Dickinson v. Shinn

2 F.4th 851

Zane DICKINSON, Petitioner-Appellant,

v.David SHINN, Director; Attorney General for the State of Arizona, Respondents-Appellees.

No. 20-15175

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 19, 2020 Phoenix, Arizona

Filed June 22, 2021

Molly A. Karlin (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioner-Appellant.

Jillian B. Francis (argued) and Jason D. Lewis, Assistant Attorneys General; J.D. Nielsen, Habeas Unit Chief; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondents-Appellees.

Before: Richard C. Tallman, Jay S. Bybee, and Bridget S. Bade, Circuit Judges.

BADE, Circuit Judge:

During Zane Dickinson's trial for attempted second-degree murder, the court misstated Arizona law in its instructions to the jury, and his trial counsel failed to object to the erroneous instruction. With different counsel, Dickinson challenged the error on direct appeal; the Arizona Court of Appeals affirmed his conviction and the Arizona Supreme Court denied review. Dickinson petitioned for state post-conviction relief, but his counsel did not raise any claims related to the instructional error. After the state trial and appellate courts denied relief, Dickinson filed a petition for a writ of habeas corpus in federal district court, pursuant to 28 U.S.C. § 2254, asserting claims based on the erroneous instruction. The district court declined to excuse Dickinson's procedural default of these claims. In this appeal, Dickinson asks us to excuse his procedural default so that he can seek habeas relief on the basis of constitutionally ineffective assistance of trial counsel. We conclude that he has not established a basis to excuse the procedural default of these claims, and we affirm.

I

In 2011, Dickinson was indicted in Mohave County Superior Court on one count of attempted second-degree murder, two counts of aggravated assault, and one count of leaving the scene of an accident. The indictment alleged that the victim was riding his bicycle when Dickinson repeatedly attempted to run over him with his truck. Dickinson pleaded not guilty to all counts.

At trial, Dickinson's counsel argued that Dickinson was not present when the crime occurred and that he was mistaken for the perpetrator. In his opening statement, Dickinson's counsel described how July 2, 2011 was a "perfectly ordinary day" for Dickinson, who spent the morning attending a swap meet and visiting a friend before returning home. "The next thing he knows, the police show up, he's being accused of a crime, he's being handcuffed behind his back and treated like a criminal, he's being thrown in the back of a cruiser, still not really sure what is going on."

During the State's case-in-chief, the victim testified that he had known Dickinson for over twenty years, that they were friends, and that he had loaned Dickinson "[a] weed eater and some other tools" to do "side jobs for yards and stuff." After the victim learned that Dickinson failed to complete a job despite accepting an advance payment, he decided he wanted his tools back, and the two friends had a falling-out when Dickinson refused to return them. The victim recounted that several weeks before the attack, the two got into a fistfight and Dickinson "pulled a knife on [him]" after the victim knocked Dickinson down.

The victim stated that on July 2, he "was riding [his] bike around" when he spotted Dickinson's truck in front of his friend Brett Altizer's house. The victim got off his bike and "walk[ed] by the truck," and then he saw Dickinson "pull[ ] out this ax, and he's coming at me," so the victim pulled out a baseball bat he kept on his bike.¹ He stated that Dickinson was cursing at him and "telling [him] he's going to kill [him]," but Altizer intervened and stopped the fight. The victim "proceeded to put [his] bat away"; "eventually [Dickinson] put the ax away," and the victim "apologized to the guy for bringing problems to his house, ... got on his bike[,] and rode away."

About ten minutes later, as he rode toward his house, he saw Dickinson driving his truck. He testified:

I looked up and I seen him, and the last thing in my head is, he smiled. So next thing I know, he revved up his motor and he shot towards me. And I remember what happened. He hit the back of my bike, he had spun me all the way around about ten feet in the dirt. I landed on the dirt. ...

[Then] this white truck pulls in front and stops him, I get back on my bike and I take off towards my house. ...

I got on my bike; I just took off riding. ... I think I lost him, right; and all of a sudden I hear his motor revving up, and I look back and he's no more than maybe a foot from my bumper, and he's laughing, so I realize what's going on.

The victim tried to turn toward a fence, but as he described at trial, "When I go to do that, at the same time he turns his wheel and hit[s] my bike; and that's the last thing I remember, and I wake up in the hospital." The victim also recounted that during the attack, Dickinson "had that look in his face like, you know, he was going to kill me."

Altizer, who broke up the fight between Dickinson and the victim on his property shortly before the attack, testified that "[e]arlier that morning" on the day of the attack, Dickinson "said, ‘I'm going to run him over.’ " Altizer testified that after the attack Dickinson returned to his house, "tossed [him] the keys, and was saying something about ‘he did it.’ "

The jury also heard evidence that the victim sustained multiple injuries including a concussion, other head injuries requiring thirteen stitches, and a broken ankle, that his "funny bone was ripped out" from his elbow, and that his biceps and triceps muscles were separated from the bone in one arm.

Defense counsel did not call any witnesses or present any evidence. Instead, he focused on trying to undermine the credibility of the State's witnesses. For example, during his cross-examination of the victim, defense counsel elicited that the victim had a prior felony conviction, that the victim had been taking pain medications ever since the attack, and that the victim had filed a claim against Dickinson's insurance. Defense counsel also questioned the victim about the distance between him and the truck when he saw it during the attack, as well as how long the victim was able to see the driver.

Similarly, defense counsel attempted to discredit Robert Todd, an eyewitness who closely corroborated the victim's account of the attack, by questioning him at length about medications that he took, and casting doubt on whether the witness got a good enough look at the driver of the truck to conclude it was Dickinson. Similarly, defense counsel extensively questioned the testifying police officers and investigators about their training, and about how they investigated this case.

In his closing argument, defense counsel offered an alternative account:

What really happened—really happened was [Brett] Altizer, where Zane had left his truck and his keys, takes Zane's truck and is driving down the street they are talking about, and he struck [the victim]. Maybe he got frightened and he left the scene. [The victim] calls, because they are friends, we know they are friends. Brett told you that he was a friend of [the victim], or at least an acquaintance of [the victim]. So why didn't you stop? You hit me driving Zane's truck?

And at that point it sinks in amongst the three of them, because Brett knew Zane had insurance, he told you that; but he had taken that truck without the owner's permission.

He asserted that Altizer and the victim then discussed the accident and decided to blame Dickinson. He also argued that there was "bad blood" between Dickinson and these witnesses, and that the victim's "chances are going to be quite a bit better with the insurance company if [Dickinson] is convicted of attempted murder, felony assault, leaving the scene of the accident by a jury of his peers." He spent the remainder of his argument attempting to undermine the other witnesses’ credibility, discussing alleged "inconsistencies in their stories," arguing that the police investigation was a "comedy of errors" involving "at least 12 substantial things they didn't do" properly, and arguing there was inadequate evidence of the extent of the victim's injuries.

At the conclusion of the three-day trial, the trial court instructed the jury on the second-degree murder charge as follows:

The crime of attempted second degree murder has three elements. In order to find the defendant guilty of attempted second degree murder, you must find that, number one, the defendant intentionally did some act; and number two, the defendant believed such act was a step in the course of conduct planned to culminate in the commission of the crime of second degree murder; and number three, the defendant did so with the mental state required for the commission of the crime of second degree murder.

It is not necessary that you find that the defendant committed the crime of second degree murder; only that he attempted to commit such crime.

The crime of second degree murder has the following elements: Number one, the defendant caused the death of another person; and number two, the defendant either, A, did so intentionally or, B, knew that his conduct would cause death or serious physical injury.

By implying that a defendant could be guilty of attempted second-degree murder if he merely intended to cause serious physical injury, not death, this instruction contradicted Arizona precedent holding that "[t]he offense of attempted second-degree murder requires proof that the defendant intended or knew that his conduct would cause death." State v. Ontiveros , 206 Ariz. 539, 81 P.3d 330, 333 (Ct. App. 2003). However, Dickinson's counsel did not object to the instruction.

The jury returned a general verdict finding Dickinson...