United States District Court, D. Arizona
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 ...