Cook v. Ryan

          REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

          JAMES F. METCALF UNITED STATES MAGISTRATE JUDGE.

         I. MATTER UNDER CONSIDERATION

         Petitioner, presently incarcerated in the Arizona State Prison Complex at Kingman, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on January 26, 2018 (Doc. 1). On August 16, 2018, Respondents filed their Limited Answer (Doc. 14) asserting time bar, procedural bar and non-cognizable claims. Petitioner filed a Reply on November 5, 2018 (Doc. 22).

         The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

         A. FACTUAL BACKGROUND

         In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:

The undisputed facts were as follows: A narcotics detective (Harris) received information in May 2012 that Cook was selling methamphetamine. Between June 15 and June 17, 2012, a confidential informant told Harris that he observed Cook in possession of a large quantity of methamphetamine at Cook's residence. The informant stated that Cook lived at 1635 Talc Plaza, Bullhead City. Harris confirmed that 1635 Talc Plaza was listed as Cook's address on the police computer system. Based on Harris' affidavit, a municipal court judge issued a search warrant on June 18, 2012, allowing a search of Cook's person, the residence at 1635 Talc Plaza, and Cook's vehicle for methamphetamine and related evidence.

On June 18, 2012, at around 2 p.m., police executed a search warrant at 1635 Talc Plaza and discovered that Cook no longer lived there. The occupant of 1635 Talc Plaza identified himself as Ted Cook, Sr. and told police that his son (Cook) moved next door to 1631 Talc Plaza, although he still had access to the house at 1635 Talc Plaza and continued to receive mail at that address. As Harris headed to the front of 1631 Talc Plaza, another officer saw Cook attempting to flee from the rear of 1631 Talc Plaza toward the back fence. The officer jumped the fence into the backyard of 1631 Talc Plaza, identified himself as a police officer, and chased Cook, ordering him to halt. The officer saw Cook drop a small black bag as he ran toward the back fence. After a chase and a struggle, the officer successfully handcuffed Cook. The officer discovered 22.5 grams of methamphetamine and related paraphernalia in the black bag Cook dropped.

An hour later, a municipal court judge issued an amended search warrant authorizing a search of 1631 Talc Plaza and Cook's vehicle. Inside Cook's residence at 1631 Talc Plaza, police seized a scanner and a security camera and monitor. Inside the trunk of the vehicle, police discovered a bottle containing more than twenty five carisoprodol pills and a digital scale.

         (Exhibit F. Mem. Dec. 11/18/14 at ¶¶ 4-6.) (Exhibits to the Answer, Doc. 14, are referenced herein as “Exhibit ___.”)

         B. PROCEEDINGS AT TRIAL

         A felony complaint was sworn out on June 20, 2012, and on June 21, 2012, Petitioner was indicted in Mohave County Superior Court on charges of possession of methamphetamine for sale, possession of methamphetamine drug paraphernalia, possession of dangerous drugs, and possession of drug paraphernalia. (Exhibit A.) Petitioner proceeded to a jury trial, and was found guilty on all charges. (Exhibit B, M.E. 8/7/13.) On September 5, 2013, Petitioner was sentenced to concurrent sentences of 15.75, 3.75, 10 and 3.75 years on the charges, an effective 15.75 years sentence. (Exhibit C, Judgment 9/5/13.)

         On September 17, 2013, an amended Judgment & Sentence was issued, correcting the No. of one of Petitioner's historical prior convictions. (Exhibit C, Judgment9/17/13.)

         C. PROCEEDINGS ON DIRECT APPEAL

         Petitioner filed a direct appeal, and counsel filed an Opening Brief (Exhibit E) arguing that the seized evidence should have been suppressed based on: (1) insufficient probable cause; (2) lack of a warrant to enter the neighboring property to seize Petitioner; and (3) lack of a basis to enter the neighboring property based on an exigency the police created. Petitioner also argued there was insufficient evidence to support the verdicts on the methamphetamine for sale and dangerous drugs possession counts.

         On November 18, 2014, the Arizona Court of Appeals issued its Memorandum Decision (Exhibit F) affirming Petitioner's convictions and sentences.

         Petitioner filed a Petition for Review with the Arizona Supreme Court, which denied review on April 14, 2015. (Exhibit G, Mandate.)

         Petitioner did not file a petition for writ of certiorari with the U.S. Supreme Court. (Petition, Doc. 1 at 3.)

         D. POST-CONVICTION PROCEEDINGS

         First Proceeding (PCR)

         One month later, on April 23, 2015, Petitioner commenced his first post-conviction proceeding^[1] by filing a Notice of Post-Conviction Relief (Exhibit H), which was dated April 20, 2015. (Id. at 3.) Counsel was appointed (Exhibit I, M.E. 5/7/15), who filed a Petition (Exhibit J) arguing that counsel at the suppression hearing was ineffective for failing to call Petitioner to testify, and trial counsel was ineffective for failing to impeach an officer with prior inconsistent statements.

         Petitioner then filed a pro per Motion for Telephonic Conference (Exhibit K), Supplement (Exhibit L), and Declaration (Exhibit M) complaining of counsel's failure to raise various claims. The PCR court denied the motion on the grounds that Petitioner was not entitled to “hybrid” representation. (Exhibit N, M.E. 11/3/15.) On March 8, 2016, the PCR Court found the petition to be without merit, and denied the Petition. (Exhibit O, M.E. 3/8/16.)

         Petitioner did not file a motion for rehearing (Exhibit S, M.E. 4/12/16 at 1), and did not seek review by the Arizona Court of Appeals.

         On March 28, 2016, Petitioner filed pro se a motion to withdraw counsel (Exhibit P.) That motion was granted. (Exhibit Q, M.E. 3/30/16.)

         Second Proceeding (Motion to Dismiss)

         Petitioner then filed on April 7, 2016, a Motion to Dismiss Charges (Exhibit R). In concluding that it was not a motion for rehearing on the 1^st PCR proceeding, the trial court observed: “It actually says at the end of the pleading that ‘this is a motion and is not a Rule 32 proceeding.'” The court concluded it asserted no legal or factual basis to dismiss, and denied the motion on April 12, 2016. (Exhibit S, M.E. 4/12/16.)

         Although dated April 12, 2016, the trial court's order was not filed until April 13, 2016. Nothing indicates that the order was made in open court, or otherwise issued, before April 13, 2016.

         Third Proceeding (Motion to Amend Sentence)

         Petitioner filed a Motion for Clarification of Sentence, arguing that the Department of Corrections was incorrectly interpreting his 15.75 year sentence as a flat time sentence. On April 12, 2016, based on the sentencing transcript and the language of the sentencing order, the trial court concluded that indeed the state had not relied on the flat time sentencing provisions, the sentence imposed did not meet those provisions, and that he reference to the sentencing provisions was erroneous. Accordingly, the court amended the “Sentencing Order” to excise the reference to the flat time sentencing provisions. (Exhibit S, M.E. 4/12/16.)

         Although dated April 12, 2016, the minute order was not filed until April 13, 2016, and there is no indication that it was issued in open court. Consequently, the undersigned presumes in Petitioner's favor that this amendment was effectively made on April 13, 2016.

         Fourth Proceeding

         After the amendment of the Sentencing Order, Petitioner filed “additional pleadings” seeking dismissal of the charges, which were rejected in a minute order dated April 25, 2016.^[2] (See Exhibit U, M.E. 7/20/16.)

         Fifth Proceeding (PCR)

         On July 12, 2016, Petitioner filed his second Notice of Post-Conviction Relief (Exhibit T). (See Exhibit U, M.E. 7/20/16 at 2 (“second request for post-conviction relief”).) The Notice purported to have been mailed on July 7, 2015, but was dated July 7, 2016. (Exhibit T at II.)

         The PCR court summarily dismissed that petition. The court concluded that Petitioner's attempts to raise an otherwise untimely claim under Arizona Rule of Criminal Procedure 32.1(f) (no fault of defendant) were defective because that provision only applied to of-right petitions filed by pleading defendants, and only protected delayed original notices, not subsequent notices, and Petitioner had gone to trial and had filed a timely original PCR notice. (Exhibit U, M.E. 7/20/16 at 2.)

         Petitioner also attempted to assert an untimely claim under Arizona Rule of Criminal Procedure 32.1(b) (lack of jurisdiction). The court concluded that “[a] claim for relief under Rule 32.1(b) cannot be made in an untimely petition.” (Id. at 3.)

         Finally, Petitioner asserted an otherwise untimely claim under Arizona Rule of Criminal Procedure 32.1(h) (actual innocence). The court did not conclude this claim was untimely, but dismissed it as s precluded under Arizona Rule of Criminal Procedure 32.2 because it had not been raised in a prior PCR proceeding. (Id.)

         Sixth Proceeding (State Habeas)

         On August 26, 2016, Petitioner filed with the trial court a Petition for Writ of Habeas Corpus (Exhibit V), raising claims of prosecutorial misconduct, judicial bias, insufficient evidence on the seized substance as a drug, denial of due process in ruling on the motion to suppress, and arguing that any dismissal should be with prejudice.

         On August 24, 2016, the trial court construed (over Petitioner's objection) this filing as a petition for post-conviction relief. The court observed: “Whether the Defendant's most recent pleading would be considered his second, third or fourth request for post-conviction relief might depend on the procedural interpretation given to his various pleadings.” (Exhibit W, M.E. 8/24/16 at 2.) The court found that the claims “either were raised or could have been raised on his direct appeal or in the prior Rule 32 proceeding, ” and denied the petition.

         Although dated August 24, 2016, the minute order was not filed until August 26, 2016, and there is no indication that it was issued in open court. Consequently, the undersigned presumes in Petitioner's favor that this amendment was effectively made on August 26, 2016. Petitioner then filed a Motion for Reconsideration (Exhibit X), which was denied on September 9, 2016 (Exhibit Y, M.E.).

         Seventh Proceeding (3^rd PCR)

         On October 6, 2016, Petitioner then a Motion to Amend (Exhibit Z) his first PCR petition (filed October 5, 2015). The Motion included a certification of mailing on October 5, 2016. (Exhibit Z at 20.)

         The trial court concluded that the proper course was to “[t]reat[] the Defendant's pleading as a motion to amend rather than a new Rule 32 request for relief.” (Exhibit AA, M.E. 10/12/16.) The court concluded that it was untimely under a time limitation the court read into the “good cause” standard under Arizona Rule of Criminal Procedure 32.6(d) (“the court may permit amendments only for good cause”), and therefore denied it. (Id.) Petitioner then sought review of the denial of his motion to amend by the Arizona Court of Appeals. (Exhibit BB (“decision…entered on October 12^th 2016”).)

         The Arizona Court of Appeals granted review, construed the motion to amend as a “petition for post-conviction relief, filed pursuant to Arizona Rule of Criminal Procedure 32.1, ” which it characterized as “Cook's third petition.” The appellate court summarily found no abuse of discretion and affirmed the denial, and denied relief. (Exhibit CC, Mem. Dec. 1/4/18.)

         E. PRESENT FEDERAL HABEAS PROCEEDINGS

         Petition - Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on January 26, 2018 (Doc. 1). Petitioner's Petition asserts the following four grounds for relief:

Ground One: “The defendants was denied his right to due process of law which denies the state and the court jurisdiction to proceed to trial, ” in violation of the Fifth and Fourteenth Amendments;

Ground Two: “The state introduced illegal evidence at trial that led to an illegal conviction and sentence, ” in violation of the Fifth and Fourteenth Amendments;

Ground Three: “The amended search warrant should have been suppressed as the probable cause was insufficient to support the issuance of the warrant, ” in violation of the Fourth Amendment; and

Ground Four: Ineffective assistance of counsel, in violation of the Sixth Amendment.

         (Service Order 4/18/18, Doc. 4 at 2.)

         Petitioner argues that his petition is not untimely because: (1) he is entitled to tolling for his state applications under 28 U.S.C. § 2244(d)(2) (statutory tolling); and (2) pursuant to Martinez v. Ryan,566 U.S. 1 (2012), because ...