Sovero v. Shinn, CV-18-2948-PHX-JGZ (BGM)

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
• Writing for the Court: Honorable Bruce G. Macdonald United States Magistrate Judge
• Parties: David Solomon Sovero, Petitioner, v. David Shinn, [1] et al., Respondents.
• Docket Number: CV-18-2948-PHX-JGZ (BGM)
• Decision Date: 11 February 2020

David Solomon Sovero, Petitioner,
v.
David Shinn, ^[1] et al., Respondents.

No. CV-18-2948-PHX-JGZ (BGM)

United States District Court, D. Arizona

February 11, 2020

REPORT AND RECOMMENDATION

Honorable Bruce G. Macdonald United States Magistrate Judge

Currently pending before the Court is Petitioner David Solomon Sovero's Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Amended Petition”) (Doc. 10). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 20), and Petitioner did not reply. The Amended Petition (Doc. 10) is ripe for adjudication.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, ^[2] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Amended Petition (Doc. 10). . . .

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Initial Charge and Sentencing

Petitioner's presentence investigation report summarized the information from Phoenix Police Department Report #2009-90199243 as follows:

On February 4, 2009, police responded to a call of shots fired in an apartment complex located in the area of North 28th Street and Greenway. Upon arrival, police observed blood on the sidewalk and, upon entering apartment #4, victim [R.M.], age fifty-one, was found lying face down. Paramedics arrived and pronounced him deceased. Police learned an additional gunshot victim, [D.L.], age forty-three was transported from the area to the hospital where he later died of his injuries

Police contacted [C.M.] who advised having arrived at the apartment complex to pick up his step-son, [D.L.], when he heard shots fired. Shortly after, [D.L.] ran from the apartment and entered the passenger side of the truck saying that Tony had shot him. As [C.M.] backed up to pull away, a subject exited the apartment holding a handgun and fired four rounds at his truck. [C.M.], who was not injured, then drove his step-son to the hospital

[J.L.] contacted police to advise a man named Tony, later identified as the defendant and also known as Jesse Salazar kidnapped her on February 4, 2009. She said while she was with him, he held a pistol in his lap and threatened to kill her if she ran or stalled him in any way. He told her he was going to kill subjects he had on a “hit list, ” and he threatened to kill her if she warned the victims. On February 4, 2009, the defendant shot the victims in her presence. She also watched as he fired upon the truck. [J.L.] was eventually able to get away from the defendant and then contacted the police

On February 5, 2009, the defendant was located and followed by police, during which time he pointed a pistol at Detective Miller #6014. He was eventually taken into custody after entering the apartment of [K.W.], and he was found to be in possession of a pistol and a loaded magazine. He declined to answer any questions.

Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001-DT, Presentence Investigation 1/18/2011 (Exh. “A”) (Doc. 21) at 3.^[3]

On February 9, 2012, Petitioner was charged with two (2) counts of first-degree murder, one (1) count of burglary in the first degree, two (2) counts of kidnapping, two (2) counts of aggravated assault, and one (1) count of burglary in the second degree. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001-DT, Indictment 2/9/2012 (Exh. “B”) (Doc. 21). On November 23, 2010, pursuant to a plea agreement, Petitioner pled guilty to two (2) counts of first-degree murder and one (1) count of aggravated assault, and the remaining charges, including the possibility of the death penalty, were dismissed. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001-DT, Plea Agreement (Exh. “C”) (Doc. 21). On January 18, 2011, Petitioner was sentenced to a term of imprisonment for natural life on Count One; a second term of imprisonment for natural life on Count Two to be served consecutively with Count One; and a term of twenty-one (21) years of imprisonment on Count Six, for aggravated assault, to be served consecutively with the first two counts. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001-DT, Sentence of Imprisonment 1/18/2011 (Exh. “D”) (Doc. 21).

B. Post-Conviction Relief Proceeding

On October 13, 2011, Petitioner filed his Delayed Notice of Post-Conviction Relief (“PCR”).^[4] See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Def.'s Delayed Not. of PCR (Exh. “E”) (Doc. 21). On October 28, 2011, the trial court observed that Petitioner's Notice of PCR was untimely; however, because the notice “sufficiently raised a colorable claim[, ]” the court allowed the Rule 32 proceeding to continue and appointed counsel to Petitioner. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001 DT, Rule 32 PCR (Exh. “F”) (Doc. 21). On July 31, 2014, Petitioner's counsel filed a notice confirming that she had reviewed the trial file, but “did not find an issue with respect to the change of plea or sentencing.”^[5] See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Pet.'s Not. of Completed Review (Exh. “G”) (Doc. 21). On August 5, 2014, the trial court directed counsel to forward “the complete trial and appellate file including all transcripts in counsel's possession” to Petitioner and set a deadline for Petitioner to file a pro se PCR petition. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001 DT, Notice of Completion of Post-Conviction Relief by Counsel Due Date for Pro Per Petition 8/5/2014 (Exh. “H”) (Doc. 21).

On September 8, 2014, Petitioner filed a Motion to Appoint New Counsel with the Rule 32 court. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Pet.'s Mot. to Appoint New Counsel (Exh. “I”) (Doc. 21). On September 18, 2014, Petitioner filed a Motion to Vacate Plea Agreement and on November 7, 2014, he filed a Motion to Extend Page Count. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Pet.'s Mot. to Vacate Plea Agreement (Exh. “J”) (Doc. 21) & Mot. to Extend Page Count (Exh. “K”) (Doc. 22). On October 16, 2014, the trial court denied Petitioner's request for counsel and construed Petitioner's Motion to Vacate Plea Agreement as his pro se PCR Petition requiring a response. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001 DT, Request for Counsel Denied[, ] Pet. Received[, ] Resp. Due Date (Exh. “L”) (Doc. 22).

1. PCR Petition

Petitioner asserted a single claim of error by the trial court regarding Petitioner's competency during his change-of-plea due to heavy psychotropic medication and five (5) counts of ineffective assistance of counsel and argued that all of these were violations of his Sixth Amendment rights. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001, Pet.'s Mot. to Vacate Plea Agreement (Exh. “J”) (Doc. 21) & Mot. to Extend Page Count (Exh. “K”) (Doc. 22). Petitioner urged that at the point of the plea proceeding where he informs the court that he has taken medication in the prior twenty-four (24) hours, the court should have stopped the hearing and set a competency hearing. Id., Exh. “J” at 76-78 & Exh. “K” at 18-20. Petitioner noted that trial counsel's constant instructions to Petitioner regarding what to say during the plea proceeding is evidence of his incompetence. Id., Exh. “J” at 82-83 & Exh. “K” at 22-25. Petitioner further argued that trial counsel was ineffective because he spent just over six (6) hours visiting Petitioner in jail over the course of a year, despite this being a “complex capital case.” Id., Exh. “K” at 29-31. Petitioner also alleged that trial counsel was ineffective due to a failure to interview key witnesses favorable to Petitioner. Id., Exh. “K” at 31-33. Petitioner asserted that trial counsel was ineffective due to an alleged failure to file a motion for disclosure regarding Officer Cassidy's report and photographs regarding witness interviews. Answer (Doc. 20), Exh. “K” (Doc. 22) at 33. Petitioner alleged a Brady^[6]violation regarding a failure to disclose the allegedly favorable evidence contained in Officer Cassidy's report. Id., Exh. “K” at 33. Finally, Petitioner asserted that trial counsel's alleged failure to file motions for impeachment regarding certain witnesses constituted ineffective assistance. Id., Exh. “K” at 34-37.

2. Rule 32 Court Order

On February 3, 2015, the Rule 32 court issued its Order dismissing the Petition for PCR. See Answer (Doc. 20), Ariz. Superior Ct., Maricopa County, No. CR2009-109769-001 DT, Minute Entry 2/3/2015 (Exh. “O”) (Doc. 22). The Rule 32 court delineated the test for ineffective assistance of counsel, stating that a Defendant was required “to show that (1) counsel's performance was deficient, that is, not reasonable under all the circumstances and under prevailing professional standards; and (2) the deficient performance prejudiced the defense, that is, there is a reasonable probability that but for counsel's deficient conduct, the result of the proceeding would have been different.” Id., Exh. “O” at 164 (citing State v. Salazar, 173 Ariz. 399, 414, 844 P.2d 566, 581 (Ariz. 1992)). The Rule 32 court further noted that “[a] reviewing judge must ‘indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'” Id., Exh. “O” at 164-65 (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984)). The Rule 32 court observed that “[t]here [wa]s a question as to whether this claim is timely[, ] [but] [r]egardless of that issue, his claims have no...