United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
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
to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,
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). . . . . .
. . . .
FACTUAL AND PROCEDURAL BACKGROUND
Initial Charge and Sentencing
Arizona Court of Appeals stated the facts 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.
Direct Appeal and First Post-Conviction Relief
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. 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.
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.
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.
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.
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”).
Second Post-Conviction Relief Proceeding
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.
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.
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.
Third Post-Conviction Relief
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
Direct Appeal of Sentences
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).
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.
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.
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