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Simmons v. Brewer

United States District Court, Ninth Circuit

September 11, 2013

Lamar Simmons, Petitioner,
v.
Janice K. Brewer, et al., Respondents.

REPORT AND RECOMMENDATION

STEVEN P. LOGAN, Magistrate Judge.

TO THE HONORABLE FREDERICK J. MARTONE, SENIOR UNITED STATES DISTRICT JUDGE:

Petitioner Lamar Simmons, who is confined in the Arizona State Prison Complex-Eyman, Rynning Unit, in Florence, Arizona, has filed a pro se Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 10).

BACKGROUND

On April 27, 1987, Petitioner entered a guilty plea in the Maricopa County Superior Court ("Superior Court"), Case No. CR XXXX-XXXXXX, to two counts of burglary in the first degree, two counts of sexual assault, and one count of aggravated assault. (Doc. 17-1, Exh. A.)[1] On May 27, 1987, he was sentenced to a term of 21 years' imprisonment for each burglary count, a concurrent term of 15 years' imprisonment for the aggravated assault count, and a term of 21 years' imprisonment for each sexual assault count, both consecutive to the sentences imposed for the burglary counts. (Doc. 17-1, Exh. B.)

On December 2, 1993, Petitioner filed a pro per Notice of Post-Conviction Relief and Motion for Preparation of Post-Conviction Relief Record in the Superior Court. (Doc. 17-1, Exh. C, D.) On July 21, 1994, the Court dismissed the Notice of Post-Conviction Relief, finding that Petitioner had not filed a Petition for Post-Conviction Relief in accordance with Rule 32.4(c) of the Arizona Rules of Criminal Procedure. (Doc. 17-1, Exh. D.) Petitioner did not seek review of that decision by the Arizona Court of Appeals ("Appellate Court"). (Doc. 10 at 5.)

On February 13, 2009, Petitioner filed a second Notice of Post-Conviction Relief in the Superior Court (Doc. 17-1, Exh. E.) Petitioner filed a pro per Petition for Post-Conviction Relief on May 20, 2009. (Doc. 17-1, Exh. F.) On June 10, 2009, the Superior Court denied the Notice and Petition for Post-Conviction Relief, finding:

Defendant's untimely notice argues that his consecutive sentences are illegal pursuant to A.R.S. § 13-116 because his offenses constituted a single act, and that the imposition of consecutive sentences structurally altered the terms and conditions of the plea agreement. Defendant cannot raise these claims in an untimely Rule 32 proceeding because an untimely notice may only raise claims pursuant to Rule 32.1(d), (e), (f), (g), or (h). Rule 32.4(a), Arizona Rules of Criminal Procedure. In addition, Defendant is precluded from relief on these claims pursuant to Rule 32.2(a), Ariz. R. Crim. P., because these claims either were or could have been raised in a prior Rule 32 proceeding.

(Doc. 17-1, Exh. G.)[2] On November 24, 2009, Petitioner filed a Petition for Review. (Doc. 27 at 30; Ariz.Ct.App. No. CA-CR 09-0876 PR.) On August 3, 2011, the Appellate Court summarily denied review. (Doc. 17-1, Exh. L.) Petitioner sought review of the decision, and on February 2, 2012, the Arizona Supreme Court denied the Petition for Review. (Doc. 27 at 46; Ariz. Sup.Ct. No. CR-11-0302-PR.)

On January 11, 2011, Petitioner filed a third Notice and Petition for Post-Conviction Relief. (Doc. 17-1, H, I.) Finding Petitioner had failed "to state a claim for which relief can be granted in an untimely Rule 32, " on April 25, 2011, the Superior Court dismissed the Notice and Petition for Post-Conviction Relief. (Doc. 17-1, Exh. J.) Petitioner sought review of the decision on May 17, 2011. (Doc. 17-1, Exh. K.) On or about March 8, 2012, the Appellate Court denied review. (Doc. 10 at 5.)

Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) on May 30, 2012, and the instant Second Amended Petition (Doc. 10) on September 13, 2012. Respondents filed a Limited Answer (Doc. 17), to which Petitioner filed a Reply (Doc. 27).

DISCUSSION

In his Second Amended Petition for Writ of Habeas Corpus, Petitioner raises eight grounds for relief. In Ground One, Petitioner argues that his Fifth, Sixth, and Fourteenth Amendment rights were violated when he received consecutive, rather than concurrent, sentences. In Ground Two, Petitioner argues that his Fifth, Sixth, and Fourteenth Amendment rights were violated when he received a sentence contrary to the terms of his plea agreement. In Ground Three, he contends that rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments were violated when he received a sentence which exceeds state statutory guidelines. In Ground Four, Petitioner argues that he received ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments. In Ground Five, he alleges his Fifth, Sixth, and Fourteenth Amendment rights were violated based on the imposition of an illegal sentence. In Ground Six, Petitioner argues that he was denied due process when he received an enhanced sentence, in violation of Fifth, Sixth, and Fourteenth Amendment. In Ground Seven, Petitioner alleges he received ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments, when counsel failed to investigate aggravating and mitigating factors. Lastly, in Ground Eight, Petitioner argues he received ineffective assistance of counsel when counsel allowed him to be sentenced under a state statutory enhancement provision, in violation of the Fifth, Sixth, and Fourteenth Amendments.

In response, Respondents contend that Petitioner's habeas petition is time-barred. Respondents alternatively argue that Petitioner did not exhaust his state court remedies and his claims are procedurally barred. For the reasons that follow, the Court finds that the habeas petition is barred by the ...


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