O'Dell v. Ryan

          HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT COURT

          REPORT AND RECOMMENDATION

          Michelle H. Bums United States Magistrate Judge

         On November 21, 2017, Petitioner Leonard Dwight O'Dell, who is confined in the Arizona State Prison Complex, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 11), and Petitioner has not filed a reply.

         BACKGROUND

         Pursuant to a plea agreement, on September 6, 2012, Petitioner was convicted in Maricopa County Superior Court, case ##CR 2011-101449, CR 2011-007699, and CR 2011-146392, of promoting prison contraband, aggravated assault, and destruction of or injury to a public jail, and was sentenced to a 9.25-year term of imprisonment. (Doc. 6; Doc. 11, Exh. O.)

         On June 19, 2013, Petitioner filed two notices of post-conviction relief. (Exhs. Q, R.) One of the notices is dated August 7, 2012, one month before the trial court sentenced Petitioner, and the other notice is dated October 16, 2012. (Exhs. Q, R.) Petitioner filed his PCR petition on June 19, 2013. (Exh. S.)

         On June 27, 2013, the state court dismissed Petitioner's PCR petition as untimely. (Exh. T.) In his habeas petition, Petitioner appears to assert that he sought review of this decision in the Arizona Court of Appeals, Arizona Supreme Court, and United States Supreme Court. (Doc. 1 at 2-3.) However, there is no documentation is the record supporting his assertion.

         On November 29, 2016, Petitioner filed a second PCR petition dated November 19, 2016. (Exhs. U, V.) The state court dismissed the PCR petition on December 14, 2016, stating, in pertinent part:

A. Rule 32.1(a) Claims

In his current submission, Defendant contends that his conviction and sentence were obtained in violation of his Fifth and Sixth Amendment rights and he is entitled to relief under Arizona Rule of Criminal Procedure 32.1(a). (Petition at 3) Specifically, Defendant again contends that he received ineffective assistance of counsel. (Id. at 2) In addition, Defendant claims that the State introduced the following at trial: a coerced confession, evidence obtained pursuant to an unlawful arrest, evidence obtained by an unconstitutional search and seizure, and a statement obtained in the absence of a lawyer at a time when representation is constitutionally required. (Id. at 1-2) According to Defendant, he was badgered “after stating I need an attorney present to make a decision when speaking . . .” (Id. at 3) Furthermore, the State engaged in the unconstitutional suppression of evidence, infringed an unspecified constitutional or statutory right and the right against self-incrimination, and used a prior conviction to determine the sentence that was obtained in violation of the United States or Arizona Constitutions. (Id. at 2) Notwithstanding these claims, the record reflects that Defendant pled guilty and consequently did not have a trial.

Defendant cannot raise these Rule 32.1(a) claims in a successive and untimely Rule 32 proceeding because the notice may only raise claims pursuant to Rule 32.1(d), (e), (f), (g), or (h). Ariz. R. Crim. P. 32.4(a); see generally State v. Petty, 225 Ariz. 369, 373, ¶ 11, 238 P.3d 637, 641 (App. 2010) (holding ineffective assistance of counsel claims are “cognizable under Rule 32.1(a)”). The Rule 32.1(a) claims the defendant has asserted were required to be raised in a timely Rule 32 proceeding. To the extent Defendant raised ineffective assistance issues in the previous Rule 32 proceeding, relief is also precluded under Arizona Rule of Criminal Procedure 32.2(a)(2); see generally State v. Spreitz, 202 Ariz. 1, 2, ¶ 4, 39 P.3d 525, 526 (2002) (“Our basic rule is that where ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.”) (emphasis in original). To the extent Defendant is asserting new Rule 32.1(a) claims, relief is precluded under Arizona Rule of Criminal Procedure 32.2(a)(3).

B. Rule 32.1(f) Claim

In an effort to excuse his untimely claims, Defendant contends that he “never was allowed to pursue my America or citizen right to direct appeal.” (Id. at 4). He further claims his counsel did not file a timely notice of appeal after being instructed to do so and state officials obstructed the right to appeal. (Id. at 2) Defendant also refers to “placement on very active yards causing me not to access due to lockdowns and staff problems etc.” (Id.) In essence, he is claiming that the filing delay is without fault on his part under Arizona Rule of Criminal Procedure 32.1(f).

Defendant fails to supply an adequate factual or legal basis for relief under the rule. He waived the right to appeal by pleading guilty and consequently there was no appellate right to obstruct. Moreover, Rule 32.1(f) applies when (1) a pleading defendant seeks to file his first Petition for Post-Conviction Relief but has missed the filing deadline through no fault of his own; or (2) a trial defendant seeks a delayed appeal because through no fault of his own the notice of appeal is not timely filed. Rule 32.1(f) provides no remedy when, as here, the Rule 32 proceeding is not an of-right proceeding. See Ariz. R. Crim. P. 32.1(f) cmt. (“Relief pursuant to subsection ...