 4, 2018 (Doc.
19). The Court, having reviewed Respondents' Limited
Answer and the exhibits filed thereto, and noting that
Petitioner was not afforded counsel during his state court
post-conviction relief proceedings, determined that the
appointment of counsel would be in the interest of justice,
and would possibly benefit Petitioner and the Court in this
matter. Accordingly, the Court appointed Assistant Federal
Public Defender Keith J. Hilzendeger to represent Petitioner,
and ordered that Petitioner have an additional 45 days from
the date of its Order to file a reply to the Limited Answer.
thereafter, filed multiple requests for extensions of time to
file a reply, which the Court granted. Then, on May 20, 2019,
counsel filed an 18-page Motion to Withdraw as Counsel
contending that he has reviewed the state-court record,
consulted with Petitioner and his trial counsel, and
interviewed trial witnesses. Counsel stated that after
conducting this investigation, he “sees no arguable
basis for excusing the procedural default identified in the
state's answer, and accordingly seeks this Court's
leave to withdraw as counsel.” The Court granted the
Motion, and ordered that Petitioner filed his pro se reply to
Respondents' Limited Answer no later than 30 days from
the date of its Order.
2019, Petitioner requested another extension of time. The
Court granted the extension and gave Petitioner until August
4, 2019 to file his reply. To date, no reply has been filed
and the time for doing so has expired.
was convicted by a jury in the Apache County Superior Court,
case ##CR 2012-0167 and CR 2013-064, of two counts of
aggravated assault, disorderly conduct, and misconduct
involving weapons. Petitioner was sentenced to multiple terms
of imprisonment, the longest of which is 11.25 years. In his
Amended Petition, Petitioner raises four grounds for relief:
(1) Petitioner was denied a speedy trial, in violation of the
Sixth Amendment; (2) Petitioner was unable to talk to any
witnesses, in violation of his Sixth Amendment right to
confront witnesses; and (3) Petitioner's counsel was
ineffective, in violation of the Sixth
Arizona Court of Appeals described the facts of the case, as
¶ 2 Bouncer D.S. asked Pino to leave the XA Saloon
because his attire did not comply with the dress code. Pino
became verbally aggressive, threatening to kill D.S. and burn
the bar down; D.S. advised Pino he could never return to the
bar. As Pino was leaving, Detective Herreras drove by, and
Pino stuck his head in the police car window, and yelled
“f--- you.” Detective Herreras testified Pino was
upset “because he had been thrown out of the bar due to
the shirt that he was wearing.” Detective Herreras
tried to calm Pino down and told him to go home.
¶ 3 Pino returned to the XA Saloon later that night;
D.S. forcibly escorted him outside. Bar patrons followed. As
D.S. took Pino outside, Pino fell. D.S. “saw something
sticking out of the back of his jeans, ” and witness
K.S. saw a handle she described as “the top of a
knife” protruding from the back of Pino's pants.
Pino was again verbally aggressive with D.S. Witness Q.M. saw
right hand kept going to the small of his back and ... I seen
a brown-handled kitchen knife, what I interpreted to be a
kitchen knife.... Part of the blade was sticking out of his
pants, as well, and he made several attempts to go for it.
¶ 4 Q.M. tried to warn D.S. because “I thought he
was going for that knife to hurt [D.S.] or anybody
else.” D.S. saw Pino gesture as if he were reaching
behind his back and testified:
[F]rom behind a friend said, hey, man, he has a knife on him.
And as soon as he said that, I looked down, and when I looked
down I saw his hand go back, grab the knife, grab the handle,
and went to pull it. And he was making the pulling gesture is
when I hit him.
Pino fell to the ground after D.S. punched him.
¶ 5 Bar owner J.M. was beside D.S. during the
altercation, and as soon as Pino fell, he and other employees
began ushering patrons back inside the bar. Once Pino got up,
J.M. continued escorting him off the property. Pino continued
threatening J.M. and the bar, and J.M. advised Pino he was
not allowed to return. Though Pino was in the street by this
time, he stepped back onto the sidewalk toward J.M. J.M. and
Pino exchanged words, and “as [Pino] steps up on the
curb, he reaches and out comes that knife. And he's down
in a position ... to jump.” J.M. kicked Pino's hand
and shoved him backwards. Pino fell into a street sign and
then left the area.
¶ 6 Police received a 911 call about a man with a knife
at the XA Saloon. As Detective Herreras drove toward the bar,
he saw Pino walk by a pine tree and then back onto the
sidewalk. Police arrested Pino and later found a knife near
the pine tree. Officers took Pino to the hospital. While
there, Pino was cursing, and when Detective Herreras asked
him to stop, Pino replied, “You can f---ing suck my
d---.” A family that was present “got up and
Pino, 2014 WL 7278480.
record reflects that Petitioner, through counsel, filed a
timely appeal pursuant to Anders v. California, 386
U.S. 738 (1967) stating that, after searching the record,
counsel was unable to discover any arguable questions of law.
(Exh. K.) Petitioner was, thereafter, afforded the
opportunity to file a supplemental brief, but failed to do
so. (Exh. K.) The Arizona Court of Appeals, however, issued
an order pursuant to Penson v. Ohio, 488 U.S. 75
(1998), requesting that the parties file supplemental
briefing addressing the following issues: (1) whether
Petitioner's felony disorderly conduct conviction is a
lesser-included offense of the aggravated assault conviction;
and (2) whether substantial evidence supports the misdemeanor
disorderly conduct conviction. (Exh. K.)
December 23, 2014, the Arizona Court of Appeals issued a
memorandum decision vacating the misdemeanor disorderly
conduct conviction, but affirming the remaining convictions
and sentences. See Pino, 2014 WL 7278480. The court
remanded the case back to the trial court for further
proceedings pursuant to its decision. Petitioner filed a
petition for review, and the Arizona Supreme Court denied
review on May 22, 2015. (Exh. T.)
August 26, 2015, the trial court resentenced Petitioner,
imposing the prior sentence for the affirmed counts and
vacating the ...