Free Report and Recommendation - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 State of Arizona, et al., 13 Respondents. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The sentencing minute entries show that Petitioner was sentenced for three counts of theft and one count of misconduct with a weapon instead of the four counts of theft reflected in the change of plea minute entries. Doc. #10, Exh. D-F. This discrepancy, however, has no bearing on Petitioner's claims.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Jason Marlin Crook, Petitioner, vs.

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No. CV 04-741-PHX-JAT (ECV) REPORT AND RECOMMENDATION

TO THE HONORABLE JAMES A. TEILBORG, UNITED STATES DISTRICT JUDGE: BACKGROUND Petitioner James Marlin Crook has filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. #4). On March 31, 1999, pursuant to plea agreements, Petitioner entered guilty pleas to a total of ten offenses in three separate cause numbers. Doc. #10, Exh. A-C. Petitioner pled guilty to four counts of theft, three counts of burglary, two counts of trafficking in stolen property and one count of attempted trafficking in stolen property.1 Id. For each count, Petitioner also pled to having one prior felony conviction and to committing the offense while on probation. Id. On July 23, 1999,

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Petitioner was sentenced to a total of 22.25 years in prison. Doc. #10, Exh. D-F. Within each cause number, the trial court ordered the sentence for each count to run concurrently with each other. Id. However, the trial court ordered the total sentence for each of the three cause numbers to run consecutively to each other. Id. Petitioner filed a Notice of Post-Conviction Relief on September 17, 1999. Doc. #10, Exh. G. The public defender appointed to represent Petitioner in the state post-conviction proceedings filed a notice on October 24, 2001, indicating that after reviewing the record, he was unable to find any claims for relief to raise. Doc. #10, Exh. H. He further requested that the trial court extend the time to file a post-conviction petition to allow Petitioner to file a pro se petition. Id. The trial court granted the request and set December 21, 2001, as the deadline for Petitioner to file his pro se petition. Doc. #10, Exh. I. In a minute entry issued on January 18, 2002, the trial court dismissed the post-conviction proceedings because Petitioner had not yet filed a petition. Doc. #10, Exh. J. Petitioner subsequently filed his Petition for Post-Conviction Relief on February 11, 2002, in which he raised only one claim that his sentence was excessive. Doc. #10, Exh. K. On March 13, 2002, the trial court issued a minute entry acknowledging receipt of the petition but affirming its prior dismissal order based on the failure to file the petition by the deadline. Doc. #10, Exh. L. Petitioner filed a Motion for Reconsideration which the trial court denied. Doc. #10, Exh. M, N. On August 20, 2002, Petitioner filed a Petition for Review with the Arizona Court of Appeals. Doc. #10, Exh. O. The Court of Appeals denied review on January 6, 2004. Doc. #10, Exh. P. On April 15, 2004, Petitioner filed a Petition for Writ of Habeas Corpus (Doc. #1) in this court. After the petition was dismissed with leave to amend, Petitioner filed an Amended Petition (Doc. #4) on June 1, 2004. Petitioner identifies two grounds for relief. First, he alleges that the consecutive sentences imposed against him are disproportionate to the offenses and a violation of the Eighth Amendment. Second, he alleges that the trial court's refusal to extend the deadline for his state petition for post-conviction relief after he had filed a motion to continue was a violation of due process. On August 16, 2004, Respondents filed

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an Answer to Petition for Writ of Habeas Corpus (Doc. #10). Petitioner then filed a Rebuttal to the Answer (Doc. #11) on September 13. DISCUSSION In their answer, Respondents argue that Petitioner has procedurally defaulted on his claims by failing to exhaust his state court remedies. In his rebuttal, Petitioner argues that he has established "cause" for any failure to exhaust state court remedies. A. Procedural Default A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1) & (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate postconviction relief. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).2 A claim has been fairly presented if the petitioner has described both the operative facts and the federal legal theory on which the claim is based. Bland v. Cal. Dep't of Corrections, 20 F.3d 1469, 1472-73 (9th Cir.1994), overruled on other grounds by Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc); Tamalini v. Stewart, 249 F.3d 895, 898-99 (9th Cir. 2001). "Our rule is that a state prisoner has not 'fairly presented' (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law." Lyons v. Crawford, 232

The court rejects Respondents' contention that Baldwin v. Reese, 124 S. Ct. 1347 (2004), overruled Swoopes. In a case decided after Baldwin, the Ninth Circuit restated the rule established in Swoopes that "'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 n.3 (9th Cir. 2005) (quoting Swoopes). That same case cited Baldwin for a different proposition, thus demonstrating that the Court was aware of Baldwin but did not interpret it the way Respondents propose. -3Case 2:04-cv-00741-JAT Document 12 Filed 07/14/2005 Page 3 of 8

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F.3d 666, 668 (9th Cir. 2000), amended on other grounds, 247 F.3d 904 (9th Cir. 2001). "If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court." Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). If a petition contains claims that were never fairly presented in state court, the federal court must determine whether state remedies remain available to the petitioner. See Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Harris v. Reed, 489 U.S. 255, 268-270 (1989) (O'Connor, J., concurring). If remedies are still available in state court, the federal court may dismiss the petition without prejudice pending the exhaustion of state remedies. Id. However, if the court finds that the petitioner would have no state remedy were he to return to the state court, then his claims are considered procedurally defaulted. Teague v. Lane, 489 U.S. 288, 298-99 (1989); see also Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002) (a defendant's claim is procedurally defaulted when it is clear that the state court would hold the claim procedurally barred). The federal court may decline to consider these claims unless the petitioner can demonstrate that a miscarriage of justice would result, or establish cause for his noncompliance and actual prejudice. See Dretke v. Haley, 124 S.Ct. 1847, 1851-52 (2004); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Murray v. Carrier, 477 U.S. 478, 495-96 (1986). A procedural default may also occur when a petitioner raises a federal claim in state court but the state court declines to address the claim because the petitioner failed to meet a state procedural requirement. Coleman, 501 U.S. at 729-30. Federal habeas review is precluded "if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Id. at 729. A state procedural bar is "adequate" if the rule is "clear, consistently applied, and well-established at the time of petitioner's purported default." Well v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994). As with defaulted claims that were not fairly presented, a federal court may still review the merits of a defaulted claim based on a state procedural bar if the petitioner can establish cause and prejudice, or a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. -4Case 2:04-cv-00741-JAT Document 12 Filed 07/14/2005 Page 4 of 8

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1.

Ground One

Petitioner alleges in Ground One that the trial court imposed a disproportionate sentence against him in violation of the Eighth Amendment. Petitioner contends that none of his sentences should have been consecutive. He claims that because all his convictions were property crimes involving no physical harm to any victims, the sentences should all run concurrently. In his notice to the court stating that he found no issues to raise, Petitioner's postconviction counsel asked that Petitioner be given 45 days to file his own petition pursuant to Rule 32.4(c)(2) of the Arizona Rules of Criminal Procedure . Doc. #10, Exh. H. Rule 32.4(c)(2) states in pertinent part: In a Rule 32 of-right proceeding, counsel shall investigate the defendant's case for any and all colorable claims. If counsel determines there are no colorable claims which can be raised on the defendant's behalf, counsel shall file a notice advising the court of this determination. Counsel's role is then limited to acting as advisory counsel until the trial court's final determination. Upon receipt of the notice, the court shall extend the time for filing a petition by the defendant in propria persona. The extension shall be 45 days from the date the notice is filed. Any extensions beyond the 45 days shall be granted only upon a showing of extraordinary circumstances. Consistent with the rule, the trial court granted the extension of time and set December 21, 2001, as the deadline for Petitioner to file a pro se petition. Doc. #10, Exh. I. When Petitioner failed to file his petition by the deadline, the trial court dismissed the postconviction proceedings. Doc. #10, Exh. J. The timeliness rule relied on by the trial court to dismiss the post-conviction petition is clearly independent of the federal question raised by Petitioner. Additionally, the court finds that this state procedural bar is "adequate" in that the provision relied on is a clear and well-established rule of criminal procedure in Arizona. Accordingly, Petitioner's claim in Ground One is procedurally defaulted. Petitioner argues in his Rebuttal to the Answer (Doc. #11) that he has shown "cause" for the procedural default. He argues that on the date his post-conviction petition was due, he filed a motion to continue the deadline so he could have more time to utilize the prison's legal services, but the court did not rule on the motion. A copy of the motion to continue is -5Case 2:04-cv-00741-JAT Document 12 Filed 07/14/2005 Page 5 of 8

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attached to the Petitioner's original habeas petition. Doc. #1, Exh. B. Almost two months later, on February 11, 2002, Petitioner filed his pro se petition for post-conviction relief.3 "To allege cause for a procedural default, a petitioner must assert that the procedural default is due to an objective factor that is external to the petitioner and that cannot fairly be attributed to him." Manning v. Foster, 224 F.3d 1129, 1133 (9th Cir. 2000) (citation and internal quotation marks omitted). Petitioner here has not demonstrated "cause" for his default. Petitioner has not shown that some external factor prohibited him from filing a timely post-conviction petition. He mistakenly assumed that the trial court would grant his request for an extension of the deadline, despite the language in Rule 32.4(c)(2) that requires a showing of "extraordinary circumstances" before the court can grant an extension. Although the trial court did not expressly address the motion to continue in its dismissal order, by dismissing the post-conviction proceedings after the petition deadline passed and after the motion was filed, the trial court implicitly denied the request for a continuance. Doc. #10, Exh. J. The court reaffirmed its dismissal of the proceedings after Petitioner filed an untimely petition. Doc. #10, Exh. L. In a motion for reconsideration to the trial court, Petitioner argued that he had filed a motion to continue the deadline that was never heard by the court. Doc. #10, Exh. M. After review, the trial court denied the motion for

reconsideration, again demonstrating that it had implicitly denied the motion to continue the deadline and that it saw no reason to reconsider that decision. Doc. #10, Exh. N. Besides failing to show "cause" for the procedural default, Petitioner has not established actual prejudice as a result of the alleged violation of federal law, nor has he shown that a review of the merits is necessary to prevent a miscarriage of justice. Based on Petitioner's failure to establish a valid reason to excuse the procedural default, the court will recommend that the claim in Ground One be denied. 2. Ground Two

Petitioner also filed a second motion to continue in the trial court on the date his pro se petition was filed. Doc. #1, Exh. C. -6Case 2:04-cv-00741-JAT Document 12 Filed 07/14/2005 Page 6 of 8

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Petitioner alleges in Ground Two that the trial court's refusal to hear his motion to continue the deadline to file his state petition for post-conviction relief was a violation of due process. As Judge Teilborg noted in the July 2, 2004, screening order (Doc. #6) in this case, Ground Two "does not appear to be a ground for relief from his conviction or sentence, but rather an argument as to cause and prejudice for his procedural default of Ground I." Doc. #6 at 3. Petitioner himself asserts in Ground Two that he believes his assertions show "both 'cause' and 'prejudice.'" Doc. #4 at 6. The court already found in the previous section that the trial court's failure to grant Petitioner an extension of time did not establish "cause" for his procedural default. Thus, no further cause and prejudice analysis is necessary. Because the allegations in Ground Two do not challenge the underlying conviction or sentence, or otherwise provide a basis for relief under 28 U.S.C. § 2254, the court will recommend that the claim in Ground Two be denied. B. Conclusion Having concluded that the claim in Ground One is procedurally defaulted and that Petitioner has failed to establish cause and prejudice for the default, the court will recommend that the claim be denied. Additionally, because the claim in Ground Two does not challenge Petitioner's underlying convictions or sentences, the court will recommend that it too be denied. IT IS THEREFORE RECOMMENDED: That the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. #4) be DENIED and DISMISSED WITH PREJUDICE; This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have ten days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge's Report -7Case 2:04-cv-00741-JAT Document 12 Filed 07/14/2005 Page 7 of 8

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and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgement entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.

DATED this 14th day of July, 2005.

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