Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Langloss v. Ryan

United States District Court, D. Arizona

August 9, 2018

Vernon Michael Langloss, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Honorable Bruce G. Macdonald United States Magistrate Judge

         Currently pending before the Court is Petitioner Vernon Michael Langloss's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”) (Doc. 1). Respondents have filed an Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 23). No. reply was filed. Petitioner has also filed a Motion for Status Report and Temporary Stay (Doc. 24). The Petition is ripe for adjudication.

         Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, [1] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1). . . . . . . . . .

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Initial Charge and Sentencing

         The Arizona Court of Appeals stated the facts[2] as follows:

After a 1993 jury trial, Langloss was convicted of two counts of sexual conduct with a minor under fourteen, two counts of child molestation, and one count of attempted sexual conduct with a minor under fourteen, all dangerous crimes against children involving the same victim, alleged to have occurred “on or about the month of April 1993.” The trial court treated three of the convictions as predicate offenses and sentenced Langloss to presumptive, consecutive terms of imprisonment-two terms of twenty-eight years for the child molestation counts, one term of twenty years, on ten-year term, and life imprisonment without possibility of release for thirty-five years.

Answer (Doc. 23), Ariz. Ct. of Appeals, No. 2 CA-CR 2011-0038-PR, Memorandum Decision 6/9/2011 (Exh. “A”) at 1-2.

         B. Direct Appeal and First Post-Conviction Relief Proceeding

         Langloss's direct “appeal was stayed pending completion of post-conviction proceedings[, ] [and] [h]is [post-conviction relief] petition for review from the trial court's summary denial of relief has been consolidated with the appeal.” Answer (Doc. 23), Ariz. Ct. of Appeals, Nos. 2 CA-CR 94-0027 & 2 CA-CR 95-0635-PR, Memorandum Decision 10/31/1996 (Exh. “B”) at 2.[3] On October 31, 1996, the Arizona Court of Appeals granted review, but denied relief of the consolidated appeal. See id., Exh. “B.” The appellate court construed Petitioner's issues on appeal, as follows: (1) “the trial court erred in denying his motion to strike for cause prospective juror ‘A.C.'”; (2) three instances of prosecutorial misconduct allegedly requiring reversal of his convictions; (3) “the trial court erred in failing to direct a verdict on the charge of attempted sexual conduct with a minor”; and (4) “challeng[ing] the imposition of enhanced, consecutive sentences.” Id., Exh. “B” at 2, 4, 7-8. The appellate court further stated that “[i]n [Petitioner's] petition for review, appellant contends that the trial court erred in summarily denying relief on his petition for post-conviction relief, arguing that he had stated colorable claims of ineffective assistance and newly discovered evidence.” Id., Exh. “B” at 9.

         Regarding the trial court's refusal to strike a juror for cause, the appellate court reviewed the lower court's voir dire of the potential juror, and found that “the trial court could reasonably infer that A.C. could render a fair and impartial verdict.” Id., Exh. “B” at 3. As such, the appellate court found “no abuse of discretion in the denial of appellant's motion to strike for cause.” Answer (Doc. 23), Exh. “B” at 4. Next, the appellate court addressed Petitioner's arguments regarding prosecutorial misconduct. Id., Exh. “B” at 4-7. Because Petitioner had not objected to the prosecutor's closing argument, the appellate court reviewed the portion of Petitioner's appeal related to the same for fundamental error. Id., Exh. “B” at 4. The appellate court first considered the prosecutor's closing arguments regarding evidence related to Petitioner's wife's alleged drug use. Id., Exh. “B” at 5. The appellate court found no fundamental error, noting that “although the prosecutor's statements were arguably improper, we cannot find that appellant was prejudiced by them.” Id., Exh. “B” at 5. Similarly, regarding the prosecutor's cross-examination of Petitioner about alleged statements that he made to CPS, the appellate court found no prosecutorial misconduct, noting that “the purpose of the inquiry was to attack appellant's credibility.” Answer (Doc. 23), Exh. “B” at 6. The appellate court agreed with Petitioner that the prosecution asking him if each witness of the state's witnesses were lying was improper. Id., Exh. “B” at 6. The appellate court noted, however, that Petitioner did not object at trial, and as such applied a fundamental error analysis. Id., Exh. “B” at 6-7. The appellate court went on to “conclude that the jury's decision was not affected by the prosecutor's questions.” Id., Exh. “B” at 7.

         The appellate court next considered Petitioner's assertion “that the trial court erred in failing to direct a verdict on the charge of attempted sexual conduct with a minor, ” for lack of evidence. Id., Exh. “B” at 7-8. The appellate court noted that Petitioner had failed to object to the testimony he alleged was hearsay, and that the testimony before the trial court “was more than sufficient to support the attempt conviction.” Answer (Doc. 23), Exh. “B” at 7-8. Finally, the appellate court considered Petitioner's challenge to “the imposition of enhanced, consecutive sentences.” Id., Exh. “B” at 8. Pursuant to state procedural rules, the appellate court held that “[t]he indictment . . . [was] deemed amended to conform to the evidence, . . . and the victim's testimony was sufficient to support a finding that those counts which were used as predicate priors occurred at different times than the counts which they enhanced.” Id., Exh. “B” at 9. As such, the appellate court found that “each could be used as a predicate prior.” Id., Exh. “B” at 9.

         With regard to Petitioner's post-conviction relief petition, the appellate court noted Petitioner's argument that trial counsel erred in calling “witnesses who could have corroborated his claim that the victim's mother was using drugs.” Id., Exh. “B” at 9. He further urged that such evidence was “newly discovered.” Answer (Doc. 23), Exh. “B” at 9. The appellate court found Petitioner's claim “clearly meritless, . . . because all of the witnesses and the substance of their information were known to appellant at the time of trial.” Id., Exh. “B” at 9. The appellate court further found that “the reports of [Petitioner's] own investigators revealed that all but two of these witnesses either had no knowledge of any drug use by the mother or gained what knowledge they had from [Petitioner].” Id., Exh. “B” at 9. The appellate court determined that “trial counsel did in fact attempt to locate and interview the witnesses identified by [Petitioner] but was unable to find anyone who was able to substantiate [Petitioner's] allegations[, ]” and as such, his ineffective assistance of counsel claim could not stand. Id., Exh. “B” at 10.

         Petitioner's request for review of this decision by the Arizona Supreme Court was denied without comment. See Answer (Doc. 23), Supreme Court, State of Ariz., No.CR-97-0074-PR, Order 6/26/1997 (Exh. “C”).

         C. Second Post-Conviction Relief Proceeding

         On May 26, 2009, Petitioner filed a successive Petition for Post-Conviction Relief (“PCR”). See Answer (Doc. 23), Pl.'s Pet. for PCR 5/26/2009 (Exh. “D”). Relying on several state law cases, Petitioner asserted that significant changes in the law would result in overturning his sentence. Answer (Doc. 23), Exh. “D” at 6-13. Specifically, Petitioner relied on State v. Brown, 191 Ariz. 102, 952 P.2d 746 (Ct. App. 1998) to argue that because his “trial and sentencing on Counts 4 through 8 took place at the same time[, ] [he] could not have been ‘previously convicted' of any of [those counts][, ] [and] Counts 5, 7 and 8 [could] not be considered predicate priors[.]” Answer (Doc. 23), Exh. “D” at 7. Relying on In re Jerry C., 214 Ariz. 270, 151 P.3d 553 (Ct. App. 2007), Petitioner argued that “Counts 4 and 8 described the lesser included offense of Count 5[, ]” and “Count 6 described the lesser included offense of Count 7.” Answer (Doc. 23), Exh. “D” at 10-11. Petitioner then argued that State v. Ortega, 220 Ariz. 320, 206 P.3d 769 (Ct. App. 2008) directs that a conviction of both an offense and its lesser included counterpart violates that Double Jeopardy Clause, and thus required the conviction for the lesser included charge to be vacated. Answer (Doc. 23), Exh. “D” at 11-12. Petitioner further relied on State v. Gonzalez, 216 Ariz. 11, 162 P.3d 650 (Ct. App. 2007) to argue that he was illegally sentenced under Section 13-604.01, Arizona Revised Statute, rather than Section 13-702. Id., Exh. “D” at 13-15.

         On March 15, 2010, The Rule 32 court held a hearing and resentenced Petitioner on Counts five (5), seven (7), and eight (8). See Answer (Doc. 23), Ariz. Superior Court, Pima County, No. CR41697, Ruling 3/15/2010 (Exh. “E”) & Hr'g Tr. 3/15/2010 (Exh. “F”). Originally, Counts four (4), six (6), and seven (7) had been treated as predicate felonies, and Petitioner's sentences for Counts five (5), seven (7), and eight (8) had been enhanced accordingly. See Answer (Doc. 23), Ariz. Ct. of Appeals, No. 2 CA-CR 2011-0038-PR, Memorandum Decision 6/9/2011 (Exh. “A”) at 3. The Rule 32 court determined that State v. Brown, supra, required the resentencing, and denied all of Petitioner's other claims for relief. Id., Exh. “A” at 3.

         On Langloss's Petition for Review, the appellate court noted that the lower court's resentencing decision was not before it, stating that “[t]he court's resentencing order is subject to review by direct appeal.” Id., Exh. “A” at 3 n.1 (citations omitted). As such, the appellate court limited its review “to the court's denial of Langloss's claims for post-conviction relief from his original convictions and sentences.” Id., Exh. “A” at 3 n.1. The appellate court noted that “[t]o the extent Langloss has stated a non-precluded claim challenging his convictions for child molestation, the trial court determined double jeopardy principles were not implicated because he had been convicted for separate and distinct acts charged in each of the five counts of his indictment.” Id., Exh. “A” at 4 (citing State v. Ortega, 220 Ariz. 320, ¶ 9, 206 P.3d 769, 772-73 (Ct. App. 2008)). The appellate court went on to find that the trial court did not abuse its discretion. Answer (Doc. 23), Exh. “A” at 4. The appellate court further found that “the trial court's determination that [the court of appeals'] holding in Gonzalez did not apply to this case” was not an abuse of discretion. Id., Exh. “A” at 5. The appellate court also recognized that “this claim is precluded by Langloss's failure to raise it on appeal or in his first Rule 32 proceeding, and it was properly dismissed for that reason as well.” Id., Exh. “A” at 5 (citing Ariz. R. Crim. P. 32.2(a)(3) & (c)). In light of the preclusion, as well as lack of legal merit, the appellate court denied relief. Id., Exh. “A” at 6.

         D. Third Post-Conviction Relief Proceeding[4]

         On July 3, 2012, Petitioner filed another PCR petition styled “Petition for Post Conviction Relief (PCR-4).” See Answer (Doc. 23), Pet.'s Pet. for PCR (PCR-4) 7/3/2012 (Exh. “G”). Petitioner sought a delayed appeal from his March 2010 re-sentencing. Id., Exh. “G” at 1-2. Petitioner asserted that appellate counsel “mistakenly believed that the proper mechanism for appellate review was to file a Petition for Review in the Court of Appeals.” Id., Exh. “G” at 2. Additionally, Petitioner noted a delay in his receipt of the Memorandum Decision regarding the Petition for Review. Id., Exh. “G” at 4. Upon review, the Rule 32 court found Defendant entitled to relief. Answer (Doc. 23), Ariz. Superior Court, Pima County, No. CR41697, Order 7/30/2012 (Exh. “H”).

         E. Direct Appeal of Sentences

         On August 16, 2012, Petitioner filed his pro se Notice of Delayed Appeal with the trial court. See Answer (Doc. 23), Pet.'s Pro Se Notice of Delayed Appeal (Exh. “I”). On April 17, 2013, Petitioner filed his Opening Brief asserting four (4) grounds for relief. See Answer (Doc. 23), Ariz. Ct. of Appeals, No. 2 CA-CR 2012-0352, Appellant's Opening Br. (Exh. “J”). Petitioner alleged the trial court committed the following errors: (1) violation of “state and federal constitutional prohibitions against double jeopardy by imposing multiple punishment for Counts Four, Five, Six, Seven, and Eight”; (2) violation of “state and federal constitutional prohibitions against double jeopardy by convicting and separately sentencing Appellant for both greater and lesser-included offenses”; (3) Due Process violation because Appellant “was convicted and separately sentenced for both greater and lesser-included offenses”; and (4) Due Process violation “by refusing to make an independent determination of whether Counts Five and Seven Were [sic] ‘separate acts' from Counts Four, Six, and Eight[.]” Id., Exh. “J” at 7 (emphasis in original).

         In a Memorandum Decision, the Arizona Court of Appeals affirmed Petitioner's sentences. See Answer (Doc. 23), Ariz. Ct. of Appeals, No. 2 CA-CR 2012-0352, Mem. Decision 11/19/2013 (Exh. “M”). The appellate court first considered Petitioner's double jeopardy claims in light of counts five and seven allegedly being lesser-included offenses. Id., Exh. “M” at 4. The court found that “[t]he validity of an underlying conviction that was previously affirmed on appeal is beyond the scope of a direct appeal after resentencing.” Id., Exh. “M” at 4 (citing State v. Dann, 220 Ariz. 351, ¶ 26, 207 P.3d 605, 613 (2009); State v. Hartford, 145 Ariz. 403, 405, 701 P.2d 1211, 1213 (Ct. App. 1985)). As such, the appellate court limited its review “to those issues that relate only to the resentencing on counts five, seven, and eight.” Id., Exh. “M” at 4 (citing State v. Shackart, 190 Ariz. 238, 255, 947 P.2d 315, 332 (1997)). Concluding that Petitioner's “double jeopardy arguments challenge the underlying convictions, ” the appellate court declined to address them on appeal. Id., Exh. “M” at 6.

         Regarding Petitioner's due process argument regarding the trial court's alleged refusal “to make an independent determination of whether the sentences violated the prohibition against double jeopardy[, ]” the appellate court held that it “need not address this argument further given that it would have been improper for the court to consider a challenge to the underlying convictions upon resentencing.” Id., Exh. “M” at 6 (citing State v. Hartford, 145 Ariz. 403, 405, 701 P.2d 1211, 1213 (Ct. App. 1985)). Finally, the appellate court considered Petitioner's argument that “the trial court erred when it sentenced him pursuant to A.R.S. § 13-604.01, [] the scheme for dangerous crimes against children, instead of A.R.S. §§ 13-701 and 13-702.” Id., Exh. “M” at 6 (footnotes omitted). The appellate court stated that “[t]he statutes for molestation and sexual conduct with a minor plainly direct the trial court to sentence the offender pursuant to §13-604.01[.]” Id., Exh. “M” at 8. The appellate court further noted that “§ 13-604.01 is a separate sentencing scheme for certain types of crimes committed against children under the age of 15 years.” Id., Exh. “M” at 8 (quotations omitted) (citing State v. Smith, 156 Ariz. 518, 525, 753 P.2d 1174, 1181 (Ct. App. 1987), disapproved on other grounds by State v. Jonas, 164 Ariz. 242, 249, 792 P.2d 705, 712 (1990)). As such, the appellate court held that “[t]he trial court did not err in resentencing Langloss pursuant to § 13-604.01.” Id., Exh. “M” at 8.

         On May 28, 2014, the Arizona Supreme Court denied Petitioner's Petition for Review without comment. Answer (Doc. 23), Supreme Court, State of Ariz., No. CR-13-0450-PR, Order 5/28/2014 (Exh. “N”). On July 16, 2014, the appellate court issued its mandate. Answer (Doc. 23), Court of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.