Beasley v. Ryan

          REPORT AND RECOMMENDATION

          Honorable D. Thomas Ferraro United States Magistrate Judge

         Petitioner Telly Onturio Beasley (Beasley or Petitioner), formerly confined in the Arizona State Prison Complex, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Petition). (Doc. 1.) Before the Court are the Petition, Petitioner's memorandum in support of his Petition and Respondent's Limited Answer to Petition for Writ of Habeas Corpus (Answer). (Docs. 2, 11.) This matter was referred to Magistrate Judge Ferraro for Report and Recommendation. (Doc. 6.) As more fully set forth below, the Magistrate Judge recommends that the district court, after its independent review, dismiss the Petition.

         BACKGROUND

         Factual Background

         In July and August of 2007, Petitioner entered several different PLS Check Cashers (PLS) locations in Maricopa County, Arizona and cashed checks that were purportedly issued to him from various payors. On August 12, 2007, while Petitioner was attempting to cash a check a PLS employee notified the police. Police responded to the PLS store and arrested Petitioner. Petitioner was searched, and a usable amount of marijuana was discovered.

         Petitioner was subsequently indicted in the Arizona Superior Court, Maricopa County. Petitioner admitted at trial that he presented and endorsed four of the five checks to PLS, including check number 1482, but testified that he did not know the checks were illegitimate. (Doc. 11-4 at 71-74, 100, 145-46.) A forensic document examiner testified that Petitioner had endorsed check number 1482. (Doc. 11-3 at 120-34.) The jury found Petitioner guilty on counts 1, 2, 4, 5 and 6 and acquitted him on count 3. (Doc. 11-4 at 222-23.) On August 1, 2013, the trial court sentenced Petitioner to mitigated concurrent sentences of 1.1 years' imprisonment on counts 1, 4, 5 and 6. (Doc. 11-5 at 18-21, 27-28.) On count 2, the trial court suspended imposition of sentence and ordered that Petitioner be placed on probation for 1-year following his release from prison. Id. 18-21, 29.

         Petitioner was released from prison on September 29, 2018 and will be on probation until December 28, 2019. (Doc. 11-1 at 4.)

         Direct Appeal

         On August 20, 2013, Petitioner filed a timely notice of appeal. (Doc. 11-5 at 34-35.) On February 21, 2014, Petitioner, through counsel, filed an opening brief challenging only his conviction on count one. (Doc. 11-5 at 57.) Petitioner stated the issue in his direct appeal thusly:

Where no testimony purported to establish that Telly Beasley presented or offered check #1482 is there sufficient evidence of forgery when he was only charged with offering or presenting the check, not with mere possession?

Id. After a full briefing, the court of appeals affirmed Petitioner's convictions determining:

…[T]o the contrary, the record unequivocally establishes that Beasley presented check number 1482. Indeed, Beasley admitted at trial that he did so. Additionally, when police officers arrested Beasley at a check cashing business, the store's manager gave them the check Beasley had endorsed.

         (Doc. 11-6 at 19.)

         Post-Conviction Relief Proceedings

         On December 17, 2014, Petitioner timely mailed from prison a pro se notice of post-conviction relief (PCR). (Doc. 11-6 at 22-24.) Petitioner requested to continue pro se in his PCR proceedings. Id. at 26-27. On May 11, 2015, Petitioner filed an Amended Petition for Post-Conviction Relief. (Doc. 11-6 at 29-128.) Petitioner raised the following claims for relief:

Issue 1: Did the Superior Court of the State of Arizona in and for Maricopa County retain subject matter jurisdiction in this cause?

Issue 2: Due process of law was abridged by the State, depriving Mr. Beasley of constitutionally secured rights, thereby[] relinquishing the court of subject matter jurisdiction.

Issue 3: Were PLC Check Cashers' records and Jeffrey Degalier's and Lisa Whisler's testimony admissible under Arizona Rules of Evidence and were they prejudicial to Mr. Beasley's right to a fair trial?

Issue 4: Was Mr. Beasley allowed to exercise his right to confront his accusers regarding the forgery charges in Counts 1, 2, 4, and 6?

Issue 5: Was the state's altered and inconclusive evidence sufficient to prove every element of the alleged offenses beyond a reasonable doubt?

Issue 6: Was the errant instruction directing jurors that the state need not prove motive prejudicial to the administration of justice in this matter?

Issue 7: Should the jury in this matter be considered impartial based on the evidence, testimony and jury instructions presented for deliberation concluding in a finding of guilty on counts 1, 2, 4, 5 and 6?

Issue 8: Was the court's abuse of discretion prejudicial to Mr. Beasley's guaranteed right to fair trial and due process?

Issue 9: Did the state's prosecutorial misconduct amount to more than harmless error and did it affect Mr. Beasley's ability to receive a fair trial?

Issue 10: Was the performance of Mr. Beasley's court appointed trial counsel prejudicial to Mr. Beasley's ability to receive a fair trial?

Id. at 34-38. Petitioner's ineffective assistance of counsel claim alleged in issue number 10 raised several sub-claims:

10(a) Beasley's trial counsel failed to challenge the proceedings based on his right to a speedy trial;

10(b) Beasley's trial counsel failed to call a PLS employee as a defense witness;

10(c) Beasley's trial counsel failed to preclude the untimely disclosed evidence;

10(d) Beasley's trial counsel filed an untimely motion to sever offenses;

10(e) Beasley's trial counsel stipulated to hand-writing comparison documents, which were prejudicial to him;

10(f) Beasley's trial counsel failed to reasonably investigate an analysis of the marijuana evidence;

10(g) Beasley's trial counsel failed to make any objection to the errant juror instruction concerning the state's need to prove motive; and

10(h) Beasley's trial counsel failed to object to the state's attempt to shift the burden of proof during closing argument.

Id. at 80-85. The PCR petition was fully briefed. (Doc. 11-6 at 130-45; Doc. 11-7 at 2-64.)

         The trial court dismissed the PCR petition determining:

Mr. Beasley raises ten issues for review. However, as the State properly asserts in its Response, nine of the issues could have been raised on appeal and are therefore precluded.

[…]

The tenth issue, ineffective assistance of counsel, is properly before the court. It is apparent to the court, based on Mr. Beasley's extensive briefing, that Mr. Beasley understands the standard to successfully assert ineffective assistance of counsel: counsel's breach of duty and resulting prejudice (reasonable probability that but for counsel's errors, the outcome of trial would have been different). The court recalls that Mr. Beasley's trial counsel, Mr. Finsterwalder, enjoyed some successes in his defense of Mr. Beasley. The court finds that Mr. Beasley falls short of establishing that he is entitled to an evidentiary hearing to address his claim of ineffective assistance of counsel for the reasons set forth in the State's Response. On all eight claims, Defendant has not established that his counsel fell below what a reasonably competent attorney would have done in representing Mr. Beasley.

(Doc. 11-7 at 66-67.)

         Petitioner filed a petition for review in the court of appeals arguing that the trial court wrongly precluded his first nine issues and reasserted his ineffective assistance of counsel claims. Id. at 69-113. The state filed a response. Id. at 115-32.

         The court of appeals granted review but denied relief holding:

As an initial matter, the superior court correctly dismissed the claims Beasley raised for the first time in his reply because Beasley waived them. […] Beasely improperly failed to seek the superior court's permission to raise new issues not presented in his amended petition.[] Because Beasley has waived his arguments regarding newly discovered evidence and ineffective assistance of appellate counsel, we do not address them. […]

Beasley argues the superior court erred in relying on preclusion to dismiss the claims in his amended petition that were not based on IAC. Beasley contends the burden was on the State to prove his claims were precluded, and the State failed to do so.

Beasley is incorrect. Any claim that was or could have been raised on direct appeal or in an earlier post-conviction relief proceeding is precluded, except for claims raised under Rule 32.2(b). […]

Beasley did not raise a colorable claim of IAC because he did not provide the superior court with relevant evidentiary support establishing trial counsel's purported conduct fell below prevailing professional norms. See Ariz. R. Crim. P. 32.5 (“Affidavits, records, or other evidence currently available to the defendant supporting the allegations of the petition shall be attached to it.”).

Moreover, although Beasley cites authorities for general principles of law, he neither cites nor applies authorities concluding comparable conduct of counsel constituted ineffective assistance in the context of the specific claims of IAC Beasley raises. Beasley's unsupported assertions that counsel erred is insufficient to meet his burden of demonstrating the first Strickland requirement. See State v. Donald, 18 Ariz. 406, 414, ¶21 (App. 2000) (to warrant evidentiary hearing, Rule 32 claim ‘must consist of more than conclusory assertions').

Finally, Beasley attempts to incorporate by reference issues and arguments raised in his petition for post-conviction relief, his reply, and motion for rehearing. A petition for review may not incorporate by reference any issue or argument. The petition must set forth specific claims, present sufficient argument supported by legal authority, and include citation to the record.

Ariz. R. Crim. P. 32.9(c)(1) (petition must contain ‘[t]he reasons why the petition should be granted' and either an appendix or ‘specific references to the record,' but ‘shall not incorporate any document by reference, except the appendices'); Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition must state ‘[t]he issues which were decided by the trail court and which the defendant wishes to present to the appellate court for review').

(Doc. 11-7 at 149-52.) (footnote omitted).

         Habeas Corpus Proceedings

         On August 23, 2018, Petitioner filed the Petition. (Doc. 1.) The Petition raises 11 claims for relief with claims 10 and 11 raising subparts. Id. Petitioner claims:

         Claim 1: His due process and equal protection rights were violated when the Arizona Court of Appeals found the grounds in his petition for post-conviction relief were precluded;

         Claim 2: His due process rights were violated when a grand jury was ...