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Stanhope v. Ryan

United States District Court, D. Arizona

March 28, 2017

Gregory Allen Stanhope, Petitioner,
v.
Charles Ryan, et al., Respondents.

          ORDER

          Bernardo P. velasco United States Magistrate Judge.

         Pending before the Court is Petitioner Gregory Allen Stanhope's pro se Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. (Doc. 1). In accordance with the provisions of 28 U.S.C. §636(c)(1), all parties consented to proceed before a United States Magistrate Judge to conduct any and all further proceedings in this case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. (Doc. 19). For the following reasons, the Court denies and dismisses Petitioner's Petition for Writ of Habeas Corpus.

         I. FACTUAL & PROCEDURAL BACKGROUND

         A. State conviction

         Petitioner was indicted in Arizona Superior Court, Pima County, cause number CR08635, on July 6, 1982, and charged with two counts of armed robbery, two counts of kidnapping, two counts of aggravated assault, and one count of burglary. (Reply (Doc. 31), Exh. 1) The following factual and procedural background is taken from the Arizona Court of Appeal's opinion on Petitioner's direct appeal:

The appellant was found guilty by a jury of two counts each of armed robbery, kidnapping and aggravated assault, and one count of first degree burglary. All of these convictions arose out of an incident at a retail sho[e] store in Tucson on June 23, 1982. The appellant was sentenced to prison for concurrent 21-year terms on each of the robbery counts, concurrent 21-year terms on each of the kidnappings to be served consecutively to the robbery sentences, and concurrent 15-year terms on each of the assaults and the burglary, the latter three sentences to be served consecutively to the robbery and kidnapping sentences.[1]

State v. Stanhope, 139 Ariz. 88, 90, 676 P.2d 1146, 1148 (App. 1984). The appellate court affirmed Petitioner's convictions and sentences. Id. Petitioner filed four petitions for post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure in the state court, and unsuccessfully petitioned this Court for a writ of habeas corpus in March 1998. (See Answer (Doc. 20) at 3). The Ninth Circuit affirmed this Court's denial of habeas relief in August 2002. Stanhope v. Stewart, 2002 WL 1996510 (9th Cir. 2002).

         Petitioner initiated a fifth petition for post-conviction relief in state court on June 26, 2000, that was denied in 2001. (Answer, Exhs. A, B). In 2005, Petitioner filed a special action in the trial court alleging due process violations from prison disciplinary proceedings that ended in 2006. (Answer, Exh. C). On June 1, 2005, Petitioner initiated a sixth post-conviction proceeding in the trial court that was denied in 2007. (Answer, Exhs. D, E.) Petitioner filed a second petition for writ of habeas corpus in this Court in January 2007. (See Answer at 4)). This Court found that Petitioner's due process rights had been violated at one prison disciplinary proceeding and ordered that the State remedy the violation by either restoring 60 days of earned release credits (“ERC”) or providing Petitioner a new hearing. (See id.). On November 12, 2012, the Ninth Circuit affirmed, and the State subsequently filed a notice of satisfaction of judgment providing evidence that 60 days of ERC had been restored to Petitioner. (Id.).

         While Petitioner's appeal of this Court's decision on his second petition for writ of habeas corpus was pending, Petitioner filed a “Motion for Goodtime Jail Credits Pursuant to ARS § 41-1604.07(A)” in state trial court in February 2011. (Reply, Exh. 2). The court appointed counsel, set a briefing schedule, and a hearing date. (Id.). Two additional motions, unidentified in this record, were subsequently filed by Petitioner and forwarded to his appointed counsel, whom the court referred to as his counsel appointed to represent him in his “Rule 32 proceedings.” (Reply, Exh. 3). On July 12, 2011, Petitioner filed an amended motion asserting that in addition to the ERC to which he was entitled, he was improperly denied a commutation hearing. (Reply, Exh. 4). The procedural path of this proceeding is discussed in more detail below. Ultimately, the trial court denied Petitioner's request for relief on the merits on October 17, 2012. (Answer, Exh. P). The court further denied Petitioner's motion for rehearing. (Answer, Exhs. Q-R).

         Petitioner filed a petition for review from the trial court's ruling in the court of appeals and the appellate court granted review but denied relief. (Answer, Exhs. S, V). Petitioner's motion for reconsideration of the appellate court's decision was denied. (Answer, Exhs. W-X). The Arizona Supreme Court subsequently denied Petitioner's petition for further review and a request for an evidentiary hearing on December 20, 2013. (Answer, Exhs. Y-Z).

         B. Federal Habeas Petition

         Petitioner filed the instant petition for writ of habeas corpus, which is his third such proceeding in this Court, on January 8, 2014. Petitioner presents seven grounds for relief:

Ground One: “Whether the Arizona Dept of Corrections erred in its calculation of Stanhope's earned release credits (ERC's). Based on the 2002 amendment to the law. The 2002 change in the law was a ‘significant change in the law' that would affect the amount of time Stanhope would have to spend in prison. The change in law was intended by the Legislature to be applied retroactively, and Stanhope had a fundamental right to have the change in law applied to his sentence, and a due process right under the 14th Amend. to the U.S. Constitution to have the change in law applied properly. The ADC did not apply the newly awarded ERC's to [Petitioner's] currently served sentence.”
Ground Two: “Whether the Arizona Dept of Corrections (ADC) improperly denied Petitioner a timely commutation hearing.”
Ground Three: “Whether the trial court erred and abused its discretion in ruling on material facts and making conclusions of law when deciding Petitioner['s] claims without holding an evidentiary hearing.”
Ground Four: “Whether the claims[]s raised by Petitioner were cognizable under Rule 32.”
Ground Five: “Did Stanhope factually still have more than one year left before earliest release date (PED-2-10-2012) when commute application was submitted on 1-18-2011? With a[n] offense date of June/1982, was the implementation of the ‘one year to earliest release date' rule used to exclude/deny eligibility for a commute hearing a[n] ‘ex post facto' change in the law and so unconstitutional when applied to Petitioner? Did AZ Atty. General Tom Horne, Asst. Atty. General Paul E. Carter enter into a conspiracy to coverup the fact the ADC had miscalculated Stanhope's release date?”
Ground Six: “Is the Arizona State Court of Appeals, Div. II's finding that Petitioner is not entitled to ERC relief pursuant to the State Rule 32 process in conflict with Div. I of the State Court of Appeals finding in State v[]. Davis, 148 Ariz. 62, 64-65 (1985)[, ] where they granted relief pursuant to the State Rule 32 process? Would this Court clarify that conflict?”
Ground Seven: “Was Petition[er] correct to rely on court[-]appointed attorney Emily Danies and the Arizona State Superior Court trial judge, that Rule 32 was the proper venue to bring these ERC and commutation claims?”

         II. Discussion

         Respondents contend that: Petitioner's Ground One should be dismissed as a successive claim; Grounds Two through Six should be dismissed because they are not cognizable on habeas corpus review; and Ground Seven is procedurally defaulted. Respondents argue, in the alternative, that Grounds One and Two are also procedurally defaulted.

         A. Standard of review

         Because Petitioner's federal habeas petition was filed after April 24, 1996, this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996, (“AEDPA”), 28 U.S.C. § 2254 (“§ 2254). Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Woodford v. Garceau, 538 U.S. 202, 210 (2003).

         Under the AEDPA, a writ of habeas corpus cannot be granted unless it appears that the petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). To exhaust state court remedies, the petitioner must “fairly present” his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). “In cases not carrying a life sentence or the death penalty, ‘claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.'” Castillo v. McFadden, 399 F.3d 993, 998 n. 3 (9th Cir.2005) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).

         A claim is fairly presented if the petitioner has described the operative facts and the federal legal theory on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971). A petitioner must clearly alert the state court that he is alleging a specific federal constitutional violation. See Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004). He must make the federal basis of the claim explicit either by citing specific provisions of federal law or federal case law, even if the federal basis of a claim is “self-evident, ” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), or by citing state cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).

         In Arizona, there are two procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and post-conviction relief (“PCR”) proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings and provides that a petitioner is precluded from relief on any claim that could have been raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a) may be avoided only if a claim falls within certain exceptions and the petitioner can justify his omission of the claim from a prior petition or his failure to present the claim in a timely manner. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(b), 32.4(a).

         A habeas petitioner's claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Id. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (explaining that the district court must consider whether the claim could be pursued by any presently available state remedy). Therefore, in the present case, if there are claims that were not raised previously in state court, the Court must determine whether Petitioner has state remedies currently available to him pursuant to Rule 32. See Ortiz, 149 F.3d at 931. If no remedies are currently available, Petitioner's claims are “technically” exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1.

         If there are claims that were fairly presented in state court but found defaulted on state procedural grounds, such claims will be found procedurally defaulted in federal court so long as the state procedural bar was independent of federal law and adequate to warrant preclusion of federal review. See Harris v. Reed, 489 U.S. 255, 262 (1989). It is well established that Arizona's preclusion rule is independent of federal law, see Stewart v. Smith, 536 U.S. 856, 860 (2002), and the Ninth Circuit has repeatedly determined that Arizona regularly and consistently applies its procedural default rules such that they are an adequate bar to federal review of a claim. See Hurles v. Ryan, 752 F.3d 768, 780 (9thCir.), cert. denied, 135 S.Ct. 710 (2014) (Arizona's waiver rules are independent and adequate bases for denying relief); Ortiz, 149 F.3d at 932 (Rule 32.2(a)(3) regularly ...


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