United States District Court, D. Arizona
REPORT AND RECOMMENDATION
J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE
Clarence E. Rhodes, Jr., filed a pro se Petition for a Writ
of Habeas Corpus (“PWHC”) pursuant to 28 U.S.C.
§ 2254 on June 24, 2014. (Doc. 7). Petitioner raises three
grounds for relief: (1) the trial court unconstitutionally
sentenced him to multiple sentences for committing a single
act in violation of his due process rights and his right to
be free from cruel and unusual punishment; (2) he was denied
effective assistance of counsel in violation of his Sixth
Amendment rights because his appellate counsel failed to
advise him where to appeal and failed to appeal meritorious
issues in Petitioner's case; and (3) his Eighth Amendment
rights and the provisions of the Double Jeopardy Clause were
violated when his sentences were set “for
servitude” on November 6, 2006, but he is not serving
them concurrently. Respondents filed an Answer contending
that the PWHC is untimely, and further that all of
Petitioner's claims are procedurally defaulted. (Doc.
to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,
this matter was referred to Magistrate Judge Markovich for a
Report and Recommendation. The undersigned finds that
Petitioner's PWHC is untimely, and that Petitioner has
not shown that he is entitled to equitable tolling.
Accordingly, the Magistrate Judge recommends that the
District Court deny the Petition under 28 U.S.C. § 2254
for a Writ of Habeas Corpus.
FACTUAL AND PROCEDURAL BACKGROUND
October 4, 2006, Petitioner pled guilty to second-degree
murder and aggravated assault in Cochise County Superior
Court. (Doc. 16 Ex. A). Following an aggravation/mitigation
hearing, Petitioner was sentenced to 16 years imprisonment
for second-degree murder, followed by a consecutive sentence
of 7.5 years for aggravated assault. (Doc. 16 Exs. B &
C). Petitioner subsequently filed a motion to modify
sentence, which was denied by the trial court. (Doc. 16 Exs.
D & E).
First Petition for Post-Conviction Relief
January 18, 2007, Petitioner initiated proceedings in Cochise
County Superior Court for post-conviction relief
(“PCR”). (Doc. 16 Ex. F). On November 21, 2007,
Petitioner's appointed counsel filed a notice pursuant to
Ariz. R. Crim. P. 32.4(c) informing the court of her review
of the record and stating that she found no colorable claims
for relief. (Doc. 16 Ex. G). Counsel also requested that
Petitioner be permitted to file a supplemental pro se
petition. On February 20, 2008, Petitioner filed a letter,
which the court characterized as a supplemental pro se
petition, requesting that his sentences run concurrently.
(Doc. 16 Ex. H).
trial court denied PCR on March 25, 2008. (Doc. 16 Ex. I).
The court concluded that Petitioner's claim regarding
concurrent sentences was presented to the trial court during
the aggravation/mitigation hearing before sentencing, and
that Petitioner had not asserted any material issue of fact
or law which would entitle him to post-conviction relief.
did not file a petition for review with the Arizona COA.
Second Petition for Post-Conviction Relief
January 17, 2012, Petitioner filed a PWHC in Cochise County
Superior Court. (Doc. 16 Ex. J). Petitioner stated he did not
appeal his sentence because appointed PCR counsel “said
she would file” and “Petitioner did not
understand what lawyer did.” Id. The court
treated the habeas petition as a petition for PCR and noted
that “[s]ubstantively, [Petitioner] contends that he
was entitled to concurrent sentences. Procedurally,
[Petitioner] appears to contend that his failure to take
action from 2008 until now occurred because his previous PCR
counsel said she would take further action and Petitioner did
not understand what she did.” (Doc. 16 Ex. K). The
court appointed counsel due to the “serious
nature” of Petitioner's crimes and “the
substantial sentences he received.” Id.
4, 2012, appointed counsel filed a motion to withdraw
because, based on his review of the record, he found no
colorable claims for relief. (Doc. 16 Ex. M). The court
denied the motion to withdraw and required counsel to serve
as advisory counsel for Petitioner until the conclusion of
the PCR proceedings. (Doc. 16 Ex. N). The court also
permitted Petitioner to file a pro se petition. Id.
On July 5, 2012,  Petitioner filed a pro se petition
alleging that both of his appointed PCR attorneys had
rendered ineffective assistance of counsel by failing to
raise the consecutive/concurrent sentence issue. (Doc. 16 Ex.
O at 1-2). Petitioner also alleged a Double Jeopardy
violation, arguing that because the commitment order stated
his 7.5 year sentence commenced on November 6, 2006, the
sentence was already served and expired. Id. at 3,
5. Petitioner again requested that his sentences run
concurrently. Id. at 6-7.
August 10, 2012, the trial court issued its order dismissing
the second PCR petition. (Doc. 16 Ex. R). The court cited
State v. Hampton, 213 Ariz. 167 (2006) for the
proposition that a defendant may be validly sentenced to
consecutive terms for crimes involving separate victims, and
noted that Petitioner plead guilty to the murder of Bryant
and the aggravated assault of King. Id. at 2-3. The
court concluded that “consecutive sentences were
appropriate, and the sentencing judge did not impose an
invalid sentence in any way by requiring that the sentences
be served consecutively.” Id. at 3. The court
further stated that “[b]ecause the trial court imposed
lawful sentences, neither trial counsel nor PCR counsel fell
below any applicable standard of care in failing to complain
about an error that the trial judge did not commit.”
Id. In addition, the court noted that “[i]t
actually appears that the sentencing judge gave defendant a
better result that he was entitled to. The court, in imposing
consecutive sentences, should have given defendant credit for
the time served as against only one sentence but not
court also found that Petitioner's claim that trial
counsel was ineffective was precluded under Ariz.
R. Crim. P. 32.2 because it could have been raised during
Petitioner's first PCR proceedings but was not.
Id. The court further stated that even if the claim
was not precluded, it lacked merit, and that the claim that
Petitioner's first PCR counsel was ineffective also
lacked merit. Id. The court dismissed the petition
and concluded that Petitioner had presented no claims that
presented a material issue of fact or law that would entitle
him to relief. Id.
August 27, 2012, Petitioner filed a petition for review with
the Arizona Court of Appeals. (Doc. 16 Ex. S). The Court of
Appeals issued a memorandum decision on December 11, 2012,
granting review and denying relief. (Doc. 16 Ex. T).
Petitioner then filed a petition for review with the Arizona
Supreme Court, which denied review. ...