United States District Court, D. Arizona
REPORT AND RECOMMENDATION
THE HONORABLE SUSAN R. BOLTON
Petitioner Vincent Edward Rodriguez, 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 Memorandum in support thereof (Doc. 3). Respondents filed an Answer and Petitioner filed a Reply (Docs. 8, 9, 13).
Petitioner was released from prison to a halfway house in October 2002, but less than a month later, he absconded. (Exh. A at 1.) On May 3, 2003, he was arrested after police found methamphetamine in his possession. (Id.) He tried to flee, but following a chase, he was caught. (Id.)
He was charged by Information on May 13, 2003, in case CR2003-013217, with one count of knowingly possessing methamphetamine, a dangerous drug, and one count of resisting arrest. (Exh. B.) Petitioner pled guilty pursuant to a plea agreement to the possession of dangerous drug charge. (Exh. C.) He was scheduled to be sentenced on October 8, 2003, but failed to appear and a warrant was issued for his arrest; he was not arrested until August 16, 2004. (Exh. D.) On September 29, 2004, the trial court suspended imposition of sentence and placed him on probation for 3 years. (Exh. E.)
On August 2, 2006, Petitioner approached a Phoenix Police undercover officer and asked the officer if he was looking for any “weed or glass.” (Exh. F.) The officer gave him $20.00 and Petitioner went to a nearby apartment and obtained methamphetamine, returned, and gave the officer half the contents of the baggie. (Id. at 1.)
On August 20, 2006, Petitioner was arrested for apparently unrelated new charges of possession of marijuana and possession of drug paraphernalia, and for violating probation in CR2003-013217. (Id. at 2.) When Petitioner failed to report for his probation violation hearing, a bench warrant was issued. (Id.)
A few months later, on November 29, 2006, Petitioner was indicted in case CR2006-012527 for 1 count of sale or transportation of dangerous drugs, a class 2 felony for the sale to the undercover officer on August 2nd. (Exh. G.) Given his absconder status, Petitioner was not arraigned on this new charge until March 16, 2009. (Exh. H.)
In CR2006-012527, on June 22, 2009, Petitioner entered into a plea agreement with the State in which he agreed to plead “no contest” to the charge, in return for the State agreeing to a concurrent sentence with the sentence in CR2003-013217, and for dropping its allegations of prior felony convictions, committing a felony while on probation, and committing a felony while on release. (Exh. I.)
On July 29, 2009, the trial court sentenced Petitioner pursuant to his plea agreement for the 2006 charge and, after revoking Petitioner’s probation for the 2003 offense. (Exh. J.) For the 2006 charge, the trial court sentenced Petitioner to prison for 7.5 years flat-time and for the 2003 offense, to 2.5 years. (Id.) Both sentences began to run from July 29, 2009, with credit for presentence incarceration on both. (Id.) Petitioner is no longer in custody under the 2.5-year sentence in CR2003-013217.
On September 9, 2009, Petitioner timely filed a notice of post-conviction relief (“PCR”), listing both cases. (Exh. K.) Appointed counsel reviewed Petitioner’s cases, and on June 18, 2010, notified the court that counsel was unable to find any claims for relief. (Exh. L.) Petitioner filed his PCR petition on February 1, 2011, but the PCR court subsequently struck it because the petition did not comply with the Arizona Rules of Criminal Procedure, including Rule 32.5’s restriction of the PCR petition to 25 pages in non-capital cases. (Exh. M.) The court allowed Petitioner the opportunity to re-file a PCR petition in compliance with the Rules.
Eventually, after various trips to the Arizona Court of Appeals by appeal and special action, and a multitude of extensions of time, on December 19, 2011, Petitioner re-filed his PCR petition, which the PCR court accepted as timely. At the conclusion of the briefing, on April 24, 2012, a new judge entered an Order finding various claims precluded, and others not colorable by virtue of Petitioner’s no-contest plea, but ordered an evidentiary hearing on two claims. (Exh. N.)
At the time set for the evidentiary hearing, the PCR court vacated its order granting Petitioner’s motion to appoint counsel. (Exh. O.) The PCR court also vacated its April 24, 2012 order for an evidentiary hearing. (Id. at 2.) The PCR court explained that, given Petitioner’s “multiple pleadings, ” it had mistaken Petitioner’s stricken February 2011 petition for the December 2011 petition. (Id.) Because Petitioner had not complied with Rule 32.5 in either of his PCR petitions, the PCR court struck the December 2011 petition and, on May 24, 2012, dismissed the PCR proceedings. (Id.)
Petitioner petitioned the Arizona Court of Appeals to review the dismissal of his December 2011 PCR petition. On October 30, 2013, in a Memorandum Decision, the Court granted review, but denied relief. (Exh. P.) The Court found that Petitioner’s December 2011 PCR petition failed to comply with Rule 32.5 and thus the Court found “no error in the trial court’s decision to strike Petitioner’s petition and dismiss the proceedings.” (Id. at ¶ 7.) The Court stated “a petition exceeding the page limit by approximately one ...