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Whipple v. Ryan

United States District Court, D. Arizona

March 27, 2019

Christopher Whipple, Petitioner,
v.
Charles Ryan, et al., Respondents.

          ORDER

          ERIC J. MARKOVICH UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         The 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Plea and Sentencing

          On 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).[1] Petitioner was sentenced to concurrent prison terms, the longest being 14 years. (Ex. B).

         B. Post-Conviction Relief Proceedings[2]

         On July 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.

         On July 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. Id.

         C. Habeas Petition

         Petitioner 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 sentence.

         II. STANDARD OF REVIEW

         The 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).

         A. ...


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