United States District Court, D. Arizona
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF
F. Metcalf United States Magistrate Judge.
MATTER UNDER CONSIDERATION
presently incarcerated in the Arizona State Prison Complex at
San Luis, Arizona, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 on May 29, 2018 (Doc. 1).
The Petitioner's Petition is now ripe for consideration.
Accordingly, the undersigned makes the following proposed
findings of fact, report, and recommendation pursuant to Rule
8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal
Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule
72.2(a)(2), Local Rules of Civil Procedure.
RELEVANT FACTUAL & PROCEDURAL BACKGROUND
in jail on another charge, Barnes conspired with an
undercover detective to have the detective assault (or kill)
witness(es) against him. (Exh. N, PCR Resp. at 2; Exh. Q,
R.T. COP at 11-12.)
PROCEEDINGS AT TRIAL
was indicted in the Maricopa County Superior Court on two
counts of Conspiracy to Commit First Degree Murder (Exh. A)
and eventually entered into a written Plea Agreement (Exh.
E), agreeing to plead guilty to one amended count of
conspiracy to commit aggravated assault, with two prior
felony convictions. The parties stipulated to a sentence of
23.75 years in prison. (Id. at ¶ 2.) Petitioner
entered his plea (Exh. Q, R.T. COP; Exh. F M.E. 8/10/16) and
was sentenced on September 12, 2016 to the agreed 23.75 years
(Exh. G, Sentence; Exh. R, R.T. Sent.).
PROCEEDINGS ON DIRECT APPEAL
did not file a direct appeal. (Petition, Doc. 1 at 2.)
PROCEEDINGS ON POST-CONVICTION RELIEF
September 20, 2016, Petitioner filed a Notice of
Post-Conviction Relief (Exh. I). Counsel was appointed, who
ultimately filed a notice of inability to find a colorable
claim for review. (Exh. I.) Petitioner ultimately filed a pro
per Petition for Post-Conviction Relief (Exh. M). On
September 19, 2017 the PCR court denied the Petition on the
merits. (Exh. P, M.E. 9/19/17.)
did not seek further review. (Petition, Doc. 1 at 5; Exh. S,
Corresp. from Ariz. Ct. of Appeals.)
PRESENT FEDERAL HABEAS PROCEEDINGS
- Petitioner filed his Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 on May 29, 2018 (Doc. 1).
Petitioner's Petition asserts the following five grounds
In Ground One, Petitioner alleges that his
due process rights under the Fifth, Eighth, and Fourteenth
Amendments was violated when the prosecutor breached
the plea agreement by adding terms to it without
Petitioner's consent. In Ground Two,
Petitioner alleges that he was denied due process under the
Fourteenth Amendment when the prosecutor submitted
falsified and fraudulent documents to the court. In
Ground Three, he alleges that he was denied
the effective assistance of counsel under
the Sixth Amendment by counsel's failure to object to, or
move to withdraw from, the plea agreement after the
prosecutor suggested that the plea agreement should be
modified. In Ground Four, he alleges that
his due process rights under the Fourteenth Amendment was
violated by the prosecutor's presentation of an
illegal plea agreement and by imposition of
an illegal sentence and that his Eighth
Amendment rights were violated by imposition of an illegal
sentence due to prosecutorial misconduct. In Ground
Five, Petitioner alleges that his due process rights
under the Fourteenth Amendment were violated by the
prosecutor's failure to comply with
Arizona Rules of Criminal Procedure.
(Service Order 9/5/18, Doc. 13 at 1-2 (emphasis added).)
- On December 11, 2018, Respondents filed their Answer (Docs.
22, 23, 24). Respondents argue that all of Petitioner's
claims were procedurally defaulted by his failure to timely
file a petition for review in his PCR proceeding.
for Evidentiary Hearing - On January 10, 2019,
Petitioner filed a Motion for Evidentiary Hearing (Doc. 29),
seeking a hearing on his claims in Ground 1 and 2. The Court
denied that motion without prejudice, finding no showing that
a hearing was permissible under 28 U.S.C. § 2254(e)(2)
(failure to develop state record), no indication of the
evidence to be presented, and nothing to overcome the
procedural default defense. (Order 1/11/19, Doc. 31.)
- On March 15, 2019, Petitioner filed a Reply (Doc. 35).
Petitioner concedes he did not file a petition for review,
but argues cause and prejudice on the basis that he
“was unable to file a timely petition for review with
the appellate courts because his legal paperwork was
confiscated by Department of Corrections staff member during
a cell by cell search.” (Id. at 12.) He also
argues the merits of his claims and that as a result a
miscarriage of justice will result from a failure to grant
submits his own Affidavit (Pet. Exh. K, Doc. 35-1) asserting
his PCR petition was denied on September 9, 2017, his
petition for review was due October 8, 2017, and his legal
materials were confiscated from September 16, 2017 until
October 20, 2017.
Answer re Cause & Prejudice - The Court
granted leave to Respondents to supplement their answer to
address the claim of cause and prejudice. (Order 4/29/19,
Doc. 37.) On May 20, 2019, Respondents filed their
Supplemental Answer (Doc. 40) arguing that Petitioner's
Petition for Review was due October 26, 2017 and was subject
to a state prison mailbox rule, and Plaintiff alleges his
legal materials were returned to him by October 20, 2017.
They note that Plaintiff did not file such a petition or even
file a motion to extend, which is permitted under Arizona
Rules of Criminal Procedure 32.9(c). As a result, they argue,
Petitioner has failed to show that the confiscation of his
materials was the cause of his failure to timely file.
Respondents deferred addressing prejudice.
Reply - On June 14, 2019, Petitioner filed a
Supplemental Reply (Doc. 41), arguing he was “unable to
file a timely Petition for Review with the Appellate Court
because between September 16th, and October 20,
2017, Mr. Barnes was not in possession of his legal
documents. They were confiscated by the Department of
Corrections staff because Mr. Barnes was being investigated
for suspicion of escape.” (Id. at 5.) He
argues that Respondents merely assume that Petitioner had
sufficient time after his materials were returned to file a
petition for review, which was “due to the appellate
court on Sunday October 21st, 2017.”
(Id. at 8.) He argues he could only request
materials (envelopes, pen, paper) on Tuesdays, and they are
not issued until the following week between Wednesday and
Friday, and thus would not have had time to file or request
an extension before the deadline expired. (Id.)
Petitioner again argues the merits of his claims.
Motion for Evidentiary Hearing - On August 23,
2019, Petitioner filed a renewed Motion for Evidentiary
Hearing (Doc. 58), again seeking an evidentiary hearing to
support Grounds 1 and 3. The motion was again denied, as
delinquent and because the relevance of the merits was not
clearly at issue in light of the procedural default defense.
APPLICATION OF LAW TO FACTS
argue that Petitioner's state remedies on his claims are
procedurally defaulted and thus are barred from federal
seeking habeas relief, the burden is on the petitioner to
show that he has properly exhausted his state remedies on
each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104
(9th Cir. 1981); 28 U.S.C. § 2254(b) and (c).
cases not carrying a life sentence or the death penalty,
‘claims of Arizona state prisoners are exhausted for
purposes of federal habeas once the Arizona Court of Appeals
has ruled on them.'” Castillo v. McFadden,
399 F.3d 993, 998 (9th Cir. 2005)(quoting Swoopes v.
Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).
Ordinarily, “to exhaust one's state court remedies
in Arizona, a petitioner must first raise the claim in a
direct appeal or collaterally attack his ...