Whiteside v. Ryan

          REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

          James F. Metcalf United States Magistrate Judge

         I. MATTER UNDER CONSIDERATION

         Petitioner, 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 Civil Procedure.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

         A. FACTUAL BACKGROUND

         In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:

¶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 state.

¶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.__ .”)

         B. PROCEEDINGS AT TRIAL

         Petitioner 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.)

         C. PROCEEDINGS ON DIRECT APPEAL

         Petitioner 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.)

         Petitioner sought review by the Arizona Supreme Court, which denied review on April 13, 2016.

         D. PROCEEDINGS ON POST-CONVICTION RELIEF

         On 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.)

         Petitioner filed a pro per PCR petition (Exh. K), and a Petition for Amendment Rule-32 Post Conviction Relief (Exh. M).

         The PCR 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.)

         Petitioner 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.)

         E. PRESENT FEDERAL HABEAS PROCEEDINGS

         Petition - 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:

         (1) Pretrial counsel was ineffective for failing to conduct any investigation.

         (2) Advisory counsel was ineffective for failing to present the closing argument requested by Petitioner.

         (3) 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 vehicle.

         (4) Prosecutorial misconduct from failure to disclose the break in to the victim's second vehicle, the caller, and the deceased arresting officer.

         Response - 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. § 2254(d).

         Reply - 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 ...