Barnes v. Ryan

          REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

          James F. Metcalf United States Magistrate Judge.

         I. MATTER UNDER CONSIDERATION

         Petitioner, 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.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

         A. FACTUAL BACKGROUND

         While 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.)^[1]

         B. PROCEEDINGS AT TRIAL

         Petitioner 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.).

         C. PROCEEDINGS ON DIRECT APPEAL

         Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2.)

         D. PROCEEDINGS ON POST-CONVICTION RELIEF

         On 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.)

         Petitioner did not seek further review. (Petition, Doc. 1 at 5; Exh. S, Corresp. from Ariz. Ct. of Appeals.)

         E. PRESENT FEDERAL HABEAS PROCEEDINGS

         Petition - 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 for relief:

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).)

         Response - 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.

         Motion 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.)

         Reply - 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 him relief.

         Petitioner 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.

         Supplemental 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.

         Supplemental 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 16^th, 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 21^st, 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.

         Renewed 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.

         III. APPLICATION OF LAW TO FACTS

         Respondents argue that Petitioner's state remedies on his claims are procedurally defaulted and thus are barred from federal habeas review.

         A. EXHAUSTION REQUIREMENT

         When 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).

         “In 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 ...