United States District Court, D. Arizona
RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
JAMES F. METCALF, Magistrate Judge.
I. MATTER UNDER CONSIDERATION
Petitioner, presently incarcerated in the Arizona State Prison Complex at San Luis, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 9, 2015 (Doc. 1). On October 19, 2015, Respondents filed their Response (Doc. 10). Petitioner filed a Reply on October 28, 2015 (Doc. 12).
The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following 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. FACTUAL BACKGROUND
In opposing Petitioner's Petition for Post-Conviction Relief, the state presented the following factual summary:
On January 27, 2011, officers from the Prescott Valley Police Department (PVPD) responded to 6280 Rockland #A, Prescott Valley, AZ, an apartment Michael Gerrod Ellis (Defendant) shared with his girlfriend (M.S.). Defendant had assaulted M.S., and marijuana and drug paraphernalia were discovered. Defendant admitted the marijuana and drug paraphernalia belonged to him. Defendant was cited and M.S. left the residence and temporarily moved into a women's shelter because she feared Defendant.
On January 31, 2011, M.S. requested and was granted an Order of Protections (OOP) against Defendant. The OOP prohibited Defendant from contacting M.S. or going to the Rockland residence.
On February 1, 2011, PVPD responded to the Rockland address where they observed two windows broken with what appeared to be a large rock. Investigation determined Defendant was sending threatening text messages to M.S. on her cell phone saying "sleep light" and "I hope you are ready for revenge." PVPD responded back to the Rockland residence later in the day on February 1, 2011, because there was a report of a structure fire. The origin of the fire was determined to be the bed in the master bedroom, directly under the window which was broken earlier by the large rock. A gas can was located and believed to be what was used as an accelerant.
Police investigation discovered that on February 1, 2011, Defendant called a taxi, requesting the taxi-driver take him to Robert's Market in Prescott Valley where he purchased a gas can, gas, gloves, and then asked the taxi-driver to drive him to a location on Tower Road approximately one block away from the Rockland residence. Defendant was visible on video from Robert's Market. Statements from the taxi-driver confirmed he drove Defendant to Robert's Market, waited for him to make his purchases and then drove him to the location on Tower Road. Witnesses observed Defendant leave the taxi while it was parked on Tower Road and walk towards the Rockland residence with the gas can in hand and then quickly come walking back to the taxi without the gas can.
The fire in the apartment was extinguished by local fire personnel; however, there was severe damage to the interior of the apartment. Investigation determined there was an elderly couple who lived in an adjacent apartment, one with mobility issues, who were at home at the time the fire was started, putting them at a substantial risk of imminent death or physical injury.
Police stopped the taxi on SR 89A near Viewpoint and Defendant was taken into custody.
When Defendant was interviewed by PVPD, he smiled and said "I guess she is homeless now too."
(Exhibit AA, PCR Response at 1-3.) ( See also Exhibit M, Police Reports.) (Exhibits to the Answer, Doc. 10, are referenced herein as "Exhibit ___.")
B. PROCEEDINGS AT TRIAL
On February 9, 2011, Petitioner was indicted in Yavapai County Superior Court on charges of: (1) arson, a Class 2 felony; (2) burglary, a Class 2 felony; (3) aggravated criminal damage, a Class 4 felony; (4) aggravated harassment, a Class 6 felony; (5) reckless endangerment, a Class 6 felony; (6) reckless endangerment, a Class 6 felony; and (7) assault, a Class 3 felony. (Exhibit A, Indictment.)
Rule 11 Proceedings - Some eleven months later, trial counsel filed an unopposed Motion for Rule 11 Prescreen (Exhibit B), on the basis that Petitioner might not be competent to stand trial. The motion was granted, and an evaluation was ordered. (Exhibit C, Order 1/19/12.)
Petitioner was examined by Dr. Sullivan, Psy.D., who opined:
He appears to be functioning within the broad normal range of intelligence. In this evaluation he did not exhibit any cognitive deficits that would interfere with his ability to proceed with the present proceedings.
Mr. Ellis has a history of mental health problems and he has been hospitalized numerous times. He suffers from PTSD and he has a 100% service connected disability. He stated that at the time of the alleged commission of the crimes he was not taking his medications. In my opinion, his ongoing competency is dependent upon his continuing his medications. If he should stop taking his medications it is very likely that he will decompensate and become incompetent.
(Exhibit R-D, Rule 11 Report 1/26/12 at 1.) (Exhibits to the Reply, Doc. 12, are referenced herein as "Exhibit R-___.")
Based upon the report, the Court found Petitioner competent, and set the matter for trial. (Exhibit D, M.E. 2/6/12.)
Plea Proceedings - On May 3, 2012, Petitioner appeared with counsel for a settlement conference. The court reviewed the potential sentences, noting that: (1) Petitioner qualified as a Category 2 repetitive offender for sentencing on the arson, criminal damage and aggravated harassment charges; (2) the burglary, and reckless endangerment charges were charged as dangerous felonies; (3) the sentencing ranges for counts 1 (arson) and 2 (burglary) were 7 to 21 years; (4) the sentencing ranges for the two reckless endangerment charges was 1.5 to 3 years on each; (5) the arson carried a presumptive term of 9.25 years; (6) the aggravated criminal damage carried a presumptive term of 4.5 years; (7) the aggravated harassment carried a presumptive term of 1.75 years; (8) if presumptive, consecutive sentences were imposed, Petitioner could be sentenced to 30 years; (9) it was likely that at least some sentences would be consecutive because they involved separate crimes; (10) even with concurrent, presumptive sentences, an effective term of 20 years could be imposed; (11) Petitioner might qualify as a Category 3 repetitive offender, increasing the range on the Class 2 felonies up to 35 years, with a presumptive of 15.75. (Exhibit JJ, R.T. 5/3/12 at 1-9.) The court also reviewed the terms of the plea offer, and potential sentencing, including the court's intent to sentence Petitioner to 10.5 years in prison and 3 years probation. ( Id. at 9-11.)
At trial counsel's request, the prosecution reviewed the available evidence, including witnesses to the purchase of the gasoline, and starting the fire, the victim's testimony about the domestic violence incident, the cab driver, the witnesses to the fire, the fire investigator and detectives, one of the elderly victims, the order of protection, and the text messages ( id. at 11-15), as well as the store video, store clerk, remains of the gas can and some gas ( id. at 20). The Court noted that the advanced age of the victims was an aggravating factor. ( Id. at 15.) Trial counsel noted, however, Petitioner's military service, PTSD, mental health concerns, lack of actual physical injury to the victims, which the court acknowledged as the basis of its intent to impose a 10.5 years sentence, but noted that aggravating factors would be up to the jury if the matter went to trial. ( Id. at 16-18.) Petitioner asked for an explanation of a mitigating factor, which the court provided. ( Id. at 18-19.) The court reviewed the available credit for time served. ( Id. at 19-20.)
The next day, Petitioner entered into a written Plea Agreement (Exhibit G), agreeing to plead guilty to the arson (dangerous, non-repetitive), aggravated harassment, and two reckless endangerment charges (all non-dangerous, non-repetitive). In exchange, the prosecution agreed that Petitioner would be sentenced to 10.5 to 15 years on the arson and aggravated harassment charges, and consecutive terms of probation on the reckless endangerment, and to dismiss the burglary, aggravated criminal damage, and assault charges.
Petitioner entered his plea of guilty the same date, with the court finding that Petitioner's plea was knowing, intelligent and voluntary, and accepting the plea. (Exhibit F, R.T. 5/4/12; Exhibit E M.E. 5/4/12.)
Sentencing - A Presentence Report (Exhibit L) was prepared, concluding that Petitioner posed "high risk for re-offending." ( Id. at 9.) The Report made no recommendations beyond financial assessments.
Petitioner appeared for sentencing on May 30, 2012 and was sentenced to 10.5 years flat time on the arson, and a consecutive suspended sentence and 3 years probation on the aggravated harassment and endangerment charges. (Exhibit H, Sentence 5/30/12; Exhibit I, R.T. 5/30/12; Exhibit J, Conditions of Probation.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2.) Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. See Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).
D. PROCEEDINGS ON POST-CONVICTION RELIEF
On August 6, 2012, Petitioner filed a Notice of Post-Conviction Relief (Exhibit N). Counsel was appointed, who eventually filed a Notice of No Claim (Exhibit U), evidencing an inability to find an issue for review and seeking an extension of time for Petitioner to file a pro per PCR petition. The extension was granted (Exhibit V, Order 1/10/13), and on February 19, 2013 Petitioner filed his original Pro Per Petition for Post-Conviction Relief (Exhibit W). After receiving transcripts, he sought leave to amend his petition (Exhibit X, Motion), which was granted (Exhibit Y, Order 4/24/13).
On May 9, 2013, Petitioner filed his Amended Pro Per Petition for Post-Conviction Relief (Exhibit Z), arguing that trial counsel had been ineffective for failing to advise Petitioner that an insanity plea was available, rendering his guilty plea involuntary, and seeking an evidentiary hearing. The State responded (Exhibit AA) seeking a summary denial. On July 8, 2013, the PCR ...