Jean v. Shinn

• Docket Number: CV-19-00439-TUC-JGZ (EJM)
• Decision Date: 30 December 2020
• Parties: Sonny Jean, Petitioner, v. David Shinn, et al., Respondents.
• Court: U.S. District Court — District of Arizona

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Sonny Jean, Petitioner, v. David Shinn, et al., Respondents.

No. CV-19-00439-TUC-JGZ (EJM)

United States District Court, D. Arizona

December 30, 2020

REPORT AND RECOMMENDATION

Eric J. Markovich United States Magistrate Judge

Petitioner Sonny Jean filed a pro se Petition for a Writ of Habeas Corpus (“PWHC”) pursuant to 28 U.S.C. § 2254 on September 5, 2019. (Doc. 1). Petitioner raises six grounds for relief with several sub claims: (1) the trial judge abused her discretion at trial and when she denied Petitioner's Rule 32 petition for post-conviction relief in violation of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights; (2)(a) the State failed to meet its burden of proof to prove intent beyond a reasonable doubt, (b) trial counsel was ineffective for failing to challenge the State's failure of proof and failing to thoroughly assess the record to present evidence of Petitioner's defense and (c) appellate counsel was ineffective for not effectively arguing this issue on appeal; (3)(a) the jury instructions were improper and failed to instruct on lesser included offenses or provide a simple assault theory, (b) trial counsel was ineffective for not providing Petitioner with the instruction information and for not objecting to the jury instructions, and (c) appellate counsel was ineffective for failing to challenge the jury instructions on appeal; (4)(a) a constructive amendment occurred through the jury instructions at trial where the indictment did not contain or specify information provided in the instructions in violation of Petitioner's rights under the Fifth Amendment grand jury clause, (b) trial counsel was ineffective for failing to challenge the constructive amendment, and (c) appellate counsel was ineffective for failing to raise the claim on appeal; (5)(a) after the jury found the crime was dangerous, the trial court allowed the State to change “dangerous” to “repetitive” and sentenced Petitioner as a repeat offender, in violation of Petitioner's Fifth Amendment rights and Blakely v. Washington, 542 U.S. 296 (2004), and (b) trial and appellate counsel were ineffective for failing to recognize the sentencing issues; and (6) the trial jury showed partiality towards the State to obtain a conviction.

Respondents filed an Answer contending that some of Petitioner's claims are not cognizable on habeas review, that some claims are unexhausted and/or procedurally defaulted, and that the remaining claims lack merit. (Doc. 9). Respondents request that the Court deny and dismiss the PWHC with prejudice.

Petitioner filed a Reply rearguing the issues in his PWHC and alleging that his claims have merit and are not defaulted or otherwise barred from this Court's review. (Doc. 11).

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for a Report and Recommendation. The undersigned finds that several of Petitioner's claims fail to state a cognizable claim for habeas relief. The undersigned further finds that several of Petitioner's claims are procedurally defaulted and barred from this Court's review, and that Petitioner does not demonstrate cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default of his claims. Finally, as to Petitioner's claims that are cognizable, properly exhausted, and not defaulted, the undersigned finds that Petitioner has failed to show that the state court's determination of the claims was contrary to or based on an unreasonable application of clearly established federal law, or based on an unreasonable interpretation of the facts. Accordingly, the Magistrate Judge recommends that the District Court deny the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Trial, Sentencing, and Appeal

On February 12, 2015 a Pima County jury found Petitioner guilty of one count of aggravated assault with a dangerous instrument^[1] and one count of aggravated assault causing serious physical injury.^[2] (Doc. 9 Ex. E at 22). On May 11, 2015 Petitioner was sentenced to presumptive, concurrent prison terms of 11.25 years. (Doc. 9 Ex. A at 4-6).

The Arizona Court of Appeals summarized the background of Petitioner's case as follows:^[3]

[T]he evidence shows that on May 8, 2014, Jean shot two people, V.G. and E.V., outside a residence before running them over with a car as he “peel[ed] out” and fled the scene. V.G. died during the incident, but E.V. survived and testified at trial. An indictment charged Jean with five felony offenses related to the altercation. The jury acquitted him of three offenses but found him guilty of two crimes against E.V.: aggravated assault causing serious physical injury and aggravated assault with a dangerous instrument (a motor vehicle).

The trial court subsequently found that Jean had two historical prior felony convictions: one from Arizona and one from Florida. Over Jean's objection, the court determined that because he had been convicted of three prior felony drug offenses in Florida, the third offense there qualified as a historical prior felony conviction under Arizona law. The court then sentenced him as noted above[.]

(Doc. 1-2 at 50-51) (second alteration in original).

Following his conviction, Petitioner sought review in the Arizona COA. (Doc. 9 Ex. B). Appointed counsel filed a brief arguing that: (1) the State failed to present evidence of the mens rea that Petitioner acted recklessly; and (2) the trial court imposed an illegal sentence by sentencing Petitioner as a category three repetitive offender by improperly relying on prior convictions from Florida. (Doc. 1-2 at 59, 75-87). On May 16, 2016 the COA issued its decision affirming Petitioner's convictions and sentences. Id. at 49. The court addressed each of Petitioner's claims in detail but found no error. Id. at 51-55.

On July 15, 2016 Petitioner's counsel filed a petition for review in the Arizona Supreme Court (Doc. 1-2 at 33-47), which the court denied on November 15, 2016, id. at 31. On January 17, 2017 the COA issued its mandate. (Doc. 9 Ex. C).

B. Petition for Post-Conviction Relief

On November 17, 2016 Petitioner initiated proceedings in Pima County Superior Court for Rule 32 post-conviction relief (“PCR”).^[4] (Doc. 9 Ex. D). Appointed counsel filed a notice of completion stating that he was unable to find a meritorious issue of law or fact to raise as a basis for relief under Rule 32 and requested that Petitioner be given additional time to file a pro se petition. Id. Ex. E.

On February 27, 2018^[5] Petitioner filed his pro se petition alleging the following grounds for relief: (1) did the State meet its burden of proving each element of the case beyond a reasonable doubt; trial counsel was ineffective for failing to challenge and object to the use of a dangerous instrument (jury instruction); appellate counsel was ineffective for failing to thoroughly assess the record and failing to challenge the determination of use of a dangerous instrument and the lack of evidence of the required mental state;^[6] (2) did the trial court constructively amend the grand jury indictment; trial counsel was ineffective for failing to challenge and object to the amended information in the indictment; appellate counsel was ineffective for failing to challenge the amended information in the indictment;^[7] (3) did the evidence at trial warrant the jury being provided with verdict forms for the necessarily included offenses for the aggravated assault offenses; was trial counsel ineffective for failing to challenge and object to the jury instructions and failing to request lessor included offenses to aggravated assault; appellate counsel was ineffective for not challenging the jury instructions; (4) did the trial court err in finding aggravating factors against Petitioner; trial counsel was ineffective for failing to object to the trial court's decision to hold a hearing for aggravating factors and failing to request that the jury determine the aggravators; was appellate counsel ineffective for failing to challenge the aggravating/mitigating hearing held by the trial court;^[8] (5) did the trial court err in sentencing Petitioner as a repetitive offender and allowing the State to change “dangerous” to “repetitive” after the jury found dangerousness; was trial counsel ineffective for failing to object to the change and failing to challenge the State's change; was appellate counsel ineffective in failing to challenge the change made after the jury's determination of dangerousness; and (6) did the duplicitous indictment create a real danger of a nonunanimous verdict; was trial counsel ineffective in failing to challenge the nonunanimous jury verdict; was appellate counsel ineffective in failing to thoroughly assess the record to identify and challenge the nonunanimous jury verdict. (Doc. 1-1 at 1640).

On December 13, 2018 the trial court issued its order summarily dismissing the petition pursuant to Rule 32.6(c). (Doc. 1-1 at 4-14). In a detailed opinion, the court first set forth the factual and procedural history of Petitioner's case including the jury instructions on aggravated assault and the dangerous nature allegation, the priors trial, and the claims raised on direct appeal. Id. at 4-5. The court then turned to Petitioner's six claims for relief arguing ineffective assistance of trial and appellate counsel. Id. at 6. As to ground one, the court noted that the crux of Petitioner's argument seemed to be that the indictment failed to specify recklessness and that the State failed to prove the essential elements of intent or knowingly beyond a reasonable doubt. Id. at 7. The court stated that Petitioner's arguments were “premised on the legally...