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Prescott v. Hacker-Agnew

United States District Court, D. Arizona

January 4, 2019

Delton Prescott, Jr., Petitioner,
v.
Carla Hacker-Agnew, et al., Respondents.

          REPORT AND RECOMMENDATION

          BRIDGET S. BADE UNITED STATES MAGISTRATE JUDGE

         Petitioner Delton Prescott, Jr. has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) In their answer, Respondents argue that Petitioner is not entitled to habeas corpus relief. (Doc. 14.) Petitioner has filed a reply in support of his petition. (See Doc. 15.) As set forth below, the Court recommends that the petition be denied.

         I. Procedural Background

         A. Charges, Trial, and Sentencing

         On March 17, 2014, Petitioner was indicted in Maricopa County Superior Court, Case No. CR-2014-111126-001. The indictment alleged two counts involving the sale or transportation of dangerous drugs (Counts 1 and 3), two counts of use of wire communication or electronic communication in drug-related transactions (Counts 2 and 4), one count of possession of dangerous drugs for sale (Count 5), and two counts of possession of drug paraphernalia (Counts 6 and 7). (Doc. 14, Ex. A.) Following a trial, a jury found Petitioner guilty of all charges. (Doc. 14, Ex. D at 2.) The trial court sentenced Petitioner to several concurrent terms of imprisonment, the longest of which was ten years. (Id. at 3-4.)

         B. Direct Appeal

         Petitioner appealed to the Arizona Court of Appeals. (Doc. 14, Ex. E.) Petitioner raised the following claims: (1) the trial court erred, and violated Petitioner's constitutional right to a unanimous jury verdict, by permitting the State to introduce multiple criminal acts to prove Counts 1, 3, and 5; (2) the trial court “substantively amended the indictment” in violation of Arizona Rule of Criminal Procedure 13.5; (3) Petitioner's sentence violated Arizona law because the jury did not make any finding regarding methamphetamine; and (4) his sentence violated the rule in Alleyne v. United States, 570 U.S. 99 (2013), because the jury did not specifically find that methamphetamine was the underlying substance in Counts 1, 3, and 5. (Doc. 14, Ex. E at 10-22.) The Arizona Court of Appeals rejected Petitioner's claims and affirmed his convictions. (Doc. 14, Ex. H.) On Petitioner's motion, the court granted Petitioner an extension of time to file a petition for review in the Arizona Supreme Court. (Doc. 14, Ex. AA.) Petitioner, however, did not file a petition for review. (Doc. 14, Ex. I.)

         C. Post-Conviction Review

         On March 31, 2016, Petitioner filed a notice of post-conviction relief in the trial court. (Doc. 14, Ex. J.) The court appointed counsel. (Doc. 14, Ex. K.) On Petitioner's motion, the court subsequently permitted Petitioner to represent himself and allowed counsel to withdraw. (Doc. 14, Ex. M.) Petitioner filed a petition for post-conviction relief alleging that trial counsel was ineffective (1) during plea negotiations, (2) during voir dire, and (3) for failing to adequately frame issues, prepare jury instructions, and prepare to present testimony. (Doc. 14, Ex. N at 3-8.) Petitioner further alleged that the trial court erred by amending the indictment and transferring a question of law to the jury. (Id. at 3, 9.) Petitioner also alleged that the State failed to prove the charges beyond a reasonable doubt, and that he was “actually innocent” of the charges. (Id. at 9-10.) The trial court rejected Petitioner's claims and denied post-conviction relief. (Doc. 14, Ex. Q.)

         On June 8, 2016, Petitioner filed a petition for review in the Arizona Court of Appeals. (Doc. 14, Ex. R.) Petitioner argued that “the dismissal of Judge Mroz is incorrect and inapposite relative to the Strickland test, as cited, and incomplete as to those matters beyond IAC.” (Id. at 2.) To support that assertion, Petitioner “incorporated by reference” his petition for post-conviction relief, which he attached as an appendix. (Id.) The Arizona Court of Appeals granted review but denied relief. (Doc. 14, Ex. U at 4.) The court explained Petitioner had not met his burden of showing that the post-conviction court had abused its discretion by denying post-conviction relief. (Id.) Petitioner did not seek further review. (See Doc. 14, Ex. V.)

         D. Federal Petition for Writ of Habeas Corpus

         On March 26, 2016, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc. 1.) Petitioner raises four grounds for relief.[1] (Id.) In Ground One, Petitioner alleges that the indictment was defective and was improperly amended. (Id. at 6.) Petitioner alleges that, as a result, “the probability that a unanimous verdict was returned where some jurors may have found one instance or the other, but not simultaneously in conjunction, ” violated his Fifth and Fourteenth Amendment right to “fair notice by presentment before a grand jury” and his Sixth Amendment right to an impartial jury. (Id.)

         In Ground Two, Petitioner alleges that there were defective trial and post-conviction proceedings, in violation of his Fifth and Fourteenth Amendment rights. (Id. at 7.) Petitioner asserts the following sub-arguments in Ground Two: (a) the trial court “ratified the clearly improper presentations by the State, ” rather than correcting defects in the indictment or providing a curative alternative; (b) the trial court allowed the trial “to be expanded to address issues” that were not presented in the indictment; (c) the trial court improperly instructed the jury; (d) less than twenty-four hours after being assigned Petitioner's petition for post-conviction relief, the trial court found “no colorable claims” of ineffective assistance of counsel, based on the arguments in the State's response, “without recognizing that the court had made the appointment, constituting denial of counsel”; and (e) the trial court improperly sentenced Petitioner under “the far more punitive meth statute, ” in the absence of a jury finding regarding methamphetamine.[2] (Id.)

         In Ground Three, Petitioner asserts that trial counsel was ineffective for (a) failing to properly advise him regarding a five-year plea offer, (b) failing to aggressively represent him during jury selection, resulting in a jury “devoid of African-American members, ” (c) failing to prepare for trial, (d) failing to obtain an independent lab analysis to identify the alleged illegal substances at issues, and (e) failing to challenge the amendment of the indictment. (Id. at 8.)

         In Ground Four, Petitioner alleges that his sentencing was improper because the presence of methamphetamine was not proven beyond a reasonable doubt and, therefore, he should have been sentenced under the “generic scale for dangerous drugs, ” instead of under the sentencing range applicable to methamphetamine. (Id. at 9.)

         Respondents asserts that the claims asserted in Ground One, Ground Two (a)-(d), and Ground Three are procedurally barred from federal habeas corpus review. (Doc. 14 at 9-22.) Respondents argue that Ground Four does not present a claim that is cognizable on federal habeas corpus review. (Id. at 25.) Respondents further argue that, while Ground 2 (e) may be properly before the Court, Petitioner is not entitled to habeas corpus relief on that claim. (Id. at 26-30.)

         II. Exhaustion and Procedural Bar

         Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless the petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by “fairly presenting” them to the state's “highest” court in a procedurally appropriate manner.[3] Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“[t]o provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim”); Castille v. Peoples, 489 U.S. 346, 349 (1989) (same).

         A claim has been fairly presented if the petitioner has described both the operative facts and the federal legal theory on which his claim is based. See Baldwin, 541 U.S. at 33. A “state prisoner does not ‘fairly present' a claim to a state court if that court must read beyond a petition or brief . . . that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Id. at 31-32. Thus, “a petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum . . . (2) through the proper vehicle, . . . and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted).

         The requirement that a petitioner exhaust available state court remedies promotes comity by ensuring that the state courts have the first opportunity to address alleged violations of a state prisoner's federal rights. See Duncan v. Walker, 533 U.S. 167, 178 (2001); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Principles of comity also require federal courts to respect state procedural bars to review of a habeas petitioner's claims. See Coleman, 501 at 731-32. Pursuant to these principles, a habeas petitioner's claims may be precluded from federal review in two situations.

         First, a claim may be procedurally defaulted and barred from federal habeas corpus review when a petitioner failed to present his federal claims to the state court, but returning to state court would be “futile” because the state court's procedural rules, such as waiver or preclusion, would bar consideration of the previously unraised claims. See Teague v. Lane, 489 U.S. 288, 297-99 (1989); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). If no state remedies are currently available, a claim is technically exhausted, but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1.

         Second, a claim may be procedurally barred when a petitioner raised a claim in state court, but the state court found the claim barred on state procedural grounds. See Beard v. Kindler, 558 U.S. 53 (2009). “[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claim has deprived the state courts of an opportunity to address those claims in the first instance.” Coleman, 501 U.S. at 731-32. In this situation, federal habeas corpus review is precluded if the state court opinion relies “on a state-law ground that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989).

         A state procedural ruling is “independent” if the application of the bar does not depend on an antecedent ruling on the merits of the federal claim. See Stewart v. Smith, 536 U.S. 856, 860 (2002); Ake v. Oklahoma, 470 U.S. 68, 74-75 (1985). A state court's application of the procedural bar is “adequate” if it is “strictly or regularly followed.” See Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994). If the state court occasionally excuses non-compliance with a procedural rule, that does not render its procedural bar inadequate. See Dugger v. Adams, 489 U.S. 401, 410-12 n.6 (1989). “The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases.” Coleman, 501 U.S. at 732. Although a procedurally barred claim has been exhausted, as a matter of comity, the federal court will decline to consider the merits of that claim. See id. at 729-32.

         However, because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. See Reed v. Ross, 468 U.S. 1, 9 (1984). Generally, a federal court will not review the merits of a procedurally defaulted claim unless a petitioner demonstrates “cause” for the failure to properly exhaust the claim in state court and “prejudice” from the alleged constitutional violation, or shows that a “fundamental miscarriage of justice” would result if the claim were not heard on the merits. Coleman, 501 U.S. at 750. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as “plainly meritless”).

         III. Grounds One, Two (a)-(d), and Three are Procedurally Defaulted

         As discussed below, the Court concludes that Grounds One, Two (a)-(d), and Three are procedurally barred from federal habeas corpus review and Petitioner has not established a basis to overcome that bar.

         A. ...


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