United States District Court, D. Arizona
AMENDED REPORT AND RECOMMENDATION
DAVID K. DUNCAN, District Judge.
TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE
After this Court issued a Report and Recommendation on the Petition for Writ of Habeas Corpus filed by Jimmie Lee Ford, Ford moved to amend his Petition. (Docs. 15, 16). Respondents did not file any response. Ford's motion was referred for a report and recommendation on whether his motion to amend should be granted and whether granting his motion would affect his previously filed motion to stay and abey his Petition. (Doc. 20)
On close review of the record, it appears that Ford's motion to amend is an attempt to update the record and to add a new claim. The record presented to the Court by Respondents did not include any indication that Ford had a petition for review pending before the Arizona Court of Appeals. He did and, during the pendency of his Petition, the Court of Appeals granted review and denied relief in a petition for review that Ford had filed after the Maricopa County Superior Court had dismissed a subsequent petition for post-conviction relief alleging ineffective assistance of counsel.
Because of this newly complete record, the Court is issuing this amended report and recommendation with a complete history of the case that addresses Ford's Petition for Writ of Habeas Corpus, his motion to amend, and his additional pending motions.
On November 8, 2008, after an eight day trial in Maricopa County Superior Court, a jury found Ford guilty of two counts of aggravated assault, both dangerous offenses; one count of possession of narcotic drugs; and one count of possession of marijuana. (Doc. 10, Ex. N) At his sentencing in January 2009, the Court found that Ford had two previous felony convictions from another state and used those to enhance his aggravated assault sentences. (Doc. 10, Ex. O) On the same day as his sentencing, Ford signed to acknowledge receipt of a notice detailing his right to appeal and his right to post-conviction relief ("Notice of Right to Appeal"). (Doc. 10, Ex. P)
Direct Appeal. On direct appeal, Ford successfully argued that his convictions should not have been enhanced by his prior out-of-state convictions; in April 2011, the Superior Court resentenced him on the aggravated assault counts only. (Doc. 10, Exs. R, S, T, U, V, W, X) Importantly for these purposes, there was no notice of appeal filed after his resentencing.
First Post-Conviction Relief Proceedings. After the Court of Appeals issued its decision in his direct appeal but before it issued its mandate, Ford initiated post-conviction relief ("PCR") proceedings in Superior Court. (Doc. 10, Exs. V, W, CC) His appointed counsel found no colorable claims and, with the Court's permission, Ford filed a pro per petition. (Doc. 10, Exs. DD, EE, FF, GG) In response, the State argued that Ford's petition violated Arizona Rule of Criminal Procedure 32.5 because it was not supported by any facts or legal citations, it raised claims that were precluded or waived, and his ineffective assistance of trial counsel argument failed to state a claim. (Doc. 10, Ex. HH) On January 26, 2012, at the conclusion of briefing, the Superior Court summarily dismissed Ford's post-conviction proceedings "for the reasons given in the State's response." (Doc. 10, Exs. II, JJ, KK)
On March 7, 2012, Ford filed a petition for review in the Arizona Court of Appeals. (Doc. 10, Ex. LL) Less than a week later, the Court of Appeals dismissed it as untimely. (Doc. 10, Ex. MM) It appears that Ford then requested and received an extension to file his pro per petition for review in the Court of Appeals; in accordance with this extended deadline, he timely filed his petition for review where he listed seven issues, did not detail any material facts, and listed certain briefs that he considered relevant. (Doc. 10, Exs. OO at 4, QQ, TT) He described his ineffective assistance of counsel claim as follows: "First, the defendant must show that counsel's performance was deficient... which is obvious. Second, he must show that the deficient performance prejudiced the defense. State ex rel. Thomas V Rayes 214 Ariz. 411, 413, 153 P.2d 1040, 1042 (2007) defendant has met this test." [sic] ( Id. ) The petition does not contain any additional explanation or argument; Ford expanded on his arguments in his reply brief. (Doc. 10, Ex. SS)
At the conclusion of briefing on his petition, Ford's case was reassigned to Division Two of the Court of Appeals which, on August 26, 2013, granted review and denied relief. (Doc. 10, Exs. RR, SS, UU) Specifically, the Court concluded that, with the exception of his claim for ineffective assistance of trial counsel, all of Ford's claims were precluded by his failure to raise them at trial or on appeal. (Doc. 10, Ex. UU at ¶ 5) The Court also found that Ford's ineffective assistance claim did not comply with Arizona Rule of Criminal Procedure 32.9(c) "in any meaningful way" and found that the Superior Court did not abuse its discretion in rejecting his claims. Specifically, Ford only made a "bald assertion that counsel erred" and, therefore, he did not show that counsel's performance was deficient under Strickland v. Washington, 466 U.S. 668, 687 (1984). ( Id. at ¶ 6) Ford moved for reconsideration and also sent a letter to Division One of the Court of Appeals asking for information. (Doc. 10, Exs. VV, TT) The Court denied his motion for reconsideration, and, subsequently, the Clerk of the Court for Division One responded to his letter. (Doc. 10, Exs. VV, WW)
Ford petitioned the Arizona Supreme Court for review and, on March 4, 2014, the Supreme Court denied review. (Doc. 10, Exs. XX, YY) It appears that Ford did not petition the Supreme Court of the United States for certiorari.
Second PCR Proceedings. Shortly after Ford petitioned the Court of Appeals from the dismissal of his second post-conviction proceedings, he filed an amended petition for post-conviction relief in Superior Court. (Doc. 10, Ex. NN) The State responded that Ford was not entitled to amend his petition and the Court agreed. (Doc. 10, Exs. OO, PP)
Third PCR Proceedings. In October 2013, Ford filed a Notice of Post-Conviction Relief in the Maricopa County Superior Court arguing that his resentencing attorney had failed to file a timely notice of appeal. (Doc. 10, Ex. ZZ) The Superior Court dismissed his Notice because it failed to state a claim for which relief can be granted in an untimely Rule 32 proceeding. (Doc. 10, Ex. AAA) In so doing, the Court noted that Ford had received a Notice of Rights to Appeal in conjunction with his original ...