United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE, UNITED STATES MAGISTRATE JUDGE
TO THE
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
On
December 7, 2018, Petitioner Demetrius Antwon Wilson
(“Petitioner”) filed a pro se Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254,
challenging the constitutionality of his arrest and actions
taken by the state trial judge prior to his entry into a plea
agreement. (Doc. 1)[1] (“Petition”). Petitioner is
confined in the Arizona State Prison Complex in Tucson,
Arizona. (Id. at 1) Respondents filed a limited
answer to the Petition (Doc. 11) with a record supplement at
the Court's direction (Docs. 16, 17). Petitioner replied
(Doc. 12) and supplemented his reply with a notice (Doc. 13).
This matter is ripe for decision and is on referral to the
undersigned pursuant to Rules 72.1 and 72.2 of the Local
Rules of Civil Procedure for further proceedings and a report
and recommendation. As set forth below, the undersigned
recommends that the Petition be denied and dismissed with
prejudice and that a certificate of appealability be denied.
It is
noted that Petitioner filed an interlocutory appeal (Doc. 14)
in this habeas matter after reply and before this Report and
Recommendation. The Ninth Circuit assigned an appellate case
number but declined to set a briefing schedule until
“the district court and, if necessary, [the Ninth
Circuit] determine whether a certificate of appealability
should issue.” (Doc. 15)
I.
BACKGROUND
A.
Summary of events underlying the criminal charges
At
approximately 10:51 a.m. on May 13, 2014, Petitioner entered
his victim's home through a window and confronted the
victim, who was sleeping on a recliner in his living room.
(Doc. 11-2 at 87)[2] Petitioner restrained his victim, an
82-year-old man, by pushing down on his chest while demanding
money and guns. (Id.) The victim gave Petitioner
three envelopes containing about $10, 000.00 in cash.
(Id.) After Petitioner left, the victim called the
police and gave them a description of his assailant.
(Id.) Police officers searched the area surrounding
the victim's house and observed Petitioner running and
jumping over fences. (Id.) When they began pursuing
Petitioner, the officers saw him dropping cash on the ground.
(Id.)
B.
Indictment, trial proceedings, plea agreement, and
sentencing
On May
21, 2014, Petitioner was indicted in Maricopa County Superior
Court on one count of second-degree burglary and on one count
of theft, each a Class 3 felony, and on a count of robbery, a
Class 4 felony. (Doc. 11-1 at 3-4) The record reveals that
Petitioner's pre-trial proceedings were extensive and
time-consuming, involving repeated trial settings because
Petitioner filed at least ten separate motions to change
counsel, and were also characterized by his appointed defense
lawyers' concerns “that [Petitioner] intentionally
refused to cooperate in counsel's efforts to represent
[Petitioner] and to prepare for trial.” (Doc. 11-1 at
7) The superior court noted it “reluctantly” had
allowed Petitioner to represent himself and had reiterated
that he would not be granted any further trial continuances
and would not be permitted to revisit or re-litigate
deadlines or issues already decided by the court.
(Id. at 8) However, Petitioner's trial was
required to be rescheduled because of his hospitalization due
to internal bleeding. (Id.)
In an
order dated July 1, 2016, Petitioner's trial court judge
decided that Petitioner would be allowed to proceed to trial
in pro per status with advisory counsel if he
complied with conditions including following the court's
orders, properly comporting himself in court, taking
medications as prescribed, and not refusing transport from
the jail to the court without a physician-verified medical
justification. (Id. at 12-13)
On July
6, 2016, Petitioner appeared at the first day of trial along
with advisory counsel. (Doc. 11-1 at 18) After complaining he
did not feel well during jury selection, Petitioner asked the
court to permit his advisory counsel to represent him so that
he could return to the jail and lie down. (Id. at
98) He later said that he felt that he was being forced into
a situation where he was feeling too sick to represent
himself, but did not want his advisory counsel to take over
because of conflicts between them. (Id. at 102-103)
When Petitioner proposed having advisory counsel take over
just for that day, the judge reminded him that her pre-trial
order required that if Petitioner asked for advisory counsel
to represent him, he would not be permitted to “switch
back and forth.” (Id. at 104) After remarking
that he was “being bullied, ” Petitioner said he
understood and told the court to have advisory counsel take
over his representation. (Id.) At that point, his
counsel requested a continuance, averring that he believed
Petitioner was truly sick and needed to be medically
evaluated by a physician. (Id. at 105-106) The judge
advised counsel that she understood his concern but reminded
him of her belief that Petitioner had exaggerated his
symptoms in the past to avoid trial, and that
Petitioner's own actions, including his refusal to let
people help him, were causing his problems. (Id. at
107) The court stated she still believed Petitioner was
exaggerating his symptoms or even malingering, that
Petitioner was refusing to see a specialist and had refused a
break to eat a meal, that Petitioner's trial had been
pending for two years, and that it was “just time to
go.” (Id. at 107-110)
Eight
calendar days after trial had begun, Petitioner was admitted
to the hospital for symptoms including symptomatic iron
deficiency anemia, lower gastrointestinal bleeding, and
abdominal pain related to a colostomy reversal in December
2015. (Doc. 12 at 15) His treatment notes indicated he had
experienced anemia since March 2016 requiring intermittent
blood transfusions. (Id.) While in the hospital,
physicians performed laproscopic surgery to separate bowel
adhesions and remove some bowel tissue. (Id. at 16)
A
settlement conference was conducted on August 11, 2016 by
another superior court judge at which Petitioner was
represented by court-appointed counsel. (Doc. 11-2 at 2-42)
The prosecutor discussed the fact that at trial, the state
was “three witnesses away [from] resting [its]
case” when Petitioner required an emergency procedure,
and that the court was about to lose jurors due to the trial
delay. (Id. at 6) After lengthy discussion on
possible parameters of a potential settlement, the court
adjourned with a subsequent hearing set for a change of plea
in the event Petitioner decided to accept a plea.
(Id. at 39-42)
Pursuant
to a plea agreement dated August 17, 2016, Petitioner pleaded
guilty to one count of second-degree burglary, a Class 3
felony, with one prior conviction. (Id. at 45) The
parties stipulated to a sentencing range of 6.5 to 12 years.
(Id. at 46) Petitioner was sentenced at a hearing
conducted on January 13, 2017. (Id. at 92-132) The
sentencing judge also had presided over Petitioner's
trial and change of plea hearing. She initially addressed
Petitioner's motion to withdraw his plea. (Id.
at 95-99) Petitioner argued he had entered into the plea
agreement because he was sick, “didn't know what
was going on, ” and was just “following what the
attorney was telling me that I had to say in front of
you.” (Id. at 96) He said he had not
understood that by entering the plea agreement he gave up the
right to challenge his identity evidence or suppression
evidence, alleged violation of his speedy trial rights, or
events that occurred at trial, and declared his trial
attorney said he could contest such issues in a
post-conviction relief (“PCR”) action.
(Id.) Petitioner's counsel was not willing to
speak about how he had advised Petitioner, citing
attorney-client privilege, and Petitioner said he was not
willing to waive that right and allow his counsel to testify.
(Id. at 97)
The
judge said she clearly remembered the change of plea hearing
and had reviewed a video recording of the hearing.
(Id. at 95) Finding no manifest injustice, the judge
denied Petitioner's motion to withdraw from his plea
agreement. (Id. at 99, Doc. 11-3 at 3) On
Petitioner's motion to change counsel, the judge advised
Petitioner she would permit him to represent himself at the
hearing with counsel in an advisory capacity but would not
continue the sentencing hearing. (Doc. 11-2 at 99)
Petitioner complained that his stomach hurt and said that
because he was still sick he would permit counsel to continue
to represent him. (Id. at 99-100)
The
superior court sentenced Petitioner on January 13, 2017 to an
aggravated term of 10 years' imprisonment with 977 days
of time-served credit, followed by community supervision.
(Id. at 130-131, Doc. 11-3 at 3-4) The court advised
Petitioner of ...