Wilson v. Ryan

          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 ...