Pino v. Ryan

          REPORT AND RECOMMENDATION

          Michelle H. Bums, United States Magistrate Judge

         TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT COURT:

         Petitioner 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.

         Counsel, 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.

         In July 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.

         BACKGROUND

         Petitioner 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.^[1] 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 Amendment.^[2]

         The Arizona Court of Appeals described the facts of the case, as follows:

¶ 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 that Pino's

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 left.”

Pino, 2014 WL 7278480.

         The 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.)

         On 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.)

         On August 26, 2015, the trial court resentenced Petitioner, imposing the prior sentence for the affirmed counts and vacating the ...