United States District Court, D. Arizona
REPORT AND RECOMMENDATION
STEVEN P. LOGAN, Magistrate Judge.
TO THE HONORABLE FREDERICK J. MARTONE, UNITED STATES DISTRICT JUDGE:
Petitioner Andy Charles Bodie, who is confined in the Arizona State Prison Complex - Eyman, Meadows Unit, in Florence, Arizona, has filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5). For the reasons that follow, the Court recommends that the petition be denied and dismissed.
On April 14, 2005, Petitioner was indicted by a grand jury in the Pinal County Superior Court ("Superior Court"), Case No. CR XXXX-XXXXX, charging him with one count (Count I) of attempted child molestation, in violation of A.R.S. §§ 13-1410, 13-1001, and one count (Count II) of sexual conduct with a minor, in violation of A.R.S. § 13-1405. (Doc. 22-1, Exh. A.) Pursuant to a plea agreement, on March 13, 2006, Petitioner pled guilty to two counts of attempted child molestation, each subject to enhanced punishment under A.R.S. § 13-604.01,  as a dangerous crime against children. (Doc. 22-1, Exh. B.) On May 9, 2006, the Superior Court sentenced Petitioner to a 5-year term of imprisonment for the first amended count of attempted child molestation. As to the second amended count, the Superior Court suspended imposition of sentence and placed Petitioner on a consecutive term of lifetime probation. As a condition of probation, the Superior Court imposed a term of six months in jail, against which Petitioner's presentence incarceration was credited. (Doc. 22-1, Exh. G.)
On April 6, 2009, Petitioner filed a Writ of Habeas Corpus (Doc. 22-1, Exh. H) in the Superior Court, which was treated as a Notice of Post-Conviction Relief (Doc. 22-1, Exh. I). Counsel was appointed to represent Petitioner (Doc. 22-1, Exh. J), and filed a Petition for Post-Conviction Relief on October 19, 2009 (Doc. 22-1, Exh. K). The petition raised one ground for relief, that Petitioner was entitled to resentencing pursuant to State v. Gonzales, 162 P.3d 650 (Ariz.Ct.App. 2007). The Superior Court denied relief on January 20, 2010, finding that the petition was untimely, and that Gonzales was not a significant change of law that applied to the circumstances of his case. (Doc. 22-1, Exh. M.) Petitioner did not seek review of the Superior Court's decision. (Doc. 5 at 5.)
On February 5, 2010, Petitioner was released from incarceration, and began his term of lifetime probation. On August 25, 2010, a petition to revoke his probation was filed in the Superior Court, alleging fifteen different violations. (Doc. 22-1, Exh. N.) On January 27, 2011, Petitioner entered an admission to a violation of Special Condition No. 4 of his probation (Doc. 22-1, Exh. P), to "[n]ot go to or loiter near school yards, parks, playgrounds, arcades, or other places primarily used by children under the age of 18 without permission of [his] probation officer. (Doc. 22-1 at, Exh. E). The Superior Court revoked the term of probation for the second count of attempted molestation on February 24, 2011, and sentenced him to term of eight years of incarceration. (Doc. 22-1, Exh. R.)
On April 15, 2009, Petitioner filed a Notice of Post-Conviction Relief in the Superior Court (Doc. 22-2, Exh. S) and counsel was appointed to represent him (Doc. 22-2, Exh. T). Upon review of the record, counsel filed a notice to the Superior Court that she found no issues upon which to base a claim for relief, and requested an extension of time for Petitioner to file a pro se Petition for Post-Conviction Relief. (Doc. 22-2, Exh. U.) Thereafter, Petitioner filed several motions requesting copies of portions of the record of his original conviction, including a request for transcripts (Doc. 22-2, Exh. W, X, Z), which were denied. In its denial dated October 26, 2011, the Superior Court noted that the post-conviction relief "proceeding [was] only directed to the issue of the admission of a violation of probation and the subsequent sentence. Any issues as to the original change of plea and sentencing [were] precluded. There [was] not, therefore, an[y] need for the transcripts of those proceedings to be provided." (Doc. 22-2, Exh. BB.) Petitioner filed a Pro Per Petition for Post-Conviction Relief on November 25, 2011 (Doc. 22-2, Exh. EE), and a reply in support of that petition on January 23, 2012 (Doc. 22-2, Exh. HH). On January 27, 2012, the Superior Court issued an order dismissing Petitioner's post-conviction relief petition;
Petitioner's position appears to be that since the counts resulted from a single act, the court could not sentence him to a consecutive sentence once he had served his initial five year sentence. As [the] indictment alleges two separate and distinct acts, the argument is spurious[.] Having reviewed the pro per petition, the State's response and the Petitioner's reply, the Court finds no colorable grounds for post-conviction relief.
(Doc. 22-2 at 70, Exh. II.)
Following the denial of a request for rehearing, Petitioner filed a Petition for Review in the Arizona Court of Appeals on July 6, 2012. (Doc. 22-3, Exh. M.) Petitioner raised three grounds for relief:
[1)]Did the trial court err as a matter of law in holding defendant did not raise a colorable claim; 2) [did the trial err when it] decided defendant should not be provided record(s)/transcripts of the case me[a]nt to aid in preparations to raise any number of other potential grounds/claims for relief connection with this cause number [ sic ]; and 3) did the trial court dress well its decision denying post conviction relief.
(Doc. 22-3 at 4, Exh. MM.) In a memorandum decision filed on October 19, 2012, the Arizona Court of Appeals granted review, but denied relief. (Doc. 22-3, Exh. NN); State v. Bodie, 2012 WL 5187590 (Ariz.Ct.App. 2012). The Arizona Court of Appeals reasoned, in relevant part:
¶ 5 On review, Bodie essentially argues the trial court ignored his argument that it lacked authority to impose the eight-year sentence and erred in denying his motions to expand the record to include certain documents and transcripts relating to his original plea agreement and sentencing. Bodie mentions double jeopardy and "disparate or single criminal acts" in his petition for review, but he does not adequately develop an argument that the court's conclusion that his sentence did not violate § 13-116 was an abuse of discretion, and any such argument is therefore waived. See Ariz. R. Crim. P. 32.9(c)(1) (petition for review shall contain "[t] he reasons why the petition should be granted" and "specific references to the record"); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995).
¶ 6 Although the trial court did not specifically address Bodie's rather confusing argument about its lack of authority to impose an eight-year sentence after he violated the conditions of his probation, we find no abuse of discretion. Cf. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (appellate court will affirm trial court's ruling if result legally correct for any reason). Section 13-901(C), A.R.S., provides that if "the defendant commits an additional offense or violates a condition, " the court "may revoke probation in accordance with the rules of criminal procedure at any time before the expiration or termination of the period of probation." And, "when probation is revoked, " "[a] term of imprisonment authorized" under the sentencing statutes may-be be imposed. A.R.S. § 13-603(E). Thus, the court was authorized to impose any sentence provided by law for a class three, dangerous crime against children, including the eight-year sentence it imposed. See A.R.S. §§ 13-705, 13-1001, 13-1410.
¶ 7 Furthermore, in signing the form outlining his conditions of probation, Bodie acknowledged that if he violated those conditions his probation could be revoked and the court could "impose sentence upon [him] in accordance with the law." To the extent he now argues he was not adequately advised at his original sentencing that violating his probation could result in the imposition of a prison term or argues his sentence was unlawful, we agree with the trial court that any such claim is precluded. See Ariz. R.Crim. P. 32.2(a)(3). For that reason, we also cannot say the court abused its discretion in denying Bodie's various motions for transcripts and documents relating to the earlier proceedings. Therefore, although we grant the petition for review, relief is denied.
Bodie, 2012 WL 5187590, at *1-2. Petitioner did not seek review by the Arizona Supreme Court. (Doc. 5 at 5.)
On October 23, 2012, Petitioner timely filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), and the instant Amended Petition (Doc. 5) on October 25, 2012. Respondents filed a Limited Answer (Doc. 22). No reply has been filed, and the time to do so has expired.
In the petition, Petitioner raises four grounds for relief:
GROUND ONE: The sentencing court of 2011 has no jurisdictional basis to have given Petitioner eight (8) years (in revoking probation) wherein the sentencing court of 2006 has not suspended sentence of eight (8) years in whole or in part at the 2006 sentencing proceeding, in violation of the 4th, 5th and 14th amendment of the United States Constitution.
GROUND TWO: Petitioner was denied due process after asking for specific case related records to prepare his supplemental petition for post conviction relief, in violation of the 5th, 6th and ...