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Mitchell v. Phillips

United States District Court, D. Arizona

March 26, 2014

Jeffrey Lee Mitchell, Petitioner,
v.
Sandra Phillips, et al., Respondent.

ORDER

BERNARDO P. VELASCO, Magistrate Judge.

On March 13, 2012, Petitioner, Jeffrey Lee Mitchell, filed a Petition titled "Ex Parte Habeas Corpus" ("Petition"). (Doc. 1.)[1] The Court dismissed the Petition with leave to amend. (Doc 5.) On June 4, 2012, Petitioner filed an amended petition ("Amended Petition"). (Doc. 6.) Respondents have filed an answer to the Amended Petition ("Answer") with exhibits A through U attached. (Docs. 17-18). Petitioner did not file a reply.

In accordance with provisions of Title 28, U.S.C. ยง 636(c)(1), all parties consented to proceed before a United States Magistrate Judge to conduct any and all further proceedings in this case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. (Doc. 19) On November 19, 2013, this matter was reassigned to Magistrate Judge Bernardo P. Velasco. (Doc. 20)

For the reasons discussed below, the Magistrate Judge dismisses the first claim of Ground One, and Grounds Two through Four.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Proceedings in the Trial Court

On September 16, 2008, Petitioner signed a plea agreement and entered a plea of no contest to one count of unlawful use of a power of attorney, an undesignated class six felony. (Ex. A, Plea Agreement; Ex. C, Minute Entry 9/16/08.)[2] Before sentencing he moved to withdraw his plea, claiming that the State, through its agent the Department of Public Safety, had breached the terms of the plea in the denial of a fingerprint clearance card on grounds that Petitioner entered a plea to a "theft" offense. (Ex. D.) Petitioner asserted that had he known his conviction was going to be designated a "theft" he would not have entered the no contest plea. (Ex. F, Reporter's Transcript ("R.T.") 12/22/08, at 5.) The trial court denied the motion after a hearing, finding it "difficult to believe" that Petitioner did not understand that the nature of what he was pleading to was theft, that there was no indication that the State had violated any of the terms of the plea agreement, and that the Petitioner entered the plea knowingly, intelligently, and voluntarily. (Ex. F, at 21-23; Ex. G.) On January 14, 2009, the court imposed a 2-year term of probation.[3] (Ex. H-I.)

B. Petition for Post-Conviction Relief

On April 14, 2009, Petitioner filed a notice of post-conviction relief. (Ex. J). Petitioner, through counsel, filed a petition for post-conviction relief ("PCR") on October 9, 2009. (Ex. K.) On January 6, 2010, the trial court dismissed the PCR without a hearing, addressing the merits of the petition and finding that none of the claims raised presented a material issue of fact or law which would entitle Petitioner to relief under Rule 32. (Ex. N).

On February 4, 2010, Petitioner filed a "Petition for Review from Denial of Post-Conviction Relief" with the Arizona Court of Appeals. (Ex. O.) Petitioner raised three claims that the trial court had abused its discretion: 1) when it concluded that Petitioner had not shown an insufficient factual basis supported the plea; 2) in failing to find that the evidence supported a colorable claim of actual innocence; and 3) in dismissing Petitioner's claims of ineffective assistance of counsel and manifest injustice without a hearing. (Ex. O.) The court of appeals denied relief in a memorandum decision on June 10, 2010. (Ex. Q.)

Petitioner filed a "Petition for Further Review from Denial of Post-Conviction Relief" on August 10, 2010, with the Arizona Supreme Court. (Ex. R.) The Arizona Supreme denied review on December 21, 2010. (Ex. S) The mandate issued on February 28, 2011. (Ex. T.)

C. Federal Habeas

On March 13, 2012, Petitioner filed an "Ex Parte Habeas Corpus" (the original Petition) which was dismissed with leave to amend. (Docs. 1-5) Petitioner filed an Amended Petition on June 4, 2012. (Doc. 6.) Petitioner presents four grounds in the Amended Petition in support of his request for habeas relief:

(1) Petitioner's trial counsel was ineffective for (a) failing to explain to Petitioner that pleading "no contest" was actually a guilty plea and (b) failing to inform him that the unlawful use of a ...

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