Abdin v. Ryan
Decision Date | 28 March 2017 |
Docket Number | CV-16-2003-PHX-GMS (JFM) |
Parties | Samer W. Abdin, Petitioner v. Charles L. Ryan, et al., Respondents. |
Court | U.S. District Court — District of Arizona |
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.
In disposing of Petitioner's direct appeal, the Arizona Court of Appeals provided the following summary of the evidence at trial:
(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)
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:
(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.)
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.)
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.)
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.
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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