Opinion
No. CV-19-02099-PHX-GMS (MTM)
03-09-2020
Terell Adam Gray, Petitioner, v. David Shinn, et al., Respondent.
REPORT AND RECOMMENDATION
TO THE HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:
Petitioner Terell Adam Gray has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).
I. Summary of Conclusion.
On November 27, 2012, in the Superior Court of Arizona, Petitioner entered into a plea agreement and was sentenced on January 3, 2013. Petitioner filed a timely notice for post-conviction relief on January 31, 2013, which was dismissed on January 29, 2014. Petitioner did not appeal. On December 31, 2018, Petitioner filed a second notice for post-conviction relief, which was dismissed on January 30, 2019, as untimely and successive. Petitioner did not appeal. On February 8, 2019, Petitioner filed a motion to release inmate with time served. This was denied on February 25, 2019; Petitioner did not appeal. On March 28, 2019, Petitioner filed the instant habeas petition. Petitioner was released from custody on December 12, 2019. As Petitioner is no longer in custody, the Court will recommend that the Petition be denied as moot. The petition is also procedurally defaulted as Petitioner did not exhaust his state remedies prior to filing the federal petition.
II. Background.
a. Facts and Procedural History.
On November 27, 2012, Petitioner pleaded guilty to one count of forgery, one count of burglary, and one count of aggravated assault. (Doc. 12-1, Exs. G-I). On January 3, 2013, the Superior Court of Arizona sentenced the Petitioner to two-and-a-half years for forgery, two-and-a-half years for burglary, and seven years for aggravated assault. (Doc. 12-1, Exs. J-L).
b. Petitioner's State Post-Conviction Relief Proceeding.
On January 31, 2013, Petitioner filed his first notice for post-conviction relief ("PCR"). (Doc. 12-1, Ex. M). After a completion of post-conviction review by counsel on June 6, 2013 (Doc. 12-1, Ex. N) finding no colorable claims to present, Petitioner filed his pro per petition on October 7, 2013. (Doc. 12-1, Ex. O). On January 29, 2014, the Superior Court of Arizona dismissed the petition for post-conviction relief. (Doc. 12-1, Ex. Q). Petitioner did not appeal this decision.
c. Petitioner's Second Post-Conviction Relief Proceeding.
On December 31, 2018, Petitioner filed his second notice for post-conviction relief with the Superior Court of Arizona (Doc. 12-1, Ex. R). On January 30, 2019, the court dismissed the petition for post-conviction relief as untimely and successive. (Doc. 12-1, Ex. S). Petitioner did not appeal this decision.
d. Petitioner's Motion to Release Inmate with Time Served.
On February 8, 2019, Petitioner filed a Motion to Release Inmate with Time Served. (Doc. 12-1, Ex. T). On February 25, 2019, the Superior Court of Arizona denied the motion, finding that petitioner was serving additional time resulting from his action in absconding from Community Supervision in July 2018. (Doc. 12-1, Ex. U).
e. Petitioner's Federal Habeas Petition.
On March 28, 2019, Petitioner filed this habeas corpus petition ("Petition"). (Doc. 1). In the Petition, he requests immediate release from state custody, credit for time served, and vacatur of his parole violation. Petitioner argues that (1) being held beyond his sentence date violates his due process rights under the Fifth Amendment; (2) being held beyond his sentence date violates the Eighth Amendment bar on cruel and unusual punishment; and (3) his sentence is unconstitutional because additional time should not have been imposed as a result of his parole violation. On June 25, 2019, the Government filed a limited response. (Doc. 12).
This case was referred to Magistrate Judge Michael T. Morrissey on February 13, 2020. (Doc. 14).
Petitioner was in state custody when he filed the petition. According to the Petition, Petitioner's release date was set for December 12, 2019. (Doc. 1 at 10). It appears Petitioner was released from state custody; the release date was corroborated upon review of the Petitioner's Arizona Department of Corrections record.
The Petitioner's status is listed as inactive with a release date of December 12, 2019. This is a public record available at: https://corrections.az.gov/public-resources/inmate-datasearch. If the Petitioner disputes his custody status, he may file his objection to the Report and Recommendation on the record.
III. The Petition.
a. Mootness.
Petitioner is no longer in state custody; therefore, his Petition is moot. "A case becomes moot when 'it no longer presents a case or controversy under Article III, § 2, of the Constitution.'" Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). The requirement of a current case or controversy "subsists through all stages of federal judicial proceedings" and "the parties must continue to have a 'personal stake in the outcome' of the lawsuit." Spencer, 523 U.S. at 7 (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78 (1990)). "An incarcerated convict's (or a parolee's) challenge to the validity of his conviction always satisfies the case-or-controversy requirement, because the incarceration (or the restriction imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction." Id. Once the incarceration has ended, however, there must be some other "concrete and continuing injury" or "some 'collateral consequence' of the conviction" for the suit to be maintained. Id. (quoting Carafas v. LaVallee, 391 U.S. 234, 238 (1968)).
In this case, Petitioner does not attack his conviction on substantive or procedural grounds. The Petition sought his immediate release from custody. Petitioner was released from custody on December 12, 2019. He has obtained the relief he sought in his petition "[t]hrough the mere passage of time." Lane v. Williams, 455 U.S. 624, 633 (1982). As such, "no live controversy remains," and his petition is moot. Id.
b. Procedural Default.
Even if Petitioner's claim was not moot, it is procedurally defaulted. A federal court may not grant a petition for writ of habeas corpus unless a petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's "highest" court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("[t]o provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim").
Here, in state court, Petitioner filed two notices for post-conviction relief and a motion to release inmate with time served. The notices and motion were denied, and Petitioner did not appeal. Accordingly, Petitioner's claims were not exhausted at the state level, depriving the state courts of the first opportunity to address the alleged violations of his rights. As of this date, Petitioner cannot return to state court to appeal his motions because the Court of Appeals of Arizona lacks jurisdiction to hear an untimely appeal. State v. Berry, 650 P.2d 1246, 1248 (Ariz. Ct. App. 1982). Petitioner's claim that he was not aware that the denial of his notices for post-conviction relief and his motion to release inmate were appealable does not constitute cause for his procedural default. See Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) ("When a pro se petitioner is able to apply for post-conviction relief to a state court, the petitioner must be held accountable for failure to timely pursue his remedy to the state supreme court."). As Petitioner does not establish cause for his procedural default, and does not allege actual innocence, his procedural default is not excused, and his Petition should be denied.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, 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 Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the /// /// /// /// findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.
Dated this 9th day of March, 2020.
/s/_________
Honorable Michael T. Morrissey
United States Magistrate Judge