Piotrowski v. Ryan et al

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATION: The R&R's recommended disposition (Doc. 16 ) is accepted. The petition (Doc. 1 ) is denied. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. The Clerk shall enter judgment accordingly and terminate this action. See document for complete details. Signed by Judge Dominic W Lanza on 9/30/2019. (RMV)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Michael Piotrowski, Petitioner, 10 11 ORDER v. 12 No. CV-18-01134-PHX-DWL Charles L Ryan, et al., 13 Respondents. 14 15 On April 13, 2018, Petitioner filed a petition for writ of habeas corpus under 28 16 U.S.C. § 2254. (Doc. 1.) On June 24, 2019, Magistrate Judge Burns issued a Report and 17 Recommendation (“R&R”) concluding the petition should be denied and dismissed with 18 prejudice. (Doc. 16.) Afterward, Petitioner filed written objections to the R&R (Docs. 22, 19 23) and Respondents filed a response (Doc. 27). For the following reasons, the Court will 20 overrule Petitioner’s objections and deny his petition. 21 I. Background 22 A. The Underlying Incident 23 On May 18, 2011, Detective Zygmont of the Glendale Police Department was 24 conducting surveillance of Petitioner. (Doc. 10-4 at 22-23, 27.) When Petitioner left in a 25 pickup truck with two people, Detective Zygmont followed him with a team of officers. 26 (Id. at 29.) After the truck pulled into the parking lot of a store, Detective Zygmont stopped 27 the truck. (Id. at 29-31.) Petitioner was seated in the middle of the front seat, with the 28 driver and another passenger on either side of him. (Id. at 32-33, 96.) 1 When Detective Zygmont ordered the truck’s occupants to put their hands up, 2 everybody but Petitioner complied. (Id. at 33-34.) The driver had his hands up and his 3 foot on the brake. (Id. at 35-37.) Petitioner, however, leaned over toward the gearshift and 4 the truck lunged forward. (Id. at 35, 77.) Officers opened the door on the driver’s side and 5 the driver turned off the truck. (Id. at 37.) As officers were trying to pull the driver out of 6 the truck, Petitioner “reached over and started the vehicle, turned the ignition back on and 7 began to reach over with his left foot and slam on the gas.” (Id. at 38.) Detective Zygmont 8 “[a]bsolutely” believed he was “in danger at that point in time.” (Id.) Petitioner succeeded 9 in putting the truck into drive, and it lunged forward several feet while one of the officers 10 was halfway into the driver’s compartment. (Id. at 39, 82–83.) Each time the truck lunged 11 forward, Detective Zygmont feared he would be pulled under it. (Id. at 39–40.) Detective 12 Zygmont testified that, at one point, he was struck on the arm by the truck’s door. (Id. at 13 117-18 [“It is my belief that I was struck in the arm by the door.”].) 14 After the truck’s third and final lunge, Petitioner reached under the seat as he 15 continued thrashing about. (Id. at 40.) Believing that Petitioner was attempting to grab a 16 weapon, Detective Zygmont used a Taser to subdue him. (Id. at 40–42.) A different officer 17 later searched Petitioner’s sock and found “[a] white rocky substance” (methamphetamine) 18 and “a glass pipe.” (Id. at 126-28.) 19 B. 20 On May 26, 2011, Petitioner was indicted by a state grand jury on various charges. 21 The State Proceedings (Doc. 10-1 at 4-7.) 22 On February 23, 2012, following a four-day jury trial, Petitioner was convicted of 23 one count of aggravated assault on a police officer (Detective Zygmont) and one count of 24 possession or use of dangerous drugs. (Doc. 10-1 at 40-50.) 25 On March 9, 2012, Petitioner’s trial counsel filed a motion for new trial. (Doc. 10- 26 1 at 51-55.) In a nutshell, Petitioner’s trial counsel argued that the aggravated assault 27 conviction was contrary to the weight of the evidence. (Id. at 52-53.) 28 On April 20, 2012, the trial judge denied Petitioner’s motion for new trial and then -2- 1 sentenced Petitioner to 15.75 years’ imprisonment on the aggravated assault count and 10 2 years’ imprisonment on the drug count, to run concurrently. (Doc. 10-1 at 62-66.) 3 Petitioner was later sentenced to additional time for violating his terms of probation arising 4 from earlier convictions. (Doc. 16 at 3-4.) 5 On March 18, 2013, Petitioner filed (through appointed counsel) his opening brief 6 in his direct appeal to the Arizona Court of Appeals. (Doc. 10-1 at 85-102.) This brief 7 only challenged the sentences arising from the probation violations (id. at 86)—it did not 8 assert any claims concerning the propriety of the aggravated assault conviction. On January 14, 2014, the Arizona Court of Appeals affirmed Petitioner’s 9 10 convictions and sentence. (Doc. 10-1 at 152-59.) On June 23, 2014, Petitioner filed a pro se notice of post-conviction relief (“PCR”). 11 12 (Doc. 10-2 at 4-7.)1 13 14 On June 27, 2014, the trial court issued an order appointing counsel to represent Petitioner in the PCR proceeding. (Doc. 10-2 at 9-10.) 15 On November 24, 2014, Petitioner’s court-appointed counsel filed a notice 16 certifying that, “having corresponded with petitioner, reviewed the trial and appellate 17 record and all relevant transcripts, [counsel] is unable to find a colorable issue to submit to 18 the court . . . .” (Doc. 20-2 at 15.) 19 On August 4, 2016, a different attorney filed a supplemental PCR petition and brief 20 on Petitioner’s behalf. (Doc. 10-2 at 39-58.) The first ground for relief was that the 21 aggravated assault conviction violated Petitioner’s rights under the Fifth, Sixth, and 22 Fourteenth Amendments because “the State failed to prove two fundamental elements of 23 aggravated assault upon Detective Zygmont. First, it failed to prove that Defendant acted 24 with the intent to cause anyone to be placed in reasonable apprehension or fear of harm. 25 Second, it failed to prove the fear to which Detective Zygmont testified was reasonable.” 26 (Id. at 45-50.) 27 disproportionate and excessive in light of the fact that Detective Zygmont merely 28 1 The second ground for relief was that Petitioner’s sentence was Petitioner filed a different PCR notice in September 2012 (Doc. 10-1 at 161-64) but was later allowed to withdraw it as premature (Doc. 10-2 at 2). -3- 1 “complained of some wrist pain” following the incident. (Id. at 50-53.) The third ground 2 for relief was that Petitioner wasn’t fully advised by trial counsel of the consequences of 3 rejecting the plea offer. (Id. at 53-55.) 4 5 6 7 On February 26, 2017, the trial court issued an order denying the PCR petition. (Doc. 10-2 at 80-83.) On May 2, 2017, Petitioner filed (through counsel) a petition for review with the Arizona Court of Appeals. (Doc. 10-2 at 85-100.) 8 On January 25, 2018, the Arizona Court of Appeals issued a memorandum decision 9 in which it granted Petitioners’ request for review but denied relief. (Doc. 10-2 at 114-15.) 10 C. 11 On April 13, 2018, Petitioner filed his habeas petition. (Doc. 1.) It asserts three 12 13 Federal Proceedings grounds for relief. ▪ In Ground One, Petitioner asserts a claim of ineffective assistance against his trial 14 and appellate counsel for failing to challenge his assault conviction. (Id. at 6-7.) 15 Specifically, Petitioner argues that, although his trial counsel filed a motion for new trial 16 premised on the argument that the assault conviction was against the weight of the 17 evidence, his counsel should have also raised sufficiency-of-the-evidence and 18 constitutional challenges to that conviction. (Id.) 19 ▪ In Ground Two, Petitioner asserts a claim of ineffective assistance against his trial 20 and appellate counsel “for failure to raise violation of ‘due process and fair trial’ when the 21 state elicited ‘prior bad acts’ testimony about Petitioner from the detective during direct 22 examination and the court[’]s failure to find ‘cause’ for a mistrial violated Petitioner[’]s 23 Fifth, Sixth and Fourteenth Amendment[ rights].” (Id. at 9-10.) 24 ▪ In Ground Three, Petitioner asserts a claim of ineffective assistance against his 25 trial and appellate counsel “for failure to raise violation of ‘due process and fair trial’ at 26 sentencing which violated Petitioner[’]s Fifth, Sixth and Fourteenth Amendment[ rights].” 27 (Id. at 11-12.) Specifically, Petitioner contends that his trial and appellate counsel should 28 have argued “that the sentencing court committed ‘plain error’ when it found it was -4- 1 ‘mandated’ to sentence Petitioner to consecutive terms for the 2007 and 2008 cases to the 2 2011 case.” (Id.) 3 4 On June 24, 2019, the R&R was issued. (Doc. 16.) II. Summary Of R&R 5 The R&R concludes the petition should be denied and dismissed with prejudice 6 because all three of Petitioner’s claims are procedurally defaulted without excuse. (Doc. 7 16 at 16.) 8 As a threshold matter, the R&R observes that, in general, a state prisoner must 9 exhaust his remedies in state court before seeking habeas relief in federal court. (Id. at 5- 10 8.) The R&R further observes that, because Petitioner didn’t assert any of the claims 11 identified in his petition during the state-court proceedings, those claims must be deemed 12 procedurally defaulted unless Petitioner can establish, under Martinez v. Ryan, 566 U.S. 1 13 (2012), that the ineffective assistance of his PCR counsel qualifies as “cause” for the 14 procedural default. (Id. at 9-10.) Finally, the R&R observes that, to establish “cause” 15 under Martinez, a habeas petitioner must show both that (1) PCR counsel’s failure to raise 16 the claim was itself ineffective, and (2) the underlying ineffective-assistance claim is 17 “substantial,” meaning it “has some merit.” (Id.) 18 With respect to Ground One (ineffective assistance—failure to raise a sufficiency 19 of the evidence/constitutional challenge to the aggravated assault conviction), the R&R 20 concludes that Petitioner cannot meet the Martinez standard because his trial counsel 21 actually moved for a new trial based on the inadequacy of the evidence yet the trial court 22 denied that motion. (Id. at 10-11.) Given this outcome, the R&R concludes that “Petitioner 23 can not meet the prejudice prong, as he can not demonstrate that the trial court would have 24 granted the motion had he asserted a constitutional violation.” (Id.) The R&R further notes 25 that, to the extent Petitioner is seeking to assert an ineffective assistance claim against the 26 attorney who represented him during his direct appeal in state court, that claim fails for the 27 additional reason that “the Martinez exception does not apply to claims of ineffective 28 assistance of appellate counsel.” (Id., citation omitted.) -5- 1 With respect to Ground Two (ineffective assistance—failure to challenge the “prior 2 bad acts” testimony), the R&R concludes that Petitioner cannot meet the Martinez standard 3 because (1) his trial counsel repeatedly objected when a witness referred to his prior bad 4 acts and even moved for a mistrial based on that testimony,2 (2) the trial court “gave the 5 jury a curative instruction” based on the improper testimony, and (3) there was ample 6 evidence to support the assault conviction, including testimony that Detective Zygmont 7 was struck on the arm by the vehicle. (Id. at 11-15.) The R&R thus summarizes: 8 “Petitioner’s claim of ineffective assistance of counsel is not a substantial one. He does 9 not demonstrate that his trial counsel was ineffective, or that, even if counsel was 10 ineffective, that he was prejudiced; thus, Petitioner does not demonstrate cause under 11 Martinez to excuse his procedural default of the claim.” (Id. at 15.) 12 With respect to Ground Three (ineffective assistance—failure to raise a sentencing 13 challenge), the R&R concludes that Petitioner cannot meet the Martinez standard because 14 (1) he did not develop, or cite any authority in support of, his argument that the trial court 15 would have declined to impose consecutive sentences if his trial counsel had raised a “plain 16 error” objection, (2) the Arizona Court of Appeals specifically held, when affirming his 17 sentence on direct appeal, that the imposition of consecutive sentences was correct and 18 mandated by Arizona law, and (3) in any event, “errors in the application of state law are 19 not cognizable in habeas corpus proceedings.” (Id. at 16.) 20 III. Legal Standard 21 A party may file specific, written objections to an R&R within fourteen days of 22 being served with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 23 Rules”); see also Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). The Court must 24 undertake a de novo review of those portions of the R&R to which specific objections are 25 made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does not appear that 26 On this point, the R&R elaborates that although “the witness’s comments were nonresponsive, unprofessional, and appeared to be meant to prejudice Petitioner, Petitioner’s claim of ineffective assistance of counsel lacks analysis and is factually inaccurate, in that Petitioner’s counsel did repeat his request for a mistrial after the third objectionable comment.” (Id. at 14.) 2 27 28 -6- 1 Congress intended to require district court review of a magistrate’s factual or legal 2 conclusions, under a de novo or any other standard, when neither party objects to those 3 findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he 4 district judge must review the magistrate judge’s findings and recommendations de novo 5 if objection is made, but not otherwise.”). The Court may accept, reject, or modify, in 6 whole or in part, the findings or recommendations made by the magistrate judge. Section 7 2254 Rules 8(b); see also Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C). 8 IV. Analysis 9 Petitioner asserts, at the outset of his objections, that the R&R’s discussion of 10 procedural-default principles is erroneous because “they do not apply when Petitioner has 11 raised all his/her grounds under Martinez v. Ryan . . . .” (Doc. 22 at 2.) 12 This argument lacks merit. Petitioner seems to misinterpret Martinez as holding 13 that a habeas petitioner can automatically avoid a finding of procedural default by simply 14 asserting that PCR counsel was ineffective in failing to raise a particular argument. As the 15 R&R correctly notes, this interpretation is inaccurate—a habeas petitioner seeking to 16 invoke Martinez to avoid a finding of procedural default needs to make certain additional 17 showings. 18 Petitioner argues his first claim for relief is “substantial” because Detective 19 Zygmont admitted, during cross-examination, that he was never in the direct path of the 20 truck and never saw Petitioner point the steering wheel toward him. (Id. at 2-3.) Thus, 21 Petitioner argues that “the state did not meet its burden of proof to establish guilt of 22 aggravated assault” and “Petitioner ‘objects’ strenuously to R&R as to default and 23 insubstantial.” (Id. at 3.) 24 These arguments are unavailing. Petitioner fails to acknowledge that his trial 25 counsel moved for a new trial based on the inadequacy of the evidence concerning the 26 assault, yet the trial court denied that motion. Petitioner has not attempted to explain why 27 the trial court would have ruled in his favor had his counsel sought a different form of relief 28 (i.e., a directed verdict rather than a new trial) based on the same general argument and/or -7- 1 repackaged the argument as a constitutional challenge. Moreover, the evidence was legally 2 sufficient to support the jury’s verdict—as noted, Detective Zygmont testified he was 3 struck on the arm by the truck, and feared for his safety, due to Petitioner’s wild attempts 4 to escape. 5 Petitioner argues his second claim for relief is substantial because the R&R “is in 6 direct contradiction to the evidence Petitioner has shown from the record.” (Id. at 4.) 7 Petitioner does not, however, purport to identify any specific portions of the record that 8 contradict the R&R’s analysis. Also, Petitioner fails to address—much less demonstrate 9 the inaccuracy of—the R&R’s conclusion that he can’t show prejudice concerning his 10 second claim because his trial counsel repeatedly objected to the other-acts testimony, 11 moved for a mistrial based on that testimony, and obtained a curative objection from the 12 judge. 13 Petitioner does not address his third claim for relief (sentencing error) and has thus 14 forfeited any objection to the R&R’s rejection of it. See, e.g., Thomas, 474 U.S. 140 at 15 149-50; Reyna-Tapia, 328 F.3d at 1121. 16 Accordingly, IT IS ORDERED that: 17 (1) The R&R’s recommended disposition (Doc. 16) is accepted; 18 (2) The petition (Doc. 1) is denied; 19 (3) A Certificate of Appealability and leave to proceed in forma pauperis on 20 appeal are denied because the dismissal of the petition is justified by a plain procedural 21 bar and jurists of reason would not find the procedural ruling debatable; and 22 (4) 23 Dated this 30th day of September, 2019. The Clerk shall enter judgment accordingly and terminate this action. 24 25 26 27 28 -8-

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