Sheppard v. Shinn et al

Filing 29

ORDER: IT IS ORDERED overruling Petitioner's Objections (Doc. 25 ) and adopting in whole the R&R in this matter (Doc. 24 ). IT IS FURTHER ORDERED denying and dismissing with prejudice the Second Amended Petition for Writ of Habeas Corpus pur suant to 28 U.S.C. § 2254 (Doc. 23 ). The Clerk of Court shall terminate this matter. IT IS FURTHER ORDERED denying a Certificate of Appealability upon a finding that Petitioner has failed to demonstrate denial of a constitutional right, which finding reasonable jurists would not debate. (See Order for full details.) Signed by Judge John J Tuchi on 6/7/21. (SST)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Rodney Sheppard,

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Petitioner,

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ORDER

v.

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No. CV-20-01264-PHX-JJT (JZB)

David Shinn, et al.,

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Respondents.

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At issue is the Report and Recommendation (Doc. 24, “R&R”) entered by United

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States Magistrate Judge John Z. Boyle in this matter, which concluded the Court should

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deny and dismiss with prejudice the Second Amended Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 23, “Petition”). Petitioner timely filed Objections to

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the R&R (Doc. 25, “Obj.”), and Respondents filed a timely Response thereto (Doc. 26,

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“Resp.”).1 The Court will overrule the Objections and adopt in full the careful, well-

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reasoned and correct analysis of the R&R.

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Judge Boyle correctly concluded that Petitioner’s entry of a guilty plea in the state

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trial court renders the Fourth Amendment claims he asserts in Grounds 1 and 2 of the

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Petition irrelevant per Haring v. Prosise, 462 U.S. 306, 321 (1983)(“[W]hen a defendant

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is convicted pursuant to his guilty plea rather than a trial, the validity of that conviction

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Petitioner filed a Reply (Doc. 27) to the Response, which the Court will not consider.
Petitioner is not entitled to a reply in support of his Objections. See Fed. R. Civ. P. 72(b)(2).
The Objection is not a motion allowing Petitioner the last word in the form of a reply.
Petitioner must therefore state all of his arguments in his Objection. Moreover, even if
Petitioner was entitled to a reply, he provided no new information or argument in that reply,
which the Court has reviewed.

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cannot be affected by an alleged Fourth Amendment violation because the conviction does

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not rest in any way on evidence that may have been improperly seized.”) In his Objection,

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Petitioner attempts to avoid this result by arguing that the basis for his Petition was never

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a Fourth Amendment claim, but was based on Fifth and Fourteenth Amendment due

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process claims all along. (Obj. at 2.) This is false. In his original Petition, First Amended

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Petition and Second Amended Petition, Petitioner states his claims in Grounds 1 and 2 in

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terms of Fourth Amendment violations. He never mentions the Fifth or Fourteenth

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Amendment in those filings. Neither Respondents nor the Court were ever put on notice of

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a Fifth or Fourteenth Amendment ground.

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Second, Judge Boyle correctly concluded that Petitioner’s guilty plea was voluntary,

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based on the case law Judge Boyle cited in the R&R and the excerpted transcript of the

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change of plea colloquy in the matter. Petitioner’s argument in his Objection that once the

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state trial court denied his repeated motions to suppress the seized tickets, he had no choice

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but to plead guilty, rendering that plea involuntary, fails utterly as an argument of

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convenience now made by a petitioner with “buyer’s remorse.” The assertion of

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involuntariness, made not under oath and with no evidence to back it, is precisely the type

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of argument the Supreme Court teaches must be avoided in this circumstance. Blackledge

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v. Allison, 431 U.S. 63, 74 (1977) (“The Subsequent presentation of conclusory allegations

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unsupported by specifics is subject to summary dismissal, as are contentions that in the

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face of the record are wholly incredible.”).

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Petitioner stood before the state trial judge under oath and answered a litany of

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questions designed to determine whether his plea was knowing, intelligent and voluntary. Only

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after he answered all of the state judge’s questions as he did, including stating that no one had

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“forced or threatened” him in any way to plead guilty and that the plea was “voluntary[]y and

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on [his] own,” did the judge accept the plea. (R&R at 5-6.) If a petitioner, years later, could

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simply assert on such a record that his oath and answers meant nothing and the Court should

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take his current, unsworn and unsupported statement to contradict all that went before, the

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judicial process would mean nothing. The Court rejects this argument wholly.

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IT IS ORDERED overruling Petitioner’s Objections (Doc. 25) and adopting in
whole the R&R in this matter (Doc. 24).

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IT IS FURTHER ORDERED denying and dismissing with prejudice the Second

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Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 23). The

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Clerk of Court shall terminate this matter.

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IT IS FURTHER ORDERED denying a Certificate of Appealability upon a

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finding that Petitioner has failed to demonstrate denial of a constitutional right, which

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finding reasonable jurists would not debate.

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Dated this 7th day of June, 2021.

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Honorable John J. Tuchi
United States District Judge

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