United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, District Judge.
Pending before the court is an amended petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, filed on July 31, 2015, by Earl Felton Crago, Jr., an inmate confined in the Arizona State Prison Complex in Buckeye, Arizona. (Doc. 25)
Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Bowman for report and recommendation.
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition. Crago's sentencing claims are procedurally defaulted. His Brady claim should be denied on the merits.
Summary of the Case
Crago was convicted of first-degree murder after a jury trial. (Doc. 30-1, p. 4) On August 21, 1995, the trial court sentenced him to "a LIFE term in the Department of Corrections." Id. The trial court further explained that "the Defendant must serve every day of twenty-five (25) years of the sentence imposed before he is eligible for any type of release." Id. Finally, the court ordered that "pursuant to A.R.S. § 13-603(I), the Defendant will be required to do mandatory community supervision sentence - one day for every seven days sentenced to, for a total of 3 years, 7 months." Id. The community supervision order was erroneous. It would have been appropriate if Crago had been sentenced to a term of imprisonment lasting 25 years. Crago, however, was sentenced to life imprisonment.
Crago filed a direct appeal and three post-conviction relief (PCR) petitions challenging various aspects of his trial and his representation. (CV 05-772 TUC FRZ, Docs. 34, 37) He filed in this court a petition for writ of habeas corpus on December 27, 2005. Id. The petition was denied as time-barred on December 31, 2008. Id.
On March 18, 2008, Crago filed in state court a "petition for writ of habeas corpus" (Doc. 30-1, p. 12) Apparently, when Crago began serving his sentence, the Arizona Department of Corrections (ADOC) recorded a start date and end date for Crago's community supervision sentence assuming he was scheduled for release after 25 years. (Doc. 30-1, p. 18) In early 2008, ADOC amended its records to reflect that Crago was sentenced to life imprisonment and would not be released on community supervision after 25 years. (Doc. 30-1, p. 20) Crago argued in his petition that ADOC was unlawfully changing his sentence. The state court construed the filing as Crago's fourth notice of post-conviction relief and appointed counsel. (Doc. 30-1, p. 22) Counsel filed a notice explaining he was unable to find any meritorious issues. (Doc. 30-1, p. 24) He explained that while a Rule 32 petition can be filed if a person were held beyond the expiration of his sentence, Crago had not yet served 25 years, so his argument was not yet ripe. (Doc. 30-1, p. 25) The state court gave Crago time to file a petition pro se. (Doc. 30-1, p. 28) When Crago failed to file a timely petition, the trial court dismissed the post-conviction relief proceedings on November 6, 2008. (Doc. 30-1, p. 31)
Four days later on November 10, 2008, Crago filed a Petition for Special Action. (Doc. 30-1, p. 33) He insisted he was given "a life sentence with release after 25 years and to serve exactly 3 years 7 months community supervision." (Doc. 30-1, p. 34) He argued ADOC had changed his sentence to "natural life' with no release eligibility and no community supervision." (Doc. 30-1, p. 34) The trial court denied the petition on November 14, 2008, apparently on procedural grounds. (Doc. 30-1, p. 40) Crago filed a petition for review with the Arizona Court of Appeals. (Doc. 30-2, p. 9)
On May 12, 2009, the Arizona Court of Appeals affirmed the trial court's dismissal of the Rule 32 proceeding because Crago failed to file a petition. (Doc. 30-2, p. 12) The court remanded the Petition for Special Action for further proceedings. (Doc. 30-2, p. 12) On August 5, 2009, however, Crago voluntarily withdrew his Petition for Special Action. (Doc. 30-2, p. 19)
On April 8, 2010, Crago filed his fifth notice of post-conviction relief. (Doc. 30-2, p. 22) He states this is the proceeding in which he exhausted Claim (1) and Claim (2) of the pending petition. (Doc. 25, pp. 6-7); see also (Doc. 30-4, pp. 11-13); (Doc. 30-5, p. 5)
In his notice, Crago asserted that during plea negotiations, the trial court told him in chambers that if he were convicted at trial, he would get a sentence of 25 years to life. Id. He maintains he rejected a plea agreement for 22 years' imprisonment on the strength of that advice. Id. He filed his petition on October 7, 2010. (Doc. 30-3, p. 2) In that petition, which was prepared by counsel, Crago abandoned his plea agreement issue and returned to his original sentencing issue. He argued he was given a minimum sentence of 25 years and ADOC improperly changed his sentence to natural life imprisonment. (Doc. 30-3, pp. 2-9) On May 4, 2011, the trial court denied the petition holding that Crago got the only sentence permitted by law - life without possibility of release for 25 years. (Doc 30-4, pp. 7-8) The court held that the community supervision term was contrary to law but found that the court was unable to correct it. Id.
On May 23, 2011, Crago filed a petition for review. (Doc. 30-4, pp. 11-15) He argued that he rejected a plea agreement for "22 years flat" in reliance on the trial court's incorrect assessment that he faced "a sentence of incarceration totaling twenty-five years" if he were convicted at trial. Id., p. 11 He further argued that "[i]f a statute is so vague as to cause a Senior Superior Court Judge to misunderstand its meaning and wrongly apply it at the plea offer stage, and the sentencing stage, then it violates the due process requirements of the [F]ifth and [F]ourteenth [A]mendments." Id., p. 13 He argued in the alternative that the trial court was correct, and he was given a sentence of 25 years imprisonment followed by three years and seven months of community supervision. Id., pp. 12-13
The Arizona Court of Appeals held that Crago's issues were precluded citing Ariz.R.Crim.P. 32.2(a). (Doc. 30-5, p. 7) In the alternative, the court held that Crago received a lawful sentence - life without the possibility of release for 25 years - and that ADOC's removal of the erroneously imposed term of community service did not cause him prejudice. (Doc. 30-5, pp. 2-9) The court affirmed the trial court's determination that "the imposition of community supervision was contrary to law." (Doc. 30-5, p. 8) (emphasis in original) The Arizona Supreme Court denied review on February 23, 2012. (Doc 30-5, p. 11)
On March 12, 2012, Crago filed in this court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (CV 12-0176 TUC FRZ (BPV), Doc. 1) The petition was dismissed as "second or successive." (CV 12-0176 TUC FRZ (BPV), Doc. 5)
On July 16, 2012, Crago filed his sixth notice of post-conviction relief. (Doc. 30-5, p. 22) On August 2, 2013, the trial court held that Crago's claim that counsel failed to correctly advise him about the sentence he would get if he were convicted at trial was precluded pursuant to Rule 32.2(a)(3). (Doc. 30-6, p. 10) Crago filed a petition for review on September 9, 2013. (Doc. 30-6, p. 14) The Arizona Court of Appeals denied relief on March 11, 2014, finding Crago's ineffective assistance claim precluded. (Doc. 30-6, pp. 43-46) The Arizona Supreme Court denied review on July 25, 3014. (Doc. 30-6, p. 48)
On March 21, 2014, Crago filed his seventh notice of post-conviction relief (PCR) in which he first raised the issue that constitutes Claim (3) of the pending petition. (Doc. 30-7, p. 2); (Doc. 25, p. 8) In his notice, Crago asserted that he received an anonymous letter from someone in the Cochise County Attorney's Office who said that he found a note in Crago's file stating as follows: "DNA not a positive match, defendant doesn't know, go ahead and tell the jury that the victim's blood was found in the defendant's vehicle." (Doc. 30-7, pp. 2-16) Crago argued that this falsehood was reported to his counsel, who then convinced Crago to testify that he killed the victim in self-defense. Id.
The trial court found that the only DNA report in Crago's file was dated June 27th, after his April 1995 trial. (Doc. 30-10, pp. 4-5) The report gives results from two "bloodstains on seat material." Id. The results from one stain were "inconclusive." Id. The results from the other stain matched the victim's DNA profile at one locus but was inconclusive at four other tested loci. Id.
Crago submitted a number of other documents that he stated were "records given to the defendant" (Doc. 30-10, p. 5) One of these documents purported to be a DNA test performed prior to his trial, on March 23, 1995. Id. The trial court gave the documents no weight because their provenance was not established. Id.
The trial court found, among other things, that nothing supported Crago's argument that the prosecution lied to Crago's counsel about the DNA before trial and that lie induced counsel to convince Crago to change his trial theory to self-defense. Crago's trial counsel announced on February 22, 1995 that Crago would assert self-defense. (Doc. 30-10, p. 14) There were no DNA tests performed before that date. (Doc. 30-10, p. 18)
Moreover, if Crago had pursued an alibi defense instead of self-defense, he still would have been ...