United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Leslie
A. Bowman, United States Magistrate Judge
Pending
before the court is a petition for writ of habeas corpus
filed on September 11, 2018, by Leland Harris Clark, an
inmate currently held in the Arizona State Prison Complex in
Florence, Arizona. (Doc. 1)
Pursuant
to the Rules of Practice of this court, the matter was
referred to Magistrate Judge Bowman for report and
recommendation. LRCiv 72.2(a)(2).
The
Magistrate Judge recommends that the District Court, after
its independent review of the record, enter an order denying
the petition. Clark's two claims are procedurally
defaulted.
Summary
of the Case
Clark
was convicted after pleas of guilty in Pinal County Superior
Court to drug possession in CR2015-03807, credit card theft
in CR2016-00086, and burglary in CR2014-02645. (Doc. 16, p.
1) On July 19, 2016, Clark was sentenced to 4.5 years'
incarceration in the drug possession case and 1.5 years in
the credit card theft case, sentences to run concurrently to
each other and concurrently with a sentence imposed in a
separate Maricopa County case, failure to register as a sex
offender. (Doc. 16, p. 8); (Doc. 16-1, pp. 120-121, 148-149)
Clark received no presentence incarceration credit for either
case. Id. At the same time, Clark was sentenced to a
5-year period of supervised probation in the burglary case.
(Doc. 16, p. 8) (Doc. 16-1, pp. 96-98) The sentence was run
consecutively to the sentences for drug possession, credit
card theft, and the Maricopa County case. Id. It
appears that Clark received 117 days of presentence
incarceration credit in the burglary case. Id.;
(Doc. 16-1, pp. 84-85)
On
August 9, 2016, Clark filed notice of post-conviction relief
(PCR) in the drug possession case and the credit card theft
case[1]. (Doc. 16-1, pp. 169-171) That same day,
he filed a PCR petition in which he argued he was entitled to
117 days of presentence incarceration credit for the drug
possession case because he was given 117 days of credit for
the burglary case. (Doc. 16-1, pp. 173-176) On December 15,
2016, appointed PCR counsel advised the court that she could
find no meritorious issues to raise. (Doc. 16-1, p. 182)
Clark
filed a pro se PCR petition on January 9, 2017. (Doc. 16-1,
p. 185) He argued that the 117 days of presentence credit
should have been applied to his drug possession and credit
card theft sentences. (Doc. 16-1, p. 185) The trial court
denied the PCR petition on April 7, 2017, finding “no
error in the time credit calculation.” (Doc. 16-1, p.
202) Clark did not seek review from the Arizona Court of
Appeals. (Doc. 16, p. 10); (Doc. 16-2, p. 104)
On
November 8, 2017, Clark filed a second notice of PCR in the
drug possession and credit card theft cases. (Doc. 16-2, p.
28) He filed a PCR petition on the same day in which he
argued 105 days of sentencing credit should have been applied
to his drug possession/credit card theft cases and not his
burglary case. (Doc. 16-2, pp. 32-38); (Doc. 16-2, p. 104) On
November 20, 2017, the trial court denied the petition. (Doc.
16-2, p. 40)
Clark
filed a petition for review on December 12, 2017. (Doc. 16-2,
pp. 59-62) On May 25, 2018, the Arizona Court of Appeals
granted review but denied relief because the petition was
untimely and successive. (Doc. 16-2, pp. 103-105) Clark filed
a petition for review with the Arizona Supreme Court on June
27, 2018. (Doc. 16-2, pp. 111-122) That court denied the
petition without comment on August 24, 2018. (Doc. 16-2, p.
130)
Clark
filed a third PCR notice on December 13, 2018. (Doc. 16-2,
pp. 132-134) He filed a petition the same day arguing he was
entitled to 257 days of jail credit when the Maricopa Case
was dismissed so that credit should be applied to the drug
possession and credit card theft cases. (Doc. 16-2, pp. 136);
(Doc. 16-2, p. 141) (“On March 30, 2018, 766 days after
sentencing the State moved to dismiss” the Maricopa
County case.) On January 9, 2019, the trial court denied the
petition because presentence incarceration credit can only be
applied once where consecutive sentences are imposed. (Doc.
16-2, pp. 141-142) Clark filed a petition for review on
January 22, 2019. (Doc. 16-2, p. 168) Neither party has
informed the court whether a ruling has been issued.
Previously,
on September 11, 2018, Clark filed the pending petition for
writ of habeas corpus in this court. (Doc. 1) He claims (1)
trial counsel was ineffective for failing to investigate and
present evidence that he was entitled to 105 days of
presentence credit and (2) the trial court failed to hold an
evidentiary hearing to determine if he was due 105 days of
presentence credit. Id. Clark asserts that his
claims were presented to the Arizona Court of Appeals in his
second PCR petition. (Doc. 1, pp. 6, 7) The court assumes
without deciding that both claims are cognizable in a habeas
corpus proceeding.
The
respondents filed an answer on March 7, 2019, arguing, among
other things, that Clark's two claims are procedurally
defaulted. (Doc. 16) Clark filed a reply on March 18, 2019 in
which he argues he is entitled to 105 days of presentence
credit because that time was never credited to any of ...