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Cassise v. Ryan

United States District Court, D. Arizona

January 26, 2016

Louis Joseph Cassise, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

Eileen S. Willett United States Magistrate Judge

Petitioner Louis Joseph Cassise, who is confined in the Arizona State Prison Complex, Cook Unit, in Florence, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The Court ordered that an answer be filed. (Doc. 6). A Motion for Extension of Time to File Answer to Petition for Writ of Habeas Corpus (Doc. 12) was granted, and the Court ordered that an answer be filed no later than December 17, 2015. (Doc. 13). On December 8, 2015, the Respondents filed a Motion for Clarification to which Petitioner responded. (Docs. 14, 15). On December 28, 2015, the Petitioner filed a Motion for Summary Disposition. (Doc. 16). The pending Motions are ripe for consideration.

I. PROCEDURAL HISTORY

Petitioner was convicted pursuant to a plea agreement in Maricopa County Superior Court, case number CR2012-133428, of ten counts of public sexual indecency and was sentenced to a four-year term of imprisonment followed by lifetime probation. (Doc. 1-2 at 10.) On November 24, 2014, the trial court denied Petitioner’s state petition for post-conviction relief (“PCR”). (Doc. 1 at 34.) Petitioner’s Petition for Review from the denial of PCR is pending before the Arizona Court of Appeals. In his Petition for Writ of Habeas Corpus, Petitioner names Charles L. Ryan and the Arizona Attorney General as Respondents. Petitioner raises six grounds for relief.

In Ground One, Petitioner alleges that the Arizona Court of Appeals failed to timely rule on his Petition for Review from the denial of state post-conviction relief in violation of his federal due process rights and his right to a speedy disposition in violation of the Sixth Amendment. In Ground Two, he alleges that the trial court abused its discretion in violation of his federal due process rights by denying his PCR Petition. In Ground Three, Petitioner asserts that his conviction for multiple offenses violated his Fifth Amendment double jeopardy rights. In Ground Four, Petitioner alleges that Counts 1 and 2 were aggravated and multiplicitous in violation of his Fifth Amendment double jeopardy rights. In Ground Five, Petitioner asserts that lifetime probation and requiring him to register as a sex offender violated his federal due process and double jeopardy rights. In Ground Six, Petitioner alleges that his federal due process rights were violated by the severity of his sentences, gross misrepresentations, and unethical judicial conduct.

Because the Arizona Court of Appeals has not yet ruled on Petitioner’s Petition for Review, the Court granted Respondents an extension of time within which to answer or otherwise respond to Petitioner’s Writ of Habeas Corpus.

II. LEGAL STANDARDS

For over one hundred years, it has been settled that a “state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.”). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. Supreme Court’s words, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 204 (1950); see also Reed v. Ross, 468 U.S. 1, 11 (1984) (“[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted).

The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) “exhausted” the available state court remedies; (ii) shown that there is an “absence of available State corrective process”; or (iii) shown that “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).

A district court has the discretion to stay a habeas petition that contains both exhausted and unexhausted claims. Rhines v. Weber, 544 U.S. 269 (2005); Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Regarding petitions containing only unexhausted claims, the Ninth Circuit Court of Appeals has explained that “[o]nce a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further . . . . Instead, it may simply dismiss the habeas petition for failure to exhaust.” Rasberry, 448 F.3d at 1154.

III. DISCUSSION

1. Motion for Clarification (Doc. 14)

Respondents request that the Court stay its deadline for Respondents to answer Petitioner’s Petition for Writ of Habeas Corpus until forty days after Petitioner advises this Court of the conclusion of his state court proceedings. Respondents respectfully suggest that the Court mistakenly ordered a flat forty day extension of time within which to answer the Petition for Writ of Habeas Corpus because of the form of the order provided for the Court’s ruling. The flat forty day extension of time, however, was intentional.

Petitioner filed his Petition for Review of the trial court’s denial of his PCR Petition with the Arizona Court of Appeals on December 22, 2014. (Doc. 12-2 at 104). The Petition for Review was fully briefed as of February 15, 2015. (Id. at 104-105). Petitioner filed several Motions for Accelerated Disposition with the Arizona Court of Appeals, all of which ...


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