Tyler v. Ryan et al

Filing 23

ORDER adopting 20 Report and Recommendations. It Is Ordered that the Petitioner's Petitions are DENIED. (Doc 1 in CV 10-353; Doc 1 in CV 10-543). It Is Further Ordered denying Petitioner a Certificate of Appealability. Signed by Judge Raner C Collins on 4/16/12. (CSL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jason Ray Tyler,
Petitioner,

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vs.

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Charles L. Ryan,et. al,
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Respondent.
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No. CV 10-353-TUC-RCC (BPV)
(Lead)
No. CV 10-543-TUC-RCC (BPV)
(Consolidated)
ORDER

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On June 16, 2010 Petitioner filed a Petition under 28 U.S.C. § 2254 for a Writ of

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Habeas Corpus by a Person in State Custody. (Doc. 1 in CV 10-353). On September 8, 2010

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Petitioner filed a second petition pursuant to the same statute. (Doc. 1 in CV 10-543). The

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two cases were consolidated and fully briefed. (Docs. 16-19). The Honorable Bernardo P.

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Velasco, United States Magistrate Judge, filed a Report and Recommendation

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(Recommendation) in this action, which advised the Court to deny both petitions. (Doc. 20).

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The Court will adopt the Recommendation and deny both petitions.

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I.

FACTUAL & PROCEDURAL BACKGROUND

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Petitioner does not object to the Recommendation’s summary of the relevant factual and

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procedural history. The Court has reviewed this portion of the Recommendation for clear

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error and, finding none, adopts the Recommendation’s summary of the relevant factual and

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procedural history. See Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v.

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United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)).

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II. DISCUSSION

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A. Breach of the 2005 Plea Agreement

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The Arizona Court of Appeals held Petitioner waived the state’s breach of the 2005 plea

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agreement when he withdrew his motion to dismiss the 2006 indictment and entered a plea

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agreement. (Doc. 18, Ex. Q, ¶ 14.). On this basis, it distinguished this case from Santobello

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v. New York, 404 U.S. 257 (1971). The Recommendation found this holding was not

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contrary to or an unreasonable application of clearly established federal law because the

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appellate court relied on a principled distinction in deciding not to apply Santobello to this

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action. (Doc. 20 at 12-15).

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Petitioner objects and argues once the Arizona Court of Appeals found the state breached

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the 2005 plea agreement, Santobello required the sentence be vacated and the case remanded

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for re-sentencing or trial. (Doc. 22 at 5-7). Petitioner contends Santobello precludes a court

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from considering waiver in the context of a breached plea agreement. (Id.). In addition,

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Petitioner argues he did not waive the breach. (Id.)

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In Santobello, the plea agreement provided that the state would not make a sentencing

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recommendation. 404 U.S. at 258. When the state made a recommendation at sentencing,

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defense counsel objected immediately and sought to continue sentencing so he could prove-

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up the state’s promise not to make a recommendation. Id. at 259. The sentencing judge

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denied the continuance and entered sentence, stating he was not influenced by the state’s

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recommendation. Id. Thereafter, the defendant appealed his sentence on the grounds that

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the state breached the plea agreement. Id. at 260. The United States Supreme Court found

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the state violated the plea agreement and remanded for resentencing or trial. Id. at 262-63.

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It did not consider or discuss whether the defendant waived the breach.

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Petitioner claims that the course of events in his case is analogous to that in Santobello

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because he brought the issue of breach to the trial court’s attention. (Doc. 22 at 6). This is

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incorrect. He filed a motion to dismiss and then withdrew it before the trial court could rule.

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Accordingly, the appellate court was not unreasonable when it concluded that the two
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situations are not analogous, and Petitioner is not entitled to habeas relief. Murdoch v.

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Castro, 609 F.3d 983, 995 (9th Cir. 2010).

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B. State’s Power to Indict in the 2006 Case

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Petitioner’s arguments relative to the state’s power to indict him in the 2006 case, and

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his subsequent ability to enter into a plea agreement, are premised on the theory that the state

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violated the double jeopardy clause when it brought the 2006 case. As discussed below, the

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state court reasonably found that no such violation occurred. Accordingly, Petitioner is not

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entitled to habeas relief on this basis.

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C. Double Jeopardy

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The Arizona Court of Appeals held the 2006 case did not violate double jeopardy

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because, under the test set out in Blockburger v. United States, 284 U.S. 299 (1932),

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facilitation and conspiracy are two separate crimes. (Doc. 18, Ex. Q, ¶¶ 20-21). The

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Recommendation found the appellate court’s findings were consistent with Blockburger.

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(Doc. 20 at 27).

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Petitioner objects and argues the Recommendation failed to consider the definition of

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facilitation as it was listed in the 2005 plea agreement, which he argues also required proof

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of accomplice liability. (Doc. 22 at 11-12). Proof of facilitation did not require proof of

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accomplice liability. The state merely listed the statutory authority for accomplice liability,

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presumably as an alternate theory of liability. (Doc. 17, Ex. E). Without the addition of

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accomplice liability, it is clear facilitation and conspiracy are separate crimes under the

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Blockburger test.

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Under the rule in Blockburger, two offenses are distinct if “each provision requires proof

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of an additional fact which the other does not...” 284 U.S. at 304. Here, a person is guilty

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of facilitation if “acting with knowledge that another person is committing or intends to

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commit an offense, the person knowingly provides the other person with means or

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opportunity for the commission of the offense.” A.R.S. § 13-1004(A). A person is guilty

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of conspiracy “if, with the intent to promote or aid the commission of an offense, such person

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agrees with one or more persons that at least one of them or another person will engage in
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conduct constituting the offense and one of the parties commits an overt act in furtherance

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of the offense...” A.R.S. § 13-1003(A). As the Arizona Court of Appeals and the

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Recommendation both concluded, conspiracy, unlike facilitation, requires proof of an

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agreement, and facilitation, unlike conspiracy, requires proof that the defendant acted. The

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appellate court’s decision was a reasonable application of the Blockburger test, and Petitioner

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is not entitled to habeas relief as to this claim.

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D. Waiver

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Petitioner has not objected to the portion of the Recommendation addressing his claim

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that the Arizona Court of Appeals erred when, applying contract theory, it found Petitioner

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waived the alleged breach of the 2005 plea agreement. (Doc. 20 at 27-29). The Court has

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reviewed these portions of the Recommendation for clear error and, finding none, adopts

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them. See Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell, 501 F.2d at 206).

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III. CERTIFICATE OF APPEALABILITY

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A certificate of appealability may issue “only if the applicant has made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “[A] substantial

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showing of the denial of a constitutional right ... includes showing that reasonable jurists

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could debate whether ... the petition should have been resolved in a different manner or that

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the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack

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v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

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(1983)). “When the district court denies a habeas petition on procedural grounds without

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reaching the prisoner’s underlying constitutional claim, a [certificate of appealability] should

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issue when the prisoner shows, at least, that jurists of reason would find it debatable whether

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the petition states a valid claim of the denial of a constitutional right and that jurists of reason

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would find it debatable whether the district court was correct in its procedural ruling.” Slack,

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529 U.S. at 484.

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The Court finds that Petitioner has not demonstrated that reasonable jurists would find

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it debatable whether the Court was correct in its procedural rulings, that the petition should

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have been resolved in a different manner, or that the issues presented were “adequate to
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deserve encouragement to proceed further.”

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IV. CONCLUSION

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As discussed above, the Arizona Court of Appeals reasonably concluded that Petitioner

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waived the breach of the 2005 plea agreement when he withdrew his motion to dismiss and

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entered into a plea agreement in the 2006 case. The Arizona Court of Appeals also

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reasonably applied the Blockburger test and found the 2006 case did not violate double

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jeopardy. Accordingly,

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The Court ACCEPTS the Recommendation of Magistrate Judge Velasco. (Doc. 20).

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IT IS ORDERED that the Petitioner’s Petitions are DENIED. (Doc. 1 in CV 10-353;

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Doc. 1 in CV 10-543).

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IT IS FURTHER ORDERED denying Petitioner a Certificate of Appealability.

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DATED this 16th day of April, 2012.

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