United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge
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.
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.
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.
was released from prison on September 29, 2018 and will be on
probation until December 28, 2019. (Doc. 11-1 at 4.)
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
11-6 at 19.)
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
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
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
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
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
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
Id. at 80-85. The PCR petition was fully briefed.
(Doc. 11-6 at 130-45; Doc. 11-7 at 2-64.)
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.
(Doc. 11-7 at 66-67.)
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.
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).
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:
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;
2: His due process rights were violated when a grand jury was