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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Zane Dickinson,

Petitioner,

v. 

David Shinn1, et al.,

Respondents.

No. CV-18-08037-PCT-MTL

ORDER 

Pending before the Court is Magistrate Judge Deborah M. Fine’s Report and 

Recommendation (“R & R”) (Doc. 22), recommending that the Petition for Writ of Habeas 

Corpus (Doc. 1) be granted as to Ground II. Respondents filed Objections to the R & R 

(Doc. 25), and Petitioner filed a Response (Doc. 31). After considering the Petition 

(Doc. 1), Respondents’ Limited Answer to the Petition (Doc. 6), Respondents’ 

Supplemental Answer to the Petition2(Doc. 16), Petitioner’s Reply to Respondents’ 

Supplemental Answer (Doc. 21), the R & R (Doc. 22), the arguments raised in 

Respondents’ Objection to the R & R (Doc. 25), and Petitioner’s Response to Respondents’ 

Objection (Doc. 31), the Court will reject the R & R’s recommendation that this Court 

grant the Petition.

1 David Shinn, Director of the Arizona Department of Corrections, is substituted for 

Charles L. Ryan, former Director of the Arizona Department of Corrections, pursuant to 

Fed. R. Civ. P. 25(d). 

2 After considering the Petition and Respondents’ Limited Answer, the Magistrate Judge 

ordered supplemental briefing on the merits of Petitioner’s ineffective assistance of trial 

counsel claim. (Doc. 10.) 
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I. Background

The Arizona Court of Appeals summarized the facts of this case in a published 

opinion as follows:

For years, [Petitioner] and C.H., the victim, had been friends. In June 

2011, they had a falling out when [Petitioner] failed to perform yard work he 

had agreed to do and refused to return tools to the victim. The two argued 

and [Petitioner] pulled a knife, but the victim fought back and was able to get 

away.

On July 2, 2011, while riding his bicycle, the victim saw [Petitioner]’s 

truck at the house of a mutual friend. The victim then approached 

[Petitioner], again asking for the return of his tools and asking that 

[Petitioner] refund money to a customer for whom [Petitioner] had failed to 

perform work. According to the victim, as he walked by the truck, 

[Petitioner] “pulls out this ax, and he’s coming at me.” After a scuffle, 

[Petitioner] told the victim “he’s going to kill me, and all this stuff, you know, 

and he cussed me and called me names. So I was just trying ... I got on my 

bike and rode away.” [Petitioner] then apparently told the mutual friend “I’m 

going to run him over” and then left.

A short time later, while riding his bicycle near an alley, the victim 

saw [Petitioner] approaching in “a Ford Ranger, extended cab” truck. At trial, 

the victim 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.

Still able to ride, the victim got back on his bicycle, “trying to get 

away.” The victim thought he had lost [Petitioner], but “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 [of the bike], and he’s laughing; so I realize what’s going 

on.” The victim again tried to get away, including riding toward a field, but 

“at the same time [[Petitioner]] turns his wheel and hit[s] my bike; and that’s 

the last thing I remember, and I wake up in the hospital.”

According to a witness, [Petitioner] “parked in this field, like he was 

waiting for [the victim], in his truck, with it running.” The witness testified 

[Petitioner] ran the victim “down on his bicycle. [The victim] went up 

underneath the truck.... The bike collapsed, and [the victim] was drug 

underneath the truck.” After running over the victim, [Petitioner] sped off. 

The victim sustained multiple injuries, including a concussion and head 

injuries resulting in 13 stitches, including across his eye; a broken ankle and 
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his “funny bone was ripped out” from his elbow. The mutual friend testified 

that, after the incident, [Petitioner] returned and parked his truck at the 

friend's house, tossed the keys to the friend and said “that he had did it. That 

he done it.”

State v. Dickinson, 233 Ariz. 527, 528-29, ¶¶ 2-5 (App. 2013). 

The Arizona Court of Appeals provided the following procedural history:

The indictment charged [Petitioner] with attempted second degree 

murder, a class 2 dangerous felony, and other felony offenses. The State’s 

theory of the case was that [Petitioner] tried to kill the victim. [Petitioner] did 

not testify and called no witnesses but asserted a defense of mistaken identity 

and claimed he had no involvement. [Petitioner] argued someone else ran 

over the victim and that he was being framed in an attempted insurance or 

prescription drug fraud. At no time did [Petitioner] assert that he hit the 

victim with his truck but did not intend to or try to kill the victim.

In its opening statement, the State repeatedly maintained that the 

evidence would show [Petitioner] “tried to kill [the victim].” In closing 

argument, the State repeatedly argued that [Petitioner] “was trying to kill [the 

victim].” Focusing on a comment [Petitioner] made in a recorded jail call that 

“I was defending myself really,” the State argued [Petitioner]’s acts were 

“not self-defense” and asked the jury to “[r]emember [[Petitioner]] said he 

was going to ... kill him.” After referencing the attempted murder jury 

instruction quoted in the following paragraph, the State told the jury that the 

victim was lucky, the victim’s injuries could have been much worse and 

[Petitioner] was “trying to kill” the victim.

Without objection, the court gave the following attempted second 

degree murder jury instruction (the italicized portion of which is at issue 

here):

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.
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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.

After a three-day trial, the jury found [Petitioner] guilty as charged. 

Finding [Petitioner] had one prior historical felony conviction, the court 

sentenced him to an aggravated term of 12 years in prison on the attempted 

second degree murder conviction and to prison terms on the other counts.

Id. at 529-30, ¶¶ 6-8. 

As the R & R recounts, following trial, Petitioner appealed his conviction for 

attempted second degree murder and the resulting sentence. (Doc. 22 at 5.) On direct 

appeal, Petitioner challenged the portion of the attempted second degree murder jury 

instruction stating that a jury could return a guilty verdict on a showing that he knew that 

his conduct would cause serious physical injury but not death. Dickinson, 233 Ariz. at 530,

¶ 10. Because Petitioner did not object to the jury instruction at trial, however, the Arizona 

Court of Appeals’ review was limited to fundamental error. Id. On direct review, 

Petitioner therefore bore the burden of establishing that “(1) error exists, (2) the error is 

fundamental, and (3) the error caused him prejudice.” Id. (citing State v. James, 231 Ariz. 

490, 493, ¶ 11 (App. 2013) (citations omitted in original)). To prove prejudice, Petitioner 

had to show that “a reasonable, properly instructed jury ‘could have reached a different 

result.’” Id. at 531, ¶ 13 (citing James, 231 Ariz. at 494, ¶ 15). 

The Arizona Court of Appeals found that the trial court erred in instructing the jury 

that it could convict Petitioner of attempted murder on a finding that Petitioner knew his 

conduct would cause serious physical injury. Dickinson, 233 Ariz. at 530, ¶ 11. The Court 

of Appeals further found that this error was fundamental because the instruction potentially 

improperly relieved the State of its burden of proving an element of the offense. Id. at 531, 

¶ 12. After reviewing the particular facts of this case, however—including the State’s 

theory of the case that Petitioner intended to kill the victim, Petitioner’s mistaken identity 

defense, and the evidence and arguments presented—the Arizona Court of Appeals found 
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that Petitioner failed to prove resulting prejudice from the fundamental error in the jury 

instruction. Id. at 533, ¶ 22. Accordingly, the Arizona Court of Appeals affirmed 

Petitioner’s conviction and sentence for attempted second degree murder. Id., ¶ 23. 

The Arizona Supreme Court denied cross-petitions for review, and neither party 

petitioned the United States Supreme Court for certiorari. (Doc. 22 at 6.) On June 12, 

2014, Petitioner timely initiated post-conviction relief (“PCR”) proceedings, and PCR 

counsel was appointed to assist him. (Id.); (see also Doc. 6-5 at 13.) In Petitioner’s initial 

PCR Petition, PCR counsel raised two claims of ineffective assistance of trial counsel, 

neither of which was related to the incorrect jury instruction. (Doc. 22 at 6.) PCR counsel 

similarly did not raise a due process claim related to the incorrect jury instruction. (Id.) 

The trial court denied Petitioner’s initial PCR Petition, concluding that the claims raised 

were not colorable. (Doc. 6-5 at 22, 23.)

On August 26, 2015, Petitioner, in his pro se capacity, filed a second notice of PCR, 

alleging that PCR counsel was ineffective for “failing to raise any meritorious claims.” 

(Doc. 6-5 at 29-30.) Petitioner did not identify the purportedly meritorious claims. The 

trial court denied relief, finding that Petitioner, as a non-pleading defendant, was not 

entitled to effective assistance of PCR counsel under Arizona law. (Doc. 22 at 6); (Doc. 6-

5 at 35.) 

Petitioner filed two Petitions for Review in the Arizona Court of Appeals (one for 

each PCR Petition). (Doc. 22 at 6.) The Court of Appeals granted review of both petitions 

but denied relief. (Id.) Petitioner then timely filed the instant habeas petition in this Court. 

(Id.); (Doc. 6 at 7-9.) 

II. Legal Standard

When a federal district court reviews a state prisoner’s habeas corpus petition 

pursuant to 28 U.S.C. § 2254, “it must decide whether the petitioner is ‘in custody in 

violation of the Constitution or laws or treaties of the United States.’” Coleman v. 

Thompson, 501 U.S. 722, 730 (1991) (quoting 28 U.S.C. § 2254). When reviewing a 

Magistrate Judge’s R & R, this Court reviews de novo those portions of the report to which 
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an objection is made and “may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). District 

courts are not required to conduct “any review at all . . . of any issue that is not the subject 

of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 

III. Analysis

The Petition raises two grounds for relief.

3 Petitioner alleges (1) that his due process 

rights were violated by the incorrect jury instruction; and (2) that he received ineffective 

assistance of trial counsel because his trial counsel failed to object to the erroneous jury 

instruction. (Doc. 1 at 5-6.) The R & R correctly finds (and the parties do not dispute) that 

both of Petitioner’s claims are procedurally defaulted because Petitioner never presented

them in state court, and no state remedies remain available to him. (Doc. 22 at 7.) The 

R & R concludes, however, that Martinez v. Ryan, 566 U.S. 1 (2012), excuses the 

procedural default on Ground II because Petitioner’s PCR counsel was ineffective under 

the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), and because the 

underlying ineffective assistance of trial counsel claim has some merit. (Doc. 22 at 8-9.) 

Reaching the merits of Petitioner’s procedurally defaulted ineffective assistance of trial 

counsel claim, the R & R finds that Petitioner’s trial counsel rendered ineffective assistance 

of counsel and recommends that the Petition be granted as to Ground II. (Id. at 15.) 

The R & R recommends that Ground I be denied because it is procedurally defaulted 

without excuse. (Id. at 15.) Because Petitioner did not file an objection, the Court will 

accept and adopt the portion of the R & R recommending that the Petition be denied as to 

Ground I. 

A. Martinez v. Ryan

A federal habeas court reviewing the constitutionality of a state prisoner’s 

conviction and sentence is “guided by rules designed to ensure that state-court judgments 

are accorded the finality and respect necessary to preserve the integrity of legal proceedings 

within our system of federalism.” Martinez, 566 U.S. at 9. The doctrine of procedural 

3 Petitioner seeks relief solely from his attempted second degree murder conviction. (Doc. 

1 at 5-6.) 
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default, which prevents a federal court from reviewing the merits of a claim that the state 

court declined to hear because a prisoner failed to abide by a state procedural rule, is one 

of those rules. Id. at 9-10. A prisoner may obtain federal review of a procedurally defaulted 

claim, however, by showing cause for the default and prejudice from a violation of federal 

law. Id. at 10 (citing Coleman, 501 U.S. at 750). 

Where a state, like Arizona, requires a prisoner to raise an ineffective assistance of 

trial counsel claim in a collateral proceeding, the prisoner may establish cause for default 

by demonstrating that his counsel in the initial collateral proceeding was ineffective under 

Strickland for failing to raise the ineffective assistance of trial counsel claim. Martinez, 

566 U.S. at 14. The prisoner must also demonstrate that the underlying ineffective 

assistance of trial counsel claim is “a substantial one, which is to say that the prisoner must 

demonstrate that the claim has some merit.”4 Id. 

B. Deficient performance of trial counsel under Strickland

The jury instruction given at Petitioner’s trial was erroneous because attempted 

second degree murder can only be committed if the defendant intended to kill the victim 

or knew that the conduct would cause death. Dickinson, 233 Ariz. at 530, ¶ 11. The R & R 

concludes that because Petitioner’s trial counsel failed to object to the erroneous jury 

instruction, trial counsel’s performance “fell below an objective standard of 

reasonableness” that constitutes deficient performance under the first prong Strickland. 

(Doc. 22 at 11) (quoting Strickland, 466 U.S. at 688.) Respondents make two objections 

to this finding. First, Respondents claim that the R & R impermissibly requires the State 

to “provide an explanation from trial counsel for their strategic choices before the 

deferential inquiry [under Strickland] can occur . . . .” (Doc. 25 at 2.) Second,

Respondents argue that the R & R improperly limits Strickland’s deferential review to 

4 The Court notes that Ramirez v. Ryan, 937 F.3d 1230 (9th Cir. 2019) was decided after 

the parties’ briefs were filed in this case. The Court finds Ramirez inapposite, however, 

because the parties’ arguments in this case do not depend on facts outside of the record and 

neither party requested evidentiary development. (See Doc. 22 at 15); Ramirez, 937 F.3d 

at 1248. Because the underlying ineffective assistance of trial counsel claim does not 

depend on evidence outside the trial record, the Court does not deem factual development 

necessary to decide cause and prejudice under Martinez. 
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“strategic decisions made after ‘thorough investigation of law and facts relevant to 

plausible options.’” (Doc. 25 at 1) (quoting R & R’s citation to Strickland). The Court 

overrules both of Respondents’ objections and adopts the R & R’s conclusion that 

Petitioner’s trial counsel rendered deficient performance.

“An ineffective assistance claim has two components: A petitioner must show that 

counsel’s performance was deficient, and that the deficiency prejudiced the defense.” 

Wiggins v. Smith, 539 U.S. 510, 521 (2003) (internal citations and quotations omitted). A 

court deciding a Sixth Amendment ineffectiveness claim must “judge the reasonableness 

of counsel’s challenged conduct on the facts of the particular case, viewed as of the time 

of counsel’s conduct.” Strickland, 466 U.S. at 690. A defendant making a claim of 

ineffective assistance must identify the acts or omissions of counsel that are alleged not to 

have been the result of reasonable professional judgment. Id. The Court must then 

determine, in light of all the circumstances, whether the acts or omissions were outside “the 

wide range of professionally competent assistance.” Id. In making that determination, 

“the court should recognize that counsel is strongly presumed to have rendered adequate 

assistance and made all significant decisions in the exercise of reasonable professional 

judgment.” Id. 

Here, the Court agrees with Respondents that deferential review of trial counsel’s 

performance under Strickland is not triggered by the State’s provision of an explanation 

from trial counsel, justifying his or her choices. See Burt v. Titlow, 571 U.S. 12, 22-23 

(2013) (“absence of evidence cannot overcome the ‘strong presumption that counsel’s 

conduct [fell] within the wide range of reasonable professional assistance”) (quoting 

Strickland, 466 U.S. at 689). Nor is deferential review under Strickland required solely if

the record reflects that trial counsel engaged in a “thorough investigation of law and facts 

relevant to plausible options.” Cf. (Doc. 22 at 10); Strickland, 466 U.S. at 691 (“[i]n any 

ineffectiveness case, a particular decision not to investigate must be directly assessed for 

reasonableness in all the circumstances, applying a heavy measure of deference to 

counsel’s judgments.”). The Court nonetheless agrees with the R & R’s conclusion that 
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trial counsel’s failure to object to the erroneous jury instruction in this case cannot be 

considered the result of reasonable professional judgment. At the time of Petitioner’s trial, 

the law in Arizona was very clear that attempted second degree murder can only be 

committed if the defendant intended to kill the victim or knew that the conduct would cause 

death. Dickinson, 233 Ariz. at 530, ¶ 11 (App. 2013) (citing State v. Ontiveros, 206 Ariz. 

539, 542, ¶ 14 (App. 2003)). Therefore, by failing to object to the erroneous jury 

instruction, trial counsel’s performance fell below an objective standard of reasonableness. 

See Harris v. Warden, Louisiana State Penitentiary, 152 F.3d 430, 440 (5th Cir. 1998) 

(failure to object to erroneous jury instruction for attempted murder constituted deficient 

performance under first prong of Strickland).

Accordingly, the Court rejects the portion of the R & R which states that deference 

to trial counsel is only owed to strategic decisions made after “thorough investigation of 

law and facts relevant to plausible options.” (Doc. 22 at 10.) The Court also rejects any

inference that the State must provide an explanation from trial counsel before deferential 

review under Strickland is required. (Id.) The Court adopts the R & R’s conclusion, and 

remaining reasoning in support thereof, that trial counsel’s performance was deficient 

under the first prong of Strickland. (Id. at 9-11.) 

C. Prejudice under Strickland

The R & R concludes that Petitioner demonstrated prejudice from his trial counsel’s 

deficient performance under Strickland because the “jury instructions included a correct 

and an incorrect statement of law” and “there is no ability to discern whether the jury relied 

on ‘a legally inadequate theory’ of the case to convict [Petitioner].” (Doc. 22 at 13) 

(quoting Griffin v. United States, 502 U.S. 46, 59 (1991)). Respondents object to this 

conclusion, asserting that the R & R improperly evaluates prejudice by considering whether 

the outcome of trial could have been different with a proper jury instruction, instead of 

assessing whether the outcome would have been different. (Doc. 25 at 3.) Respondents 

additionally argue that the R & R improperly applied the harmless error test from Brecht 

v. Abrahamson, 507 U.S. 619 (1993), (Doc. 25 at 3), and that the R & R incorrectly 
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“focuses on the loss of a more favorable standard of review on appeal rather than the impact 

of counsel’s decisions at trial.” (Doc. 25 at 4.) The Court agrees with Respondents and 

therefore rejects the R & R’s conclusion that Petitioner demonstrated prejudice under 

Strickland solely from his trial counsel’s failure to object to the erroneous jury instruction. 

1. “Could” versus “Would”

“An error by counsel, even if professionally unreasonable, does not warrant setting 

aside the judgment of a criminal proceedings if the error had no effect on the judgment.” 

Strickland, 466 U.S. at 691. Accordingly, under Strickland, the defendant must 

demonstrate that any deficiencies in counsel’s performance were prejudicial to the defense. 

Id. at 692. It is not enough for the defendant to show “that the errors had some conceivable 

effect on the outcome of the proceeding” because “not every error that conceivably could 

have influenced the outcome undermines the reliability of the result of the proceeding.” 

Id. at 693. To demonstrate prejudice under Strickland, “[t]he defendant must show that 

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id. at 694. 

The Court finds that the R & R correctly states the standard for determining 

prejudice under Strickland. (Doc. 22 at 11) (“[Petitioner] must ‘show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.’”) (emphasis added); (see also Doc. 22 at 12) 

(“Considering the facts presented at trial . . . .”) However, the Court agrees with 

Respondents that the R & R strays from this standard by finding that Petitioner proved 

prejudice under Strickland simply because there is no ability for the court to discern under 

which legal theory the jury voted to convict Petitioner. (Doc. 22 at 4, 13) (“The jury form 

did not give the jury an opportunity to explain the basis for finding [Petitioner] guilty . . . . 

Thus, there is no ability to discern whether the jury relied on ‘a legally inadequate 

theory’. . . .”) (quoting Griffin, 502 U.S. at 59).

To find prejudice under Strickland, Petitioner and the R & R rely heavily on Gray 
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v. Lynn, 6 F.3d 265, 269-70 (5th Cir. 1993), which states that in evaluating whether the 

outcome of trial would have been different, “[t]he question is whether, from all the 

evidence, the jury could have had a reasonable doubt concerning [Gray’s] intent to kill, 

and could have convicted him of intent to cause [great] bodily [harm].” (Doc. 31 at 2-3) 

(emphasis supplied by Petitioner); (Doc. 22 at 11-12.) According to Petitioner (Doc. 31 at 

2), Gray justifies the R & R’s inquiry into whether the jury, in fact, convicted Petitioner of 

intent to cause bodily harm instead of intent to kill. 

In Gray the defendant appeared at the victim’s door with a gun, threatened to “blow 

[the victim’s] brains out,” struck the victim twice on the head with the gun, and later fired 

three shots at the victim at close range (none of which actually struck the victim). 6 F.3d 

at 270. The jury in Gray was erroneously instructed that an essential element of the offense 

of attempted first degree murder is “specific criminal intent to kill or inflict great bodily 

harm.” Id. at 269 (emphasis added). Instead of limiting its inquiry under Strickland to 

whether “there [was] a reasonable probability that the jury would have had a reasonable 

doubt respecting Gray’s guilt” if the jury had been properly instructed, the court in Gray

proceeded to evaluate whether, “[u]nder the court’s instructions” it was possible that the 

jury could have convicted Gray under the incorrect legal theory. 6 F.3d at 269, 271

(“Under the court’s instructions, the jury could have convicted Gray for attempted first 

degree murder on the basis of a finding that he had the intent to inflict great bodily harm, 

even if it had reasonable doubt that he had the specific intent to kill [the victim]. Therefore, 

Gray has demonstrated prejudice ‘sufficient to undermine confidence in the outcome’ of 

his trial. No more is required.”) (emphasis added). 

For numerous reasons, the Court finds that Gray is of limited value here. First, 

Gray’s prejudice analysis is inconsistent with Strickland. While the Fifth Circuit in Gray

indicated that it analyzed Strickland’s prejudice prong by “considering the evidence and 

the instructions as a whole,” 6 F.3d at 271, the court’s ultimate conclusion rested on the 

premise that prejudice exists under Strickland where it is impossible to “conclude that the 

jurors ignored the court’s erroneous instructions.” Id. Because the Supreme Court has on 
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numerous occasions declined to include erroneous jury instructions like the one in this case 

among the list of constitutional violations requiring automatic reversal on direct appeal,

see Neder v. United States, 527 U.S. 1, 9-10 (1999) (collecting cases), the Court declines

to presume prejudice under Strickland where the court cannot ascertain (via a special 

verdict form or otherwise) the actual legal theory under which each juror voted to convict. 

Cf. Gray, 6 F.3d at 271 (“we cannot conclude that the jurors ignored the court’s erroneous 

instructions . . .”). 

Second, the Court notes that in Gray, the defendant filed his federal habeas 

application in 1987. Therefore, the deference owed to the state court’s determination of 

factual issues in the instant case, pursuant to § 2254(e)(1), was not an element of the 

analysis in Gray. See Lindh v. Murphy, 521 U.S. 320 (1997) (holding that the provisions 

of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) do not apply to 

cases that were filed before the April 1996 effective date of that act). In any event, in Gray

the sole issue addressed by the Louisiana Supreme Court on direct appeal was whether the 

defendant was denied the right to speedy trial. See Gray, 6 F.3d at 267 n.7. In contrast 

here, there is a reasoned opinion from the Arizona Court of Appeals that contains factual 

findings about the State’s theory of the case and the evidence presented during Petitioner’s 

trial. 

Third, the Court notes that five years after Gray, in Harris, 152 F.3d at 434, the 

Fifth Circuit affirmed the district court’s denial of habeas relief where the defendant alleged 

ineffective assistance of counsel stemming from an erroneous jury instruction. And in 

Harris, the Fifth Circuit declined to presume prejudice under Strickland where the court 

could not ascertain the theory under which the jury convicted, instead finding—based on a 

review of the evidence and arguments presented at trial—that the outcome of the 

proceeding would not have been different with a properly instructed jury. See Harris, 152 

F.3d at 440 n.11. 

In sum, the Court agrees with Respondents that the R & R’s finding of prejudice 

under Strickland incorrectly focuses on the potential that one juror could have convicted 
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Petitioner based on a showing that he knew his conduct would cause serious physical injury 

but not death. For this reason, and the additional reasons stated below, the Court rejects 

the R & R’s finding of prejudice under Strickland. 

2. Harmless error under Brecht and structural error under Weaver

Respondents object (Doc. 25 at 3) to the R & R, claiming that it improperly applies

the Brecht standard, 507 U.S. 619, which requires a lower showing of harm than Strickland. 

Petitioner responds that the cases relying on Brecht are cited in the R & R with a “cf.” 

citation because they all involved “legally untenable jury instructions,” and not because the 

R & R was presuming prejudice from the erroneous instruction. (Doc. 31 at 3.) 

Alternatively, Petitioner argues, citing Weaver v. Massachusetts, 137 S. Ct. 1899 (2017),

that because the erroneous legal theory was structural error, Petitioner should be relieved 

of his burden to satisfy the traditional prejudice test under Strickland. (Doc. 31 at 3-4.) 

The Court agrees with Respondents that the R & R improperly focuses on cases addressing 

erroneous jury instructions outside of the context of ineffective assistance of counsel. 

Additionally, for reasons stated below, the Court declines to apply Weaver to this case. 

In Brecht v. Abrahamson, the Supreme Court considered whether the Chapman5

harmless error standard (which places the burden on the State to prove on direct review 

that the constitutional error was harmless beyond a reasonable doubt where the issue was 

properly preserved and raised) should apply on federal habeas review. Brecht, 507 U.S. at 

636. Noting that collateral review is different from direct review—and considering the 

States’ interests in finality and sovereignty over criminal matters—the Supreme Court held 

in Brecht that error requires habeas relief only if the petitioner establishes that the error had 

a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 

623 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). “[G]ranting habeas 

relief merely because there is a ‘reasonable possibility’ that the error contributed to the 

verdict . . . is at odds with the historic meaning of habeas corpus—to afford relief to those 

5

In Chapman v. California, 386 U.S. 18, 22, 26 (1967), the Supreme Court established the 

general rule that a constitutional error does not automatically require reversal of a 

conviction.
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whom society has ‘grievously wronged.’” 507 U.S. at 637. Where a habeas petition 

governed by AEDPA alleges ineffective assistance of counsel under Strickland, this Court 

“appl[ies] Strickland’s prejudice standard and do[es] not engage in a separate analysis 

applying the Brecht standard.” Musladin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). 

While some errors—known as “structural errors”—require reversal on direct review 

regardless of whether an objection was made below and regardless of the mistake’s effect 

on the proceeding, see Neder, 527 U.S. at 8; Weaver, 137 S. Ct. at 1907 (citing Arizona v. 

Fulminante, 499 U.S. 279, 309-10 (1991)), because the Petition raises an ineffective 

assistance of counsel claim, the Court must review the erroneous jury instruction through 

the lens of Strickland. (Doc. 1 at 6.) Whether an erroneous jury instruction constitutes 

structural error that requires automatic reversal on direct review—or whether habeas relief 

should be granted on a non-defaulted due process claim under Brecht—are separate 

questions from whether a defendant can show, based on the evidence and arguments 

presented during trial, that the outcome of trial would have been different with a properly 

instructed jury. Because Strickland requires the latter, the Court agrees with Respondents 

that the R & R improperly relies on cases that addressed erroneous jury instructions outside 

of the ineffective assistance of counsel context. (Doc. 22 at 12) (citing Martinez v. Garcia, 

379 F.3d 1034, 1035 (9th Cir. 2004) (state court’s decision was contrary to clearly 

established federal law because it failed to discuss on direct review the structural error 

resulting from from erroneous jury instructions)); (Doc. 22 at 12) (citing Evanchyk v. 

Stewart, 340 F.3d 933, 940-41 n.2 (9th Cir. 2003) (noting cases where the Supreme Court 

found structural error for erroneous jury instructions on direct review)); (Doc. 22 at 13) 

(citing Suniga v. Bunnel, 998 F.2d 664, 669 (9th Cir. 1993), overruled on other grounds by 

Evanchyk, 340 F.3d 933) (reversing district court’s denial of habeas corpus because state 

court’s evaluation of structural error on direct review was unreasonable); (Doc. 22 at 13) 

(citing Sheppard v. Rees, 909 F.2d 1234 (9th Cir. 1989) (reversing district court’s denial 

of habeas corpus and finding that the failure to give the defendant adequate notice of the 

charges against him—where the error was raised during trial and on direct appeal—was 
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not subject to harmless-error determination)); (Doc. 22 at 13) (quoting Riley v. McDaniel, 

786 F.3d 719, 726 n.1 (9th Cir. 2015) (evaluating whether instructional error was harmless 

under Brecht and expressly declining to reach the ineffective assistance of counsel claim)). 

Petitioner alternatively argues, citing Weaver, that it is “far from clear” he needs to

satisfy the traditional prejudice test. (Doc. 31 at 3.) In Weaver, which reached the Supreme 

Court on direct review, the Court addressed what showing was necessary where the 

defendant did not preserve a structural error on direct review but later raised it for the first 

time in the context of ineffective assistance of counsel. Weaver, 137 S. Ct. at 1910. The 

structural error in Weaver (to which the defendant’s trial counsel failed to object) was 

closure of the courtroom during jury selection, and the Supreme Court expressly noted that 

it granted certiorari “specifically and only in the context of trial counsel’s failure to object 

to the closure of the courtroom during jury selection.” Id. at 1906, 1907. While 

recognizing that structural errors may require automatic reversal where an error was 

preserved and raised on direct review, the Supreme Court held that when a structural error 

is raised for the first time in the context of an ineffective assistance of counsel claim, 

finality concerns require the defendant to show prejudice under Strickland in order to 

obtain a new trial. Id. at 1913. “[W]hen a defendant raises a public-trial violation via an 

infective-assistance-of-counsel claim, Strickland prejudice is not shown automatically. 

Instead, the burden is on the defendant to show either a reasonable probability of a different 

outcome in his or her case or, as the Court has assumed for these purposes . . . to show that 

the particular public-trial violation was so serious as to render his or her trial 

fundamentally unfair.” Id. at 1911 (emphasis added). 

Because the Supreme Court in Weaver expressly limited its holding to structural 

errors stemming from a public-trial violation, the Court will not evaluate whether the 

erroneous jury instruction in this case was so serious as to render Petitioner’s trial 

fundamentally unfair. Petitioner must demonstrate that the outcome of his trial would have 

been different with a properly instructed jury. 
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3. Loss of a more favorable standard on appeal

Respondents also object to the R & R (Doc. 25 at 4), stating that it improperly 

“focuses on the loss of a more favorable standard of review on appeal rather than the impact 

of counsel’s decisions at trial.” Petitioner responds (Doc. 31 at 4) that numerous courts in 

this district, other circuits, as well as the Ninth Circuit in an unpublished opinion, have held 

that the deprivation of an issue on appeal demonstrates prejudice under Strickland. 

The R & R posits that, had Petitioner’s trial counsel objected to the erroneous jury 

instruction, the court of appeals would have reviewed it for harmless error, placing the 

burden on State to show that the error was harmless beyond a reasonable doubt. (Doc. 22 

at 14-15.) Because Petitioner’s trial counsel did not object, however, the Arizona Court of 

Appeals reviewed the instruction for fundamental error, which placed the burden on 

Petitioner. (Id.) While some courts have adopted the view that an inquiry into trial 

counsel’s effectiveness under Strickland includes an evaluation of whether the appeal 

would have been different, but for trial counsel’s missteps—see May v. Ryan, 245 F. Supp.

3d 1145, 1168-69 (D. Ariz. 2017) (vacated in part by May v. Ryan, 766 Fed.App’x. 505 

(9th Cir. 2019)); Burdge v. Belleque, 290 Fed. App’x 73, 79 (9th Cir. 2008); French v. 

Warden, Wilcox State Prison, 790 F.3d 1259, 1269 (11th Cir. 2015)—Arizona courts have 

not. See State v. Speers, 238 Ariz. 423, 431, ¶ 31 (App. 2015) (quoting Strickland, 466 

U.S. at 696) (“ultimate focus of inquiry must be on the fundamental fairness of the 

proceeding whose result is being challenged”); see also Kennedy v. Kena, 666 F.3d 472, 

485-86 (11th Cir. 2012) (finding Roe v. Flores-Ortega, 528 U.S. 470 (2000), which focused 

on loss of appeal in its entirety, does not require courts to evaluate under Strickland whether 

counsel’s failure to preserve issues at trial affected the direct appeal); Bonney v. Wilson, 

754 F.3d 872, 885 (10th Cir. 2014) (Flores-Ortega does not require courts to evaluate trial 

counsel’s performance under Strickland by considering whether outcome of appeal would 

have been different). 

Without more, the Court declines to stray from Strickland’s pronouncement that the 

prejudice inquiry should focus on the fairness of the proceeding whose result is being 
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challenged. Strickland, 466 U.S. at 696. Had PCR counsel raised the ineffective assistance 

of trial counsel claim, the PCR court would have focused on whether the outcome of trial 

would have been different, not whether the appeal would have been different. The Court 

therefore rejects the portion of the R & R that addresses the loss of a more favorable 

standard of review on appeal.6

4. Petitioner did not meet his burden under Strickland. 

The Court finds that, under the standard set forth in Strickland, Petitioner did not 

show that the outcome of his trial would have been different with a properly instructed

jury. The Court presumes that the Arizona Court of Appeals’ factual findings are correct,

and Petitioner bears the burden of rebutting the presumption of correctness by clear and 

convincing evidence. 28 U.S.C. § 2254(e). 

The Court rejects certain factual findings contained in the R & R. First, the R & R 

notes that after Petitioner hit the victim’s bike the first time, Petitioner “found C.H. 

again . . . .” (Doc. 22 at 2.) The Arizona Court of Appeals, however, stated that, 

according to an eyewitness, after Petitioner hit C.H. on his bike the first time, Petitioner 

then parked his truck in a field, and left the motor running, like he was lying in wait for the 

victim. Dickinson, 233 Ariz. at 529, ¶ 5; see also (Doc. 6-2 at 131) (eyewitness testifying 

that Petitioner came “ripping out of the field” and “floored” his truck when he went after 

C.H. the second time.) Next, the R & R omits that the second time Petitioner hit C.H. with 

his truck, C.H.’s body was drug “up underneath the truck.” Dickinson, 233 Ariz. at 529, ¶ 

5; see also (Doc 6-2 at 132-33) (testifying that C.H.’s bike folded up under the truck, that 

C.H. was drug underneath the truck, and that his body went beneath the whole front 

suspension of the four-wheel drive and was ejected out the passenger side on the ground 

underneath Petitioner’s truck). Additionally, the R & R minimizes the extent of C.H.’s 

injuries, stating that “C.H. was knocked unconscious and woke up in the hospital with a 

broken ankle, his elbow was bleeding, he had a concussion, and 13 stitches over his eye.” 

6 The Court is not convinced in any event that Petitioner would have prevailed on direct 

appeal under harmless error review, given the Court of Appeals’ characterization of the 

record. 
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(Doc. 22 at 3.) As the Court of Appeals noted, however, C.H.’s elbow was not just 

“bleeding”—his funny bone was ripped out of his elbow. Dickinson, 233 Ariz. at 529, ¶ 

5; (see also Doc. 6-2 at 63-64) (C.H. additionally testifying that he had to have surgery on 

his big toe and that his bicep and triceps were ripped from his muscle.)

Further, the R & R states that when Petitioner made the statement that he wanted to 

kill the victim, the statement was made jokingly. (Doc. 22 at 12.) The record reflects, 

however, that Petitioner only “jokingly” told the mutual friend that he wanted to “run 

[C.H.] over.” (Doc. 22 at 2); (Doc. 6-2 at 110.) There was no testimony that Petitioner was 

joking when he raised an ax and told C.H. that he was going to kill him. Cf. (Doc. 22 at 

12); (Doc. 6-5 at 56.) Further, while the R & R correctly notes (Doc. 22 at 2) that the 

mutual friend testified Petitioner’s statement about wanting to run over C.H. was made 

“jokingly,” (Doc. 6-2 at 110), the R & R omits that after the incident, Petitioner “returned 

and parked his truck at the friend’s house, tossed the keys to the friend and said ‘that he 

had did it. That he done it.’” Dickinson, 233 Ariz. at 529, ¶ 5; (Doc. 6-2 at 98.) 

The Court also disagrees with the R & R’s finding that “the prosecutor argued in 

closing to the jury that the state did not have the burden to prove [Petitioner] intended to 

kill C.H. but that intent of serious physical injury was enough.” (Doc. 22 at 13.) While 

the prosecutor certainly reiterated the erroneous jury instruction to the jury during closing 

statements, the crux of prosecutor’s argument was that Petitioner was trying to kill C.H.:

Now the attempted second degree murder. That requires you—that 

the defendant did some act intentionally. He ran the victim over. And that 

he believed such a step was in the course of committing second degree 

murder. And of course, the judge instructed you, you don’t have to—[C.H.]

doesn’t have to be dead. This is attempted murder.

The step in the course of committing second degree murder is going 

to run somebody over on their bike, with your vehicle; and when you look at 

the instruction, it’s either he did this intentionally or that he knew that his 

conduct would result in death or serious physical injury. 

Now, [C.H.]’s lucky. This could have been much worse; his injuries 

could have been much worse. You get spit through underneath a truck, could 

have been much worse. But he was trying to kill him. 

(Doc. 6-3 at 156) (emphasis added).
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The R & R also cites Doc. 6-3 at 189:25-190:4 to show that the prosecutor argued 

in closing to the jury that the State did not have the burden to prove that Petitioner intended 

to kill C.H in order to convict him of second degree murder. (Doc. 22 at 13.) But the 

prosecutor at that portion of the record stated solely that the State did not have to prove 

how fast Petitioner was driving when he ran over C.H. (See Doc. 6-3 at 189) (“Now, he 

said there’s no testimony as far as speed. Do you have to—you guys, your common 

experience and life experience, you know, that people get killed when they get [run] over. 

Backing out, someone gets backed over, people get killed at low speeds. And there was 

there was no testimony that defendant was going 35 miles an hour. There was no number. 

There was a lot of testimony about acceleration marks and about the defendant running 

over [C.H.]. I mean we don’t have to prove that. The burden—look at the injury 

instruction. We don’t have to prove that it was at a certain speed, one, that he was injured, 

one, that defendant did it, and that he did with his car and he broke his foot.”)7

Most importantly, the Arizona Court of Appeals found, as a factual matter, that the 

State’s theory at trial was that Petitioner intended to kill C.H., not that he intended to cause 

serious physical injury or knew that his conduct would cause serious physical injury. 

Dickinson, 233 Ariz. at 531, ¶¶ 13-14. The Court of Appeals further found that because 

Petitioner’s defense was mistaken identity, which did not implicate the erroneous portion 

of the jury instruction, Petitioner’s argument that the erroneous jury instruction prejudiced 

him was undercut. Id., ¶ 15. 

Because the Arizona Court of Appeals considered the evidence and found that 

Petitioner failed to prove that a “reasonable, properly instructed jury ‘could have reached 

a different result,’” Dickson, 233 Ariz. at 531, ¶ 13 (quoting James, 231 Ariz. at 494, ¶ 15) 

(emphasis added), the Court cannot say under Strickland that the outcome of trial would

7 Petitioner was also charged with two counts of aggravated assault, which required the 

State to prove either that Petitioner intentionally, knowingly, or recklessly caused a 

physical injury to another person, and that he did so using a dangerous instrument (Doc. 6-

3 at 143), or that Petitioner intentionally, knowingly, or recklessly caused a physical injury 

to another by means of force that caused the fracture of any body part (Id. at 144). It is 

more likely that the prosecutor’s reference to the “injury instruction” (Id. at 189:25-190:4) 

at this portion of the record pertained to the aggravated assault counts, not the second 

degree murder count.
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have been different with a properly instructed jury. As the Arizona Court of Appeals

correctly noted, Petitioner threated C.H. with an ax and told C.H. that he would kill him 

just minutes before the incident. Dickinson, 233 Ariz. at 531, ¶ 16. When C.H. rode away 

on his bicycle, Petitioner said that he was going to run him over, and then drove after him. 

Id. C.H. testified that just before being run over, Petitioner “had that look in his face like, 

you know, he was going to kill me, man, he was going to kill me.” Id. And an eyewitness 

testified that Petitioner drove over C.H.’s body so that C.H.’s body was drug up underneath 

it. Id. The R & R does not properly defer to the Arizona Court of Appeals finding that the 

“evidence [was] consistent with the State’s theory that [Petitioner] intended to kill the 

victim, not just cause serious physical injury.” Id.; cf. (Doc. 22 at 12) (R & R finding that 

very little of the evidence indicated that Petitioner intended or knew that his conduct would 

cause death). 

In sum, Petitioner did not show that the outcome of trial would have been different 

without the erroneous jury instruction. Accordingly, Petitioner has not shown that his trial 

counsel rendered constitutionally defective assistance of counsel. Because the underlying 

ineffective assistance of trial counsel claim lacks merit, Petitioner’s PCR counsel was not 

ineffective for failing to raise it. Therefore, under Martinez Petitioner has neither 

demonstrated cause for the default nor prejudice sufficient to excuse his procedurally 

defaulted claim.

8

 The Court will deny the Petition (Doc. 1.) 

///

///

///

///

///

8 The Court has ultimately found that the underlying ineffective assistance of trial counsel 

claim is not substantial under Martinez because the ineffective assistance of trial counsel 

claim is without merit. See Sexton v. Cozner, 679 F.3d 1150, 1159-60 (9th Cir. 2012). 

However, even if this Court had found that the underlying ineffective assistance of trial 

counsel claim was substantial under Martinez, the result herein would be the same because 

Ramirez does not require evidentiary development in this instance, see supra n.4, and 

because the Court ultimately reached the merits of the underlying ineffective assistance of 

trial counsel claim, finding it meritless under Strickland. 
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IV. Conclusion

In light of the foregoing,

IT IS ORDERED that the R & R (Doc. 22) is accepted in part and rejected in part. 

The objections are overruled to the extent indicated above. Upon this Court’s de novo

review of Ground II, the Court finds that Petitioner did not show cause for the default or 

prejudice sufficient to excuse his procedurally defaulted ineffective assistance of trial 

counsel claim. Accordingly, the Petition for Habeas Corpus (Doc. 1) is denied with 

prejudice, and the Clerk of the Court shall enter judgment accordingly. 

IT IS FURTHER ORDERED that in the event Petitioner files an appeal, the Court 

grants in part the certificate of appealability (part of Doc. 31). Petitioner requested in the 

alternative that the Court grant a certificate of appealability (part of Doc. 31), and R & R 

recommended that one be granted if the Court did not accept the R & R’s recommendation 

to grant relief on Ground II (Doc. 22 at 15-16.) Pursuant to 28 U.S.C. § 2253(c)(2), a 

certificate of appealability may issue only when the petitioner “has made a substantial 

showing of the denial of a constitutional right.” This showing can be established by 

demonstrating that reasonable jurists would find the district court’s assessment of the 

constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

To meet the threshold inquiry on debatability, the petitioner “must demonstrate that the 

issues are debatable among jurists of reason; that a court could resolve the issues [in a 

different manner]; or that the questions are adequate to deserve encouragement to proceed 

further.” Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (alteration and 

emphasis in original). A constitutional claim is debatable if another circuit has issued a 

conflicting ruling. See id. at 1025-26. As to Ground II, the Court finds that the following 

questions are adequate to deserve encouragement to proceed further: 1) whether an inquiry 

into trial counsel’s effectiveness under Strickland includes an evaluation of whether the 

direct appeal would have been different, but for trial counsel’s missteps; 2) whether, under 

Weaver, Petitioner should be relieved of his burden to demonstrate that the outcome of trial 

would have been different; and 3) whether Strickland in this context allows prejudice to be 
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found solely because the court cannot know the legal theory under which the jury convicted 

the defendant. Cf. Gray, 6 F.3d at 271. The Court denies the certificate of appealability 

as to the remainder of Ground II and all other grounds. 

Dated this 6th day of February, 2020.