Hammersley v. McCafh et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION. Magistrate Judge John Boyle's R&R (Doc. 24 ) is accepted. Petitioner's petition for writ of habeas corpus (Doc. 1 ) is denied. A certificate of appealability and leave to proceed in forma paupe ris on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). The Clerk shall terminate this action. Signed by Judge David G Campbell on 08/07/2015. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Hammersley,
Petitioner,

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ORDER

v.

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No. CV-14-00045-PHX-DGC

Micki McCath, et al.,

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Respondents.

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In 2003, Petitioner Robert Hammersly pleaded guilty to misdemeanor driving

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under the influence (“DUI”) in San Luis Municipal Court in Arizona. Because he resided

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in Wisconsin, Petitioner’s plea was entered telephonically. After the plea, the Court

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received through the mail a notarized “Waiver of Counsel” form signed by Petitioner.

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Doc. 22-1 at 17.

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In October 2008, Petitioner was again charged with operating a vehicle while

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intoxicated, this time in Wisconsin. The State charged that Petitioner had five prior

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convictions for DUI, including the San Luis conviction. Petitioner was convicted after a

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jury trial, and received a three-year sentence. Id. at 30.

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In 2011, he filed a Rule 32 motion for post-conviction relief in the San Luis

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Municipal Court, arguing that he did not voluntarily waive his right to counsel. Id. at 33.

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The court denied the motion because the record clearly indicated Petitioner knowingly,

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voluntarily, and intelligently waived his right to counsel during sentencing. Id. at 45.

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Petitioner then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in

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this Court.

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On June 19, 2015, Magistrate Judge John Boyle issued a Report and

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Recommendation (“R&R”) finding the Court lacked subject-matter jurisdiction over

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Petitioner’s claims because he is not “in custody” for the conviction that is the subject of

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collateral attack – the 2003 DUI. Doc. 24 at 8. Petitioner filed objections to the R&R

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arguing that he is innocent of the 2003 DUI conviction without providing any supporting

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evidence. Doc. 25.

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As Judge Boyle noted, in order for the Court to have jurisdiction over Petitioner’s

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habeas claims, he must be “‘in custody’ under the conviction or sentence under attack at

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the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 491 (1990). An exception

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exists for “petitions that challenge an enhanced sentence on the basis that the prior

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conviction used to enhance the sentence was obtained where there was a failure to

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appoint counsel in violation of the Sixth Amendment[.]”

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Attorney v. Coss, 532 U.S. 394, 404 (2001). Petitioner is serving a sentence for the 2008

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conviction and challenges the 2003 DUI used to enhance his 2008 sentence. He argues

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that he did not knowingly and intelligently waive his right to counsel in the San Luis

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Municipal Court, and thus falls within the exception to the “in custody” requirement.

Lackawanna Cnty. Dist.

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The Court agrees with Judge Boyle that Petitioner has failed to establish that he

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should have been appointed counsel in the 2003 DUI conviction. On August 26, 2003,

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Petitioner pled guilty to the offense telephonically, at which time the court reviewed the

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Waiver of Counsel form with him. Doc. 22-1 at 44. After entering his plea, Petitioner

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signed the waiver form in the presence of a notary and mailed it to the court. The form

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was entitled “Waiver of Counsel” and specifically stated: “DO NOT SIGN THIS FORM

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IF YOU WANT AN ATTORNEY.” Id. at 17. It also explained the benefits of counsel

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and stated: “After reading and understanding all of the above, I give up my right to an

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attorney in this case, and to have an attorney appointed for me if I cannot afford one.” Id.

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Petitioner does not argue the form was invalid, nor does he dispute that he signed it.

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In light of the undisputed record, the Court finds Petitioner knowingly, voluntarily,

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and intelligently waived his right to counsel in the 2003 proceedings, that the municipal

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court therefore did not have an obligation to appoint counsel for him, and that the

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exception to the “in custody” rule therefore does not apply. The Court lacks subject-

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matter jurisdiction over the petition.

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IT IS ORDERED:

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Magistrate Judge John Boyle’s R&R (Doc. 24) is accepted.

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2.

Petitioner’s petition for writ of habeas corpus (Doc. 1) is denied.

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3.

A certificate of appealability and leave to proceed in forma pauperis on

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appeal are denied because Petitioner has not made a substantial showing of

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the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2).

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4.

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Dated this 7th day of August, 2015.

The Clerk shall terminate this action.

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