Opinion
CV-20-02208-PHX-MTL (MTM)
08-10-2021
Ronald Le Lawrence Brown, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey United States Magistrate Judge
Petitioner Ronald Le Lawrence Brown has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).
I. SUMMARY OF CONCLUSION
Following a plea of guilty to two counts of sexual abuse and two counts of attempted sexual contact with a minor, Petitioner was sentenced in Arizona state court to five years in prison followed by lifetime probation. Petitioner asserts that lifetime probation violates the Eighth Amendment's prohibition against cruel and unusual punishment and Arizona law. The Court recommends that the Petition be denied and dismissed with prejudice because Petitioner's claims are either noncognizable or procedurally defaulted without adequate excuse.
II. BACKGROUND
On August 2, 2019, Petitioner pled guilty in Maricopa County Superior Court to two counts of sexual abuse (a class 3 felony and a class 5 felony) and two counts of attempted sexual conduct with a minor (both class 3 felonies). (Doc. 6-1, Ex. C, at 13-22). On September 5, 2019, the Court sentenced Petitioner to five years in prison followed by lifetime probation. (Doc. 6-1, Ex. G, at 36-40). At his sentencing Petitioner signed a “Notice of Rights After Conviction and Procedure” form, which explained his postconviction rights and instructed him to file any notice of a request for post-conviction relief (“PCR”) “within 90 days of the entry of judgment and sentence.” (Doc. 6-1, Ex. H, at 4445).
On December 26, 2019, Petitioner filed an untimely notice of PCR (doc. 6-1, Ex. I, at 47-74), claiming, inter alia, that the imposition of a “lifetime probation term violate[d his] rights against cruel and unusual punishment.” (Doc. 6-1, Ex. J, at 77; see Doc. 6-1, Ex. I, at 58-59). On March 31, 2020, the PCR Court dismissed the PCR notice as “untimely by 22 days,” citing Ariz. R. Crim. P. 33.1(a) and 33.4(b)(3)(A). (Doc. 6-1, Ex. J, at 7778). The PCR Court rejected Petitioner's claim that the untimeliness was not his fault due to “defense counsel and the prosecutor [allegedly] conceal[ing] the rule of lenity from him.” (Id. at 77 (citing doc. 6-1, Ex. I, at 49, 51-52, 56)). The PCR Court noted Petitioner offered no facts to support this claim and that “[n]owhere in his submission d[id Petitioner] adequately explain why he delayed in seeking post-conviction relief.” (Id.).
Petitioner raised other claims in his PCR notice which are not before this Court.
Under Ariz. R. Crim. P. 33.1(a), a defendant may obtain PCR where “the sentence was imposed[] in violation of the United States [Constitution]”; the claim must be raised in a notice of PCR “within 90 days after the oral pronouncement of sentence.” Ariz. R. Crim. P. 33.4(b)(3)(A).
On April 9, 2020, Petitioner filed a notice of appeal to the Arizona Court of Appeals. (Doc. 6-1, Ex. K, at 81-82; Doc. 6-1, Ex. O, at 92). The Court of Appeals dismissed the appeal, noting that the PCR Court's order of dismissal was “not appealable.” (Doc. 6-1, Ex. L, at 84). The Arizona Supreme Court declined jurisdiction over Petitioner's special action seeking a writ of mandamus. (Doc. 6-1, Ex. P, at 94; Doc. 6-1, Ex. M, at 86).
See generally Ariz. R. Crim. P. 33.16(a)(1) (providing that review of PCR denial is done through a petition for review); Ariz. Rev. Stat. § 13-4033(A) (omitting an order denying PCR from list of appealable actions).
III. PETITION FOR WRIT OF HABEAS CORPUS
On November 17, 2020, Petitioner filed the present habeas petition. (Doc. 1). As summarized by the Court in its December 10, 2020 Service Order, “Petitioner raises one ground for relief, alleging his sentence of probation for life violates the Eighth Amendment prohibition against cruel and unusual punishment and constitutes an unlawful sentence.” (Doc. 3 at 1). Petitioner further claimed that his lifetime probation sentences violate Ariz. Rev. Stat. § 13-902(A) and Arizona's mandatory sentencing guidelines. (Doc. 1 at 5-6). Petitioner requests that the Court “[d]eclare lifetime probation unconstitutional, provide a legal term of probation[, and] resentence [him] to that term.” (Doc. 1 at 16). Respondents assert that the petition should be dismissed because claims in the Petition are either procedurally defaulted or noncognizable. (Doc. 6 at 5-16). Petitioner filed his Reply on February 10, 2021. (Doc. 9).
Ariz. Rev. Stat. § 13 -902(A) sets forth the length of probation terms for crimes based on classification.
IV. PRINCIPLES OF LAW
A. Cognizability
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see 28 U.S.C. § 2254(a); Engle v. Isaac, 456 U.S. 107, 119 (1982) (“A state prisoner is entitled to relief under 28 U.S.C. § 2254 only if he is held ‘in custody in violation of the Constitution or laws or treaties of the United States.'”). Errors of state law are not cognizable in habeas proceedings. Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have stated many times that federal habeas corpus relief does not lie for errors of state law.”) (quotation marks and citations omitted); Estelle, 502 U.S. at 63 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”).
B. Procedural Default.
“[A] federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). “A state court's invocation of a procedural rule to deny a prisoner's claims precludes federal review of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed.” Id. A petitioner is not entitled to habeas review of a procedurally defaulted claim unless the petitioner “demonstrate[] either cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
V. ANALYSIS
A. State Law Claims.
Petitioner's challenge to the validity of his lifetime probation sentences under Ariz. Rev. Stat. § 13-902(A) and Arizona's sentencing guidelines (doc. 1 at 5-6) is not cognizable in this Court. These claims assert only a violation of state law, not federal law. This Court does not have jurisdiction over these claims, and Petitioner is not entitled to habeas relief based on them. Swarthout, 562 U.S. at 219.
In his Reply, Petitioner asserts, for the first time, a challenge to the constitutionality of Ariz. Rev. Stat. § 13-902 and argues that his state claim is therefore cognizable. (Doc. 9 at 6). However, Petitioner's constitutional challenge to Ariz. Rev. Stat. § 13-902 is waived. See Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) (“Arguments raised for the first time in petitioner's reply brief are deemed waived.”); Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”). Petitioner is not entitled to habeas relief on his noncognizable state law claims.
B. Eighth Amendment Claim.
Petitioner's challenge to the validity of his lifetime probation sentences under the Eighth Amendment, while cognizable as an issue of federal constitutional law, is precluded from this Court's review because it is procedurally defaulted without adequate excuse. As discussed in Section II, supra, Petitioner raised this claim before the state PCR Court, which dismissed it as untimely under Ariz. R. Crim. P. 33(b)(3)(A). (See Doc. 6-1, Ex. J, at 77-78; Doc. 6-1, Ex. I, at 58-59). The PCR Court's dismissal of the claim on procedural grounds precludes review of the claim by this Court, as Petitioner does not show cause and prejudice for the default or that review is needed to prevent a fundamental miscarriage of justice. See Martinez, U.S. at 9; Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (“Ordinarily, untimely [Arizona PCR] petitions are dismissed with prejudice for lack of jurisdiction.”).
Petitioner asserts that the Court should review his claim because his procedural default is attributable to the PCR Court's denial of his request to appoint counsel. (Doc. 9 at 2-3). In dismissing Petitioner's untimely PCR notice and denying his request to appoint counsel, the PCR Court stated:
In sum, Defendant has failed to state a claim for which relief can be granted in an untimely Rule 33 proceeding. Defendant must assert substantive claims and adequately explain the reasons for their untimely assertion. He has failed to meet this standard. Although the Court would normally grant the request for appointment of counsel for a first Rule 33 proceeding, appointment is not required when, as here, the Notice of Request for Post-Conviction Relief is “facially non-meritorious.”(Doc. 6-1, Ex. J, at 79 (citations omitted)). As to Petitioner's claim regarding the validity of his lifetime probation sentence, the PCR Court noted that Ariz. Rev. Stat. § 13-902(E), which governed Petitioner's convictions for attempted sexual conduct with a minor and sexual abuse, provided that “probation may continue for a term of not less than the term that is specified in subsection A of this section up to and including life.” (Doc. 6-1, Ex. J, at 78, quoting Ariz. Rev. Stat. § 13-902(E)). The PCR Court therefore held that the trial court properly applied Ariz. Rev. Stat. § 13-902 when it sentenced Petitioner. (Id.). See also United States v. Williams, 636 F.3d 1229, 1232-34 (9th Cir. 2011) (holding that “lifetime supervised release” for convictions of sexual exploitation and abuse of children did not violate the Eighth Amendment).
See State v. Harden, 263 P.3d 680, 683 (Ariz.Ct.App. 2011) (holding that a PCR court need not appoint counsel before conducting a preliminary review of an untimely PCR notice, noting that a PCR court retains a “gate-keeping function to dismiss facially non-meritorious notices”).
In Williams, the Ninth Circuit noted that such crimes are “unspeakably horrendous” and that lifetime supervised release is “particularly appropriate for sex offenders given their high rate of recidivism.” 636 F.3d at 1233. The court further noted that lifetime supervised release “is a punishment far less severe than prison.” Id. at 1232.
As a defendant who pled guilty, Petitioner would have had a right to counsel if he had filed a timely notice of PCR. Although generally there is “no right to counsel in postconviction proceedings,” Garza v. Idaho, 139 S.Ct. 738, 749 (2019) (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)), “the right to appointed counsel extends to the first appeal of right,” Finley, 481 U.S. at 555. A PCR proceeding under Ariz. R. Crim. P. 33 (formerly Ariz. R. Crim. P. 32)is the “first appeal of right” for a pleading defendant in Arizona. See Summers v. Schriro, 481 F.3d 710, 716-17 (9th Cir. 2007) (“Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A).”) (citing State v. Ward, 118 P.3d 1122, 1125 (Ariz.Ct.App. 2005) (holding that the “‘Rule 32 of-right' proceeding is the functional equivalent of a direct appeal”)). Accordingly, a pleading defendant in Arizona is entitled to counsel during his first PCR proceeding. See Summers, 481 F.3d at 715 (“Indigent petitioners in Rule 32 of-right proceedings are entitled to appointed counsel, even in non-capital cases.”); State v. Pruett, 912 P.2d 1357, 1359-60 (Ariz.Ct.App. 1995) (“[A] pleading defendant . . . is constitutionally entitled to the effective assistance of counsel on his first petition for post-conviction relief, the counterpart of a direct appeal.”).
Effective January 1, 2020, the Arizona Supreme Court abrogated former Rule 32 and divided its substance among new Rule 32 (applying to defendants convicted at trial) and new Rule 33 (applying to defendants who pled guilty or no contest). Ariz. Sup. Ct. Order No. R-19-0012, available at https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure. The new rules apply to PCR proceedings that were initiated on or after January 1, 2020 or that were pending on January 1, 2020 except where “applying the rule or amendment would be infeasible or work an injustice.” Id.; see State v. Mendoza, 467 P.3d 1120, 1122 n.1 (Ariz.Ct.App. 2020); McCray v. Shinn, No. CV-17-01658-PHX-DJH, 2020 WL 919180, at *4 n.4 (D. Ariz. Feb. 26, 2020); Demaree v. Sanders, No. CV-17-00294-TUC-EJM, 2020 WL 2084582, at *2 n.4 (D. Ariz. Apr. 30, 2020).
However, contrary to Petitioner's argument, his procedural default was not caused by the PCR Court's declining to appoint counsel for him; rather, the procedural default was caused by Petitioner's failure to meet a 90-day deadline to file a notice of PCR. As noted in Section II, supra, at his sentencing Petitioner signed a Notice form that clearly explained to him that he was required to file a request for post-conviction relief “within 90 days of the entry of judgment and sentence.” (Doc. 6-1, Ex. H, at 44-45). Further, the Notice form included the guidance that “[y]ou can file a notice of post-conviction relief before you leave the courtroom on the day you are sentenced if you wish.” (Id. at 44). Nevertheless, Petitioner missed the 90 day deadline by 22 days. (Doc. 6-1, Ex. J, at 77-78).
Petitioner argues that this Court should review his claim because he has shown a “fundamental miscarriage of justice.” (Doc. 9 at 10). The fundamental miscarriage of justice “exception [to procedural default] is limited to those who are actually innocent.” Polandv. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997) (citingMurray v. Carrier, 477 U.S. 478, 496 (1986)). To demonstrate actual innocence, a petitioner “must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent” by showing that “it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt.” Jones v. Taylor, 763 F.3d 1242, 1247 (9th Cir. 2014) (quotation marks and citations omitted).
Petitioner's argument - that no reasonable juror would agree that lifetime probation is a “term” of probation because the term is unending (doc. 9 at 10) - misses the mark because it does not in any way demonstrate actual innocence of the crimes of sexual abuse and attempted sexual contact that Petitioner acknowledged by pleading guilty. Accordingly, Petitioner has not shown that his procedural default should be excused because he is actually innocent.
Petitioner's Eighth Amendment claim is procedurally defaulted and consequently barred from this Court's review. Martinez, U.S. at 9. Petitioner is not entitled to relief on this claim.
VI. CONCLUSION
The record is sufficiently developed, and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Petitioner's claims for relief are either not cognizable on federal habeas review or procedurally defaulted without adequate excuse. Accordingly, the Court recommends that Petitioner's habeas petition (doc. 1) be denied and dismissed with prejudice.
VII. CERTIFICATE OF APPEALABILITY
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Cases, 28 U.S.C. § 2254. The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Petitioner has not made the requisite showing here, and therefore the Court recommends that a certificate of appealability be denied.
IT IS THEREFORE RECOMMENDED that the Petition for a Writ of Habeas Corpus (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72.
Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.