Piotrowski v. Ryan

          ORDER

          DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE.

         On April 13, 2018, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) On June 24, 2019, Magistrate Judge Burns issued a Report and Recommendation (“R&R”) concluding the petition should be denied and dismissed with prejudice. (Doc. 16.) Afterward, Petitioner filed written objections to the R&R (Docs. 22, 23) and Respondents filed a response (Doc. 27). For the following reasons, the Court will overrule Petitioner's objections and deny his petition.

         I. Background

         A. The Underlying Incident

         On May 18, 2011, Detective Zygmont of the Glendale Police Department was conducting surveillance of Petitioner. (Doc. 10-4 at 22-23, 27.) When Petitioner left in a pickup truck with two people, Detective Zygmont followed him with a team of officers. (Id. at 29.) After the truck pulled into the parking lot of a store, Detective Zygmont stopped the truck. (Id. at 29-31.) Petitioner was seated in the middle of the front seat, with the driver and another passenger on either side of him. (Id. at 32-33, 96.)

         When Detective Zygmont ordered the truck's occupants to put their hands up, everybody but Petitioner complied. (Id. at 33-34.) The driver had his hands up and his foot on the brake. (Id. at 35-37.) Petitioner, however, leaned over toward the gearshift and the truck lunged forward. (Id. at 35, 77.) Officers opened the door on the driver's side and the driver turned off the truck. (Id. at 37.) As officers were trying to pull the driver out of the truck, Petitioner “reached over and started the vehicle, turned the ignition back on and began to reach over with his left foot and slam on the gas.” (Id. at 38.) Detective Zygmont “[a]bsolutely” believed he was “in danger at that point in time.” (Id.) Petitioner succeeded in putting the truck into drive, and it lunged forward several feet while one of the officers was halfway into the driver's compartment. (Id. at 39, 82-83.) Each time the truck lunged forward, Detective Zygmont feared he would be pulled under it. (Id. at 39-40.) Detective Zygmont testified that, at one point, he was struck on the arm by the truck's door. (Id. at 117-18 [“It is my belief that I was struck in the arm by the door.”].)

         After the truck's third and final lunge, Petitioner reached under the seat as he continued thrashing about. (Id. at 40.) Believing that Petitioner was attempting to grab a weapon, Detective Zygmont used a Taser to subdue him. (Id. at 40-42.) A different officer later searched Petitioner's sock and found “[a] white rocky substance” (methamphetamine) and “a glass pipe.” (Id. at 126-28.)

         B. The State Proceedings

         On May 26, 2011, Petitioner was indicted by a state grand jury on various charges. (Doc. 10-1 at 4-7.)

         On February 23, 2012, following a four-day jury trial, Petitioner was convicted of one count of aggravated assault on a police officer (Detective Zygmont) and one count of possession or use of dangerous drugs. (Doc. 10-1 at 40-50.)

         On March 9, 2012, Petitioner's trial counsel filed a motion for new trial. (Doc. 10-1 at 51-55.) In a nutshell, Petitioner's trial counsel argued that the aggravated assault conviction was contrary to the weight of the evidence. (Id. at 52-53.)

         On April 20, 2012, the trial judge denied Petitioner's motion for new trial and then sentenced Petitioner to 15.75 years' imprisonment on the aggravated assault count and 10 years' imprisonment on the drug count, to run concurrently. (Doc. 10-1 at 62-66.) Petitioner was later sentenced to additional time for violating his terms of probation arising from earlier convictions. (Doc. 16 at 3-4.)

         On March 18, 2013, Petitioner filed (through appointed counsel) his opening brief in his direct appeal to the Arizona Court of Appeals. (Doc. 10-1 at 85-102.) This brief only challenged the sentences arising from the probation violations (id. at 86)-it did not assert any claims concerning the propriety of the aggravated assault conviction.

         On January 14, 2014, the Arizona Court of Appeals affirmed Petitioner's convictions and sentence. (Doc. 10-1 at 152-59.)

         On June 23, 2014, Petitioner filed a pro se notice of post-conviction relief ...