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Reed v. Fizer

United States District Court, D. Arizona

October 1, 2015

Michael Reed, Jr., Petitioner
v.
G. Fizer, et al., Respondents.

AMENDED REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS AND ORDER

JAMES F. METCALF, Magistrate Judge.

I. MATTER UNDER CONSIDERATION

Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 3, 2014 (Doc. 1). On March 23, 2015, Respondents filed their Limited Answer (Doc. 9). Petitioner filed a Reply and Motion for Evidentiary Hearing on April 30, 2015 (Doc. 10).

The Petitioner's Petition and Motion for Evidentiary Hearing are now ripe for consideration. Accordingly, the undersigned makes the following order, 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. PROCEEDINGS AT TRIAL

On October 7, 2010, Petition was indicted in Coconino County Superior Court on two counts of driving under the influence, arising out of the same events on April 15, 2010. (Exhibit A.) (Exhibits to the Answer, Doc. 9, are referenced herein as "Exhibit ____.") The state filed allegations of historical prior felony convictions, and allegations of aggravating factors, including a non-historical prior and other factors, but not including amenability to rehabilitation. (Exhibit B.)

Following a jury trial, Petitioner was convicted on both counts.

The Presentence Report recommended 8 year sentences, and included an analysis that placed Petitioner at a "medium-high risk" of reoffending. (Exhibit G, Presentence Report at 2-4.) The Report included the following conclusion:

The defendant, although he stated that he has a "problem" with alcohol, does not appear to consider treatment as being important. When asked if he intended to seek treatment offered through the Arizona Department of Corrections, he stated, "No. It wouldn't do me any good to do it while in prison; it won't count for anything on the outside."

( Id. at 5.) At sentencing, counsel objected to the belated assertion of this aggravating factor, and argued that Petitioner had not been afforded an opportunity to participate in alcohol. (Exhibit JJ, R.T. 6/2/11 Vol. I at 9-10.) The trial court quoted the Presentence Report's summation of Petitioner's comments. ( Id. at 11.) Defense counsel attempted to explain:

From the very beginning, when it was clear that the state wasn't going to offer Mr. Reed any sort of plea offers in this case, I was very up-front with him that he's facing a significant amount of time in this case and that the type of prison sentence that he's going into prison for is the type where a person mandatorily gets classified as a high-risk person and goes into a high-level security prison.
I've gone to those facilities. I've seen them myself and taken tours of them. These are the type of facilities where Mr. Reed's going to be in a prison cell with one other person for 23 hours a day, and then he's going to get out for one hour a day and be released with other people who are classified as high-risk offenders, including people that have done some very violent, very dangerous things.
From the very beginning I've been very clear with Mr. Reed about what he's looking at in this case, as I am with all of my clients, and I think Mr. Reed's statement merely reflects the statements of a person that is being realistic about what they're headed into.
Right now Mr. Reed doesn't really have the luxury of thinking very broadly about what type of treatment is available to him going into prison in the next several years. His much more fundamental concern is that, will he be safe there, will he get through it, those sorts of things, and that's largely due to my own presentation of his circumstances to him. That's how I always am with all of my clients.

( Id. at 11-13.)

Armed with various letters in support of Petitioner (Exhibits D and F), a sentencing memorandum from the State (Exhibit E), and the Presentence Report (Exhibit G), the trial court sentenced Petitioner to two, concurrent sentences of 12 years, aggravating the sentence based on Petitioner's criminal history and the lack of amenability to rehabilitation. (Exhibit H, Sentence at 2.) With regard to the latter, the Court stated: "I do find that Mr. Reed is not amenable to rehabilitation as exhibited by the numerous alcohol-related offenses and convictions in this case." (Exhibit KK, R.T. 6/2/11 Vol. II at 8.)

B. PROCEEDINGS ON DIRECT APPEAL

On June 3, 2011, Petitioner filed his Notice of Appeal (Exhibit J). Petitioner then filed through counsel an Opening Brief (Exhibit K) arguing violations of state law and federal Due Process under Blakely v. Washington, 542 U.S. 296 (2004) in sentencing. On February 14, 201, the Arizona Court of Appeals filed its Memorandum Decision (Exhibit N), affirming Petitioner's sentence.

Petitioner did not seek further review, and on March 30, 2012, the Arizona Court of Appeals issued its Mandate (Exhibit O).

C. PROCEEDINGS ON POST-CONVICTION RELIEF

First PCR Proceeding - Almost 15 months later, on August 20, 2013, Petitioner filed with the trial court a "Motion to File Successive Post-Conviction Relief" (Exhibit P), arguing that he had mailed a notice of post-conviction relief in March of 2012. Plaintiff submitted a copy of the prison's out-going mail log showing mail from Petitioner to the Coconino County Superior Court on March 21, 2012. (Exhibit P at attached Exhibit.)

In an Order filed August 23, 2013, the trial court reported an inability to find any record of such a notice of post-conviction relief, and directed Petitioner to submit any related correspondence or copies. (Exhibit Q, Order 8/23/13.) Several weeks later, the trial court filed a second Order indicating that the court had received a duplicate motion from Plaintiff, but which instead of having the mail log attached, it had a letter from the Coconino County Public Defender dated November 27, 2012 indicating that the time for notice of PCR had expired, and urging Petitioner to file a motion with the court "explaining what has transpired concerning your attempts to seek post-conviction relief." (Exhibit R, Order 9/10/13 at 1.) Also attached to that motion was the original of a Notice of Post-Conviction Relief signed as of March 23, 2013, with an incomplete Affidavit of Indigency, and no fold lines (which court thought indicative it had not been mailed from ADOC). Finally, the court expressed concern that the signatures on the various filings did not appear to be from the same person, and that it seemed unlikely that they could have been signed by Petitioner on August 19, 2013, and received by the Court the next day, suggesting that "the defendant may have someone other than himself filing his pleadings and signing for them." ( Id. ) The Court extended for 30 days the time for Petitioner to produce the notice of post-conviction relief purportedly filed in March, 2012. ( Id. )

On September 25, 2013 (fifteen days after the deadline), Petitioner filed a letter (Exhibit S) addressed to the trial court judge. Petitioner asserted that he had signed and mailed his motion himself, using a legal size manila envelope. He asserted he had followed the rules in submitting his PCR notice, and the clerk's office lost it. Petitioner again attached the mail log, as well as receipts purporting to show copying and notarization fees for a notice of post-conviction relief on March 20, 2012. He did not, however provide the notice.

On October 15, 2013, the trial court noted receipt of Petitioner's letter, the lack of an explanation for the copy showing a March 23, 2013 date and the purpose of the public defender's correspondence in November, 2012, and Petitioner's failure to act thereafter. The trial court thus found that "defendant's notice of post-conviction relief was not filed."

The trial court also found that the notice dated March 23, 2013 was untimely. Consequently, that notice was summarily dismissed. (Exhibit T, Order 10/15/13.)

Petitioner then filed a Petition for Review with the Arizona Court of Appeals, which that Court construed as a petition for special action. The court summarily declined to accept jurisdiction over the petition on November 4, 2013. (Exhibit V, Order 11/4/13.)

Second Proceeding - Some four months later, on February 10, 2014, Petitioner filed a Motion for Delayed PCR (Exhibit W). The parties reference no disposition of that motion.

Third Proceeding - Almost five months later, on July 9, 2014, Petitioner file a "Writ of Error of Coram Nobis" (Exhibit X) arguing that the trial judge had engaged in misconduct in the rejection of the earlier PCR proceeding.

In an Order filed July 14, 2014, the trial court, deeming the writ of coram nobis governed by Rule 32 concerning post-conviction relief petitions, denied a transfer of judge, and found that Petitioner was asserting arguments resolved in his direct appeal. Accordingly, the "Writ of Error" was denied. (Exhibit Y, Order 7/14/14.)

Petitioner then filed a Motion for Reconsideration (Exhibit Z). On August 11, 2014, the trial court denied the motion for reconsideration, finding no misconduct and that, in light of the Arizona Court of Appeals' refusal to accept jurisdiction in the earlier matter, the order of October 15, 2013 stood, including the determination that his earlier efforts were untimely.

D. 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 November 3, 2014 (Doc. 1). The Petition indicates that it was signed on October 28, 2014, but contains no representations about the time or manner of delivery or mailing. The envelope in which it arrived indicates it was sent by the Arizona Department of Corrections, and is postmarked October 31, 2014.

As summarized in the Court's service Order, Petitioner's Petition asserts the following four grounds for relief:

In Ground One, Petitioner alleges that his Fifth, Eighth, and Fourteenth Amendment rights were violated when the trial court "blocked/lost/refused to file" his notice of post-conviction relief. In Ground Two, Petitioner alleges that his sentence was unlawfully aggravated, in violation of his First, Fifth, Eighth, Ninth, and Fourteenth Amendments. He argues in Ground Three that he was denied due process when the trial court refused to allow a delayed request for postconviction relief pursuant to Rule 60(c) and when his request for a new judge was denied by the presiding judge of the Superior Court. In Ground Four, Petitioner asserts that his due process rights were violated when the trial court denied his writ of coram nobis.

(Order 2/6/15, Doc. 6 at 1-2 (emphasis added).)

Response - On March 23, 2015, Respondents filed their Limited Answer (Doc. 9). Respondents argue that the petition is untimely, the claims are procedurally defaulted, and the claims are not cognizable on habeas review.

Reply - On April 30, 2015, Petitioner filed a Reply and Motion for Evidentiary Hearing (Doc. 10). Petitioner argues he is entitled to application of the prison mailbox rule to his lost PCR notice sent March 21, 2012. He argues that he first saw his presentence report on May 2, 2014. He also argues the merits of his claims. Finally, he requests an "Evidentiary Hearing on the issues so sited [sic] in the writ of habeas corpus." ( Id. at 4.) He attaches documents related to his March, 2012 mailing to the trial court, his own affidavit, various records from the state court proceedings, and Arizona Rule of Criminal Procedure 32.1.

III. APPLICATION OF LAW TO FACTS

A. TIMELINESS

1. One Year Limitations Period

Respondents assert that Petitioner's Petition is untimely. As part of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one year limitations period are barred and must be dismissed. Id.

2. Commencement of Limitations Period

Conviction Final - The one-year statute of limitations on habeas petitions generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).[1]

Here, Petitioner's direct appeal remained pending through February 14, 2012, when the Arizona Court of Appeals denied his direct appeal.[2] (Exhibit N.) Thereafter, Petitioner had 30 days to seek review by the Arizona Supreme Court. Ariz. R. Crim. P. 31.19(a). Arizona applies Arizona Rule of Criminal Procedure 1.3 to extend "the time to file an appeal by five days when the order appealed from has been mailed to the interested party and commences to run on the date the clerk mails the order." State v. Zuniga, 163 Ariz. 105, 106, 786 P.2d 956, 957 (1990). Thus, Petitioner had through Tuesday, March 20, 2012 to seek review by the Arizona Supreme Court.[3] He did not do so, and accordingly his conviction became final by conclusion of direct review on that date.

Newly Discovered Factual Predicate - Petitioner argues in his Reply that he did not see his presentence report until May 2, 2104. (Reply, Doc. 10 at 4. See also id. at Exhibit B, Affidavit 10/28/14.) Petitioner argues that this report shows that the report writer failed to include all of the comments made to her by Petitioner, and yet the trial judge relied upon this incomplete report to sentence Petitioner. However, in his Petition, Petitioner asserts "Petitioner never saw the report until 2/2014." (Petition, Doc. 1 at 7.)

Although the conclusion of direct review normally marks the beginning of the statutory one year, section 2244(d)(1)(D) does provide an alternative of "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Thus, where despite the exercise of due diligence a petitioner was unable to discover the factual predicate of his claim, the statute does not commence running on that claim until the earlier of such discovery or the elimination of the disability which prevented discovery.

The commencement is not delayed until actual discovery, but only until the date on which it "could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). "Although section 2244(d)(1)(D)'s due diligence requirement is an objective standard, a court also considers the petitioner's particular circumstances." Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). Thus the court should consider such things as a petitioner's physical confinement and the limits of his imprisonment. "Just as the petitioner's particular circumstances may include impediments to discovering the factual predicate of a claim, they may also include any unique resources at the petitioner's disposal to discover his or her claim." Id. at 1236. For example, the court may consider such things as familial assistance and other legal assistance.

Similarly, information available to a habeas petitioners' attorneys is relevant to the determination whether knowledge is chargeable to a petitioner. "Under ordinary circumstances - and there is no room for the application of a different principle here - a lawyer's knowledge is attributed to her client." Wood v. Spencer, 487 F.3d 1, 4-5 (1st Cir. 2007), cert. denied, 128 S.Ct. 260 (2007). See also Ford v. Galaza, 683 F.3d 1230, 1236 (9th Cir. 2012) (citing Wood, 487 F.3d at 4-5, but not relying on attribution of attorney's knowledge to petitioner). On the other hand, where the factual predicate concerns such things as counsel's conflict of interest or failure to file a notice of appeal, which counsel could be presumed to conceal from his client, the knowledge of counsel may not be attributable to the petitioner. See e.g. Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (counsel's failure to file notice of appeal).

Here (assuming Petitioner did not see his presentence report until May 2, 2014), the record reflects that the presentence report and its contents were known to trial counsel and were discussed in open court. Both the trial court and the prosecutor quoted the relevant portion of the Presentence Report. (Exhibit JJ, R.T. 6/2/11, Vol. I at 11; Exhibit KK, R.T. 6/1/11 Vol. II at 3.) Thus, the knowledge of that report is chargeable to Petitioner's counsel, and thus to Petitioner, and directly to Petitioner given his presence at sentencing.

Moreover, section 2244(d)(1)(D) relates to the discovery of "the factual predicate of the claim." To the extent that a petitioner refers to recently discovered evidence, such evidence may not be the "factual predicate" of his claims, but rather only the evidence of those facts. See Flanagan v. Johnson, 154 F.3d 196, 198-99 (5th Cir.1998) (receipt of trial counsel's affidavit irrelevant where knowledge of facts supporting claim ineffectiveness previously known to defendant). Courts have attempted to distinguish between supporting evidence and a factual predicate by referring to the latter as the "vital facts." See e.g. Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). The Ninth Circuit has not elucidated what is meant by "vital facts, " but other circuits have.

The facts vital to a habeas claim are those without which the claim would necessarily be dismissed under Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (requiring a district judge to dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief") or Rule 12(b)(6) of the Federal Rules of Civil Procedure (allowing for dismissal of a civil complaint where the plaintiff has "fail[ed] to state a claim upon which relief can be granted").

Rivas v. Fischer, 687 F.3d 514, 535 (2d Cir. 2012) (applying § 2244(d)(1)(D)).

Petitioner makes no explanation of what factual predicate was provided by the presentence report. His claim is in part that his sentence was improperly aggravated based on factors found by the judge, in violation of Blakely. In Blakely v. Washington, 542 U.S. 296 (June 24, 2004), the Court held that "the statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303. The presentence report only adds the evidentiary contention that the judge had inadequate or flawed evidence on which to make a finding of the aggravating factors. That is not a "vital fact" of a Blakely claim, which instead is based upon the requirement of the judge finding the factual basis for an aggravating factor, not his means of doing so.

Accordingly, Petitioner fails to show that his recent receipt of his presentence report justifies a delay in commencement of the limitations period.

Attacks on Recent Proceedings - Plaintiff's claims in Grounds 1, 3, and 4 all arise out of complaints over the handling of his claims in his PCR proceedings.

In Ground One, Petitioner alleges that his rights were violated when the trial court "blocked/lost/refused to file" his notice of post-conviction relief. That did not occur until October 15, 2013. (Exhibit T, Order 10/15/13.) Moreover, that did not become a final act until the rejection of Petitioner's Petition for Review on November 4, 2013. (Exhibit O, Order 11/4/13.) (Petitioner's habeas petition was filed less than one year later, on November 3, 2014.) Accordingly, the factual predicate of this claim could not have been discovered until after November 4, 2013.

In Ground Three Petitioner argues that he was denied due process when the trial court refused to allow a delayed request for postconviction relief pursuant to Rule 60(c) and when his request for a new judge as requested in his Writ of Coram Nobis (Exhibit X) was denied. In Ground Four, Petitioner asserts that his due process rights were violated when the trial court denied his writ of coram nobis. The Order denying that filing was not filed until August 11, 2014 (Exhibit AA). Accordingly, the factual predicate of these claims could not have been discovered until no or after August 11, 2014.

Conclusion re Commencement - Therefore, Petitioner's one year on his claim in Ground 2 began running on March 21, 2012, and without any tolling expired on March 20, 2013. His one year on his claims in Ground One began running after November 4, 2013, and expired sometime after November 4, 2014. His one year on his claims in Grounds Three and Four began running sometime after August 11, 2014, and expired sometime after August 11, 2015.

3. Timeliness Without Tolling

Petitioner's Petition (Doc. 1) was filed on November 3, 2014 (Doc. 1). The Petition indicates that it was signed on October 28, 2014, but contains no representations about the time or manner of delivery or mailing. The envelope in which it arrived indicates it was sent by the Arizona Department of Corrections, and is postmarked October 31, 2014.

"In determining when a pro se state or federal petition is filed, the mailbox' rule applies. A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing." Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Because it appears that Petitioner did deliver his petition to prison officials for mailing, and it is reasonable to assume that it may have been done prior to the mailing date, and because it does not affect the outcome, the undersigned presumes (in Petitioner's favor) that his Petition was delivered to prison officials for mailing on the date it was signed, and that it should be deemed "filed" as of that date.

As determined in subsection (2) above, without any tolling Petitioner's one year habeas limitations period on Ground 2 expired no later than March 20, 2013, making his October 28, 2014 Petition over 19 months delinquent.

However, as determined in subsection (2) above, his limitations period on the claims in Grounds 1, 3 and 4 did not expire until November 4, 2014 or later, making his Petition timely with respect to these claims.

4. Statutory Tolling

The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). This provision only applies to state proceedings, not to federal proceedings. Duncan v. Walker, 533 U.S. 167 (2001).

Properly Filed - Statutory tolling of the habeas limitations period only results from state applications that are "properly filed, " and an untimely application is never "properly filed" within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 (2005).

Even if the state court provides alternative grounds for disposing of the state application, a ruling that the application was untimely precludes it from being "properly filed" and tolling the limitations period. Carey v. Saffold, 536 U.S. 214, 225-26 (2002). If the state court summarily disposes of a state application without identifying if it was on timeliness grounds, or otherwise fails to give a clear indication whether it has deemed the application timely or untimely, the federal habeas court "must itself examine the delay ...


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