United States District Court, D. Arizona
Anthony Brenton Hendricks, Petitioner, Pro se, TUCSON, AZ.
For Charles L Ryan, named as: Arizona Department of Corrections Director, Charles Ryan, Attorney General of the State of Arizona, Respondents: John Pressley Todd, LEAD ATTORNEY, Office of the Attorney General, Capital Litigation Section, Capital Litigation Section, Criminal Division, Phoenix, AZ.
REPORT & RECOMMENDATION
ON PETITION FOR WRIT OF HABEAS CORPUS
James F. Metcalf, United States Magistrate Judge.
I. MATTER UNDER CONSIDERATION
Petitioner, presently incarcerated in the Arizona State Prison Complex at Tucson, Arizona, filed a Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 7, 2014 (Doc. 9). On July 16, 2014 Respondents filed their Response (Doc. 13). Petitioner has not filed a reply. On October 20, 2014, Respondents filed a supplement to the record (Doc. 15).
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 AND PROCEEDINGS AT TRIAL
Petitioner fired four shots at the victim's vehicle, as they drove down the freeway, striking and injuring the victim. When arrested, Petitioner was found with marijuana, methamphetamine, and various paraphernalia. (Exhibit A, Pre-Sentence Investigation at 1.) (Exhibits to the Answer, Doc. 13, are referenced herein as " Exhibit [A-Q]" Exhibits R and S are attached to Respondent's Supplement, Doc. 15.)
Petitioner was indicted in Maricopa County Superior Court on charges of aggravated assault, weapons misconduct, endangerment, drive by shooting, discharge of a firearm, possession of dangerous drugs, and marijuana possession. (Exhibit C, Indictment.) The state filed allegations of two prior convictions. (Exhibit Q.)
Petitioner, who was represented by counsel, eventually entered into a written Plea Agreement (Exhibit D), agreeing to plead guilty to one count of drive by shooting, and one count of possession of dangerous drugs, with a stipulated sentence of 8 to 12 years in prison on the shooting charge, and probation on the drugs charge.
On December 21, 2011, Petitioner was sentenced to an aggravated term of 12 years on the shooting charge, and a consecutive term of 3 years probation on the drugs charge. (Exhibit E, Sentence.)
B. PROCEEDINGS ON DIRECT APPEAL
Petitioner did not file a direct appeal. (2nd Amend. Petition, Doc. 9 at 2.) Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. See Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).
C. PROCEEDINGS ON POST-CONVICTION RELIEF
First PCR Proceeding
On March 6, 2012, Petitioner filed a Notice of Post-Conviction Relief. (Exhibit F, Notice.) Counsel was appointed. (Id. at ME 3/12/12.) On September 7, 2012, counsel filed a Notice of Completion of Review ( id. at Not. Completion), evidencing an inability to find an issue for review.
In response, on September 27, 2012, Petitioner filed a second Notice of Post-Conviction Relief ( id. at PCR Not.). Petitioner raised claims of ineffective assistance based on failure to present Petitioner's mental disability at sentencing, and failure to object to the use of Petitioner's priors at sentencing.
On January 18, 2013, the PCR Court denied the petition. (Exhibit G, M.E. 1/18/13.)
On February 19, 2013, Petitioner filed a Request for Rehearing (Exhibit H). Although the document bears a filing stamp with the date of October 30, 2013, the PCR court's minute entry reflects that the request was filed February 19, 2013, but was apparently lost in the court. The court denied the request to avoid disrupting the then pending petition for review. (Exhibit I, ME 10/1/13.)
In the interim, on September 11, 2013, Petitioner filed a " Notice of Appeal" asserting that reliance on his prior conviction was a violation of double jeopardy. (Exhibit J). On December 2, 2013, the notice was dismissed for failure to identify the order or judgment appealed from, and that any appeal from the sentence was untimely. (Exhibit K Order 12/2/13.)
Second PCR Proceeding - On October 30, 2013, while his Notice of Appeal" was pending, Petitioner commenced his second PCR proceeding by filing a Petition for Post-Conviction Relief (Exhibit L), listing claims of ineffective assistance, double jeopardy, newly discovered evidence, use of an unconstitutional prior conviction, and improper sentence.
Counsel was again appointed, but on January 15, 2014, counsel filed a Notice of Completion (Exhibit M) evidencing an inability to find an issue for review. Petitioner was granted leave to file a pro per petition by March 17, 2014. (Exhibit N, M.E. 1/30/14.) On March 18, 2014, Petitioner filed a Notice of Post-Conviction Relief and a form Petition for Post-Conviction Relief, again listing claims of ineffective assistance, double jeopardy, newly discovered evidence, detention after expiration of his sentence, and use of an unconstitutional prior conviction. On September 4, 2014, the PCR court entered an order construing the Petition as asserting a claim of ineffective assistance of PCR counsel for failing to raise his substantive claims in the first PCR proceeding. The court found each of the underlying substantive claims to be without merit, thus an absence of ineffective assistance, and summarily dismissed the petition and proceeding. (Exhibit S, Order 9/4/14.)
Petitioner has not sought further review.
D. PRESENT FEDERAL HABEAS PROCEEDINGS
Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 4, 2013 (Doc. 1). He filed the same document again on December 4, 2013 (Doc. 3). The Court dismissed the original Petition (Docs. 1 and 3) without prejudice and with leave to amend because of failure to utilize the approved form.
On January 16, 2014, Petitioner filed his first Amended Petition (Doc. 6), which the Court dismissed with leave to amend based upon Petitioner's failure to specify a claim founded upon a constitutional right, but simply ...