Abdin v. Ryan

Decision Date28 March 2017
Docket NumberCV-16-2003-PHX-GMS (JFM)
PartiesSamer W. Abdin, Petitioner v. Charles L. Ryan, et al., Respondents.
CourtU.S. District Court — District of Arizona
Report & Recommendation on Petition for Writ of Habeas Corpus
I. MATTER UNDER CONSIDERATION

Petitioner, presently incarcerated in the Arizona State Prison Complex at Buckeye, Arizona, filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 5, 2016 (Doc. 5). On October 21, 2016, Respondents filed their Answer (Docs. 14 thru 27 ). Petitioner filed a Reply on December 12, 2016 (Docs. 31, 32).

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 provided the following summary of the evidence at trial:

On March 20, 2010, a thirty-six-foot 2005 Wells Cargo trailer that had been reported stolen by the victim (M.D.) was found by M.D., who subsequently alerted police. Defendant was the registered owner of the license plate affixed to the trailer. Because the vehicle identification number (VIN) had been etched off, police were initially unable to determine ownership of the trailer.
When first contacted by police, Defendant initially cooperated by answering questions but eventually ended discussions, stating that further questions should be directed to his attorney, Bob Storrs. Police then communicated with Defendant through Storrs, indicating they suspected the trailer was stolen and requesting it be made available for inspection.
On April 8, 2010, a police officer followed Defendant's truck to a tow yard. After the truck arrived at the tow yard, the trailer was hitched to Defendant's truck. After leaving the tow yard, the truck and trailer were involved in an accident. Thereafter, the trailer was towed to the Scottsdale Police Department's secure yard, where police identified the trailer as the one reported stolen by M.D. Police then executed a search warrant at a residence owned by Defendant's mother, where they found three knives and an ax in a fifth-wheel camper located in the backyard of the residence.

(Exhibit A, Mem. Dec. 8/9/12 at ¶¶ 4-6.) (Exhibits to the Answer, Doc. 14, as contained in Docs. 15-27, are referenced herein as "Exhibit ___."1)

B. PROCEEDINGS AT TRIAL

On May 18, 2010, an Information (Exhibit B) was filed in Maricopa County Superior Court charging Petitioner with one count of theft of a means of transportation, and one count of weapons misconduct.

Petitioner proceeded to trial. The evidence at trial was described by the Arizona Court of Appeals as follows:

At trial, the State presented evidence that Defendant had been in unlawful possession of M.D.'s trailer and that he illegally possessed deadly weapons due to his status as a convicted felon. Specifically, M.D. testified he had never met Defendant and did not give Defendant permission to control or possess the trailer. Regarding the misconduct involving weapons charge, a police officer testified Defendant's mother told police that Defendant lived in the fifth-wheel camper. Police officers also testified that the knives found in the camper were designed for lethal use and Defendant admitted ownership of the knives during a telephone conversation. A custodian of records relating to the restoration of civil rights testified that Defendant was a convicted felon and was prohibited from possessing deadly weapons. Defendant's prior criminal record was certified through fingerprint analysis.
Defendant also presented witnesses in his defense.
Defendant's mother and brother testified that Defendant lived in the house, not in the fifth-wheel camper, and that the camper was used for storage. A witness for Defendant also testified that Defendant purchased the trailer from a third party seller but was unable to accept delivery of title because he was unable to contact the seller after the initial transaction.

(Exhibit A, Mem. Dec. 8/9/12 at ¶¶ 7-8.)

Petitioner was convicted on both counts, and was sentenced to "an eight-year mitigated term for theft of means of transportation and an eight-year minimum term for misconduct involving weapons, to be served concurrently." (Id. at ¶ 10; Exhibit E, Order Confinement.)

C. PROCEEDINGS ON DIRECT APPEAL

Petitioner filed a direct appeal, but counsel was unable to file an issue for appeal, and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and related state court authorities. Petitioner was granted leave to file a supplemental brief in propria persona. (Exhibit A, Mem. Dec. 8/9/12 at ¶ 2.)

Petitioner filed his Supplemental Brief (Exhibit H), arguing the trial court erred in not giving a lesser included offense instruction, and in giving an incomplete instruction on theft of means of transportation, and asserted insufficient evidence to convict. The Arizona Court of Appeals found the issues raised to be without merit. The Court further reviewed the record for reversible error, and found none. (Exhibit A, Mem. Dec. 8/9/12 at ¶ 20.) Petitioner's convictions and sentences were affirmed. (Id. at ¶ 22.)

Petitioner did not seek further review. (Exhibit I, Mandate.)

D. PROCEEDINGS ON POST-CONVICTION RELIEF

Petitioner then filed a Notice of Post-Conviction Relief (Exhibit J). Counsel was appointed (Exhibit K, M.E. 8/28/12), but eventually filed a Notice of Completion evidencing an inability to find an issue for review. Counsel was directed to remain in an advisory capacity and Petitioner was granted leave to file a pro per PCR petition. (Exhibit L, M.E. 12/30/13.)

Petitioner filed his pro per PCR petition (Exhibit M), arguing ineffective assistance of counsel, based on counsel's failure to: (1) move to sever the offenses; (2) preserve Petitioner's rights to a speedy trial; (3) move to exclude cumulative and prejudicial evidence; (4) make a substantive opening statement to the jury; and (5) appropriately advise Petitioner regarding waiver of a lesser included offense instruction.

The PCR court rejected each of the claims on the merits. (Exhibit P, M.E. 6/2/14.)

Petitioner then filed a Petition for Review (Exhibit Q), again raising the same claims of ineffective assistance of counsel.

On May 31, 2016, the Arizona Court of Appeals issued its Memorandum Decision (Exhibit S), granting review, but denying relief. The Court found that each of Petitioner's claims of ineffective assistance were without merit.

Petitioner did not seek further review. (Exhibit T, Mandate 8/2/16.)

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 June 20, 2016 (Doc.1). Prior to issuance of a service Order, Petitioner filed his Amended Petition (Doc 5). Petitioner's Amended Petition asserts the following five grounds for relief based on ineffective assistance of counsel:

In Ground One, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his counsel failed to move the trial court for a severance of the two charges. In Ground Two, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his counsel failed to object and preserve Petitioner's right to a speedy trail [sic]. In Ground Three, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his counsel failed to file a pretrial motion to exclude evidence that was cumulative, prejudicial, and not part of the indictment. In Ground Four, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his counsel failed to make a "substantive opening statement to the jury." In Ground Five, Petitioner alleges that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments when his counsel advised him to waive the "lesser included offense instructions to the jury."

(Order 7/26/16, Doc. 6 at 2 (emphasis added).)

Response - On October 21, 2016, Respondents filed their Response ("Answer") (Doc. 14). Respondents argue that Petitioner's claims are without merit and do not merit relief under the standards provided in 28 U.S.C. § 2254.

Reply - On December 12, 2016 Petitioner filed a Reply (Doc. 31) and supporting Affidavit (Doc. 32). Petitioner argues his Ground One is meritorious.

III. APPLICATION OF LAW TO FACTS
A. APPLICABLE LAW
1. Standards of Habeas Review

Standard Applicable on Habeas - While the purpose of a federal habeas proceeding is to search for violations of federal law, in the context of a prisoner "in custody pursuant to the judgment a State court," 28 U.S.C. § 2254(d) and (e), not every error justifies relief.

Errors of Law - "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly." Woodford v. Visciotti, 537 U. S. 19, 24- 25 (2002) (per curiam). To justify habeas relief, a state court's decision must be "contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" before relief may be granted. 28 U.S.C. §2254(d)(1).

Errors of Fact - Federal courts are further authorized to grant habeas relief in cases where the state-court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). "Or, to put it conversely, a federal court may not second-guess a state court's...

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