Pesqueira v. Shinn

1

Manuel Jesus Pesqueira, Petitioner, v. David Shinn, et al. Respondents.

No. CV-19-0047-TUC-JAS (BGM)

United States District Court, D. Arizona

November 5, 2021

REPORT AND RECOMMENDATION

HONORABLE BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE

Currently pending before the Court is Petitioner Manuel Jesus Pesqueira's pro se Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Amended Petition”) (Doc. 8). Respondents have filed an Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 21), and Petitioner replied^[1] (Doc. 23). The Amended Petition (Doc. 8) 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 Amended Petition (Doc. 8) . . . . . . . . . . .

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Initial Charge, Trial, and Sentencing

The Arizona Court of Appeals stated the facts^[3] as follows:

L.C. and his roommate, R.G., were asleep in a bedroom when they awoke to a “strange noise.” Shortly thereafter, Pesqueira entered the bedroom, pointed a gun at the men, and said he wanted their “money, belongings, [and] drugs.” Pesqueira took money from R.G.'s wallet and a jar of change before leaving the bedroom. He then returned with a machete and again demanded money and drugs. He took L.C.'s and R.G.'s cellular telephones and left the room. Another man, Stephen Williams, then entered the bedroom with a gun, did not say anything, and shot L.C. in the head. Pesqueira and Williams then left the apartment.

L.C. was taken to the University Medical Center (UMC) where doctors performed surgery. But L.C. remained unconscious for the week he stayed at UMC and his estimated chances of recovery were “[v]ery slim, ” approximately eight percent. L.C.'s family chose to move him to Mexico and, during the ambulance ride from UMC to Mexico, L.C. died.

State v. Pesqueira, 235 Ariz. 470, 473, 333 P.3d 797, 800 (Ariz.Ct.App. 2014). On August II, 2011, Petitioner was charged with one (1) count of armed robbery, one (1) count of aggravated robbery, two (2) counts of kidnapping, two (2) counts of aggravated assault with a deadly weapon, and one (1) count of first degree murder. Answer (Doc. 21), Charging Document, State v. Pesqueira, No. CR20112669-001 (Pima Cnty. Super. Ct. Aug. 11, 2011) (Exh. “A”) (Doc. 21-1). After a jury trial, Petitioner was found guilty on all counts. Pesqueira, 235 Ariz. at 473, 333 P.3d at 800. “The trial court sentenced him to a combination of consecutive and concurrent prison terms on counts one through six, totaling thirty years[;] [i]t also sentenced him to life in prison without the possibility of release for twenty-five years for the first degree murder charge which was to run concurrently with the sentences for the other six charges.” Id.; see also Answer (Doc. 21), Sentencing Tr. 3/13/2013, State v. Pesqueira, No. CR20112669 (Pima Cnty. Super. Ct.) (Exh. “N”) (Doc. 21-8).

B. Direct Appeal

On March 27, 2013, Petitioner filed a Notice of Appeal. Answer (Doc. 21), State v. Pesqueira, No. 2 CA-CR 2013-0134, Docket (Ariz.Ct.App. Mar. 27, 2013) (Exh. “O”) (Doc. 21-8). On March 11, 2014, Petitioner filed his opening brief, alleging four (4) grounds for relief. See Answer (Doc. 21), Appellant's Opening Br., State v. Pesqueira, No. 2 CA-CR 2013-0134 (Ariz.Ct.App. Mar. 11, 2014) (Exh. “P”) (Doc. 21-8). First, Petitioner asserted that the trial court erred when it allowed Dr. Hess to testify regarding L.C.'s cause of death, alleging that Dr. Hess's opinion impermissibly relied on an unreliable autopsy report from Mexico, thereby violating Rule 703, Arizona Rules of Criminal Procedure, as well as Petitioner's rights under the Confrontation Clause. Id., Exh. “P” at 111-19.^[4] Next, Petitioner urged that there was insufficient evidence regarding the cause of L.C.'s death. Id., Exh. “P” at 119-24. Petitioner argued that it was not the gunshot to L.C.'s head that caused the latter's death, but rather L.C.'s family's decision to move him from UMC to Mexico for further treatment. Id., Exh. “P” at 122-24. Petitioner posited that this decision was a superseding event. Id. at 124. Third, Petitioner maintained that the trial court erred because the dangerous nature sentencing statute was not charged in the superseding indictment, his sentences were illegally enhanced on Counts One through Six. Id., Exh. “P” at 124-26. Finally, Petitioner asserted that the imposition of a criminal restitution order before his probation or sentence had expired constituted an illegal sentence. Answer (Doc. 21), Appellant's Opening Br. (Exh. “P”) (Doc. 21-8) at 126-27.

On August 28, 2014, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences but vacated his Criminal Restitution Order. See State v. Pesqueira, 235 Ariz. 470, 333 P.3d 797 (Ariz.Ct.App. 2014). The appellate court found that Petitioner had waived his right to review the autopsy reports alleged noncompliance with Rule 703, Arizona Rules of Criminal Procedure, because he failed to raise it to the trial court. Id. at 473, 333 P.3d at 800. As such, the court reviewed this issue for fundamental, prejudicial error. Id. The appellate court found that “[t]he autopsy report . . . ha[d] ‘sufficient indicia of reliability' to have properly formed the basis for Hess's opinion under Rule 703.” Id. At 474, 333 P.3d at 801 (citations omitted). The appellate court further observed that “under Rule 703 [the Arizona] supreme court reviews whether the expert's reliance on the inadmissible data was reasonable, not whether the data itself was reliable.” Id. (citations omitted). The appellate court held that Petitioner “failed to show that Hess's reliance on the autopsy report violated Rule 703.” Pesqueira, 235 Ariz. at 475, 333 P.3d at 802. The appellate court also opined that “[t]he jury was free to weigh the credibility of Hess's opinion based on what it heard about the autopsy report . . . [and therefore, found] no error, fundamental or otherwise[.]” Id. (citations omitted). Regarding Petitioner's Confrontation Clause argument, the appellate court found that “[t]he autopsy report . . . was not offered to prove the truth of its contents, but only to show the basis for Hess's opinion[, ] [and] [a]ccordingly, the testimony did not violate Pesqueira's confrontation rights.” Id. (citations omitted). The appellate court next considered the trial court's denial of Petitioner's motion for a judgment of acquittal made pursuant to Rule 20, Arizona Rules of Criminal Procedure. Id. at 476-77, 333 P.3d at 803-04. The appellate court determined that “[u]nder the[] circumstances, a jury reasonably could conclude beyond a reasonable doubt that L.C.'s death was caused directly by being shot in the head by Williams[, ] [and] [a]dditionally, it could have concluded L.C.'s death, although not immediate, was a natural and foreseeable consequence of William's act.” Id. at 477, 333 P.3d at 804. “Because sufficient evidence supported the jury's verdict, [the appellate court found that] the trial court did not err in denying Pesqueira's Rule 20 motion. Pesqueira, 235 Ariz. at 477, 333 P.3d at 804. The appellate court found that Petitioner did not object below regarding the enhancement of his sentences despite the State's failure to properly allege that they were of a dangerous nature prior to trial. Id. As such, the appellate court reviewed for fundamental, prejudicial error. Id. at 478, 333 P.3d at 805 (citations omitted). The appellate court could not find “any authority that the state [wa]s required to re-file allegations of dangerousness when it re-file[d] an identical indictment under the same cause number in a continuing criminal case[, ]” and observed that Petitioner “ha[d] not explained why, under the[] circumstances, he was in any way misled, surprised, or deceived by the court's enhancement of his sentence based on the jury's finding of dangerousness.” Id. (citations omitted). Accordingly, the appellate court held that no error occurred. Id. Finally, the appellate court vacated Petitioner's Criminal Restitution Order finding that it was not authorized by statute. Pesqueira, 235 Ariz. at 479, 333 P.3d at 806.

On March 17, 2015, the Arizona Supreme Court summarily denied Petitioner's Petition for Review. Answer (Doc. 21), State v. Pesqueira, No. CR-14-0326-PR, Mem. (Ariz. Mar. 17, 2015) (Exh. “V”) (Doc. 21-9). On April 8, 2015, the Arizona Court of Appeals issued its mandate. Answer (Doc. 21), State v. Pesqueira, No. 2 CA-CR 2013-0134, Mandate (Ariz.Ct.App. Apr. 8, 2015) (Exh. “W”) (Doc. 21-9).

C. Post-Conviction Relief Proceeding

On April 10, 2015, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 21), Petr.'s Not. of PCR, State v. Pesqueira, ^[5] No. CR2011-2669-001 (Pima Cnty. Super. Ct. Apr. 10, 2015) (Exh. “X”) (Doc. 21-9). On October 23, 2015, The Rule 32 court assigned counsel and outlined a briefing schedule for filing of the PCR petition. Answer (Doc. 21), Notice, State v. Pesqueira, No. CR2011-2669-001 (Pima Cnty. Super. Ct. Oct. 23, 2015) (Exh. “Y”) (Doc. 21-9). On September 27, 2016, following an extension of time, the Rule 32 court acknowledged receipt of a PCR counsel's Notice pursuant to Montgomery v. Sheldon (I), ^[6] in which counsel stated that there were no viable issues appropriate for Rule 32 relief.^[7] See Answer (Doc. 21), State v. Pesqueira, No. CR2011-2669-001, Order to Extend Time (Pima Cnty. Super. Ct. Sept. 27, 2016) (Exh. “AA”) (Doc. 21-9). The court granted Petitioner additional time to file a pro se petition. Id.

1. Pro se PCR Petition

On August 25, 2017, after...