United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge
Miles Kauffman (Petitioner), presently incarcerated at the
Arizona State Prison Complex - Whetstone Unit, in Tucson,
Arizona, filed a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254. Pursuant to the Rules of Practice
of the Court, this matter was referred to Magistrate Judge
Ferraro for Report and Recommendation. Before the Court are
the Petition (Doc. 1), Petitioner's Expansion of Record
(Doc. 12), Respondent's Limited Answer to Petition for
Writ of Habeas Corpus (Doc. 13), and Petitioner's
Traverse Reply (Doc. 19). The Magistrate Judge
recommends that the District Court, after
its independent review of the record,
dismiss the Petition.
and Procedural Background Petitioner's
Incarceration Stems from Four Separate Cases Petitioner
is serving a sentence of 15.75 years stemming from charges
brought against him in four (4) cases in the Arizona Superior
Court, Pima County.
CR2007-4582, Petitioner was charged with, and convicted by a
jury of, possession of a narcotic drug and possession of drug
paraphernalia. (Petition at p. 41, ¶ 4.) The Arizona
Court of Appeals determined the facts in the case to be:
Police Officer Rivera saw a woman, later identified as L.H.,
walking on a busy street, waiving at passing cars.
[Petitioner] drove his car down a nearby street; L.H.
approached the car and got into the front passenger seat.
Suspecting prostitution, Rivera followed [Petitioner's]
car and witnessed behavior that led him to believe L.H.'s
hands were “doing something” in
[Petitioner's] lap as he drove.
notified other officers who intercepted [Petitioner's]
car at a nearby intersection. As [Petitioner] stopped his
vehicle, officers saw him move his hands from the steering
wheel to reach first into his lap and then to the floorboard
area as he stopped the car. After approaching the car,
officers also saw a used crack pipe on the floorboard. The
officers searched the car and found rocks of crack cocaine on
the driver's side floorboard, a spoon with cooked residue
underneath the driver's seat, and other items typically
used to consume illegal drugs.
at p. 40, ¶¶ 2-3.) This Court presumes these facts
to be correct. See 28 U.S.C. § 2254(e)(1)
(providing that a determination of a factual issue made by a
state court shall be presumed to be correct); Summer v.
Mata, 449 U.S. 539, 546-47 (1981) (state appellate court
factual determinations are presumed correct). The trial court
sentenced Petitioner to concurrent, presumptive terms of
imprisonment, the longest of which was 10 years.
(Id. at 40, ¶ 1.)
CR2008-0894, Petitioner pled guilty to solicitation to
possess a narcotic drug for sale. (Id. at 80; Doc.
14 at Ex. E (plea agreement).) Determining that Petitioner
had nine prior misdemeanor convictions and 11 prior felony
convictions, the trial court sentenced Petitioner to a
presumptive term of 12 years. (Doc. 14 at Ex D at p. 4
CR2008-2641, Petitioner pled guilty to possession of a
narcotic drug and the trial court sentenced him to 12
years' imprisonment. (Doc. 1 at 80; Doc. 14 at Ex. E at
p. 1 (plea agreement); Doc. 14 at Ex. D (sentencing order).)
CR2008-3466, Petitioner pled guilty to endangerment and
aggravated driving under the influence while license was
suspended (“aggravated DUI”). (Doc. 1 at p. 80;
Doc. 14 at Ex. C (plea agreement).) Petitioner was sentenced
to a presumptive 3.75 year sentence for endangerment and to a
presumptive 10 year sentence for aggravated DUI. (Doc. 14 at
Ex. D at pp. 6-7 (sentencing order).)
sentences in CR20007-4582, CR2008-0894, and CR2008-2641 were
set to run concurrently. (Doc. 14 at Ex. D at pp. 2-5.) With
respect to Petitioner's convictions in CR2008-3466
(aggravated DUI and endangerment), the trial court set
Petitioner's 10-year sentence for aggravated DUI
concurrent with all other sentences and set his 3.75-year
sentence for endangerment consecutive to all other sentences.
(Id. at pp. 6-7.) Accordingly, as first mentioned
above, Petitioner's sentences in all four cases total
Appeal in CR2007-4582 Petitioner appealed his conviction
by a jury in CR2007-4582. (Doc. 1 at pp. 4-26.) In his
appeal, Petitioner alleged that the trial court erred in
precluding certain third-party culpability evidence and that
the charges in the indictment were duplicitous.
(Id.) On January 11, 2010, the Arizona Court of
Appeals denied relief determining that the alleged
third-party culpability evidence was inadmissible hearsay and
lacked sufficient guarantees of trustworthiness. The appeals
court determined that Petitioner's duplicitous argument
was precluded with respect to any contention that the
indictment was duplicitous and meritless with
respect to any contention that the charge was
duplicitous. Petitioner did not seek review of this decision.
(Doc. 1 at p. 3; Doc. 14 at Ex. B at p. 1.)
Relief Proceedings Because all of Petitioner's cases
were consolidated for sentencing, on March 23, 2009,
Petitioner initiated consolidated post-conviction relief
proceedings in his four cases. (Doc. 14 at Ex. F.) On May 10,
2010, Petitioner's court appointed post-conviction
counsel notified the trial court that he had reviewed the
relevant materials and was unable to identify any colorable
post-conviction issues to raise and moved for an extension of
time to allow Petitioner an opportunity to file a pro
se petition for post-conviction relief. (Doc. 14 at Ex.
G.) The trial court granted the motion and gave Petitioner
until July 2, 2010, to file a pro se petition for
post-conviction relief. (Doc. 14 at Ex H.) Petitioner failed
to file a pro se post-conviction petition by that
date. Accordingly, on July 13, 2010, the trial court
dismissed the consolidated post-conviction relief
proceedings. (Doc. 14 at Ex. I.) Petitioner did not seek
review of the trial court's dismissal. (Doc. 1 at p. 85.)
three years later, on August 28, 2013, Petitioner filed a
motion seeking to modify the judgment against him alleging
that the trial court erred under Arizona law by reducing his
fines, fees and penalties to a restitution order before he
had completed his sentence. (Doc. 14 at Ex. J.)
Petitioner's motion was denied because the trial court
had not issued such an order. (Doc. 14 at Ex. K.)
year and a half later, on April 21, 2015, Petitioner filed a
successive petition for post-conviction relief in the trial
court. (Doc. 1 at pp. 50-78.) In this successive petition for
post-conviction relief, Petitioner argued that his trial
counsel in CR2007-4582 had been ineffective in three ways.
(Doc. 1 at pp. 54-60.) Petitioner contended his attorney: (1)
failed to challenge the indictment on duplicity grounds; (2)
did not locate and interview a witness (L.H.) before trial or
call her to testify at trial; and (3) failed to sufficiently
explain the plea offer to him (including the consequence of
rejecting the plea and proceeding to trial). (Id.)
With respect to CR2008-2641 and CR2008-0894, Petitioner
argued that his trial counsel had been ineffective because
counsel allegedly did not conduct sufficient pretrial
investigation, sufficiently advise him during the plea
negotiation process, or request a mental health evaluation
during pretrial proceedings. Petitioner also alleged that his
guilty pleas in these two cases had not been knowingly,
intelligently, or voluntarily made. (Id. at pp.
61-63.) With respect to CR2008-3466, Petitioner alleged that
his counsel had been ineffective because counsel did not
sufficiently explain the plea agreement (but had coerced him
into accepting it) and because counsel did not object to the
indictment on duplicity grounds. (Id. at pp. 64-65.)
Petitioner also alleged that the trial court erred by
imposing criminal restitution because the police patrol car
(and not Petitioner) struck a person that Petitioner stopped
to let out of his car while he was fleeing from the police.
(Id. at pp. 68-70.) Lastly, Petitioner alleged that
the police had violated his rights under Miranda v.
Arizona, 384 U.S. 436 (1966). (Id. at pp.
65-66.) After a full briefing the trial court denied relief
determining “each of Petitioner's claims are
precluded.” (Id. at p. 81; Doc. 14 at Exs. M
timely appealed to the Arizona Court of Appeals. (Doc. 14 at
Ex. N.) On December 7, 2015, the court of appeals denied
relief determining Petitioner's claims were precluded
because the successive petition for post-conviction relief
was untimely under Arizona law. (Doc. 1 at pp. 83-84.)
Petitioner did not seek review of this decision.