State v. Kashkool

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

RASOOL ADNAN KASHKOOL, Petitioner.

No. 1 CA-CR 23-0577 PRPC
FILED 02-27-2025

Petition for Review from the Superior Court in Maricopa County
No. CR2012-111986-001
The Honorable David W. Garbarino, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert A. Walsh
Counsel for Respondent

Rasool Adnan Kashkool, Sun City
Petitioner
 STATE v. KASHKOOL
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey, Vice Chief Judge Randall M. Howe, and
Judge Andrew M. Jacobs delivered the decision of the court.

PER CURIAM:

¶1 Rasool Adnan Kashkool petitions this court for review from
the dismissal of his petition for post-conviction relief filed under Arizona
Rule of Criminal Procedure 32. We have considered the petition for review
and, for the reasons stated, grant review and deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 A jury convicted Kashkool of fraudulent schemes and
artifices based on evidence he sold three vehicles to three victims by making
false representations about the vehicles’ mileage—including by altering the
vehicles’ odometers. The superior court placed him on a five-year term of
probation, to begin after completion of a prison sentence imposed in a
separate case.

¶3 On direct appeal, Kashkool’s attorney filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), avowing he could find no colorable argument to raise. Kashkool
filed a pro se supplemental brief, raising issues of insufficient evidence,
double jeopardy, evidentiary errors, and incompetence to stand trial. We
affirmed. State v. Kashkool, 1 CA-CR 18-0464, 2020 WL 1313318 (Ariz. App.
Mar. 19, 2020) (mem. decision).

¶4 Kashkool timely requested post-conviction relief, raising
claims that both trial and appellate counsel provided ineffective assistance
in multiple respects. After holding a status conference to address whether
an evidentiary hearing was needed, the superior court decided one was not
and summarily dismissed Kashkool’s petition.

¶5 Kashkool petitions for review, challenging the dismissal of his
claims that trial and appellate counsel provided ineffective assistance by
not raising the issue of double jeopardy, and that appellate counsel

2
 STATE v. KASHKOOL
Decision of the Court

provided ineffective assistance by not raising the denial of his Batson1
challenge to the State’s use of peremptory strikes during voir dire.2 We
grant review. See A.R.S. § 13-4239; Ariz. R. Crim. P. 32.16.

DISCUSSION

¶6 We review the dismissal of a petition for post-conviction relief
for an abuse of discretion, “which occurs if the court makes an error of law
or fails to adequately investigate the facts necessary to support its decision.”
State v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021).

¶7 To state a colorable claim of ineffective assistance of counsel,
Kashkool “must show both that counsel’s performance fell below
objectively reasonable standards and that this deficiency prejudiced [him].”
State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).

¶8 Kashkool first argues that trial and appellate counsel
performed deficiently by not challenging his prosecution on the ground of
double jeopardy. In 2011, before the State indicted him, it filed a
misdemeanor case against him in justice court. The case was dismissed
“based on [a] pending civil sanction for [the] same acts”—which was later
imposed as a $3,000 civil penalty. In 2007, the State apparently arrested
Kashkool for misdemeanors relating to altered odometers. But the charges
were dismissed when the State did not file a complaint. Kashkool contends
his prosecution for fraudulent schemes and artifices was barred by double
jeopardy because the same acts underlay both that conviction and the
earlier proceedings. See State v. Carter, 249 Ariz. 312, 315, ¶ 7 (2020)
(observing that double jeopardy protections prohibit the State from trying
or punishing a defendant more than once for the same offense); U.S. Const.
amend. V; Ariz. Const. art. 2, § 10.

¶9 When Kashkool raised the double jeopardy issue on direct
appeal, this court rejected the claim because the earlier charges were
dismissed without prejudice to the commencement of another prosecution
and the civil penalty did not implicate double jeopardy. Kashkool, 1 CA-CR
18-0464, at *4, ¶¶ 22–23. Kashkool asserts that this court’s decision does not

1 Batson v. Kentucky, 476 U.S. 79 (1986).

2 Kashkool does not raise, and therefore waives review of, additional
ineffective assistance claims pertaining to restitution and his motion to
vacate judgment. See Ariz. R. Crim. P. 32.16(c)(4).

3
 STATE v. KASHKOOL
Decision of the Court

dispose of his ineffective assistance claim because the statute of limitations
would have prevented the misdemeanor charges from being refiled.

¶10 The superior court permissibly dismissed Kashkool’s claim
because neither trial nor appellate counsel could have made a viable double
jeopardy argument. First, our reasons for rejecting Kashkool’s double
jeopardy claim on direct appeal remain valid. Even if the statute of
limitations would have prevented the State from refiling misdemeanor
charges, that did not trigger double jeopardy protection against the filing
of a different, felony charge, with a longer limitations period. Kashkool also
fails to establish that the earlier proceedings involved the same acts
underlying his fraudulent schemes and artifices conviction. The record
shows that the 2011 misdemeanor case was based on Kashkool acting as an
unlicensed motor vehicle dealer. Even though the 2007 charges related to
altered odometers, those charges necessarily arose from different conduct
than Kashkool’s offense here—which he committed in 2010.

¶11 Kashkool also argues appellate counsel provided ineffective
assistance by not challenging the superior court’s denial of his Batson
challenge at trial. During voir dire, Kashkool challenged the State’s four
peremptory strikes of minority jurors under Batson. The prosecutor
explained that he struck the jurors because they were unemployed or held
low-level jobs and two had family members who had committed crimes.
The superior court denied the Batson challenge as to all four jurors.

¶12 We find no abuse of discretion in the dismissal of Kashkool’s
ineffective assistance claim because he has not shown “a reasonable
probability that [the Batson claim] would have succeeded on appeal.”
Bennett, 213 Ariz. at 568, ¶ 25. An appellate court views the superior court’s
findings on a Batson challenge with “great deference” because those
findings “largely will turn on evaluation of credibility.” Batson, 476 U.S. at
98 n.21; see also State v. Porter, 251 Ariz. 293, 297, ¶ 6 (2021). The burden of
persuasion on the racial motivation behind a strike “rests with, and never
shifts from, the opponent of the strike.” Purkett v. Elem, 514 U.S. 765, 768
(1995).

¶13 Here, the prosecutor offered race-neutral explanations for
each strike. The superior court could find those explanations credible,
particularly considering that the prosecutor did not seek to strike all
minority jurors and also used peremptory strikes on non-minority jurors.
See Porter, 251 Ariz. at 298, ¶ 11 (noting that comparisons between stricken
and non-stricken jurors may be relevant to the court’s credibility
determination); see also State v. Hernandez, 170 Ariz. 301, 305 (App. 1991) (“It

4
 STATE v. KASHKOOL
Decision of the Court

is appropriate to consider a prospective juror’s work history in exercising
peremptory challenges.”). Kashkool now suggests that a more thorough
comparison of stricken and non-stricken jurors would show that the
prosecutor’s explanations were not credible. But such post-hoc analyses are
not required on appellate review, and “the Supreme Court has warned that
‘a retrospective comparison of jurors based on a cold appellate record may
be very misleading when alleged similarities were not raised at trial.’”
Porter, 251 Ariz. at 301, ¶ 21 (quoting Snyder v. Louisiana, 552 U.S. 472, 483
(2008)). Considering the law and the record, appellate counsel did not
provide ineffective assistance by failing to raise a Batson claim on appeal.

CONCLUSION

¶14 For these reasons, we grant review but deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

5