Cooper v. Ryan et al

Filing 10

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus : Recommending that Petition be DENIED. Parties may file written objections within 10 days after being served a copy of this Report and Recommendation. ***SEE ATTACHED PDF FOR COMPLETE INFORMATION***. Signed by Magistrate Judge Bernardo P Velasco on 8/28/09. (CLJ, )

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOHN THOMAS COOPER vs. Petitioner, ) ) ) ) ) ) ) ) ) ) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

No. CV 09-0383-TUC-RCC (BPV) REPORT AND RECOMMENDATION

CHARLES RYAN, et al., Respondent.

On July 9, 2009, Petitioner, an inmate confined in the Arizona State Prisons Complex in Florence, Arizona, filed a pro se Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to Title 28, U.S.C. § 2254 ("Petition"), (Doc. No. 1), and a "Motion to Expedite Time frames for Habeas Corpus Litigation (Doc. No. 3). The District Court partially granted the motion to expedite, calling for an answer from Respondents within 20 days of the date of service, and permitting Petitioner 15 days to file a response. (Doc. No. 4.) Respondents filed an Answer to the Petition on August 11, 2009. (Doc. No. 9.) No response has been filed. Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Bernardo P. Velasco for a Report and Recommendation. For the reasons discussed below, the Magistrate Judge recommends that the District Court enter an order DENYING the Petition. I. FACTUAL AND PROCEDURAL BACKGROUND A. Disciplinary Proceeding

On November 11, 2006, Petitioner entered a guilty plea to the offense of resisting arrest and was placed on 3 years' probation. On January 16, 2009, Petitioner'

1 probation was revoked, and the trial court imposed a presumptive term of imprisonment 2 for 1 year with credit for 18 days time served. (Answer "Ans.", Ex. A.) 3 On May 24, 2009, while Petitioner was housed in the Arizona Department of

4 Corrections (ADC), Florence, a written disciplinary report in was issued charging 5 Petitioner with violating a verbal directive. (Petition, "Pet.", Doc. 1.) The report 6 contains a certification by an officer that, on May 26, 2009, it was served on Petitioner 7 for a hearing on the charge before the Disciplinary Hearing Officer. A notation after 8 service indicates "Not Guilty: 2 Witnesses". (Id.) 9 On May 26, 2009, Petitioner and an officer/witness signed an "Inmate

10 Disciplinary Hearing Waiver." (Ans., Ex. B.) The form indicated that Petitioner 11 waived his right to appear at the hearing, and his right to a 48-hour prior notice: "Based 12 on the I/M's plea of guilty." (Id.) The hearing, held in absentia, resulted in a finding 13 of guilty based on the plea of guilty. (Ans., Ex. C.) 14 Petitioner appealed his disciplinary charge, asserting a due process violation

15 because he was told that "witnesses are never allowed to testify in person and that I 16 would have to submit written questions to witnesses who would be questioned outside 17 of my presence" in violation of the Due Process and Equal Protection Clauses of the 18 U.S. Constitution. (Pet., Doc. 4.) Petitioner also challenged the adequacy of proof 19 because the hearing officer stated that he based his finding upon a plea of guilty but he 20 never pled guilty. (Id.) 21 The appeal's officer upheld the findings, noting that the report contained

22 adequate evidence to support the charges, that during his preliminary hearing he was 23 offered a chance to enter a plea on the disciplinary charge and Petitioner chose to enter 24 a plea of guilty, and signed a hearing waiver. (Pet., Doc. 5.) 25 In Petitioner's second appeal, he again argued that he was told that witnesses are

26 never allowed to testify in person, and that he did not plead guilty. (Pet., Doc. 6.) The 27 28 -2-

1 appeal was denied, the decision noting that "[i]n two places on two separate forms 2 [Cooper] signed `guilty' pleas." (Pet., Doc. 7.) 3 Cooper received a disciplinary penalty that included 30 days in Parole Class III,

4 which is an inmate class that does not allow earned release credits (ERC) pursuant to 5 A.R.S. § 41-1604.06 and -1604.07(A), precluding him from earning 5 days of ERCs. 6 (Pet. Doc. 3, 8 at 10.) Petitioner asserts that he lost his Temporary Release date of 7 August 22, 2009, and lost five good time credits, bringing his release date to November 8 12, 2009. (Pet., at 6.) 9 10 B. Special Action

Petitioner sought special action relief in Pinal County superior court. (Pet. Doc.

11 8.) His special action petition alleged that he was denied due process since he was not 12 allowed to have witnesses physically present to question them at his hearing, and 13 because his plea was changed to guilty at the hearing without his knowledge. (Id., at 14 11-12.) Petitioner also raised an equal protection claim, asserting that Petitioner was 15 treated differently form other similarly situated prisoners. (Id., at 12.) 16 On June 15, 2009, the trial court denied deferral or waiver of court fees and costs

17 "per the judges orders." (Pet., Doc. 9.) On June 29, Petitioner filed a petition for 18 special action in the Arizona Court of Appeals, urging the same due process violation 19 and equal protection arguments, and additionally, arguing that the trial court's denial 20 of a fee waiver violated the constitution. (Pet., Doc. 10, at 1-2.) The court of appeals 21 declined to accept jurisdiction. (Pet., Doc. 11.) 22 23 C. Federal Habeas

Petitioner raises four grounds for relief. In Ground One, he claims he was denied

24 his Fourteenth Amendment due process rights because he was not permitted to question 25 witnesses except by written questions that would be asked outside Petitioner's presence 26 and would be incorporated into reports, he refused to partake in a hearing that did not 27 28 -3-

1 permit him to questions his witnesses, and he was found guilty based on a plea of guilty 2 "even though he never pled guilty." 3 In Ground Two, Petitioner alleges his due process rights were violated because

4 the hearing officer changed Petitioner's plea from "not guilty" to "guilty" without 5 Petitioner's knowledge and then based his decision solely on the change of plea. 6 In Ground Three, Petitioner asserts a violation of his Fourteenth Amendment

7 equal protection rights because the hearing officer, by changing Petitioner's plea 8 without Petitioner's knowledge, treated Petitioner differently than other similarly 9 situated prisoners for "reasons that are arbitrary, capricious, and serve no l[e]gitimate 10 governmental purpose." 11 In Ground Four, Petitioner alleges he was denied his Fourteenth Amendment due

12 process rights because he was found guilty based on a Departmental Order that was 13 "vague as applied." 14 Petitioner asserts that he presented all four grounds to the Arizona Court of

15 Appeals in a special action petition. 16 17 D. Release

Although Petitioner asserted in his Petition that the constitutional violations at

18 issue in this habeas would result in a release date of November 12, 2009, a review of 19 the claim suggests that Petitioner's claim was that he would lose five day's of earned 20 release credit, and that his temporary release date, prior to the violation, had been 21 August 22, 2009. This suggested to the Court that, on the day after the Court 22 anticipated Petitioner's response, Petitioner would be released, pursuant to the terms 23 of his sentence upon probation revocation, to a consecutive sentence of community 24 supervision, on August 27, 2009. This Court in fact found, through ADC's online 25 26 27 28 -4-

1 Inmate Database1, and confirmed by contacting ADC's public access information, that 2 Petitioner had been released on supervision on August 26, 2009. 3 II. 4 5 DISCUSSION A. Standard of Review

Because Petitioner filed his petition after April 24, 1996, this case is governed

6 by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d) 7 ("AEDPA"). 8 9 B. Statute of Limitations

A one year period of limitation shall apply to an application for writ of habeas

10 corpus by a person in custody pursuant to the judgment of a State court. 28 U.S.C. § 11 2244(d)(1). Based on a review of the record, the Court finds that the petition is timely 12 under 28 U.S.C. § 2244(d)(1)(A). 13 14 C. Case and Controversy

A case becomes moot when "it no longer present[s] a case or controversy under

15 Article III, § 2, of the Constitution." Spencer v. Kemna, 523 U.S. 1, 7 (1998). In order 16 to satisfy the case-or-controversy requirement, the parties must have a personal stake 17 in the outcome of the suit throughout "all stages of federal judicial proceedings." United 18 States v. Verdin, 243 F.3d 1174, 1177 (9th Cir.) (2001). Even though Petitioner is still 19 serving the community supervision portion of his sentence, the imprisonment sentence 20 has been completed. Community supervision is not equivalent to imprisonment. See 21 State v. Cowles, 207 Ariz. 8 (App. 2004). 22 An exception to the general rule that a challenge to a prison sentence becomes

23 moot once the sentence has been served is the collateral consequence exception, which 24 allows the defendant to challenge a completed prison sentence if he suffers collateral 25 26 27 28
1

Arizona Department of Corrections Inmate Datasearch, http://www.azcorrections.gov/inmate_datasearch/Index_Minh.aspx. -5-

1 consequences. United States v. Palomba, 182 F.3d 1121, 1123 (9th Cir. 1999). While 2 these "collateral consequences" may flow from any conviction, and thus a petition 3 challenging a conviction is not usually rendered moot by a release from custody, see 4 Hirabayashi v. United States, 828 F.2d 591, 606 (9th Cir. 1987), Petitioner in this case 5 is not challenging his conviction, but a prison disciplinary proceeding. The

6 presumption of collateral consequences does not apply to prison disciplinary 7 proceedings. Wilson v. Terhune, 319 F.3d 477 (9th Cir. 2003). Petitioner has not 8 asserted that any collateral consequences would be remedied if this Court now finds that 9 he was denied five days of earned release credits in violation of Federal law. Assuming 10 he had been released earlier, it would not have affected his term of community 11 supervision. Cowles, 207 Ariz. at 10. 12 Because Petitioner is not challenging his conviction and has been released from

13 his term of imprisonment, there is no presumption of collateral consequences. Neither 14 has Petitioner alleged, or does the Court find, any collateral consequences from the 15 alleged violations raised in this habeas been alleged by Petitioner, nor does the Court, 16 upon review of the record find any collateral consequences that would entitle Petitioner 17 to relief. Thus, the present Petition is moot. 18 III. 19 RECOMMENDATION This Court recommends that the Petition for Writ of Habeas Corpus (Doc. No.

20 1) be DENIED. 21 Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections

22 within ten days after being served with a copy of this Report and Recommendation. A 23 party may respond to another party's objections within ten days after being served with 24 a copy thereof. Fed.R.Civ.P. 72(b). If objections are filed the parties should use the 25 following case number: CIV 09-0383-TUC-RCC. 26 27 28 -6DATED this 28th day of August, 2009.