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Powell v. Ryan

United States District Court, D. Arizona

August 25, 2016

Stephen Don Powell, Petitioner,
Charles L Ryan, et al., Respondents.


          Hon. Rosemary Márquez, United States District Judge.

         Pending before the Court is a Report and Recommendation (Doc. 14) issued by Magistrate Judge D. Thomas Ferraro. After an independent review of the record, this Court instructed Respondents to file a supplemental brief addressing how and whether the apparent lack of notice to Petitioner of the necessary state procedures should affect this Court's analysis. Respondents have filed their Supplemental Brief (Doc. 16).

         I. Background

         Petitioner pled guilty in the Arizona Superior Court in Pima County on March 14, 2013 and received a sentence of seven and one-half-years on April 29, 2013. The trial court informed Petitioner during his change of plea hearing that although Petitioner was forfeiting his right to a direct appeal by pleading guilty, he could “file a petition for post[-]conviction relief, but that petition [would be resolved by the trial court].” (Doc. 13-1 at 50.) The trial court further informed Petitioner that if it denied Petitioner's request, “the Court of Appeals [would] not have to hear [his] case beyond that.” (Doc. 13-1 at 50-51.) During Petitioner's sentencing, the trial court again informed Petitioner that he had “the right to challenge [the trial court's] decision, but [that] if [he] want[ed] to do so, [he] must do so within 90 days from [the date of sentencing].” (Doc. 13-2 at 1-11.)

         On May 13, 2013, Petitioner timely filed a Notice of Post-Conviction Relief (“PCR”). (See Doc. 13-2 at 13-16.) On May 20, 2013, the trial court appointed Petitioner counsel and set a schedule for the proceeding. (See Doc. 13-2 at 21-22.) On August 29, 2013, Petitioner's PCR counsel filed a Notice indicating he was unable to find any claims that “Petitioner wished to pursue” and counsel therefore would not file a petition for PCR. (Doc. 13-2 at 24-25.) Counsel also stated that he informed Petitioner that Petitioner could file a petition pro se and requested that the trial court allow Petitioner an additional forty-five days in which to do so. (See Doc. 13-2 at 25.) The trial court granted this request on August 29, 2013. (See Doc. 13-2 at 27.)

         On October 23, 2013, the trial court issued an order denying and dismissing Petitioner's PCR proceeding on the basis that Petitioner had not filed a pro se petition. (See Doc. 13-2 at 30.)

         On April 23, 2014, Petitioner filed a Petition for Writ of Habeas Corpus (Doc. 1) pursuant to 28 U.S.C. § 2254 in this Court. In his Petition, Petitioner raised four grounds for relief: (1) the indictment against him was multiplicitous and thus violated the Double Jeopardy Clause; (2) he received unconstitutionally ineffective assistance of counsel from both his trial and PCR counsel; (3) he was unlawfully induced into pleading guilty by his trial counsel and the state prosecutor; and (4) he was denied due process by each of the foregoing claims. (See Doc. 1 at 6-9.) Petitioner concedes that he did not present any of these claims to the necessary state courts. (Doc. 1 at 6-9.) He explains that the reason for this failure was that his PCR counsel informed him that he had “no colorable claims which would entitled [him] to post-conviction relief.” (Doc. 1 at 6-9.)

         Respondents filed an Answer arguing Petitioner's grounds for relief were not cognizable and were procedurally defaulted. (See Doc. 13.) Respondents first argued that Petitioner's ineffective assistance of PCR counsel claim was not cognizable because (1) Petitioner had no constitutional right to effective counsel during his PCR proceeding; (2) Arizona does not recognize claims challenging the effectiveness of PCR counsel; and (3) Congress explicitly precluded such claims from habeas relief. Respondents further argued that the basis for Petitioner's claim was improperly vague and conclusory. Respondents next argued that each of Petitioner's four grounds for relief was procedurally defaulted. Lastly, Respondents contended that Petitioner could not satisfy the “cause and prejudice” standard that would excuse his procedural default. The Government based this argument on the theory that Petitioner had no constitutional right to effective PCR counsel and that the indictment was not in fact multiplicitous. Respondents did not otherwise address the substance of Petitioner's claims.

         II. Report and Recommendation

         Judge Ferraro found that Petitioner's failure to present his claims to the Arizona courts rendered them technically exhausted, but procedurally defaulted. (See Doc. 14 at 3.) Judge Ferraro correctly acknowledged that Petitioner was in fact constitutionally entitled to effective assistance of counsel during his PCR proceeding because it was an “of right” proceeding. (See Doc. 14 at 3 n.1, 4 n.2.) See also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Osterkamp v. Browning, 250 P.3d 551, 556 (Ariz.Ct.App. 2011). Judge Ferraro next considered whether the Petition provided a basis for finding sufficient cause and prejudice to excuse Petitioner's default. (See Doc. 14 at 4.)

         The Supreme Court has long held that a petitioner may obtain federal review of his defaulted claims if he can show sufficient cause for the default and prejudice from the alleged error. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 82-85, 87-88 (1977); Murray v. Carrier, 477 U.S. 478, 485 (1986); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

         Judge Ferraro determined that a claim of constitutionally deficient assistance of counsel is sufficient cause to excuse a procedural default. Murray, 477 U.S. at 488. However, an ineffective assistance of counsel claim must itself be presented to a state court before serving as cause for failure to present other claims. Id. at 489. In the case of a pleading defendant who waives his right to a direct appeal, Arizona requires the defendant to initiate two PCR proceedings. The first, to allege any grounds for relief stemming from the pre-conviction proceedings, and the second-unmentioned by the trial court when explaining Petitioner's possible post-conviction relief options-to allege that the attorney appointed in the first PCR proceeding was constitutionally ineffective. See Osterkamp, 250 P.3d at 556-57. Judge Ferraro concluded that because Petitioner failed to raise the claim that his first PCR counsel was ineffective in a second PCR proceeding, that claim was defaulted and could not serve as cause for the default of Petitioner's other claims.

         III. Discussion

         “Arizona's Constitution guarantees criminal defendants ‘the right to appeal in all cases.'” Summers v. Schriro, 481 F.3d 710, 714-15 (9th Cir. 2007) (quoting Ariz. Const. art. 2, § 24)). Defendants who plead guilty, however, waive the right to the standard appellate review. Ariz. R. Crim. P. 17.1(e). To comply with the Constitution's requirement that appellate review be available to all criminal defendants, Arizona amended its rule governing PCR proceedings to provide an “of-right” proceeding for pleading defendants. Summers, 481 F.3d at 715 (citing Wilson v. Ellis, 859 P.2d 744, 746 (Ariz. 1993) (en banc)); Charles R. Krull, Eliminating Appeals from Guilty Pleas, Ariz. Att'y, Oct. 1992, at 34-35); see Ariz. R. Crim. P. 32.4(a). This “of-right” proceeding is the functional equivalent of a convicted defendant's direct appeal, and thus, is not considered a collateral proceeding. Defendants are constitutionally entitled to effective assistance of counsel in the “of-right” proceeding. Arizona provides a second PCR proceeding for the specific purpose of allowing a pleading defendant to present a claim that his “of-right” PCR counsel was ineffective. See Osterkamp, ...

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