Smiley v. Ryan, CV-12-2525-PHX-FJM (JFM)

Decision Date24 November 2014
Docket NumberCV-12-2525-PHX-FJM (JFM)
PartiesAngel David Smiley, Petitioner v. Charles L. Ryan, et al., Respondents.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
Report & Recommendation On Petition For Writ Of Habeas Corpus

Petitioner, presently incarcerated in the Arizona State Prison Complex at Buckeye, Arizona, filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 25, 2013 (Doc. 6). On September 30, 2013 Respondents filed their Response (Doc. 20). Respondents filed a Supplemental Answer on February 20, 2014 (Doc. 24), a Supplement on May 6, 2014 (Doc. 30), and a Second Supplemental Answer on September 19, 2014 (Doc. 36). Petitioner filed a Reply on October 22, 2013 (Doc. 21), a Supplemental Reply on March 21, 2014 (Doc. 28), and a Second Supplemental Reply on October 17, 2014 (Doc. 39).

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.


On January 5, 2007, Petitioner and three others were indicted in Maricopa County Superior Court on charges of First Degree Murder, Attempted Armed Robbery, Burglary, Conspiracy to Commit Armed Robbery, and two counts of Aggravated Assault. (Exhibit A, Indictment.)1 The charges arose out of an armed robbery of a residence, with the victim being shot several times. (Exhibit B, Mem.Dec. at 2-4.) After rejecting a plea offer (id. at 5), Petitioner proceeded to a joint jury trial with the co-defendants. (Id. at 4.)

Petitioner was eventually acquitted on the aggravated assault charges, and was convicted on the other charges. (Exhibit B, Mem. Dec. at 4.) Petitioner was sentenced to his natural life in prison on the murder charge, and a consecutive term in prison of concurrent sentences of 10 years for attempted robbery and 15 years each for burglary and the conspiracy. (Id. at 5.)


Petitioner filed a direct appeal. Counsel was appointed and was unable to find an appealable issue, and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and related statue authorities. (Supp., Doc. 30, Exhibit, Opening Brief.) Petitioner was granted leave to file a supplemental brief, but failed to do so. (Exhibit B, Mem.Dec. at 5.) The Arizona Court of Appeals reviewed the case for "reversible error," found none, and affirmed Petitioner's convictions and sentences. (Id. at 6-7.) Petitioner was advised of his ability to file a motion for reconsideration or to seek review from the Arizona Supreme Court in a petition for review. (Id. at 7.)

Petitioner did not seek further review on direct appeal. (Amend. Petition, Doc. 6 at 3; Answer, Doc. 20 at 4-5.)


On November 17, 2009, Petitioner filed a Notice of Post-Conviction Relief (Exhibit D). He ultimately filed a pro per Petition for Post-Conviction Relief, arguing that: (1) trial counsel was ineffective for failing to challenge the introduction of his statement to police, failing to maintain adequate communication with Petitioner, failure to subject the prosecution's case to meaningful adversarial testing, failure to prepare an opening argument or defense strategy other than lack of proof of premeditation, failure to call witnesses, failing to impeach witnesses with their statements to police or criminal convictions, failing to adequately challenge the sealing of a co-defendants' statement, failing to object to the disclosure of his "free-talk" with the prosecution, failing to adequately advise Petitioner on testifying and failing to adequately advise Petition in rejecting the plea offer; (2) his right to due process was violated when the trial court failed to strike the entire jury venire after racist and derogatory comments by one potential juror and after jurors saw an attorney carrying clothes and commented that it indicated the defendants were incarcreated; and (3) his right to due process was violated when his motion to sever was denied. On September 27, 2010 the PCR court found that the petition failed to show a colorable claim for post-conviction relief "for the reason given in the State's Response," and summarily dismissed it. (Exhibit E, M.E. 9/27/10.)

Petitioner then filed a Petition for Review (Exhibit G), arguing claims of juror misconduct, failure to sever, and insufficient evidence of premeditation. The Arizona Court of Appeals summarily denied review. (Exhibit H, Order 8/17/12.)


Petition - Petitioner commenced the current case by filing his original Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 27, 2012 (Doc. 1). That petition was dismissed with leave to amend. (Order 1/31/13, Doc. 5.) Petitioner then filed his Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 25, 2013 (Doc. 6). Petitioner's Petition asserts the following five groundsfor relief:

1. Petitioner's Fifth Amendment due process rights were violated by the failure to sever his trial from his co-defendants2;
2. Petitioner's due process and fair trial rights were violated by juror misconduct and racist statements;
3. Petitioner's appellate counsel was ineffective, in violation of Petitioner's due process rights;
4. Petitioner's due process, equal protection, and fair trial rights were violated when jurors observed and commented on attorney carrying in clothing and speculating that it meant a defendant was in custody3;
5. Petitioner's due process rights were violated when: (a) he was convicted on insufficient evidence to prove premeditation, and (b) Petitioner's exculpatory statements to police were redacted.4

(See Order 5/17/13 at 2.)

Response - On September 30, 2013, Respondents filed their Limited Response ("Answer") (Doc. 20). Respondents argue Ground One does not present a cognizable federal claim. Respondents further argue that Grounds 1, 2, and 4 were only presented as state law claims to the Arizona Court of Appeals, and are now procedurally defaulted. Respondents argue that Grounds 3 and 5 were raised for the first time in his PCR Petitionfor Review, were thus not fairly presented, and are now procedurally defaulted.

Reply - On October 22, 2013, Petitioner filed a Reply (Doc. 21). Petitioner argues that: (1) the federal courts have recognized rights to sever (id. at 2, et seq.); (2) he was not required to present his claims to the Arizona Supreme Court, that he has diligently sought to raise his claims (id. at 6 et seq.); (3) any deficiency in his presentation to the state courts was the result of his untrained, pro se status (id. at 9); and (4) his claims are meritorious (id. at 10, et seq.).

First Order to Supplement Briefs - On January 30, 2014, the Court noted that the Arizona Court of Appeals had reviewed the record for error following the Anders brief by appellate counsel, and directed the parties to supplement their briefs to address whether this resulted in actual consideration of any of Petitioner's claims. (Doc. 23.)

Supplemental Answer - On February 20, 2014, Respondents filed their Supplemental Answer (Doc. 24). Respondents argue that review under Anders did not result in exhaustion, citing a series of Ninth Circuit opinions addressing review of capital cases for "fundamental error" under a state mandated review. Respondents further argue that under State v. Thompson, 229 Ariz. 43, 46, 270 P.3d 870, 873 (App. 2012), review under Anders results in a review for non-frivolous issues, and in the event the court finds any, it directs further briefing, and the absence of any such direction indicates the Arizona court did not find any issues to resolve on the merits. Respondents further argue that Anders review does not result from any "fair presentation" of any issue for review.

Supplemental Reply - On March 21, 2014, Petitioner filed his Supplemental Rely (Doc. 28), arguing that the Anders review resulted in consideration of his claims, and thus the exhaustion of his state remedies.

Supplements to Record - In an Order filed April 30, 2014, (Doc. 29), the Court observed that the record contained an incomplete copy of Petitioner's Opening Brief on direct appeal (Exhibit C). On May 6, 2014, Respondents supplemented the record to provide a complete copy. (Doc. 30.)

Second Order to Supplement Briefs - In an Order filed July 29, 2014 (Doc. 31),the Court indicated a tentative conclusion that Grounds Two and Four were fairly presented in Petitioner's Petition for Post Conviction Relief (Exhibit E), and directed Respondents to supplement their Answer to address the merits of these grounds.5

Second Supplemental Answer - On September 19, 2014, Respondents filed their Second Supplemental Answer (Doc. 36), arguing that Grounds Two and Four are without merit.

Second Supplemental Reply - On October 17, 2014, Petitioner filed his "Reply to Respondents Second Supplemental Answer" (Second Supplemental Reply) (Doc. 39), arguing the merits of Grounds Two and Four.


Respondents argue that Petitioner's Ground One, challenging the failure to sever his trial, is a state law claim and not cognizable on habeas review.

Petitioner summarizes his Ground One as claiming a right to sever "pursuant to Rules 13.13(b) and 13.4 of the Arizona Rules of Criminal Procedure, as well as Petitioner's Due Process Rights guaranteed him under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article 2, § 4 of the Arizona Constitution." (Amend. Pet., Doc. 6 at "6.")

To the extent that petitioner is contending that the trial court should not have denied his severance motion as a matter of state law (e.g. the Arizona Rules of...

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