United States District Court, D. Arizona
ORDER
Honorable Rosemary Marquez United States District Judge.
On May
16, 2017, Petitioner Michael Isidoro Sanchez, who is confined
in the Arizona State Prison Complex-Eyman, filed a pro se
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. (Doc. 1.) On September 1, 2017, this Court
stayed the above-captioned matter pending resolution of a
petition for review of denial of post-conviction relief which
was then pending in the Arizona Supreme Court. (Doc. 16.)
Petitioner subsequently filed a Notice of Status (Doc. 20),
averring that the Arizona Supreme Court denied his petition
for review on January 4, 2018.
Currently
pending before this Court is Petitioner's Motion for Stay
and Abeyance (Doc. 18). On June 26, 2018, Magistrate Judge D.
Thomas Ferraro issued a Report and Recommendation (Doc. 21),
recommending that this Court deny the Motion for Stay and
Abeyance. Petitioner filed an Objection on July 6, 2018 (Doc.
22), and on July 9, 2018, Petitioner filed a Motion to
Supplement the Objection (Doc. 23). Respondents have not
responded to the Objection or the Motion to Supplement, and
the time for doing so has now expired.
I.
Standard of Review
A
district judge “may accept, reject, or modify, in whole
or in part, the findings or recommendations” made by a
magistrate judge. 28 U.S.C. § 636(b)(1). The district
judge must “make a de novo determination of those
portions” of the magistrate judge's “report
or specified proposed findings or recommendations to which
objection is made.” Id.
II.
Discussion
In his
Motion for Stay and Abeyance, Petitioner states that he
submitted a Notice of Post-Conviction Relief on August 8,
2017 to challenge the effectiveness of his first Rule 32
counsel. (Doc. 18 at 2.) Petitioner asks this Court to stay
his federal habeas proceedings pending the conclusion of the
new Rule 32 proceeding. (Id. at 4-5.) Petitioner
attaches as an exhibit to the Motion a copy of an order from
the Cochise County Superior Court in No. CR201300346, which
indicates that Petitioner filed a Notice of Post-Conviction
Relief on August 10, 2017. (Doc. 18-1.)
In his
Report and Recommendation, Judge Ferraro indicates that he
was unable to locate any currently pending proceedings
related to Petitioner in the Cochise County Superior Court or
the Arizona Court of Appeals via websites that provide
public-access case information. (Doc. 21 at 2.) Judge Ferraro
accordingly recommends that this Court deny Petitioner's
Motion for Stay and Abeyance and lift the stay put in place
on September 1, 2017. (Id. at 3.)
In his
Objection, Petitioner argues that Judge Ferraro's
recommendation to deny his Motion for Stay and Abeyance is
based on a factual error, because the website that Judge
Ferraro relied upon is missing information and is not up to
date. (Doc. 22 at 1-2.) To show that Rule 32 proceedings are
currently pending in Cochise County Superior Court,
Petitioner attaches various exhibits to his Objection,
including a Notice of Post-Conviction Relief filed August 10,
2017 in Cochise County Superior Court case number CR201300346
(Doc. 22-1 at 3-5). Petitioner's exhibits show that he
initiated a successive Rule 32 proceeding in Cochise County
Superior Court on August 10, 2017.
In his
Motion to Supplement, Petitioner avers that he received an
order from the Cochise County Superior Court dismissing his
Rule 32 proceeding, and that he is in the process of
preparing and filing a motion for reconsideration. (Doc. 23
at 1-2.)[1] Petitioner attaches a copy of an order in
Cochise County Superior Court case number CR201300346, dated
July 2, 2010, which dismisses his Rule 32 proceeding. (Doc.
23 at 4-5.) Petitioner also attaches a copy of his motion for
reconsideration. (Id. at 6-14.) The
undersigned's law clerk contacted the Cochise County
Superior Court, and confirmed that Petitioner's motion
for reconsideration was filed and had not yet been ruled upon
as of July 25, 2018. Accordingly, this Court rejects the
Report and Recommendation insofar as it concludes that
Petitioner does not have any Rule 32 proceedings pending in
state court.
Nevertheless,
this Court accepts Judge Ferraro's ultimate
recommendation to lift the stay entered on September 1, 2017
and to deny Petitioner's Motion for Stay and Abeyance. A
motion for stay and abeyance should be granted “if the
petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is
no indication that the petitioner engaged in intentionally
dilatory litigation tactics.” Rhines v. Weber,
544 U.S. 269, 278 (2005). Petitioner has not met this
standard.
Petitioner
could have exhausted a claim of ineffective assistance of
Rule 32 counsel earlier, and he has not shown good cause for
his failure to do so. In Arizona, a pleading defendant may
challenge the effectiveness of his first Rule 32 counsel in a
second, timely Rule 32 proceeding. See State v.
Pruett, 912 P.2d 1357, 1360 (Ariz. App. 1995). However,
“[a] defendant may raise an of-right claim of
ineffective assistance of Rule 32 counsel in a successive
Rule 32 notice” only if the notice “is filed no
later than 30 days after the final order or mandate in the
defendant's of-right petition for post-conviction
relief.” Ariz. R. Crim. P. 32.4(a)(2)(C).
Petitioner's first, of-right Rule 32 petition was denied
on May 24, 2016. (Doc. 1 at 4.) Petitioner then filed a
second Rule 32 petition, which was also denied.[2] The Rule 32
proceeding that Petitioner initiated on August 10, 2017 is
his third Rule 32 proceeding, and it was filed more than 30
days after the final order or mandate in Petitioner's
first, of-right Rule 32 proceeding. Petitioner has not shown
good cause for failing to raise in state court an of-right
claim of ineffective assistance of Rule 32 counsel within 30
days after the final order or mandate in his first, of-right
Rule 32 petition.
Accordingly,
IT IS ORDERED that the Report and
Recommendation (Doc. 21) is partially accepted and
partially rejected as follows:
a. The Report and Recommendation is rejected
to the extent it finds that Petitioner does not have any Rule
32 ...