Rhodes v. Ryan

          REPORT AND RECOMMENDATION

          ERIC J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.^[1] (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. 16).

         Pursuant 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Plea and Sentencing

         On 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).

         B. First Petition for Post-Conviction Relief

         On 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).

         The 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.

         Petitioner did not file a petition for review with the Arizona COA.

         C. Second Petition for Post-Conviction Relief

         On 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.

         On June 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, ^[2] 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.

         On 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 both.”

         The court also found that Petitioner's claim that trial counsel^[3] 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.

         On 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. ...