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Stout v. County of Maricopa

United States District Court, D. Arizona

April 24, 2018

Thomas Bon Stout, Petitioner
v.
County of Maricopa, et al., Respondents.

          REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

          JAMES F. METCALF UNITED STATES MAGISTRATE JUDGE

         I. MATTER UNDER CONSIDERATION

         Petitioner (presently released but incarcerated at the time in the Lower Buckeye Jail in Phoenix, Arizona) filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 27, 2017 (Doc. 6). On March 6, 2018 Respondents filed their Answer (Doc. 12). Petitioner filed a Reply (“Motion to Vacate Judgment”) on March 23, 2018 (Doc. 14).

         The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND A. FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL

         On August 26, 2016, Petitioner was indicted in Maricopa County Superior Court case number CR2016-5284 on one count of failure to register as a sex offender, based on conduct on April 26, 2016 (failure to carry valid ID). (Exhibit A, Indictment 5284.) (Exhibits to the Answer, Doc. #, are referenced herein as “Exhibit .”) On October 13, 2016, Petitioner was indicted in Maricopa County Superior Court case number CR2016-5624 on one count of failure to register as a sex offender, based on conduct on July 1, 2016 (failure to register). (Exhibit B, Indictment 5624.)

         On February 22, 2017, Petitioner entered into interconnected plea agreements in both cases. He executed a written Plea Agreement (Exhibit B) in the ID case (CR2016-5284), agreeing to plead guilty as charged to the Class 6 Felony, in exchange for an agreement to a sentence of two years supervised probation and 12 months flat time in jail, and dismissal of allegations of priors and probation. On the same date, he executed a written Plea Agreement (Exhibit G) in the registration case (CR2016-5624), agreeing to plead guilty as charged to the Class 4 Felony, with an agreement for a sentence of lifetime supervised probation, and dismissal of allegations of priors and probation. Petitioner entered his guilty pleas on the same date in both cases. (Exhibit C, M.E. 2/22/17 5284; Exhibit H, M.E. 2/22/17 5624; Exhibit O, R.T. 2/22/17.)

         On March 29, 2017, a “Probation Violation Report” was filed, recommending 3 years probation on the ID case, with a condition of 12 months in jail, and lifetime supervised probation on the registration case. (It also recommended a continuation of probation in the underlying case for an additional 18 months.)

         On March 29, 2017, Petitioner was sentenced in both cases. In the ID case, sentencing was suspended and he was placed on 3 years probation, with a condition of 12 months in jail. (Exhibit E, Sentence 3/29/17 5284.) In the registration case, sentence was also suspended, and Petitioner was placed on a concurrent term of lifetime probation. (Exhibit K, Sentenced 3/29/17 5624.)

         B. PROCEEDINGS ON DIRECT APPEAL

         Petitioner did not file a direct appeal. (See Amended Petition, Doc. 6 at 2 (referencing PCR proceeding as direct appeal.) Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. See Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).

         C. PROCEEDINGS ON POST-CONVICTION RELIEF

         On September 27, 2017, Petitioner filed in the Registration case (CR2016-5624) a pro se Petition for Post-Conviction Relief (Exhibit L), and a third Notice of Post-Conviction Relief (Exhibit M).

         On October 9, 2017, the Court summarily dismissed the proceeding. The Court concluded that Petitioner's petition was untimely, and that such untimeliness was not without fault, and thus (except for those claims under Rule 32.l(d), (e), (f), (g), or (h) exempted from the timeliness requirements) subject to dismissal as untimely. The court also found the challenge based on a lack of jurisdiction (Rule 32.1(b)) was without merit, and that the timely claims of newly discovered and material facts (Rule 32.1(e)) and innocence (Rule 32.1(h)) were not supported and without merit. The court also denied the request for appointment of counsel and the record. (Exhibit N, Order 10/9/17.)

         Petitioner did not seek further review. (Amended Pet., Doc. 6 at 5.)

         D. PRESENT FEDERAL HABEAS PROCEEDINGS

         Petition - Petitioner commenced the current case by filing his original Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 2, 2017 (Doc. 1), naming Maricopa County as the respondent. That Petition was dismissed with leave to amend based on failure to name a proper respondent. (Order 11/13/17, Doc. 5.) On November 27, 2017, Petitioner filed his Amended Petition (Doc. 6). Petitioner challenges his conviction and sentence in the Registration case (CR2016-5624). Petitioner's Amended Petition asserts the following three grounds for relief:

In Ground One, Petitioner states that he was convicted in Oklahoma in 1998 and his “registration is up August 11, 2017.” He claims he was no longer required to register as a sex offender as of August 11, 2017, and that he “was homeless at the time these charges came about, [and he] didn't have time to obtain a place to stay and to obtain an identification.” He also states that his attorney failed to file a timely notice of appeal after being instructed to do so.
In Ground Two, Petitioner asserts that he received ineffective assistance of counsel. He claims that he tried to fire his attorney, but the trial court said that if he did, he would have to proceed in propria persona. Petitioner contends that he was “forced to keep” the attorney because Petitioner is untrained in the law. He also alleges that he requested that his attorney file a petition for post-conviction relief, but his attorney failed to do so. Petitioner contends that his pro se petition for post-conviction relief was untimely.
In Ground Three, Petitioner claims that he has been subjected to double jeopardy because he was convicted in Oklahoma in 1998; he was only required to register as a sex offender until August 11, 2017; and “Maricopa County is now saying [he has] to register here when [his] registration is up as of August 11, 2017.”

(Order 12/7/17, Doc. 7 at 2 (emphasis added).) On screening, the Court dismissed Ground One as duplicative and for failure to allege a violation of the U.S. Constitution or laws or treaties of the United States. (Id. at 2-3.) The Court noted an apparent lack of exhaustion of state remedies, but in light of the potential of a procedural default, declined to dismiss the remainder of the Amended Petition on that basis.

         Response - On March 6, 2018 Respondents filed their Limited Answer (Doc. 12), arguing that Petitioner failed to properly exhaust his state remedies by seeking review of the denial of his claims by the PCR court. Respondents argue that Petitioner is now procedurally barred from seeking such review under Arizona Rule of Criminal Procedure 32.9(c), and from seeking relief in a new PCR proceeding under Arizona's timeliness (Rule 32.4(a)) and waiver bars (Rule 32.2(a)(2)).

         Reply - On March 23, 2018 Petitioner filed a Reply [“Motion to Vacate Indictment”] (Doc. 14). The undersigned liberally construes this pro se Reply. See See Zichko v. Idaho, 247 F.3d 1015 (9th Cir. 2001). So construed, in addition to arguing the merits of his claims, Petitioner argues that his procedural default was caused by trial counsel's failure to file a timely PCR notice. In support of this claim, he provides an Inmate Legal Request (Exhibit R-D) showing delivery to prison officials on June 23, 2017 of mail directed to trial counsel which he contends requested a PCR notice be filed.

         III. APPLICATION OF LAW TO FACTS

         A. EXHAUSTION, PROCEDURAL DEFAULT AND PROCEDURAL BAR

         Respondents argue that Petitioner's claims are procedurally defaulted, and thus are barred from federal habeas review.

         1. Exhaustion Requirement

         Generally, a federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam). The exhaustion doctrine, first developed in case law, has been codified at 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981)(per curiam), cert. denied, 455 U.S. 1023 (1982).

         a. Exhaustion by Fair Presentation

         Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented his federal claims to the state courts. “A petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005).

         Proper Forum - “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 (9th Cir. 2005)(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).

         Proper Vehicle - Ordinarily, “to exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Only one of these avenues of relief must be exhausted before bringing a habeas petition in federal court. This is true even where alternative avenues of reviewing constitutional issues are still available in state court. Brown v. Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989).

         Factual Basis - A petitioner must have fairly presented the operative facts of his federal claim to the state courts as part of the same claim. A petitioner may not broaden the scope of a constitutional claim in the federal courts by asserting additional operative facts that have not yet been fairly presented to the state courts. Expanded claims not presented in the highest state court are not considered in a federal habeas petition. Brown v. Easter, 68 F.3d 1209 (9th Cir. 1995); see also, Pappageorge v. Sumner, 688 F.2d 1294 (9th Cir. 1982), cert. denied, 459 U.S. 1219 (1983). And, while new factual allegations do not ordinarily render a claim unexhausted, a petitioner may not "fundamentally alter the legal claim already considered by the state courts." Vasquez v. Hillery, 474 U.S. 254, 260 (1986).

         Legal Basis - Failure to alert the state court to the constitutional nature of the claim will amount to failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 366 (1995). While the petitioner need not recite “book and verse on the federal constitution, ” Picard v. Connor,404 U.S. 270, 277-78 (1971) (quoting Daugherty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary to support the federal claim were before the state courts or that a “somewhat similar state law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982)(per curiam). “[T]he petitioner must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law, ” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005), or by ...


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