United States District Court, D. Arizona
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 1st 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 (3rd 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 12th 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 ...