Campos v. Shinn et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION re: 17 Report and Recommendation. The Petition for Writ of Habeas Corpus (Doc. 1 ) is DENIED and a certificate of appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Senior Judge Roslyn O Silver on 5/23/23. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Daniel Campos,
Petitioner,

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v.

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David Shinn, et al.,

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No. CV-22-00892-PHX-ROS
ORDER

Respondents.

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On March 17, 2023, Magistrate Judge Eileen S. Willett issued a Report and

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Recommendation (“R&R”). The R&R reasons it is “more efficient to resolve Petitioner’s

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habeas claim on the merits” instead of first determining if the claim is timely. (Doc. 17 at

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4). On the merits, the R&R recommends the petition for writ of habeas corpus be denied.

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Petitioner did not file any objections. Respondents, however, filed an objection stating

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“[w]hether a habeas petition is time-barred by [the applicable] statute of limitations is a

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threshold question that must be resolved before considering the merits of a habeas

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petition.” (Doc. 18 at 2). Thus, Respondents request the Court address the timeliness

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issue before reaching the merits. Respondents do not object to the R&R’s analysis

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regarding the merits.

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I.

Need to Determine Timeliness

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The Ninth Circuit has stated the Antiterrorism and Effective Death Penalty Act

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(“AEDPA”) establishes the timeliness of habeas claims “is a threshold question that [a

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court] must decide before [it] reach[es] the merits of a habeas petitioner’s claims.” Ford

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v. Gonzalez, 683 F.3d 1230, 1238 (9th Cir. 2012). That opinion does not cite the portion

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of AEDPA that imposes this requirement and Supreme Court authority strongly implies

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timeliness is not a threshold question that must be addressed before reaching the merits.

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See Day v. McDonough, 547 U.S. 198, 205 (2006) (noting statute of limitations defense

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is not jurisdictional). Other circuits have concluded timeliness need not be addressed

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when proceeding directly to the merits makes more sense.1

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When the statute of limitations is raised, a court cannot grant a habeas petition

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without determining timeliness. But there is no reason to require timeliness be assessed

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first when, as here, it is far more complicated than the merits. However, the Ninth Circuit

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appears to have imposed this requirement and, given Respondents’ objection to the R&R,

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the Court will address timeliness.

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II.

Claim is Timely

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The factual background relevant to Petitioner’s habeas petition involves two

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separate criminal cases. In 2017, Petitioner was charged with failing to register as a sex

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offender. Petitioner pled guilty and was sentenced to a ten-year term of probation. On

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February 11, 2019, Petitioner admitted to violating the terms of his probation. The trial

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court reinstated Petitioner’s probation and imposed a new ten-year period. In March

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2019, Petitioner filed a notice stating he would seek post-conviction relief from the

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reinstatement of his probation. The trial court appointed attorney Colin F. Stearns to

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represent Petitioner in the post-conviction process. Stearns reviewed the file and filed a

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notice stating he could not find any colorable claims. (Doc. 11-1 at 52). Petitioner did

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not file anything on his own behalf and post-conviction relief was denied. (Doc. 11-1 at

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59).

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In July 2019, Petitioner was charged in a separate case with the new crime of

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interfering with a monitoring device. In August 2019, Petitioner pled guilty to that crime

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See, e.g., Smith v. Nagy, 962 F.3d 192, 207 (6th Cir. 2020) (citing Day and noting
timeliness “ordinarily should be addressed first” but courts “may sometimes reach the
merits of a petitioner’s claim, particularly when the merits are easily resolvable against
the petitioner while the procedural issues are complicated”); White v. Steele, 853 F.3d
486, 490 (8th Cir. 2017) (“[E]ven where we have reason to doubt compliance with the
statute of limitations, we may proceed to the merits in the interest of judicial economy.”).
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and was sentenced to a three-year prison term. In connection with Petitioner’s plea and

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sentence stemming from the interfering charge, the state court also revoked his probation

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from the 2017 case and sentenced him to an “aggravated” sentence of 3.75 years in

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prison. Ariz. Rev. Stat. Ann. § 13-702(D) (stating “aggravated” and “presumptive”

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sentences).

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In October 2019, Petitioner filed a petition for post-conviction relief in both his

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2017 and 2019 cases. Attorney Kerrie Droban was appointed to represent Petitioner.

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Droban reviewed the file and stated she was unable to locate any colorable claims.

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Petitioner then filed a petition on his own behalf, but the trial court denied relief.

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Petitioner sought review from the Arizona Court of Appeals and that court rejected all

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claims except it granted relief regarding the prison sentence in the 2017 case. The court

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of appeals concluded the 3.75-year sentence was excessive because the trial court had not

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found a required “aggravator.” Absent such a finding, the trial court was “prohibited

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from increasing [Petitioner’s] sentence beyond the presumptive term,” i.e., 2.5 years.

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State v. Campos, No. 1 CA-CR 21-0214 PRPC, 2022 WL 905002, at *3 (Ariz. Ct. App.

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Mar. 29, 2022).

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resentencing in the 2017 case. Id. The records available on the Maricopa County

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Superior Court’s website show Petitioner was resentenced on August 15, 2022.

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Petitioner was given the “presumptive” sentence of 2.5 years in prison.

Based on that error, the Arizona Court of Appeals remanded for

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After the Arizona Court of Appeals remanded but before he was resentenced,

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Petitioner filed his federal petition for writ of habeas corpus. Petitioner’s sole claim is he

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was denied his “14th Amendment Due Process and Equal Protection rights” during his

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post-conviction relief proceedings.

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regarding the appointment of counsel in post-conviction relief proceedings are not

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sufficient under the requirements of Anders v. California, 386 U.S. 738 (1967). (Doc. 1).

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In support of this, Petitioner references the events that occurred after his convictions and

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sentences in 2019. To be clear, the convictions and sentences referenced in the petition

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involved the 2017 and 2019 cases. But based on the petition itself, Petitioner’s claim is

According to Petitioner, Arizona’s practices

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based solely on the behavior by Droban, Petitioner’s attorney after he was sentenced to

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prison in August 2019.

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In responding to the petition, Respondents argue Petitioner’s claim based on the

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2017 case is time-barred. According to Respondents, Petitioner’s claim regarding post-

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conviction relief proceedings in the 2017 case arose after Stearns, the attorney appointed

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when Petitioner’s probation was reinstated in the 2017 case, filed a notice stating he

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could not locate any colorable claims. Respondents believe the time for bringing a

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federal petition based on Stearns’ behavior expired long before he filed his present

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petition.

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Respondents apparently believe the current federal petition involves alleged

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violations of Petitioner’s constitutional rights based on the actions by Stearns and the

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procedures after Petitioner’s probation was reinstated as well as the actions by Droban

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and the procedures in effect after Petitioner was sentenced to prison in 2019. The record,

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however, does not contain any indication Petitioner is seeking relief based on the post-

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conviction proceedings when Stearns was involved. Rather, the federal petition is based

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exclusively on the alleged failures by Droban after Petitioner was sentenced to prison in

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August 2019. (Doc. 15 at 10) (Petitioner arguing Droban “did absolutely nothing in her

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‘advisory capacity’”). Petitioner’s claim is not based on the events involving Stearns and

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the timeliness of challenging those events is not relevant to the current petition.

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Petitioner’s claim is based on the events involving Droban and Respondents concede the

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claim based on those events is timely. Therefore, the Court must turn to the merits.

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III.

No Objections on the Merits

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The R&R recommends the Court conclude Petitioner’s claim fails on the merits.

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Petitioner did not file any objections to the R&R. With no objections, there is no need to

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review the R&R de novo. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.

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2003) (“The statute makes it clear that the district judge must review the magistrate

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judge's findings and recommendations de novo if objection is made, but not otherwise.”).

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Therefore, the R&R will be adopted.

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Accordingly,

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IT IS ORDERED the R&R (Doc. 17) is ADOPTED and the petition for writ of

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habeas corpus (Doc. 1) is DENIED.

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IT IS FURTHER ORDERED a certificate of appealability and leave to proceed

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in forma pauperis on appeal are denied because Petitioner has not made a substantial

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showing of the denial of a constitutional right.

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Dated this 23rd day of May, 2023.

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Honorable Roslyn O. Silver
Senior United States District Judge

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