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Matthews v. Ryan

United States District Court, D. Arizona

June 15, 2018

Donnie Ray Matthews, Petitioner,
v.
Charles Ryan; et al., Respondents.

          REPORT AND RECOMMENDATION

          LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE.

         Pending before the court is an amended petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, filed on July 24, 2017, by Donnie Ray Matthews, an inmate confined in the Arizona State Prison Complex in Florence, Arizona. (Doc. 4)

         Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Bowman for report and recommendation.

         The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition. Matthews' claims are procedurally defaulted.

         Summary of the Case

         Matthews was convicted after a jury trial of two counts of third-degree burglary. (Doc. 17, p. 4) On August 19, 2013, the trial court sentenced him to concurrent eight-year terms of imprisonment. Id.; (Doc. 17-4, pp. 2-5) Matthews filed a Motion to Vacate Judgment on August 24, 2013. (Doc. 18, pp. 3-28) The trial court denied the motion on September 30, 2013. (Doc. 18, pp. 34-36)

         On direct appeal, Matthews argued (1) he was deprived of due process when his motion for change of judge was ignored, (2) the delay in ruling on that motion caused him prejudice and denied him his Sixth Amendment right to self-representation, and (3) the trial court abused its discretion by denying his motion to vacate the judgment. (Doc. 17, pp. 3-12) The Arizona Court of Appeals affirmed his convictions and sentences on October 21, 2014. Id. Matthews did not file a petition for review with the Arizona Supreme Court. (Doc. 21, p. 34)

         Previously on September 24, 2013, Matthews filed notice of post-conviction relief (PCR). (Doc. 19-6), p. 2) The trial court stayed the PCR proceedings until after the direct appeal. (Doc. 19-9, p. 2); (Doc. 19-10, p. 2) The court appointed advisory counsel and restarted PCR proceedings on January 30, 2015. (Doc. 19-10, p. 2)

         On February 12, 2015, Matthews filed in the trial court a pro se Petition for Writ of Habeas Corpus. (Doc. 20, pp. 1-55); (Doc. 21, pp. 2-26) He argued (1) the state failed to properly institute charges by filing a complaint and proving probable cause to the magistrate in regards to the burglary of Ghinis French Cafe, (2) per se prejudice affected the trial, (3) prosecutorial misconduct denied him a fair trial, and (4) trial counsel was ineffective for making him accept “unfounded stipulations” regarding prior convictions. (Doc. 22, pp. 6-8) The trial court treated the habeas petition as a Rule 32 PCR petition. (Doc. 21, p. 37) On July 10, 2015, the trial court denied the petition because the first three claims were precluded pursuant to Ariz.R.Crim.P. 32.2(a) and the fourth was without merit. (Doc. 22, pp. 6-9) Matthews did not file a petition for review with the Arizona Court of Appeals. (Doc. 4, p. 5)

         On February 3, 2016, Matthews filed in the trial court a second Petition for Writ of Habeas Corpus. (Doc. 22, pp. 13-40) He argued again that he could not be convicted of burglary of the Ghinis French Cafe because the original complaint did not contain that charge. Id. The trial court construed the petition as a supplemental Rule 32 PCR petition and, on February 26, 2016, denied all claims as precluded pursuant to Ariz.R.Crim.P. 32.2(a). (Doc. 23, pp. 6-7) Matthews did not file a petition for review with the Arizona Court of Appeals. (Doc. 4, p. 5)

         On August 30, 2016, Matthews filed in the trial court a third Petition for Writ of Habeas Corpus. (Doc. 23, pp. 9-22) He argued again that he could not be convicted of the Ghinis French Cafe burglary because the magistrate did not issue an arrest warrant for that charge. Id. On September 19, 2016, the trial court construed the petition as a supplemental Rule 32 PCR petition and denied all claims as precluded pursuant to Ariz.R.Crim.P. 32.2(a). (Doc. 23, pp. 26-27) On January 10, 2017, the Arizona Court of Appeals granted review but denied relief. (Doc. 24, pp. 24-26) The court found that Matthews's PCR proceeding was “untimely.” (Doc. 24, p. 26)

         On July 5, 2017, Matthews filed in this court a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He filed an amended petition on July 24, 2017. (Doc. 4) Matthews argues (1) he is falsely imprisoned because “the state unlawfully indicted, tried, and convicted the petitioner, ” (2) the state lacked “subject matter jurisdiction to indict, try, and convict the petitioner, ” (3) he was convicted of a crime different from the one contained in the complaint, and (4) the state committed structural error by employing a twelve-person grand jury. (Doc. 4)

         In their answer, the respondents argue, among other things, that Matthews' claims are procedurally defaulted. (Doc. 16) They are correct. The court does not reach the respondents' alternative arguments.

         Matthews filed a reply on April 23, 2018. (Doc. 27) He describes the circumstances leading to his arrest and argues that his Fourth Amendment rights were violated. Id. He further argues that the court that convicted him was without “subject matter jurisdiction.” Id. He does not address the issue of procedural default. Id. It appears that Matthews is attempting to raise new grounds for relief in his reply; that is not allowed. The new grounds will not be considered. See Ward v. People of ...


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