McDonald v. Ryan et al

Filing 23

ORDER The factual findings and conclusions in Judge Anderson's R&R Doc. 16 are accepted. Charles Anthony McDonald's petition for writ of habeas corpus Doc. 3 is denied. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied as stated above. Signed by Judge David G Campbell on 12/13/2011. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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ORDER

Petitioner,

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No. CV10-01513-PHX-DGC

Charles Anthony McDonald,

vs.
Charles L. Ryan, et al.,
Respondents.

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Charles Anthony McDonald petitions for a writ of habeas corpus pursuant to

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28 U.S.C. § 2254.

Doc. 3.

On October 24, 2011, Magistrate Judge Lawrence O.

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Anderson issued a report and recommendation (“R&R”) that the petition be denied.

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Doc. 16. Petitioner has filed an objection to the R&R. Doc. 22. For the reasons that

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follow, the Court will accept the R&R and deny the petition.

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I.

Background.

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On January 29, 2004, Petitioner Charles Anthony McDonald was indicted in

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Maricopa County Superior Court for burglary in the second degree and possession of

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burglary tools. CR2004-006704. The State amended the indictment to allege 23 prior

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felony convictions, commission of the offenses while released from confinement, and

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aggravating circumstances other than the prior convictions. Doc. 12-1, at 4, 5, 13 (Resp.

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Ex. A, at 14, 15, 44).

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commenced on December 9, 2004. Petitioner was convicted, and on March 2, 2005, the

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trial court sentenced him to an aggravated 20-year term of imprisonment on the second-

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degree burglary conviction and an aggravated concurrent 4.5-year term on the possession

Following a mistrial on December 8, 2004, a second trial

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for burglary tools conviction. Doc. 12-1, at 51 (Resp. Ex. B, at 126). The Arizona Court

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of Appeals upheld Petitioner’s convictions and sentences on direct appeal. Doc. 12-1,

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at 95 (Resp. Ex. E). Petitioner filed a motion for reconsideration, which the Court of

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Appeals denied. Doc. 12-1, at 107, 119 (Resp. Ex. F, G). The Arizona Supreme Court

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denied the petition for review. Doc. 12-1, at 122, 135 (Resp. Ex. H, I).

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Following an evidentiary hearing on the issue of counsel’s alleged failure to

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adequately advise Petitioner of the strengths and weaknesses associated with a plea offer

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(Doc. 12-1, at 54), the trial court denied a petition for post-conviction relief. The Arizona

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Court of Appeals and Arizona Supreme Court summarily denied review. Doc. 12-3,

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at 53, 72, 74, 89 (Resp. Ex. O, P, Q, R).

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In July 2010, Petitioner filed a timely petition for writ of habeas corpus in this

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Court pursuant to 28 U.S.C. § 2254. Doc. 3. Petitioner raised eight grounds for relief.

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The Court dismissed Ground Eight for failure to state a federal habeas claim and ordered

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Respondents to answer Grounds One through Seven. Doc. 4, at 3. Respondents filed an

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answer (Doc. 12) and Petitioner filed a reply (Docs. 13, 14). Judge Anderson issued an

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R&R recommending that the petition be denied and that a certificate of appealability

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(“COA”) and leave to proceed in forma pauperis on appeal be denied because Petitioner

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had not made a substantial showing of the denial of a constitutional right. Doc. 16, at 42.

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Petitioner has filed an objection on Grounds One, Four, Five, and Seven. Doc. 22.

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II.

Standard of Review.

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A party may file specific written objections to the R&R’s proposed findings and

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recommendations. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). The Court must

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undertake a de novo review of those portions of the R&R to which specific objections are

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made. See id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia,

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328 F.3d 1114, 1121 (9th Cir. 2003). The Court may accept, reject, or modify, in whole

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or in part, the findings or recommendations made by the magistrate judge. Fed. R. Civ.

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P. 72(b); 28 U.S.C. § 636(b)(1). Under the Antiterrorism and Effective Death Penalty

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Act of 1996 (“AEDPA”), the Court may not grant habeas relief unless it concludes that

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the state’s adjudication of the claim (1) resulted in a decision that was contrary to, or

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involved an unreasonable application of, clearly established federal law, as determined by

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the Supreme Court of the United States, or (2) resulted in a decision that was based on an

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unreasonable determination of the facts in light of the evidence presented in the state

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court proceeding. 28 U.S.C. ' 2254(d)(1)-(2).

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III.

Discussion.

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A.

Right to Self-Representation.

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Petitioner argues in Ground One that he was denied the right to represent himself

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at trial in violation of his right to due process under the Fifth and Fourteenth

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Amendments.

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represent himself at trial. Feretta v. California, 422 U.S. 806, 806 (1975). A defendant

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must “knowingly and intelligently” forgo the right to counsel by being made “aware of

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the dangers and disadvantages of self-representation, so that the record will establish that

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‘he knows what he is doing and his choice is made with his eyes open.’” Id. at 835

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(citations omitted).

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unequivocal, timely, and not for purposes of delay.

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355 F.3d 1161, 1167 (9th Cir. 2004). The Ninth Circuit has set forth three factors to

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determine whether a request for self-representation is unequivocal: the timing of the

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request, the manner in which the request was made, and whether the defendant repeatedly

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made the request. Stenson v. Lambert, 504 F.3d 873, 882 (9th Cir. 2007).

Doc. 3, at 7.

Petitioner has an “independent constitutional right” to

A defendant’s request for self-representation must also be
Id.; United States v. Erskine,

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On June 30, 2004, Petitioner filed a motion to proceed in propria persona.

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Doc. 12-1, at 8 (Resp. Ex. A, at 35). His trial had been continued twice to July 20, 2004.

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Doc. 12-1, at 20, 22 (Resp. Ex. B, at 28, 31). On July 9, 2004, the trial court heard oral

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argument on Petitioner’s motion. Doc. 12-1, at 23 (Resp. Ex. B, at 33). At the hearing,

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Petitioner informed the court that he lacked confidence in trial counsel, wanted the

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assistance of advisory counsel, and needed an additional 90 to 180 days to prepare for

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trial. Doc. 12-3, at 95-97 (Resp. Ex. S, at 5-7). The trial court informed Petitioner that

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his simultaneous request to proceed in propria persona and for an extension of time

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weighed against granting Petitioner’s request to represent himself.

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(Resp. Ex. S, at 7). The court also informed Petitioner that he would have to submit his

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request for a continuance to the continuance panel. Id. Petitioner stated that he would

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not be ready to proceed on July 20, 2004 by himself. Doc. 12-3, at 99 (Resp. Ex. S, at 9).

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Petitioner agreed to the trial court’s proposal of substituting counsel. Doc. 12-3, at 101

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(Resp. Ex. S, at 11).

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withdrew the Office of the Public Defender from further representation of Petitioner, and

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appointed the Office of the Legal Defender. Doc. 12-3, at 105-06 (Resp. Ex. S, at 15-16).

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The court emphasized that Petitioner retained the right to represent himself and could

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“decide to try and exercise that [right] at a later time.” Doc. 12-3, at 105 (Resp. Ex. S, at

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15).

Doc. 12-3, at 97

The trial court denied Petitioner’s motion without prejudice,

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Judge Anderson concluded that Petitioner has not shown that the state court’s

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decision was contrary to, or an unreasonable application of, federal law, nor that it was

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based on an unreasonable determination of the facts. Doc. 16, at 12. In reaching this

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conclusion, Judge Anderson noted that the trial court had advised Petitioner of the

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responsibilities and disadvantages of self-representation during the Faretta hearing.

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Doc. 16, at 12. Petitioner agreed to the trial court’s proposal for substitute counsel. Id.

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Petitioner did not renew his request to represent himself, even though the trial court had

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advised him that he could do so at any time. Id.

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Petitioner argues that the state court’s decision was unreasonable for two reasons:

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(1) the state court did not grant Petitioner’s request for a continuance, and (2) Petitioner’s

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request to proceed in propria persona was timely and unequivocal. Neither of these

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arguments is persuasive. Petitioner claims that “[t]he state trial court tacitly forced an

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unconstitutional dilemma on Petitioner” to choose between his right to conduct his own

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self-defense and going forward with trial unprepared in just eleven days. Doc. 22, at 5.

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He argues that the state court should have granted a continuance of the trial pursuant to

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Ariz. R. Crim. P. 8.5(b) to allow him to conduct basic discovery.

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Rule 8.5(b) reads: “A continuance of any trial date shall be granted only upon a showing

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that extraordinary circumstances exist and that delay is indispensable to the interests of

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justice.” Petitioner does not make a showing of extraordinary circumstances, but merely

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states that his request for a continuance was “reasonable” because he had informed the

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trial court that he had not seen a copy of the police reports or received basic discovery.

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Doc. 22, at 7. Petitioner argues that the trial court was unwilling to grant a continuance

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despite having already continued the trial date twice “with much less fanfare and on
Doc. 22, at 8.

Doc. 22, at 7.

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much less notice from Petitioner’s counsel.”

At the time of these

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proceedings, trial judges in Maricopa County Superior Court did not rule on requests for

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continuances in cases assigned for trial. Doc. 12, at 12, n.3. The trial court informed

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Petitioner that such requests must be submitted to the continuance panel. Id.

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Petitioner argues that his request to waive counsel was made at least twenty days

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prior to the start of trial on July 20, 2004, and that the Judge Anderson “incorrectly

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concluded that ‘Petitioner’s request to represent himself was not unequivocal when he

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simultaneously requested advisory counsel, a continuance of the trial date, and conceded

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that he was not prepared to proceed on the trial date.’” Doc. 22, at 9 (quoting Doc. 16,

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at 12:23-26). Judge Anderson determined that Petitioner’s request to represent himself

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was not unequivocal because it was conditioned on a continuance and appointment of

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advisory counsel.

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substitution of new counsel, and there is no evidence in the record that Petitioner renewed

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his request to represent himself, despite being informed that he could do so. See Stenson,

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504 F.3d at 882. The Court accepts Judge Anderson’s conclusion that Petitioner’s right

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to self-representation was not violated.

Doc. 16, at 12.

Moreover, Petitioner subsequently agreed to a

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B.

Ineffective Assistance of Counsel.

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In Grounds Four, Five, and Seven, Petitioner argues that he was denied effective

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assistance of counsel due to his counsel’s failure to advocate on Petitioner’s behalf at

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sentencing, failure to conduct a reasonable pretrial investigation, and failure to properly

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advise Petitioner regarding the merits of a plea offer.

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Anderson’s conclusion that these claims lack merit. Doc. 22.

Petitioner objects to Judge

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Strickland provides the standard for evaluating ineffective assistance of counsel

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claims: the defendant must show that counsel’s performance was deficient and that the

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deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

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687 (1984). To establish deficient performance, the defendant must show that counsel’s

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representation fell below an objective standard of reasonableness. Id. at 687-88. To

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establish prejudice, the defendant must show that there is a reasonable probability that,

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but for counsel’s unprofessional errors, the result of the proceeding would have been

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different. Id. at 694. “A reasonable probability is a probability sufficient to undermine

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confidence in the outcome.” Id.

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1.

Sentencing.

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Plaintiff argues in Ground Four that trial counsel was ineffective in failing to

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present mitigating evidence at sentencing and in failing to object to certain statements

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made by the prosecutor, specifically a message from the victims’ son. Doc. 3, at 15.

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The Ninth Circuit ruled that Strickland does not delineate clearly established federal law

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for noncapital sentencing proceedings, thus precluding habeas relief for claims of

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ineffective assistance of counsel at this sentencing. See Cooper-Smith v. Palmateer,

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397 F.3d 1236, 1244 (9th Cir. 2005); Strickland, 466 U.S. at 686 (“We need not consider

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the role of counsel in an ordinary sentencing, which may involve informal proceedings

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and standardless discretion in the sentence, and hence may require a different approach to

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the definition of constitutionally effective assistance.”). “Where the Supreme Court has

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not addressed an issue in its holding, a state court adjudication of the issue not addressed

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by the Supreme Court cannot be contrary to, or an unreasonable application of, clearly

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established law.” Stenson v. Lambert, 504 F.3d 873, 881 (9th Cir. 2007). Accordingly,

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the Court will accept Judge Anderson’s recommendation on Ground Four.
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Pretrial Investigation.

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Plaintiff argues in Ground Five that trial counsel was ineffective in failing to

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conduct a reasonable pretrial investigation. Doc. 3, at 19. Plaintiff objects that Judge

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Anderson misconstrued his claim as one “questioning the ‘soundness’ of his counsel’s

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representation,” when Petitioner’s claim in fact was “trial counsel’s failure to conduct an

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investigation in the first place . . . .” Doc. 22, at 15. Strickland acknowledges counsel’s

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duty to “make reasonable investigations or to make a reasonable decision that makes

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particular investigations unnecessary.”

Strickland, 466 U.S. at 691.

“In any

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ineffectiveness case, a particular decision not to investigate must be directly assessed for

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reasonableness in all the circumstances, applying a heavy measure of deference to

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counsel’s judgments.” Id.

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Petitioner contends that Judge Anderson erred in his finding that the state court did

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not make an unreasonable determination of the facts because the state court failed to

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make any factual findings at all. Doc. 22, at 13. This is not the case. Petitioner’s

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defense strategy was that of mere presence and actual innocence. Doc. 22, at 15. The

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evidence presented at trial indicated that Petitioner was found in the victims’ home when

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police arrived and that he struggled when arrested. Doc. 12-4, at 48-49 (Resp. Ex. U, at

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34-35). At the time of arrest, Petitioner did not claim (as he later did) that he was merely

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present in the house because he was looking for a man named Danny Miller. Id. Police

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officers found a Leatherman’s tool on Petitioner’s person. A light bulb had been removed

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from the motion sensor over the back door, there were pry marks on the back window,

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there was a gym bag containing a purse and a jewelry box on the ground outside the patio

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door, and a flashlight lay near the door to the master bedroom. Doc. 12-4, at 40-42, 50-

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51 (Resp. Ex. U, at 25-27, 35-36). Police did not find anyone else in the backyard, alley,

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or house. Doc. 12-4, at 40-41 (Resp. Ex. U, at 25-26).

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Petitioner presented his theory of defense at trial, claiming that Danny Miller died

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before trial and therefore was unavailable to testify. Doc. 12-4, at 5. Based on this

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evidence, counsel’s strategic decision not to investigate the whereabouts of Danny Miller

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was not ineffective assistance. Defense counsel testified on post-conviction review that

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Petitioner’s “story was simply beyond belief.” Doc. 12-3, at 29 (Resp. Ex. N, at 28).

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Petitioner argues that counsel was ineffective for failing to investigate the

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discrepancies between the description of the intruder given by the victims’ son to the 911

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operator and Petitioner’s appearance. Doc. 3, at 20. The record indicates, however, that

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such discrepancies can be explained by the son’s brief opportunity to observe the intruder

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in the dark. Doc. 12-5, at 144-146 (Resp. Ex. W, at 143-145). Petitioner also argues that

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counsel was ineffective for failing to investigate latent fingerprints. Doc. 3, at 22. The

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fingerprints that police were able to recover from the file cabinets at the crime scene were

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exculpatory because they were not Petitioner’s. Doc. 12-4, at 63-64 (Resp. Ex. U, at 47-

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48); Doc. 12-6, at 22 (Resp. Ex. U, at 20). Petitioner has not shown, however, that

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additional investigation of latent fingerprints would benefit his defense, or that he was

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prejudiced by counsel’s failure to investigate latent fingerprints when the evidence

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presented at trial was exculpatory. Doc. 16, at 29.

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Based on these facts, the Court cannot conclude that counsel’s performance fell

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below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88. Nor can

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the Court conclude that different actions by trial counsel likely would have resulted in a

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different outcome at trial. Id. The Court will adopt Judge Anderson’s recommendation

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on Ground Five.

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3.

Plea Offer.

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In Ground Seven, Plaintiff argues that counsel was ineffective for failing to

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properly advise him of a plea offer and failing to adequately inform him of the risks of

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going to trial and his sentencing exposure. Doc. 3, at 33. The Supreme Court has held

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that Strickland’s two-part test for evaluating claims of ineffective assistance of counsel

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applies in the context of plea bargaining. Hill v. Lockhart, 474 U.S. 52 (1985).

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Petitioner objects that “the record is barren of any indication that his trial counsel

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fully, effectively and competently communicated the 10-13 year plea offer discussed for

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the first time with Petitioner as well as the trial court on December 8, 2004, during a

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colloquy with the court following a mistrial in this case.” Doc. 22, at 17. The state court

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conducted a post-conviction evidentiary hearing on this claim. Doc. 12-2, at 7. Trial

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counsel testified that Petitioner rejected the 10-13 year plea offer after informing counsel

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that he had given a free-talk in a murder case that the State could not prove without his

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testimony and that he thought the State would extend a better offer. Doc. 12-3, at 29, 38

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(Resp. Ex. N, at 28, 37). Petitioner asked his counsel about the difference between the

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first plea offer of 7 years imprisonment and the second plea offer of 10-13 years

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imprisonment. Doc. 12-3, at 37-38 (Resp. Ex. N, at 36-37). Plaintiff’s counsel also

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testified that he had informed Petitioner about the potential impact of his 20-plus prior

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felony convictions on the sentencing range. Doc. 12-3, at 28 (Resp. Ex. N, at 27). Based

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on this testimony, the state court found that Petitioner had not met his burden of

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establishing ineffective assistance of counsel. Doc. 12-3, at 48-49 (Resp. Ex. N., at 47-

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48).

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The Court must defer to the state court’s factual findings and presume they are

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correct. 28 U.S.C. § 2254(e)(1). The state court record establishes that Petitioner was

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aware of the plea offers and that he rejected them because he thought the sentences were

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too long and believed he would be acquitted. Doc. 16, at 38. Petitioner has not met his

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burden of establishing that the state court’s finding was based on an unreasonable

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determination of the facts or was contrary to, or an unreasonable application of, clearly

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established federal law. The Court will adopt Judge Anderson’s recommendation on

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Ground Seven.

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C.

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Petitioner asks this Court to conduct an evidentiary hearing on the claims raised in

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his objection to Judge Anderson’s R&R. Doc. 22, at 22. In habeas proceedings, an

Evidentiary Hearing, COA, and Appeal In Forma Pauperis.

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evidentiary hearing is required when the petitioner’s allegations, if proven, would

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establish the right to relief. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). “[A]n

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evidentiary hearing is not required on issues that can be resolved by reference to the state

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court record.” Id. (emphasis in original). Petitioner’s objections can be resolved by

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looking to the state court record in this case. The Court will therefore deny Petitioner’s

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request for an evidentiary hearing. The R&R also recommended denying a COA and

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leave to appeal in forma pauperis because “Petitioner has not made a substantial showing

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of the denial of a constitutional right.” Doc. 16, at 42. Petitioner has failed to establish

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that a COA and leave to appeal in forma pauperis are warranted, and the Court therefore

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adopts these recommendations.

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sufficiently able to set forth his arguments, and that appointment of counsel is not

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warranted.

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IT IS ORDERED:

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The Court also concludes that Petitioner has been

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The factual findings and conclusions in Judge Anderson’s R&R (Doc. 16)

are accepted.
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Charles Anthony McDonald’s petition for writ of habeas corpus (Doc. 3) is

denied.
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A certificate of appealability and leave to proceed in forma pauperis on

appeal are denied as stated above.
Dated this 13th day of December, 2011.

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