Harden v. Shinn

Decision Date11 June 2021
Docket NumberCV-19-5413-PHX-JJT (JFM)
PartiesCharles D'Mon Harden, Petitioner v. David Shinn, et al., Respondents.
CourtU.S. District Court — District of Arizona

REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

James F. Metcalf United States Magistrate Judge

I. MATTER UNDER CONSIDERATION

Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). 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

Petitioner was implicated in a home invasion style robbery in which the invaders posed as police officers in camouflage tactical gear. The victim identified Petitioner as a perpetrator, describing him as a bouncer at a club the victim frequented. Petitioner was later identified by that victim and another in photo lineups. A search of Petitioner's home revealed camouflage utility pants, a badge, and photographs that pictured Petitioner wearing tactical gear. (Exh. HH Mem. Dec. at ¶¶ 2-6.) (Exhibits to the Answer (Doc. 19), are referenced herein as “Exh. .”)

B. PROCEEDINGS AT TRIAL

Petitioner was indicted in Maricopa County Superior Court on one count of first- degree burglary; two counts of armed robbery; two counts of kidnapping; two counts of aggravated assault; two counts of theft; and one count of misconduct involving weapons. (Exh A, Indictment.) Petitioner unsuccessfully moved to sever his trial from that of his co-defendants.[1] (Exh. B, Mot. Sever; Exh. HH, Mem. Dec. at ¶ 11.) Trial on the weapons misconduct count (Count 10) was severed. (Exh. HH, Mem. Dec. at ¶ 9, n. 2.) After a 21-day trial, Petitioner was found guilty as charged on Counts 1 to 9, and he subsequently entered a plea of guilty on Count 10, the weapons misconduct charge. (Id. at ¶ 10; Exh. AA, Plea Agreement.)

On May 13, 2016, Petitioner was sentenced (Exh. DD) to “aggravated, concurrent terms of 20 years' imprisonment on the burglary, armed robbery, and kidnapping counts, concurrent, aggravated terms of 15 years' imprisonment on the aggravated assault counts, concurrent, presumptive terms of three and three-quarters years' imprisonment on the theft counts, and a concurrent, presumptive term of two and one-half years' imprisonment on the misconduct involving weapons count.” (Exh. HH, Mem. Dec. at ¶ 10.)

C. PROCEEDINGS ON DIRECT APPEAL

Petitioner filed a direct appeal, challenging: (a) the denial of his motion to sever from co-defendants; and (b) insufficient evidence to convict. The Arizona Court of Appeals rejected both claims on the merits and affirmed Petitioner's convictions and sentences. (Exh. HH, Mem. Dec.)

Petitioner did not seek further direct review. (Id. at Mandate.)

D. PROCEEDINGS ON POST-CONVICTION RELIEF

Prior to issuance of the mandate on direct appeal, Petitioner filed a Notice of Post-Conviction Relief (“PCR”) (Exh. II). Counsel was appointed, but was ultimately unable to find an issue for review. (Exh. JJ, Not. of Completion.) Counsel forwarded her file to Petitioner (Exh. KK, Not. of Compliance).

Petitioner eventually filed his pro per PCR Petition (Exh. MM). Petitioner raised claims of: (1) the introduction at trial of evidence obtained by an unconstitutional search or seizure; (2) the introduction at trial of an identification obtained in violation of constitutional rights; (3) the unconstitutional suppression of evidence by the State; (4) the existence of newly-discovered material… (5) that he was falsely arrested because the police searched his apartment without a warrant, and a witness testified that Harden was home at the time of the crimes; and (6) there was no DNA or fingerprints of Harden discovered at the crime scene.” (Exh. NN, PCR Resp. at 6.)

The state responded that: (a) the claims of insufficient evidence included in claims (5) and (6) were precluded under Arizona Rule of Criminal Procedure 32.2(a)(2) because they had been decided on direct appeal; (b) the remaining claims were waived under Rule 32.2(a)(3) because they had not been raised on direct appeal; and (c) claim (4) was not cognizable under the exceptions to Rule 32.2(a) for claims of newly discovered evidence because evidence was known and not newly discovered. (Exh. NN, PCR Resp.)

On November 2, 2018, the PCR Court dismissed the proceeding, agreeing with the state that the claims were procedurally barred under Rule 32.2. (Exh. OO, M.E. 11/2/18.)

Petitioner did not seek further review. (Petition, Doc. 1 at 5.)

E. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at Tucson, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 15, 2019 (Doc. 1). Petitioner's Petition asserts the following grounds for relief:

(1) the trial court erred by refusing to sever his trial from his co-defendants in violation of the Fifth and Fourteenth Amendments;
(2) the jury verdict was not supported by sufficient evidence in violation of the Fourteenth Amendment and Jackson v. Virginia, 443 U.S. 307, 319 (1979);
and
(3) PCR counsel failed to raise claims of ineffective assistance of trial counsel, including: (A) failure to call alibi witnesses; (B) failure to consult with an identification expert; (C) failure to calling the most effective witnesses; and (D) failure to properly advise on a rejected plea offer.

Petitioner also argues in Ground 3 that PCR counsel was ineffective under Martinez v. Ryan, 566 U.S. 1 (2012) in failing to raise such claims. The undersigned construes Ground 3 as asserting ineffectiveness of PCR counsel as cause and prejudice, and the substantive claims: (a) ineffective assistance of PCR counsel; and (b) ineffective assistance of trial counsel. The different factual instances of trial counsel ineffectiveness in Ground 3 are referenced as Grounds 3A to 3D.

Petitioner also included what is labeled “Ground Four, ” asserting a due process violation because PCR counsel had failed to timely provide her file. On screening, the Court identified this as a claim of ineffective assistance of PCR counsel under Martinez. But Petitioner makes clear that “this claim does not constitute a separate claim, ” but was argued because “if necessary, [Petitioner] will amend his habeas petition seasonably” after receiving the file. Consequently, the undersigned does not construe this a ground for relief, but as a justification for equitable tolling of belated amendments. No such amendments have been sought.

Response - On March 4, 2020, Respondents filed their Answer (Doc. 10). Respondents argue the claims in Grounds 1 and 2 are without merit, Grounds 2 and 3 are procedurally defaulted, and the claims of ineffective assistance of PCR counsel in Ground 4 do not avoid a procedural default because the related claims of trial ineffectiveness are insubstantial.

Reply/Motion to Stay - The Court set an extended deadline of June 12, 2020 for a reply. (Order 4/6/20, Doc. 13.)

Instead, on June 15, 2020 Petitioner filed a Motion to Stay (Doc. 14) seeking to stay this case to allow him to pursue a second state PCR proceeding based on a claim of actual innocence. Petitioner provided a declaration from an attorney with the Arizona Justice Project asserting an intent to file such a PCR proceeding, citing the discovery of unspecified exculpatory evidence. The Court ultimately denied that motion, finding the stay not dispositive of a claim or procedural defense in this case, in part because Petitioner had not pursued a claim of actual innocence in this case, substantive or procedural. (Order 12/3/20, Doc. 16.)

Petitioner has not replied in support of his Petition.

III. APPLICATION OF LAW TO FACTS
A. EXHAUSTION, PROCEDURAL DEFAULT AND PROCEDURAL BAR

Respondents argue that most of Petitioner's claims are either procedurally defaulted or were procedurally barred on an independent and adequate state ground, and thus are barred from federal habeas review.

1. Exhaustion Requirement

Generally, a federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).

a. Exhaustion by Fair Presentation

Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented his federal claims to the state courts. “A petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005).

Proper Forum - “In cases not carrying a life sentence or the death penalty, ‘claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.' Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005)(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). Under the 1989 amendments to the governing state statutes, even cases carrying a life sentence are exhausted once ruled on by or presented to the Arizona Court of Appeals. Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007)

Proper Vehicle - Ordinarily, “to exhaust one's state court remedies in Arizona, a petitioner must...

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