United States District Court, D. Arizona
Matt J. Mided, Petitioner,
Edwin Jensen, et al., Respondents.
RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
JAMES F. METCALF, Magistrate Judge.
I. MATTER UNDER CONSIDERATION
Petitioner, presently incarcerated in the Arizona State Prison Complex at San Luis, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on March 14, 2013 (Doc. 1). On August 19, 2013 Respondents filed their Response (Doc. 11). Petitioner filed a Reply on December 3, 2013 (Doc. 17). Respondents filed their Supplemental Exhibits on February 14, 2014 (Doc. 19).
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, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:
An anonymous subject contacted Detective Brandon Rumpf of the Yavapai County Sheriff's Office and informed him of a possible delivery of methamphetamine to a service station in Black Canyon City. The subject said the person making the delivery would be a man named Matt, about six feet four inches tall, with brown hair in a ponytail, and that he would be driving a red 1990s-model Toyota Tacoma pickup truck with white tabs over one of the wheel wells where a chrome strip had been removed. Based on the tip, Rumpf went with his partner, Detective Bret Hood, and several other detectives to the service station where the delivery was to be made.
While the detectives were at the service station, a red Toyota Tacoma pickup truck driven by a man matching the informant's description pulled up to a gas pump. Rumpf parked his vehicle behind the pickup truck, stuck his head outside the open window and yelled, "Max, " to the pickup's driver. The driver identified himself as "Matt." After Rumpf asked the driver for identification, he handed Rumpf a driver's license identifying him as Mided. Mided told Rumpf he was in Black Canyon City to pick up money to post bond for a friend. Rumpf asked Mided if he could search Mided's truck for drugs, to which Mided responded, "Yeah, go ahead."
While Rumpf was talking with Mided, Hood approached the vehicle's passenger, Karen Humphrey. After handing Hood her identification, Humphrey began to cry and told Hood there was an outstanding warrant for her arrest. Humphrey told Hood there were drugs behind the seat in the pickup truck. Hood then told Rumpf of Humphrey's admission. Rumpf tilted the truck's front passenger-side seat forward and observed what was later determined to be some methamphetamine wrapped in plastic.
After Rumpf found the methamphetamine, another detective, Jeff Long, took swabs of the inside of the vehicle that tested positive for the presence of methamphetamine.
(Exhibit F, Mem. Dec. 10/29/09 at 2-4.) (Exhibits to the Answer, Doc. #, are referenced herein as "Exhibit ___." Supplemental Exhibits (Doc. 19) to the Answer are referenced herein as "Exhibit S1___.")
B. PROCEEDINGS AT TRIAL
Mided was charged in Yavapai County Superior Court with transportation for sale of a dangerous drug, possession of a dangerous drug, and possession of drug paraphernalia. (Exhibit F, Mem. Dec. 10/29/09 at 4.)
After requests for appointment of new counsel were granted three times, counsel moved to suppress the evidence from the truck. At the hearing on the motion, Petitioner asked to represent himself. The request was granted and advisory counsel was appointed. ( Id. at 4-5.)
After a continuance of more than 30 days and appointment of an investigator, and denial of a second continuance, Petitioner proceeded with the suppression hearing. The trial court denied the motion, finding Petitioner consented to the warrantless search. ( Id. at 5, 11.)
Eventually, Petitioner stipulated to a trial before the court on exhibits, with a stipulation to a maximum sentence of 7.5 years, withdrawal of an allegation of commission while on probation and all but one prior offense. At Petitioner's request, advisory counsel was reappointed as counsel of record, and the stipulation was accepted by the trial court. ( Id. at 5-6.)
Based on the submitted exhibits, which included evidence of a prior felony conviction, a scientific report indicating the substance found in Mided's truck was methamphetamine and testimony from the evidentiary hearing, the superior court found Mided guilty of transportation for sale of a dangerous drug methamphetamine, a Class 2 felony; and possession of drug paraphernalia, a Class 6 felony. The court found Mided also guilty of possession of a dangerous drug but concluded that charge merged with the charge of transportation for sale of dangerous drug.
( Id. at 6.)
Petitioner was sentenced to a mitigated term of 7.5 years on the transportation charge, and a concurrent, aggravated term of 2.75 years on the paraphernalia. ( Id. at 6-7; Exhibit B, Verdict; Exhibit C, Sentence.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a notice of direct appeal, and counsel was appointed. Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and related state authorities, espousing an inability to find an issue for review. (Exhibit D.) Petitioner filed a pro se Supplemental Brief (Exhibit E), arguing that the trial court erred in denying the motion to suppress, basing a decision on "notes' not facts as taken by the court reporter", denying the motion to continue the suppression hearing, granting the prosecutions objections to questions, appointment of ineffective counsel, and allowing inconsistent testimony by the detectives.
The Arizona Court of Appeals rejected the ineffective assistance claim as properly raised on post-conviction review, rejected Petitioner's claims, reviewed the record for reversible error, and affirmed the convictions and sentences. (Exhibit F, Mem. Dec. 10/29/09.)
Petitioner did not seek further direct review. (Exhibit G, Mandate 3/4/10; Petition, Doc. 1 at 3.)
D. PROCEEDINGS ON POST-CONVICTION RELIEF
Petitioner filed a Notice of Post-Conviction Relief (Exhibit H), counsel was appointed who filed a notice of inability to find an issue for review (Exhibit I). Petitioner then filed a pro per Petition for Post Conviction Relief (Exhibit J), but then sought and obtained leave to file an amended petition. (Exhibit K, Order 10/12/10.) Petitioner then filed an Amended Petition for Post Conviction Relief (Exhibit L), arguing that he was denied his right to self representation ( id. at 11-14); he was denied effective assistance of counsel as a result of trial counsel's failure to secure surveillance video from the service station ( id. at 14-16); denial of effective assistance of appellate counsel for failing to challenge the denial of the right to self-representation ( id. at 17); denial of his right to a jury trial by requiring him to choose between self-representation and ineffective counsel ( id. at 18-19.)
The state responded, arguing that "most of the issues" were precluded because "they either were or could have been raised on appeal." (Exhibit P, PCR Resp. at 5.) The state further responded that Petitioner's waiver of counsel was knowing and voluntary, he was not denied his right of self-representation, none of his counsel was ineffective, and his claim of a sentencing discrepancy was without merit.
The trial court summarily rejected the claims asserted by Petitioner, searched the record for a basis for post-conviction relief but found none, and dismissed the petition. (Exhibit M, Order 2/4/11.)
Petitioner sought review by the Arizona Court of Appeals, raising the same arguments asserted to the PCR court. (Exhibit S1-B, PFR.) The Arizona Court of Appeals granted review, but denied relief. (Exhibit N, Mem. Dec. 8/13/12.) Petitioner sought reconsideration, which was denied. (Exhibit O, Order 9/11/12.)
Petitioner did not seek further review. (Exhibit N, Mandate 10/22/12; Petition, Doc. 1 at 5.)
E. 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 March 14, 2013 (Doc. 1). Petitioner's Petition asserts the following four grounds for relief:
(1) Petitioner's Fourth, Fifth, Sixth, and Fourteenth Amendment rights were violated because he did not receive effective assistance of counsel;
(2) Petitioner's conviction was based on illegally obtained evidence, in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments;
(3) Petitioner's pre-trial, trial, and appellate counsel were ineffective in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments; and
(4) Petitioner was denied his right to self-representation, in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments.
(Order 6/3/13, Doc. 4 at 2.)
Response - On August 19, 2013, Respondents filed their Response ("Answer") (Doc. 11). Respondents argue that Grounds One and Three are without merit, that Ground Two is not cognizable on habeas review, and that Ground Four was procedurally barred on review of Petitioner's PCR petition.
Reply - On December 3, 2013, Petitioner filed a Reply (Doc. 17). Petitioner argues that his claims in Grounds One and Three have merit, he was denied a full and fair hearing on his exclusionary rule claim in Ground Two and thus it is cognizable, and that his failure to properly exhaust his state remedies on Ground Four was the result of ineffective assistance of appellate counsel.
Supplements - The Court directed Respondents to supplement the record with copies of briefs filed with the Arizona Court of Appeals, and set a deadline for Petitioner to object to the exhibits. (Order 2/3/14, Doc. 18.) On February 14, 2014, Respondents supplemented the record (Doc. 19). Petitioner has not filed any objections to the exhibits, and the time to do so has expired.
III. APPLICATION OF LAW TO FACTS
A. GROUNDS ONE AND THREE: INEFFECTIVE ASSISTANCE
In Ground One, Petitioner asserts that PCR counsel was ineffective. In Ground Three, Petitioner argues that pre-trial, trial and appellate counsel were ineffective.
1. Standards for Habeas Relief for State Prisoner
While the purpose of a federal habeas proceeding is to search for violations of federal law, not every error justifies relief. Under 28 U.S.C. § 2254(d), federal habeas relief may only be granted to a state petitioner in very narrow circumstances, e.g. where the decision was "an unreasonable application of or contrary to" Supreme Court law, or 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)(1) and (2). However, those limitations only apply when a state petitioner's claim has been "adjudicated on the merits." 28 U.S.C. § 2254(d).
2. Standards for Ineffective Assistance of Counsel
Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, petitioner must show: (1) deficient performance - counsel's representation fell below the objective standard for reasonableness; and (2) prejudice - there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88, 694. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.
3. Ground One - PCR Counsel
In Ground One, Petitioner argues that PCR counsel was ineffective for failing to raise the ineffectiveness of trial counsel on the basis asserted in his Ground Three. (Petition, Doc. 1-3 at "6", physical page 41.) Respondents argue, in effect, that a claim of ineffective assistance of PCR counsel does not amount to a constitutional violation, and that Martinez v. Ryan, 132 S.Ct. 1309 (2012) held only that ineffective assistance of PCR counsel may establish cause to excuse a procedural default of a claim of ineffective assistance of trial counsel. (Answer, Doc. 11 at 6.) Petitioner simply replies that he believed the claim was allowed. (Reply, Doc. 17 at 3.)
The Courts have long rejected claims of ineffective assistance of PCR counsel. "There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citations omitted). The Coleman Court thus held that the ineffectiveness of PCR counsel also could not establish cause to excuse a failure to properly exhaust state remedies and procedural default on a claim.
In Martinez, the Court recognized, however, that because courts increasingly reserve review of claims of ineffective assistance of trial counsel to post-conviction relief proceedings, the ineffectiveness of counsel in such PCR proceedings could effectively defeat any review of trial counsel's ineffectiveness. Accordingly, the Court recognized a narrow exception to Coleman's ruling on the ineffectiveness of PCR counsel as cause to excuse a procedural default on such a claim. In Trevino v. Thaler, 133 S.Ct. 1911 (2013), the Court extended Martinez to cases where state law did not mandate that claims of ineffectiveness be brought in PCR proceedings, but provided no other meaningful avenue for review.
The Martinez Court made clear, however, that it was not altering Coleman 's constitutional ruling that there was no ...