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Love v. Escapule

United States District Court, D. Arizona

November 30, 2015

Donald Love, Petitioner,
v.
Warden Escapule, et al., Respondents.

REPORT AND RECOMMENDATION

Michelle H. Bums United States Magistrate Judge

Petitioner Donald Love, who is confined in the Arizona State Prison Complex, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and a Supplement and Memorandum in support thereof (Docs. 2, 3). Respondents filed an Answer and Petitioner filed a Reply (Docs. 11, 12).

BACKGROUND[1]

Petitioner’s habeas petition references two Maricopa County Superior Court cause numbers: CR2008-007760-009 and 2008-009328-004.

Cause No. CR2008-007760-009

On September 8, 2008, the Maricopa County Grand Jury issued a multi-defendant, multi-count indictment, which charged Petitioner with 15 crimes: Count 1, conspiracy, a class 2 felony; Count 2, illegally conducting an enterprise, a class 3 felony; Counts 38, 49, 308, 319, 325 and 386, use of a wire in a Chapter 23 offense, class 4 felonies; Counts 39 and 50, attempted fraudulent schemes and artifices, class 3 felonies; Count 232, offer to sell or transfer cocaine, a narcotic drug, a class 2 felony; Counts 233 and 368, use of a wire in a drug related transaction, class 4 felonies; Count 366, solicitation of an offer to sell or transfer a narcotic drug, a class 4 felony; and Count 395, offer to sell or transfer marijuana, a class 4 felony. (Exh. A at 1-3.) On October 3, 2008, the State filed an allegation of historical priors-that Petitioner had three prior non-dangerous felony convictions, specifically, a 2003 class 6 felony conviction for possession of marijuana; a 2003 class 4 felony conviction for forgery; and a 1997 class 3 felony conviction for assisting a criminal syndicate. (Exh. B at 1-2.) On October 22, 2008, the State moved to amend the indictment to allege that the crimes in all counts were committed with the intent to promote, further, or assist any criminal conduct by a criminal street gang. (Exh. C at 1-3.) On April 16, 2009, the State filed an allegation of aggravating circumstances. (Exh. D.)

On September 1, 2009, Petitioner entered a plea agreement in which he pled guilty to amended Count 232, offer to sell cocaine, a narcotic drug, a class 2 felony with one prior felony conviction. (Exh. E at 1.) The plea agreement stipulated to a term of 15.75 years of imprisonment, with entry of the plea contingent upon entry of a guilty plea in cause number CR2008-009328-004. (Id. at 1.) The State agreed to dismiss all other counts in this cause number. (Id. at 2.) The trial court advised Petitioner in open court of “all pertinent constitutional rights and rights of review.” (Exh. F at 1; Exh. KKK at 7.) The factual basis for the plea was sealed pursuant to a previous court ruling. (Exh. G at 2; Exh. KKK at 9-10.)

The presentence report summarized the factual basis for this cause number as follows:

On or about June 18, 2008, the defendant and Dennis Watson (005) knowingly offered to sell crack cocaine.

(Exh. K at 2.)

On September 29, 2009, the trial court sentenced Petitioner, in accordance with the plea agreement, to an aggravated term of 15.75 years of imprisonment. (Exh. I at 2; Exh. LLL at 5-6.) That same day, Petitioner received and signed a notice of rights of review. (Exh. J.)

Cause No. CR2008-009328-004

On December 16, 2008, the Maricopa County Grand Jury issued another multi-defendant, multi-count indictment, which charged Petitioner with eight more crimes: Count 1, conspiracy, a class 2 felony; Count 2, illegally conducting an enterprise, a class 3 felony; Count 3, assisting a criminal street gang; Counts 4 and 5, using a building for the sale, manufacture or distribution of dangerous drugs, class 4 felonies; Count 79, offer to sell or transfer marijuana, a class 4 felony; Count 81, use of a wire in a drug related transaction; and Count 318, misconduct involving weapons, a class 4 felony. (Exh. L at 1-4.) On January 14, 2009, the State filed an allegation regarding Petitioner’s repetitive offender status. (Exh. M.) On March 17, 2009, the State filed an allegation that Petitioner is a serious drug offender under A.R.S. § 13-3410 and a request for an aggravation hearing. (Exh. N.)

On September 1, 2009, Petitioner entered a plea agreement, pleading guilty to amended Count 2, illegal control of an enterprise, a class 3 felony, in exchange for the State dismissing all other counts and sentencing allegations in this cause number. (Exhs. O and P.)

Additionally, the State agreed to “file no charges as to this defendant regarding the shootings at 7th Avenue and Broadway” as reflected in Phoenix Police DR 2008-80393181 and “shall not file any further charges arising out of the computer seized in this investigation as to this defendant.” (Exh. O at 1; Exh. P at 2.) The trial court advised Petitioner in open court of “all pertinent constitutional rights and rights of review.” (Exh. P at 1; Exh. KKK at 7.) The factual basis for the plea was sealed pursuant to a previous court ruling. (Exh. P; Exh. Q at 1-2; Exh. KKK at 9-10.) According to the presentence report, the facts underlying this conviction are as follows:

Between May 20, 2008, and September 9, 2008, the defendant was employed by or associated with an enterprise, and knowingly conducted such enterprise’s affairs through racketeering or did knowingly participate directly or indirectly in the conduct of the enterprise which he knew was being conducted through racketeering. The racketeering included: conspiracy, assisting a criminal street gang, using a building for the sale, manufacture or distribution of dangerous drugs, use of a wire in a drug related transaction, offer to sell or transfer marijuana, and misconduct involving weapons.

(Exh. K at 1.)

On September 29, 2009, the trial court, in accordance with the plea agreement, placed Petitioner on intensive probation for 3 years upon absolute discharge from the sentence imposed in CR2008-007760. (Exh. O at 1; Exh. R at 2; Exh. LLL at 7-8.)

Both Case Numbers

On November 4, 2009, Petitioner filed a timely notice of post-conviction relief (PCR) in both cause numbers. (Exh. S.) On December 16, 2009, the trial court appointed one PCR counsel for both cause numbers. (Exh. T.)

On October 27, 2010, PCR counsel filed a motion for an extension of time. (Exh. U.) The trial court granted the extension the next day. (Exh. V.) On November 1, 2010, Petitioner filed a letter to the court, on which the court took no action because Petitioner was represented by counsel. (Exhs. W and X.) On November 24, 2010, PCR counsel filed a request for a second extension, which the trial court granted on December 2, 2010. (Exhs. Y and Z.)

On January 18, 2011, PCR counsel filed a notice of completion, alerting the trial court that “having written to Petitioner and spoken with him by telephone, having reviewed the relevant transcripts and court record herein is unable to find a tenable issue to submit to this Court pursuant to Ariz. R. Crim. P. 32.” (Exh. AA at 1.) On January 19, 2011, the trial court granted Petitioner time within which to file a pro per PCR petition. (Exh. BB.) On February I, 2011, Petitioner filed a request with the trial court for preparation of the record, complaining that defense counsel had not produced the entire file. (Exh. CC.) On February II, 2011, the trial court ordered PCR counsel to produce the file, and on February 14, 2011, counsel filed a notice of compliance with the court, ...


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