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Kaufman v. Ryan

United States District Court, D. Arizona

April 25, 2018

Miles Kaufman, Petitioner,
v.
Charles Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Honorable D. Thomas Ferraro United States Magistrate Judge

         Petitioner 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.

         Factual 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.

         In 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:

         Tucson 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.

         Rivera 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.

         (Doc. 1 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.)

         In 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 (sentencing order).)

         In 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).)

         In 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).)

         Petitioner's 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 15.75 years.

         Petitioner's 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.)

         Post-Conviction 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.)

         Over 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.)

         Over a 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 and N.)

         Petitioner 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. (I ...


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