United States District Court, D. Arizona
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 Kingman, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on June 26, 2014 (Doc. 1). On November 21, 2014 Respondents filed their Response (Doc. 10). Petitioner filed a Reply on December 4, 2014 (Doc. 10). Respondents supplemented the record on February 20, 2015 (Doc. 12).
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
On June 22, 2010, in the course of surveillance of a residence suspected to be a "drug house, " a detective observed appellant drive away from the residence. The detective followed and observed Petitioner speeding. A marked police unit was called and stopped the vehicle. The detective approached and spoke to Petitioner, who advised that he was a "prohibited possessor" and that there was a knife in the vehicle. Petitioner consented to having the knife removed, and in the course of retrieving it, the detective observed an expandable baton and a stun gun. The detective asked the other two occupants of the vehicle to exit. One held her purse, which she consented to having the detective search. Inside was a bag of methamphetamine. The vehicle was then searched, revealing a fake battery holding methamphetamine. Petitioner and the woman were placed under arrest. (Exhibit N, Mem. Dec. 4/12/12 at 3-5.) (Exhibits to the Limited Answer, Doc. 9, are referenced herein as "Exhibit ___.")
The officers determined that the suspected "drug house" was Petitioner's residence, and returned there. Petitioner's girlfriend was inside, and refused to consent to a search. Officers detained the girlfriend and performed a protective sweep of the house. The detective left to prepare a search warrant. Other officers remained and the girlfriend consented to speak with them. She admitted using methamphetamine, and that methamphetamine and paraphernalia were in the bedroom of the house, and at least two guns were in the house. The girlfriend was arrested and a search warrant was obtained and executed, revealing weapons and guns, methamphetamine and drug paraphernalia, a drug ledger, and fake batteries similar to the one found in the vehicle. ( Id. at 5-6.)
B. PROCEEDINGS AT TRIAL
Petitioner was charged by information with seven felony counts, including: "Count 1, possession of dangerous drugs for sale, a class two felony; Counts 2, 3, and 5, misconduct involving weapons, each a class four felony; Count 4, possession or use of dangerous drugs, a class four felony; and Counts 6 and 7, possession of drug paraphernalia, each a class six felony." (Exhibit N, Mem. Dec. 4/12/12 at 2.) Count 5 was dismissed on the State's motion. ( Id. )
Counsel filed a Motion to Suppress Evidence (Exhibit B) seeking to suppress the evidence seized at the traffic stop and residence. The motion was denied. (Exhibit G, M.E. 1/18/11.)
Petitioner and his girlfriend were tried together. (Exhibit N, Mem. Dec. 4/12/12 at 6.) Petitioner was found guilty of the remaining six counts, with the exception that on Count 1, the possession of drugs for sale, the jury found Petitioner guilty of the lesser included offense of possession of drugs. ( Id. )
At sentencing, Petitioner was found to have two historical prior felony convictions, and was sentenced as follows: "minimum terms of eight years each for Counts 1 and 4; mitigated terms of six years each for Counts 2 and 3; and minimum terms of three years each for Counts 6 and 7." ( Id. at 6-7.) Counts 1, 4, 6, and 7 were concurrent, and Counts 2 and 3 were concurrent with each other but consecutive to the other sentences. Effectively, therefore, Petitioner was sentenced to a combined prison sentence of 14 years. ( See also Exhibit I, Sentence.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal, and argued that the warrantless search of his vehicle and home violated, inter alia, the Fourth Amendment and Due Process Clause of the U.S. Constitution. (Exhibit K, Opening Brief.) The Arizona Court of Appeals rejected the arguments and affirmed Petitioner's convictions. (Exhibit N, Mem. Dec. 4/12/12.)
D. PROCEEDINGS ON POST-CONVICTION RELIEF
Petitioner then filed a Notice of Post-Conviction Relief (Exhibit O). Counsel was appointed but filed a Notice of Completion of Review (Exhibit Q) evidencing an inability to find an issue for review. Petitioner then filed a pro per Supplemental Petition (Exhibit R) asserting various claims attacking his inability to accept a plea offer, the misrepresentation of weapons evidence, an illegal search, and ineffective assistance of trial and appellate counsel.
The PCR court found all but the ineffective assistance claims "precluded as they were either raised or could have been raised on appeal." (Exhibit W, M.E. 2/19/13 at 4.) The Court found that the claims of ineffective assistance were without merit. ( Id. ) Consequently, the petition was denied.
Petitioner then filed a Petition for Review (Exhibit X) asserting claims of illegal search, seizure and arrest, ineffective assistance of counsel on a variety of theories, and other errors. (A complete copy of Exhibit X is attached to Respondents' Supplement, Doc. 12.)
The Arizona Court of Appeals granted review, but denied relief. The court found that most of Petitioner's claims were not sufficiently developed in his Petition to be subject to review, and thus were abandoned and waived. The claim related to the suppression of the evidence was found precluded because raised on direct appeal, and the other claims he "could have raised on direct appeal" but did not. (Exhibit Y, Order 7/31/14 at 2-3.)
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 June 26, 2014 (Doc. 1). Petitioner's Petition asserts the following four grounds for relief:
1. IAC re Plea - "his attorney failed to provide fair and effective assistance when his co-defendant went to trial and a proffered plea was withdrawn" (Order 10/7/14, Doc. 4 at 2);
2. IAC re Failure to Object - "the prosecutor knew the arrest was not based on factual proof and that a plea offer had already been made' but appointed counsel failed to object in violation of the Fifth, Sixth, and Fourteenth Amendments" ( id. );
3. IAC re Rejection of Plea by Co-Defendant and Evidence - "the prosecutor offered his co-defendant probation, but she rejected the offer and Petitioner's attorney failed to preserve the plea agreement proffered to him in violation of his Sixth Amendment rights and rendered ineffective assistance in connection with evidence proffered at trial" ( id. ); and
4. Wrongful Seizure - "evidence found at a residence following the initial vehicle stop was admitted against Petitioner in violation of his Fourteenth Amendment rights" ( id. ).
Response - On November 21, 2014, Respondents filed their Response ("Limited Answer") (Doc. 9). Respondents argue Ground IV is an exclusionary rule claim barred from habeas review under Stone v. Powell, 428 U.S. 465 (1976) because Petitioner had a full and fair opportunity to litigate the claim in the state courts. Respondents further argue that all of Petitioner's claims are procedurally defaulted.
Reply - On December 4, 2014, Petitioner filed a Reply (Doc. 10). Petitioner argues: (1) that he had no full and fair opportunity to litigate his exclusionary rule claims because of the ineffective assistance of counsel and because the state court's decision was in error; (2) he fairly presented his claims to the state courts and properly exhausted his state remedies; and (3) there has been a miscarriage of justice.
Supplements - Noting the omission of page 2 of Exhibit X to the Answer, as well as the responsive or reply briefs in Petitioner's petition for review in his PCR proceeding, the Court directed Respondents to supplement the record. (Order 2/6/15, Doc. 11.) On February 20, 2015, Respondents complied (Doc. 12).
III. APPLICATION OF LAW TO FACTS
A. GROUND FOUR: EXCLUSIONARY RULE
Petitioner's Ground Four argues that the evidence found at his residence following the initial vehicle stop was admitted against Petitioner in violation of his Sixth and Fourteenth Amendment rights. (Petition, Doc. 1 at 9.)
Petitioner does not explain how the Sixth Amendment relates to this claim. That Amendment generally encompasses rights to: (1) a speedy and public trial; (2) an impartial jury from the same jurisdiction as the crime; (3) notice of the nature and cause of the accusation; (4) confrontation of witnesses; (5) compulsory process; (6) and the assistance of counsel. U.S.C. Const. Amend. VI. Petitioner does not allege any facts to support a claim under any of these clauses.
Petitioner also relies upon the Fourteenth Amendment. That Amendment generally affords all citizens rights to due process and equal protection. U.S.C. Const. Amend. XIV. Petitioner does not identify the application of that Amendment to the factual allegations of his claim. However, this Court is obligated to liberally construe ...