Galbreath v. Ryan

          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 ...