Appolon v. Shinn

• Decision Date: 28 April 2021
• Docket Number: CV-18-0357-TUC-CKJ (BGM)
• Parties: Esterlin Appolon, Petitioner, v. David Shinn, [1] et al., Respondents.
• Court: U.S. District Court — District of Arizona

Esterlin Appolon, Petitioner,
v.
David Shinn, ^[1] et al., Respondents.

No. CV-18-0357-TUC-CKJ (BGM)

United States District Court, D. Arizona

April 28, 2021

REPORT AND RECOMMENDATION

Honorable Bruce G. Macdonald, United States Magistrate Judge.

Currently pending before the Court is Petitioner Esterlin Appolon's Third Amended Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Third Amended Petition”) (Doc. 32). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 35), and Petitioner did not reply. The Third Amended Petition (Doc. 32) is ripe for adjudication.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, ^[2] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1). . . . . . . . . .

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I. FACTUAL AND PROCEDURAL BACKGROUND

A. Initial Charge and Sentencing

The Arizona Court of Appeals stated the facts^[3] as follows:

After a jury trial, Appolon was convicted of two counts of aggravated assault.[1] The convictions were based on an incident in which Appolon shot a friend who owed him money Before sentencing, Appolon's counsel filed a motion to withdraw because he believed that Appolon had a “colorable claim of ineffective assistance of counsel” based on his failure to watch body camera footage from one of the arresting officers. The trial court granted the motion, as well as Appolon's request to proceed pro se, but it appointed advisory counsel for Appolon. The court sentenced Appolon to concurrent prison terms of 11.25 years

[1] A mistrial was declared during the first two trials after the juries were unable to reach verdicts

Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 2019-0222-PR, Mem. Decision (Ariz.Ct.App. March 6, 2020) (Exh. “A”) (Doc. 35-1) at 5.^[4] On October 8, 2017, prior to his sentencing, Petitioner filed a Notice of Appeal of a [sic] Order. Answer (Doc. 35), Def.'s Not. of Appeal of a Order, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. Oct. 9, 2017) (Exh. “B”) (Doc. 35-1). On November 29, 2017, the Arizona Court of Appeals dismissed this appeal as premature. Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 2017-0331, Order (Ariz.Ct.App. Nov. 29, 2017) (Exh. “C”) (Doc. 35-1). On January 30, 2018, the trial court sentenced Petitioner. Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Minute Entry (Pima Cnty. Super. Ct. January 30, 2018) (Exh. “D”) (Doc. 35-1). . . .

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B. Direct Appeal

On February 6, 2018, Petitioner filed a Notice of Appeal from the judgment and sentence. See Answer (Doc. 35), Def.'s Not. of Appeal, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. Feb. 6, 2018) (Exh. “E”) (Doc. 35-1). On March 19, 2018, Petitioner filed a “Voluntary Dismissal” seeking to proceed pro se and asserting that “[t]here a [sic] egregious conflict of interest as I has [sic] filed a civil action against this court . . . I appealed this above-mention [sic] matter to [sic] Arizona State Supreme Court not this Court of Appeals.” Answer (Doc. 35), Def.'s Voluntary Dismissal at 25, State v. Appolon, No. 2 CA-CR 2018-0049 (Ariz.Ct.App. Mar. 19, 2018) (Exh. “F”) (Doc. 35-1). Petitioner further asserted that “[a]ppealing this above-mention [sic] matter in this court deem [sic] to be futility.” Id. On March 20, 2018, the Arizona Court of Appeals acknowledged Petitioner's filing, and directed appointed counsel to file a status report. Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 2018-0049, Order (Ariz.Ct.App. Mar. 20, 2018) (Exh. “G”) (Doc. 35-1). On March 30, 2018, appointed counsel filed a status report confirming Petitioner's desire to proceed pro se and seeking to withdraw. Answer (Doc. 35), Status Report at 52, State v. Appolon, No. CA-CR 2018-0049 (Ariz.Ct.App. Mar. 30, 2018) (Exh. “H”) (Doc. 35-1). On April 3, 2018, the Arizona Court of Appeals granted counsel's motion to withdraw, and pursuant to Petitioner's pro se Voluntary Dismissal, dismissed the appeal. Answer (Doc. 35), State v. Appolon, No. CA-CR 2018-0049, Order (Ariz.Ct.App. Apr. 3, 2018) (Exh. “I”) (Doc. 35-1).

C. Post-Conviction Relief Proceeding

On April 20, 2018, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 35), Petr.'s Not. of PCR, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. Apr. 20, 2018) (Exh. “J”) (Doc. 35-1). On April 30, 2018, the trial court appointed PCR counsel. Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Not. Re Not. of Pet. for PCR (Pima Cnty. Super. Ct. Apr. 30, 2018) (Exh. “K”) (Doc. 35-1). A year later, on April 30, 2019, the Rule 32 court issued an order addressing several motions filed by Petitioner. Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Order (In

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Chambers) (Pima Cnty. Super. Ct. Apr. 30, 2019) (Exh. “L”) (Doc. 35-1). In providing a procedural background, the Rule 32 court observed that pursuant to Petitioner's request, it had struck the PCR Petition filed by counsel and given Petitioner until mid-May 2019 to file a supplement; however, on April 22, 2019 Petitioner had filed a “Petition for Postconviction Relief.” Id. at 68. The Rule 32 court directed Petitioner to clarify whether the April 22, 2019 petition was meant to be his initial Rule 32 petition, and if not to file a motion to withdraw. Id. at 68-69. Additionally, the Rule 32 court reminded Petitioner of the consequences, e.g., preclusive effect, of going forward with the April 22, 2019 petition. Id. at 68. On May 14, 2019, the Rule 32 court acknowledged that Petitioner had filed a motion to dismiss his initial pending Rule 32 motion. Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Ruling-In Chambers Ruling Re Def.'s Mot. to Dismiss His Rule 32 Pet. (Pima Cnty. Super. Ct. May 14, 2019) (Exh. “M”) (Doc. 35-1). The Rule 32 court expressed its continued concern regarding the wisdom of Petitioner's self-representation and reiterated the impact of granting his motion to dismiss. Id. As such, the Rule 32 court delayed ruling on Petitioner's motion to dismiss and provided him another opportunity to pursue his post-conviction relief proceeding. Id. at 72.

1. PCR Petition

On May 30, 2019, Petitioner filed his Petition for PCR. See Answer (Doc. 35), Pet. for PCR, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. May 30, 2019) (Exh. “N”) (Doc. 35-1); see also Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Ruling-In Chambers Ruling (Pima Cnty. Super. Ct. June 5, 2019) (Exh. “O”) (Doc. 35-1) (denying Petitioner's previously filed motion to dismiss and construing his May 30, 2019 pleading as an initial PCR petition). In his PCR Petition, Petitioner asserted three claims for relief. Answer (Doc. 35), Exh. “N” at 74. First, Petitioner alleged that “[t]here was insufficient evidence to justify a rational trier of facts [sic] to find guilt beyond a reasonable doubt of Agg[ravated] assa[ult] causing physical injury and Agg[ravated] assa[ult] wit[h] a deadly weapon under Arizona laws[.]” Id. at 74-77. Petitioner urged that the State failed to “prove the essential elements of the two counts, nor prove mens rea

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of the two crimes.” Id. at 75. Petitioner asserted that “[n]o confession of guilt was given by [him] at trial or at all, and/or pretrial. Id. Petitioner also argued that “[n]o gun, DNA, or other incriminating evidence such as bloody clothing was found or presented at trial[, ]” and highlighted alleged inconsistencies or weaknesses in witness testimony. Id. at 75-76. Additionally, Petitioner took issue with the cellular telephone data presented by the State. Answer (Doc. 35), Pet. for PCR, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. May 30, 2019) (Exh. “N”) (Doc. 35-1). Second, Petitioner alleged that “[t]he lack of jurisdiction of the Court to render judgment or impose sentence[.]” Id. at 74, 77- 80. Petitioner asserted that “[t]here wasn't any pretrial statement made by me of guilt or mens rea proved by the State.” Id. at 78. Petitioner further asserted that “[t]here was no witness to the crime present at [his] trial” and “the victim said he never seen who shoot [sic] him.” Id. Petitioner argued that “[o]n the face of the indictment presented at ¶ 3rd trial the Superior Court was without jurisdiction to render judgment or impose sentence.” Id. Petitioner opined that “[t]he lack of evidence . . . [was insufficient] to justify a rational trier of facts [sic] to find guilt beyond a reasonable doubt of the two counts.” Answer (Doc. 35), Pet. for PCR, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. May 30, 2019) (Exh. “N”) (Doc. 35-1) at 78. Petitioner also asserted that “[a] contract and/or waiver of right to lawyer was . . . void because I didn't want to sign it.” Id. at 79. Petitioner claimed that he “never felt right signing the waiver and/or contract I withdrawn from the waiver.” Id. Petitioner further objected to his sentencing and having to sign the appeal notice afterward. Id. at 80. Petitioner argued that “[t]he Superior Court and Marner was [sic] without jurisdiction over the cause, to render judgment or to impose sentence, subject-matter jurisdiction and jurisdiction asserted by the court offend against natural justice, and violate fundamental fairness and due process clause of the 14th of the U.S. Const.” Answer (Doc. 35), Exh. “N” at 80. Finally, Petitioner alleged that the Justice of the Peace Court lacked jurisdiction over his initial appearance or complaint. Id. at 74, 77-80. Petitioner asserted that he was arrested “without probable cause or without any officers seeing a crime being commit[ted].” Id. at 77. Petitioner further alleged that the complaint “fail[ed] to

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state a claim” and argued that “[t]here was no statement made by [Petitioner] or evidence that [he]...