Cygnus Systems, Inc. v. Microsoft Corporation, et al

Filing 258

Cygnus Systems, Inc. v. Microsoft Corporation, et al

D o c . 258

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NATASHA WRAE
A tto r n e y At Law P.O. BOX 3026 TUCSON, AZ 85702 TELEPHONE [phone]

Attorney for Phillip Smith ASPC-Eyman SMU I Florence, AZ IN THE UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA ) Phillip Alden Smith (ADC # 56505), No. ) ) Petitioner/Appellant, Arizona Supreme Court No.: ) CR-05-0297-PR ) vs. Arizona Court of Appeals, Div. 1 No.: ) 1 CA-CR 04-0235 PRPC ) Robert Stewart (Warden, ASPC-Eyman) ) Maricopa County Case No.: CR 1996-012436 ) and Terry Goddard (Arizona Attorney ) PETITION FOR WRIT OF HABEAS ) General), CORPUS UNDER 28 U.S.C. § 2254 ) ) Respondent/Appellee. ) (First Amended Petition) ) ) )

P e titio n e r / A p p e lla n t, Philip A. Smith, by and through counsel undersigned, h e re b y respectfully petitions this Honorable Court to review the unconstitutional ju d g m e n ts of the courts of the State of Arizona pursuant to 28 U.S.C. § 2254.

RESPECTFULLY SUBMITTED this 13 th day of

March

, 2007,

N ATASHA WRAE, ESQ. /s/ Natasha W ra e Natasha W ra e A t to rn e y for Petitioner

Dockets.Justia.com

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P E T IT IO N

1.

(a) Name and location of court that entered the judgment of conviction being c h a lle n g e d : Arizona Superior Court in and for Maricopa County CR 1996-012436

(b) Criminal case number:

2.

(a) Date of judgment of conviction: (b) Date of sentencing:

April 3, 1997

May 30, 1997

3.

Length of sentence: aggravated term of 25 years as to Count 2 and lifetime p ro b a tio n following the term of incarceration on Count 4

4.

In this case, Petitioner was convicted on more than one count.

5.

Petitioner was convicted and sentenced on the following crimes: Count 2, S e x u a l Conduct with a Minor, a class 2 felony and dangerous crime against c h ild r e n in the first degree and amended Count 4, attempted Sexual Conduct w ith a Minor, a class 3 felony and dangerous crime against children in the s e c o n d degree

6.

(a) Petitioner plead guilty to the crimes listed in number 5, supra. (b) Petitioner plead not guilty to the following charges: Counts 1 & 3,

M o le s ta tio n of a Child, class 2 felonies and dangerous crimes against children in the first degree.

7.

Petitioner testified at the change of plea and the sentencing in this matter.

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Petitioner was not entitled to take a direct appeal due to the fact that he e n te re d into the plea agreement.

10.

Petitioner filed a Notice of Post-conviction Relief pursuant to Rule 32 of the A r iz o n a Rules of Criminal Procedure.

11.

(a )(1 ) Name of Court: (2) Case Number:

Maricopa County Superior Court of Arizona CR 96-12436

(3) Date of filing: On July 15, 1997, Petitioner executed and had notarized a n Affidavit of Indigency. The Affidavit of Indigency was attached to and

p ro m p tly mailed with Petitioner's original Notice of Post-conviction Relief. F o r reasons unknown, this Notice was not filed by the trial court until F e b ru a ry 24, 1998. (4) Nature of the proceeding: Rule 32 Notice of Post-conviction Relief (5) Grounds raised: No grounds for relief were ever presented since the o n ly document filed was a Notice of Post-conviction Relief. Petitioner never h a d an opportunity to present any grounds for relief before the Rule 32 P e titio n was summarily dismissed as untimely mere weeks after its filing. (6) No hearing was conducted on this petition. (7) Result: Summary dismissal by the Hon. Ronald S. Reinstein March 9, 1998

(8) Date of dismissal:

(b) Subsequent relief efforts: (1) Name of Court: (2) Case Number: (3) Date of filing: Maricopa County Superior Court of Arizona CR 96-12436 February 25, 2004

(4) Nature of the proceeding: Rule 32 Notice of Post-conviction Relief

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(5) Grounds raised: 1.) No fault of Defendant's for Filing Untimely Notice, 2 .) Significant Change in the Law- Illegal Sentence, 3.) Significant Change in th e Law- Cruel and Unusual Punishment. (6) No hearing was conducted on this petition. (7) Result: Summary dismissal by the Honorable Eddward Ballinger, Jr. March 18, 2004

(8) Date of dismissal:

( c) A third petition was not filed. (d ) (1) Petitioner did not appeal to the highest state court on the first petition. (2) Petitioner did appeal to the highest state court on the second petition. (e ) (1) W ith respect to the first petition that was summarily dismissed, P e titio n e r did not pursue further appellate relief believing that the Court was c o rre c t in summarily dismissing the matter for being untimely. Further

re s e a rc h revealing newly discovered material facts, a significant change in the la w and that Petitioner's "untimely" filing was forgiveable if it was without fault o f Petitioner's prompted the subsequent filing in 2004.

12. Petitioner asserts the following grounds in this Petition: G R O U N D ONE: Imposition of illegal life-time term of probation is cruel and

u n u s u a l punishment pursuant to the Eigth Amendment of the United States C o n s t it u t io n . (a). Supporting facts: Petitioner plead guilty to amended Count 4, Attempted S e x u a l Conduct with a Minor, a class 3 felony and dangerous crime against children in the second degree, nondangerous and nonrepetitive offense in violation of A.R.S. § 13-1405. Petitioner was sentenced on May 30, 1997. Under the plea, Petitioner w a s to be sentenced to lifetime probation for this offense. At the time of commission o f the offense, November 17, 1996, section 13-902(E) did not permit lifetime p ro b a tio n for convictions for "attempted" offenses. This section was amended by the

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F o rty-t h ir d Legislature effective July 21, 1997 to include attempted offenses.. T h e re fo re the maximum term of probation that Petitioner should have received was 5 years.

(b) Petitioner requested review of this issue at all available levels in the state c o u r ts .

( c) Direct Appeal of Ground One: Petitioner entered into a plea agreement th e re fo re , direct appeal was not an option.

(d ) Post-Conviction Proceedings: Petitioner attempted to raise this issue in a p o s t-c o n vic tio n motion in a Rule 32 Notice of Post-conviction Relief filed in the S u p e r io r Court of Arizona in and for Maricopa County under case number CR-19961 2 4 3 6 . No hearing was conducted on this petition and the petition was summarily d is m is s e d by the Hon. Eddward Ballinger, Jr. on March18, 2004. Petitioner then a p p e a le d the issue to Division One of the Court of Appeals of Arizona in a Petition fo r Review with case number 1 CA-CR 04-0235 PRPC. The Court of Appeals d e n ie d review on May 26, 2005. Petitioner then filed a Petition for Review requesting th a t the Arizona Supreme Court order that the issue be reviewed by the lower courts. T h e Arizona Supreme Court denied review on March 9, 2006. GROUND TW O : Petitioner's Fourteenth Amendment right to due process was

vio la te d when the state courts summarily denied his opportunity to raise the issue in Ground One, supra.

(a).

Supporting facts:

In the Notice of Post-conviction Relief filed on

F e b ru a ry 25, 2004, Petitioner set forth claims for relief under Rule 32.1 (e), (f) and (g ). Petitioner stated the requisite meritorious reasons substantiating the claims and

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in d ic a tin g why the claims were not stated in the previous Notice of Post-conviction R e lie f or in a timely manner pursuant to Rule 32.2(b). The trial court summarily d is m is s e d the Notice of Post-Conviction Relief on March18, 2004 stating the fo llo w in g : D e fe n d a n t claims that he should be excused from the tim e lin e s s requirement of Rule 32.4(a), Arizona Rules of C rim in a l Procedure, because he believed his trial attorney w a s filing the notice for him. Defendant raised this claim in a prior notice. The court found that defendant had failed to show that the failure to timely file the notice was without f a u lt on his part, as required by Rule 32.1(f), and s u m m a rily dismissed the proceeding on March 9, 1998. T h is court agrees with that ruling A review of the March 18, 2004 Minute Entry clearly shows that the trial court

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d id not conduct the requisite three part test prior to summarily dismissing the Notice
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o f Post-conviction Relief. Petitions for Post-Conviction Relief are permitted after the
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o rig in a l time for filing have expired when claims for relief based on Rule 32.1(d), (e),
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(f), (g) and (h) are raised. Ariz. R. Crim. P. 32.2(b). W h e n an excepted claim is
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ra is e d in a successive or untimely petition for post-conviction relief, the notice of
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p o s t-c o n vic tio n relief must set forth the substance of the specific exception and the
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re a s o n s for not raising the claim in the previous petition or in a timely manner. Id.
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I t is only "[i]f the specific exception and meritorious reasons do not appear
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s u b s ta n tia tin g the claim and indicating why the claim was not stated in the previous
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p e titio n or in a timely manner, [that] the notice shall be summarily dismissed." Id.
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T h e court must identify all precluded claims, determine that no remaining claims
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p re s e n t a material issue of fact or law that would entitle the defendant to relief under
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R u le 32 and that no purpose would be served by any further proceedings before
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o rd e rin g the petition dismissed. Ariz. R. Crim. P. 32.6 ( c ). The court's analysis
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u n d e r Rule 32.6( c ) is a three part test. Clearly, the trial court did not (1.) identify all
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p re c lu d e d claims, (2.) make a determination that no remaining claims presented
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m a te ria l issues of fact or law which would entitle the defendant to relief under Rule
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3 2 , and (3.) make a determination that no purpose would be served by any further p ro c e e d in g s . Additionally, a finding that the original Notice of Post-conviction Relief was u n tim e ly should have no bearing on the analysis of the excepted "late" issues raised in the subsequent Notice. Given that there exists significant changes in the law and th a t newly discovered material facts that would change the sentence had been d is c o ve re d since the filing of the original Notice, the newly presented, meritorius is s u e s were not precluded pursuant to Rule 32.2 (a). Furthermore, a claim asserting R u le 32.1 (g) regarding significant changes in the law "encompasses all claims for re tro a c tive application of new constitutional and nonconstitutional legal principles." A riz .R . Crim.P. 32.1 Comment.

(b) Petitioner requested review of this issue at all available levels in the state c o u r ts .

( c) Direct Appeal of Ground Two: Petitioner entered into a plea agreement th e re fo re , direct appeal was not an option.

(d ) Post-Conviction Proceedings: Petitioner attempted to raise the issue set fo rth in Ground One, supra, in a post-conviction motion in a Rule 32 Notice of Postc o n vic tio n Relief filed in the Superior Court of Arizona in and for Maricopa County u n d e r case number CR-1996-12436. No hearing was conducted on this petition and t h e petition was summarily dismissed by the Hon. Eddward Ballinger, Jr. on M a rc h 1 8 , 2004. Petitioner then appealed the issue to Division One of the Court of A p p e a ls of Arizona in a Petition for Review with case number 1 CA-CR 04-0235 P R P C . The Court of Appeals denied review on May 26, 2005. Petitioner then filed a Petition for Review requesting that the Arizona Supreme Court order that the issue

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b e reviewed by the lower courts. The Arizona Supreme Court denied review on M a rc h 9, 2006.

13.

(a) All grounds for relief that are raised herein have been presented to the h ig h e s t state court having jurisdiction. (b ) There are no grounds in this petition that have not been presented in some s ta te or federal court.

1 4 . Petitioner has never filed any type of petition, application or motion in a federal c o u rt regarding the conviction that he is challenging herein.

1 5 . Petitioner has no petitions or appeals pending in any court, state or federal, for th e judgment being challenged herein.

1 6 . Attorneys representing Petitioner at the different stages of the case: (a ) At preliminary hearing: (b) At arraignment and plea: P h o e n ix , AZ 85003-2302 (c) At trial: John Movroydis John Movroydis N/A Pro per U/K John Movroydis; 11 W e s t Jefferson, Suite 5,

(d) At sentencing; (e) On appeal:

(f) In any post-conviction proceeding:

(g) On appeal from any ruling against Petitioner in a post-conviction p ro c e e d in g : Natasha W ra e ; 100 North Stone, Suite 512, Tucson, AZ 85701

1 7 . Petitioner has no future sentences to serve after he completes the sentence for th e judgement challenged herein.

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1 8 . This Petition is timely since the Supreme Court of Arizona denied Petitioner's P e titio n for Review on March 9, 2006.

For the foregoing reasons, Petitioner, by and through counsel undersigned, h e re b y respectfully Petitions this Honorable Court to review the actions of the state c o u rts , find that the state courts denied Petitioner due process of law by summarily d is m is s in g the Notice of Post-Conviction Relief filed February 25, 2004, and in so d o in g , subject Petitioner to illegal and unconstitutional period of probation.

RESPECTFULLY SUBMITTED this 13 th day of

March

, 2007,

N ATASHA WRAE, ESQ. /s/ Natasha W ra e Natasha W ra e A t to rn e y for Petitioner

I declare under penalty of perjury that the foregoing is true and correct.
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11/03/06 Executed

Date

/s/ Phillip Alden Smith P h illip Alden Smith P e t itio n e r

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CERTIFICATE OF SERVICE I hereby certify that on the 13th day of March , 2007, I caused to be served the original and two (2) copies of the foregoing Petition for Writ of Habeas Corpus via hand delivery/mail to :

I further certify that two (2) copies of the foregoing Petition for Writ of Habeas Corpus were hand delivered/mailed this 13th day of to: Arizona Attorney General Attn: Randall M. Howe 1275 W. Washington Phoenix, AZ 85007 Maricopa County Attorney Attn: Criminal Appeals 301 W. Jefferson, 8th Floor March , 2007,

DATED this

13th day of March

, 2007

/s/ Natasha Wrae NATASHA WRAE

C : \ D o c u m e n ts and Settings\S e c t\ D e s k t o p \S m i t h Petition for W r i t of H C . w p d

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