Rodriguez v. Morris

• Decision Date: 17 May 2021
• Docket Number: No. CV-19-04957-PHX-GMS,CV-19-04957-PHX-GMS
• Parties: Daniel Alexander Rodriguez, Petitioner, v. Stephen Morris, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Daniel Alexander Rodriguez, Petitioner, v. Stephen Morris, et al., Respondents.

No. CV-19-04957-PHX-GMS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

May 17, 2021

ORDER

Before the Court is a Report and Recommendation ("R&R") (Doc. 35) issued by Magistrate Judge Michelle H. Burns recommending that the Court grant Petitioner Daniel Alexander Rodriguez's ("Petitioner") Motion under 28 U.S.C. § 2254 challenging his convictions in the Maricopa County Superior Court, (Doc. 1). Respondents timely filed an objection to the R&R. (Doc. 36.) For the following reasons, the Court grants in part the Respondents' Objection, adopts in part and declines to adopt in part the R&R, and denies the Petitioner's Motion.

BACKGROUND

As no party has objected to the procedural background set forth in the R&R, the Court adopts the background as set forth therein:

Petitioner was indicted by an Arizona Grand Jury on February 24, 2014, on fourteen separate felony counts: two counts of Discharge of a Firearm at a Structure, class 2 dangerous felonies (counts one and eleven); four counts of Aggravated Assault, class 3 dangerous felonies (counts two, three, twelve and thirteen); one count of Aggravated Assault, a class 3 dangerous felony and a domestic violence offense (count fourteen); four counts of Disorderly Conduct, class 6 dangerous felonies (counts four through seven); one count Misconduct Involving Weapons, a class 4 felony (count eight); one count Forgery, a class 4 felony (count nine); and one count Taking Identity of Another, a class 4 felony (count ten). (Doc. 11, Exh. A.) Counts one through seven related to a shooting incident that occurred on January 31, 2014; and counts eleven through fourteen related to a shooting incident that occurred on February 14, 2014. (Id.)

Petitioner proceeded to trial, and was convicted of the lesser-included offense of Discharge of a Firearm at a non-residential structure (count one), the lesser-included offense of Disorderly Conduct (counts two and three), and as charged on the remaining counts. (Id., Exhs. L, N.) The jury further found counts one through seven, and ten through thirteen to be dangerous offenses. (Id.) On January 23, 2015, Petitioner was sentenced as a repetitive offender with two prior felony convictions to a total of 42.7[5] years in prison. (Id., Exh. N.) Petitioner appealed his judgment and sentence, and the Arizona Court of Appeals, in affirming, set forth the following factual background:

¶ 2 A grand jury indicted defendant on fourteen felony counts stemming from his behavior in several 2014 incidents. The first incident occurred during a fight between defendant and his then 16 year-old former girlfriend (A.G.). The two were riding in defendant's burgundy Mercury Montego when victim fled the vehicle. Defendant screamed at her repeatedly to get back in the car. Eventually defendant pulled a 9mm weapon out and shot multiple times in her general direction to get her "attention." Witnesses heard A.G. crying hysterically "let me just go home," heard the defendant yelling at her, heard the gun shots and heard his car speeding off. A.G. testified she was scared and had gotten back in the car. One of the witnesses found three bullet holes in and around his house. Two 9mm shell casings were found at the scene. This event is the factual basis for Counts 1- 7.

¶ 3 Counts 8 and 9 involve defendant using the identification of his brother N.R. Count 8 results from defendant presenting the false identification to an officer when that officer came into contact with defendant and A.G. during a loud fight in a parking lot days after the first shooting event. Count 9 results from defendant presenting N.R.'s identification to purchase the 9mm gun from a pawnshop. [Evidence showed that defendant used his brother's identification to buy both the 9mm gun and the burgundy Montego, as well as 9mm ammunition.] The false identification was found in defendant'svehicle and A.G. was present both times it was used. ¶ 4 A couple of weeks after the first shooting, victim attempted to break up with defendant. Defendant texted her numerous threatening messages over two days. Those texts, as testified to and as recovered in defendant's phone, included: "tell your momma not to sleep on the couch cuz a bullet might hit her" and "Be ready ... I got 83 rounds" and "we both gonna die." [] A terrified A.G. called the police. Defendant then called A.G. and asked her to come outside, she refused; ten minutes later defendant fired multiple gunshots at her house. Approximately eight bullets travelled into the interior of A.G.'s house. A.G. provided police with a detailed description of defendant's car, including his license plate number, and advised them that defendant had a gun he'd recently purchased under a driver's license in N.R.'s name. This second shooting event is the basis for Counts 11-14.

¶ 5 After an active search for defendant, which included him driving from location to location, he was arrested later that same day while getting into his vehicle. He was taken into custody from the driver's seat. A protective sweep of the car was done at that time; officers knew that defendant was the suspect in a crime involving a gun and was potentially armed. The vehicle was then towed to the police substation while officers waited for a search warrant to issue. Police searched the vehicle pursuant to a search warrant in the early morning hours at the police substation. Inside the car officers found a 9mm bullet, two bullet shell casings, the sales receipt for the 9mm gun, and a cell phone containing the threatening texts. One shell casing and one live round were on the floor of the vehicle; another shell casing was in the trunk. Police testified that the shell in the interior of the vehicle was lodged under the carpet and took some rooting around to find.

(Doc. 11, Exh. S.)

In Petitioner's opening brief in the Arizona Court of Appeals, he raised the following issues: (1) unlawful search and seizure of Petitioner's vehicle after his arrest, and (2) the trial court improperly shifted the burden of proof onto Petitioner during the suppression hearing. (Id., Exh. P.) On March 15, 2016, the appellate court affirmed Petitioner's convictions and sentences, finding no error in the trial court's denial of his motion to suppress. (Id., Exh. S.) Petitioner filed a petition for review in the Arizona Supreme Court, claiming that the lower court erred in denying his claims regarding the search and seizure of his vehicle. (Id., Exh. T.) The Arizona Supreme Court summarily denied review on September 15, 2016. (Id.,Exh. U.)

On February 18, 2016, Petitioner filed a pro se notice of post-conviction relief ("PCR"), which his counsel moved to dismiss without prejudice as Petitioner's direct appeal was still pending. (Doc. 11, Exhs. V, X.) The trial court granted the motion. (Id., Exh. Y.) After the conclusion of direct review, on September 18, 2016, Petitioner filed a pro se notice of PCR, indicating that he was raising a claim of ineffective assistance of counsel ("IAC"), and was not requesting the appointment of counsel to represent him. (Id., Exh. [Z].) The trial court set a briefing schedule. (Id., Exh. AA.) Pursuant to a subsequent request by Petitioner, the trial court appointed advisory counsel to assist him. (Id., Exh. BB.) On November 14, 2016, Petitioner filed his PCR petition, raising the following claims:

A. ) IAC: trial counsel.

1. Trial counsel's failure to object to prosecutor's improper voir dire question identifying one of the victims as a child.

2. Trial counsel's failure to object to the introduction of text messages.

3. Trial counsel's making prejudicial statements in front of the jury and failing to move for a mistrial.

4. Trial counsel's failure to impeach a law enforcement witness as to the suggestiveness of a photo line-up.

5. Trial counsel's failure to object to the prosecution's laptop being provided to the jury.

B. ) Prosecutorial misconduct, by making improper remarks during voir dire, using "staged" testimony to introduce inadmissible evidence, and making improper statements to inflame the passions of the jury.

C. ) Trial judge's abuse of discretion.

1. Trial court abused its discretion by not investigating jury panel for bias.

2. Trial court abused its discretion by overruling multiple hearsay objections by Petitioner's counsel.

3. Trial court abused its discretion by not declaring a mistrial after prosecutor made improper argument in closing statements.

4. The trial court was without jurisdiction to render judgment on count 10, as it did not allege the place of the continuing offense in count.

D.) IAC: appellate counsel - for not raising all of the above claims.

(Id., Exh. CC.)

The trial court denied Petitioner PCR relief, reasoning as follows:

The defendant failed to raise his claims of prosecutorial misconduct and abuse of discretion by the trial court in his direct appeal. Further, based on the allegations in the PCR request, the Court finds that defense counsel's performance did not fall below prevailing professional norms and that no deficient performance on the part of defense counselprejudiced Mr. Rodriguez's defense or rendered different trial results than would have been achieved through competent performance. The Court also does not find that Defendant has stated a colorable claim for abuse of discretion by the trial court. As to one specific issue raised in that regard, the court reporter recently filed an Affidavit of Correction indicating that a statement that had been attributed in the trial transcript to defense counsel was, in fact, defendant's statement. The correction makes clear why the Court did not address the defense attorney for making such comment, since the comment was not made by him. Accordingly, and for the other reasons stated in the State's response [it is ordered denying PCR relief].

(Doc. 11, Exh. FF.)

Petitioner filed a petition for review of that decision in the Arizona Court of Appeals. (Id.

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