United States District Court, D. Arizona
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF
F. Metcalf United States Magistrate Judge
MATTER UNDER CONSIDERATION
presently incarcerated in the Arizona State Prison Complex at
Tucson, Arizona, filed an Amended Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 on February 19, 2019
(Doc. 12). The Petitioner's Petition is now ripe for
consideration. Accordingly, the undersigned makes the
following proposed findings of fact, report, and
recommendation pursuant to Rule 8(b), Rules Governing Section
2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28
U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of
RELEVANT FACTUAL & PROCEDURAL BACKGROUND
disposing of Petitioner's direct appeal, the Arizona
Court of Appeals summarized the factual background as
¶2 On November 1, 2012, the Phoenix Police Department
received an anonymous tip that a white jeep was driving
erratically, indicating a possible DUI. Phoenix Police
Officers located the vehicle, called in its plates, and
learned that it had been reported stolen. At that point,
officers pulled the vehicle over and observed Defendant in
the driver's seat in what appeared to be an intoxicated
¶3 The officers placed the Defendant in the patrol car
and transported him to the Phoenix Police Station. An officer
then questioned Defendant on how he came into possession of
the vehicle. Defendant stated a stranger approached him and
offered to sell the vehicle for a total of $3, 000, $500 of
which was due immediately as a down payment. Defendant knew
he was "getting a really good deal," because he
thought the vehicle was worth $12, 000. Defendant paid the
stranger $300 cash on the spot and an additional $200 a few
days later. When the officer requested the name and contact
information for the stranger, Defendant was unable to produce
any identifying information.
¶5 At trial, the victim testified that he did not give
Defendant permission to use the vehicle. Additionally, the
victim testified about the value of the vehicle. He testified
that the vehicle was a 2006 four-door, four-by-four Jeep
Cherokee, and that he had purchased it for $14, 000 in 2010.
He further testified that in 2012, at the time of the theft,
the vehicle was in good working order, had 150, 000 miles,
and, in his estimate, was worth $10, 000.
(Exh. G, Mem. Dec. 10/1/15.) (Exhibits to the Answer, Doc. #,
are referenced herein as “Exh.__ .”)
PROCEEDINGS AT TRIAL
was indicted on one count of theft and two counts of
aggravated DUI. (Exhibit A, Indictment.) Counsel was
appointed. At the Final Trial Management Conference,
Petitioner moved to represent himself, which was granted, but
advisory counsel was appointed. (Exh. B, M.E. 10/15/13.) An
investigator was appointed on Petitioner's motion. (Exh.
C, M.E. 10/31/13.) Petitioner proceeded to a jury trial.
After final jury instructions, Petitioner moved to have
Advisory Counsel assume representation, who then delivered
the closing argument. (Exh. D, M.E. 5/14/14.) Petitioner was
found guilty as charged. A sentencing aggravation hearing was
held, and the jury found the alleged aggravating factors not
proven. (Exh. E, M.E. 5/15/14.) On August 15, 2014,
Petitioner was sentenced to concurrent terms of 9 years on
the theft charge, and eight years on each of the DUI charges.
(Exh. F, Sentence.)
PROCEEDINGS ON DIRECT APPEAL
filed a direct appeal, and through counsel argued that the
trial court erred in instructing the jury that a below fair
market value purchase can create an inference of awareness of
risk that property was stolen, and that the trial court's
single reference to “real” property was not
error. The Arizona Court of Appeals rejected both arguments
and affirmed. (Exh. G, Mem. Dec.)
sought review by the Arizona Supreme Court, which denied
review on April 13, 2016.
PROCEEDINGS ON POST-CONVICTION RELIEF
September 10, 2014, during the pendency of his direct appeal,
Petitioner filed a Notice of Post-Conviction Relief (Exh. H).
Counsel was appointed, who ultimately filed a notice of
inability to find a colorable issue for review. (Exh. I, Not.
Complet.) Petitioner was granted leave to file a pro
per PCR petition, and counsel was directed to remain in
an advisory capacity. (Exh. J, M.E. 8/31/16.)
filed a pro per PCR petition (Exh. K), and a
Petition for Amendment Rule-32 Post Conviction Relief (Exh.
court denied the Petition, finding Petitioner's various
claims without merit, including his claims that counsel was
ineffective for failing to investigate, for failing to
present Petitioner's theory of the case in closing
arguments, and a claim based on an arresting officer who died
prior to trial who may have had exculpatory testimony. (Exh.
P, M.E. 5/22/17.)
sought review from the Arizona Court of Appeals, who granted
review but summarily denied relief. (Exh. Q, Mem. Dec.
2/13/18.) Petitioner did not seek further review.
(Id. at Mandate.)
PRESENT FEDERAL HABEAS PROCEEDINGS
- Petitioner commenced the current case by filing his
original Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 on October 18, 2018 (Doc. 1). That
petition was dismissed with leave to amend. (Order 2/6/19,
Doc. 11.) Petitioner then filed his Amended Petition (Doc.
12) on February 19, 2019 (hereinafter the
“Petition”). Petitioner's Petition asserts
the following four grounds for relief:
Pretrial counsel was ineffective for failing to conduct any
Advisory counsel was ineffective for failing to present the
closing argument requested by Petitioner.
Pretrial counsel was ineffective for failing to advise
Petitioner that the victim had a second vehicle which was
broken into and keys to Petitioner's
“purchased” vehicle were inside the second
Prosecutorial misconduct from failure to disclose the break
in to the victim's second vehicle, the caller, and the
deceased arresting officer.
- On April 24, 2019, Respondents filed their Answer (Doc.
17). Respondents argue that each of Petitioner's grounds
do not merit relief under the deferential review in 28 U.S.C.
- On May 9, 2019, Petitioner filed a Reply (Doc. 21).
Petitioner argues his innocence, failure of the prosecution
to advise the grand jury of exculpatory evidence (including
the “second ...