Viola v. Escapule

Giuseppe Viola , Petitioner, v. Laura Escapule, Thomas C. Horne, Respondents.

No. CV-14-1073-PHX-DJH (JZB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

July 31, 2015

REPORT AND RECOMMENDATION

TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:

Petitioner Giuseppe Viola has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

I. SUMMARY OF CONCLUSION

Petitioner presents the same claims in his habeas Petition that he raised on direct appeal in state court. However, Petitioner did not raise these as federal claims in state court, and a return to state court would be futile. Therefore, Petitioner's claims are procedurally defaulted. Petitioner has not shown cause for his procedural default of these habeas claims, nor has Petitioner established his actual innocence of the crimes of conviction. Therefore, Petitioner's procedural default of his habeas claims should not be excused and the Court will recommend that the Petition be denied and dismissed with prejudice.

II. BACKGROUND

a. FACTS OF THE CASE

From 1988 through 1990, Petitioner, acting as John Joseph Viola,¹ induced at least five victims to provide him with money to purchase shares in a "managed account in financial futures," i.e., entities represented as the Yuban Family Trust and Yuban Trading. (Doc. 10, Ex. D at 2, 7.) The victims testified at Petitioner's trial that Petitioner offered them the opportunity to invest in high-return securities and convinced them to sign agreements with "Yuban Trading and Leasing." (Id. at 6.) The agreements provided to each victim by Petitioner stated that the victims were "acquiring a managed account in financial futures from Yuban Trading, a wholly owned subsidiary of Yuban Family Trust, a federally registered investment trust organized in the Commonwealth of Pennsylvania." (Id. at 6-7.)

The Yuban Family Trust was, however, not an entity registered with the Securities and Exchange Commission, and Petitioner was not registered with the Commodity Futures Trading Commission as a representative or agent of any recognized entity at the time of the transactions. (Id. at 5.) Neither was the Yuban Family Trust an entity recognized or organized in the Commonwealth of Pennsylvania. (Id. at 7-8.) Petitioner did not inform at least four of the five victims that he had prior felony convictions for "various financial crimes," which was a "material omission" under the Arizona Fraudulent Schemes statute. (Id. at 4, 8.)

The victims did not receive their money when they asked for it to be returned and, after a certain time, the victims could no longer reach Petitioner by telephone. (Id. at 8.) One victim eventually received $500 from Petitioner and another received $4,000 from Petitioner, however, all of the other victims lost all of the money they had "invested"with Petitioner.² (Id. at 8.) A search of Petitioner's home yielded "documents related to the transactions involving all five victims." (Id. at 9.)

b. TRIAL COURT PROCEEDINGS

i. Trial and Sentencing

An indictment filed September 19, 1990, charged Petitioner with five counts of fraudulent schemes and artifices. (Doc. 10, Ex. D at 1.) On May 25, 1990, Petitioner made an initial appearance on the charges stated in the indictment, and he was released on his own recognizance at that time. (Doc. 10, Ex. B at 22.) Petitioner did not appear for a scheduled preliminary hearing on May 31, 1990, but instead traveled to Los Angeles, obtained a new passport, and relocated to Italy. (Id. at 22-23.) At some point between 1990 and 2010, Petitioner relocated to northern California. (Id. at 23.) Authorities apprehended Petitioner in San Francisco in 2010. (Id.)

On May 17, 2010, Petitioner entered a not guilty plea to the 1990 charges. (Doc. 10, Ex. A at 1.) The State alleged historical priors and allegations pursuant to Arizona Revised Statutes § 13-702.02. (Id.) On July 28, 2010, Petitioner's counsel filed a motion seeking to have the case designated as a complex case, which the court granted the next day over Petitioner's objection. (Id., Ex. A at 2-3.) Petitioner then fired his defense counsel and chose to represent himself during further pretrial proceedings and at his trial. (Id. at 2.) One of the alleged victims died prior to trial and the charges with regard to that victim were dismissed. (Id., Ex. B at 1 n.1.).

At trial, during which Petitioner represented himself, Petitioner asserted the investments at issue were legitimate investment vehicles but failures, and that some of the alleged victims did not suffer complete financial loss. (Doc. 10, Ex. A at 3.) However, at his trial, Petitioner "presented no evidence that the investments he allegedly made on behalf of the victims ever actually existed." (Id. at 8.) Petitioner produced a biometricsexpert who opined that Petitioner was not the person identified by the victims as Joseph John Viola. (Id.) Some of the victims were Petitioner's social friends at the time they invested their money. (Id., Ex. D at 9.) These victims testified at trial that they recognized Petitioner as the individual who had defrauded them using the name Joseph John Viola. After deliberating for several days, the jury convicted Petitioner on all five counts. (Id.)

Petitioner filed a motion for a new trial and renewed a prior motion for a judgment of acquittal, both of which the court denied. (Id., Ex. A at 4.)

The State proved that Petitioner had previously been convicted of five felonies, all alleged to have been committed in 1983. (Doc. 10, Ex. B at 25.) Two of these prior convictions were used for the purpose of sentencing and three were used as aggravating circumstances. (Id., Ex. B at 51). On May 3, 2011, the trial court sentenced Petitioner to a term of 18 years imprisonment for each of the five counts of conviction, with four of the sentences to be served concurrently to each other but consecutively to the remaining sentence, for a total sentence of 36 years imprisonment. (Id., Ex. B at 25.)

ii. Direct Appeal

Petitioner took a timely, direct appeal from his convictions and sentences, and was represented by counsel in his direct appeal. (Doc. 10, Ex. A.) In his direct appeal, Petitioner asserted that the trial court abused its discretion by admitting evidence of Petitioner's five prior convictions³ during his trial as "intrinsic" to the charged offenses, arguing that the admission of this "other act" evidence violated Rule 404(b), Arizona Rules of Criminal Procedure. (Id., Ex. A at 5-1, Ex. D at 3.) Petitioner also argued that the evidence presented at trial was insufficient to support his convictions. (Id., Ex. A at 13-17.) Petitioner further maintained that the trial court abused its discretion by designating his case as complex under state procedural rules, and also claimed that the sentences imposed were "unreasonable and excessive," without citation to any published federal legal opinion or amendment to the United States Constitution. (Id., Ex. A at 17-19, 20-23.)

The Arizona Court of Appeals affirmed Petitioner's convictions and sentences in a memorandum decision entered on October 2, 2012. (Doc. 10, Ex. D.) With regard to Petitioner's argument regarding the sufficiency of the evidence, the appellate court did not cite to any federal legal opinion. The Arizona Court of Appeals found Petitioner had "not cite[d] any portion of the record to support his factual assertions" that the alleged investment mechanisms were legitimate and that some of the alleged victims had profited from their investments. (Id., Ex. D at 5-6.) The appellate court further found Petitioner had not established at his trial or subsequently that he was not "John Viola," the person who had defrauded the victims. (Id., Ex. D at 9.) The court then delineated all of the evidence against Petitioner and how that evidence supported his convictions. (Id.) The Arizona Court of Appeals, having considered the merits of each of Petitioner's claims of error, denied relief.

The Arizona Court of Appeals subsequently granted Petitioner's motion to recall its mandate in his direct appeal and gave him until April 12, 2013, to file a petition for review with the Arizona Supreme Court. (Doc. 10, Ex. F, Ex. G.) The petition for review was denied by the Arizona Supreme Court on June 25, 2013. (Id., Ex. I.) Petitioner sought a writ of certiorari in the United States Supreme Court. His request was denied on December 16, 2013. (Id., Ex. M.) The Arizona Court of Appeals issued its final mandate in Petitioner's direct appeal on December 31, 2013. (Id., Ex. N.)

c. PETITIONS FOR POST-CONVICTION RELIEF

Respondents aver that Petitioner never initiated a timely state action for post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. Petitioner does not challenge this assertion in his Reply to Respondents' Limited Answer.

d. FEDERAL PETITION FOR WRIT OF HABEAS CORPUS

On May 19, 2014, Petitioner filed the instant habeas Petition, which advances four grounds for relief:

In Ground One, Petitioner alleges that the trial court abused its discretionby failing to grant a new trial, was without jurisdiction, and prevented Petitioner from presenting a complete defense, all in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendment.

In Ground Two, Petitioner alleges that the trial court abused its discretion by designating his trial as "complex," in violation of the Fifth, Sixth, and Fourteenth Amendments.

In Ground Three, Petitioner alleges that the trial court abused its discretion by allowing the presentation of Petitioner's "alleged" prior convictions, in violation of the Fifth and Fourteenth Amendments.

In Ground Four, Petitioner alleges that the trial court abused its discretion in imposing an excessive sentence, in violation of the Fifth, Eighth, and Fourteenth Amendments.

(Doc. 5 at 1-2 (citing Doc. 1).)

On October 16, 2014, the State filed a Response to the Petition. (Doc. 10.) The State asserts that the Petition is timely, but maintains...