United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Petitioner objects to the Report and Recommendation (R&R) of Magistrate Judge Burns. Doc. 16. The R&R suggests that the Court deny the pro se petition for writ of habeas corpus brought under 28 U.S.C. § 2254. Doc. 15. Specifically, Judge Burns found that Petitioner procedurally defaulted grounds one and three of his petition by failing to present them to the state court, and that he failed to show cause and prejudice to excuse the default. Doc. 15 at 12. Judge Burns found that ground two of the petition is not a cognizable federal claim. Id. at 14. For the reasons that follow, the Court will accept the R&R and deny the habeas petition.
The petition concerns two Arizona state cases: CR XXXX-XXXXXX, in which Petitioner was charged with threatening two police officers and others with a pellet gun, and CR XXXX-XXXXXX, in which he was charged with assaulting a detention officer in the Maricopa County Jail. Doc. 15. In CR XXXX-XXXXXX, Petitioner pled guilty to two counts of class 2 felony aggravated assault and one count of class 3 felony aggravated assault. Doc. 15 at 2. The plea agreement required that Petitioner be sentenced to prison for the class 2 felony assaults and did not state whether these sentences would be served consecutively or concurrently. Id. Petitioner agreed to be placed on supervised probation for the class 3 assault. Id. In CR XXXX-XXXXXX, Petitioner pled guilty to a class 5 felony aggravated assault. The plea agreement provided that Petitioner would be placed on supervised probation upon his release. Id. at 9.
At sentencing, the trial court heard from officers present at the scene of the class 2 assaults. They described Petitioner's brandishing of what appeared to be a firearm in the middle of a public street, pointing it at drivers who fled in fear, pointing it at officers who were trying to get the scene under control, and refusing to comply with officers' commands until he was forcibly subdued. Doc. 13-1 at 47-79. The trial court considered Petitioner's criminal history and past gang affiliation, heard arguments about his mental health, and sentenced Petitioner to two terms of 18.5 years on the class 2 felonies, to be served consecutively, and to a probationary period following his imprisonment. Id. This was less than the 46.5-year sentence requested by the State. Id. at 65.
Petitioner filed a timely notice of post-conviction relief ("PCR"). His PCR counsel found "no claims for relief to raise in post conviction proceedings." Doc. 15 at 3 "Petitioner filed a timely pro per PCR petition, raising the following issues: 1) ineffective assistance of counsel ("IAC") for failure to explain contents of plea agreements to defendant;' and 2) the trial court improperly aggravated his sentences and also improperly ordered them to be served consecutively." Id. at 3-4 (quoting Ex. N at 6-8). The trial court denied the PCR petition. Id. at 4.
Petitioner filed a petition for review with the Arizona Court of Appeals raising four issues: "1) whether his plea was legal because he was on psychotropic narcotic drugs while pleading guilty before the judge;' 2) whether his sentence was properly aggravated with a prior conviction; 3) whether the imposition of consecutive sentences was proper; and 4) IAC (generally and relating to his plea)." Id. (quoting Doc. 6 at 31-46). The Court of Appeals denied the petition, finding that nothing in the record indicated that the trial court or Petitioner's trial counsel should have doubted his competency at the plea hearing, that the sentence was properly aggravated, that consecutive sentences were lawful because the sentences were imposed for a single act that harmed multiple victims, and that most of Petitioner's IAC claims were too vague or unsupported to permit meaningful review. Id. at 4-6. The Court of Appeals found that Petitioner's IAC claim regarding his acceptance of the plea agreement was sufficiently specific, but determined that the record contradicted his claim and that Petitioner had failed to establish prejudice arising from trial counsel's actions. Id. at 5. The Arizona Supreme Court denied review. Id.
Petitioner's federal habeas petition raises three grounds for relief: (1) ineffective assistance of counsel in violation of the Fifth and Sixth Amendments because trial counsel failed to investigate Petitioner's mental history and his alleged prior conviction and failed to "group plea's at sentencing;" (2) the sentence violated the Fifth and Sixth Amendments because the trial court improperly used a prior conviction, "transfer[red] intent in violation of the law, " relied on insufficient testimony, and engaged in judicial fact finding; and (3) the sentence was excessive and violated the Fifth Amendment because it was based on brandishing a pellet gun which had no CO2 cartridge. See Doc. 6 at 6-8.
Judge Burns found that Petitioner failed to exhaust his remedies in state court on grounds one and three, resulting in procedural default. Id. at 12. On ground one, she found that "[w]hile Petitioner raised differing IAC claims [in] his PCR petition and petition for review, both pleadings failed to mention any failure to investigate or [group the plea agreements], but instead argued IAC generally and relating to the acceptance of his plea and failure to explain the contents of his plea." Id. On ground three, Judge Burns found that Petitioner failed to raise a "claim in his PCR petition or petition for review arguing that his sentence was constitutionally excessive or absurd' as set forth in his habeas petition." Id. Judge Burns also found on grounds one and three that Petitioner failed to establish any basis "to excuse the procedural default by showing of cause and prejudice [and did not argue] a fundamental miscarriage of justice." Id. Finally, Judge Burns found that ground two failed to state a cognizable federal claim because it concerned "[s]entence calculation and application of state sentencing statutes [that] are matters of state law, " and Petitioner failed to establish that his sentence was "arbitrary and capricious, or fundamentally unfair." Id. at 14-15
Petitioner's objection to the R&R focuses entirely on exhaustion and procedural default. Petitioner argues that his counsel at the sentencing hearing failed to state that the pellet gun was inoperable, that he was under the influence of both drugs and alcohol, and that he lacked the intent to place anyone in imminent physical danger. Id. He argues that this is a substantial claim and that he was left unrepresented during PCR proceedings when his appointed PCR counsel filed a notice stating that he could find no errors in the conviction or sentencing. Id. at 2. Petitioner also argues that his PCR counsel should have addressed "judicial fact finding" and the imposition of consecutive sentences. Id. at 2. Petitioner closes by claiming that his counsel acted in violation of the State Bar of Arizona Rules of Professional Conduct and that he has been denied due process. Id. at 3.
A. Ground Two.
As noted, Judge Burns found that ground two failed to state a cognizable federal claim. Petitioner raises no objection to this conclusion. Doc. 6. The Court must undertake a de novo review only of those portions of the R&R to which specific objections are made. Fed.R.Civ.P. 72(b)(3); United States v. Reyna-Tapia, 328 ...