Benefield v. Ryan

• Decision Date: 02 July 2012
• Docket Number: No. CV-11-438-PHX-ROS (LOA),CV-11-438-PHX-ROS (LOA)
• Parties: Kacy K. Benefield, Petitioner, v. Charles L. Ryan, et. al, Respondents.
• Court: U.S. District Court — District of Arizona

Kacy K. Benefield, Petitioner,

v.Charles L. Ryan, et. al, Respondents.

No. CV-11-438-PHX-ROS (LOA)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dated: July 2, 2012

REPORT AND RECOMMENDATION

Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, doc. 1, challenging his convictions in Arizona Superior Court, Maricopa County. (Doc. 1) Respondents filed an Answer, asserting that the Petition was untimely. After an initial review of the record, including Petitioner's reply, the Court believed the Petition might be timely, and thus, directed Respondents to file a Supplemental Answer, addressing the merits of the claims asserted in his Petition for Writ of Habeas Corpus. Respondents filed a timely motion for reconsideration of that order. Because the Court was inclined to grant the motion for reconsideration, briefing was authorized.

After Petitioner filed a response to the motion for reconsideration, the Court denied Respondents' motion for reconsideration and ordered further briefing, including a discussion of how the Supreme Court's recent decision in Martinez v. Ryan, _ U.S. _, 2012 WL 912950 (March 20, 2012), may impact this case. (Doc. 26) Respondents filed a Supplement Response, doc. 27, to which Petitioner has replied, doc. 29. For the reasons set forth below, the Petition should be denied.

I. Background

A. Indictment, Trial, and Sentencing

Based on events that took place in July of 2004, Petitioner was indicted in the Superior Court of Arizona, Maricopa County, on the following charges: Count 1 - Burglary in the First Degree, a class 2 dangerous felony; Count 2 - Aggravated Assault, a class 3 dangerous felony; Count 3 - Endangerment - a class 6 dangerous felony; and Count 4 -Assault, a class 1 misdemeanor. (Respondents' Exh. A¹ ) On January 19, 2005, Petitioner's case proceeded to trial.² (Respondents' Exhs. B-G) On January 27, 2005, a jury convicted Petitioner of the following crimes: Count 1 - Burglary in the First Degree, a dangerous offense; Count 2 - the lesser included offense of Disorderly Conduct, a dangerous offense; Count 3 - Endangerment, a dangerous offense; and Count 4 - Assault. (Respondents' Exhs. G, H)

On April 29, 2005, the court imposed the following sentences: the presumptive term of 15.75 years' imprisonment on Count 1, Burglary; and the presumptive term of 3.75 years' imprisonment on Counts 2 and 3, Disorderly Conduct and Endangerment. The court ordered that the sentences on Counts 1-3 run concurrently. (Respondents' Exh. I) On Count 4, the court sentenced Petitioner to a six-month term of incarceration. (Respondents' Exh. J)

B. Direct Appeal

On May 12, 2005, Petitioner filed a timely notice of direct appeal. (Respondents' Exh. K) Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1969), advising the court that she could find no colorable claim to raise on appeal, re-questing the court allow Petitioner to file a pro se brief. (Respondents' Exh. L) Petitioner subsequently filed a pro se supplemental brief, asserting the following claims: (1) his right to a speedy trial was violated; (2) the trial court erred in denying Petitioner's motion for a directed verdict pursuant to Ariz.R.Crim.P. 20; (3) the trial court erred in failing to give a Willits instruction; (4) the trial court gave "expert testimony" regarding gun residue; (5) the prosecutor engaged in misconduct; and (6) his trial counsel was ineffective. (Respondents' Exh. M, doc. 16-2 at 57) On April 27, 2006, the appellate court affirmed Petitioner's convictions and sentences. (Respondents' Exh. M) The court stated that:

In July 2004, [Petitioner] brought property to Carrie Curtis's apartment for temporary storage, claiming that the property was his and he was moving. The next day, police confiscated the items as possible stolen property. [Petitioner] subsequently returned to the apartment with a friend to retrieve the property. Upon entering the apartment, [Petitioner] confronted Ronnie Cresson, Curtis's younger brother, about the missing items and struck Cresson on the face with his hand. [Petitioner] then pulled a gun from his pocket, waved it around, and fired a shot toward the kitchen, all the while demanding to know the whereabouts of the items. Thereafter, [Petitioner] left the apartment and threatened to come back to harm Curtis and her family if he did not obtain possession of the items.

Cresson and Curtis later positively identified [Petitioner] to Phoenix Police Officer Angel Cordova, who then arrested [Petitioner] at a nearby apartment complex.

(Respondents' Exh. N, doc. 16-2 at 3-4)

The appellate court rejected Petitioner's claims and concluded that there was no reversible error. (Respondents' Exh. N) Petitioner sought review of the appellate court's decision in the Arizona Supreme Court. On December 12, 2006, the Arizona Supreme Court denied review. (Respondents' Exh. O, doc. 16-2 at 21) Petitioner did not seek a writ of certiorari from the United States to Supreme Court.

C. Post-Conviction Review

On February 20, 2007, Petitioner, proceeding pro se, filed a notice of post-conviction relief in the trial court pursuant to Ariz.R.Crim.P. 32. (Respondents' Exh. P, doc. 16-2 at 24) After several extensions, on May 28, 2008, Petitioner filed a petition for post-conviction relief pursuant to Ariz.R.Crim.P. 32. (Respondents' Exh. Q, doc. 16-2 at 29)Petitioner raised the following claims: (1) the trial court gave the jury an incorrect instruction on endangerment; (2) the incorrect endangerment instruction undermined the reliability of the burglary conviction because it created a substantial probability of a non-unanimous verdict; and (3) his trial and appellate counsel were ineffective. (Id.) On October 22, 2008, the court denied the petition. (Respondents' Exh. T, doc. 16-2 at 72)

On November 21, 2008, Petitioner filed a petition for review in the Arizona Court of Appeals. (Respondents' Exh. U, doc. 16-2 at 78) On January 25, 2010, the appellate court denied review. (Respondents' Exh. V, doc. 16-2 at 81) Petitioner did not seek further review in the Arizona Supreme Court.

D. Federal Petition for Writ of Habeas Corpus

On March 7, 2011, Petitioner filed the pending Petition for Writ of Habeas Corpus in this Court raising the following eight grounds for relief:

Ground One: Denial of Sixth Amendment right to a speedy trial.

Ground Two: Insufficient evidence to support Petitioner's convictions and sentences in violation of the Due Process Clause.

Ground Three: Failure to give an instruction pursuant to State v. Willits, 96 Ariz. 184, 393 P.2d 274 (Ariz. 1964) in violation of the Arizona and U.S. Constitutions.

Ground Four: The trial court's responses to two jury questions were erroneous and denied Petitioner a fair trial in violation of the due process clause of the Arizona and U.S. Constitutions.

Ground Five: The prosecution engaged in misconduct in violation of the right to due process under the Fourteenth Amendment.

Ground Six: The trial court's jury instruction on endangerment was insufficient and denied Petitioner his right to a fair trial under the Arizona and U.S. Constitutions.

Ground Seven: The trial court's erroneous endangerment instruction undermined the reliability of the burglary verdict by creating a substantial probability of an non-unanimous verdict.

Ground Eight: Ineffective assistance of counsel in violation of the Arizona and U.S. Constitution.

(Doc. 1 at 6-13)

Respondents assert that the Petition should be dismissed as untimely. Petitioneropposes that assertion. (Doc. 21) Although the Court directed Respondents to file supplemental briefing addressing the merits of Petitioner's claims, contrary to Petitioner's suggestion, that requirement did not reflect the Court's final decision on whether the Petition was timely filed. In the alternative, Respondents contend that, although Petitioner properly presented Grounds One and Eight to the State courts and those claims are properly before this Court on habeas corpus review, those claim lack merit. (Doc. 27 at 18) Respondents also assert that Grounds Two, Three, Four, Five, Six, and Seven are procedurally defaulted and barred from federal habeas corpus review. (Doc. 27) The Court will first consider whether the Petition was filed timely.

II. Statute of Limitations

The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") established a one-year period in which to file a petition for writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1).

Title 28 U.S.C. § 2244 provides, in pertinent part, that:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.

28 U.S.C. § 2244(d).

To assess the timeliness of the Petition for Writ of Habeas Corpus, the Court must first determine the date on which Petitioner's conviction became "final by the conclusion of direct review." 28 U.S.C. § 2244(d)(1)(A). Petitioner timely appealed his convictions and sentences to the Arizona Court of Appeals. Petitioner sought review in the Arizona Supreme Court which was denied on December 12, 2006. (Respondents' Exh. O, doc. 16-2) Petitioner had 90 days from December 12, 2006 in which to seek a writ of certiorari in the United States Supreme Court. Petitioner did not seek such relief. However, before the end ofthat 90-day period, on February 20, 2007, Petitioner filed a notice of post-conviction relief in the State court. (Respondents' Exh. P, doc. 16-2)

Pursuant to the AEDPA, the one-year limitations period is tolled during the time that a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2) (the AEDPA's limitations period is tolled...