United States District Court, D. Arizona
Demetrius A. Wilson, Petitioner,
Charles L. Ryan, et al., Respondents.
JAMES A. TEILBORG, Senior District Judge.
Before the Court is the Magistrate Judge's Report and Recommendation ("R&R"), (Doc. 43), recommending that the Court deny Petitioner's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody, (Doc. 1). Also before the Court is Petitioner's Objection to the Report and Recommendation Due to Violation of the Original Plea Agreement and Exhaustion and Seeking Certificate of Appealability for the Following Reasons. (Doc. 53).
On August 10, 2009, Petitioner was charged with armed robbery in case number CR2009-151399-001 ("Case 1399") based on an incident that occurred on May 23, 2009. (Doc. 13, Ex. A). On April 14, 2010, Petitioner signed a plea agreement, whereby Petitioner pleaded guilty in Case 1399. (Doc. 13, Ex. B). Pursuant to that agreement, the prosecutor agreed "not to file any additional theft related charges arising from [police report] Mesa DR XXXX-XXXXXXX." ( Id. ). The Superior Court of Arizona accepted the plea, (Doc. 13, Ex. C), and sentenced Petitioner to the presumptive four year prison term, credited Petitioner with 391 days of presentence incarceration, and imposed community supervision, (Doc. 13, Ex. E).
On February 28, 2013, Petitioner was indicted by a grand jury for armed robbery in case number CR2013-001167-001DT ("Case 1167"), based on an incident that occurred on May 12, 2009. (Doc. 13, Ex. F). The indictment referenced a report from the Tempe Police Department. ( Id. ). On August 23, 2013, Petitioner was charged with two counts of armed robbery and two counts of aggravated assault in case number CR2013-004029-001DT ("Case 4029") based on incidents that occurred on May 15 and 19, 2009. (Doc. 13, Ex. G). The charging document in that case referenced two Tempe Police Department police reports. ( Id. ).
Petitioner signed plea agreements for Case 1167 and Case 4029 on August 23, 2013. (Doc. 13, Exs. H, I). Under both agreements, Petitioner was to serve a prison term of four years, which would run concurrently with his four-year sentence in Case 1399, which Petitioner had already completed. (Doc. 13, Exs. H, I, K). During a hearing that took place on the date Petitioner signed the agreements, Petitioner's attorney explained that Petitioner had filed motions to dismiss Case 1167 and Case 4029 on the basis that they were covered by the prosecutor's promise in the 1399 plea agreement to not bring any more related charges, but that the plea agreements in Case 1167 and Case 4029 "got the same resolution in a more expedient manner." (Doc. 13, Ex. K at 25-26).
On October 9, 2013, the Superior Court sentenced Petitioner to four years imprisonment and gave Petitioner credit for 1, 414 days served, which equates to 3.87 years. (Doc. 13, Exs. L, M). The court also imposed six months of community supervision. (Doc. 13, Exs. L, M). It is unclear why Petitioner, who had apparently finished his four year sentence in Case 1399 prior to being sentenced in Case 1677 and Case 4029, ( see Doc. 13, Ex. K at 4, 6, 8, 26), was not credited with four full years of time served.
On December of 2013, Petitioner filed petitions for post-conviction relief under Arizona Rule of Criminal Procedure 32, arguing that his conviction in Case 1677 violated the plea agreement in Case 1399 and that the Superior Court erred by sentencing him to six months community supervision in Case 1677. (Doc. 13, Exs. N, O, P, Q). On March 5, 2014, the Superior Court dismissed Petitioner's Rule 32 petition in Case 1399 as untimely, but allowed Petitioner to proceed with this Rule 32 petition in Case 1677. (Doc. 13, Ex. R). On March 10, 2014, however, Petitioner filed motions to dismiss both of his Rule 32 petitions. (Doc. 13, Exs. S, T). Petitioner did not state the reason for the motion; he only stated that he "no longer want[ed] the rule 32 PCR." (Doc. 13, Ex. S, T). The Superior Court granted the motions on March 19, 2014. (Doc. 13, Ex. U).
Petitioner filed the present habeas petition on December 19, 2013, after he filed his Rule 32 petitions but before he moved to dismiss them. (Doc. 1). On April 25, 2014, while his habeas petition was pending, Petitioner finished serving his sentence, including his community supervision. (Doc. 40, Ex. A at 3). On May 13, 2014, however, Petitioner was arrested and charged with burglary, robbery, and theft in case number CR2014-122610-001 based on an incident that allegedly happened that same day. (Doc. 40, Exs. B, C).
The government filed its Limited Answer to Petition for Writ of Habeas Corpus ("Answer") on July 3, 2014, in which it argued, inter alia, that the habeas petition is barred because Petitioner did not exhaust his remedies in state court. (Doc. 13). The Magistrate Judge, recognizing that Petitioner had completed his sentences in Case 1167 and Case 4029, ordered the government to "file a pleading which informs the Court as to the basis for Petitioner's current detention and whether Petitioner's current detention [arose] from Petitioner's 2013 convictions and sentences or an allegation that Petitioner violated supervision imposed in the 2013 matters." (Doc. 38 at 11). The Magistrate Judge further ordered the government to "address whether Petitioner's habeas petition challenging his 2013 convictions and sentences is now moot" as a result of Petitioner's completion of his sentence in the 2013 matters. ( Id. ). In response, the government filed Respondent's Response to this Court's Order of February 3, 2015, explaining that Petitioner was in custody pursuant to CR2014-122610-001, which, as noted above, was based on an incident that occurred on May 13, 2014. (Doc. 40 at 3). The government further argued that Petitioner only challenges his 2013 sentences and not his 2013 convictions, and that his completion of the 2013 sentences therefore moots Petitioner's habeas petition. ( Id. ).
The Magistrate Judge filed its R&R on March 5, 2015, concluding that Petitioner's habeas claims are moot, that Petitioner did not exhaust his state court remedies and therefore procedurally defaulted, and that Petitioner showed no cause for his procedural default. (Doc. 43). The Magistrate Judge therefore recommended that Petitioner's habeas petition be dismissed. ( Id. at 24). Petitioner objected to the Magistrate Judge's recommendations. (Doc. 53).
II. Standard of Review
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc ) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, but not otherwise.'"); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court "must review de novo the portions of the [magistrate judge's] recommendations to which the parties object."). District courts are not required to conduct "any review at all... of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.").
The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner was incarcerated based on a state conviction. With respect to the claims Petitioner exhausted before the state courts, under 28 U.S.C. § 2254(d)(1) and (2) this Court must deny the Petition on those claims unless "a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law" or was based on an unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). Further, this Court must presume the correctness of ...