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Bauer v. Ryan

United States District Court, D. Arizona

May 2, 2018

Kenneth Harrison Bauer, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          Honorable Deborah M. Fine, United States Magistrate Judge.

         On May 22, 2017, Kenneth Harrison Bauer (“Petitioner” or “Bauer”) filed his pro se Petition Under 28 U.S.C. § 2254 For a Writ of Habeas Corpus by a Person in State Custody (“Petition”), challenging his convictions in the Maricopa County Superior Court. (Doc. 1) The Court directed Respondents to answer the Petition. (Docs. 4, 13) Respondents filed a timely Answer (Doc. 14), and Petitioner filed a timely Reply (Doc. 17). For the reasons set forth below, the Court recommends that Bauer's Petition be denied and dismissed with prejudice.

         I. BACKGROUND

         Petitioner challenges the constitutionality of his state court drug convictions and sentences, and argues he should have been immune from prosecution pursuant to the Arizona Medical Marijuana Act (“AMMA”). (Doc. 1)

         A. The Arizona Medical Marijuana Act

         “Arizona voters enacted AMMA, A.R.S. § 36-2801 et seq., by ballot initiative in 2010 (Proposition 203).” State v. Gear, 239 Ariz. 343, 344, 372 P.3d 287, 288 (2016). The AMMA permits:

those who meet statutory conditions to use medical marijuana. Because marijuana possession and use are otherwise illegal in Arizona, A.R.S. § 13- 3405(A), the drafters sought to ensure that those using marijuana pursuant to AMMA would not be penalized for such use. They therefore included an immunity provision that protects users from being “subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege” as long as their use or possession complies with the terms of AMMA. A.R.S. § 36-2811(B).

Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122, 347 P.3d 136, 139 (2015).

         The AMMA “broadly immunizes qualified patients, carving out only narrow exceptions from its otherwise sweeping grant of immunity.” Id. (citing A.R.S. § 36-2811(B)). Section 2.G of Proposition 203 explained that “State law should make a distinction between the medical and nonmedical uses of marijuana. Hence, the purpose of this act is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties and property forfeiture if such patients engage in the medical use of marijuana.” (Doc. 1-1 at 2) The AMMA further provides that a “qualifying patient” or a “registered designated caregiver” is not “subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege” for a qualifying patient's “medical use of marijuana pursuant to this chapter if [he] does not possess more that the allowable amount of marijuana.” § 36- 2811(B)(1). Moreover, and key to Petitioner's claims, a registered qualifying patient or a registered designated caregiver is not subject to arrest, prosecution or penalty:

[f]or offering or providing marijuana to a registered qualifying patient or a registered designated caregiver for the registered qualifying patient's medical use or to a registered nonprofit medical marijuana dispensary if nothing of value is transferred in return and the person giving the marijuana does not knowingly cause the recipient to possess more than the allowable amount of marijuana.

§ 36-2811(B)(3).

         B. Petitioner's indictment and trial

         The following summary of Petitioner's indictment, trial, and sentencing underlying the claims of his Petition is quoted from the Arizona Court of Appeals' decision on his direct appeal[1]:

Bauer had valid “qualifying patient” and “designated caregiver” cards he obtained from the Arizona Department of Health Services pursuant to the Arizona Medical Marijuana Act. See A.R.S. §§ 36-2801(5) and (13) (2012) (“designated caregiver” and “qualifying patient” defined); 36-2804.03 (2012) (identification cards). For purposes of this appeal, it will suffice to note that the immunity provisions of the Medical Marijuana Act provide that a person with a patient card may possess no more than 2.5 ounces of marijuana for personal medical use. A.R.S. § 36-2811(B)(1) (2012). A person with a caregiver card and a cultivation authorization, which Bauer also had, may possess twelve marijuana plants. A.R.S. § 36-2801(1)(b). Finally, the act provides that a person with either card may provide marijuana to a registered patient for the patient's personal medical use if “nothing of value is transferred in return[.]” A.R.S. § 36-2811(B)(3).
An undercover police officer with a valid patient card contacted Bauer in response to an online advertisement for medical marijuana. The officer ultimately met with Bauer on four occasions spanning nearly a month. Each time they met, the officer gave Bauer money in exchange for marijuana. During one of the exchanges, Bauer also provided the officer cannabis he extracted from marijuana.
At trial, Bauer testified that because the officer had a valid patient card, the subject transactions were not “sales” but were legal patient-to-patient transfers of marijuana in which the officer provided money only as a donation or gift. Bauer further testified he would have given the marijuana to the officer for free if the officer had asked. At the conclusion of the trial, the jury convicted Bauer as indicated above and the trial court sentenced him to presumptive, concurrent terms of 3.5 years' imprisonment for three counts of sale or transportation of marijuana and placed him on three years' probation for the two remaining counts.

(Doc. 14-2 at 128-129)

         Petitioner was indicted on eight counts, including: four counts of “sale or transportation of marijuana, a Class 3 felony”; one count of “sale or transportation of narcotic drugs, a Class 2 felony”; one count of “possession of marijuana for sale, a Class 2 felony”; one count of “possession or use of narcotic drugs, a Class 4 felony”; and a count of “production of marijuana, a Class 5 felony.” (Doc. 14-1 at 20) (Id.) The last three of these counts were later dropped. (Id. at 35) Petitioner was represented by counsel throughout pre-trial proceedings, at trial, and in his direct appeal. (See, e.g., Doc. 14-1 at 45, 80; Doc. 14-3 at 43; Doc. 14-8 at 13; Doc. 14-2 at 3, 138)

         In a pretrial motion to dismiss, Petitioner argued he qualified for immunity from his charges based on A.R.S. § 36-2811(B)(3). (See Doc. 14-3 at 28-36) The trial court orally denied his motion, finding that while Petitioner was registered as a designated caregiver, the undercover agent to whom he sold marijuana was not one of his “registered qualifying patients, ” and because the payments he received from the agent “were for an amount other than actual cost.” (Id. at 36) The trial court permitted Petitioner to argue the AMMA as a defense, and allowed the State to present evidence rebutting his defense. (Id. at 78-91) When setting the jury instructions, the trial court allowed the instructions to include the text of § 36-2811(B)(3). (Doc. 14-7 at 77-78, 98-99) After the jury found Petitioner guilty on all five counts presented (Doc. 14-8 at 5-8), Petitioner was sentenced to supervised probation on Counts 1 and 2 (Id. at 22-23), and sentenced to concurrent prison terms of 3.5 years for each of Counts 3, 4, and 5, with credit for presentence incarceration (Id. at 24-25), and 3 years of community service after release (Id. at 23, 26). After trial but prior to sentencing, Petitioner filed a motion requesting the court to vacate his convictions because of vagueness of pertinent sections of the AMMA, primarily § 36-2811(B)(3). (Doc. 14-1 at 86-91) The court dismissed the motion. (Id. at 93-94)

         C. Petitioner's direct appeal

         After Petitioner's sentence was imposed on December 16, 2014, he filed a notice of appeal with the superior court. (Doc. 14-1 at 106) Petitioner asserted four arguments on appeal: (1) that the “definition of the word “cannabis” as a narcotic drug under A.R.S. § 13-3408 is void for vagueness” (Doc. 14-2 at 34-38); (2) that the “failure to enforce the motion in limine precluding the use of conclusive terms regarding “sale” is a violation of Appellant's constitutional right to due process” (Id. at 38-44); (3) the trial judge's “imposition of a presumptive sentence after weighing the aggravators and mitigators then concluding a mitigated sentence was warranted is a violation of ...


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