Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner was convicted of aggravated assault, criminal damage and unlawful flight in Arizona state court. He timely filed ALFRED P. SHADID, Petitioner, vs. DORA SCHRIRO, et al., Respondents. ) ) ) ) ) ) ) ) ) ) No. CIV 02-1896 PHX RCB O R D E R IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

a Petition for Writ of Habeas Corpus on September 26, 2002, advancing several claims for relief. Pet. (doc. # 1). After the

petition was fully briefed the Magistrate Judge issued a Report and Recommendation (R&R) (doc. # 43). filed objections. Both Petitioner and his counsel The Court has reviewed

Objs. (docs. # 44, 47).

the record, the R&R, the objections, and all other pertinent information and now rules. I. Motion for Extension of Time to Object to R&R The R&R was filed on September 8, 2004. See R&R (doc. # 43).

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Petitioner had ten days to file objections.

Fed. R. Civ. P. 72(b).

On September 21, 2004, the law firm of Bryan Cave, LLP, filed objections to the R&R on Petitioner's behalf.1 Objs. (doc. # 44).

Nevertheless, the next day Petitioner moved for a ten-day extension of the deadline to allow him to file objections to the R&R. (doc. # 46). Mot.

On September 24, 2004, he filed objections which he

characterized as a supplement to the previously filed objections. Objs. (doc. # 47). The content of the objections filed by However, the

Petitioner and his lawyers are substantially similar.

Court will grant Petitioner's motion for extension and consider his objections as well as those filed by his lawyers. Petitioner also

filed a second, third and fourth set of supplemental objections. Objs. (docs. # 49, 52, 53). these documents as well. II. Motion to Compel Answer On March 23, 2005 Petitioner filed a motion seeking an order compelling Respondents to provide a more specific answer to the allegations in his habeas petition. Mot. (doc. # 54). Petitioner The Court has reviewed and considered

points out that Rule 5 of the rules governing § 2254 habeas cases requires an answer to "respond to the allegations of the petition." Id. Although Respondents did file an answer which addressed each

of the grounds for habeas relief Petitioner asserted in his petition, he claims that the answer was not specific enough because

The objections also explicitly request this Court to undertake an independent de novo review of the record pursuant to Federal Rule of Civil Procedure 72(b). Objs. (doc. # 44). The request is granted. The Court conducts a de novo review pursuant to Rule 72(b) whenever objections are filed regardless of whether a petitioner makes a specific request to do so. Case 2:02-cv-01896-RCB Document 56 -2Filed 07/13/2005 Page 2 of 31

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it did not address each and every allegation in his petition.

Id.

However, Petitioner did not move for an order compelling a more specific answer until nearly two years after the answer was filed. See Ans. (doc. # 24). Since the answer was filed, Petitioner filed

a traverse, the Magistrate Judge issued a R&R, and Petitioner filed multiple sets of objections to the R&R. Granting Petitioner's

motion at this stage in the proceeding would result in extensive delays and duplication of briefing. There is no apparent valid

reason why Petitioner did not raise this issue until this late date. Therefore, the motion is denied.

III. Background On August 27, 1997 a jury found Petitioner guilty of aggravated assault, unlawful flight and criminal damage. (doc. # 42) Ex. E at 115. The state's primary witness at Id. Exs. B, Trans.

Petitioner's trial was the victim, Officer Guy Willis. C.

Officer Willis testified at length and in great detail about Id.

the events of the early morning hours of October 30, 1996.

Willis testified he was on motorcycle patrol at approximately 5:45 a.m. on the morning of October 30, 1996, when he saw a white car make an illegal left turn. Id. Ex. B at 99-100. Willis flashed He

his lights and siren and executed a stop.

Id. at 100-01.

stopped his motorcycle, approached the drivers' side window, identified himself, and asked the driver for his license, registration and proof of insurance. Willis he did not have a license. Id. at 102. The driver told

Id.

Willis asked for The driver motioned as Id. at

registration and proof of insurance.

Id.

if to look, then hit the accelerator and the car sped away. 102-03.

Willis returned to his motorcycle and began a pursuit. -3Filed 07/13/2005

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Id. at 104.

After several minutes, the driver backed into a Id. at 110-12. Id. at

driveway, turned around and headed toward Willis.

Willis jumped from his motorcycle and the car missed him. 112-13.

However the car struck the motorcycle and then sped away. Willis remounted the damaged motorcycle (it was Id. at 115. By this Id.

Id. at 113-14.

still driveable) and continued the pursuit.

time other officers were also attempting to find the car. Eventually, Willis found the car, but it was abandoned. 115-16.

Id. at

Later that morning, after providing the description of the driver to other investigating officers, Willis was summoned back to the area to identify suspects. Id. at 122. Willis testified that

he identified Petitioner as the driver of the car and his assailant. Id. at 124-25. DPS Officer Hough testified he was

present with Willis when Willis identified Petitioner as the assailant. Id. Ex. C at 100. Willis also identified Petitioner in On cross-

court as his assailant.

Id. Ex. B at 124-25.

examination, Willis conceded that his initial encounter with the suspect was only for "30 seconds to a minute maybe," in the dark, and that a portion of his attention was focused on watching the driver's hands rather than looking at his face. 46, 62. Willis further testified that while Petitioner was being fingerprinted he said to Willis "I'm sorry about what happened to you but it doesn't look like I hit you" or "doesn't look like I hurt you." Id. at 38. Under cross-examination Willis stated that Id. Ex. C at 33,

it is possible Petitioner might have said "I'm sorry that this happened to you; it doesn't look like you were hurt." -4Filed 07/13/2005 Id. at 60.

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However, the two other officers who were present when Petitioner was being finger-printed both testified that Petitioner told Willis that it didn't look like he had hurt Willis. D at 26. The state also called Phoenix Police Officer Thomas Van Dorn who testified that he was on patrol near the scene of the crime. Id. Ex. C at 83. He received a radio dispatch about an officer Id. at 85-92. Id. Ex. C at 103, Ex.

involved in a chase and went to the area described.

Van Dorn testified he saw the driver's car slam into Willis's motorcycle as Willis jumped out of the way. went to Willis's side. abandoned nearby. Id. Id. at 88-89. He then

He and Willis later found the car The police found various items in

Id. at 92.

the car including a knife and a plastic baggie containing fiftyseven milligrams of methamphetamine. Id. Ex. B at 129-131.

Following the prosecution's case, the defense called Curtis Lee. Id. Ex. D at 68. Lee testified he was friends with Id. at 70-71. One

Petitioner at the time of the incident in question. Lee stated he often loaned petitioner money.

Id. at 71.

morning at about 5:30 a.m., he met petitioner at a Circle K, loaned him fifty dollars, and left right away. Id. at 72-74. Later that

evening, Petitioner's girlfriend Amanda called Lee and told him Petitioner had been arrested. Id. at 75.

Petitioner took the stand and testified that he was out the night before the incident with various women and ended up at the Circle K at about 5:30 a.m. to meet Lee to borrow fifty dollars from him. Id. Ex. 91-96. Petitioner stated that he was picked up

by a woman named Michelle and taken to the Oasis Apartment complex where he remained until "light." Id. at 98. At 8:30 a.m. he went

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over to see a woman named Beverly to help fix her car. 99.

Id. at 98Id. at

He stated it took about 60-90 minutes to fix the car.

99-101.

At approximately 10:00 a.m. he went to his friend Elliot Id. at 101. Id. at 102-03. Ross owned or was custodian of the Ross worked for a cab company and Id. Petitioner

Ross's residence. suspect vehicle.

the car may have been owned by the company.

testified he saw the car the day before, October 29, 1996, when he was at Ross's home and Ross was working on the car. Id.

Petitioner explained that when Beverly dropped him off at Ross's house at about 10:00 a.m. on October 30, 1996, Ross told him the story of how the car was used in a chase from and eventual assault on a police officer. Id. at 105. Petitioner testified

that police officers in plainclothes arrived and questioned him about the incident in question. Id. 106-08. He was arrested and Id.

taken to the DPS station where questioning continued.

Petitioner told the police he had nothing to do with driving the car and was not the person who attempted to run down Officer Willis. Id. at 109. After this interview, Petitioner was not Exs. (doc. # 21) Ex. F at 8-

formally charged, but was released. 12, 14.

Petitioner was formally charged approximately two weeks Id. Ex. A.

after his release.

The jury convicted Petitioner and he was sentenced to a total term of 20.75 years in prison. B at 87-88. Ans. (doc. # 24) Ex. A at 115, Ex.

On appeal Petitioner's counsel raised only one issue, Id. Ex. U. The

his right to a speedy trial under Arizona law.

court of appeals found that Petitioner's right to a speedy trial had been violated and remanded the case to the trial court for a determination of whether Petitioner suffered prejudice in -6Filed 07/13/2005

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presenting his defense as a result of the delay.

Id. Ex. V.

A

hearing was held by the trial court after which it determined that Petitioner suffered no prejudice. appealed this ruling. Id. Ex. AA. Id. Exs. X, Y. Petitioner

On February 29, 2000, the court

of appeals affirmed Petitioner's convictions, in particular, upholding the trial court's determination following remand that Petitioner suffered no prejudice from the speedy trial violation. Id. Ex. EE. Id. Ex. GG. Petitioner's request for reconsideration was denied. Petitioner then filed for review in the Arizona Id. Exs. HH, II, JJ.

Supreme Court, but the court denied review.

Petitioner filed a Notice of Post-Conviction Relief in the state trial court on August 3, 2000. Id. Ex. LL. The trial court

refused to consider Petitioner's initial ninety-one page petition for post-conviction relief because it did not comply with the page limit requirement. Id. Ex. OO. Petitioner filed an amended Id. Exs. RR,

petition which the trial court denied on the merits. SS.

After the court also denied a motion for reconsideration, Id. Exs. VV,

Petitioner filed for review in the court of appeals. WW.

The Court of Appeals denied review without comment on August Id. Ex. XX.

22, 2002.

On September 22, 2002, Petitioner filed the federal habeas petition now under consideration. Pet. (doc. # 3). The habeas

petition asserts two broad bases for habeas relief, due process violations caused by prosecutorial misconduct and ineffective assistance of counsel. Id. Petitioner sets forth several Id. In ground one

incidents under each of these categories.

Petitioner asserts that his right to due process was violated because Willis gave false testimony, the prosecutor concealed -7Filed 07/13/2005

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evidence, employees of the Maricopa County Sheriff's Office ("MCSO") interfered with his ability to send legal correspondence, and he was not given a speedy trial. Id. In ground two of his

habeas petition Petitioner asserts that his trial counsel was constitutionally ineffective because he failed to locate and call certain witnesses, failed to investigate the main eyewitness's vision, failed to challenge a misrepresentation during trial, failed to challenge the prosecution's use of an allegedly doctored photograph of Petitioner, failed to adequately test or preserve the physical evidence, failed to challenge destruction of physical evidence, failed to present certain facts and arguments to the jury, failed to adequately investigate an alternate suspect, failed to argue to suppress statements Petitioner make to police, and failed to move to dismiss the indictment. Id. Petitioner also

claims that his appellate counsel was constitutionally ineffective because he failed to argue the ineffectiveness of trial counsel on the direct appeal. IV. Id.

Exhaustion of Claims A state prisoner must exhaust his state remedies before

petitioning for a writ of habeas corpus in federal court.

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U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995). To properly exhaust state remedies, a petitioner must

fairly present his claims to the state's highest court in a procedurally appropriate manner. 838, 842-46 (1999). O'Sullivan v. Boerckel, 526 U.S.

In Arizona, a petitioner must fairly present

his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. Swoopes v. Sublett, 196 F.3d

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1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). The exhaustion requirement will not be met where Roettgen, 33

the petitioner fails to fairly present his claims. F.3d at 38.

In order for a claim to be fairly presented a petitioner must describe both the operative facts and the federal legal theory on which the claim is based. Bland v. Cal. Dep't of Corrections, 20

F.3d 1469, 1473 (9th Cir. 1994), overruled on other grounds by Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000); Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001). The federal legal

theory must be presented to the state court specifically enough to put the state court on notice that there is a federal issue, thus giving the state court an opportunity to resolve that issue. Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000); Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999). "[G]eneral appeals

to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion." Hiivala, 195 F.3d at 1106 (citing Gray v.

Netherland, 518 U.S. 152, 163 (1996)). In his first direct appeal Petitioner asserted that his right to a speedy trial had been violated. Ans. (doc. # 24) Ex. U.

However, Petitioner supported his claim only with references to state court decisions, the state constitution, and state procedural rules. See id. at iii. The state court decisions cited address

only the right to a speedy trial under Arizona law, not under the federal constitution. Id. Nowhere in his appellate brief did

Petitioner assert a violation of his federal constitutional right to a speedy trial. See id. Consequently, the Arizona Court of -9Filed 07/13/2005

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Appeals only considered whether the continuances granted by the trial judge were error under state law. Ans. (doc. # 24) Ex. V.

The court of appeals found that there was a state law speedy trial violation, but remanded to the trial court for a determination of whether the violation had prejudiced Petitioner. Id. After an

evidentiary hearing the trial court ruled that Petitioner had not established prejudice. ruling. Id. Ex. DD. Id. Ex. Y. Petitioner appealed this

In the appeal he tangentially referred to the

standard for a federal speedy trial violation set forth by the United States Supreme Court, but primarily relied on state law. Id. The court of appeals upheld the trial court's determination

that prejudice had not been shown and did not mention the reference to the federal standard or construe Petitioner's brief as raising a claim for a speedy trial violation under the federal constitution. Id. Ex. EE. Even if the court of appeals had concluded that

Petitioner advanced a federal claim, Arizona procedural rules would have precluded the consideration of that claim on the merits because it was not raised in the initial direct appeal. See id.

Ex. EE at 7 (finding waiver of a claim which had not been raised in the initial appeal). This Court cannot conclude that the federal

nature of Petitioner's speedy trial claim was presented in state court in a procedurally appropriate manner. Therefore,

Petitioner's federal speedy trial claim has not been exhausted. See O'Sullivan, 526 U.S. at 842-46. In Arizona, appellate review of a trial court's ruling on a petition for post-conviction relief is a discretionary review, not an appeal. Az. R. Crim. Pro. 32.9(c); Moreno v. Gonzalez, 962 P.2d In this situation the appellate court does - 10 Filed 07/13/2005

205, 208 (Ariz. 1998).

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not search the record for fundamental error or consider the merits of claims that have not been first raised in the trial court. State v. Smith, 910 P.2d 1, 4 (Ariz. 1996). In his habeas petition

Petitioner alleges both that the prosecution used a doctored photograph of Petitioner at trial and failed to disclose a supplemental police report to the defense. See Pet. (doc. # 3).

However, neither of these issues were raised in the petition for post-conviction relief. See Ans. (doc. # 24) Ex. RR. Therefore,

even though Petitioner mentioned them in his petition for review, they have not been fairly presented to the state courts for purposes of exhaustion. (1971). When a § 2254 petition contains claims which were not exhausted, the federal court must determine whether state remedies remain available to the petitioner. 288, 297 (1989). See Teague v. Lane, 489 U.S. See Picard v. Connor, 404 U.S. 270, 275-76

If remedies are available in state court, then

the federal court may dismiss the petition without prejudice pending the exhaustion of state remedies. Id. However, if the

court finds that the petitioner would have no state remedy were he to return to the state court, then his claims are considered procedurally defaulted. Id. at 298-99 (1989); White v. Lewis, 874

F.2d 599, 602-03 (9th Cir. 1989). The claims which Petitioner did not exhaust could have been raised in his petition for post-conviction relief or direct appeal. Therefore, any relief in Arizona courts based on these arguments is precluded. Az. R. Crim. Pro. 32.2(a)(3); State v. Curtis, 912 P.2d Since the speedy trial, doctored

1341, 1342 (Az. App. Ct. 1995).

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there is no remaining state remedy available, these claims are procedurally defaulted. When habeas claims have been procedurally defaulted "federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 510 U.S. at 750; see also,

Schlup v. Delo, 513 U.S. 298, 321 (1995); Murray v. Carrier, 477 U.S. 478, 495-96 (1986). "'Cause' is a legitimate excuse for the

default and 'prejudice' is actual harm resulting from the alleged constitutional violation." Thomas v. Lewis, 945 F.2d 1119, 1123

(9th Cir. 1991) (citing Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984)). prejudice. Petitioner also cannot show that federal review of the defaulted claims is necessary to prevent a fundamental miscarriage of justice. This exception is only applicable in rare and Petitioner has not demonstrated either cause or

extraordinary cases where it is probable that the prisoner is actually innocent. 496. Schlup, 513 U.S. at 321; Carrier, 477 U.S. at

Though Petitioner asserts that he is actually innocent, a Schlup, 513 U.S.

mere declaration of innocence is not sufficient. at 865.

"[S]uch a claim requires petitioner to support his

allegations of constitutional error with new reliable evidence­whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence­that was not presented at trial." evidence. Id. Petitioner has provided no such

Because neither of the exceptions apply, this Court may - 12 Filed 07/13/2005

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not review Petitioner's procedurally defaulted claims. V. Legal Standard for Reviewing Exhausted Claims This Court may not grant a writ of habeas corpus to a state prisoner on a claim that was adjudicated on the merits in state court proceedings unless the state court reached a decision contrary to clearly established federal law, or one involving an unreasonable application of clearly established federal law, or unless the state reviewing court's decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).

A state court's decision [] involve[s] an "unreasonable application" of federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000). A

federal court must presume the correctness of the state court's factual findings regarding the petitioner's claims and must also presume that the state court's decisions on witness credibility were correct. 28 U.S.C. § 2254(e)(1); Ortiz v. Stewart, 149 F.3d

923, 936 (9th Cir. 1998). VI. Exhausted Due Process Claims Petitioner's first ground for habeas relief is that his due process rights were violated. Pet. (doc. # 3) at 4-15. He claims

that Willis falsely testified regarding his vision and his description of the perpetrator. Id. at 4-8. Petitioner goes on to

assert that the prosecutor and Willis concealed material evidence regarding the location of the methamphetamine. Id. at 6-10. Next

Plaintiff maintains that MCSO staff interfered with his ability to - 13 Filed 07/13/2005

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mail a collateral special action and effectively correspond with his attorney. A. Id. at 11-12.

False Testimony

At trial the judge questioned Willis, pursuant to a request from the jury, about his vision and whether he wore corrective lenses. Trans. (doc. # 42) Ex. C at 75. Id. Willis testified that he

had 20/20 vision uncorrected.

After trial, Petitioner

obtained a copy of Willis's employment application from April of 1985 which stated that he had 20/30 vision in his right eye and 20/40 vision in his left eye uncorrected. Pet. (doc. # 3) at 5.

Based on this report Petitioner asserts that Willis's testimony at trial in 1997 was false. Pet. (doc. # 3) at 4-5.

At trial, when asked what he observed about the driver of the vehicle that assaulted him,2 Willis responded by giving the following description: The driver was a white male, had dark hair, what I described as kind of bug eyes, they were ­ they were bigger around than a lot of people I deal with, meaning like more wide awake. I could tell that he had a full set of teeth in the front. And that's about it at the time. Trans. (doc. # 42) Ex. B at 103. Petitioner asserts that this

testimony was false because the pursuit tape reflects that on the morning in question Willis described the driver as a "white male, 5'9", 165 lbs., brown hair, no clothing description." 3) at 5. Pet. (doc. #

Petitioner points out that he is 5'4", 138 lbs. and has Id.

black hair.

Petitioner incorrectly states that Willis was asked how he described the driver. Pet. (doc. # 3) at 5; Objs. (doc. # 44) at 7. The actual question posed was "What did you observe about the driver?". Trans. (doc. # 42) Ex. B at 103. Case 2:02-cv-01896-RCB Document 56 - 14 Filed 07/13/2005 Page 14 of 31

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Petitioner maintains that Willis's lies at trial violated his due process rights. Pet. (doc. # 3) at 4-6. If Petitioner's

conviction was obtained "by the knowing use of perjured testimony" it must be set aside "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976). This principle

applies even if the false testimony is only related to a witness's credibility. Napue v. Illinois, 360 U.S. 264, 269 (1959).

However, an ambiguous or incomplete statement does not rise to the level of false testimony. See Giles v. Maryland, 386 U.S. 66, 111

(1967); United States v. Payne, 940 F.2d 286, 291 (8th Cir. 1991). The existence of contradictory evidence does not trigger the prosecutor's duty to point out the falsity of a statement, even if the same witness was the source of the contradiction, because the prosecutor does not necessarily know which information is actually false. Payne, 940 F.2d at 291; United States v. Zuno-Acre, 44 F.3d

1420, 1423 (9th Cir. 1995). Petitioner alleges that Willis falsely testified that his vision was 20/20 uncorrected, but the only evidence he provides to support this proposition is Willis's employment application from 1985. See Pet. (doc. # 3) at 4-5. This is not necessarily

sufficient to prove that Willis lied in 1997 when he claimed his vision was 20/20. The significant lapse in time makes it possible More

that both statements were true at the time they were made.

importantly, even if Willis's testimony regarding his vision was false, Petitioner has not shown that the prosecutor knew his testimony was false. See id. Petitioner only argues that the Sup. Objs. (doc. # 49)

prosecutor should have known it was false.

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at 5. id.

However, Petitioner provides no support for this claim.

See

The only evidence that Willis was lying about his vision was

in his DPS employment application from twelve years before the trial. See Exs. (doc. # 21) Ex. D. A prosecutor can be held

responsible for information known to other prosecutors or individuals acting on the government's behalf with respect to an investigation. Kyles v. Whitley, 514 U.S. 419, 436-38 (1995); However, there

Giglio v. United States, 405 U.S. 150; 154 (1972);

is no clearly established federal law that a prosecutor is charged with knowledge of the contents of a witness's twelve-year old employment application, even if the witness is a state employee. Petitioner also claims that Willis's testimony at trial about how he initially described the driver was false. at 5. Pet. (doc. # 3)

The problem with this claim is that Willis was never asked See Trans.

how he described the driver on the day of the incident. (doc. # 42) Exs. B, C.

He was simply asked what he observed about Id. Ex. B at 103.

the driver when he pulled him over.

Consequently, the fact that his answer was not identical to the description he broadcast at the time of the incident does not mean it was false. There are not any gross inconsistencies in the two Furthermore, the

descriptions; they are simply not coextensive.

pursuit tape which Petitioner uses to support his argument that Willis's description was false was played for the jury during the trial. Trans. (doc. # 42) Ex. C at 9. Even if due process

required the prosecutor to make the jury aware that Willis previously gave a more particular description of the suspect, that duty was fulfilled. Consequently, there is no basis to grant

habeas relief on this claim. - 16 Filed 07/13/2005

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B.

Concealment of Evidence

Petitioner next claims that the prosecutor and Officer Willis not only concealed precisely where the methamphetamine was located within the suspect vehicle, but also deliberately lied to the trial judge. Pet. (doc. # 3) at 6-8. At trial the prosecution moved to

admit the drugs to refute Petitioner's anticipated argument that he had no motive to flee from the police. 129-131. Trans. (doc. # 42) Ex. B at

The trial judge asked where in the car the drugs were

located, and Willis stated that the baggie was found in a lunch cooler in the front passenger side of the car on the floor. at 130. The judge ruled that the motion was premature but Id.

commented that if Petitioner argued to the jury that he had no motive to flee, the admissibility of the drugs could be revisited. Id. at 130-31. Consequently, Petitioner did not advance his no Pet. (doc. # 3) at 7. After the trial

motive to flee argument.

Petitioner discovered that the baggie containing methamphetamine was found in a woman's purse which contained an Arizona identification card in the name of Amanda Morris. Id. Petitioner

claims that if he had known this information during the trial he would have advanced a no motive to flee argument. Id. at 7-8. The

state court held that the drugs would have been admissible to refute a no motive to flee argument even if the trial court had known they were located in a woman's purse instead of in a cooler. Ans. (doc. # 24) Ex. SS. Petitioner claims that Willis's testimony that the baggie was found in a cooler was a lie. Pet. (doc. # 3) at 6. However, the

very document which Petitioner cites to which indicates that the methamphetamine was found in a purse also indicates that the purse - 17 Filed 07/13/2005

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was located inside a cooler.

Exs. (doc. # 21) Ex. I.

Therefore,

Willis's statement that the methamphetamine was located inside a cooler was accurate. See id. Petitioner goes on to argue that the

prosecutor lied to the judge by telling him that there was no evidence to suggest ownership of the drugs. Pet. (doc. # 3) at 6. See Trans.

This allegation is also unsupported by the record. (doc. # 42) Ex. B at 129-31.

The judge never asked if there was

any evidence of who owned the drugs; he asked if there was evidence of who owned the vehicle. See id. The prosecutor responded that Id.

there was, and the defendant did not own the vehicle.

Therefore, the only accurate factual aspect of this claims is simply that neither Willis nor the prosecutor informed the trial judge that the methamphetamine was found located in a purse containing Amanda Morris's identification. Ex. B at 129-31. Petitioner argues that the State's concealment of precisely where the methamphetamine was found was "[a]n omission that clearly infected the integrity of the proceedings and cannot be determined to not have had a substantial influence on the jury." Pet. (doc. # See Trans. (doc. # 42)

3) at 8 (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 n.9 (1993)). However, the Brecht case discusses the circumstances

under which a conviction must be set aside when an aspect of the trial violated the United States constitution. U.S. 619. See Brecht, 507

First Petitioner must establish that there was a

constitutional error, but he does not specifically delineate how the alleged actions violated his constitutional rights. # 3) at 6-8. Nor can he. Pet. (doc.

The information Willis and the

prosecutor arguably concealed from the trial court and defense does - 18 Filed 07/13/2005

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not rise to the level of a constitutional violation.

Due process

is violated when a prosecutor withholds evidence which is material to whether an accused is guilty. 87 (1963). Brady v. Maryland, 373 U.S. 83,

However, Petitioner was not charged with possession of See Trans. (doc. # 42) Ex. B. at 70-71. The

the methamphetamine.

withheld information was not material to whether Petitioner was the person driving the suspect vehicle who assaulted Officer Willis. Consequently, the prosecution was not under any duty to disclose where precisely in the car the methamphetamine was located. Brady, 373 U.S. at 87. Petitioner has not established a See

constitutional error with respect to the methamphetamine evidence. C. Conduct of MCSO staff

Petitioner complains that while he was a pre-trial detainee at Maricopa County Sheriff's Office (MCSO), government agents refused to allow him to mail a collateral special action, refused his attempts to mail privileged letters to his legal representatives, and passed correspondence to his attorney around to other pre-trial detainees in an attempt to garner tactical information. # 3) at 11. Pet. (doc.

Petitioner presented these arguments to the state

court in his amended petition for post-conviction relief, but the state court ruled that they were not cognizable under Arizona Rule of Criminal Procedure 32 and refused to consider them. # 24) Exs. RR, SS. Ans. (doc.

In his federal habeas petition, Petitioner Pet. (doc. # 3) at 12. However,

challenges this determination.

the state court's determination that a state procedural rule prevented it from considering the merits of Petitioner's claims is not subject to federal habeas review. See Estelle v. McGuire, 502

U.S. 62, 67 (1990) ("We have stated many times that federal habeas - 19 Filed 07/13/2005

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corpus relief does not lie for errors of state law."). VII. Exhausted Inadequate Assistance of Counsel Claims Petitioner claims that both his trial and appellate counsel's performance was deficient in a variety of ways, depriving him of his constitutional right to effective assistance of counsel. (doc. # 3) at 15-35. Pet.

In order to establish that his counsel's poor

performance constituted a violation of the constitutional right to adequate assistance, Petitioner must establish both that counsel's performance fell below an objective standard of reasonableness and that as a result he was prejudiced. U.S. 668, 687 (1984). Strickland v. Washington, 466

In reviewing whether counsel's performance

was deficient, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." omitted). Id. at 689 (quotation

The reasonableness of counsel's conduct is judged from

counsel's perspective at the time of the alleged error in light of all the circumstances. 381 (1986). Id.; Kimmelman v. Morrison, 477 U.S. 365,

Furthermore, counsel cannot be deemed constitutionally

ineffective for failing to raise an argument that counsel reasonably concludes would not be successful. 17 F.3d 1149, 1164 (9th Cir. 1994). Hamilton v. Vasquez,

Finally, even when an

attorney's performance had been deficient, there is no violation of the constitutional right to effective assistance of counsel unless a petitioner can show that absent the deficient performance there was a "reasonable probability that . . . the result of the proceeding would have been different." Id. at 694.

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In ground two of his habeas petition Petitioner asserts that his trial counsel was constitutionally ineffective because he failed to locate and call certain witnesses, failed to investigate the main eyewitness's vision, failed to challenge a misrepresentation during trial, failed to adequately test or preserve the physical evidence, failed to challenge destruction of physical evidence, failed to present certain facts and arguments to the jury, failed to adequately investigate another suspect, failed to argue to suppress statements Petitioner made to police, and failed to move to dismiss the indictment. Id. Petitioner also

claims that his appellate counsel was constitutionally ineffective because he failed to argue the ineffectiveness of trial counsel in the direct appeal. A. Id.

Failure to locate and call particular witnesses

Petitioner's first argument is that there are two individuals who his trial counsel should have located, interviewed, and called as witnesses at trial. Pet. (doc. # 3) at 15-16. Joseph Konesky

and David McKamey were both present when Officer Willis first approached Petitioner late in the morning on the day of the incident. Id. Petitioner asserts that Konesky and McKamey would

have corroborated his claim that Willis did not immediately identify Petitioner as the perpetrator, but initially disregarded him because of his lack of hair. Id. Trial counsel could very

well have decided it was not worthwhile to attempt to track down Konesky or McKamey because their anticipated testimony would not be particularly probative in light of the undeniable fact the Willis did ultimately identify Petitioner as the perpetrator. Petitioner's attorney might also have weighed the fact that the - 21 Filed 07/13/2005

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jury might not find Konesky or McKamey's testimony very reliable because they were Petitioner's friends. Certainly an argument can

be made that it would have been a good idea to at least try to locate and talk to Konesky or McKamey. However, attorneys are not

constitutionally required to take every step which somebody somewhere might think was a good idea. 687-89. See Strickland, 466 U.S. at

The state court discussed the standard for ineffective

assistance claims set forth in Strickland v. Washington and concluded that counsel's failure to contact Konesky or McKamey did not fall below prevailing professional norms. Ex. at 2.

Petitioner has not demonstrated that this conclusion was an objectively unreasonable application of Strickland. is not entitled to habeas relief on this claim. 2254(d). B. Failure to investigate Officer Willis's vision Therefore, he

See 28 U.S.C. §

According to Petitioner his trial attorney should have investigated Officer Willis's eyesight because Petitioner informed his counsel that Willis was wearing prescription eyewear when he first met him. Pet. (doc. # 3) at 15-16. However, Petitioner does

not explain how he knew that Willis's glasses were prescription and not clear. See id. At trial Willis testified that pursuant to

police procedure he was wearing protective eyewear with clear polycarbonate lenses. Trans. (doc. # 42) Ex. C at 75. In light of

this information Petitioner's counsel's decision to not challenge Willis's eyesight is considerably more reasonable than Petitioner makes it sound. Moreover, deciding what routes of investigation to

pursue and whether to use a particular means to attempt to impeach a witness are precisely the type of tactical and strategic issues - 22 Filed 07/13/2005

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which are within an attorney's discretion.

There is no clearly

established federal law which mandates the conclusion that Petitioner's counsel's course of action was outside the wide range of reasonable professional assistance. C. Failure to challenge misrepresentation

Petitioner contends that his trial counsel was ineffective when he allowed Willis, the sole eyewitness, to misrepresent his initial description of the perpetrator. Pet. (doc. # 3) at 16.

Petitioner goes on to point out that his counsel was in possession of the pursuit tape which contained Willis's very first description of the suspect driver and faults his counsel for not disclosing that description to the jury. Id. The factual bases of this claim As the Court discussed

are directly contradicted by the record.

above, there is no indication that Willis's testimony at trial regarding his observation of the suspect was a misrepresentation. See supra section VI.A. Furthermore, the pursuit tape with

Willis's initial description of the suspect was played at trial for the jury. D. Trans. (doc. # 42) Ex. C at 9. Failure to adequately test/preserve physical evidence

Petitioner also attacks his trial counsel's failure to adequately test or preserve the physical evidence. at 18-22. Pet. (doc. # 3)

The physical evidence presented at trial showed that

Petitioner's fingerprints were not found on the inside of the vehicle.3 Trans. (doc. # 42) Ex. D at 29-58. However, the

Petitioner's vehicle, but this previously helped Trans. (doc. # 42)

3

fingerprints were found on the outside of the was consistent with his testimony that he had the owner of the car do work on the car. See Ex. D at 39, 102. Document 56 - 23 Filed 07/13/2005 Page 23 of 31

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prosecution's fingerprint witness testified that the materials and surfaces inside the car were not conducive to fingerprint impressions and collection. Id. Petitioner argues that he was not

able to rebut this testimony because the vehicle had already been released to its owner pursuant to permission given by his counsel.4 Pet. (doc. # 3) at 20. However, Petitioner's argument that the

availability of the car was necessary for rebuttal is unfounded. Provided there was a basis for such testimony, a defense expert could have rebutted the prosecution witness's testimony based on an examination of the same make and model of car, or even based on the testimony regarding the nature of the vehicle's interior. Trans.

(doc. # 42) Ex. D at 41-57 (on cross-examination Petitioner's counsel elicited testimony regarding details of the vehicle's interior including the gear shift). Since there was no need for

the vehicle to be retained until the end of the trial, counsel's consent to its release did not constitute ineffective assistance of counsel. Nor is there any other indication that counsel's actions,

or lack thereof, with respect to the physical evidence were unreasonable or outside the professional norm. E. Failure to challenge absence of physical evidence

In addition to questioning his counsel's consent to release of the vehicle and concomitant physical evidence, Petitioner also challenges his counsel's decision to not raise the State's failure to retain that evidence as an issue at trial. 22-23. Pet. (doc. # 3) at

However, the Court has already concluded that Petitioner

After the vehicle was released defense counsel attempted to locate the owner and vehicle, but to no avail. Trans. (doc. # 42) Ex. B at 64. Case 2:02-cv-01896-RCB Document 56 - 24 Filed 07/13/2005 Page 24 of 31

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has not shown that there was any need for the physical evidence to be preserved through the time of the trial. VII.D. See supra section

Therefore, counsel's decision to not question the

prosecution's release of the physical evidence was reasonable and within the wide range of professional assistance. 466 U.S. at 689. F. Failure to present certain arguments to the jury See Strickland,

Petitioner maintains that his attorney interfered with the presentation of exculpatory evidence by instructing him to not testify concerning four specific subjects: the possibility of another possible suspect, Troy Miller; Petitioner's release from custody a few days after the incident without charges being brought (until later); the fact that when Willis first saw Petitioner late in the morning the day of the incident he initially disregarded him due to Petitioner's lack of hair; and Petitioner's offer to plead guilty if Willis took, and passed, a lie detector test. # 3) at 23. Pet. (doc.

Petitioner developed his argument with respect to

Miller in his subsequent claim, so the Court will consider the assertions relating to Miller together when considering the subsequent claim. See infra section V.G. Counsel's direction to

Petitioner to not volunteer information about his offer to plead guilty cannot be construed as interference with presentation of exculpatory evidence regardless of the circumstances of the offer to plead guilty. However, testimony calling Willis's If

identification into question would have been exculpatory.

Willis did initially state that Petitioner was not the suspect, such information could call his later, contrary identification into question. The fact that Petitioner was released from custody a few - 25 Filed 07/13/2005

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days after the incident and that formal charges were only brought a couple of weeks later is not necessarily exculpatory itself, but it could conceivably indicate a lack of confidence in Willis's identification. Petitioner cites a Ninth Circuit case in support of his proposition that an attorney's interference with the presentation of exculpatory testimony is ineffective assistance. Pet. (doc. #

3) at 23-24 (citing Frazer v. United States, 18 F.3d 778 (9th Cir.)). He does not provide any citation to clearly established

federal law, i.e. United State Supreme Court precedent, that specifically supports this proposition. See id. Nevertheless, in

light of the lack of any permissible reason Petitioner's attorney instructed him not to testify regarding potentially exculpatory facts, it would be difficult to conclude that the attorney's actions survive scrutiny under the first prong of the Strickland test. This close question need not be addressed, however, because

the state court also found that Petitioner had not established prejudice. Ans. (doc. # 24) Ex. SS. Petitioner repeatedly states

that his conviction was based solely on Willis's eyewitness identification. See Pet. (doc. # 3). However, although that was a

significant component of the case against him, three witnesses testified that while Petitioner was being fingerprinted he told Willis that it didn't look like he had hurt Willis. 42) Ex. C at 38, 103; Ex. D at 26. Trans. (doc. #

Petitioner did present an alibi

defense, but there was no evidence or testimony which corroborated his story during the applicable time frame. Also, the state

presented testimony that on the day of the incident Petitioner had given police a different alibi. Id. Ex. E at 45-46. - 26 Filed 07/13/2005 In light of

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the fact that the eyewitness identification was buttressed both by Petitioner's inculpatory statement and shifting and unconfirmed alibi, it was not objectively unreasonable for the state court to conclude that the result of the trial would not have been different even if Petitioner had testified both that he was released from custody a few days after the incident and that initially Willis thought he was not the perpetrator because of how little hair he had. G. Failure to investigate alternative suspect

Petitioner claims that his counsel should have investigated whether an alternative suspect, Troy Miller, committed the crime Petitioner was accused of and should have presented the jury with the possibility that Miller was the perpetrator. at 26. Pet. (doc. # 3)

Petitioner supports this argument by stating that the owner

of the vehicle identified Miller as someone who both fit the police's description and had access to the vehicle. Id. However,

Petitioner conveniently ignores that fact that when Willis met with Miller the morning of the incident (pursuant to the tip that Miller fit the description) Willis stated that Miller was not the perpetrator. Exs. (doc. # 21) Ex. J. Petitioner also fails to

mention that Miller told the police he was working during the time the incident occurred. Id. Consequently, Petitioner's counsel

could very well have decided that suggesting to the jury that Miller was the perpetrator could have been counter-productive. Under such circumstances Willis would have testified that Miller was not the perpetrator, and the prosecution might have even been able to introduce alibi evidence to show that Miller could not have been the perpetrator. Considering all of the available facts, this - 27 Filed 07/13/2005

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Court has no basis to second-guess the state court's finding that all of trial counsel's decisions, including not to develop Miller as an alternative suspect, were reasonable strategic decisions. See Ans. (doc. # 24) Ex. SS. H. Failure to seek suppression of statements to police

Petitioner claims that his trial counsel should have requested the trial court to suppress statements Petitioner made to the police on the day of the incident because they were involuntary statements obtained through coercion. Pet. (doc. # 3) at 27.

According to Petitioner, the police detained him at approximately 11:00 a.m. on the morning of the incident, and when Petitioner immediately asserted his right to remain silent and requested to call his attorney, the police refused to allow him to contact his attorney. Id. at 28. Instead they continued trying to get

Petitioner to talk, ultimately telling him that they had contacted his attorney, but his attorney was not willing to speak with him.5 Id. Eventually, after continuous questioning, Petitioner stated

that he would conditionally waive his rights and answer some questions. Id. at 30. During the subsequent conversation he did

not incriminate himself, but the alibi he gave was different than the alibi he presented at trial. 99; Ex. E at 45-46. Trans. (doc. # 42) Ex. D. at 98-

At trial the prosecution pointed out the Id. Ex. E at 45-46.

change in Petitioner's alibi to impeach him.

Based on the facts Petitioner presents it might be plausible to conclude that Petitioner's statements were not voluntary.

Petitioner states that his attorney subsequently denied being contacted by the police. Pet. (doc. # 3) at 28. Case 2:02-cv-01896-RCB Document 56 - 28 Filed 07/13/2005 Page 28 of 31

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However, in light of the clear statement that he was waiving his rights, it is also plausible to conclude that his subsequent statements were voluntary, even considering the overall context. The trial court appropriately left this factual determination to the jury by instructing the jury that they were not to consider the statements Petitioner made to the police unless they found that those statements were made voluntarily. at 99-100. Trans. (doc. # 42) Ex. E

Because of the factual issue regarding voluntariness,

Petitioner's counsel could have reasonably believed that it would have been futile to argue for the suppression of the statements Petitioner made to the police. Counsel cannot be deemed

constitutionally ineffective for failing to raise an argument that he reasonably concluded would not be successful. at 1164. I. Failure to move to dismiss the indictment Hamilton, 17 F.3d

The circumstances surrounding Petitioner's interrogation by police on the day of the incident also give rise to Petitioner's assertion that his trial counsel was ineffective because he failed to move for a dismissal of the indictment. 28. Pet. (doc. # 3) at 27-

According to Petitioner, his trial counsel should have made

such a motion based on the argument that on the day of the incident Petitioner was denied effective assistance of counsel. Id.

However, the only legal support Petitioner provides which indicates that such a motion could have been successful is an Arizona Court of Appeals case which was not decided until over a year after Petitioner's trial. (Ct. App. 1998). Id. (citing State v. Sanders, 194 Ariz. 156

Based on an examination of the relevant case law

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that Petitioner's trial counsel could have reasonably believed that a motion to dismiss the indictment would not have been successful. Therefore, his decision to not file such a motion did not amount to ineffective assistance of counsel. J. See Hamilton, 17 F.3d at 1164.

Failure to argue ineffective assistance in direct appeal

In addition to the many complaints about his trial counsel, Petitioner also argues that his appellate counsel rendered ineffective assistance by failing to raise on direct appeal trial counsel's alleged errors during the trial proceeding. 3) at 32-33. Pet. (doc. #

However, when these claims were presented in

Petitioner's amended petition for post-conviction relief, the state court found that Petitioner's trial counsel had rendered effective assistance of counsel. See Ans. (doc. # 24) Ex. SS. Consequently,

Petitioner did not suffer any prejudice when his appellate counsel failed to raise these issues in the direct appeal. Without

demonstrating prejudice, he cannot establish a valid claim that his appellate counsel rendered ineffective assistance of counsel. Strickland, 466 U.S. at 694. VIII. Evidentiary Hearing The foregoing analysis demonstrates that Petitioner is not entitled to habeas relief even when all the evidence he presented is fully credited. Consequently, there is no need to consider See

whether Petitioner is entitled to an evidentiary hearing to persuade the Court of the validity of that evidence. IT IS ORDERED that Petitioner's Motion for Trial De Novo by District Judge (doc. # 44) is GRANTED. IT IS FURTHER ORDERED that Petitioner's Motion to Extend Time to File Objections (doc. # 46) is GRANTED. - 30 Filed 07/13/2005

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IT IS FURTHER ORDERED that Petitioner's Motion to Compel Respondent's Answer (doc. # 54) is DENIED. IT IS FINALLY ORDERED that Shadid's Petition for Habeas Corpus (doc. # 1) is DENIED. The clerk is directed to enter judgment in

favor of Respondents and to terminate this case. DATED this 12th day of July, 2005.

Copies to counsel of record and pro se petitioner

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