Powell v. Ryan et al

Filing 17

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION 14 . The Report and Recommendation is rejected to the extent that it finds that Petitioner's claimed ineffective assistance of PCR counsel cannot serve as cause for the pro cedural default of his claims. The Report and Recommendation is otherwise adopted. It is further ORDERED that Petitioner's Petition (Doc. 1) is denied and dismissed. The Clerk of Court is directed to enter judgment as necessary and close this case. In the event Petitioner files an appeal, the Court declines to issue a certificate of appealability. Signed by Judge Rosemary Marquez on 8/25/16. (See attached PDF for complete information.) (KAH)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Stephen Don Powell, Petitioner, 10 11 ORDER v. 12 No. CV-14-02043-TUC-RM Charles L Ryan, et al., 13 Respondents. 14 15 Pending before the Court is a Report and Recommendation (Doc. 14) issued by 16 Magistrate Judge D. Thomas Ferraro. After an independent review of the record, this 17 Court instructed Respondents to file a supplemental brief addressing how and whether the 18 apparent lack of notice to Petitioner of the necessary state procedures should affect this 19 Court’s analysis. Respondents have filed their Supplemental Brief (Doc. 16). 20 I. Background 21 Petitioner pled guilty in the Arizona Superior Court in Pima County on March 14, 22 2013 and received a sentence of seven and one-half-years on April 29, 2013. The trial 23 court informed Petitioner during his change of plea hearing that although Petitioner was 24 forfeiting his right to a direct appeal by pleading guilty, he could “file a petition for post[- 25 ]conviction relief, but that petition [would be resolved by the trial court].” (Doc. 13-1 at 26 50.) The trial court further informed Petitioner that if it denied Petitioner’s request, “the 27 Court of Appeals [would] not have to hear [his] case beyond that.” (Doc. 13-1 at 50-51.) 28 During Petitioner’s sentencing, the trial court again informed Petitioner that he had “the 1 right to challenge [the trial court’s] decision, but [that] if [he] want[ed] to do so, [he] 2 must do so within 90 days from [the date of sentencing].” (Doc. 13-2 at 1-11.) 3 On May 13, 2013, Petitioner timely filed a Notice of Post-Conviction Relief 4 (“PCR”). (See Doc. 13-2 at 13-16.) On May 20, 2013, the trial court appointed 5 Petitioner counsel and set a schedule for the proceeding. (See Doc. 13-2 at 21-22.) On 6 August 29, 2013, Petitioner’s PCR counsel filed a Notice indicating he was unable to find 7 any claims that “Petitioner wished to pursue” and counsel therefore would not file a 8 petition for PCR. (Doc. 13-2 at 24-25.) Counsel also stated that he informed Petitioner 9 that Petitioner could file a petition pro se and requested that the trial court allow 10 Petitioner an additional forty-five days in which to do so. (See Doc. 13-2 at 25.) The 11 trial court granted this request on August 29, 2013. (See Doc. 13-2 at 27.) 12 On October 23, 2013, the trial court issued an order denying and dismissing 13 Petitioner’s PCR proceeding on the basis that Petitioner had not filed a pro se petition. 14 (See Doc. 13-2 at 30.) 15 On April 23, 2014, Petitioner filed a Petition for Writ of Habeas Corpus (Doc. 1) 16 pursuant to 28 U.S.C. § 2254 in this Court. In his Petition, Petitioner raised four grounds 17 for relief: (1) the indictment against him was multiplicitous and thus violated the Double 18 Jeopardy Clause; (2) he received unconstitutionally ineffective assistance of counsel from 19 both his trial and PCR counsel; (3) he was unlawfully induced into pleading guilty by his 20 trial counsel and the state prosecutor; and (4) he was denied due process by each of the 21 foregoing claims. (See Doc. 1 at 6-9.) Petitioner concedes that he did not present any of 22 these claims to the necessary state courts. (Doc. 1 at 6-9.) He explains that the reason for 23 this failure was that his PCR counsel informed him that he had “no colorable claims 24 which would entitled [him] to post-conviction relief.” (Doc. 1 at 6-9.) 25 Respondents filed an Answer arguing Petitioner’s grounds for relief were not 26 cognizable and were procedurally defaulted. (See Doc. 13.) Respondents first argued 27 that Petitioner’s ineffective assistance of PCR counsel claim was not cognizable because 28 (1) Petitioner had no constitutional right to effective counsel during his PCR proceeding; -2- 1 (2) Arizona does not recognize claims challenging the effectiveness of PCR counsel; and 2 (3) Congress explicitly precluded such claims from habeas relief. Respondents further 3 argued that the basis for Petitioner’s claim was improperly vague and conclusory. 4 Respondents next argued that each of Petitioner’s four grounds for relief was 5 procedurally defaulted. Lastly, Respondents contended that Petitioner could not satisfy 6 the “cause and prejudice” standard that would excuse his procedural default. 7 Government based this argument on the theory that Petitioner had no constitutional right 8 to effective PCR counsel and that the indictment was not in fact multiplicitous. 9 Respondents did not otherwise address the substance of Petitioner’s claims. 10 II. The Report and Recommendation 11 Judge Ferraro found that Petitioner’s failure to present his claims to the Arizona 12 courts rendered them technically exhausted, but procedurally defaulted. (See Doc. 14 at 13 3.) Judge Ferraro correctly acknowledged that Petitioner was in fact constitutionally 14 entitled to effective assistance of counsel during his PCR proceeding because it was an 15 “of right” proceeding. (See Doc. 14 at 3 n.1, 4 n.2.) See also Pennsylvania v. Finley, 481 16 U.S. 551, 555 (1987); Osterkamp v. Browning, 250 P.3d 551, 556 (Ariz. Ct. App. 2011). 17 Judge Ferraro next considered whether the Petition provided a basis for finding sufficient 18 cause and prejudice to excuse Petitioner’s default. (See Doc. 14 at 4.) 19 The Supreme Court has long held that a petitioner may obtain federal review of his 20 defaulted claims if he can show sufficient cause for the default and prejudice from the 21 alleged error. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 82-85, 87-88 (1977); Murray 22 v. Carrier, 477 U.S. 478, 485 (1986); Coleman v. Thompson, 501 U.S. 722, 750 (1991); 23 Edwards v. Carpenter, 529 U.S. 446, 451 (2000). 24 Judge Ferraro determined that a claim of constitutionally deficient assistance of 25 counsel is sufficient cause to excuse a procedural default. Murray, 477 U.S. at 488. 26 However, an ineffective assistance of counsel claim must itself be presented to a state 27 court before serving as cause for failure to present other claims. Id. at 489. In the case of 28 a pleading defendant who waives his right to a direct appeal, Arizona requires the -3- 1 defendant to initiate two PCR proceedings. The first, to allege any grounds for relief 2 stemming from the pre-conviction proceedings, and the second—unmentioned by the 3 trial court when explaining Petitioner’s possible post-conviction relief options—to allege 4 that the attorney appointed in the first PCR proceeding was constitutionally ineffective. 5 See Osterkamp, 250 P.3d at 556-57. Judge Ferraro concluded that because Petitioner 6 failed to raise the claim that his first PCR counsel was ineffective in a second PCR 7 proceeding, that claim was defaulted and could not serve as cause for the default of 8 Petitioner’s other claims. 9 III. Discussion 10 “Arizona’s Constitution guarantees criminal defendants ‘the right to appeal in all 11 cases.’” Summers v. Schriro, 481 F.3d 710, 714-15 (9th Cir. 2007) (quoting Ariz. Const. 12 art. 2, § 24)). Defendants who plead guilty, however, waive the right to the standard 13 appellate review. 14 requirement that appellate review be available to all criminal defendants, Arizona 15 amended its rule governing PCR proceedings to provide an “of-right” proceeding for 16 pleading defendants. Summers, 481 F.3d at 715 (citing Wilson v. Ellis, 859 P.2d 744, 746 17 (Ariz. 1993) (en banc)); Charles R. Krull, Eliminating Appeals from Guilty Pleas, Ariz. 18 Att’y, Oct. 1992, at 34-35); see Ariz. R. Crim. P. 32.4(a). This “of-right” proceeding is 19 the functional equivalent of a convicted defendant’s direct appeal, and thus, is not 20 considered a collateral proceeding. Defendants are constitutionally entitled to effective 21 assistance of counsel in the “of-right” proceeding. Arizona provides a second PCR 22 proceeding for the specific purpose of allowing a pleading defendant to present a claim 23 that his “of-right” PCR counsel was ineffective. See Osterkamp, 250 P.3d at 557-58. A 24 petitioner must raise his claim of ineffective assistance of his “of-right” PCR counsel in 25 this second proceeding to comply with the exhaustion and federalism requirements that 26 limit federal review to those claims that have been properly presented to the relevant state 27 courts. See id. at 556-57. 28 Ariz. R. Crim. P. 17.1(e). To comply with the Constitution’s This case presents an unusual situation of compounded procedural defaults. First, -4- 1 Petitioner defaulted his claims of trial-court errors by not raising them in a pro se petition 2 during his first “of-right” PCR. This default could be excused by Petitioner’s claim that 3 his PCR counsel was ineffective (with a showing of prejudice). But, Petitioner defaulted 4 that claim by not raising it in the required second PCR. For this Court to have authority 5 to review Petitioner’s claims, he must have sufficient cause and prejudice for both 6 defaults.1 7 A. Procedural Default of Ineffective Assistance of PCR Counsel 1. 8 Cause for Procedural Default 9 In the many cases discussing procedural default, the Supreme Court has declined 10 to create a list of incidents that are sufficient to serve as “cause” for a procedural default. 11 See, e.g., Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (“We leave open for resolution in 12 future decisions the precise definition of the ‘cause’-and-‘prejudice’ standard”); Murray 13 v. Carrier, 477 U.S. 478, 488 (1986) (declining to “attempt[] an exhaustive catalog of. . . 14 objective impediments to compliance with a procedural rule” that would warrant a 15 finding of “cause”). Rather, the Court has set forth a broad standard: “the existence of 16 cause for a procedural default must ordinarily turn on whether the prisoner can show that 17 some objective factor external to the defense impeded counsel’s efforts to comply with 18 the State’s procedural rule.” Murray, 477 U.S. at 488. In applying this standard, the 19 Court has concluded that the violation of a petitioner’s constitutional right was a 20 sufficient “external factor” to serve as cause for a procedural default. See Coleman v. 21 Thompson, 501 U.S. 722, 754 (1991) (the fact that the incident petitioner alleges is 22 “cause” for his default “constitutes a violation of petitioner’s right to counsel,” renders it 23 a sufficient “external factor”). 24 This Court finds that a constitutional violation has occurred in Petitioner’s case to 25 26 27 28 1 The Supreme Court has stated that a court may excuse the procedural default of a claim that serves as cause for another procedural default. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (“To hold, as we do, that an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted is not to say that that procedural default may not itself be excused if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim.” (emphasis in original)). -5- 1 warrant a finding of cause for the procedural default of his ineffective assistance of PCR 2 counsel claim. “The essential requirements of procedural due process are reasonable 3 notice and an opportunity to be heard.” Willie G. v. Arizona Dep’t. of Econ. Sec., 119 4 P.3d 1034, 1038 (Ariz. Ct. App. 2005). Accordingly, “due process is offended when a 5 defendant who pled guilty is kept completely ignorant of his appellate rights.” Wolfe v. 6 Randle, 267 F. Supp. 2d 743, 747 (S.D. Ohio 2003) (citing Peguero v. United States, 526 7 U.S. 23, 26-27 (1999) (finding constitutional error where trial court did not advise 8 pleading defendant of his appellate rights)). 9 Here, the record demonstrates that Petitioner was only informed of the first 10 component of his appellate rights. That is, he was never told that he was entitled to—and 11 would be required to—initiate a second PCR proceeding after the first was dismissed. 12 This omission violated Petitioner’s rights to procedural due process and is sufficient 13 cause for the default of the claim that his PCR counsel was ineffective. 2. 14 Prejudice Resulting from Defaulted Claim 15 Next, the Court must consider whether Petitioner suffered any prejudice as a result 16 of the violation he wishes the Court to consider, that is, that his PCR counsel was 17 ineffective. 18 ineffectiveness “worked to his actual and substantial disadvantage.” United States v. 19 Frady, 456 U.S. 152, 170 (1982); see also Wainwright, 433 U.S. at 91; Coleman, 501 20 U.S. at 752-57. The Petition contains such allegations. If Petitioner’s PCR counsel 21 would not have advised him that he had no viable claims, Petitioner would have filed a 22 petition for relief and had his claims reviewed. 23 Petitioner’s case without reviewing the merits. Because Petitioner cannot now return to 24 seek state review of these claims, he has lost the right to his “of-right” appellate review 25 and has been prejudiced. 26 ... 27 ... 28 ... To show prejudice, Petitioner must allege that his PCR counsel’s -6- Instead, the state court dismissed 1 B. Procedural Default of Habeas Petition Claims 2 Having found that the default of Petitioner’s claim of ineffective assistance of 3 PCR counsel can be excused, the Court now turns to whether that ineffective assistance 4 of PCR counsel claim can serve to excuse the procedural default of his habeas Petition 5 claims. 1. 6 Cause for Procedural Default The Supreme Court has set specific standards for any petitioner seeking to use a 7 8 claim of ineffective assistance of counsel as cause for a procedural default. 9 petitioner must first allege that his PCR counsel was deficient according to the standards 10 established in Strickland v. Washington, 466 U.S. 668 (1984). That is, he must allege 11 enough facts to indicate that his PCR “counsel’s representation fell below an objective 12 standard of reasonableness,” and that there is a “reasonable probability that, but for his 13 counsel’s [] error, the result of the proceeding would have been different.” Id. at 695. 14 Second, the petitioner must demonstrate that the underlying claim of ineffective 15 assistance of trial counsel is substantial, or “has some merit.” Martinez v. Ryan, 132 16 S.Ct. 1309, 1318 (2012). Because whether Petitioner’s PCR counsel’s representation can 17 be said to fail the Strickland test depends, in part, upon whether there is a substantial 18 claim that Petitioner’s trial counsel was ineffective, this Court addresses the claims 19 against Petitioner’s trial counsel first. a. 20 The Substantial Claim of Ineffective Assistance of Trial Counsel 21 Petitioner’s habeas Petition offers two grounds to support his claim that his trial 22 counsel was ineffective: (1) trial counsel failed to challenge Petitioner’s indictment as 23 multiplicitous; and (2) trial counsel misinformed Petitioner about the range of sentences 24 Petitioner could face if convicted of the six charges brought against him, and thus 25 improperly induced Petitioner to plead guilty. 26 ... 27 ... 28 ... -7- i. 1 Multiplicitous Indictment 2 Petitioner alleges the Arizona indictment was multiplicitous because it charged 3 him with four counts of molestation of a child and two counts of luring a minor for sexual 4 exploitation.2 (See Doc. 1 at 6.) Petitioner also implies that the conduct for which he was 5 charged in the six counts was the same conduct, and the state improperly “divided the 6 timespan” in order to obtain a true bill for all six counts. (See Doc. 1 at 6.) 7 “An indictment is multipicitious if it charges a single offense in more than one 8 count.” United States v. Awad, 551 F.3d 930, 937 (9th Cir. 2009). Where a challenged 9 indictment charges the same conduct under different statutes, courts must apply the test 10 detailed in Blockburger v. United States, 284 U.S. 299, 304 (1932), and determine if the 11 statutes have the same elements. United States v. Zalapa, 509 F.3d 1060, 1062 n.1 (9th 12 Cir. 2007). If, however, the challenged indictment charges the same conduct under the 13 same statute, courts are instead tasked with determining what Congress intended to be an 14 “allowable unit of prosecution.” Id. at 1062. 15 The indictment brought against Petitioner charges six offenses under four different 16 statutes. However, without needing to apply either of the aforementioned tests, it is clear 17 that “a single offense” is not charged more than once. Each count brought against 18 Petitioner was for a distinct act, committed on separate occasions, against two victims. 19 (See Doc. 13-1 at 17-18; see supra p. 6 n.1.) While there are two sets of counts that 20 allege violations of the same statute, the underlying offense conduct is distinct. (See Doc. 21 13-1 at 17-18, 23-29.) 22 Petitioner violated, each has separate and distinct elements. Compare Ariz. Rev. Stat. § 23 13-1404, with Ariz. Rev. Stat. § 13-1405, and Ariz. Rev. Stat. § 13-1410, and Ariz. Rev. Further, looking at the four statutes the indictment alleges 24 2 25 26 27 28 Petitioner’s characterization of the indictment is inaccurate. The indictment lists the following six counts: (1) sexual conduct with a minor under fifteen by way of digital penetration of Victim 1 at some time between February and March 2011; (2) sexual abuse of a minor under fifteen by way of touching Victim 1’s breast; (3) sexual conduct with a minor under fifteen by way of digital penetration of Victim 1 at some time between September 2010 and March 2011; (4) molestation of a child by way of touching Victim 1 with his penis; (5) luring a minor for sexual exploitation by way of soliciting sex from Victim 1; and (6) luring a minor for sexual exploitation by way of soliciting sex from Victim 2. (Doc. 13-1 at 17-18.) -8- 1 Stat. § 13-3554. Accordingly, Petitioner’s indictment was not multiplicitous, and his trial 2 counsel (and PCR counsel) cannot be faulted with failing to raise that challenge. This 3 ground therefore cannot support a substantial claim of ineffective assistance of trial 4 counsel.3 ii. 5 Misinformation Regarding Possible Sentences 6 As to Petitioner’s claim that trial counsel misinformed him of the possible 7 sentence Petitioner would face if found guilty, this Court finds that Petitioner has failed 8 to demonstrate that this claim is substantial. 9 It is true that a defendant must be accurately informed of the potential sentences he 10 faces. See, e.g., Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969) (“because a guilty plea 11 is an admission of all the elements of a formal criminal charge, it cannot be truly 12 voluntary unless the defendant possesses an understanding of the law in relation to the 13 facts.”); see also United States v. Ruiz, 536 U.S. 622, 629 (2002) (“[T]he Constitution 14 insists, among other things, that the defendant enter a guilty plea [with] sufficient 15 awareness of the relevant circumstances and likely consequences.” (internal citations and 16 alternations omitted)). It is also true that a defense attorney’s failure to so accurately 17 inform his client fails Strickland’s standard for effective assistance of counsel. Iaea v. 18 Sunn, 800 F.2d 861, 865 (9th Cir. 1986) (“counsel ha[s] a duty to supply criminal 19 defendants with necessary and accurate information.”); see also id. (“. . . the gross 20 mischaracterization of the likely outcome presented in this case, combined with the 21 erroneous advice on the possible effects of going to trial, falls below the level of 22 competence required of attorneys.”). But, Plaintiff’s claim is not just that his counsel 23 improperly informed him of the possible sentences. Rather, Defendant links this claim to 24 his previously discussed claim of a multiplicitous indictment: 25 26 27 28 I was misinformed by the government and my defense lawyer about the threat I faced, concerning the total range of sentences that could be imposed concerning all six (6) counts charged in the multiplicitous indictment if I chose to go to trial, which coerced me to enter a plea of 3 Further, because Petitioner’s first ground for habeas relief is based upon the supposed multiplicitous indictment, (see Doc. 1 at 6), that ground will be dismissed. -9- guilty, that was not voluntarily nor intelligently made pursuant to the plea agreement, concerning only two (2) alleged victims, which the court used to convict me of one (1) count of molestation of a child and two (2) counts, of the same lesser included offense, of luring a minor for sexual exploitation, even though you cannot commit molestation without also committing luring, and the court imposed 15 years [of] probation in addition to two (2) terms of imprisonment for 3.5 and 4 years. 1 2 3 4 5 (Doc. 1 at 8 (emphasis added).) Because Petitioner’s claim of receiving misinformation 6 regarding the potential sentences he could face is dependent upon the indictment being 7 unlawfully multiplicitous, the claim cannot succeed. Accordingly, Petitioner has not 8 demonstrated that his underlying claim of ineffective assistance of trial counsel is 9 substantial. 10 b. 11 Claim that PCR Counsel Was Deficient According to Strickland v. Washington. 12 Petitioner alleges that his PCR counsel was ineffective because counsel informed 13 Petitioner that there were no colorable claims that he could raise during a PCR 14 proceeding. However, as discussed above, Petitioner has not presented any claim to this 15 Court that is colorable and should have been presented during the PCR proceeding. PCR 16 counsel cannot therefore be said to be constitutionally deficient for his advice to 17 Petitioner. Petitioner has failed to demonstrate sufficient cause to excuse the default of 18 his habeas Petition claims.4 19 ... 20 ... 21 ... 22 ... 23 ... 24 ... 25 ... 26 ... 27 4 28 Because Petitioner has failed to demonstrate the necessary cause to excuse his procedural default, this Court does not address whether there was sufficient prejudice resulting from the defaulted claims. - 10 - 1 Accordingly, 2 IT IS HEREBY ORDERED that the Report and Recommendation (Doc. 14) is 3 adopted in part and rejected in part. The Report and Recommendation is rejected to 4 the extent that it finds that Petitioner’s claimed ineffective assistance of PCR counsel 5 cannot serve as cause for the procedural default of his claims. 6 Recommendation is otherwise adopted. The Report and 7 IT IS FURTHER ORDERED that Petitioner’s Petition (Doc. 1) is denied and 8 dismissed. The Clerk of Court is directed to enter judgment as necessary and close this 9 case. 10 IT IS FURTHER ORDERED that, pursuant to Rule 11(a) of the Rules 11 Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines 12 to issue a certificate of appealability because reasonable jurists would not find the Court’s 13 ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 14 Dated this 25th day of August, 2016. 15 16 17 Honorable Rosemary Márquez United States District Judge 18 19 20 21 22 23 24 25 26 27 28 - 11 -

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