United States District Court, D. Arizona
J. MARKOVICH UNITED STATES MAGISTRATE JUDGE
Christopher Whipple filed a pro se petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging
his convictions for possession of a dangerous drug for sale,
transportation of a dangerous drug for sale, possession of a
deadly weapon during the commission of a felony drug offense,
possession of a deadly weapon by a prohibited possessor, and
possession of drug paraphernalia. (Doc. 1). Petitioner raises
four grounds for relief: 1) ineffective assistance of
counsel; 2) due process violations for the state's
failure to disclose evidence; 3) unreasonable search and
seizure; and 4) prosecutorial misconduct. Respondents filed
an Answer contending that all of Petitioner's claims are
procedurally defaulted without excuse and that Petitioner has
failed to show cause and prejudice for the procedural default
or that a fundamental miscarriage of justice has occurred.
(Doc. 9). Respondents further allege that all of
Petitioner's claims are waived by his guilty plea, and
that Ground Three is not cognizable on habeas review.
Court finds that Petitioner's claims are procedurally
defaulted and barred from this Court's review. The Court
further finds that Petitioner does not demonstrate cause and
prejudice or a fundamental miscarriage of justice to excuse
the procedural default of his claims. Accordingly, the
Petition will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
Plea and Sentencing
March 17, 2015 Petitioner pled guilty to possession of a
dangerous drug for sale, transportation of a dangerous drug
for sale, possession of a deadly weapon during the commission
of a felony drug offense, possession of a deadly weapon by a
prohibited possessor, and possession of drug paraphernalia in
Pima County Superior Court. (Doc. 10 Ex. A). Petitioner was
sentenced to concurrent prison terms, the longest being 14
years. (Ex. B).
Post-Conviction Relief Proceedings
16, 2015, Petitioner initiated proceedings in Pima County
Superior Court for Rule 32 post-conviction relief
(“PCR”). (Ex. E). Appointed counsel filed a
notice stating that she was unable to find any colorable
claims for relief to raise in a Rule 32 petition and
requested additional time for Petitioner to file a pro se
petition. (Ex. G). Petitioner was given until January 19,
2016 to file his petition. (Ex. H). Petitioner failed to file
within the allowed time and the court dismissed his PCR
proceedings on January 28, 2016. Id.
13, 2016 Petitioner filed a notice and motion to clarify
sentence. (Ex. I). Petitioner alleged that pursuant to A.R.S.
§ 13-3407 and §13-603, he should be receiving
earned release credits, but that he was not. Id. The
trial court interpreted Petitioner's motion as a Rule 32
petition. (Ex. J). However, the court found that the motion
was not timely and did not raise a claim pursuant to Rule
32.1(D), (E), (F), (G), or (H) and was therefore time barred.
Id. The court further found that Petitioner was
sentenced correctly pursuant to the provisions of A.R.S.
§ 13-3407(F) and A.R.S. § 41-1604.07(A) and was
specifically excluded from release credit eligibility.
Id. The court dismissed Petitioner's motion.
filed his PWHC in this Court on September 30, 2016, asserting
four grounds for relief. (Doc. 1). Petitioner requests that
the Court hold an evidentiary hearing and vacate his
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) limits the federal court's power to
grant a petition for a writ of habeas corpus on behalf of a
state prisoner. First, the federal court may only consider
petitions alleging that a person is in state custody
“in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a).
Sections 2254(b) and (c) provide that the federal courts may
not grant habeas corpus relief, with some exceptions, unless
the petitioner exhausted state remedies. Additionally, if the
petition includes a claim that was adjudicated on the merits
in state court proceedings, federal court review is limited
by section 2254(d).