United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge.
TO
THE HONORABLE SUSAN R. BOLTON:
Petitioner
Jacob Galbreath, proceeding pro se, filed a petition
seeking a writ of habeas corpus pursuant to 28 U.S.C. §
2254, and filed an Amended Petition on October 19, 2018. (ECF
No. 8 “Petition”). Respondents docketed a Limited
Answer to Petition for Writ of Habeas Corpus, (ECF No. 18
“Answer”), and Galbreath replied to the Limited
Answer. (ECF No. 19). Galbreath contends that he is entitled
to habeas relief because his Fourth Amendment rights were
violated; he was subjected to prosecutorial misconduct and
“pre-indictment delay;” and he was denied his
right to due process of law. Respondents allow the Petition
is timely, but assert Galbreath's claims were not
properly exhausted in the state courts and were waived by his
guilty plea.
I.
Background
A
Maricopa County grand jury indictment returned May 22, 2015,
charged Galbreath with one count of second-degree escape in
case number CR2015-001983. (ECF No. 18-1 at 3-4). On May 27,
2016, in case number CR2016-002230, Galbreath was charged by
indictment with possession or use of narcotic drugs,
possession or use of marijuana, and possession of drug
paraphernalia. (ECF No. 18-1 at 6-7). The cases were later
consolidated for disposition.
The
factual background for these charges is taken from the
Presentence Report:
On February 11, 2015, the defendant failed to return to the
Con-Tents jail from his scheduled work furlough hours while
serving a four month jail term in CR2006-143722-001-DT. Per
his work furlough agreement, the defendant was permitted to
leave the jail at 7:00 a.m. and return by 3:00 p.m. He was
arrested on February 12, 2015, and booked into jail for new
charges in CR2016-002230-001-DT.
On February 12, 2015, a Department of Public Safety officer
observed the defendant standing on the right emergency
shoulder lane of the I-17 holding his hands in the air and no
vehicles were parked in the area. The officer contacted him
and asked where his vehicle was but the defendant stated he
did not have a vehicle and was walking to get a ride to
Albuquerque. A records check revealed the defendant had a
probation violation warrant for failing to return to the jail
and a search of his person resulted in cocaine and marijuana
being found in the defendant's pant pocket. The defendant
was initially cooperative but became combative during his
transportation to the jail. He told officers he was not going
back to jail and they would have to kill him to remove him
from the vehicle. He eventually complied and was booked into
the Fourth Avenue jail.
(ECF No. 18-1 at 33).
Galbreath
filed a pro se motion to suppress “statements and
physical evidence, ” i.e., challenging the search
yielding his identification and the drugs. (ECF No. 18-1 at
9-10). The state trial court conducted a hearing and denied
the motion on August 8, 2017, concluding the search was
lawful as incident to Galbreath's arrest. (ECF No. 18-1
at 9-11). The state court also determined that the arresting
officer had a “good faith belief that a warrant existed
because Defendant had escaped from work furlough, ” and
that “[e]ven without a warrant, [the arresting officer]
had probable cause either to arrest Defendant or to detain
Defendant for MCSO to arrest him based on the APB alerting
law enforcement officers that Defendant had escaped from work
furlough, ” and that the “identification and the
drugs in his pocket inevitably would have been discovered
absent the allegedly illegal search.” (ECF No. 18-1 at
10-11). Galbreath sought review by the Arizona Court of
Appeals in a special action, and the appellate court declined
jurisdiction. (ECF No. 18-1 at 13).
On
August 9, 2017, Galbreath entered into plea agreements in
both pending criminal matters, pleading guilty to escape in
CR2015-001983 and possession of drugs in CR2016-002230. (ECF
No. 18-1 at 16-19, 21-23). The written plea agreement in
CR2015-001983 noted the presumptive sentence of 5 years, the
maximum sentence of 6 years, and the maximum aggravated
sentence of 7.5 years' imprisonment (ECF No. 18-1 at 17).
The parties stipulated to a sentence of 7.5 years'
imprisonment in CR2015-001983, to be served concurrently to a
sentence imposed in CR2006-143722, contingent upon Galbreath
entering a guilty plea in CR2016-002230. (ECF No. 18-1 at
17). In return for Galbreath's guilty plea the State
agreed to dismiss the “[a]llegation of the
Defendant's additional felony convictions . . . [and the]
allegation that the Defendant was on probation for a felony
offense” at the time of the subject crime.
(Id.).[1] Galbreath initialed a paragraph in the
written plea agreement providing as follows:
I have read and understand the provisions . . . of this
agreement. I have discussed the case and my constitutional
rights with my lawyer. My lawyer has explained the nature of
the charge(s) and the elements of the crime(s) to which I am
pleading. I understand that by pleading GUILTY I will be
waiving and giving up my right to a determination of probable
cause, to a trial by jury to determine guilt and to determine
any fact used to impose a sentence . . . to confront,
cross-examine, compel the attendance of witnesses, to present
evidence in my behalf, my right to remain silent, my
privilege against self-incrimination, presumption of
innocence and right to appeal . . . . . . I have personally
and voluntarily placed my initials beside each of the above
paragraphs and signed the signature line below to indicate
that I read, or had read to me, understood and approved all
of the previous paragraphs in this agreement, both
individually and as a total binding agreement. My plea is
voluntary and not the result of force, or threat, or promises
other than those contained in the plea agreement.
(ECF No. 18-1 at 18-19).
In the
written plea agreement in CR2016-002230, Galbreath plead
guilty to possession or use of narcotic drugs, and the State
agreed to dismiss the remaining two charges of the
indictment, the allegation of prior felony convictions, and
the allegation that Galbreath was on probation for a separate
felony offense at the time of the crime of conviction. (ECF
No. 18-1 at 21-22). This written plea agreement noted the
presumptive sentence of 2.5 years, the minimum of 1.5 years,
the maximum sentence of 3 years, and the aggravated sentence
of 3.75 years' imprisonment. (ECF No. 18-1 at 21). The
parties stipulated to an unspecified sentence of supervised
probation to be served upon Galbreath's release from
prison after serving the sentence imposed in CR2015-001983,
contingent upon his entering a guilty plea in the 2015 case.
(ECF No. 18-1 at 22). The written plea agreement in the 2016
matter includes the paragraph quoted above with regard to
Galbreath's understanding of the rights he was waiving
and the fact that he was knowingly and voluntarily entering a
guilty plea in CR2016-002230. (ECF No. 18-1 at 23).
A plea
hearing was conducted on August 9, 2017, at which time the
state trial court reviewed the plea agreements with
Galbreath, advised him of the range of possible sentences,
and advised Galbreath as to the constitutional rights he was
waiving by pleading guilty, including his right to an appeal.
(ECF No. 18-1 at 25-29). Galbreath was represented by counsel
at his plea hearing. (ECF No. 18-1 at 25, 28).
On
January 11, 2018, at the conclusion of a sentencing hearing,
the state trial court found that Galbreath “knowingly,
intelligently and voluntarily” waived “all
pertinent constitutional and appellate rights and entered a
plea of guilty, ” and sentenced him to the stipulated
sentence of 7.5 years' imprisonment followed by two years
of supervised probation. (ECF No. 18-1 at 41-42, 46-47). The
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