United States District Court, D. Arizona
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 ...