Sharma v. Ryan et al

Filing 18

ORDER that the Magistrate Judge's Report and Recommendation 13 is ADOPTED as to the facts and REJECTED as to the legal conclusions. The Petition 1 is DISMISSED WITHOUT PREJUDICE as set forth. Signed by Senior Judge Roslyn O Silver on 10/7/2014. (See Order for details)(ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Peter Mohammed Sharma,
Petitioner,

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ORDER

v.

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No. CV-12-02555-PHX-ROS

Charles L. Ryan, et al.,

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Respondents.

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Before the Court is Petitioner Peter Sharma’s objection to the report and

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recommendation of the Magistrate Judge. (Doc. 15, Doc. 13). For the following reasons,

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the Court adopts in part and rejects in part the Magistrate Judge’s report and

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recommendation.

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BACKGROUND
On July 19, 2005, Petitioner was charged with one count of Fraudulent Schemes

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and Artifices, a class two felony (Count 1), and three counts of Forgery, a class four

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felony (Counts 2, 3, and 4). (Doc. 11, Exh. A). On February 17, 2006, Petitioner entered

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into a plea agreement. (Doc. 11, Exhs. FF, GG and HH). Pursuant to the agreement,

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Petitioner pled guilty to Count 1; was placed on five years’ supervised probation to begin

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after his release from prison in a different matter; and was ordered to pay restitution.

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(Doc. 11, Exh. FF). As a result of his plea, Counts 2, 3, 4, and various prior conviction

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and release-status allegations were dismissed. (Doc. 11, Exh. FF). The sentence was

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entered on April 28, 2006. (Doc. 11, Exhs. KK, LL and MM). But the restitution amount

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was not finalized until almost two years later, on March 6, 2008. (Doc. 11, Exh. EEE).
In pleading guilty, Petitioner waived his right to a direct appeal. See A.R.S. § 13-

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4033(B). Petitioner, however, retained his right to seek review in an “of right proceeding”

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under Rule 32 of the Arizona Rules of Criminal Procedure. Ariz.R.Crim.P. 32.1, 32.4. On

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May 16, 2006, Petitioner filed a Notice of Post-Conviction Relief. (Doc. 11, Exh. NN).

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Petitioner’s appointed counsel then filed a notice that he had reviewed the record and

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could find no viable claims. (Doc. 11, Exh. TT). The trial court granted Petitioner 45 days

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to file a pro se petition (Doc. 11, Exh. UU) but dismissed the post-conviction proceedings

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on January 4, 2007, because Petitioner failed to file a petition. (Doc. 11, Exh. XX).

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Petitioner filed two more Notices of Post-Conviction Relief. (Doc. 11, Exh. YY,

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AAA). Again, Petitioner’s counsel filed a notice stating he had reviewed the record and

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could find no meritorious claims to raise in a post-conviction petition. (Doc. 11, Exh.

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FFF). Counsel also requested an extension of time to allow Petitioner to file a pro se

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petition, which the trial court granted. (Doc. 11, Exhs. FFF, GGG). On August 4, 2008,

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Petitioner filed a pro se Petition for Post-Conviction Relief, arguing he was denied a

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restitution hearing and claiming newly-discovered evidence. (Doc. 11, Exh. KKK). The

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trial court dismissed the petition on November 12, 2008, finding Petitioner’s claims time-

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barred pursuant to Ariz.R.Crim.P. 32.2(a)(3) and, alternatively, because they lacked

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merit. (Doc. 11, Exh. NNN).

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On May 28, 2009, Petitioner filed a Petition for Writ of Habeas Corpus in this

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Court. (Doc. 1 of CV 09-1139-PHX-ROS (LOA)). Petitioner subsequently filed a Second

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Amended Petition, arguing his Sixth Amendment right to confrontation was violated and

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his plea was coerced. (Doc. 8 of CV 09-1139-PHX-ROS (LOA)). The Magistrate Judge

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issued a Report and Recommendation, recommending the petition be denied as untimely

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and procedurally defaulted. (Doc. 15 of CV 09-1139-PHX-ROS (LOA)). The District

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Court adopted the Report and Recommendation and denied the petition. (Doc. 16 of CV

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09-1139-PHX-ROS (LOA)).

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On November 18, 2010, Petitioner’s probation officer filed a Petition to Revoke

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Probation based on Petitioner’s alleged failure to pay restitution as ordered by “Special

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White Collar Conditions of Probation.” (Doc. 11, Exh. UUU). The trial court found

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Petitioner violated the conditions of his probation. (Doc. 11, Exh. BBBB at 61-62,

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CCCC). A disposition hearing was held on February 4, 2011, at which the trial court

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revoked Petitioner’s probation and sentenced him to the minimum prison term of four

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years in the Arizona Department of Corrections. (Doc. 11, Exh. FFFF, GGGG). Petitioner

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appealed, but the court of appeals dismissed the appeal. (Doc. 11, Exh. HHHH, KKKK).

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On November 27, 2012, Petitioner filed a Petition for Writ of Habeas Corpus in

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this Court. (Doc. 1). Petitioner raised three grounds for relief in the Petition. In Ground

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One, Petitioner alleges his trial counsel provided ineffective assistance of counsel by

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improperly advising Petitioner to enter into a plea agreement. In Ground Two, Petitioner

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alleges prosecutors violated the Due Process Clause and committed misconduct when

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they failed to turn over exculpatory evidence. In Ground Three, Petitioner alleges his plea

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agreement was an invalid contract of adhesion.

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In the Magistrate Judge’s report and recommendation, he frames the issues as

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pertaining to the most recent state court judgment revoking Petitioner’s probation and

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sentencing him to four years in prison. The Magistrate Judge calls it an “intervening”

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judgment providing new grounds for challenge, but recommends denial based on failure

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to comply with the statute of limitations for filing a petition. (Doc. 13). Petitioner,

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however, characterized his Petition as based on the earlier conviction and process that

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lead to his guilty plea. Significantly, Petitioner does challenge any aspect of his probation

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revocation. (Doc. 15).

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ANALYSIS
I. Standard of Review for Report and Recommendation

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A district judge “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. ' 636(b).
Where any party has filed timely objections to the magistrate judge=s report and
recommendations, the district court’s review of the part objected to is to be de novo.
Id. See also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
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“Neither the Constitution nor the statute requires a district judge to review, de novo,

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findings and recommendations that the parties themselves accept as correct.”

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Mortensen v. BAC Home Loans Servicing, LP, 1:10-CV-00298-EJL, 2013 WL

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943085 (D. Idaho Mar. 8, 2013). Petitioner’s objections to the Report and

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Recommendation are not to the facts but to the legal conclusions to be drawn from

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those facts. Thus, the Court will review the legal issues de novo.

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II. Legal Standard

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Under the Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”), a second or successive petition for a writ of habeas corpus is only

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allowed by leave of the court of appeals. 28 U.S.C. § 2244(b)(3). The court of

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appeals will only grant such leave where the second petition presents a claim that

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has not already been adjudicated and which is based on “a new and retroactive rule

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of constitutional law or new facts showing a high probability of actual innocence.”

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Gonzalez v. Crosby, 545 U.S. 524, 529-30 (2005) (citing 28 U.S.C. § 2244(b)(2)).

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III. The Petition is Successive.

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In the report and recommendation, the Magistrate Judge recognized a petition
will not be considered successive if it is based upon a “new judgment intervening
between the two habeas petitions.” (Doc. 13) (citing Wentzell v. Neven. 674 F.3d
1124 (9th Cir. 2012), cert. denied, 133 S. Ct. 2336 (U.S. 2013)). A resentencing that
replaces an earlier conviction constitutes an intervening judgment. Morgan v. Ryan,
CV-10-2215-PHX-ROS, 2011 WL 6296763 at *6 (D. Ariz. Nov. 28, 2011), report
and recommendation adopted, CV-10-2215-PHX-ROS, 2011 WL 6296758 (D.
Ariz. Dec. 16, 2011). But a new sentence that exists as a separate judgment based
upon new findings, for example, “a finding of guilt of violating probation” is not.
Morgan, 2011 WL 6296763 at *6 (“While the probation violation judgment
depended upon the existence of the earlier conviction and sentence judgment, it did
not supplant the judgment.”) (emphasis added).
In Wentzel v. Nevinl, following an initial petition for a writ of habeas corpus,
a state court amended a judgment of conviction. 674 F.3d 1124, 1125 (9th Cir.
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2012), cert. denied, 133 S. Ct. 2336 (U.S. 2013). The amended judgment vacated a

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conviction on one of the original counts but left in place convictions on two other

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counts. Wentzell, 674 F.3d at 1125. The Ninth Circuit held Wentzell’s subsequent

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petition attacking his conviction on the two remaining counts was not successive

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due to the intervening judgment:

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[W]here a first habeas petition results in an amended judgment, a subsequent
petition is not successive, even if its claims could have been raised in a prior
petition or the petitioner effectively challenges an unamended component of
the judgment . . . we must interpret successive applications with respect to
the judgment challenged and not with respect to particular components of
that judgment.

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Id. at 1126-1127 (citing Magwood v. Patterson, 561 U.S. 320 (2010)) (internal
quotation marks omitted) (emphasis added).
Petitioner’s case is governed by Morgan, not Wentzell. Here, the result of the
January 2011 hearing was not to vacate and replace Petitioner’s underlying
conviction but to enter a new, separate judgment containing a new sentence. (Doc.
11-6 at 106). Although the new sentence “depended upon the existence of the earlier
conviction and sentence judgment, it did not supplant the judgment.” Morgan, 2011
WL 6296763 at *6 (emphasis added). The Petition, which challenges an unmodified
judgment of conviction, is successive and not within this Court’s jurisdiction absent
authorization from the court of appeals. Cooper v. Calderon, 274 F.3d 1270, 1274

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(9th Cir. 2001) (holding once a district court correctly recognizes a petition as

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“second or successive” under § 2244(b), it lacks jurisdiction to consider the merits

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thereof). The fact that Respondents incorrectly analyze this point of the Court’s

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jurisdiction does not alter the result since “[s]ubject-matter jurisdiction can never be

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waived or forfeited.” Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012). Therefore,

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Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and

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this action are dismissed without prejudice to allow Petitioner to seek leave of the

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Ninth Circuit Court of Appeals to file a second or successive petition.

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Accordingly,

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IT IS ORDERED the Magistrate Judge’s Report and Recommendation

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(Doc. 13) is ADOPTED as to the facts and REJECTED as to the legal conclusions.

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The Petition (Doc. 1) is DISMISSED WITHOUT PREJUDICE as set forth above.

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Dated this 7th day of October, 2014.

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Honorable Roslyn O. Silver
Senior United States District Judge

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