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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Tony Lamar Reed, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV 16-00001-PHX-DJH (DMF)

REPORT AND 

RECOMMENDATION 

 

TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT 

JUDGE: 

 Petitioner Tony Lamar Reed (“Petitioner” or “Reed”) filed a pro se Petition for 

Writ of Habeas Corpus (“Petition”) on January 4, 2016 (Doc. 1). Respondents filed an 

answer (Doc. 10), followed by Petitioner’s reply (Doc. 11). 

As is explained below, the Court recommends that the Petition be denied and 

dismissed with prejudice because: (1) Ground One lacks merit; and (2) Grounds Two, 

Three and Four are barred from habeas review because each was procedurally defaulted, 

and Petitioner has not established cause and prejudice for the default or established actual 

innocence. 

I. BACKGROUND 

A. Summary of Trial, Direct Appeal and Post-Conviction Relief 

 Proceedings 

Petitioner’s indictment charged him with counts of aggravated robbery, 

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kidnapping, second degree burglary, and aggravated assault. (Doc. 10-1 at 4-6)1 The 

charges arose when Petitioner was arrested after being identified as a suspect in alleged 

crimes against the victim at the victim’s home. (Doc. 10-1 at 90-91)2

 These allegations 

include that Petitioner and his girlfriend pushed through a door left ajar into the victim’s 

apartment, shut the door and demanded that the victim surrender his cell phone and the 

cash in his wallet. (Id. at 90) It was further alleged that Petitioner ordered the victim to sit 

down, and the victim refused and told Petitioner to leave. (Id. at 91) The victim testified 

that Petitioner then hit him hard in the head, causing the victim to fall onto a chair, and 

that Petitioner continued to beat the victim until he fell onto the floor. (Id.) The victim 

reported that Petitioner and his girlfriend then left, locking the apartment door behind 

them. (Id.) The victim said he remained on his apartment floor for the rest of that night 

and all of the next day and night, drifting in and out of consciousness, unable to call for 

help or move from the floor. (Id.) The victim was eventually able to alert his neighbors to 

his circumstances, and police officers were called to gain entry to his apartment and 

begin to obtain medical care for him. (Id.) The victim said he had been acquainted with 

Petitioner and his girlfriend previous to the crime, as people he had encountered in his 

neighborhood. (Id.) 

 Petitioner was convicted by jury in the Maricopa County Superior Court on each 

count of his indictment. (Doc. 10-1 at 20-23) He was sentenced to 15 years’ 

imprisonment on each of the robbery, burglary, and assault charges, and to 18 years’ 

imprisonment on the kidnapping charge, all sentences to run concurrently. (Id. at 53-57). 

Appointed counsel for Petitioner’s direct appeal “found no arguable issue of law 

that is not frivolous.” (Id. at 77). Petitioner then filed a supplemental petition in propria 

persona. (Id. at 83) On January 14, 2014, the Arizona Court of Appeals affirmed 

 

1

 Respondents included a list of exhibits with their Answer. (Doc. 10-1 at 22-23) 

The document and page references used herein for those exhibits are to this Court’s 

electronic record. 

2

 This brief summary of the allegations against Petitioner is derived from the Arizona Court of Appeals’ statement of facts in its memorandum decision in Petitioner’s 

direct appeal of his convictions and sentence. 

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Petitioner’s convictions and sentences. (Id. at 89-94; State v. Reed, No. 1-CA-CR 13-

0101, 2014 WL 311971, at *4 (Ariz. App. Jan. 28, 2014)). Reed’s petition for review to 

the Arizona Supreme Court was denied. (Doc. 10-1 at 101) Petitioner’s appointed counsel 

for his Petition for Post-Conviction Relief (“PCR”) filed a notice of completion of review 

stating she was not able to identify a colorable issue pursuant to Rule 32 of the Arizona 

Rules of Criminal Procedure. (Id. at 123) Reed subsequently filed a pro se petition for 

PCR (Id. at 106-118), which was denied by the trial court for failure to raise a colorable 

claim (Id. at 166-169). 

 The record indicates that Reed filed a “Petition to Appeal Rule 32.1 and 32.8 

Decision” with the trial court (Doc. 10-1 at 171-176), but there is nothing in the record to 

suggest that he filed a petition for review with the Arizona Court of Appeals. See footnote 

3, infra. 

B. Issues Raised On Direct Appeal 

As noted, Petitioner’s appointed counsel on direct appeal of his convictions and 

sentencing filed a brief advising the appellate court he was unable to identify any 

“arguable question of law that is not frivolous[,]” citing Anders v. California, 386 U.S. 

738 (1967). (Doc. 10-1 at 77) He indicated he had also filed a motion for leave for 

Petitioner to file a supplemental brief in propria persona. (Id.) 

 In his supplemental brief, Petitioner stated that he wished to bring before the 

Arizona Court of Appeals the following evidence and issues: (1) the victim had stated in 

a police report that Petitioner had gone through the victim’s kitchen cabinets, but police 

investigators “never took fingerprints or even DNA samples”; (2) no medical testimony 

was introduced “that one punch in the face can cause an individual to be paralyzed”; (3) 

“I would like to know what type of prescription medication the victim was on, because he 

had been consuming alcohol the majority of the day”; (4) “the Police never found any of 

the victim’s possessions on [co-defendant] or myself”; (5) “in the police report the victim 

claims he was punched once in the face, then took the stand and claimed he was punched 

several times”; (6) that the victim’s initial statement to the police was at odds with his 

testimony at trial regarding his girlfriend coming to his door while he was incapacitated; 

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(7) “being in a fist fight [and] not being able to move does not constitute kidnapping”; (8) 

defense counsel “failed to let the jury understand that [the victim] perjured himself on the 

stand”; and (9) I [have serious mental illness], Social Security pays me monthly for 

mental disability. Equitable tolling and Atkins claim.” (Doc. 10-1 at 83-86) 

 The Arizona Court of Appeals affirmed Petitioner’s convictions and sentences in a 

reasoned opinion. (Doc. 10-1 at 89-94) The court held that the victim’s identification of 

Petitioner from a photo lineup and at trial was sufficient evidence to establish that 

Petitioner was the culprit, and that no rule or caselaw requires the State to collect 

fingerprint or DNA evidence. (Id. at 92) The court set forth the required elements for 

Petitioner’s charged offenses and found that the State had presented sufficient evidence to 

support each of his convictions. (Id. at 92-93) Regarding Petitioner’s issue involving his 

mental illness, equitable tolling, and an “Atkins claim,” the court reasoned: 

[w]e take [Petitioner] to be arguing that he was not competent to stand trial 

and that his sentences were prohibited under the Eighth Amendment and 

Atkins v. Virginia, 536 U.S. 304 (2002). Nothing in the record supports 

[Petitioner’s] arguments. [Petitioner] was present and represented by 

counsel at all critical stages, and his competency was never disputed. His 

history of mental illness was properly considered as a mitigating factor at 

sentencing. 

(Id. at 93) 

 C. PCR Proceedings 

In his petition for PCR to the Maricopa County Superior Court, Reed argued: (1) 

his convictions were not supported by substantial evidence; and (2) that he received 

ineffective assistance of trial and appellate counsel regarding the alleged failures to 

interview Petitioner’s accomplice, to effectively cross-examine the victim regarding prior 

inconsistent statements, to ask police investigators to check for fingerprints and DNA 

evidence, or to move to suppress the victim’s unreliable testimony; and (3) that the State 

introduced false testimony from the victim. (Id. at 110-118) 

On July 21, 2015, the PCR court dismissed Reed’s petition, and found: (1) that his 

arguments respecting the sufficiency of the evidence and the victim’s credibility were 

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decided by the Arizona Court of Appeals on direct appeal and therefore were precluded 

under Arizona Rules of Criminal Procedure, Rule 32.2; (2) that he had failed to establish 

either prong of the test for ineffective assistance of counsel set forth in Strickland v. 

Washington, 466 U.S. 671, 687 (1984) regarding his trial counsel’s representation; (3) 

that he had not asserted any argument or provided facts to support his claim of ineffective 

assistance of his appellate counsel; and (4) that Petitioner had failed to support his 

argument that the State had presented perjured testimony from the victim. (Id. at 166-

168)

 Petitioner did not file either a motion for reconsideration or a petition for review 

with the Arizona Court of Appeals.3

 Reed’s timely Petition for Writ of Habeas Corpus 

followed. (Doc. 1) 

II. PETITIONER’S HABEAS CLAIMS 

Petitioner raises four grounds for relief. In Ground One, Petitioner alleges that the 

evidence at trial was not sufficient to sustain his guilty verdict. (Doc. 1 at 6) Among the 

defects in the evidence alleged by Petitioner were that the police did not find any of the 

victim’s possession on him when he was arrested, the existence of inconsistencies 

between the victim’s statement to police and his testimony at trial, and the failure of the 

police to test the victim’s apartment for fingerprints and DNA evidence. (Id.) 

 In Ground Two, Petitioner asserts he received ineffective assistance of counsel “at 

all stages of [his] criminal proceeding.” (Id. at 7) As examples of the ineffective 

representation, Petitioner states that his trial counsel failed to interview his accomplice, 

who he alleged had wished to testify on his behalf. (Id.) Petitioner explains that he is no 

longer able to obtain an affidavit from the accomplice that could support this claim. (Id.) 

 

3

 On November 4, 2015, Reed filed with the Superior Court a “Petition to Appeal Rule 32.1 and 32.8 Decision.” If this was intended to serve as a petition for review of the trial court’s dismissal of his PCR action, this document was filed with the wrong court (it should have been filed with the Arizona Court of Appeals), and it was filed well past the deadline required by Arizona Rules of Criminal Procedure, Rule 32.9(c) which provides: “Within thirty days after the final decision of the trial court on the petition for post- conviction relief or the motion for rehearing, any party aggrieved may petition the appropriate appellate court for review of the actions of the trial court.” Reed does not 

provide any argument about or even mention this filing.

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Petitioner reasserts his argument that trial counsel was not effective in cross-examining 

the victim so that the jury could have understood that the victim was lying. (Id.) He 

further complains, without explanation or argument, that his counsel did not request a 

Dessureault hearing. (Id.) 

In Ground Three, Petitioner alleges negligent investigation by the Phoenix Police 

Department because they did not test for fingerprints or DNA in the victim’s apartment, 

and did not record their interview with the victim. (Id. at 8) 

Petitioner’s Ground Four alleges a due process violation involving judicial 

misconduct, vindictive prosecution, and prosecutorial misconduct. (Id. at 9) Petitioner 

asserts these claims are supported by the State’s questioning of the victim and the court’s 

allowing the victim’s testimony to be admitted when the victim was lying. (Id.) He also 

seems to argue that these claims are supported by the police department’s failure to 

“preserve” evidence, presumably referring to their failure to test for DNA and fingerprint 

evidence. (Id.) 

III. LEGAL ANALYIS 

A. Exhaustion/Procedural Bar 

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). 

In addition to being presented in the proper forum, a petitioner’s claims must be 

“fairly presented.” Baldwin v. Reese, 541 U.S. 27, 29 (2004). In other words, a petitioner 

must provide the state court “with an opportunity to apply controlling legal principles to 

the facts bearing upon his [federal] constitutional claim.” Picard v. Connor, 404 U.S. 

270, 277 (1971) (citation and internal quotation marks omitted). To be fairly presented, a 

claim must include a statement of the operative facts and the specific federal legal theory. 

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Baldwin, 541 U.S. at 32-33; Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Duncan, 

513 U.S. at 365-66; Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“The mere 

similarity between a claim of state and federal error is insufficient to establish 

exhaustion.”). 

A claim can also be subject to an express or implied procedural bar. Robinson v. 

Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express procedural bar exists if the state 

court has denied or dismissed a claim based on a procedural bar “that is both 

‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s 

decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 

(2002) (Arizona’s “Rule 32.2(a)(3) determinations are independent of federal law 

because they do not depend upon a federal constitutional ruling on the merits”); Johnson 

v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state strictly 

or regularly follows its procedural rule). See also Ylst v. Nunnemaker, 501 U.S. 797, 801 

(1991); Robinson, 595 F.3d at 1100. 

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). This Court may 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. 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); 

States v. Frady, 456 U.S. 152, 167-68 (1982). “Cause” is a legitimate excuse for the 

procedural default; “prejudice” is the actual harm that results from an alleged 

constitutional violation. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). If cause is 

not found, there is no need to establish whether there was prejudice. Id. at n.10. 

The miscarriage of justice exception to procedural default “is limited to those 

extraordinary cases where the petitioner asserts his [actual] innocence and establishes 

that the court cannot have confidence in the contrary finding of guilt.” Johnson v. 

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Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the 

actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence 

of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 

(1998); Jaramillo v. Stewart, 340 F.3d 877, 882–83 (9th Cir. 2003). To prove a 

“fundamental miscarriage of justice,” a prisoner must establish that, in light of new 

evidence, “it is more likely than not that no reasonable juror would have convicted him.” 

Schlup v. Delo, 513 U.S. 298, 327 (1995). 

B. 28 U.S.C. § 2254 Habeas Petition – Legal Standard of Review 

 On habeas review, this Court can only grant relief if the petitioner demonstrates 

the adjudication on the merits of a claim by a state court either “(1) resulted in a decision 

that was contrary to, or involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a 

decision that was based on an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). This is a 

“’highly deferential standard for evaluating state court rulings’ which demands that state 

court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 

(2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)).

C. Assertion of federal law basis for Petitioner’s grounds for relief

Nowhere within Reed’s Petition does he mention that the claims he asserts are “in 

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 

2254(a); (Doc. 1). Moreover, Petitioner did not provide a federal basis in state court for 

any of the grounds asserted in his Petition except his ineffective assistance of counsel 

argument asserted in his PCR action, which he subsequently failed to exhaust, as is 

discussed below. In their answer, Respondents do not argue Reed’s failure to assert a 

federal law basis in his Petition, or his failure to fairly present his claims as grounds for 

denial. (Doc. 10) 

D. Grounds Two through Four are procedurally defaulted without cause 

 Petitioner did not exhaust his Ground Two claim of ineffective assistance of 

counsel in his PCR action, because he failed to file a petition for review with the Arizona 

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Court of Appeals. Accordingly, he did not afford the state courts “one full opportunity to 

resolve” this constitutional issue by completing “one complete round of the State’s 

established appellate review process.” O’Sullivan, 526 U.S. at 845. See also Swoopes, 

196 F.3d at 1010. This unexhausted claim is procedurally defaulted because it is timebarred under Arizona law. Beaty, 303 F.3d at 987. 

 Petitioner did not assert his Ground Three claim of negligent investigation by the 

Phoenix Police Department in his direct appeal. Further, he could not have raised this 

claim in his PCR action because it would have been precluded pursuant to Arizona Rules 

of Criminal Procedure 32.2(a)(1) as raisable on direct appeal. Similarly, Petitioner did not 

raise his Ground Four claim involving judicial misconduct, vindictive prosecution, and 

prosecutorial misconduct on direct appeal, and would have been precluded from raising it 

in his subsequent PCR action. These claims are also procedurally defaulted. 

 As noted, this Court may review Petitioner’s procedurally defaulted claims 

through a showing of either cause for the default and actual prejudice to excuse the 

default, or a factual showing of actual innocence. Schlup, 513 U.S. at 321. Petitioner does 

not argue cause for his default, and the record does not suggest that cause exists. 

Similarly, although Petitioner argues that inconsistencies in the victim’s statements, the 

police investigation, and his trial counsel’s representation all undermine the legal 

sufficiency of his convictions and sentences, he does not establish his factual innocence 

of the crime. 

E. Ground One argument on the insufficiency of the evidence lacks merit. 

In Ground One, Petitioner argues that the evidence was insufficient to sustain his 

guilty verdict. He asserts that: (1) the police did not find the victim’s stolen items on the 

Petitioner; (2) the police did not attempt to take fingerprint or DNA evidence from the 

victim’s apartment; and (3)(a) the police report states that the victim said he was punched 

once in the face, that after the robbery and assault he walked around his apartment before 

he fell asleep, and that he did not answer the door when his girlfriend came by the day 

after the assault because he did not wish to get her involved, while (3)(b) the victim’s 

trial testimony was that he was punched repeatedly, that he fell to the floor after the 

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assault and remained there, and that he did not call out to his girlfriend when she came by 

because he was too weak. (Doc. 1 at 6) 

Addressing Petitioner’s claim on direct appeal, the Arizona Court of Appeals first 

set forth the required elements the State was required to prove on each of the counts on 

which Petitioner was charged. (Doc. 10-1 at 92-93) Next, the court found that: 

[t]he state presented sufficient evidence on all of the charges. The state 

presented evidence that [Petitioner] and a companion entered [the victim’s] 

apartment without invitation and took [the victim’s] money and cell phone, 

that [Petitioner] hit [the victim] when [the victim] resisted an order, that 

[Petitioner] eventually beat [the victim] to the floor, and that [Petitioner] 

and his companion left [the victim] lying injured on the floor and locked 

the door behind them. To be sure, as [Petitioner] suggests, “being in a fist 

fight not being able to moved” [sic] may not always constitute kidnapping. 

But here, the state presented evidence that [Petitioner] severely beat [the 

victim] until he was immobile and then locked him in his apartment, and 

we have no difficulty affirming [Petitioner’s] conviction for kidnapping. 

And contrary to [Petitioner’s] contention, medical testimony was not 

required to show that [the victim’s] injuries rendered him unable to move – 

[the victim’s] testimony was sufficient. 

(Doc. 10-1 at 93 ¶14) 

 The United States Supreme Court instructs that a petitioner challenging his state 

criminal conviction pursuant to 28 U.S.C. § 2254 on the sufficiency of the evidence is 

“entitled to habeas corpus relief if it is found that upon the record evidence adduced at the 

trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” 

Jackson v. Virginia, 443 U.S. 307, 324 (1979). If the record supports conflicting 

inferences, a federal habeas court “must presume – even if it does not affirmatively 

appear in the record – that the trier of fact resolved any such conflicts in favor of the 

prosecution, and must defer to that resolution.” Id. at 326. Moreover, in federal habeas 

actions, such claims are subjected to a double layer of judicial deference: 

First, on direct appeal, “it is the responsibility of the jury – not the court – 

to decide what conclusions should be drawn from evidence admitted at 

trial. A reviewing court may set aside the jury’s verdict on the ground of 

insufficient evidence only if no rational trier of fact could have agreed with 

the jury. Cavazos v. Smith, 565 U.S, 1, __, 132 S.Ct. 2, 4 (2011) (per 

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curiam). And second, on habeas review, “a federal court may not overturn a 

state court decision rejecting a sufficiency of the evidence challenge simply 

because the federal court disagrees with the state court. The federal court 

instead may do so only if the state court decision was ‘objectively 

unreasonable.’” Ibid. (quoting Renico v. Left, 559 U.S. 766, __, 130 S.Ct. 

1855, 1862 (2010). 

Coleman v. Johnson, 566 U.S. 650, ___, 132 S.Ct. 2060, 2062 (2012). 

 The Court has reviewed the entire trial record. (Doc 10-2, 10-3) This record could 

support conflicting inferences on some issues. However, applying the presumption that 

the jury resolved any conflict in favor of the prosecution, it cannot be concluded that no 

rational trier of fact could have found Petitioner guilty beyond a reasonable doubt. 

Petitioner has failed to establish that the state court’s adjudication of this claim was 

contrary to, or involved an unreasonable application of federal law, or that it was based 

on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). 

IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas 

Corpus be denied and dismissed with prejudice. 

IT IS FURTHER RECOMMENDED that a Certificate of Appealability be 

denied because dismissal of the Petition is justified by a plain procedural bar and jurists 

of reason would not find the ruling debatable. 

 This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 

Appellate Procedure, should not be filed until entry of the District Court’s judgment. The 

parties shall have fourteen (14) days from the date of service of a copy of this 

recommendation within which to file specific written objections with the Court. See 28 

U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the 

parties have fourteen (14) days within which to file a response to the objections. Failure 

to timely file objections to the Magistrate Judge’s Report and Recommendation may 

result in the acceptance of the Report and Recommendation by the district court without 

further review. See United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 

Failure to timely file objections to any factual determinations of the Magistrate Judge will 

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be considered a waiver of a party’s right to appellate review of the findings of fact in an 

order or judgment entered pursuant to the Magistrate Judge’s recommendation. See Rule 

72, Federal Rules of Civil Procedure. 

 Dated this 7th day of February, 2017. 

Honorable Deborah M. Fine

United States Magistrate Judge

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