Melville v. Shinn

Paul Melville, Jr., Petitioner, v. David Shinn,¹ et al., Respondents.

No. CV-18-01703-PHX-JGZ (BGM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

November 6, 2020

REPORT AND RECOMMENDATION

Currently pending before the Court is Petitioner Paul Melville Jr.'s Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) ("Petition") (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 14), and Petitioner replied (Doc. 17). The Petition is ripe for adjudication.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,² this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1) as untimely.

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I. FACTUAL AND PROCEDURAL BACKGROUND

A. Initial Charge and Sentencing

The Arizona Court of Appeals stated the facts³ as follows:

In early November 2012, J.R. and L.N. stopped by an apartment to pick up L.C. on their way to a bar. The three were talking in the living room, just inside the doorway, when Melville and his father burst through the front door, guns drawn, and ordered them to the ground. Melville put a gun to J.R.'s head and ordered him to lie on the ground and be quiet, and Melville's father similarly ordered L.N. to the ground at gunpoint. Melville then pulled zip-ties from his waistband and bound all three victims' hands behind their backs.

Melville searched J.R.'s pockets, taking the victim's keys, cell phone, and wallet. Melville or his father also searched L.N., taking keys, $200 cash, and a cell phone, which Melville's father crushed with his foot. Melville's father took D.C. upstairs briefly, then returned and laid D.C. on the ground in the living room. After warning the victims to stay where they were and not to call the police, Melville and his father left the apartment.

Around the same time, R.C. was walking from a different apartment toward his car, parked one space away from the Melvilles' vehicle. Melville's father followed R.C. to his car and, when R.C. unlocked the car, grabbed the car door and got in. Melville's father searched through R.C.'s briefcase bag, then got out of the car and pulled a gun on R.C. R.C. turned to see Melville's uncle, in the driver's seat of the Melvilles' vehicle, pointing another gun through the window. Melville said "he's not the one" or "I don't think he is one of them," and Melville's father moved to the Melvilles' car, and they drove away.

When J.R., L.N., and D.C. removed the zip-ties, they left the apartment and found R.C. on the phone with 911, and the police arrived within minutes. Melville, his father, and his uncle were later arrested and each charged with first-degree burglary, three counts of kidnapping, three counts of armed robbery, and four counts of aggravated assault.

Before trial, the State alleged that in 2005 Melville had committedand been convicted of a felony in New York — "Criminal Possession of a Loaded Firearm, 3rd Degree," N.Y. Penal Law § 265.02(4) (McKinney 2005) — and requested a ruling under Arizona Rule of Evidence 609 allowing the State to impeach Melville with his prior conviction were he to testify at trial. Melville moved to preclude impeachment with the New York conviction. Melville conceded that he had committed the offense, but he argued it should not be used for impeachment because the underlying conduct (possession of a loaded firearm) would not be a crime in Arizona, the relevant portion of the New York criminal statute had since been repealed, the underlying conduct was unrelated to truthfulness, the prior conviction was relatively old, and he had no subsequent convictions.

Melville testified at trial and contradicted the victims' version of events. He testified that he and his father had gone to the apartment that day to buy 10 pounds of marijuana from D.C. for $12,000. Melville understood L.N. to be D.C.'s "connect." When Melville discovered the marijuana was neither the quality nor the quantity agreed upon, D.C. reached for a gun in his waistband. Melville claimed that he then tussled with D.C. and took D.C.'s handgun; Melville's father stopped L.N. from reaching into his pocket and took L.N.'s pistol; J.R. was unable to reach another handgun in the kitchen. Melville asserted that his father briefly took D.C. upstairs to make sure no one else was in the apartment. Melville used zip-ties he found in the kitchen to bind the victims' hands and took keys from a bookstand to keep from being followed as he and his father left the apartment. On their way to their car, Melville saw R.C. pause suspiciously in the parking lot, and Melville's father then searched R.C.'s car for a firearm, but never drew a gun.

After Melville's testimony on direct, the superior court addressed the State's request to impeach Melville with the New York conviction. Melville's counsel did not dispute the existence of the prior conviction, but again reiterated his argument that allowing impeachment with the New York conviction would be unfairly prejudicial, particularly in light of the fact that although a crime in New York, the underlying conduct would not be a crime under Arizona law. The court found that the probative value of the conviction (which the court ordered sanitized) outweighed its prejudicial effect and allowed the State to impeach Melville with the fact of the New York conviction.

On cross-examination, during a series of questions challenging Melville's credibility, the State asked Melville a single question about the New York conviction:

Q. Do you have a prior conviction?

A. Correct.

After the court instructed the jury that it could consider evidence of Melville's prior conviction "only as it may [a]ffect a defendant's believability as a witness" and not as evidence of guilt of the charged offense, the State referred to the prior conviction once in closing, stating:

In terms of credibility, the jury instructions tell you, you listened to Paul Melville, Jr. testify? It's completely acceptable to take his prior conviction and you weight that in the balancing test of credibility.

Answer (Doc. 14), Ariz. Ct. of Appeals, No. 2 CA-CR 13-0639, Mem. Decision 7/29/2014 (Exh. "D") (Doc. 14-1) at 58-60.⁴ The jury found Petitioner guilty of two (2) counts of armed robbery and four (4) counts of aggravated assault, not guilty of first degree burglary, and could not reach a verdict on the three (3) kidnapping charges. Id., Exh. "D" at 60, 60 n.1. Petitioner was sentenced to terms totaling 18 years of imprisonment. Id., Exh. "D" at 60.

B. Direct Appeal

On September 4, 2013, Petitioner filed a Notice of Appeal. Answer (Doc. 14), Ariz. Superior Ct., Maricopa Cnty., No. CR2012-009547-002, Docket⁵—Not. of Appeal 9/4/2013 (Exh. "A") (Doc. 14-1).⁶ On February 7, 2014, counsel for Petitioner filed an Opening Brief asserting a single issue for review. Answer (Doc. 14), Ariz. Ct. of Appeals, No. 2 CA-CR 13-0639, Appellant's Opening Br. 2/7/2014 (Exh. "B") (Docs. 14-1). Petitioner argued that the "trial court abuse[d] its discretion in allowingdefendant's credibility to be attacked with evidence of a prior conviction when the conviction [wa]s seven years old, was for conduct that is not a crime in Arizona and was repealed in the jurisdiction where [Petitioner] was convicted, and where the crime did not reflect on [Petitioner's] character for truthfulness." Id., Exh. "B" at 23. On July 29, 2014, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. Answer (Doc. 14), Ariz. Ct. App., No. 2 CA-CR 13-0639, Mem. Decision 7/29/2014 (Exh. "D") (Doc. 14-1).

The court of appeals reviewed Rule 609, Arizona Rules of Evidence, permitting "evidence of a prior conviction punishable by more than one year's imprisonment . . . if the probative value of the evidence outweighs its prejudicial effect to th[e] defendant." Id., Exh. "D" at 61. The appellate court observed that "[s]uch a felony-grade conviction is material to credibility because '[t]he perpetrator of a major criminal act has demonstrated such a lack of scruples as to show a willingness to give false testimony.'" Id., Exh. "D" at 61 (quoting State v. Williams, 144 Ariz. 433, 438, 698 P.2d 678, 683 (Ariz. 1985)) (2d alteration in original). The appellate court went on to outline the factors utilized in weighing probative value against prejudicial effect. Answer (Doc. 14), Exh. "D" at 61 (citing Williams, 144 Ariz. at 438, 698 P.2d at 683; then citing State v Noble, 126 Ariz. 41, 43, 612 P.3d 497, 499 (Ariz. 1980)).

The appellate court reviewed the trial "court's determination for a clear abuse of discretion." Answer (Doc. 14), Exh. "D" at 61 (citing State v. Green, 200 Ariz. 496, 498, ¶ 7, 29 P.3d 271, 273 (Ariz. 2001); then citing Williams, 144 Ariz. at 439, 698 P.2d at 684). After reviewing the various factors argued by Petitioner to support exclusion of the conviction, the appellate court held that "[t]he superior court appropriately determined that the probative value of the New York conviction outweighed its prejudicial effect." Answer (Doc. 14), Exh. "D" at 63. The appellate court further observed that "the court allowed impeachment only with a sanitized version of the prior - the fact of conviction but no the nature of the offense - which avoided any potential prejudice from similarity between the prior and instant offenses (insofar as both involved a firearm). Id., Exh. "D"at 63 (citing State v. Beasley, 205 Ariz. 334, 338-40, ¶¶ 19-26, 70 P.3d 463, 467-69 (Ct. App. 2003)).

On October 17, 2014, the mandate issued indicating that Petitioner had not filed a motion for reconsideration or sought review with the Arizona Supreme Court. Answer (Doc. 16), Ariz. Ct. App., No. 2 CA-CR 13-0639, Mandate 10/17/2014 (Exh. "E") (Doc. 14-1).

C. Post-Conviction Relief Proceeding

On October 1, 2014, Petitioner filed his Notice of Post-Conviction Relief ("PCR"). Answer (Doc. 14), Def.'s...