United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MICHELLE H. BURNS, Magistrate Judge.
Petitioner Delanie Belfield Ross, who is confined in the Arizona State Prison, Lewis Complex, Buckeye, Arizona, has filed a pro se Petition for Writ of Habeas Corpus (hereinafter "habeas petition") pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer on November 25, 2014 (Doc. 19). On December 23, 2014, Petition filed a Traverse (Doc. 22).
Petitioner lists three grounds for habeas relief, all which he claims resulted in a violation of his right to due process under the United States Constitution:
Ground 1: the trial court lacked "jurisdiction and authority to hold and try Petitioner, which led to a void conviction, sentence, [and] unlawful confinement" when it, on August 2, 2006, "dismissed CR XXXX-XXXXXX."
Ground 2: Petitioner was convicted without proof beyond a reasonable doubt of every fact necessary to constitute the crimes charged: the jury was allowed to decide the case on an impermissible theory of guilt - the trial court failed to properly instruct the jury on consideration of the evidence.
Ground 3: Petitioner's sentence is illegal/unlawful and imposed in an unlawful manner - Petitioner's written judgment is different from the orally pronounced sentence. Petitioner was deprived of constitutionally adequate notice of the sentencing enhancements sought by the state.
(Doc. 1, at 6-8.)
Respondents contend that grounds 1 and 2 should be dismissed for failure to state a federal claim, "as these claims concern Arizona law and are not cognizable on federal habeas corpus review, " and, in any event should be denied on their merits, and that ground 3 should be denied on the merits. (Doc. 19, at 2.)
I. TRIAL COURT PROCEEDINGS.
In February 2005, the State charged Petitioner, his wife (Veronica), and Petitioner's brother-in-law (Cooper), with several charges of fraudulent schemes and artifices, theft, and conspiracy ("First Indictment"). (Doc. 19, Exh. A.) In July 2005, Cooper pled guilty to theft, a class 3 felony. (Exh. VV, at 30.) In June 2006, the trial court ruled that count one of the First Indictment was duplicitous, and ordered that the State have a week to amend the indictment to charge a single benefit. (Exh. B.) Instead, on June 28, 2006, the State presented the case to the grand jury and the grand jury returned a second indictment against Petitioner and Veronica ("Second Indictment"). (Exh. C.) The Second Indictment removed Cooper as a defendant, and addressed the issue of duplicity by breaking down Count 1 of the First Indictment into four separate charges of fraudulent schemes and artifices. (Id.) The Second Indictment bore the same case number, CR2005-006706, as the first. In August 2006, the trial court granted the State's motion to dismiss the First Indictment (denoting it as the "2005 indictment") noting "there being no objection by [Petitioner]." (Exh. D.) The case proceeded under the CR2005-006706 case number.
In October 2006, the trial court remanded the case to the grand jury for a new finding of probable cause. (Exh. E.) In November 2006, the grand jury returned another indictment charging Petitioner and Veronica with four counts of fraudulent schemes and artifices (counts 1 through 4), theft (count 5), and conspiracy (count 6), all class 2 felonies ("Third Indictment"). (Exh. F.) Veronica was also charged with an additional count of fraudulent schemes and artifices (count 7). (Id.) The case was once again remanded to the grand jury in June 2008, with the trial court finding the Third Indictment was "fundamentally unfair." (Exh. G.) The State appealed the remand order by filing a petition for special action in the Arizona Court of Appeals. (Exh. H.) In July 2008, the Arizona Court of Appeals reversed the trial court's remand order. (Exh. I.)
Prior to trial, the indictment was amended to allege Petitioner's four prior felony convictions. (Exhs. J, K.) Also, prior to Petitioner's trial codefendant Veronica entered into a plea agreement and was sentenced. (Exh. OO, at 19.) On the first day of trial, November 3, 2008, the trial court granted the State's motion to dismiss counts 6 and 7 of the indictment. (Exh. TT.) At the conclusion of his trial, Petitioner was convicted by the jury on three counts of fraudulent schemes and artifices (counts 1, 3, and 4), and one count of theft (count 5). (Exh. AAA.) On appeal, the Arizona Court of Appeals summarized the facts underlying Petitioner's convictions as follows:
In 2003, Appellant learned that his brother-in-law, Willard Cooper, Jr. (Cooper), had a high credit score. Appellant told Cooper that he "could get [Cooper] a million dollars' worth of property and like a hundred thousand dollars in cash" based on the credit score. Cooper subsequently moved from Mississippi to Arizona to live with Appellant and Appellant's wife, Veronica.
Appellant formed TempleBloc, Inc. (TempleBloc) under Cooper's name in March 2004, listed Cooper as president, completed the Articles of Incorporation for TempleBloc, and designated a board of directors consisting of Cooper, Veronica, and Appellant. Veronica applied for a corporate bank account under the name UPSW Dispatching Services (UPSW) and later amended her application to say that UPSW did domestic and international consulting and was owned by TempleBloc. She also added Cooper as a co-signer on to the account.
In 2004, M. Brooks prepared a 2002 corporate tax return for UPSW and a 2003 corporate tax return for TempleBloc based on information provided to him by Appellant, who identified himself by his nickname, Lane Quue. Brooks had no experience preparing corporate tax returns and failed to obtain annual reports, profit and loss statements, or other financial records for the companies. The tax returns listed assets in the amounts of $1, 546, 660 and $1, 031, 610 for UPSW and TempleBloc, respectively. However, TempleBloc conducted no form of legitimate business. Cooper testified that he signed the tax returns because he signed anything that Appellant asked him to sign.
In 2004, Appellant leased four Hummers from Kachina Cadillac (Kachina) for himself, Veronica, Cooper, and Appellant's friend. Appellant who identified himself as Mr. Quue, negotiated the leases with T. Heiner, one of Kachina's salesmen. Appellant informed Heiner that he ran a very profitable business, was going to put the vehicles in TempleBloc's name, and was acting at the direction of Cooper. Kachina sent Cooper's credit application and TempleBloc's tax return to its credit agency, GMAC Financial Services (GMAC).
After GMAC approved the leases, Cooper signed the paperwork. He testified that Appellant told him not to talk to anyone at Kachina, to sign the documents, to write a check for $80, 000 even though the money was not in the account at the time, and to leave as quickly as possible. Kachina subsequently provided the four Hummers to TempleBloc.
In June 2004, M. Lima of Luxury Home Investments, LLC (Luxury Home) was in negotiations to buy a home valued at approximately $4.2 million in Paradise Valley, Arizona (Quartz Mountain Property). Lima met Appellant, who identified himself as Lane Quue, around this same time. Although Appellant informed Lima that he was "the right-hand man" for Cooper and that he wanted to purchase properties on Cooper's behalf, Lima never met Cooper.
Luxury Home entered into a contract to purchase the Quartz Mountain Property for $2 million and the current owners' personal property for an additional $320, 000. After securing the contract, Lima and Appellant negotiated a contract in which Luxury Home would sell the Quartz Mountain Property to TempleBloc for approximately $4.2 million.
After Appellant informed Lima that he was having trouble securing conventional financing for the purchase of the Quartz Mountain Property, Lima referred Appellant to J. Janssen of A&A Funding Corporation (A&A Funding). Because A&A Funding did not have the funds necessary for the Quartz Mountain Property Loan, Janssen referred the deal to J. Kapland of Mortgages, Ltd. And asked Mortgages, Ltd. to assist in funding the acquisition of the Quartz Mountain Property. Lima and Janssen gave Mortgages, Ltd. some of the paperwork it needed to complete the loan, including TempleBloc's tax return.
Mortgages, Ltd. provided TempleBloc with a $2.2 million loan to purchase the Quartz Mountain Property. Kaplan testified that he believed Appellant was Cooper, but Cooper was not involved in the acquisition of the Quartz Mountain Property and when Cooper discovered that Appellant was trying to purchase the house, he "objected to it from the start." However, after Appellant told him that everything was alright, Cooper "went on [Ross's] word" and signed the closing documents.
Luxury Home and Appellant negotiated a reduced purchase price of approximately $3.2 million for the Quartz Mountain Property in August 2004. Because TempleBloc still needed $1 million to purchase the Quartz Mountain Property, Lima contacted a private investor, Dr. R. Greenberg, to assist in securing the necessary financing. Dr. Greenberg's company, Quantum Consulting, LLC (Quantum), provided the loan for the additional $1 million.
As a result of some confusion over whether certain items of personal property were going to remain in the Quartz Mountain Property after the sale, Luxury Home gave TempleBloc a price concession. Rather than give money to TempleBloc, Luxury Home used approximately $430, 000 of the price concession funds to repay a portion of Quantum's loan. While completing the price concession agreement, Lima witnessed Appellant sign Cooper's name, which concerned Lima because this was the first time he had witnessed Appellant sign anything. Because of the price concession, TempleBloc and Cooper owed Quantum $600, 000, and a promissory note for this amount was recorded and was secured by the Quartz Mountain Property.[FN2>
FN2. The State charged Appellant with one count of fraudulent schemes and artifices for the $600, 000 loan from Dr. Greenberg (Count 2); however, the jury acquitted Appellant of this count at trial.
After TempleBloc secured financing, there was a simultaneous close of escrow with Luxury Home purchasing the Quartz Mountain Property from the owners for $2 million and simultaneously selling it to TempleBloc for $3.2 million. Because the parties used a nominee agreement, the deed indicated the buyer was TempleBloc and the sellers were the original owners. After the closing, Appellant and Veronica lived in the Quartz Mountain Property, but Cooper continued to reside at their previous address.
After purchasing the Quartz Mountain Property, Appellant told Cooper that he was going to release the liens because he wanted to be able to refinance. Appellant used the Internet to learn how to release liens on real property and told Cooper that by doing that, the house becomes "yours outright."
Appellant contacted A. Flagg-Thomas and asked her if she knew anyone who could notarize documents. She introduced Appellant to her friend S. Emudianughe. Emudianughe notarized two lien releases for Appellant: one in which Appellant signed as Daniel Moore in order to release the $2.2 million Mortgages, Ltd. lien, and the other in which Appellant signed as Dr. Greenberg in order to release Quantum's $600, 000 lien. Both lien releases stated that the debts had been fully paid.
After recording the lien releases, TempleBloc conveyed the Quartz Mountain Property to Horizon Consulting, Inc. (Horizon). TempleBloc registered for the trade name Horizon Consulting Grant Resource (HCGR) several weeks later.
Appellant subsequently obtained an $850, 000 line of credit from a private lender, J. Hancock, after Appellant told Hancock that he owned the Quartz Mountain Property "free and clear." Hancock believed that Appellant was Cooper and that Horizon was Appellant's company, and he agreed to provide draws against the line of credit to Appellant upon Appellant's request.
Before receiving any funds from Hancock, Cooper named himself president of Horizon at Appellant's request because Appellant told him that if Cooper was Horizon's president, it would enable them to deposit checks issued to Horizon in one of Veronica's bank accounts.[FN3] Hancock provided an initial draw of $225, 000 to Appellant. Appellant then requested that Hancock give Quantum $250, 000 as payment of the $600, 000 loan.
FN3. Although TempleBloc registered for the trade name HCGR, Cooper signed a corporate resolution that made him the president of Horizon. The corporate resolution states that Horizon is a Mississippi corporation.
Appellant later requested the remaining $375, 000 of the $850, 000 line of credit from Hancock. However, Appellant wanted the money quickly, and Hancock denied the request because Hancock was entitled to time to come up with the money under their agreement.
After learning that the Quartz Mountain Property liens had been fraudulently released, Mortgages, Ltd. filed an affidavit of erroneous recording with the recorder's office and initiated foreclosure proceedings in December 2004.
(Ex. BB at ¶¶ 2-20.)
Petitioner was sentenced on July 17, 2009, to the presumptive 15.75 years in prison on each of the four counts, and the sentences were ordered to be served concurrently. The court found that Petitioner had prior convictions for bank fraud and fraudulent schemes and artifices, both class 2 non dangerous offenses. (Exh. M.) Petitioner received credit for 1626 days of presentence incarceration. (Id.) The transcripts of the sentencing hearing reflected that the trial court imposed sentence on counts 1, 2, and twice on count 4, instead of the counts of conviction, 1, 3, 4 and 5. (Exh. CCC, at 32.) The judgment, however, indicated that the sentences were imposed on the correct counts. (Exh. M.)
II. DIRECT APPEAL PROCEEDINGS.
Petitioner filed a timely notice of appeal to the Arizona Court of Appeals, and on June 8, 2011, Petitioner's appointed counsel filed an opening brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he was unable to identify any arguable issues of merit. (Exh. Q.) Petitioner then filed supplemental pro per brief, raising the following issues (Exh. S):
1. Petitioner's due process rights were "violated when the State resubmitted [his] case before a new grand jury... and obtained a new charging instrument (8-9);
2. The State violated the Arizona Rules of Criminal Procedure and his due process rights by "add[ing] new statutes to charges that it resubmitted to a new grand jury" (9);
3. The charging instrument was not "legally valid" and the trial court lost jurisdiction to hold and try him (9-10);
4. The trial court failed to rule on his motions (10-17);
5. The State presented insufficient evidence to support his convictions (20-16, 31-35);
6. The trial court erred by failing to instruct the jury on various Arizona statutes pertaining to "criminal liability, " including "criminal liability on an individual ...