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Rhone v. Laughlin

United States District Court, Ninth Circuit

June 24, 2013

Dwight Neil Rhone, Petitioner
v.
Vance Laughlin, et al., Respondents.

For Writ Of Habeas Corpus Report & Recommendation On Petition

JAMES F. METCALF, Magistrate Judge.

I. MATTER UNDER CONSIDERATION

Petitioner, incarcerated presently and at the time of his Petition in the Adams County Correctional Center in Washington, Mississippi, on a federal sentence, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 24, 2012 (Doc. 1), challenging his Arizona state conviction. On February 7, 2013, Respondents filed their Response ("Limited Answer") (Doc. 13) arguing that Petitioner is not in their custody, and has the wrong venue and respondent. Petitioner filed a Reply on May 17, 2013 (Doc. 18) arguing that he suffered collateral consequences from his Arizona judgment in the course the subsequent District of Kansas federal proceedings pursuant to which he is currently incarcerated.

The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. ARIZONA PROCEEDINGS

"Police found 648.8 pounds of marijuana in two vans in the garage of a house occupied by Rhone and four other persons. They also found large quantities of the materials used to package the marijuana." (Exhibit D, Mem. Dec. at 2.) (Exhibits to the Answer (Doc. 13), are referenced herein as "Exhibit ___.") On May 11, 2007, Petitioner and the other four persons were indicted in Maricopa County Superior Court on charges of possession of marijuana for sale and possession of drug paraphernalia. (Exhibit E, Indictment.) Petitioner proceeded to trial and was found guilty as charged. (Exhibit F, Verdict.) On January 23, 2008, Petitioner was sentenced to a mitigated term of four years imprisonment for possession of marijuana for sale and a concurrent presumptive term of one year imprisonment for possession of drug paraphernalia. (Exhibit G, Sentence.

Petitioner filed a delayed direct appeal, which was denied on March 24, 2011. (Exhibit D, Mem. Dec.) He sought review by the Arizona Supreme Court (Exhibit O, Pet. Rev.), which was denied on September 6, 2011 (Exhibit P, Order).

B. DISTRICT OF KANSAS PROCEEDINGS

In the interim, on November 5, 2009, Petitioner and others were indicted in the U.S. District Court, District of Kansas on charges of conspiracy to distribute at least 1, 000 kilograms of marijuana. (Exhibit Q, Indictment.) Petitioner was convicted at trial of the charge (Exhibit R, Verdict), and on October 31, 2011 was sentenced to a term of 73 months in prison, with a departure based upon time served in the Maricopa County case from May 2, 2007 to May 1, 2011 (Exhibit S, Sentence).

C. PHYSICAL CUSTODY

On October 5, 2010, having been incarcerated in Arizona since his arrest on May 2, 2007, Petitioner was released by the Arizona Department of Corrections into federal custody on six months community supervision. (Exhibit B, Letter.) He successfully completed the six months "community supervision" on April 6, 2011, and was unconditionally released.

Petitioner has been in federal custody since October 5, 2010, and has been serving his federal sentence in the Adams County Correctional Center in Washington, Mississippi since November 22, 2011. His expected release date from federal custody is January 24, 2016, although he is reportedly a Jamaican national subject to an immigration detainer. (Exhibit A, Email.) Adams County Correctional Center is a contracted prison facility holding federal prisons. (Exhibit V, BOP Website.)

D. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 24, 2012 (Doc. 1), challenging his Arizona conviction. Petitioner's Petition asserts the following grounds for relief:

(1) The trial court violated Petitioner's constitutional right to represent himself and "rendered Petitioner's waiver of counsel not ...

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