United States District Court, D. Arizona
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF
F. METCALF UNITED STATES MAGISTRATE JUDGE
MATTER UNDER CONSIDERATION
(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
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.
RELEVANT FACTUAL & PROCEDURAL BACKGROUND A. FACTUAL
BACKGROUND AND PROCEEDINGS AT TRIAL
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.)
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.
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.)
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
PROCEEDINGS ON DIRECT APPEAL
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).
PROCEEDINGS ON POST-CONVICTION RELIEF
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).
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.)
did not seek further review. (Amended Pet., Doc. 6 at 5.)
PRESENT FEDERAL HABEAS PROCEEDINGS
- 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
- 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)).
- 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.
APPLICATION OF LAW TO FACTS
EXHAUSTION, PROCEDURAL DEFAULT AND PROCEDURAL
argue that Petitioner's claims are procedurally
defaulted, and thus are barred from federal habeas review.
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).
Exhaustion by Fair Presentation
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.
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)).
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).
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).
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 ...