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Tomchee v. Ryan

April 9, 2010

LUCINDA TOMCHEE, PETITIONER,
v.
CHARLES RYAN, RESPONDENT.



The opinion of the court was delivered by: The Honorable Neil V. Wake, United States District Judge

REPORT AND RECOMMENDATION

Petitioner Lucinda Tomchee, who is confined in the Arizona State Prison Complex-Perryville, in Goodyear, Arizona, filed a Petition for Writ of Habeas Corpus through counsel pursuant to 28 U.S.C. § 2254. (Doc. #1.) Respondent filed an Answer on September 9, 2009. (Doc. #10.) Despite having an opportunity to do so, Petitioner did not file a reply.

BACKGROUND

On August 28, 2003, at approximately 1:16 a.m., Phoenix Police Officers Keith Young and Josh Adams were investigating a burglary near the intersection of Chandler Boulevard and the I-10 overpass. (Doc. #1, App. 7 at 37.) They had parked their patrol cars, on the side of the road, with their lights on. (Doc. #1, App. 7 at 37.) Officer Adams was in the driver's seat of his car, seeking information on his computer; Officer Young was standing in the doorway of Adams' vehicle, which had the driver's door open. (Doc. #1, App. 7 at 37.)

Petitioner was driving her vehicle eastbound on Chandler Boulevard. (Doc. #1, App. 7 at 37.) Earlier that evening, she had been at Serrano's Restaurant with Elmer Roanhorse, and had been drinking margaritas and tequila. (Doc. #1, App. 6 at 77-78, 82-84, 90.) The bartender allegedly told Petitioner and Mr. Roanhorse that he believed Petitioner had too much to drink, and Mr. Roanhorse assured the bartender that he would be driving. (Doc. #1, App. 6 at 90-92.) Petitioner and Mr. Roanhorse left the bar at approximately 9:30 or 10:00 p.m.; Petitioner and Mr. Roanhorse were together in Petitioner's vehicle until approximately 11:15 or 11:30 p.m., when Mr. Roanhorse left the vehicle to walk home. (Doc. #1, App. 6 at 81-83, 90-91.)

Petitioner drove her vehicle into the back of Officer Adams' police car, sideswiped it, striking Officer Young and endangering Officer Adams. (Doc. #1, App. 7 at 37.) Officer Young sustained severe injuries to his head, back, and legs. (Doc. #1, App. 7 at 37-38.) Petitioner continued driving. (Doc. #1, App. 7 at 38.) Officer Adams could not start his vehicle, so he entered Officer Young's vehicle and pursued Petitioner. (Doc. #10, Exh. A at 1.) After subsequently detaining Petitioner, officers attempted to administer field sobriety tests, but Petitioner was deemed too intoxicated to continue. (Doc. #10, Exh. A at 1.)

When interviewed by the police, Petitioner claimed that she had only one margarita. (Doc. #10, Exh. A at 1.) She initially admitted striking a vehicle, but later claimed that she did not remember a collision. (Doc. #10, Exh. A at 1.) Also, she could not explain why she did not stop after the collision. (Doc. #10, Exh. A at 1.)

The police found various items in Petitioner's vehicle, including: (1) a marijuana cigarette; (2) bindles commonly used for carrying cocaine; (3) a brown vial; (4) two bags containing marijuana or marijuana residue; (5) a metal spoon that could be used for taking narcotics; (6) an Advil bottle containing marijuana; (7) a "Trails" lighter; (8) a glass pipe of a type commonly used for smoking marijuana; (9) "rolling papers"; (10) two straws; and (11) a bag containing a white powdery substance that was later determined to be cocaine. (Doc. #1, App. 6 at 70-74; Doc. #10, Exh. A at 2.)

Three vials of blood were taken from Petitioner; a forensic analysis of contents revealed BAC levels of.192,.174, and.157. (Doc. #1, App. 6 at 6.) Lab tests also reported that byproducts of marijuana and cocaine were in her system. (Doc. #1, App. 6 at 43-44.)

Officer Young was transported to a medical center and placed in a medically-induced coma. (Doc. #10, Exh. A at 2.) He sustained fractures to his face, skull, spine, ribs, and fibula. (Doc. #10, Exh. A at 2.) Officer Young also suffered paralysis in the lower extremities and an eye injury of undetermined severity. (Doc. #10, Exh. A at 2.)

The State charged Petitioner with: one count of aggravated assault; three counts of endangerment; one count of leaving the scene of a serious injury accident; one count of possession or use of narcotic drugs; one count of possession or use of marijuana; and one count of possession of drug paraphernalia. (Doc. #1, App. 4.) Petitioner entered into a plea agreement, in which she plead guilty to one count of aggravated assault, one count of endangerment, and one count of leaving the scene of a serious injury accident. (Doc. #10, Exh. B.) The state court accepted the guilty pleas. (Doc. #10, Exhs. C, D.)

Prior to her sentencing, Petitioner told the pre-sentence report writer that she only had "a margarita and a shot of tequila." (Doc. #10, Exh. A at 2.) She claimed not to recall her actions after leaving the bar, and added that she "believes she might have been drugged sometime prior to the collision." (Doc. #10, Exh. A at 2.)

Sentencing took place on June 11, 2004. On Count One, aggravated assault, Petitioner was sentenced to an aggravated sentence of 15 years. (Doc. #10, Exh. D. at 3.) On Count Two, endangerment, Petitioner was sentenced to an aggravated term of three years, to run concurrently with the sentence of Count One. (Doc. #10, Exh. D. at 3.) On Count Three, leaving the scene of a serious injury accident, the state court suspended the imposition of sentence and placed Petitioner on probation for five years, beginning with her release from prison. (Doc. #10, Exh. D. at 3.)

On August 27, 2004, Petitioner filed a notice of post-conviction relief. (Doc. #10, Exh. E.) Counsel was appointed, and on April 17, 2006, filed a petition for post-conviction relief, raising five issues: (1) that the sentencing was contrary to Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000); (2) that the State failed to provide adequate notice of its intent to seek an aggravated sentence; (3) that she was denied her right to the effective assistance of counsel; (4) that newly discovered evidence would have altered her decision to enter into the plea agreement; and (5) that the factual basis was insufficient to support her guilty plea to aggravated assault and the "dangerousness" sentence enhancement factor. (Doc. #10, Exh. F.) Attached to her post-conviction relief pleadings, was the deposition of Liliano Castro in support of Petitioner's newly discovered evidence claim. (Doc. #10, Exhs. F, G, L.) Petitioner argued, "[t]he deposition was taken on October 29, 2004 and its transcript was sent to the defense on May 18, 2005. It contains testimony that... lends credibility to Petitioner's impression that she was surreptitiously dosed with intoxicants." (Doc. #10, Exh. F at 11.) The State filed a subsequent motion to strike the Castro deposition claiming that "the deposition was never attached to [Petitioner's] original [p]etition... [and] violates not only Rule 32, but also settled precedent designed to promote fairness in litigation." (Doc. #10, Exh. L.)

On January 29, 2007, the state court issued a minute entry granting the State's motion to strike the Castro deposition, finding that Petitioner had failed to state a colorable claim for post-conviction relief, and summarily dismissing the petition. (Doc. #10, Exh. G.) Petitioner then filed a petition for review by the Arizona Court of Appeals raising the same five issues presented in her petition for post-conviction relief. (Doc. #10, Exh. H.) The appellate court denied review on February 5, 2008. (Doc. #1, App. 12.) The court then granted Petitioner's motion to reinstate the petition, and again denied the petition for review on August 5, 2008. (Doc. #1, App. 12.)

On July 2, 2009, Petitioner filed the instant habeas petition alleging five grounds for relief. In Ground One, she alleges a violation of her Sixth and Fourteenth Amendments rights pursuant to Apprendi v. New Jersey and Blakely v. Washington. (Doc. #1 at 6-9.) In Ground Two, she asserts a violation of her federal due process rights based on the State's failure to properly notice the intent to seek an aggravated sentence. (Doc. #1 at 9-10.) In Ground Three, Petitioner alleges she was denied the effective assistance of counsel in connection with her guilty plea in violation of her Fifth, Sixth, and Fourteenth Amendment rights. (Doc. #1 at 10-12.) In Ground Four, she alleges that her plea should be set aside based on newly discovered evidence. (Doc. #1 at 13-16.) In Ground Five, Petitioner alleges that the factual basis for the plea was insufficient to support her guilty plea. (Doc. #1 at 16-19.)

Respondent filed an Answer on September 9, 2009 (Doc. #10). Petitioner has not filed a reply.

DISCUSSION

In his Answer, Respondent contends that all five of Petitioner's claims either fail on the merits or are not cognizable on federal habeas review. As such, Respondent requests that the Court deny and dismiss Petitioner's Petition for Writ of Habeas Corpus with prejudice.

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") a federal court "shall not" grant habeas relief with respect to "any claim that was adjudicated on the merits in State court proceedings" unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). "When applying these standards, the federal court should review the 'last reasoned decision' by a state court...." Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

A state court's decision is "contrary to" clearly established precedent if (1) "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent." Williams, 529 U.S. at 404-05. "A state court's decision can involve an 'unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable." Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).

A. Ground One

In Ground One, Petitioner argues that the state court violated her Sixth and Fourteenth Amendment rights by imposing an aggravated sentence on Count One without having a jury determine the aggravating factors.

The record demonstrates that the state court imposed an aggravated sentence, 15 years, on Count One, a dangerous offense. (Doc. #10, Exh. D at 2-3.) It found numerous aggravating factors with regard to Count One, including: Petitioner's 1993 misdemeanor DUI conviction in New Mexico; her being severely impaired by alcohol; her minimizing her responsibility; her endangering others besides Officer Young; her possessing cocaine and marijuana at the time of the offense; her having metabolites of cocaine and marijuana in her system; her possessing drug paraphernalia; the extreme emotional trauma to the Young family; and the "horrific" physical and emotional trauma suffered by Officer Young. (Doc. #1, App. 6 at 136-38.)

Here, the Court finds that Apprendi/Blakely was not violated since one of the aggravating factors found by the state court was a prior conviction, which is exempt from Blakely. After one Blakely-exempt or Blakely-compliant factor has been established, an Arizona judge can impose any sentence within the statutory sentencing range. See State v. Martinez, 115 P.3d 618, 624 (Ariz. 2005); State v. Burdick, 125 P.3d 1039, 1042 (Ariz. Ct. App. 2005). The fact that Petitioner's had a prior misdemeanor conviction does not affect the analysis; prior misdemeanor convictions are Blakely-exempt. See State v. Molina, 118 P.3d 1094, 1097-99 (Ariz. Ct. App. 2005); State v. Aleman, 109 P.3d 571, 580 (Ariz. Ct. App. 2005).

Accordingly, the state court's consideration of the aggravating factors and imposition of an aggravating sentence did not violate Apprendi/Blakely and was not contrary to, nor an unreasonable application of, clearly-established federal law. The Court will recommend that Petitioner's claim as asserted in Ground One be denied.

B. Ground Two

In her second ground for relief, Petitioner asserts a violation of her federal due process rights based on the State's failure to properly notice its intent to seek an aggravated sentence.

Petitioner appears to argue, citing to Apprendi and State v. Nichols, 33 P.3d 1172 (Ariz. Ct. App. 2001), that sentencing enhancements should be charged in the indictment or noticed no later than 20 days before trial pursuant to Rule 16.1(b) of the Arizona Rules of Criminal Procedure.

The Court finds Petitioner's reliance on Ariz.R.Crim.P. 16.1(b), which provides that "[a]ll motions shall be made no later than 20 days prior to trial" misplaced. Rule 16.1(b) applies to pre-trial motions, and Petitioner cites no authority supporting any possible contention that it also applies to the State's notice of alleged aggravating factors. Additionally, although Ariz.R.Crim.P. 15.1(i)(2), imposes a notice requirement for aggravating factors in capital cases, the criminal rules contain no such requirement for non-capital cases. Furthermore, in State v. Nichols, the court reiterated that sentencing enhancements need not be alleged in the charging document and stated that notice need only comport with "Arizona's traditional notice requirements for alleging sentence enhancements." 33 P.3d at 1176.

In any event, the Court finds that Petitioner had more than adequate notice of the possibility of an aggravated sentence and of the aggravating circumstances. For instance, on Count One, the parties bargained for a possible sentencing range of 7 to 15 years, when the presumptive sentence is 10.5 years. (Doc. #10, Exh. B.) The state court informed Petitioner of the range of sentences before she pled guilty. (Doc. #10, Exh. C.) The pre-sentence report recommended greater than presumptive sentences (Doc. #10, Exh. A at 5), and the State's sentencing memorandum listed eight possible aggravating circumstances (Doc. #10, Exh. I at 5-10). Petitioner's sentencing memorandum acknowledged that the State's sentencing memoranda had listed eight aggravating circumstances, and disputed them. (Doc. #1, Apps. 6, 8.) Accordingly, the notice Petitioner received satisfied due process. See State v. Jenkins, 970 P.2d 947, 953 (Ariz. Ct. App.1998) (in second-degree murder case, notice of aggravating factors in state's presentencing memorandum satisfied due process); State v. Marquez, 617 P.2d 787, 789 (Ariz. Ct. App.1980) (no error when trial court sua sponte found aggravating circumstances from record even though "prosecutor had neither alleged nor attempted to separately prove" them); State v. Ford, 606 P.2d 826, 827 (Ariz. Ct. App.1979) (presentence report provided adequate notice of aggravating circumstances).

The state court's decision was not contrary to, or an unreasonable application of, clearly established federal law. The Court will recommend that Petitioner's ...


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