Cordova v. Shinn, No. CV-20-00163-TUC-SHR (DTF)

CourtU.S. District Court — District of Arizona
Writing for the CourtHonorable D. Thomas Ferraro United States Magistrate Judge
PartiesMatthew Alejano Cordova, Petitioner, v. David Shinn, et al., Respondents.
Docket NumberNo. CV-20-00163-TUC-SHR (DTF)
Decision Date16 June 2021

Matthew Alejano Cordova, Petitioner,
v.
David Shinn, et al., Respondents.

No. CV-20-00163-TUC-SHR (DTF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

June 16, 2021


REPORT AND RECOMMENDATION

Petitioner Matthew Alejano Cordova (Cordova or Petitioner) presently incarcerated in Arizona State Prison Complex-Eyman Unit in Florence, Arizona, filed an Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. (Doc. 6.) Before the Court are the Amended Petition, Respondents' Answer to Petitioner for Writ of Habeas Corpus, and Petitioner's Reply to State's Response for Petition for Writ of Habeas Corpus. (Docs. 6, 23, 24.) This matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation. (Doc. 11 at 6.)

As more fully set forth below, this Court recommends that the Amended Petition be denied and dismissed.

BACKGROUND

State Trial Court Proceedings

Petitioner was charged with armed robbery, aggravated robbery, and kidnapping.1

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(Doc. 23-1 at 3.) After a jury trial, Petitioner was convicted as charged and thereafter sentenced to concurrent sentences, the longest of which is 15.75 years' imprisonment. Id. at 9, 15-16. The Arizona Court of Appeals described the facts underlying Petitioner's convictions as follows:

At around 8:00 on an evening in November 2013, J.A. was selling alarm systems door-to-door in a residential area near First Avenue and Fort Lowell Road, in Tucson. Vanessa Rodriguez, Cordova's girlfriend and codefendant, waved to J.A. and asked him to help her nephew who had been hurt. J.A. followed Rodriguez around a corner, heard sounds that he described as "[a] bullet chambered into a firearm," turned around, and saw two men, each pointing a gun at him. Both men yelled at him, demanding that he give them his wallet and phone. One of the men dragged J.A. by the shoulders to a dark area, "threw [him] down," and started "patting [him] down." The other man said "cap him" while J.A. was on the ground, which J.A. understood to mean "kill him." J.A. removed a gun from his waistband and fired three or four shots towards the man who was on top of him. J.A. then stood up and fired two more shots toward the second man before running away.

Cordova arrived at University Medical Center (UMC) with Rodriguez approximately fifteen minutes after the first 9-1-1 call came in reporting shots had been fired near where J.A. had been robbed. Cordova, who had been shot in the back, had with him a black hooded sweatshirt containing "a hole with some blood around it." His other clothing was "very highly saturated with blood."

State v. Cordova, No. CA-CR 2014-0231, 2015 WL 1394696, at ¶¶ 2-3 (Ariz. App. Mar. 26, 2015) (footnote omitted). The facts as recited by the court of appeals are entitled to a presumption of correctness. See § 2254(e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in Arizona Supreme Court opinion should not be afforded presumption of correctness).2

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Proceedings in the Arizona Court of Appeals

On June 20, 2014, Petitioner filed a notice of appeal. (Doc. 23-1 at 20.) Petitioner represented himself after the trial court found he was competent to do so. Id. at 33, 35. Petitioner's opening brief raised six issues:

(1) Whether the trial court abused its discretion in denying Cordova's motion to dismiss based on lack of probable cause to arrest Cordova;

(2) Whether the trial court abused its discretion in denying Cordova's motion to dismiss based on illegal search and seizure of the Ford Crown Victoria found near the scene of the robbery;

(3) Whether the trial court abused its discretion in denying Cordova's motion to dismiss based on perjured testimony presented to the grand jury and failing to require the grand jury to make a new probable-cause determination;

(4) Whether the trial court abused its discretion by admitting Rodriguez's statements;

(5) Whether the trial court abused its discretion in denying Cordova's motions to sever his trial from Rodriguez's trial; and

(6) Whether the trial court erred by denying Cordova's motion for judgment of acquittal because there was insufficient evidence sustaining the verdict.

(Doc. 6 at 14.) The Arizona Court of Appeals affirmed Petitioner's convictions and sentences. Cordova, 2015 WL 1394696, at ¶ 43.

Proceedings in the Arizona Supreme Court

Petitioner filed a petition for review before the Arizona Supreme Court. (Doc. 6-1 at 6, 8.) On December 1, 2015, the Arizona Supreme Court denied the petition without explanation. Id. at 6.

State Court Post-Conviction Relief Proceedings

Petitioner timely filed a notice for post-conviction relief (PCR). (Doc. 23-1 at 38.) The post-conviction court appointed counsel. Id. Petitioner's attorney filed a notice that he found no colorable claims to raise. Id. at 41-42. The court permitted Petitioner to file a pro se PCR petition. Id. at 45. Petitioner alleged ineffective assistant of trial counsel because

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she:

(1) Failed to present evidence of third-party culpability;

(2) Failed to call an expert witness to testify that Cordova could not have been shot by the victim's gun;

(3) Failed to object to the in-court identification of Rodriguez or moving for a mistrial after the identification; and

(4) Failed to advise Cordova of his right to testify or advising him to not testify.

(Doc. 6-1 at 33-34.) Petitioner also asserted that he was charged because of malicious and selective prosecution. Id. at 34. On June 5, 2018, the post-conviction court denied Petitioner's PCR petition, determining Petitioner had failed to state a colorable claim for relief. Id. at 72.

Petitioner filed a pro se petition for review in the Arizona Court of Appeals, renewing his claims of ineffective assistance of counsel. Id. at 73. On October 3, 2018, the Arizona Court of Appeals granted relief but denied review. State v. Cordova, No. 2 CA-CR 2018-0178-PR, 2018 WL 4781486, at ¶ 7 (Ariz. App. Oct. 3, 2018). Petitioner sought review in the Arizona Supreme Court, which denied relief on April 22, 2019. (Doc. 23-1 at 60.) On July 23, 2019, the Arizona Court of Appeals issued its mandate. Id. at 62.

Federal Habeas Corpus Proceeding

On April 15, 2020, Petitioner filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. (Doc. 1.) The district court dismissed the petition with leave to file an amended petition within 30 days. (Doc. 5 at 2-3.) On May 20, 2020, Petitioner filed the amended petition for writ of habeas corpus. (Doc. 6.)

The grounds for relief alleged in the Amended Petition are as follows:

"Ground One: Petitioner's Fourteenth Amendment right to due process is currently being violated by a conviction that lacks sufficient evidence to sustain it." (Doc. 6-1 at 105.) Petitioner explains he did not match the victim's description of the assailants and the lack of blood evidence at the scene of the crime was inconsistent with his clothes being saturated with blood. Id. at 105-106. He also highlights testimony about another gunshot

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victim and report, arguing that this indicated there were two separate shootings on the night in question. Id. at 107. He also contends there was no evidence to connect him or his codefendant with the Ford Crown Victoria, the victim's missing phone, and the recovered firearm. Id. at 108.

"Ground Two: Petitioner's Fourteenth Amendment right to due process is being violated by having to stand trial after an illegal arrest and the admission of illegally seized evidence resulting in a fundamental defect and a miscarriage of justice." Id. at 110. Petitioner argues that he was arrested at the hospital "at the end of the night" when a guard was placed on him. Id. He asserts that at the time of arrest, officers lacked probable cause to connect him with the robbery. Id. at 111-12. Further, Petitioner maintains that police illegally seized the Ford Crown Victoria after a judge refused to sign a warrant for its search and seizure. Id. at 112-13.

"Ground Three: Petitioner's Fourteenth Amendment right to due process has been violated by a conviction at trial after an indictment that was based on perjury." Id. at 119. Petitioner claims that Detective Barber provided the grand jury with "false testimony, misleading evidence[,] and crucial omissions to obtain an indictment." Id.

"Ground Four: Petitioner's Fourteenth Amendment right to due process was violated by the trial court's failure to sever, resulting in a trial that was fundamentally unfair. " Id. at 121. Petitioner asserts that "Had [he] had a separate trial, the State would have had literally nothing to present to the jury. All the State did was compile a bunch of misleading evidence onto [his] wife's plate, made [him] go to trial with her, then tell the jury that [they] were in a romantic relationship as an offer of [his] guilt." Id.

"Ground Five: Sixth Amendment right to effective counsel was violated by Counsel[']s failure to present exculpatory evidence of third[-]party culpability." Id. at 122. Petitioner claims the following:

Prior to trial, under my supervision, I had my attorney interview several members of the STU. Specifically, my attorney had obtained a statement from Det. Barber that he was familiar with two other robberies in the exact same location, with the same suspects, victims who were robbed in the same modus operandi for the same items as the victim in this case.

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These three robberies were only days apart, and both victims stated they were lured into an alley by a female suspect just like the victim in this case. However, despite having this presumably ex[]onerating evidence on hand prior to trial, my attorney for whatever reason chose not to interview these other victims, call them to testify, or present a third[-]party defense.

Id.

"Ground Six: Sixth Amendment right to effective counsel was violated by Counsel failing to call expert and/or medical witness to explain to the jury the physical impossibility of [Petitioner] being shot by...

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