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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Zane Dickinson, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents. 

NO. CV-18-8037-PCT-DJH (DMF) 

ORDER 

 Zane Dickinson filed a Petition for Writ of Habeas Corpus (“Petition”), 

challenging his convictions and sentences in Mohave County Superior Court. Because 

the Court has concluded that it is likely to recommend that Dickinson is entitled to relief 

under Martinez v. Ryan, 566 U.S. 1 (2012), the Court will order supplemental briefing on 

the merits of the Petition’s ineffective assistance of trial counsel claim.

Background. 

 C.H. was run over by a truck and sustained multiple injuries. According to a 

witness, Dickinson drove the truck and injured C.H. deliberately because of a falling out 

they had had. Based on that theory of the case, Dickinson was indicted in Mohave 

County Superior Court for attempted second degree murder and other felonies. 

The case proceeded to trial where C.H. testified that when he and Dickinson had a 

confrontation at someone’s house, Dickinson “was telling me he’s going to kill me, and 
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all this stuff, you know, and he cussed me and called me names.” (Doc 6-2 at 56:11-13) 

The homeowner testified that “they were both threatening each other” and he broke up 

the fight. (Doc. 6-2 at 94:12) Later, Dickinson told the homeowner “jokingly” that he 

was going to run over C.H. (Doc. 6-2 at 98:24, 110:19) 

C.H. testified that shortly thereafter, he was hit by a truck that he recognized at 

Dickinson’s. (Doc. 6-2 at 56-60) C.H. testified that Dickinson smiled at him and the 

“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 first. I landed on the dirt.” (Doc. 6-2 at 60:11-14) C.H. testified that he got up 

and then the truck hit his bike from behind and if the truck “would have turned two or 

three feet, he would have totally hit me; but he didn’t do that.” (Doc. 6-2 at 61:8-10) 

C.H. testified that he “felt threatened, seriously threatened, because—because you know, 

at first I thought he was going to drive by, you what I mean; but the first time he clipped 

me and he had that look in his face like, you know, he was going to kill me, man, he was 

going to kill me, and I seen that on his face.” (Doc. 6-2 at 68-69) 

Dickinson did not testify, called no witnesses, and argued that this was a case of 

mistaken identity. During the discussion about jury instructions, conducted without the 

jury present, the Superior Court described attempted second degree murder to counsel as 

“conduct [that] will cause death or serious physical injury.” (Doc. 6-3 at 112:11-13) 

Later, the Judge told the lawyers, “I wouldn’t be shocked if they didn’t find [him guilty 

of attempted second degree murder]; but I believe there’s sufficient evidence to allow the 

case to go forward on the charge of attempted second degree murder.” (Doc. 6-3 at 

113:1-4) Subsequently, the Judge informed the parties that he had drafted the jury 

instruction.1

 (Doc. 6-3 at 127-129) As relevant here, the Dickinson’s trial counsel did 

not object to the attempted second degree murder jury instruction. (Doc. 6-3 at 133-137) 

 1

 When discussing the instruction, the Judge cited to the right case, State v. 

Ontiveros, 81 P.3d 330 (Ariz. App. 2003), but read it to stand for the opposite conclusion: 

Ontiveros holds “that there is no offense of attempted second-degree murder based on 

knowing merely that one's conduct will cause serious physical injury. The offense of attempted second-degree murder requires proof that the defendant intended or knew that 

his conduct would cause death.” Id. at 333, ¶ 14. 
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The Court read the following to the jury: 

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. 

(emphasis added). (Doc. 6-3 at 145:17-20) 

At the end of a three day trial in Mohave County Superior Court, a jury found 

Dickinson guilty of multiple felonies, including attempted second degree murder. (Doc. 

6-3 at 211, Ex. E) Subsequently, Dickinson was sentenced to consecutive sentences 

totaling 14 years. (Doc. 6-4 at 21-26) 

 On direct appeal to the Arizona Court of Appeals, Dickinson was represented by 

counsel who argued only that the attempted second degree murder jury instruction was 

incorrect as a matter of law. (Doc. 6-4 at 76, Ex. L) Because Dickinson’s trial counsel 

had not objected to the jury instruction, the Court of Appeals reviewed for fundamental 

error. (Doc. 6-4 at 149, Ex. O at ¶ 10) Under fundamental error analysis, Dickinson had 

“the burden to establish that “(1) error exists, (2) the error is fundamental, and (3) the 

error caused him prejudice.” (Doc. 6-4 at 149, Ex. O at ¶ 10) First, the Court of Appeals 

concluded that the jury instruction was erroneous because, under Arizona law, “attempted 

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

or knew that the conduct would cause death.” (Doc. 6-4 at 149, Ex. O at ¶ 11) 

 Next, the Court noted that it had previously “stated that instructing a jury on a 

non-existent theory of criminal liability is fundamental error” and concluded that, “under 

the facts and circumstances of this case, the error complained of was fundamental 

because it goes to the foundation of the case.” (Doc. 6-4 at 150, Ex. O at ¶ 12) 
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 Finally, the Court turned to the prejudice prong. Under Arizona law, Dickinson 

had to “affirmatively prove prejudice and [could] not rely upon speculation to carry his 

burden. To prove prejudice Dickinson [had to] show that a reasonable, properly 

instructed jury could have reached a different result.” (Doc. 6-4 at 150, Ex. O at ¶ 13) 

After a detailed review of the parties’ theories, the evidence received at trial, and the 

parties arguments to the jury, the Court of Appeals concluded that Dickinson had not 

been prejudiced by the error and, therefore, was not entitled to relief: 

The State’s theory was that Dickinson intended to kill the victim; 

Dickinson's defense was mistaken identity and that he was not

involved in the charged conduct in any respect. Neither of these 

competing views suggests that Dickinson intended to cause serious 

injury to the victim (as opposed to kill him), which is the fundamental error in the jury instructions. Based on the particular facts of this case—including the State’s theory, Dickinson’s defense, the evidence and the parties’ arguments to the jury—Dickinson has failed to prove resulting prejudice from the fundamental error in the jury instruction. Henderson, 210 Ariz. at 568, ¶¶ 23-24, 26, 115 P.3d at 608. Accordingly, Dickinson's claim of fundamental, prejudicial error 

fails.

(Doc. 6-4 at 154, Ex. O at ¶ 22). 

 The Arizona Supreme Court denied the cross-petitions for review filed by the 

State and by Dickinson. (Doc. 6-4, Exs. P, Q, R, S, T) It appears that neither side 

petitioned the United States Supreme Court for certiorari. (Doc. 1 at 3) 

 Dickinson timely initiated post-conviction relief and, through counsel (“PCR 

Counsel”), alleged that he had received ineffective assistance of counsel because (1) his 

trial counsel had not called Dickinson to testify on his own behalf and because (2) trial 

counsel had not addressed statements made by the victim. (Doc. 6-5 at 16-17, Ex. U; Ex. 

V) As relevant here, PCR Counsel did not raise any ineffective assistance of trial counsel 

claims related to the jury instruction. The Superior Court concluded that Dickinson had 

“not made a colorable claim for relief” on either of these claims and denied relief. (Doc. 

6-5 at 22, 23, Ex. W) 

 Dickinson then filed a second, pro se notice of post-conviction relief that alleged 

post-conviction counsel was ineffective for “failing to file any meritorious claims” but 
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did not explain what the meritorious claims would have been. (Doc. 6-5 at 29-20, Ex. X) 

The Superior Court denied relief concluding that Dickinson “was not entitled under 

[Arizona] law to effective assistance of counsel on his first Rule 32 proceeding.” (Doc. 

6-5 at 34, Ex. Y) 

 Dickinson filed two Petitions for Review with the Arizona Court of Appeals, one 

for each of his denied notices of post-conviction relief. In both cases, the Court of 

Appeals granted review but denied relief. (Doc. 6-5 at Exs. Z, AA, BB, CC) 

 Dickinson timely initiated habeas relief. His Petition raises two claims for relief: 

(1) the incorrect jury instruction was prejudicial and (2) he received ineffective assistance 

of counsel because trial counsel had not objected to the flawed jury instruction (“IATC 

Claim”). (Doc. 1 at 5, 6) Respondents contend that the Petition contains only claims that 

cannot be reviewed because they are unexhausted and subject to a procedural default 

without exception. (Doc. 6) In his reply, Dickinson explains that he filed his second 

PCR “in hopes of trying to preserve my claim of ineffective trial counsel” under Martinez 

v. Ryan, 566 U.S. 1 (2012), and Detrich v. Ryan, 740 F.3d 1237 (2013). (Doc. 8 at 4) 

The Petition’s IATC claim appears to be procedurally defaulted.

 First, undersigned is inclined to agree with Respondents that the Petition’s IATC 

Claim is procedurally defaulted. (Doc. 6 at 14) For the reasons below, undersigned is 

inclined to recommend such in a report and recommendation to the United States District 

Judge. 

 Legal Standard. A state prisoner must properly exhaust all state court remedies 

before this Court can grant an application for a writ of habeas corpus. 28 U.S.C. § 

2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 

U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly 

presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. 

O’Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 

1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). To be fairly 

presented, a claim must include a statement of the operative facts and the specific federal 
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legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 

152, 162-63 (1996); Duncan, 513 U.S. at 365-66. 

 An implied procedural bar exists if a claim was not fairly presented in state court 

and no state remedies remain available to the petitioner. Teague v. Lane, 489 U.S. 288, 

298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 

975, 987 (9th Cir. 2002); Poland v. Stewart, 169 F.3d 573, 586 (9th Cir. 1999); White v. 

Lewis, 874 F.2d 599, 602 (9th Cir. 1989).

 Analysis. The Court’s review of Dickinson’s post-conviction papers indicates that 

his post-conviction counsel never raised the Petition’s IATC Claim, namely that trial 

counsel should have objected to the jury instruction. (Doc. 1 at 6) 

Because this claim was never raised, it was not exhausted. The IATC Claim is 

now subject to an implied procedural bar because it was not fairly presented in state court 

and no state remedies remain available to Dickinson because he is now precluded or 

time-barred from raising his claims in a successive and untimely Rule 32 petition under 

Arizona Rules of Criminal Procedure 32.1(d)-(h), 32.2(a) & (b), or 32.4(a). 

Does Martinez excuse the procedural default? 

Dickinson argues that he is entitled to relief under Martinez v. Ryan, 566 U.S. 1 

(2012). (Doc. 8 at 4) For the reasons below, undersigned is inclined to recommend such 

in a report and recommendation to the United States District Judge. 

 Legal Standard. This Court can review a procedurally defaulted claim if the 

petitioner can demonstrate either cause for the default and actual prejudice to excuse the 

default, or a miscarriage of justice. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 

298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 

(1986); United States v. Frady, 456 U.S. 152, 167-68 (1982). 

Under the Supreme Court’s ruling in Martinez, Dickinson could demonstrate 

cause and prejudice sufficient to excuse his procedurally defaulted IATC Claim if he can 

(1) demonstrate that he received ineffective assistance of post-conviction counsel and 

also (2) demonstrate the merits of his underlying ineffective assistance of trial counsel 
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claim. 566 U.S. at 11. As articulated by the Ninth Circuit, the test is as follows: 

First, to establish “cause,” he must establish that his counsel in the state 

postconviction proceeding was ineffective under the standard of Strickland. Strickland, in turn, requires him to establish that both (a) post-conviction 

counsel’s performance was deficient, and (b) there was a reasonable 

probability that, absent the deficient performance, the result of the post- conviction proceedings would have been different. See Strickland, 466 

U.S. at 687, 694, 104 S. Ct. 2052. Second, to establish “prejudice,” he 

must establish that his “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.” Martinez, 132 S. Ct. at 1318. 

Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014). 

 Analysis. The logical starting point for unraveling the layers of a Martinez claim 

is a merits analysis of the underlying IATC Claim. Here, Dickinson’s trial counsel never 

objected to the legally erroneous jury instruction for attempted second degree murder. As 

a result, the erroneous jury instruction was given and Dickinson was subsequently 

convicted of attempted second degree murder. 

Trial counsel’s failure to object changed the appellate standard of review. If he 

had objected, the Court of Appeals would have reviewed for harmless error which would 

have meant that the State had the burden “to prove beyond a reasonable doubt that the 

error did not contribute to or affect the verdict or sentence.” Ariz. v. Henderson, 115 P.3d 

601, 607, ¶ 18 (Ariz. 2005). Instead, because trial counsel did not object, the Court of 

Appeals reviewed the jury instruction claim for fundamental error and so the burden 

shifted to Dickinson to show that error existed, the error was fundamental, and the error 

caused him prejudice.

Thus, the question is whether the different standard of review impacted the 

outcome of the direct appeal. The Arizona Court of Appeals concluded that the error in 

Dickinson’s attempted second degree murder jury instruction was fundamental. “By its 

very nature, fundamental error is usually not ‘harmless.’” Ariz. v. Corrales, 676 P.2d 

615, 627 (Ariz. 1983). However, the analysis remains case specific. Id. Here, the 

erroneous jury instruction expanded attempted second degree murder from correctly 

requiring the jury to find that Dickinson intended or knew that his conduct would cause 
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death to incorrectly allowing the jury to find him guilty if he intended or knew that his 

conduct would cause serious physical injury. If it is clear that the jury relied on the 

correct portion of the jury instruction, namely conduct that would cause death, then the 

erroneous jury instruction would almost certainly satisfy the harmless error standard. 

The Court has reviewed all of the trial transcripts and concludes that very little of 

the received evidence2

 indicated that Dickinson intended or knew that his conduct would 

cause the victim’s death. (Docs. 6-1, 6-2, 6-3) Moreover, the Court further notes that the 

Superior Court judge was skeptical that a jury would convict Dickinson on this count. 

Thus, it seems likely that the jury relied on the erroneous portion of the instruction to find 

Dickinson guilty. Put another way, this Court cannot confidently say that the jury 

instruction error was harmless. 

From this flows what appears to be the inevitable conclusion that the different 

standard of appellate review was dispositive in determining the outcome of Dickinson’s 

jury instruction claim on direct appeal. Thus, if trial counsel had objected to the jury 

instruction, Dickinson may well have been entitled to relief from the Arizona Court of 

Appeals. As a result, the Court is inclined to conclude that the IATC Claim has merit and 

so the claim is “substantial” for purposes of the second prong of Martinez. 

By extension, concluding that the IATC Claim has merit would also mean that 

Dickinson can satisfy the first prong of Martinez, namely that he received ineffective 

assistance of PCR counsel. PCR Counsel failed to raise the IATC Claim and, based on 

the Court analysis above, there is a “reasonable probability that, absent the deficient 

performance, the result of the post-conviction proceedings would have been different.” 

Clabourne, 745 F.3d at 377. 

Because the Court is inclined to recommend that Dickinson has satisfied both 

prongs of the Martinez analysis, the Court’s report and recommendation to the United 

States District Judge should also address the merits of the procedurally defaulted IATC 

Claim. Thus, the Court will permit the parties to submit supplemental briefing on the 

 2

 The jury heard videos that were not transcribed but were subsequently referenced by the State in closing. (Doc. 6-3 at 101:9-14) 
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merits of the IATC claim for trial counsel’s failure to object to the jury instruction. 

Also, for the reasons above, it may be in the interests of justice that Petitioner be 

appointed counsel pursuant to 18 U.S.C. § 3006A(a)(2)(B) for this supplemental briefing 

stage of the proceedings. 

Accordingly, 

IT IS ORDERED that within 30 days of the date of this Order, Respondents shall 

file a Supplemental Answer on the merits of the Petition’s ineffective assistance of trial 

counsel claim. Petitioner may file a supplemental reply within 21 days after the 

Supplemental Answer is filed. 

IT IS FURTHER ORDERED if Petitioner seeks appointment of counsel at this 

stage of the proceedings, then Petitioner shall file a motion requesting such within 21 

days of the date of this Order. 

 Dated this 12th day of July, 2018.