Simms v. Horne

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATION 20 . Simms' Petition under 28 U.S.C. §2254 for a Writ of Habeas Corpus by a Person in State Custody is DISMISSED WITH PREJUDICE. The Clerk of the Court shall enter judgment and shall then close its file in this matter. A Certificate of Appealability shall not issue in this case. Signed by Judge Cindy K Jorgenson on 6/2/15. (See attached PDF for complete information.) (KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Petitioner,
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vs.
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MARK BRNOVICH,1 Attorney General )
of the State of Arizona,
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Respondent.
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DONALD WILLIAM SIMMS, II,

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No. CIV 14-2194-TUC-CKJ (LAB)
ORDER

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On December 5, 2014, Magistrate Judge Leslie A. Bowman issued a Report and

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Recommendation (Doc. 20) in which she recommended that the Petition under 28 U.S.C. §

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2254 for a Writ of Habeas Corpus by a Person in State Custody filed by Donald William

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Simms, II (“Simms”) be dismissed. The magistrate judge advised the parties that written

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objections to the Report and Recommendation were to be filed within fourteen days of

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service of a copy of the Report and Recommendation pursuant to 28 U.S.C. § 636(b).

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Simms filed an Objection (Doc. 22). Pursuant to the January 29, 2015, Order of this

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Court, Respondent has filed a Response (Doc. 26). Additionally, Simms has filed a Request

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to File Reply and Reply to Respondent Response (Doc. 27).

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Pursuant to Fed.R.Civ.P. 25(d)(1), Mark Brnovich is substituted Thomas C. Horne
as the defendant in this suit.

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Request to File Reply and Reply to Respondent Response (Doc. 27)

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The Court accepts the Reply filed by Simms.

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Simms asserts the Court has granted Respondent another bite at the apple after

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Respondent disregarded the magistrate judge’s order to file a Response to the Objection

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within 14 days of the filing of the Objection. However, the applicable statute states that this

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Court may “receive further evidence[.]” 28 U.S.C. § 636(b)(1). Additionally, the local rule

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that addresses motions, objections, responses, and replies recognizes the authority of the

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Court to issue non-standard orders regarding briefing. See LRCiv 7.2; see also Seismic

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Reservoir 2020, Inc. v. Paulsson, — F.3d — , 2015 WL 1883388 (9th Cir. 2015)

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(recognizing without disapproval the district court’s request for additional briefing). The

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Court will consider the Response to the Objection.

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Report and Recommendation

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C.

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§ 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then

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this Court is required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” The statute does not “require [] some lesser

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review by [this Court] when no objections are filed.” Thomas v. Arn, 474 U.S. 140, 149-50,

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106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Rather, this Court is not required to conduct “any

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review at all . . . of any issue that is not the subject of an objection.” Id. at 149.

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The magistrate judge determined Simms was not “in custody” pursuant to the “the

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conviction or sentence under attack at the time his petition [was] filed.” Maleng v. Cook, 490

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U.S. 488, 490-91 (1989).

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Simms’ Objections to the Report and Recommendation
Simms asserts he is in custody for his conviction in Arizona case number CR-2-

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20122055, which was enhanced by the invalid convictions in Arizona case numbers CR-

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66597 and CR-20001137. In asserting his convictions are invalid, Simms asserts he has

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newly discovered evidence that his attorney in CR-66597 failed to advise him of a plea offer

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made by the State of Arizona. Simms asserts the newly discovered evidence establishes he

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received ineffective assistance of counsel. Simms also asserts that his due process rights

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were violated in his Arizona Rule 32 proceeding.

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Simms does not appear to dispute the conclusion of the magistrate judge that the

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general rule is that “[h]abeas corpus . . . may not be used to collaterally attack an expired

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conviction that was used to enhance the sentence under review.”

Report and

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Recommendation, p. 4 (citing Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 402,

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121 S.Ct. 1567, 1573 (2001). However, Simms asserts his petition should be granted under

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the faultless exception as discussed in Lackawanna County and Durbin v. California, 720

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F.3d 1095 (2013). In Durbin, the Ninth Circuit stated:

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We therefore hold that when a defendant cannot be faulted for failing to obtain timely
review of a constitutional challenge to an expired prior conviction, and that conviction
is used to enhance his sentence for a later offense, he may challenge the enhanced
sentence under § 2254 on the ground that the prior conviction was unconstitutionally
obtained.

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720 F.3d at 1099. Simms asserts this case falls within the exception discussed in Durbin.

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However, the minute entry from the sentencing in CR20122055 states:

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THE COURT FINDS that the defendant was previously convicted of a Category Two,
Historical Prior Felony Conviction of Conspiracy to Transport and/or Possess
Marijuana for Sale, in Pima County Superior Court Tucson, Arizona, cause number
CR20001137 on August 28, 2000, committed on February 25, 2000.

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Answer, Ex. G. (Doc. 11-3, p. 8 of 47); see also Reply, Ex. 1 (Doc. 19-1, p. 5 of 53). There
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is no similar statement that the conviction in CR-66597 enhanced or in any way played a role
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in the sentencing of Simms in CR-20122055. Similarly, the Sentence Information Sheet
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from CR-20122055 indicates Simms admitted “a prior conviction of Conspiracy to Transport
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and/or Possess Marijuana for Sale, in Pima County Superior Court, Tucson, Arizona, cause
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number CR-20001137 on August 28, 2000, committed on February 26,2000.” Reply, Ex.
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1 (Doc. 19-1, p. 7 of 53). The Sentence Information Sheet does not state that Simms

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admitted the prior conviction in CR-66597 in conjunction with CR-20122055. The plea

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agreement in CR-20122055 similarly states that Simms admitted the prior conviction in CR-

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20001137, but includes no reference to the CR-66597 conviction. Response, Ex. M (Doc.

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26-1, p. 6).

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Simms’ claims for relief involve the validity of the conviction in CR-66975.

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However, that prior conviction did not enhance Simms’ sentence in CR-20122055, the

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conviction for which Simms is in custody. Simms is not in custody in CR-66975 and his

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sentence in CR-20122055 was not enhanced by an invalid conviction. Simms’ claims do not

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fall within the exception as discussed in Durbin.
Because Simms is not “in custody” for the purposes of 28 U.S.C. § 2254(a), this Court
does not have the authority to grant Simms habeas relief.

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Certificate of Appealability (“COA”)

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Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the

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“district court must issue or deny a certificate of appealability when it enters a final order

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adverse to the applicant.” Such certificates are required in cases concerning detention arising

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“out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking

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a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1). Here, the Petition is

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brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court

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judgment. This Court must determine, therefore, if a COA shall issue.

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The standard for issuing a COA is whether 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). “Where a district

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court has rejected the constitutional claims on the merits, the showing required to satisfy §

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2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would

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find the district court's assessment of the constitutional claims debatable or wrong.” Slack

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v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “When the district

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court denies a habeas petition on procedural grounds without reaching the prisoner's

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underlying constitutional claim, a COA should issue when the prisoner shows, at least, that

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jurists of reason would find it debatable whether the petition states a valid claim of the denial

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of a constitutional right and that jurists of reason would find it debatable whether the district

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court was correct in its procedural ruling.” Id.; see also Robbins v. Carey, 481 F.3d

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1143,1146-47 (9th Cir. 2007) (failure to object to magistrate judge’s conclusions does not

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automatically waive appellate challenge) In the certificate, the Court must indicate which

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specific issues satisfy the showing. See 28 U.S.C. § 2253(c)(3).

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The Court finds that jurists of reason would not find it debatable whether the Petition

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stated a valid claim of the denial of a constitutional right and the Court finds that jurists of

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reason would not find it debatable whether the district court was correct in its procedural

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ruling. A COA shall not issue as to Simms’ claims.

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Any further request for a COA must be addressed to the Court of Appeals. See Fed.

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R.App. P. 22(b); Ninth Circuit R. 22-1.

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Accordingly, IT IS ORDERED:

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The Report and Recommendation (Doc. 20) is ADOPTED;

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2.

Simms’ Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a

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Person in State Custody is DISMISSED WITH PREJUDICE;
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The Clerk of the Court shall enter judgment and shall then close its file in this

matter, and;.

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A Certificate of Appealability shall not issue in this case.

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DATED this 2nd day of June, 2015.

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